Crime and Courts Bill [HL]

Session 2012 - 13
Internet Publications
Other Bills before Parliament

Crime and Courts Bill [HL]

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(a)
whether exemplary damages are to be awarded under this section,

or

(b)
the amount of such damages,


must not be left to a jury.”
12
Insert the following new Clause—

“Relevant considerations

(1)
This section applies where the court is deciding whether the circumstances

of the case make it appropriate for exemplary damages to be awarded

under section (Awards of exemplary damages).

(2)
The court must have regard to the principle that exemplary damages must

not usually be awarded if, at any time before the decision comes to be

made, the defendant has been convicted of an offence involving the

conduct complained of.

(3)
The court must take account of the following—

(a)
whether membership of an approved regulator was available to the

defendant at the material time;

(b)
if such membership was available, the reasons for the defendant not

being a member;

(c)
so far as relevant in the case of the conduct complained of, whether

internal compliance procedures of a satisfactory nature were in

place and, if so, the extent to which they were adhered to in that

case.

(4)
The reference in subsection (3)(c) to “internal compliance procedures”

being in place is a reference to any procedures put in place by the defendant

for the purpose of ensuring that—

(a)
material is not obtained by or on behalf of the defendant in an

inappropriate way, and

(b)
material is not published by the defendant in inappropriate

circumstances.

(5)
The court may regard deterring the defendant and others from similar

conduct as an object of punishment.

(6)
This section is not to be read as limiting the power of the court to take

account of any other matters it considers relevant to its decision.”
13
Insert the following new Clause—

“Amount of exemplary damages

(1)
This section applies where the court decides to award exemplary damages

under section (Awards of exemplary damages).

(2)
The court must have regard to these principles in determining the amount

of exemplary damages—

(a)
the amount must not be more than the minimum needed to punish

the defendant for the conduct complained of;

(b)
the amount must be proportionate to the seriousness of the

conduct.

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(3)
The court must take account of these matters in determining the amount of

exemplary damages—

(a)
the nature and extent of any loss or harm caused, or intended to be

caused, by the defendant’s conduct;

(b)
the nature and extent of any benefit the defendant derived or

intended to derive from such conduct.

(4)
The court may regard deterring the defendant and others from similar

conduct as an object of punishment.

(5)
This section is not to be read as limiting the power of the court to take

account of any other matters it considers relevant to its decision.”
14
Insert the following new Clause—

“Multiple claimants

(1)
This section applies where a relevant publisher—

(a)
is a defendant to a relevant claim, and

(b)
is found liable to two or more persons in respect of the claim (“the

persons affected”).

(2)
In deciding whether to award exemplary damages under section (Awards

of exemplary damages) or the amount of such damages to award (whether to

one or more of the persons affected), the court must take account of any

settlement or compromise by any persons of a claim in respect of the

conduct.

(3)
But the court may take account of any such settlement or compromise only

if the defendant agrees.

(4)
If the court awards exemplary damages under section (Awards of exemplary

damages) to two or more of the persons affected, the total amount awarded

must be such that it does not punish the defendant excessively.

(5)
If the court awards exemplary damages under section (Awards of exemplary

damages) to one or more of the persons affected, no later claim may be made

for exemplary damages as regards the conduct.”
15
Insert the following new Clause—

“Multiple defendants

(1)
Any liability of two or more persons for exemplary damages awarded

under section (Awards of exemplary damages) is several (and not joint or joint

and several).

(2)
Subsection (1) has effect subject to the law relating to the liability of a

partner for the conduct of another partner.

(3)
Where the liability of two or more persons for exemplary damages is

several, no contribution in respect of the damages may be recovered by any

of them under section 1 of the Civil Liability (Contribution) Act 1978.”
16
Insert the following new Clause—

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“Awards of aggravated damages

(1)
This section applies where—

(a)
a relevant claim is made against a person (“the defendant”),

(b)
the defendant was a relevant publisher at the material time,

(c)
the claim is related to the publication of news-related material, and

(d)
the defendant is found liable in respect of the claim.

(2)
Aggravated damages may be awarded against the defendant only to

compensate for mental distress and not for purposes of punishment.

(3)
In this section, “aggravated damages” means damages that were

commonly called aggravated before the passing of this Act and which—

(a)
are awarded against a person in respect of the person’s motive or

exceptional conduct, but

(b)
are not exemplary damages or restitutionary damages.

