Criminal Justice and Immigration Bill

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill
Schedule 29 — Investigation of complaints of police misconduct etc.
276

      (3)
After sub-paragraph (2) insert—
    “(3)
Where a DSI matter is recorded under paragraph 11 as a conduct
matter by virtue of sub-paragraph (2)—
(a)
the person investigating the DSI matter shall (subject to
any determination made by the Commission under
5
paragraph 15(5)) investigate the conduct matter as if
appointed or designated to do so, and
(b)
the other provisions of this Schedule shall apply in relation
to that matter accordingly.”
15    (1)
Paragraph 25 (appeals to Commission with respect to an investigation) is
10
amended as follows.
      (2)
In sub-paragraph (2) (rights of appeal)—
(a)
for paragraph (a)(ii) substitute—
“(ii)
about any determination of the appropriate
authority relating to the taking (or not
15
taking) of action in respect of any matters
dealt with in the report on the
investigation;”;
(b)
for paragraph (c) substitute—
“(ba)
a right of appeal against any determination by the
20
appropriate authority that a person to whose
conduct the investigation related has a case to
answer in respect of misconduct or gross
misconduct or has no case to answer;
(c)
a right of appeal against any determination by the
25
appropriate authority relating to the taking (or not
taking) of action in respect of any matters dealt
with in the report; and
(d)
a right of appeal against any determination by the
appropriate authority under paragraph 24(2)(a) as
30
a result of which it is not required to send the
Director of Public Prosecutions a copy of the
report;”.
      (3)
In sub-paragraph (3) (power of Commission to require appropriate
authority to submit memorandum on an appeal)—
35
(a)
before paragraph (a) insert—
“(za)
sets out whether the appropriate authority has
determined that a person to whose conduct the
investigation related has a case to answer in respect
of misconduct or gross misconduct or has no case
40
to answer;”;
(b)
for paragraphs (a) and (b) substitute—
“(a)
sets out what action (if any) the authority has
determined that it is required to or will, in its
discretion, take in respect of the matters dealt with
45
in the report;”;
(c)
in paragraph (c), for “any person whose conduct is the subject-matter
of the report” substitute “a person to whose conduct the
investigation related”;

Criminal Justice and Immigration Bill
Schedule 29 — Investigation of complaints of police misconduct etc.
277

(d)
after paragraph (c) insert “and
(d)
if the appropriate authority made a determination
under paragraph 24(2)(a) as a result of which it is
not required to send the Director of Public
Prosecutions a copy of the report, sets out the
5
reasons for that determination;”.
      (4)
In sub-paragraph (5) (determinations to be made by Commission on an
appeal)—
(a)
after “shall determine” insert “such of the following as it considers
appropriate in the circumstances”;
10
(b)
for paragraph (c) substitute—
“(c)
whether the appropriate authority—
(i)
has made such a determination as is
mentioned in sub-paragraph (3)(za) that the
Commission considers to be appropriate in
15
respect of the matters dealt with in the
report, and
(ii)
has determined that it is required to or will,
in its discretion, take the action (if any) that
the Commission considers to be so
20
appropriate; and
(d)
whether the conditions set out in paragraph 24(2A)
and (2B) are satisfied in respect of the report.”
      (5)
In sub-paragraph (9) (action to be taken by Commission when it determines
appropriate authority is not taking appropriate action) for “is not proposing
25
to take the action in consequence of” substitute “has not made a
determination as to whether there is a case for a person to whose conduct the
investigation related to answer that the Commission considers appropriate
or has not determined that it is required to or will, in its discretion, take the
action in respect of the matters dealt with in”.
30
      (6)
After sub-paragraph (9) insert—
   “(9A)
If, on an appeal under this paragraph, the Commission determines
that the conditions set out paragraph 24(2A) and (2B) are satisfied
in respect of the report, it shall direct the appropriate authority—
(a)
to notify the Director of Public Prosecutions of the
35
Commission’s determination, and
(b)
to send the Director a copy of the report.”
16    (1)
Paragraph 27 (duties with respect to disciplinary proceedings) is amended
as follows.
      (2)
In sub-paragraph (1) (application of paragraph) in each of paragraphs (a)
40
and (b), for “proposing to” substitute “required to or will, in its discretion,”.
      (3)
In sub-paragraph (3) (recommendations that may be made by Commission
in certain circumstances)—
(a)
before paragraph (a) insert—
“(za)
that the person has a case to answer in respect of
45
misconduct or gross misconduct or has no case to
answer in relation to his conduct to which the
investigation related;”;

Criminal Justice and Immigration Bill
Schedule 30 — Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”
278

(b)
for paragraph (a) substitute—
“(a)
that disciplinary proceedings of the form specified
in the recommendation are brought against that
person in respect of his conduct to which the
investigation related;”;
5
(c)
in paragraph (b), for “include such charges” substitute “deal with
such aspects of that conduct”.
17
After paragraph 28 insert—
“Minor definitions
29
In this Part of this Schedule—
10
“gross misconduct” and “misconduct” have the meanings
given in regulations made by the Secretary of State;
“the person investigating”, in relation to a complaint,
recordable conduct matter or DSI matter, means the
person appointed or designated to investigate that
15
complaint or matter;
“prescribed” means prescribed by regulations made by the
Secretary of State.”
Schedule 30
Section 165

Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”
20

The following is the Schedule to be inserted as Schedule 34A to the Criminal
Justice Act 2003 (c. 44)—
“Schedule 34A
Child sex offences for purposes of section 327A
Offences under provisions repealed by Sexual Offences Act 2003
25
1
An offence under—
(a)
section 5 or 6 of the Sexual Offences Act 1956 (intercourse
with girl under 13 or 16), or
(b)
section 28 of that Act (causing or encouraging the
prostitution of, intercourse with or indecent assault on girl
30
under 16).
2
An offence under any of—
(a)
section 1 of that Act (rape),
(b)
section 10 of that Act (incest by a man), and
(c)
sections 12 to 16 of that Act (buggery, indecency between
35
men, indecent assault and assault with intent to commit
buggery),

where the victim or (as the case may be) the other party was under
18 at the time of the offence.
3
An offence under section 1 of the Indecency with Children Act
40
1960 (indecent conduct towards child under 14).

Criminal Justice and Immigration Bill
Schedule 30 — Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”
279

4
An offence under section 9 of the Theft Act 1968 of burglary with
intent to commit rape where the intended offence was an offence
against a person under 18.
5
An offence under section 54 of the Criminal Law Act 1977
(incitement of child under 16 to commit incest).
5
6
An offence under section 3 of the Sexual Offences (Amendment)
Act 2000 (abuse of position of trust).
Other offences
7
An offence under any of—
(a)
sections 5 to 8 of the Sexual Offences Act 2003 (rape and
10
other offences against children under 13),
(b)
sections 9 to 15 of that Act (child sex offences),
(c)
sections 16 to 19 of that Act (abuse of position of trust),
(d)
sections 25 and 26 of that Act (familial child sex offences),
and
15
(e)
sections 47 to 50 of that Act (abuse of children through
prostitution and pornography).
8
An offence under any of—
(a)
sections 1 to 4 of that Act (rape, assault and causing sexual
activity without consent),
20
(b)
sections 30 to 41 of that Act (persons with a mental
disorder impeding choice, inducements etc to persons
with a mental disorder, and care workers for persons with
a mental disorder), and
(c)
section 61 of that Act (administering a substance with
25
intent),

where the victim of the offence was under 18 at the time of the
offence.
9
An offence under section 62 or 63 of that Act (committing an
offence with intent to commit a sexual offence and trespass with
30
intent to commit a sexual offence) where the intended offence was
an offence against a person under 18.
10
An offence under section 66 or 67 of that Act (exposure and
voyeurism) where the victim or intended victim of the offence was
under 18 at the time of the offence.
35
11
An offence under—
(a)
section 1 of the Protection of Children Act 1978 (indecent
photographs of children), or
(b)
section 160 of the Criminal Justice Act 1988 (possession of
indecent photograph of child).
40
12
An offence under section 170 of the Customs and Excise
Management Act 1979 (penalty for fraudulent evasion of duty etc)
in relation to goods prohibited to be imported under section 42 of
the Customs Consolidation Act 1876 (indecent or obscene articles)
where the prohibited goods included any indecent photograph
45
showing a person under 18.

Criminal Justice and Immigration Bill
Schedule 31 — Amendments to armed forces legislation
Part 1 — Courts-Martial (Appeals) Act 1968
280

13
An offence under section 94 of the Criminal Justice and
Immigration Act 2008 (possession of extreme pornographic
images) in relation to an image showing a person under 18.
General
14
A reference in this Schedule to an offence (“offence A”) includes—
5
(a)
a reference to an attempt to commit offence A,
(b)
a reference to a conspiracy to commit offence A,
(c)
a reference to incitement to commit offence A,
(d)
a reference to an offence under Part 2 of the Serious Crime
Act 2007 in relation to which offence A is the offence (or
10
one of the offences) which the person intended or believed
would be committed, and
(e)
a reference to aiding and abetting, counselling or
procuring the commission of offence A.
15
A reference in this Schedule to an offence (“offence A”) includes—
15
(a)
a reference to an offence under section 70 of the Army Act
1955, section 70 of the Air Force Act 1955 or section 42 of
the Naval Discipline Act 1957 as respects which the
corresponding civil offence (within the meaning given by
the section in question) is offence A, and
20
(b)
a reference to an offence under section 42 of the Armed
Forces Act 2006 as respects which the corresponding
offence under the law of England and Wales (within the
meaning given by that section) is offence A.”
Schedule 31
25
Section 169

Amendments to armed forces legislation
Part 1
Courts-Martial (Appeals) Act 1968
1
The Courts-Martial (Appeals) Act 1968 (c. 20) has effect subject to the
following amendments.
30
Determination of appeals from Court Martial
2     (1)
Section 12 (power to quash conviction as unsafe) is amended as follows.
      (2)
After subsection (1) insert—
“(1A)
For the purposes of subsection (1)(a), the conviction is not unsafe if
the Appeal Court think that there is no reasonable doubt about the
35
appellant’s guilt.
(1B)
Subsection (1A) does not require the Appeal Court to dismiss the
appeal if they think that it would seriously undermine the proper
administration of justice to allow the conviction to stand.”

