Clause 59: Provisional grant of right of representation

349.     This clause amends Part 1 of and Schedule 3 to the 1999 Act to allow for the provisional grant of a right to representation in prescribed circumstances.

350.     Subsection (6) inserts a new paragraph 1A into Schedule 3. This provides for regulations (subject to the affirmative resolution procedure) to set out circumstances in which a right to representation may be provisionally granted to individuals involved in an investigation which may result in criminal proceedings, for the purpose of those proceedings. Regulations may make provision about the stage of an investigation at which the right may be provisionally granted, and the circumstances in which any provisional grant ceases to be provisional and becomes a full grant, or where it is to be withdrawn.

351.     Subsection (2) amends section 14(1) and subsection (3) amends section 15(1) of the 1999 Act so as to refer to provisional grants.

352.     Subsection (4) makes regulations under new paragraph 1A subject to the affirmative resolution procedure.

353.     Subsection (5) adds to the definition of 'proceedings' for the purposes of the definition of 'representation' in section 26 of the 1999 Act.

354.     Subsection (7) amends paragraph 2A of Schedule 3 to provide that any provisional grant of a right to representation under regulations made under new paragraph 1A is to be made by the Legal Services Commission.

355.     Subsections (8) and (9) make consequential amendments to paragraphs 3A(1) and 3B of Schedule 3 so as to refer to provisional grants.

356.     Subsection (10) amends Schedule 3 and provides that the right of appeal set out in paragraph 4 does not apply in relation to any right granted under new paragraph 1A.

357.     Subsection (11) makes consequential amendments to paragraph 5 of Schedule 3 so as to refer to provisional grants and inserts a new sub-paragraph (2A) which defines 'proceedings' for the purposes of any provisional grant.

Clause 60: Disclosure of information to enable assessment of financial eligibility

358.     This clause amends the 1999 Act to allow the relevant authority to request and receive information from the Secretary of State (in practice the Secretary of State for Work and Pensions) and HMRC for purposes relating to the assessment of a person's eligibility for legal aid, and places certain restrictions on the disclosure of that information.

359.     Subsection (2) amends section 25(9) of the 1999 Act, making regulations under new paragraphs 6 and 8 of Schedule 3 subject to the affirmative resolution procedure.

360.     Subsection (3) inserts new paragraphs 6 to 8 of Schedule 3. New paragraph 6 provides that the relevant authority may make an information request to the DWP or HMRC for the purpose of making a decision about a person's financial eligibility for legal aid in accordance with paragraph 3B(1) and (2) or regulations under paragraph 3B(3) of Schedule 3. It further sets out the categories of information which may be requested (with a power to add further such categories by regulations subject to the affirmative resolution procedure). New paragraph 7 provides that a person to whom information is disclosed under paragraph 6 may disclose that information where necessary or expedient for those purposes. Except in these circumstances, or in accordance with any enactment or order of a court, or if information has already been lawfully disclosed to the public, any disclosure is an offence. A person guilty of this offence is liable on conviction on indictment to imprisonment for up to two years, a fine or both, or on summary conviction, to imprisonment for no more than twelve months, a fine not exceeding the statutory maximum (£5,000) or both. New paragraph 8 defines 'benefit status', 'the Commissioners' and 'information' for the purposes of new paragraphs 6 and 7.

Clause 61: Pilot schemes

361.     This clause inserts a new section 18A into the 1999 Act to provide for a power to pilot schemes under secondary legislation concerning the Criminal Defence Service.

362.     Subsection (2) removes subsection (5) of section 17A, a provision about a specific kind of pilot scheme.

363.     Subsection (3) inserts a new section 18A. This provides that any instruments under sections 12-15, 17, 17A or 22(5) or paragraphs 1A-5 of Schedule 3 may be made so as to have effect only for a specified period of up to twelve months, unless the Lord Chancellor extends this period by order where necessary to ensure the effective operation of a scheme or to coordinate it with another relevant pilot scheme, for up to eighteen months. The Lord Chancellor may further extend this period in order to cover any gap between the end of the pilot and full implementation. Any pilot scheme may apply in relation to one or more areas, type of court, type of offence or class of person.

364.     Subsection (4) inserts a new subsection (9B) into section 25, and provides that any instrument under new section 18A will be subject to the affirmative resolution procedure.

Clause 62: Compensation for miscarriages of justice

365.     Clause 62 amends the current provision for compensating victims of miscarriages of justice in section 133 of the Criminal Justice Act 1988 (the 1988 Act).

366.     Section 133(1) of the 1988 Act sets out the test which the Secretary of State applies in determining whether there is a right to compensation in a particular case. Section 133(1) is not amended by this Bill.

