Trial or sentencing in absence of the accused in magistrates' courts

810.     Clause 57 amends section 11 of the Magistrates' Courts Act 1980, which provides that at the time and place appointed for trial or adjourned trial the prosecutor appears but the accused does not, the court may proceed in the accused's absence. The new section 11(1B) provides that in those circumstances, and where the accused is 18 or over, the court must proceed with a trial in the absence of the accused unless it would be contrary to the interests of justice. Where the accused is under 18, the court's discretion to proceed in absence is unchanged. Whatever the age of the accused, the court may not proceed if it considers that there is an acceptable reason for his absence. Clause 57(3) and (4) create exceptions to the current section 11(3), which prohibits the imposition of a custodial sentence in the accused's absence. The effect of the exceptions in new section 11(3A) is that an accused may be sentenced in his or her absence where:

• he or she has been convicted at a trial at which he or she was present, where he or she was bailed to appear at a later sentencing hearing and fails to do so (new subsection (3A)(a)); or

• he or she has been convicted in his or her absence at a trial, where he or she was bailed to attend at that trial or any adjourned trial (new section (3A)(b)).

811.     In these circumstances the court will be able to impose a custodial sentence notwithstanding the absence of the accused. Where it does so, however, new section 11(3B) requires that the person must be brought before the court before being taken to prison to start serving the sentence.

812.     Article 6 is engaged, in particular Articles 6(1) and 6(3). The Government does not consider that the clause gives rise to any ECHR issues in terms of the right to notification of proceedings and the entitlement to participate. By retaining the provision in section 11(2) (which provides that, before proceedings in absence of the accused, the Court must be satisfied that the summons was served on the accused within a reasonable time before the trial or adjourned trial or the accused has appeared on a previous occasion to answer the information) and by limiting the power to sentence in absence to situations where the defendant has been bailed to appear in Court, sufficient safeguards will be continue to apply to ensure that a defendant is notified of the proceedings against him or her. The Government also considers that defendants' rights to attend and participate will remain unaffected. A defendant currently has a right to be present and to be represented at his or her trial however he or she may choose not to exercise those rights by voluntarily absenting himself or herself and failing to instruct his lawyers adequately so that they can represent him or her: this will continue to be the case. In relation to the proposed power to sentence in absence, a defendant will still be entitled to be present.

813.     The Government considers that the provisions are Article 6 compatible because: (a) by virtue of the proposed interests of justice test, the magistrates will have a wide discretion as to whether or not to proceed in the absence of the defendant; and (b) if they do proceed in the absence of the defendant, it will still be open to the defendant to obtain a fresh determination of the issues on appeal in the Crown Court.

814.     In relation to the proposed power to sentence in absence, the Government considers that this provision is Article 6 compatible because: (a) the court would have to take into account the interests of justice (and therefore Article 6) before deciding to impose a custodial sentence in the absence of the defendant; (b) there is an opportunity for a fresh determination on the question of sentence; and (c) the additional safeguard that a defendant could not in fact be committed to custody to serve that sentence without appearing before the court. On this occasion, the court would consider whether the defendant had an acceptable reason for his or her absence or whether the court had exercised its power to proceed in absence wrongly. If so, the court would have discretion to reconsider the sentence in the interests of justice.

Compensation for Miscarriages of Justice

815.     Clause 62 amends the current provision for compensating victims of miscarriages of justice in section 133 of the Criminal Justice Act 1988, including by introducing a limit (of £500,000) on the total amount of compensation that may be awarded to a person for a particular miscarriage of justice and providing that the assessor may make deductions from overall compensation by reason of: conduct by the applicant that may have caused or contributed to the conviction; and any other convictions of the applicant and punishment resulting from them.

816.     Article 3 of Protocol 7 of the ECHR provides:

"When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such a conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact at the time is wholly or partly attributable to him."

817.     Article 14 of the International Covenant on Civil and Political Rights (ICCPR) makes very similar provision.

818.     Article 3 of Protocol 7 has not been ratified by the UK and is not a "convention right" as defined by section 1 of the Human Rights Act 1998. Nevertheless, the Government has considered whether imposing limits on compensation and providing for deductions from compensation for financial loss (as well as non-financial loss) on the grounds of convictions and/or contributory conduct is compatible with Article 3 of Protocol 7 ECHR and Article 14 ICCPR.

