Criminal Justice and Courts Bill (HC Bill 169)

Offence of possession of extreme pornographic images

16 Possession of pornographic images of rape and assault by penetration

(1) Part 5 of the Criminal Justice and Immigration Act 2008 is amended as follows.

(2) 20In section 63 (possession of extreme pornographic images)—

(a) after subsection (5) insert—

“(5A) In relation to possession of an image in England and Wales, an
“extreme image” is an image which—

(a) falls within subsection (7) or (7A), and

(b) 25is grossly offensive, disgusting or otherwise of an
obscene character.”,

(b) in subsection (6), for “An” substitute “In relation to possession of an
image in Northern Ireland, an”, and

(c) after subsection (7) insert—

“(7A) 30An image falls within this subsection if it portrays, in an explicit
and realistic way, either of the following—

(a) an act which involves the non-consensual penetration of
a person’s vagina, anus or mouth by another with the
other person’s penis, or

(b) 35an act which involves the non-consensual sexual
penetration of a person’s vagina or anus by another with
a part of the other person’s body or anything else,

and a reasonable person looking at the image would think that
the persons were real.

(7B) 40For the purposes of subsection (7A)—

(a) penetration is a continuing act from entry to
withdrawal;

(b) “vagina” includes vulva.”

(3) In section 66 (defence: participation in consensual acts)—

(a) before subsection (1) insert—

“(A1) Subsection (A2) applies where in England and Wales—

(a) 5a person (“D”) is charged with an offence under section
63, and

(b) the offence relates to an image that portrays an act or
acts within subsection (7)(a) to (c) or (7A) of that section
(but does not portray an act within subsection (7)(d) of
10that section).

(A2) It is a defence for D to prove—

(a) that D directly participated in the act or any of the acts
portrayed, and

(b) that the act or acts did not involve the infliction of any
15non-consensual harm on any person, and

(c) if the image portrays an act within section 63(7)(c), that
what is portrayed as a human corpse was not in fact a
corpse, and

(d) if the image portrays an act within section 63(7A), that
20what is portrayed as non-consensual penetration was in
fact consensual.”, and

(b) in subsection (1)—

(i) for “This section” substitute “Subsection (2)”, and

(ii) after “where” insert “in Northern Ireland”.

(4) 25In section 67 (penalties for possession of extreme pornographic images)—

(a) in subsection (2), for “Except where subsection (3) applies to the
offence” substitute “If the offence relates to an image that portrays any
relevant act (with or without other acts)”,

(b) in subsection (3), for “act within section 63(7)(a) or (b)” substitute
30“relevant act”, and

(c) after subsection (4) insert—

“(5) In this section “relevant act” means—

(a) in relation to England and Wales, an act within section
63(7)(a) or (b) or (7A)(a) or (b);

(b) 35in relation to Northern Ireland, an act within section
63(7)(a) or (b).”

(5) In Schedule 14 (special rules relating to providers of information society
services)—

(a) after paragraph 1(3) insert—

“(3A) 40For the purposes of sub-paragraph (2), “extreme
pornographic image” has the meaning given by section 63(2)
and in determining whether a domestic service provider is in
possession of such an image—

(a) where the service provider is established in England
45and Wales, “extreme image” has the meaning given
by section 63(5A);

(b) where the service provider is established in Northern
Ireland, “extreme image” has the meaning given by
section 63(6).”, and

(b) omit paragraph 6(2).

5Part 2 Young offenders

Detention of young offenders

17 Secure colleges and other places for detention of young offenders etc

(1) For section 43 of the Prison Act 1952 and the italic heading before it
10substitute—

“Places for the detention of young offenders etc

43 Places for the detention of young offenders etc

(1) The Secretary of State may provide the following places for the
detention of young persons sentenced to detention for an offence or
15remanded to custody (or for the detention of a class of such persons)—

(a) young offender institutions,

(b) secure training centres, and

(c) in England, secure colleges.

(2) In subsection (1), “young person” means a person who is aged under 18
20or who was aged under 18 when convicted of the offence or remanded.

(3) Sections 1 to 42A and Schedule A1 (“the prisons provisions”) apply in
relation to places listed in subsection (1) and to persons detained in
them as they apply to prisons and prisoners, subject to subsections (4)
to (7).

(4) 25The following provisions do not apply in relation to the following
places—

(5) In their application in relation to secure colleges, the prisons provisions
apply as if references to the governor and deputy governor were
35references to the principal and deputy principal.

(6) In their application in relation to places listed in subsection (1), the
prisons provisions apply—

(a) as if references to imprisonment included references to
detention in those places, and

(b) subject to any other modifications specified in rules made by the
Secretary of State (but see subsection (7)).

(7) 5The following provisions, as they apply in relation to the following
places, may not be modified by rules made under this section—

(8) Rules made under this section may—

(a) make different provision for different cases;

(b) 15contain transitional, transitory or saving provision.

(9) The references in this section to a young person sentenced to
detention—

(a) include a person sentenced to a detention and training order or
an order under section 211 of the Armed Forces Act 2006;

(b) 20do not include a person sentenced to service detention within
the meaning of the Armed Forces Act 2006.

(10) Subsections (11) to (13) have effect in relation to any time before the
coming into force of section 61 of the Criminal Justice and Court
Services Act 2000 (abolition of sentences of detention in a young
25offender institution).

(11) Subsection (2) of this section, as it applies for the purposes of the power
under subsection (1) to provide young offender institutions, has effect
as if for “18”, in each place, there were substituted “21”.

(12) The Secretary of State may from time to time direct that a woman aged
3021 or over who is serving a sentence of imprisonment or who has been
committed to prison for default is to be detained in a young offender
institution.

(13) Nothing in this section prejudices the operation of section 108(5) of the
Powers of Criminal Courts (Sentencing) Act 2000 (detention of persons
35aged at least 18 but under 21 for default or contempt).”

(2) In section 52 of the Prison Act 1952 (orders, rules and regulations), after
subsection (2) insert—

“(2ZA) A statutory instrument containing rules under section 43 is subject to
annulment in pursuance of a resolution of either House of Parliament.”

(3) 40Schedule 3 contains further amendments relating to secure colleges and other
places for the detention of young offenders.