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Criminal Justice and Immigration Bill


Criminal Justice and Immigration Bill
Part 6 — Other criminal justice provisions

62

 

Miscellaneous

90      

SFO’s pre-investigation powers in relation to bribery and corruption: foreign

officers etc

(1)   

The Criminal Justice Act 1987 (c. 38) is amended as follows.

(2)   

After section 2 insert—

5

“2A     

Director’s pre-investigation powers in relation to bribery and

corruption: foreign officers etc

(1)   

The powers of the Director under section 2 are also exercisable for the

purpose of enabling him to determine whether to start an investigation

under section 1 in a case where it appears to him that conduct to which

10

this section applies may have taken place.

(2)   

But—

(a)   

the power under subsection (2) of section 2 is so exercisable only

if it appears to the Director that for the purpose of enabling him

to make that determination it is expedient to require any person

15

appearing to him to have relevant information to do as

mentioned in that subsection, and

(b)   

the power under subsection (3) of that section is so exercisable

only if it appears to the Director that for that purpose it is

expedient to require any person to do as mentioned in that

20

subsection.

(3)   

Accordingly, where the powers of the Director under section 2 are

exercisable in accordance with subsections (1) and (2) above—

(a)   

the reference in subsection (2) of that section to the person

under investigation or any other person whom the Director has

25

reason to believe has relevant information is to be read as a

reference to any such person as is mentioned in subsection (2)(a)

above,

(b)   

the reference in subsection (3) of that section to the person

under investigation or any other person is to be read as a

30

reference to any such person as is mentioned in subsection

(2)(b) above, and

(c)   

any reference in subsection (2), (3) or (4) of that section to the

investigation is to be read as a reference to the making of any

such determination as is mentioned in subsection (1) above.

35

(4)   

Any reference in section 2(16) to the carrying out of an investigation by

the Serious Fraud Office into serious or complex fraud includes a

reference to the making of any such determination as is mentioned in

subsection (1) above.

(5)   

This section applies to any conduct which, as a result of section 108 of

40

the Anti-terrorism, Crime and Security Act 2001 (bribery and

corruption: foreign officers etc), constitutes a corruption offence

(wherever committed).

(6)   

The following are corruption offences for the purposes of this section—

(a)   

any common law offence of bribery;

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Criminal Justice and Immigration Bill
Part 6 — Other criminal justice provisions

63

 

(b)   

the offences under section 1 of the Public Bodies Corrupt

Practices Act 1889 (corruption in office); and

(c)   

the offences under section 1 of the Prevention of Corruption Act

1906 (corrupt transactions with agents).”

(3)   

In section 17(3) (provisions of Act extending to Northern Ireland) after

5

“sections 2” insert “, 2A”.

(4)   

This section extends to England and Wales and Northern Ireland only.

91      

Contents of an accused’s defence statement

In section 6A(1) of the Criminal Procedure and Investigations Act 1996 (c. 25)

(contents of defence statement), after “prosecution,” in paragraph (c) insert—

10

“(ca)   

setting out particulars of the matters of fact on which he intends

to rely for the purposes of his defence,”.

92      

Compensation for miscarriages of justice

(1)   

The Criminal Justice Act 1988 (c. 33) has effect subject to the following

amendments.

15

(2)   

Section 133 (compensation for miscarriages of justice) is amended as follows.

(3)   

At the end of subsection (2) (compensation only payable if application for

compensation is made) insert “before the end of the period of 2 years beginning

with the date on which the conviction of the person concerned is reversed or

he is pardoned.

20

(2A)   

But the Secretary of State may direct that an application for

compensation made after the end of that period is to be treated as if it

had been made within that period if the Secretary of State considers

that there are exceptional circumstances which justify doing so.”

(4)   

For subsection (4A) substitute—

25

“(4A)   

Section 133A applies in relation to the assessment of the amount of the

compensation.”

(5)   

After subsection (5) (meaning of “reversed” in relation to a conviction) insert—

“(5A)   

But in a case where—

(a)   

a person’s conviction for an offence is quashed on an appeal out

30

of time, and

(b)   

the person is to be subject to a retrial,

   

the conviction is not to be treated for the purposes of this section as

“reversed” unless and until the person is acquitted of all offences at the

retrial or the prosecution indicates that it has decided not to proceed

35

with the retrial.

(5B)   

In subsection (5A) above any reference to a retrial includes a reference

to proceedings held following the remission of a matter to a

magistrates’ court by the Crown Court under section 48(2)(b) of the

Supreme Court Act 1981.”