819.     The Government considers that the overall cap on compensation of £500,000, and the cap on compensation for each year's loss of earnings or earnings capacity, are so compatible. In particular, the Strasbourg case law suggests that relatively modest levels of compensation may be acceptable.

820.     In relation to deductions from compensation by reason of previous convictions, in the Government's view whilst it is permissible to take these into account, only in exceptional circumstances should they reduce compensation to a nominal sum. This view is reflected in new section 133A(4) which provides that if the assessor considers there to be exceptional circumstances which justify doing so, he or she may determine compensation to be a nominal amount.

Part 6: Criminal Law

Extreme Pornographic Images

821.     The Government believes that the new offence in clause 64 constitutes an interference with Convention rights under Articles 8 and 10 but that for the reasons set out below this is justified as being in accordance with the law, and necessary in a democratic society for the prevention of crime, for the protection of morals and for the protection of the rights and freedoms of others.

822.     The material to be covered by this new offence is at the most extreme end of the spectrum of pornographic material which is likely to be thought abhorrent by most people. It is not possible at law to give consent to the type of activity covered by the offence, so it is therefore likely that a criminal offence is being committed where the activity which appears to be taking place is actually taking place. The House of Lords upheld convictions for offences of causing actual and grievous bodily harm in the case of Brown [1994] 1 AC 212 which involved a group of sado-masochists who had engaged in consensual torture. The threshold that the clauses have set is very high, so while those taking part might argue that they had consented to it, such consent is not valid at law.

823.     In the case of images of staged activity , the Government believes that banning possession is justified in order to meet the legitimate aim of protecting the individuals involved from participating in degrading activities. This is also the case with images of bestiality, which while involving harm to animals can also involve the non-consensual participation of humans who are harmed in the process of making the images.

824.     The Government considers that the new offence is a proportionate measure with the legitimate aim of breaking the demand and supply cycle of this material, which may be harmful to those who view it. Irrespective of how these images were made, banning their possession can be justified as sending a signal that such behaviour is not considered acceptable. Viewing such images voluntarily can desensitise the viewer to such degrading acts, and can reinforce the message that such behaviour is acceptable.

825.     The Government considers that the restrictions on this material also achieve the aim of protecting others, particularly children and vulnerable adults, from inadvertently coming into possession of this material, which is widespread on the internet.

Extension of definition of photograph in the Protection of Children Act 1978

826.     Clause 72 amends the definition of "photograph" in the Protection of Children Act 1978. The definition is extended to include tracings, produced electronically or by any other means, and data stored electronically which is capable of conversion into such a tracing. The tracing can be derived from either a photograph, or a pseudo-photograph (as defined in the Protection of Children Act), parts of a photograph or pseudo-photograph, or a combination of both. This definition applies to offences committed under the Protection of Children Act, including the making of indecent images of children, as well as the offence of possession of indecent images of children under section 160 of the Criminal Justice Act 1988.

827.     Clause 73 amends the Protection of Children (Northern Ireland) Order 1978. The effect is to make the same changes to corresponding Northern Ireland legislation.

828.     The Government believes that the extension of this definition constitutes an interference with Article 8 and 10 rights but that for the reasons set out below this is justified as being in accordance with the law, and necessary in a democratic society for the prevention of crime, for the protection of morals and for the protection of the rights and freedoms of others.

829.     It is an offence both to make and possess indecent images of children. Technological advancements mean that it is now possible to make electronic tracings of images, without having to keep the original image. This means that it is possible to keep indecent images of children in the form of tracings without keeping the photograph(s) or pseudo-photograph(s) from which such images are derived. This amendment is designed to close this loophole which has been created by the advance of technology. The tracing itself, when derived from a photograph, is evidence of child abuse, so a child has been harmed in the making of the tracing. Although this will not necessarily be the case where an image has been derived from an indecent pseudo-photograph of a child, pseudo-photographs, in the same way as photographs, serve to reinforce inappropriate feelings towards children, one of the most vulnerable groups in society.

830.     The Government believes that extending the definition to include tracings is necessary in order to protect children, and to keep up with technological advancements which allow the spread of indecent images of children.