367.     There is currently no time limit for making an application to the Secretary of State for compensation in respect of a miscarriage of justice. This means that applications can be received in respect of convictions that were quashed many years ago. Subsection (3) amends section 133(2) of the 1988 Act to impose a time limit of two years within which an application under that section must be made. The two-year period begins with the date on which the conviction of the applicant was reversed or the date on which he was granted a pardon.

368.     Subsection (3) also inserts a new section 133(2A) into the 1988 Act. This allows an application made outside the new time limit to be treated as made within the time limit if the Secretary of State considers that there are exceptional circumstances which justify doing so. For example, the Secretary of State might regard the applicant being incapacitated for all or almost all of the two-year period as an exceptional circumstance. However it is not anticipated that the Secretary of State would regard the applicant being unaware of the right to apply for compensation as an exceptional circumstance.

369.     Compensation can only be paid to those who have been pardoned or whose convictions have been "reversed". Section 133(5) of the 1988 Act currently provides that a conviction has been "reversed" if it has been quashed, either on an appeal out of time or following one of several types of reference. Subsection (5) inserts two new subsections (5A) and (5B) into section 133 of the 1988 Act. The new subsection (5A) amends the definition of "reversed" for the purposes of section 133 in cases in which the conviction has been quashed but a retrial has been ordered. In such a case the conviction will now only be reversed when the person is acquitted of all offences at retrial (or when the prosecution indicates that it has decided not to proceed with a retrial). In such a case, it is the occurrence of one of these two events that will trigger the right to apply for compensation and the two-year time period within which an application should be made. The new subsection (5B) provides that references to a retrial in new subsection (5A) include proceedings in a magistrates' court following remission of a case from the Crown Court.

370.     If the Secretary of State decides that there is a right to compensation under section 133(1), the amount of compensation is assessed by an assessor.

371.     Subsections (4) and (7) replace the existing section 133(4A) of the 1988 Act, which currently makes provision about the assessment of the amount of compensation, with a new section 133A. Currently:

• There is no limit on the amount of compensation payable in respect of a miscarriage of justice. In determining the amount to be paid, the assessor uses principles analogous to those governing the assessment of damages for civil wrongs. Assessments are, as far as possible, intended to put the applicant back to the financial position he or she would have been in but for the miscarriage of justice.

• Section 133(4A) of the 1988 Act requires the assessor, when assessing the element of an award attributable to suffering, harm to reputation or similar damage (i.e. non-pecuniary loss), to take account of: (a) the seriousness of the offence and the severity of the punishment suffered by the applicant as a result of the conviction; (b) the conduct of the investigation and prosecution of the offence; and (c) other convictions of the applicant and any punishment resulting from them.

• The Note for Guidance sent to successful applicants states that the assessor may also make a deduction from the non-pecuniary loss element of an award to take account of conduct of the applicant which can be construed as contributing to the miscarriage of justice.

• As contributory conduct and other convictions and punishments have not been taken into account in assessing the pecuniary element of an award, significant levels of awards could be made to applicants who have other serious convictions or who may have contributed to the occurrence of the miscarriage of justice.

372.     The new section 133A(2) preserves the effect of the existing section 133(4A)(a) and (4A)(b) of the 1988 Act (as to which, see the second bullet point in the paragraph above).

373.     The new section 133A(3) provides that the assessor may make deductions from the overall award, not just from the non-pecuniary element, by reason of any conduct of the applicant which caused or contributed to the conviction and of other convictions of the applicant and any resulting punishments.

374.     The new section 133A(4) allows the assessor to make only a nominal award if he considers there to be exceptional circumstances which justify doing so. This might be the result, for example, in cases in which the applicant's own conduct was a major contributory factor in the miscarriage of justice, and/or the applicant has either a lengthy criminal record or has been convicted of particularly serious offences (whether before or after the miscarriage of justice in respect of which the claim is being made).

375.     New section 133A(5) introduces an overall cap of £500,000 on the amount of compensation payable in respect of a particular miscarriage of justice. No compensation will be payable for pecuniary or non-pecuniary loss in excess of the cap. The same cap applies in respect of claims made by victims of violent crime to the Criminal Injuries Compensation Authority.

376.     New section 133A(6) introduces a limit on the amount of compensation payable in respect of each year of an applicant's lost earnings or earnings capacity. That limit will be one and a half times the median annual gross earnings, as published by the Office for National Statistics, at the time of the assessment (rather than at the time the loss was suffered). Applicants, no matter what their actual or projected level of earnings, will not be compensated for any losses of earnings or earnings capacity at a rate higher than the limit. The same limit applies in respect of claims made by victims of violent crime to the Criminal Injuries Compensation Authority.

377.     The new section 133A(7) and (8) enables the cap on overall compensation and the limit on compensation for a year's lost earnings or earnings capacity to be amended by the Secretary of State by order (subject to the affirmative resolution procedure). For example, if the overall cap on compensation under the Criminal Injuries Compensation Scheme were to be amended, the cap on compensation for miscarriages of justice might be amended in line. If the Office for National Statistics were to adopt a different method of calculation of, or expression for, average earnings, the terminology relating to the limit for lost earnings or earnings capacity for a miscarriage of justice would be amended in line.