40

(6)   

In subsection (6) (meaning of suffering punishment as a result of conviction)

after “this section” insert “and section 133A”.

 
 

Criminal Justice and Immigration Bill
Part 6 — Other criminal justice provisions

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(7)   

After section 133 insert—

“133A   

Miscarriages of justice: amount of compensation

(1)   

This section applies where an assessor is required to assess the amount

of compensation payable to or in respect of a person under section 133

for a miscarriage of justice.

5

(2)   

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

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

assessor must have regard in particular to—

(a)   

the seriousness of the offence of which the person was

convicted and the severity of the punishment suffered as a

10

result of the conviction, and

(b)   

the conduct of the investigation and prosecution of the offence.

(3)   

The assessor may make from the total amount of compensation that the

assessor would otherwise have assessed as payable under section 133

any deduction or deductions that the assessor considers appropriate by

15

reason of either or both of the following—

(a)   

any conduct of the person appearing to the assessor to have

directly or indirectly caused, or contributed to, the conviction

concerned; and

(b)   

any other convictions of the person and any punishment

20

suffered as a result of them.

(4)   

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

(b), the assessor considers that there are exceptional circumstances

which justify doing so, the assessor may determine that the amount of

compensation payable under section 133 is to be a nominal amount

25

only.

(5)   

The total amount of compensation payable to or in respect of a person

under section 133 for a particular miscarriage of justice must not exceed

the overall compensation limit.

   

That limit is £500,000.

30

(6)   

The total amount of compensation payable under section 133 for a

person’s loss of earnings or earnings capacity in respect of any one year

must not exceed the earnings compensation limit.

   

That limit is an amount equal to 1.5 times the median annual gross

earnings according to the latest figures published by the Office of

35

National Statistics at the time of the assessment.

(7)   

The Secretary of State may by order made by statutory instrument

amend subsection (5) or (6) so as to alter the amount for the time being

specified as the overall compensation limit or the earnings

compensation limit.

40

(8)   

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

has been laid before and approved by a resolution of each House of

Parliament.”

(8)   

In section 172 (extent) in subsection (3) (provisions extending to Northern

Ireland as well as England and Wales) after “section 133;” insert—

45

“section 133A;”.

(9)   

This section extends to England and Wales and Northern Ireland.

 
 

Criminal Justice and Immigration Bill
Part 7 — Criminal law

65

 

93      

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 4 of Schedule 34,

   

extend to England and Wales and Northern Ireland.

Part 7

Criminal law

Pornography etc.

10

94      

Possession of extreme pornographic images

(1)   

It is an offence for a person to be in possession of an extreme pornographic

image.

(2)   

An “extreme pornographic image” is an image which is both—

(a)   

pornographic, and

15

(b)   

an extreme image.

(3)   

An image is “pornographic” if it appears to have been produced solely or

principally for the purpose of sexual arousal.

(4)   

Where an image forms part of a series of images, the question whether the

image appears to have been so produced is to be determined by reference to—

20

(a)   

the image itself, and

(b)   

(if the series of images is such as to be capable of providing a context for

the image) the context in which it occurs in the series of images.

(5)   

So, for example, where—

(a)   

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

25

images, and

(b)   

it appears that the series of images as a whole was not produced solely

or principally for the purpose of sexual arousal,

   

the image may, by virtue of being part of that narrative, be found not to be

pornographic, even though it might have been found to be pornographic if

30

taken by itself.

(6)   

An “extreme image” is an image of any of the following—

(a)   

an act which threatens or appears to threaten a person’s life,

(b)   

an act which results in or appears to result (or be likely to result) in

serious injury to a person’s anus, breasts or genitals,

35

(c)   

an act which involves or appears to involve sexual interference with a

human corpse,

(d)   

a person performing or appearing to perform an act of intercourse or

oral sex with an animal,

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

40

appears to be real.

(7)   

In this section “image” means—

 
 

Criminal Justice and Immigration Bill
Part 7 — Criminal law

66

 

(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

95      

Exclusion of classified films etc.

(1)   

Section 94 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 94(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 94 (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);

 
 

Criminal Justice and Immigration Bill
Part 7 — Criminal law

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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 94;

“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.

96      

Defence

10

(1)   

Where a person is charged with an offence under section 94, 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 94.

97      

Penalties etc. for possession of extreme pornographic images

(1)   

This section has effect where a person is guilty of an offence under section 94.

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

94(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.

 
 

 
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