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

44

 

(7)   

After section 133 insert—

“133A   

Miscarriages of justice: amount of compensation

(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.

5

(2)   

In assessing so much of any compensation payable under section 133 as

is attributable to suffering, harm to reputation or similar damage, the

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

10

result of the conviction, and

(b)   

the conduct of the investigation and prosecution of the offence.

(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

15

reason of either or both of the following—

(a)   

any conduct of the person appearing to the assessor to have

directly or indirectly caused, or contributed to, the conviction

concerned; and

(b)   

any other convictions of the person and any punishment

20

suffered as a result of them.

(4)   

If, having had regard to any matters falling within subsection (3)(a) or

(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

25

only.

(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.

30

(6)   

The total amount of compensation payable under section 133 for a

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

35

National Statistics at the time of the assessment.

(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.

40

(8)   

No order may be made under subsection (7) unless a draft of the order

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—

45

“section 133A;”.

(9)   

This section extends to England and Wales and Northern Ireland.

 
 

Criminal Justice and Immigration Bill
Part 6 — Criminal law

45

 

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—

(a)   

subsection (1), and

5

(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

Pornography etc.

10

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—

(a)   

pornographic, and

15

(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.

(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—

20

(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)   

So, for example, where—

(a)   

an image forms an integral part of a narrative constituted by a series of

25

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,

   

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

30

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,

(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,

35

(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

oral sex with an animal,

where (in each case) any such act, person or animal depicted in the image is or

40

appears to be real.

(7)   

In this section “image” means—

 
 

Criminal Justice and Immigration Bill
Part 6 — Criminal law

46

 

(a)   

a moving or still image (produced by any means); or

(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).

5

(9)   

Proceedings for an offence under this section may not be instituted—

(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.

10

65      

Exclusion of classified films etc.

(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—

15

(a)   

it is contained in a recording of an extract from a classified work, and

(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

20

mentioned in subsection (3)(b) 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;

   

and section 64(5) applies in connection with determining that question as it

25

applies in connection with determining whether an image is pornographic.

(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

30

any person, or

(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

35

authority to have regard to section 64 (along with other enactments creating

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

40

of which a classification certificate has been issued by a designated

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);

 
 

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Part 6 — Criminal law

47

 

“designated authority” means an authority which has been designated by

the Secretary of State under section 4 of that Act;

“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

5

electronically and from which images may be produced (by any

means).

(8)   

Section 22(3) of the Video Recordings Act 1984 (c. 39) (effect of alterations)

applies for the purposes of this section as it applies for the purposes of that Act.

66      

Defence

10

(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).

(2)   

The matters are—

(a)   

that the person had a legitimate reason for being in possession of the

image concerned;

15

(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;

(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

20

(ii)   

did not keep it for an unreasonable time.

(3)   

In this section “extreme pornographic image” and “image” have the same

meanings as in section 64.

67      

Penalties etc. for possession of extreme pornographic images

(1)   

This section has effect where a person is guilty of an offence under section 64.

25

(2)   

Except where subsection (3) applies to the offence, the offender is liable—

(a)   

on summary conviction, to imprisonment for a term not exceeding the

relevant period or a fine not exceeding the statutory maximum or both;

(b)   

on conviction on indictment, to imprisonment for a term not exceeding

3 years or a fine or both.

30

(3)   

If the offence relates to an image that does not depict any act within section

64(6)(a) or (b), the offender is liable—

(a)   

on summary conviction, to imprisonment for a term not exceeding the

relevant period or a fine not exceeding the statutory maximum or both;

(b)   

on conviction on indictment, to imprisonment for a term not exceeding

35

2 years or a fine or both.

(4)   

In subsection (2)(a) or (3)(a) “the relevant period” means—

(a)   

in relation to England and Wales, 12 months;

(b)   

in relation to Northern Ireland, 6 months.

(5)   

In Schedule 3 to the Sexual Offences Act 2003 (c. 42) (sexual offences in respect

40

of which an offender becomes subject to the notification requirements of Part

 
 

Criminal Justice and Immigration Bill
Part 6 — Criminal law

48

 

2), after paragraph 35 insert—

“35A       

An offence under section 64 of the Criminal Justice and Immigration

Act 2008 (possession of extreme pornographic images) if the

offender—

(a)   

was 18 or over, and

5

(b)   

is sentenced in respect of the offence to imprisonment for a

term of at least 2 years.”

(6)   

In subsection (5) the reference to Schedule 3 to the Sexual Offences Act 2003

(c. 42) is a reference to that Schedule as it applies in relation to England and

Wales and Northern Ireland.

10

68      

Indecent photographs of children

(1)   

The Protection of Children Act 1978 (c. 37) is amended as follows.

(2)   

In section 1B(1)(b) (exception for members of the Security Service)—

(a)   

after “Security Service” insert “or the Secret Intelligence Service”;

(b)   

for “the Service” substitute “that Service”.

15

(3)   

After section 7(4) (meaning of photograph), insert—

“(4A)   

References to a photograph also include—

(a)   

a tracing or other image, whether made by electronic or other

means (of whatever nature)—

(i)   

which is not itself a photograph or pseudo-photograph,

20

but

(ii)   

which is derived from the whole or part of a photograph

or pseudo-photograph (or a combination of either or

both); and

(b)   

data stored on a computer disc or by other electronic means

25

which is capable of conversion into an image within paragraph

(a);

   

and subsection (8) applies in relation to such an image as it applies in

relation to a pseudo-photograph.”