(4)
Nothing in this section is to be read as implying that, in cases where this

section does not apply, aggravated damages may be awarded for purposes

of punishment.”
17
Insert the following new Clause—

“Awards of costs

(1)
This section applies where—

(a)
a relevant claim is made against a person (“the defendant”),

(b)
the defendant was a relevant publisher at the material time, and

(c)
the claim is related to the publication of news-related material.

(2)
If the defendant was a member of an approved regulator at the time when

the claim was commenced (or was unable to be a member at that time for

reasons beyond the defendant’s control or it would have been

unreasonable in the circumstances for the defendant to have been a

member at that time), the court must not award costs against the defendant

unless satisfied that—

(a)
the issues raised by the claim could have been resolved by using an

arbitration scheme of the approved regulator, or

(b)
it is just and equitable in all the circumstances of the case to award

costs against the defendant.

(3)
If the defendant was not a member of an approved regulator at the time

when the claim was commenced (but would have been able to be a member

at that time and it would have been reasonable in the circumstances for the

defendant to have been a member at that time), the court must award costs

against the defendant unless satisfied that—

(a)
the issues raised by the claim could not have been resolved by using

an arbitration scheme of the approved regulator (had the defendant

been a member), or

(b)
it is just and equitable in all the circumstances of the case to make a

different award of costs or make no award of costs.

(4)
For the purposes of subsections (2) and (3), a claim could have been

resolved by using an arbitration scheme of an approved regulator if, at the

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time when the claim was commenced, the approved regulator had

arrangements in place for an arbitration scheme under which the claim

could have been referred for determination by an arbitrator appointed

under the scheme.

(5)
The Secretary of State must take steps to put in place arrangements for

protecting the position in costs of parties to relevant claims who have

entered into agreements under section 58 of the Courts and Legal Services

Act 1990.

(6)
This section is not to be read as limiting any power to make rules of court.

(7)
This section does not apply until such time as a body is first recognised as

an approved regulator.”
18
Insert the following new Clause—

“Meaning of “relevant publisher”

(1)
In sections (Awards of exemplary damages) to (Awards of costs), “relevant

publisher” means a person who, in the course of a business (whether or not

carried on with a view to profit), publishes news-related material—

(a)
which is written by different authors, and

(b)
which is to any extent subject to editorial control.


This is subject to subsections (5) and (6).

(2)
News-related material is “subject to editorial control” if there is a person

(whether or not the publisher of the material) who has editorial or

equivalent responsibility for—

(a)
the content of the material,

(b)
how the material is to be presented, and

(c)
the decision to publish it.

(3)
A person who is the operator of a website is not to be taken as having

editorial or equivalent responsibility for the decision to publish any

material on the site, or for content of the material, if the person did not post

the material on the site.

(4)
The fact that the operator of the website may moderate statements posted

on it by others does not matter for the purposes of subsection (3).

(5)
A person is not a “relevant publisher” if the person is specified by name in

Schedule (Exclusions from definition of “relevant publisher”).

(6)
A person is not a “relevant publisher” in so far as the person’s publication

of news-related material is in a capacity or case of a description specified in

Schedule (Exclusions from definition of “relevant publisher”).”
19
Insert the following new Clause—

“Other interpretative provisions

(1)
This section applies for the purposes of sections (Awards of exemplary

damages) to (Meaning of “relevant publisher”).

(2)
“Approved regulator” means a body recognised as a regulator of relevant

publishers.

12

(3)
For the purposes of subsection (2), a body is “recognised” as a regulator of

relevant publishers if it is so recognised by any body established by Royal

Charter (whether established before or after the coming into force of this

section) with the purpose of carrying on activities relating to the

recognition of independent regulators of relevant publishers.

(4)
“Relevant claim” means a civil claim made in respect of any of the

following—

(a)
libel;

(b)
slander;

(c)
breach of confidence;

(d)
misuse of private information;

(e)
malicious falsehood;

(f)
harassment.

(5)
For the purposes of subsection (4)—

(a)
the reference to a claim made in respect of the misuse of private

information does not include a reference to a claim made by virtue

of section 13 of the Data Protection Act 1998 (damage or distress

suffered as a result of a contravention of a requirement of that Act);

(b)
the reference to a claim made in respect of harassment is a reference

to a claim made under the Protection from Harassment Act 1997.

(6)
The “material time”, in relation to a relevant claim, is the time of the events

giving rise to the claim.

(7)
“News-related material” means—

(a)
news or information about current affairs,

(b)
opinion about matters relating to the news or current affairs, or

(c)
gossip about celebrities, other public figures or other persons in the

news.

(8)
A relevant claim is related to the publication of news-related material if the

claim results from—

(a)
the publication of news-related material, or

(b)
activities carried on in connection with the publication of such

material (whether or not the material is in fact published).

