Criminal Justice and Immigration Bill

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions
43

(4)
For subsection (4A) substitute—
“(4A)
Section 133A applies in relation to the assessment of the amount of the
compensation.”
(5)
After subsection (5) (meaning of “reversed” in relation to a conviction) insert—
“(5A)
But in a case where—
5
(a)
a person’s conviction for an offence is quashed on an appeal out
of time, and
(b)
the person is to be subject to a retrial,

the conviction is not to be treated for the purposes of this section as
“reversed” unless and until the person is acquitted of all offences at the
10
retrial or the prosecution indicates that it has decided not to proceed
with the retrial.
(5B)
In subsection (5A) above any reference to a retrial includes a reference
to proceedings held following the remission of a matter to a
magistrates’ court by the Crown Court under section 48(2)(b) of the
15
Supreme Court Act 1981.”
(6)
In subsection (6) (meaning of suffering punishment as a result of conviction)
after “this section” insert “and section 133A”.
(7)
After section 133 insert—
“133A
Miscarriages of justice: amount of compensation
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(1)
This section applies where an assessor is required to assess the amount
of compensation payable to or in respect of a person under section 133
for a miscarriage of justice.
(2)
In assessing so much of any compensation payable under section 133 as
is attributable to suffering, harm to reputation or similar damage, the
25
assessor must have regard in particular to—
(a)
the seriousness of the offence of which the person was
convicted and the severity of the punishment suffered as a
result of the conviction, and
(b)
the conduct of the investigation and prosecution of the offence.
30
(3)
The assessor may make from the total amount of compensation that the
assessor would otherwise have assessed as payable under section 133
any deduction or deductions that the assessor considers appropriate by
reason of either or both of the following—
(a)
any conduct of the person appearing to the assessor to have
35
directly or indirectly caused, or contributed to, the conviction
concerned; and
(b)
any other convictions of the person and any punishment
suffered as a result of them.
(4)
If, having had regard to any matters falling within subsection (3)(a) or
40
(b), the assessor considers that there are exceptional circumstances
which justify doing so, the assessor may determine that the amount of
compensation payable under section 133 is to be a nominal amount
only.

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Part 6 — Criminal law
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(5)
The total amount of compensation payable to or in respect of a person
under section 133 for a particular miscarriage of justice must not exceed
the overall compensation limit.

That limit is £500,000.
(6)
The total amount of compensation payable under section 133 for a
5
person’s loss of earnings or earnings capacity in respect of any one year
must not exceed the earnings compensation limit.

That limit is an amount equal to 1.5 times the median annual gross
earnings according to the latest figures published by the Office of
National Statistics at the time of the assessment.
10
(7)
The Secretary of State may by order made by statutory instrument
amend subsection (5) or (6) so as to alter the amount for the time being
specified as the overall compensation limit or the earnings
compensation limit.
(8)
No order may be made under subsection (7) unless a draft of the order
15
has been laid before and approved by a resolution of each House of
Parliament.”
(8)
In section 172 (extent) in subsection (3) (provisions extending to Northern
Ireland as well as England and Wales) after “section 133;” insert—
“section 133A;”.
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(9)
This section extends to England and Wales and Northern Ireland.
63
Annual report on the Criminal Justice (Terrorism and Conspiracy) Act 1998
(1)
Section 8 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 (c. 40)
(requirement for annual report on working of the Act) ceases to have effect.
(2)
The following provisions, namely—
25
(a)
subsection (1), and
(b)
the repeal of section 8 of that Act in Part 3 of Schedule 23,

extend to England and Wales and Northern Ireland.
Part 6
Criminal law
30
Pornography etc.
64
Possession of extreme pornographic images
(1)
It is an offence for a person to be in possession of an extreme pornographic
image.
(2)
An “extreme pornographic image” is an image which is both—
35
(a)
pornographic, and
(b)
an extreme image.
(3)
An image is “pornographic” if it appears to have been produced solely or
principally for the purpose of sexual arousal.