Increase of penalty for publication of obscene articles

831.     Clause 71 amends the Obscene Publications Act 1959 to increase the maximum penalty on indictment for the publication etc of obscene articles under section 2 of that Act from three years to five years. It is the Government's view that any interference with Article 5 would be justified under Article 5(1)(a) as lawful detention after conviction by a competent court. This increase in penalty does not offend against the prohibition on retrospective penalties in Article 7 as the increase will not apply to any offence committed before the commencement of this clause.

Offences relating to nuclear material and nuclear facilities

832.     The purpose of clause 79 and Schedule 16 is to make amendments to the Nuclear Material (Offences) Act 1983 ("the 1983 Act") and the Customs and Excise Management Act 1979 in order to facilitate ratification by the United Kingdom of amendments made in 2005 to Article 7 of the Convention on the Physical Protection of Nuclear Material ("the Convention").

833.     Article 7 of the Convention requires each State Party to make certain descriptions of conduct a punishable offence under its national law and to provide for appropriate penalties which take into account the grave nature of the conduct in question. Articles 8, 9 and 10 require each State Party to establish jurisdiction over these offences not only when they are committed in its territory but also when they are committed on board a ship or aircraft registered in that State, by a national of that State or by a person who is presented in its territory and whom the State does not extradite.

834.     The offences required by Article 7 include theft of nuclear material, demanding nuclear material by threat or force, using nuclear material without lawful authority with intent to cause death, injury or damage to property and threatening to use nuclear material in that way. Article 7 applies only to nuclear material "used for peaceful purposes".

835.     The 1983 Act was passed in order to complete the implementation of Article 7 in UK law (implementation was already partly achieved by means of existing statutory and common law offences). The 1983 Act creates a number of offences. In particular, as required by the Convention, it creates offences constituted by conduct outside the UK committed by a person of any nationality. Section 6(1) provides that the offences only apply to nuclear material used for peaceful purposes. Section 6(2) provides that -

"If in any proceedings a question arises whether any material was used for peaceful purposes, a certificate issued by or under the authority of the Secretary of State and stating that it was, or was not, so used at a time specified in the certificate shall be conclusive of that question."

836.     Article 7 was amended in 2005. A number of additional descriptions of conduct have been added. These include additional offences in relation to nuclear material used for peaceful purposes and a number of new offences relating to nuclear facilities used for peaceful purposes. As far as nuclear material is concerned, the new offences include offences of using nuclear material with intent to cause damage to the environment and moving nuclear material into or out of any State without lawful authority. As far as nuclear facilities are concerned, the new offences include an offence dealing with attacks on nuclear facilities intended to cause death, injury, property damage or environmental damage by means of exposure to radiation or the release of radioactive substances. The definition of "nuclear facility" (so far as material to Article 7) is as follows-

"..a facility (including associated buildings and equipment) in which nuclear material is produced, processed, used, handled, stored or disposed of.."

837.     In addition to restricting the application of revised Article 7 to nuclear material and facilities used for peaceful purposes, Article 2(5) of the amended Convention provides that -

"This Convention shall not apply to nuclear material used or retained for military purposes or to a nuclear facility containing such material."

838.     Article 2(4)(b) of the amended Convention provides that the Convention does not govern the activities of armed forces during an armed conflict or activities undertaken by a State's military forces in the exercise of their official duties.

839.     Clause 79 and Schedule 16 are intended to create the new offences necessary to give effect to amended Article 7 of the Convention. The new offences relate to nuclear material and nuclear facilities used for peaceful purposes. Paragraph 6(4) of Schedule 16 inserts new provisions into the 1983 Act which provide that nuclear material is not used for peaceful purposes if it is used or retained for military purposes and that a facility is not used for peaceful purposes if it contains any nuclear material used or retained for military purposes. Paragraph 6(5) amends section 6(2) of the 1983 Act - which provides for the Secretary of State to be able to certify whether nuclear material is used for peaceful purposes or not - so that it relates also to facilities. Therefore, if in any proceedings a question arises whether a nuclear facility was used for peaceful purposes (including whether it contained nuclear material used for military purposes), the question will be settled conclusively by a certificate of the Secretary of State. A certificate will similarly settle the question of whether nuclear material used for peaceful purposes was or was not used for military purposes.