Criminal Justice and Immigration Bill
Schedule 31 — Amendments to armed forces legislation
Part 1 — Courts-Martial (Appeals) Act 1968
281

      (3)
After subsection (1B) (inserted by sub-paragraph (2) above) insert—
“(1C)
In determining for the purposes of subsection (1)(a) whether the
conviction is unsafe the Appeal Court may, if they think it
appropriate in all the circumstances of the case, disregard any
development in the law since the date of the conviction.”
5
3     (1)
Section 21 (appeal against finding of not guilty by reason of insanity) is
amended as follows.
      (2)
After subsection (1A) (as inserted by the Armed Forces Act 2006) insert—
“(1AA)
For the purposes of subsection (1A)(a), the finding shall not be
regarded as unsafe for a reason unrelated to the correctness of the
10
finding of insanity if the Appeal Court think that there is no
reasonable doubt that the appellant did the act or made the omission
charged.
(1AB)
Subsection (1AA) does not require the Appeal Court to dismiss the
appeal if they think that it would seriously undermine the proper
15
administration of justice to allow the finding to stand.”
      (3)
After subsection (1AB) (inserted by sub-paragraph (2) above) insert—
“(1AC)
In determining for the purposes of subsection (1A)(a) whether the
finding is unsafe the Appeal Court may, if they think it appropriate
in all the circumstances of the case, disregard any development in the
20
law since the date of the finding.”
4     (1)
Section 25 (disposal of appeal against finding of unfitness) is amended as
follows.
      (2)
After subsection (1A) (as inserted by the Armed Forces Act 2006) insert—
“(1AA)
For the purposes of subsection (1A)(a), a finding shall not be
25
regarded as unsafe for a reason unrelated to the correctness of the
finding that the appellant is unfit to stand trial if the Appeal Court
think that there is no reasonable doubt that the appellant did the act
or made the omission charged.
(1AB)
Subsection (1AA) does not require the Appeal Court to dismiss the
30
appeal if they think that it would seriously undermine the proper
administration of justice to allow the finding to stand.”
      (3)
After subsection (1AB) (inserted by sub-paragraph (2) above) insert—
“(1AC)
In determining for the purposes of subsection (1A)(a) whether a
finding is unsafe the Appeal Court may, if they think it appropriate
35
in all the circumstances of the case, disregard any development in the
law since the date of the finding.”
5
In section 28 (evidence)—
(a)
in subsection (2)(b) after “allowing” insert “or dismissing”, and
(b)
in subsection (2)(c) for “which is the subject of the appeal” substitute
40
“which is relevant to the determination of the appeal”.

Criminal Justice and Immigration Bill
Schedule 31 — Amendments to armed forces legislation
Part 2 — Armed Forces Act 2006
282

6
Before section 36 (but after the cross-heading preceding it) insert—
“35A
Evidence given after close of prosecution case
In determining an appeal under this Part, the Appeal Court shall not
disregard any evidence solely on the ground that it was given after
the judge advocate at the appellant’s trial wrongly permitted the trial
5
to continue after the close of the evidence for the prosecution.”
Part 2
Armed Forces Act 2006
7
The Armed Forces Act 2006 (c. 52) has effect subject to the following
amendments.
10
Term of sentence
8
In section 196 (term of sentence etc: application of criminal justice provisions
to service courts etc), after subsection (2) insert—
“(3)
In the application of section 189(1A) and (1B) of the 2003 Act to a
relevant service court—
15
(a)
references to a summary offence shall be read as references to
an offence under section 42 as respects which the
corresponding offence under the law of England and Wales
is a summary offence; and
(b)
references to an indictable offence shall be read as references
20
to an offence under section 42 as respects which the
corresponding offence under the law of England and Wales
is an indictable offence under that law.”
Review of sentence on reference by Attorney General
9
In section 273 (reviews of unduly lenient sentencing by Court Martial
25
Appeal Court) for subsection (7) substitute—
“(7)
Where a reference under subsection (1) relates to a case in which the
Court Martial made an order specified in subsection (7A), the Court
Martial Appeal Court may not, in deciding what sentence is
appropriate for the case, make any allowance for the fact that the
30
offender is being sentenced for a second time.
(7A)
The orders specified in this subsection are—
(a)
an order under section 269(2) of the 2003 Act (determination
of minimum term in relation to mandatory life sentence);
(b)
an order under section 82A(2) of the Sentencing Act
35
(determination of minimum term in relation to discretionary
life sentences and certain other sentences).”
Compensation for miscarriages of justice
10    (1)
Section 276 (compensation for miscarriages of justice) is amended as follows.
      (2)
In subsection (1) for “subsections (2) and (3)” substitute “subsections (2) to
40
(3A)”.