378.     Subsection (8) of clause 62 amends section 172 of the 1988 Act to make it clear that the new section 133A extends to England and Wales and to Northern Ireland.

379.     Paragraph 13 of Schedule 22 sets out some transitional provisions dealing with the application of the new measures in clause 62. Paragraph 13(1) provides that the two-year time limit introduced by clause 62(3) will only apply to applications for compensation made in relation to convictions reversed or pardons given on or after the date on which clause 62 comes into force (the commencement date).

380.     As a result of paragraph 13(2), the provisions for the assessment of compensation in the new section 133A will apply in relation to applications made on or after the commencement date, and also to applications made before the commencement date but in respect of which the Secretary of State has not, before that date, determined whether there is a right to compensation.

381.     Paragraph 13(3) and (4) provides that the changes to the definition of "reversed" introduced by clause 62(5) apply to any conviction quashed on an appeal out of time (whether before or after the commencement date) if an application for compensation in relation to that conviction has not been made before the commencement date.

382.     Paragraph 13(5) and (6) apply a time limit to applications for compensation in relation to convictions reversed and pardons given before the commencement date. Such applications must be made within the two years beginning with the commencement date. Applications made outside this time limit can be treated as made within the time limit if the Secretary of State considers that there are exceptional circumstances which justify doing so.

Clause 63: Annual report on the Criminal Justice (Terrorism and Conspiracy) Act 1998

383.     Clause 63 repeals section 8 of the Criminal Justice (Terrorism and Conspiracy) Act 1998, which requires a report on the working of that Act to be laid before both Houses of Parliament at least annually.

Part 6: Criminal Law

Clause 64: Possession of extreme pornographic images

384.     This clause creates a new offence of possession of extreme pornographic images. Subsection (1) provides that it is an offence to be in possession of an extreme pornographic image.

385.     Subsections (2) to (8) set out the definition of "extreme pornographic image". What is meant by 'pornographic' is explained in subsection (3). In order to be considered pornographic, an image needs to have been produced solely or mainly for the purpose of sexual arousal. Whether this threshold has been met will be an issue for a jury to determine. Subsection (4) makes it clear that where an individual image forms part of a larger series of images, the question of whether it is pornographic must be determined by reference both to the image itself and also the context in which it appears in the larger series of images.

386.     Subsection (5) expands on subsection (4). It provides that where a narrative, such as a mainstream or documentary film, contains images which might be considered 'pornographic' if looked at in isolation, outside the context of the story-line or purpose of the narrative, those images may be found not to be pornographic by virtue of the context in which they appear, if it appears that the series of images itself was not produced solely or principally for the purpose of sexual arousal.

387.     Subsection (6) lists the types of image which are defined as an "extreme image" for the purposes of the offence. These are images of:

• acts which threaten or appear to threaten a person's life; this could include depictions of hanging, suffocation, or sexual assault involving a threat with a weapon;

• acts which result in, or appear to result (or be likely to result) in, serious injury to a person's anus, breasts or genitals; this could include the insertion of sharp objects or the mutilation of breasts or genitals;

• acts which involve or appear to involve sexual interference with a human corpse; or

• acts which show a person performing or appearing to perform an act of intercourse or oral sex with an animal.

In all cases the act and the participants depicted in the image must appear to be real to the viewer.

388.     Subsection (7) sets out the definition of an image. It states that for the purposes of this offence, 'an image' means either still images, such as photographs, or moving images, such as those in a film. The term 'image' also incorporates any type of data, including that stored electronically (as on a computer disk), which is capable of conversion into an image. This covers material available on computers, mobile phones or any other electronic device.

389.     Subsection (8) states that references to parts of the body also include body parts that may have been surgically constructed or enhanced.

390.     Subsection (9) requires the consent of the Director of Public Prosecutions for proceedings to be instigated.

Clause 65: Exclusion of classified films etc.

391.     This clause provides that images which form part of and are contained in a recording of the whole or part of a film, or other work which has been classified by a designated authority under the Video Recordings Act 1984 (the 1984 Act) are excluded from the offence in clause 64.

392.     An "excluded image" is defined in subsection (2) as an image which forms part of a series of images contained in a recording of the whole or part of a classified work. A "recording" is defined in subsection (7) as any disc, tape or other device capable of storing data electronically and from which images may be produced. This therefore includes images held on a computer. So, for example, if a person has a video recording of a film which has been classified by the British Board of Film Classification, and that film contains images which might otherwise be caught by the offence in clause 64, those images would be excluded images for the purposes of the offence in clause 64. Images that have been altered in any way are not covered by this exclusion.