840.     Where the procedure in amended section 6(2) is triggered in any prosecution under the 1983 Act, the effect will be that one element of the alleged offence will be established conclusively by a certificate of the Secretary of State. As such, section 6(2) limits to an extent both the right to a court and the presumption of innocence guaranteed by Article 6 of the ECHR. However, the Government considers that the limitation on the right to a court is justified on the grounds that it pursues legitimate aims and goes no further than is necessary to achieve those aims; and that the limitation on the presumption of innocence is confined within reasonable limits.

841.     The offences are serious ones. The majority are punishable on conviction on indictment by a maximum penalty of life imprisonment. The offences are aimed primarily at deterring and punishing activities by terrorists and organised criminals and activities which could compromise nuclear non-proliferation. If misused or attacked by such people, nuclear material and nuclear facilities could potentially cause very serious injury and damage. Among other things, the certification procedure addresses potential difficulties of proof in order to prevent these difficulties from undermining the effectiveness of the offences. Where the nuclear facility or material is located outside the United Kingdom, the Secretary of State would, for example, be able to seek and take account of the views of other States and of the IAEA and reach a conclusion which takes account of those views. The procedure also addresses potential sensitivities about the presentation of evidence about the peaceful or non-peaceful status of a nuclear facility.

842.     Although a certificate of the Secretary of State will have the effect of conclusively establishing an element of the alleged offence, the other elements of each offence (including intention or recklessness where relevant) will fall to be proved beyond reasonable doubt and determined by the court in the usual way. ¹ The procedure is not triggered unless the question of whether material or a facility was used for peaceful purposes does in fact arise in any proceedings.

¹ One of the new offences is an extraterritorial offence covering the unlawful movement of nuclear material into or out of a State (see new section 1C inserted by paragraph 3 of Schedule 16). For the purpose of that offence there is a provision to the effect that a statement in a certificate of a foreign government that the movement was unlawful is to be evidence that it was unlawful. However, the statement will not be conclusive. The Government does not therefore consider that this procedure raises ECHR concerns.

843.     Further, judicial review of the Secretary of State's decision is not ousted and this acts as a check on decisions which are legally wrong, arbitrary or irrational.

844.     Article 2(4)(b) of the amended Convention (described above) is implemented by new section 3A, added to the 1983 Act by paragraph 5 of Schedule 16. New section 3A(1) provides that the new offences, and the existing ones in the 1983 Act, do not apply to acts done by the armed forces of a country or territory in the course of an armed conflict or in the discharge of their functions. New section 3A(2) provides that if the question arises in any proceedings whether an act done by the armed forces was an act done in the course of an armed conflict or in the discharge of their functions, a certificate issued by the Secretary of State stating that it was, or was not, such an act is to be conclusive of that question.

845.     The new section 3A(2) procedure engages rights under Article 6 of the ECHR in the same way as the section 6(2) procedure and is intended to address similar difficulties. For the same reasons the Government considers that the limitation which the procedure imposes on the right to a court pursues legitimate aims and goes no further than is necessary to achieve those aims, and that the limitation which it imposes on the presumption of innocence is confined within reasonable limits. Further, as with section 6(2), the Secretary of State's determination will be judicially reviewable.

846.     Provisions similar to those in new section 3A(2) and (3) exist in section 1 of the Nuclear Explosions (Prohibition and Inspections) Act 1998 and section 48 of the Anti-terrorism, Crime and Security Act 2001.

847.     Finally, the Government also considers that the fairness of a trial - taken overall - would not be compromised by the operation of new section 3A(2) or amended section 6(2). It is not inconceivable that, in practice, both procedures might be engaged in the same proceedings, but this does not affect the Government's conclusion. All other elements of the offence would be determined by the court in the usual way applying the usual criminal standard of proof.

Imprisonment for unlawfully obtaining etc. personal data

848.     Clause 75 will increase the penalties available for offences under section 55 of the Data Protection Act 1998, to include the possibility of two years' imprisonment on indictment and six months' imprisonment on summary conviction, in addition to the existing fines.

849.     Under section 55, offences are committed if a person knowingly or recklessly obtains, discloses or procures the disclosure of personal data without the consent of the data controller, or if a person sells or offers to sell personal data obtained in this way. There are a number of defences, including that disclosure was justified as being in the public interest. Clause 75 would not change the ingredients of the offences or the available defences.