(9)
A reference to the “publication” of material is a reference to publication—

(a)
on a website,

(b)
in hard copy, or

(c)
by any other means;


and references to a person who “publishes” material are to be read

accordingly.

(10)
A reference to “conduct” includes a reference to omissions; and a reference

to a person’s conduct includes a reference to a person’s conduct after the

events giving rise to the claim concerned.”
After Clause 32
20
Insert the following new Clause—

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“Restraint orders and legal aid

(1)
Section 41 of the Proceeds of Crime Act 2002 (confiscation in England and

Wales: restraint orders) is amended in accordance with subsections (2) to

(6).

(2)
After subsection (2) insert—

“(2A)
A restraint order must be made subject to an exception enabling

relevant legal aid payments to be made (a legal aid exception).

(2B)
A relevant legal aid payment is a payment that the specified person

is obliged to make—

(a)
by regulations under section 23 or 24 of the Legal Aid,

Sentencing and Punishment of Offenders Act 2012, and

(b)
in connection with services provided in relation to an

offence which falls within subsection (5),


whether the obligation to make the payment arises before or after

the restraint order is made.”

(3)
In subsection (3)—

(a)
after “subject to” insert “other”, and

(b)
omit paragraph (c).

(4)
In subsection (4), for “But an exception to a restraint order” substitute “But

where an exception to a restraint order is made under subsection (3), it”.

(5)
After subsection (5) insert—

“(5A)
A legal aid exception—

(a)
must be made subject to prescribed restrictions (if any) on—

(i)
the circumstances in which payments may be made

in reliance on the exception, or

(ii)
the amount of the payments that may be made in

reliance on the exception,

(b)
must be made subject to other prescribed conditions (if any),

and

(c)
may be made subject to other conditions.

(5B)
Any other exception to a restraint order may be made subject to

conditions.”

(6)
After subsection (9) insert—

“(10)
In this section “prescribed” means prescribed by regulations made

by the Secretary of State.”

(7)
In section 459 of that Act (orders and regulations)—

(a)
in subsection (4)(a), after “section” insert “41(5A),”, and

(b)
in subsection (6)(a), after “section” insert “41(5A),”.”
21
Insert the following new Clause—

“Restraint orders and legal aid: supplementary

(1)
The Secretary of State may by regulations—

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(a)
make provision about the making of relevant legal aid payments

out of property that is the subject of a restraint order under Part 2 of

the Proceeds of Crime Act 2002 (“the 2002 Act”), and

(b)
make provision in connection with cases in which such payments

are or may be made out of such property,


whether by modifying the operation of Part 2 of the 2002 Act or Chapter 1,

2 or 4 of Part 8 of that Act or otherwise.

(2)
The provision that may be made by regulations under this section

includes—

(a)
provision about how much property may be subject to a restraint

order, including provision made by reference to the amount or

estimated amount of relevant legal aid payments;

(b)
provision for a restraint order or other order under Part 2 of the

2002 Act to remain in force, where a relevant legal aid payment

remains unpaid, in circumstances in which the order would

otherwise have to be discharged;

(c)
provision about powers of investigation for the purpose of

identifying property that may be used to make relevant legal aid

payments, including powers exercisable where an order continues

in force in accordance with provision described in paragraph (b);

(d)
provision about the use of property in cases in which there is or has

been a restraint order, including provision about the order in which

different obligations to make payments may or must be satisfied in

such cases;

(e)
provision about powers of entry, search and seizure;

(f)
provision about the payment of compensation by the Lord

Chancellor;

(g)
provision about the disclosure and use of documents, information

and other evidence.

(3)
The provision that may be made by regulations under this section (whether

by virtue of this section or section 39(12)) includes—

(a)
provision conferring, removing or otherwise modifying a function;

(b)
provision amending, repealing, revoking or otherwise modifying

provision made by or under any enactment (including provision

inserted or amended by this Act).

(4)
In this section—

“function” means a function of any description, including a power or

duty (whether conferred by an enactment or arising otherwise);

“property” has the same meaning as in Part 2 of the 2002 Act;

“relevant legal aid payment” means—

(a)
a payment that is a relevant legal aid payment for the

purposes of section 41 of the 2002 Act, and

(b)
a payment that would be such a payment if a restraint order

were made.

(5)
In subsection (2)(a) and (c) the references to relevant legal aid payments

include any payment that is likely to be a relevant legal aid payment when

the obligation to make the payment arises.”
22
Insert the following new Clause—