Criminal Justice and Immigration Bill

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Criminal Justice and Immigration Bill

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.

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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—

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(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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“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

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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

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(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

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(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