850.     The increased penalties are designed to strengthen the protection of individuals' rights under Article 8 and under the Data Protection Act and EC Data Protection Directive. They are intended to provide a greater deterrent to those who trade in wrongfully obtained personal data.

851.     There may be cases where the offences and the increased penalties engage Article 10 because they inhibit people from communicating and receiving information. Press organisations have argued that increasing the penalties will give rise to a "chilling effect" which is incompatible with journalists' rights under Article 10(1).

852.     Any such interference will be prescribed by law because the power to impose the new penalties will be set out in the amended Data Protection Act. Any interference will also be necessary to pursue a legitimate aim provided for in Article 10(2), since the purpose of the increased penalties is to provide greater protection for the rights of others, to prevent crime and to prevent the wrongful disclosure of confidential information.

853.     Reports from the Information Commissioner have provided clear evidence that there is a lucrative trade in wrongfully obtained personal data, and that the existing fines do not sufficiently deter the activities which are prohibited by section 55. The increased penalties are considered to be a proportionate way of addressing this problem. Together with the existing definitions of the offences and defences, they strike an appropriate balance between the Article 10 rights of the people who wish to disclose personal information and the Article 8 rights of the individuals to whom the information relates.

854.     Ultimately, the court will be responsible for ensuring that each individual sentence is compatible with the Convention, because the court is a public authority which must act compatibly with the Convention under section 6 of the Human Rights Act 1998. The court must decide the level of sentence which is justified by the defendant's conduct, balancing any interference with the defendant's Article 10 rights against the need to protect obligations of confidentiality and the Article 8 rights of third parties.

855.     The increased penalties will also engage Article 5. However, imprisonment will only be imposed after trial and conviction by the relevant court, in accordance with the procedural protections which apply in all criminal proceedings.

Part 8: Violent offender orders

856.     Part 8 makes provision for VOOs. A VOO is a civil preventative order, designed to protect the public from the risk of future serious violent harm caused by the person subject to the order. In order to be eligible for a VOO, a person must come within clause 84; essentially he must have committed a specified offence and have been sentenced to at least 12 months in custody in respect of that offence. A VOO will contain such prohibitions as the court making the order considers necessary for the purpose of protecting the public from the risk of serious violent harm caused by the person subject to the order. The provisions on VOOs are largely modelled on those for Sexual Offences Prevention Orders contained in Part 2 of the Sexual Offences Act 2003.

857.     The Government is of the view that the provisions on VOOs engage Article 6, however only in so far as Article 6 deals with the determination of a person's civil rights. The Government considers that VOOs will be civil in nature, like other orders such as Sexual Offences Prevention Orders and ASBOs; they will not have any punitive purpose. Persons in respect of whom a VOO is made will be able to apply for the order to be varied or discharged. They will also have a statutory right of appeal against the making of the VOO, against any variation or renewal of a VOO and against any refusal of a court to vary or discharge a VOO. The Government is of the view that the requirements of Article 6(1) relating to the determination of a person's civil rights are met and that the provisions of Article 6 relating to criminal charges are not engaged.

858.     The Government is of the view that the provisions on VOOs do not engage Article 7. The VOO is not imposed as an additional punishment for a specified offence. The purpose of the VOO is to prevent the risk of future serious violent harm and before a VOO can be made, an up to date assessment of risk would be needed. Breach of the terms of a VOO will by law be made a criminal offence, in line with arrangements already in place for other civil orders. However, this is in line with Article 7 as breach of a VOO will be a criminal offence at the time that the breach is committed.

859.     When making a VOO, a court will need to ensure that it does so compatibly with the Convention rights. A court may, for example, impose a VOO which contains a prohibition on a person having contact with a member of his family, because the court considers that this is necessary to protect that family member from the risk of serious violent harm. This would engage Article 8. However, the Government is of the view that this can be justified under Article 8(2) as being in accordance with the law and necessary in the interests of public safety, the prevention of disorder or crime or for the protection of the rights and freedoms of others.