(4)   

In section 7(9)(b) (meaning of indecent pseudo-photograph), for “a pseudo-

30

photograph” substitute “an indecent pseudo-photograph”.

69      

Indecent photographs of children (Northern Ireland)

(1)   

The Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047

(N.I. 17)) is amended as follows.

(2)   

In article 2(2) (interpretation) in paragraph (b) of the definition of “indecent

35

pseudo-photograph”, for “a pseudo-photograph” substitute “an indecent

pseudo-photograph”.

(3)   

After article 2(2) insert—

“(2A)   

In this Order, references to a photograph also include—

(a)   

a tracing or other image, whether made by electronic or other

40

means (of whatever nature)—

(i)   

which is not itself a photograph or pseudo-photograph,

but

 
 

Criminal Justice and Immigration Bill
Part 6 — Criminal law

49

 

(ii)   

which is derived from the whole or part of a photograph

or pseudo-photograph (or a combination of either or

both); and

(b)   

data stored on a computer disc or by other electronic means

which is capable of conversion into an image within paragraph

5

(a);

   

and paragraph (3)(c) applies in relation to such an image as it applies in

relation to a pseudo-photograph.”

(4)   

In article 3A(1)(b) (exception for members of the Security Service)—

(a)   

after “Security Service” insert “or the Secret Intelligence Service”;

10

(b)   

for “the Service” substitute “that Service”.

70      

Maximum penalty for publication etc. of obscene articles

In section 2(1)(b) of the Obscene Publications Act 1959 (c. 66) (maximum

penalty on indictment for publication etc. of obscene articles) for “three years”

substitute “five years”.

15

Street offences

71      

Amendment to offence of loitering etc. for purposes of prostitution

(1)   

The Street Offences Act 1959 (c. 57) is amended as follows.

(2)   

In subsection (1) of section 1 (loitering or soliciting for purposes of

prostitution)—

20

(a)   

for “common prostitute” substitute “person”; and

(b)   

after “female)” insert “persistently”.

(3)   

In subsection (4) of that section, after “section” insert “—

(a)   

conduct is persistent if it takes place on two or more occasions

in any period of three months;

25

(b)   

any reference to a person loitering or soliciting for the purposes

of prostitution is a reference to a person loitering or soliciting

for the purposes of offering services as a prostitute;

(c)   

”.

(4)   

Section 2 (application to court by person cautioned for loitering or soliciting)

30

ceases to have effect.

72      

Orders to promote rehabilitation

(1)   

The Street Offences Act 1959 is amended as follows.

(2)   

In section 1 (loitering or soliciting for purposes of prostitution) after subsection

(2) insert—

35

“(2A)   

The court may deal with a person convicted of an offence under this

section by making an order under this subsection requiring the

offender to attend three meetings with the person for the time being

specified in the order (“the supervisor”) or with such other person as

the supervisor may direct.

40

 
 

Criminal Justice and Immigration Bill
Part 6 — Criminal law

50

 

(2B)   

The purpose of an order under subsection (2A) is to promote the

offender’s rehabilitation by assisting the offender, through attendance

at those meetings, to—

(a)   

address the causes of the conduct constituting the offence; and

(b)   

find ways to cease engaging in such conduct in the future.

5

(2C)   

Where the court is dealing with an offender who is already subject to

an order under subsection (2A) (“the original order”), the court may not

make a further order under that subsection unless it first revokes the

original order.

(2D)   

If the court makes an order under subsection (2A) it may not impose

10

any other penalty in respect of the offence.”

(3)   

After section 1 insert—

“1A     

Orders under section 1(2A): supplementary

(1)   

This section applies where a court proposes to make an order under

subsection (2A) of section 1 in relation to a person convicted of an

15

offence under that section (“the offender”).

(2)   

The order may not be made unless a suitable person has agreed to act

as supervisor in relation to the offender.

(3)   

In subsection (2) “suitable person” means a person appearing to the

court to have appropriate qualifications or experience for helping the

20

offender to make the best use of the meetings for the purpose

mentioned in section 1(2B).

(4)   

The order must specify—

(a)   

a date (not more than six months after the date of the order) by

which the meetings required by the order must take place;

25

(b)   

the local justice area in which the offender resides or will reside

while the order is in force.

(5)   

The meetings required by the order shall take place at such times and

places as the supervisor may determine and shall be of such duration

as he may determine.

30

(6)   

It is the duty of the supervisor—

(a)   

to make any arrangements that are necessary to enable the

meetings required by the order to take place; and

(b)   

once the order has been complied with, to notify the court

which made the order of that fact.

35

(7)   

The court making the order must forthwith provide copies of it to the

offender and the supervisor.

(8)   

Subsection (9) applies where—

(a)   

the order is made by the Crown Court, or

(b)   

the order is made by a magistrates’ court but specifies a local

40

justice area for which the court making the order does not act.

(9)   

The court must provide to a magistrates’ court acting for the local

justice area specified in the order—

(a)   

a copy of the order, and

 
 

 
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