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Part 6 — Criminal law
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(4)
Where an image forms part of a series of images, the question whether the
image appears to have been so produced is to be determined by reference to—
(a)
the image itself, and
(b)
(if the series of images is such as to be capable of providing a context for
the image) the context in which it occurs in the series of images.
5
(5)
So, for example, where—
(a)
an image forms an integral part of a narrative constituted by a series of
images, and
(b)
it appears that the series of images as a whole was not produced solely
or principally for the purpose of sexual arousal,
10

the image may, by virtue of being part of that narrative, be found not to be
pornographic, even though it might have been found to be pornographic if
taken by itself.
(6)
An “extreme image” is an image of any of the following—
(a)
an act which threatens or appears to threaten a person’s life,
15
(b)
an act which results in or appears to result (or be likely to result) in
serious injury to a person’s anus, breasts or genitals,
(c)
an act which involves or appears to involve sexual interference with a
human corpse,
(d)
a person performing or appearing to perform an act of intercourse or
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oral sex with an animal,
where (in each case) any such act, person or animal depicted in the image is or
appears to be real.
(7)
In this section “image” means—
(a)
a moving or still image (produced by any means); or
25
(b)
data (stored by any means) which is capable of conversion into an
image within paragraph (a).
(8)
In this section references to a part of the body include references to a part
surgically constructed (in particular through gender reassignment surgery).
(9)
Proceedings for an offence under this section may not be instituted—
30
(a)
in England and Wales, except by or with the consent of the Director of
Public Prosecutions; or
(b)
in Northern Ireland, except by or with the consent of the Director of
Public Prosecutions for Northern Ireland.
65
Exclusion of classified films etc.
35
(1)
Section 64 does not apply to excluded images.
(2)
An “excluded image” is an image which forms part of a series of images
contained in a recording of the whole or part of a classified work.
(3)
But such an image is not an “excluded image” if—
(a)
it is contained in a recording of an extract from a classified work, and
40
(b)
it appears that the image was extracted (whether with or without other
images) solely or principally for the purpose of sexual arousal.
(4)
Where an extracted image is one of a series of images contained in the
recording, the question whether the image appears to have been extracted as
mentioned in subsection (3)(b) is to be determined by reference to—
45

Criminal Justice and Immigration Bill
Part 6 — Criminal law
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(a)
the image itself, and
(b)
(if the series of images is such as to be capable of providing a context for
the image) the context in which it occurs in the series of images;

and section 64(5) applies in connection with determining that question as it
applies in connection with determining whether an image is pornographic.
5
(5)
In determining for the purposes of this section whether a recording is a
recording of the whole or part of a classified work, any alteration attributable
to—
(a)
a defect caused for technical reasons or by inadvertence on the part of
any person, or
10
(b)
the inclusion in the recording of any extraneous material (such as
advertisements),

is to be disregarded.
(6)
Nothing in this section is to be taken as affecting any duty of a designated
authority to have regard to section 64 (along with other enactments creating
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criminal offences) in determining whether a video work is suitable for a
classification certificate to be issued in respect of it.
(7)
In this section—
“classified work” means (subject to subsection (8)) a video work in respect
of which a classification certificate has been issued by a designated
20
authority (whether before or after the commencement of this section);
“classification certificate” and “video work” have the same meanings as in
the Video Recordings Act 1984 (c. 39);
“designated authority” means an authority which has been designated by
the Secretary of State under section 4 of that Act;
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“extract” includes an extract consisting of a single image;
“image” and “pornographic” have the same meanings as in section 64;
“recording” means any disc, tape or other device capable of storing data
electronically and from which images may be produced (by any
means).
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(8)
Section 22(3) of the Video Recordings Act 1984 (effect of alterations) applies for
the purposes of this section as it applies for the purposes of that Act.
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Defence
(1)
Where a person is charged with an offence under section 64, it is a defence for
the person to prove any of the matters mentioned in subsection (2).
35
(2)
The matters are—
(a)
that the person had a legitimate reason for being in possession of the
image concerned;
(b)
that the person had not seen the image concerned and did not know,
nor had any cause to suspect, it to be an extreme pornographic image;
40
(c)
that the person—
(i)
was sent the image concerned without any prior request having
been made by or on behalf of the person, and
(ii)
did not keep it for an unreasonable time.
(3)
In this section “extreme pornographic image” and “image” have the same
45
meanings as in section 64.