393.     However, subsection (3) goes on to state that an image is not excluded if it is contained in a recording of an extract from a classified work and it appears that the image was extracted solely or principally for the purpose of sexual arousal. Subsection (7) defines "extract" to include a single image. So, for example, if a video recording contains images extracted from a number of classified films and it appears that they have been extracted for the purpose of sexual arousal, those images would not be excluded images, notwithstanding that they have been taken from films which have been classified by a designated authority.

394.     Subsection (4) provides that when an extracted image is one of a series of images, in establishing whether or not it appears to have been extracted for the purpose of sexual arousal, regard is to be had to the image itself, and to the context it which it appears in the series of images. This is the same test as set out in subsection (4) of clause 64. Subsection (5) of clause 64 also applies in determining this question.

395.     Subsection (5) states that in determining whether a recording is a recording of a whole or part of a classified work, alterations due to technical reasons, such as a failure in the recording system, or due to inadvertence, such as setting the wrong time for a recording, or the inclusion of extraneous material such as advertisements, should be disregarded.

396.     Subsection (6) makes it clear that nothing in clause 65 affects any duty of a designated authority to take into account the offence in clause 64 when considering whether to issue a classification certificate in respect of a video work.

397.     Subsection (7) sets out the definitions used in this clause. Subsection (8) states that section 22(3) of the Video Recordings Act 1984 applies. This relates to the effect of alterations on films classified under that Act.

Clause 66: Defence

398.     Clause 66 sets out the defences to the offence of possession of extreme pornographic images. These are set out in subsection (2). They are the same as for the possession of indecent images of children in section 160(2) of the Criminal Justice Act 1988. They are:

• that the person had a legitimate reason for being in possession of the image; this will cover those who can demonstrate that their legitimate business means that they have a reason for possessing the image;

• that the person had not seen the image and therefore did not know, nor had cause to suspect, that the images held were extreme pornographic images; this will cover those who unwittingly stumble across such images; and

• that the person had not asked for the image - it having been sent without request - and that, once he was aware that he had possession of the image, he had not kept it for an unreasonable period of time; this will cover those who are sent unsolicited material for example as an unsolicited email message, and once they are aware of it, act quickly to delete it.

Clause 67: Penalties etc. for possession of extreme pornographic images

399.     The penalties that will apply to persons found guilty of an offence under clause 65 are set out in this clause.

400.      On conviction on indictment, the maximum sentence is imprisonment for three years for possession of images covered by clause 64(6)(a) or (b) (life threatening acts, or serious injury), and imprisonment for two years for possession of images covered by clause 64(6)(c) or (d) (necrophilia or bestiality). The combined effect of the clause and the transitional provision in paragraph 14 of Schedule 22 is that initially the maximum sentence on summary conviction of the offence will be 6 months imprisonment. On the commencement of section 154(1) of the 2003 Act, the maximum sentence on summary conviction in England and Wales will rise to 12 months.

401.     In cases where the sentence given is for a term of imprisonment of at least 24 months, and where the offender was 18 or over at the time of the offence, he will also be subject to the registration requirements under Part 2 of the Sexual Offences Act 2003.

Clause 68: Indecent photographs of children

402.     Subsection (2) of this clause amends section 1B(1)(b) of the Protection of Children Act 1978 (the 1978 Act) to include members of the Secret Intelligence Service in the defence from prosecution for an offence under section 1(1)(a) of the 1978 Act, i.e. making an indecent photograph or pseudo-photograph of a child, if it was necessary for him or her to do so in the exercise of any of the functions of that Service.

403.     Subsection (3) of this clause amends section 7 of the 1978 Act to extend the definition of "photograph" to include derivatives of photographs, such as tracings or other forms of data. As a result, references to a photograph in the 1978 Act will include tracings or other images, whether made by electronic or other means, that are not in themselves photographs or pseudo-photographs (as defined in the 1978 Act) but which are derived from the whole or part of a photograph or pseudo-photograph, or a combination of either or both. This amendment will mean that an offence under section 1 (indecent photographs of children) of the 1978 Act, will cover derivatives of indecent photographs or pseudo-photographs, alongside indecent photographs and pseudo-photographs themselves. These derivatives include line-traced and computer traced images, for example, pencil traced images using tracing paper or computer traced images of photographs taken on a mobile phone.

404.     The definition in section 7 of the 1978 Act also extends to the offence in section 160 of the 1988 Act relating to possession of indecent photographs or pseudo-photographs of a child.

405.     Subsection (4) of this clause amends a minor drafting error in section 7(9)(b) of the 1978 Act.

Clause 69: Indecent photographs of children (Northern Ireland)

406.     This clause amends the Protection of Children (Northern Ireland) Order 1978. The effect is to make the same changes to corresponding Northern Ireland legislation as clause 68 does to the legislation in England and Wales.