860.     Similarly, a court may wish to impose a VOO which contains a prohibition on a person leaving his or her home during certain hours, thereby imposing a curfew. Provided the curfew was a "restriction" of liberty, rather than a "deprivation" of liberty it would not engage Article 5. This is because Article 5 has been held not to be concerned with mere restrictions on movement (see, for example, Raimondo v Italy [1994] 18 EHRR 237 at [99], a decision of the European Commission of Human Rights). The Government does not consider that a prohibition in a VOO on leaving a residence between (for example) 7pm and 7am would constitute a deprivation of liberty. In practice, however, the Government does not consider that such a prohibition is likely to be imposed.

861.     All persons subject to a VOO will also be subject to the notification requirements contained in clauses 91 to 97. Under these provisions, a person will be required to provide to the police on at least a yearly basis personal information such as his or her name, date of birth, home address and the address of any other premises at which he or she regularly resides or stays. A person gives a notification by attending in person at a police station and giving the information orally. These requirements engage Article 8. However, the Government considers that they can be justified as in accordance with the law and necessary in the interests of public safety, the prevention of disorder or crime, or for the protection of the rights and freedoms of others. Imposing notification requirements on all offenders subject to a VOO in this way will enable the police to keep up to date records of relevant information, in order to monitor compliance with the terms of the VOO.

862.     When a person attends for giving such notification, the police can require the person to allow his or her fingerprints to be taken and/or photograph any part of him in order to verify his identity. The police will need to exercise this power compatibly with the Convention rights. The exercise of this power would engage Article 8. However, the Government is of the view that it can be justified as in accordance with the law and necessary in the interests of public safety, the prevention of disorder or crime, or for the protection of the rights and freedoms of others. Exercising this power will help the police to monitor whether the notification requirements are being complied with. The police will be able to check that the person providing the notification is in fact the person subject to the VOO. They will also be able to check whether he has given false information as to his identity. This is important as failing to give a required notification or giving false information will constitute a criminal offence. Confirming the identity of the person will also assist the police in their further work of monitoring compliance by the person with the terms of his VOO.

863.     Clause 94 contains a power for the Secretary of State to make regulations setting out requirements to notify when a person subject to a VOO travels outside the United Kingdom. Such requirements would include giving notice of the date of leaving the United Kingdom and the country to which the person will travel. Such power to make regulations will need to be exercised compatibly with the Convention rights. Such regulations would engage Article 8. However, the Government is of the view that they could be justified as in accordance with the law and necessary in the interests of public safety, the prevention of disorder or crime, or for the protection of the rights and freedoms of others. Exercising this power will assist the police in monitoring and enforcing compliance with a VOO. It will enable them to keep up to date with the movements of offenders subject to a VOO, to know precisely when an offender is outside the UK, and to deploy resources for the monitoring of compliance accordingly.

864.     Clauses 96 and 97 contain a power for a court to make a parental direction where a VOO is made in respect of a person who is under 18. Where a parental direction is made, the person having parental responsibility for the child (the "parent") is treated as being subject to the notification requirements, instead of the child. Further, the parent must ensure that the child accompanies the parent to the police station whenever a notification is given.

865.     A court will have to exercise its power to make parental directions compatibly with the Convention rights. If a direction is made, it is likely to engage Article 8. However, the Government considers that this can be justified as in accordance with the law and necessary in the interests of public safety, the prevention of disorder or crime, or for the protection of the rights and freedoms of others. As with notification requirements placed upon adult offenders subject to a VOO, this will enable the police to keep up to date records of relevant information, in order to monitor compliance with the terms of the Order. Putting the requirement on the parent rather than the child will greatly increase the likelihood of compliance; this mirrors similar provisions already in place for Sexual Offences Prevention Orders.

866.     Clause 99 contains provision for the supply of information notified to the police under clauses 91(1), 92(1) or 93(1). Under this clause, the police can, for the purposes of the prevention, detection, investigation or prosecution of the offences under Part 8 disclose such information to the Secretary of State or to a person providing services to the Secretary of State, for the purpose of checking the accuracy of the information and preparing a report. Clause 100 contains provision for this report to be disclosed to the police. These clauses are likely to engage Article 8. However, the Government is of the view that they can be justified as being in accordance with the law and necessary in the interests of public safety, the prevention of disorder or crime, or for the protection of the rights and freedoms of others.