104.9-14

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

9

Clause 78
64
Leave out Clause 78
Clause 79
65
Leave out Clause 79
Clause 80
66
Leave out Clause 80
Clause 81
67
Leave out Clause 81
Clause 82
68
Leave out Clause 82
Clause 83
69
Leave out Clause 83
Clause 84
70
Leave out Clause 84
Clause 85
71
Leave out Clause 85
Clause 86
72
Leave out Clause 86
Clause 87
73
Leave out Clause 87
Clause 88
74
Leave out Clause 88
Clause 89
75
Leave out Clause 89
Clause 90
76
Leave out Clause 90
Clause 91
77
Leave out Clause 91

10

Clause 92
78
Leave out Clause 92
Clause 93
79
Leave out Clause 93
Clause 94
80
Leave out Clause 94
Clause 95
81
Leave out Clause 95
Clause 96
82
Leave out Clause 96
Clause 97
83
Leave out Clause 97
Clause 98
84
Page 68, line 39, leave out “offenders aged 16 and 17” and insert “children and

young persons”
85
Page 68, line 41, at end insert—

“(2)
The Secretary of State may by order amend the Crime and Disorder Act

1998 (c. 37), as amended by Schedule 18, so as to vary the provision made

by it for the giving of youth conditional cautions to children and young

persons under the age of 16 (including doing so by adding or omitting any

provision).”
Clause 105
86
Page 71, line 3, at end insert—

“( )
After subsection (1) (designation of non-legal staff) insert—

“(1A)
A person designated under subsection (1) shall only be permitted to

carry out any legal activity as defined by section 12 of the Legal

Services Act 2007 if he has been authorised so to do by a body which

is designated as an approved regulator by Part 1 of Schedule 4 to

that Act or under Part 2 of that Schedule (or both) and whose

regulatory arrangements are approved for the purposes of that

Act.””
87
Page 71, line 4, leave out “(2)(a)” and insert “(2)”
88
Page 71, leave out lines 5 and 6 and insert—

“(a)
in paragraph (a)(ii), after “trials” insert “of offences triable either

way or offences which are punishable with imprisonment”;

(b)
after paragraph (a)(ii) insert—”

11
89
Page 71, line 12, at end insert—

“(c)
for paragraph (b) substitute—

“(b)
any powers of a Crown Prosecutor that do not

involve the exercise of such rights of audience as are

mentioned in paragraph (a) above but are

exercisable in relation to the conduct of—

(i)
criminal proceedings in magistrates’ courts

other than trials of offences triable either way

or offences which are punishable with

imprisonment, or

(ii)
applications or proceedings falling within

paragraph (a)(iii) or (iv).””
90
Page 71, leave out lines 23 to 27
91
Page 71, line 27, at end insert—

“(5A)
For the purposes of this section a trial begins with the opening of

the prosecution case after the entry of a plea of not guilty and ends

with the conviction or acquittal of the accused.””
Clause 111
92
Page 79, line 4, leave out “£500,000” and insert—

“(a)
£1 million in a case to which section 133B applies, and

(b)
£500,000 in any other case.”
93
Page 79, line 12, leave out first “the” and insert “any”
94
Page 79, line 17, at end insert—

“133B
Cases where person has been detained for at least 10 years

(1)
For the purposes of section 133A(5) this section applies to any case

where the person concerned (“P”) has been in qualifying detention

for a period (or total period) of at least 10 years by the time when—

(a)
the conviction is reversed, or

(b)
the pardon is given,


as mentioned in section 133(1).

(2)
P was “in qualifying detention” at any time when P was detained in

a prison, a hospital or at any other place, if P was so detained—

(a)
by virtue of a sentence passed in respect of the relevant

offence,

(b)
under mental health legislation by reason of P’s conviction

of that offence (disregarding any conditions other than the

fact of the conviction that had to be fulfilled in order for P to

be so detained), or

(c)
as a result of P’s having been remanded in custody in

connection with the relevant offence or with any other

offence the charge for which was founded on the same facts

or evidence as that for the relevant offence.

(3)
In calculating the period (or total period) during which P has been

in qualifying detention as mentioned in subsection (1), no account

is to be taken of any period of time during which P was both—

(a)
in qualifying detention, and

12

(b)
in excluded concurrent detention.

(4)
P was “in excluded concurrent detention” at any time when P was

detained in a prison, a hospital or at any other place, if P was so

detained—

(a)
during the term of a sentence passed in respect of an offence

other than the relevant offence,

(b)
under mental health legislation by reason of P’s conviction

of any such other offence (disregarding any conditions

other than the fact of the conviction that had to be fulfilled

in order for P to be so detained), or

(c)
as a result of P’s having been remanded in custody in

connection with an offence for which P was subsequently

convicted other than—

(i)
the relevant offence, or

(ii)
any other offence the charge for which was founded

on the same facts or evidence as that for the relevant

offence.

(5)
But P was not “in excluded concurrent detention” at any time by

virtue of subsection (4)(a), (b) or (c) if P’s conviction of the other

offence mentioned in that provision was quashed on appeal, or a

pardon was given in respect of it.

(6)
In this section—

“mental health legislation” means—

(a)
Part 3 of the Mental Health Act 1983,

(b)
Part 3 of the Mental Health (Northern Ireland) Order

1986, or

(c)
the provisions of any earlier enactment

corresponding to Part 3 of that Act or Part 3 of that

Order;

“the relevant offence” means the offence in respect of which

the conviction is quashed or the pardon is given (but see

subsection (7));

“remanded in custody” is to be read in accordance with

subsections (8) and (9);

“reversed” has the same meaning as in section 133 of this Act.

(7)
If, as a result of the miscarriage of justice—

(a)
two or more convictions are reversed, or

(b)
a pardon is given in respect of two or more offences,


“the relevant offence” means any of the offences concerned.

(8)
In relation to England and Wales, “remanded in custody” has the

meaning given by section 242(2) of the Criminal Justice Act 2003,

but that subsection applies for the purposes of this section as if any

reference there to a provision of the Mental Health Act 1983

included a reference to any corresponding provision of any earlier

enactment.

(9)
In relation to Northern Ireland, “remanded in custody” means—

(a)
remanded in or committed to custody by an order of a court,

or

13

(b)
remanded, admitted or removed to hospital under Article

42, 43, 45 or 54 of the Mental Health (Northern Ireland)

Order 1986 or under any corresponding provision of any

earlier enactment.””
95
Page 79, line 19, leave out from “Wales)” to end of line 20 and insert “for “section

133” substitute “sections 133 to 133B”.”
Clause 113
96
Page 79, line 38, leave out “appears” and insert “is of such a nature that it must

reasonably be assumed”
97
Page 80, line 1, after “Where” insert “(as found in the person’s possession)”
98
Page 80, line 2, leave out “appears to have been so produced” and insert “is of such

a nature as is mentioned in subsection (3)”
99
Page 80, line 9, leave out from beginning to “produced” and insert “having regard

to those images as a whole, they are not of such a nature that they must reasonably

be assumed to have been”
100
Page 80, line 14, leave out subsection (6) and insert—

“(5A)
An “extreme image” is an image which—

(a)
falls within subsection (6), and

(b)
is grossly offensive, disgusting or otherwise of an obscene

character.

(6)
An image falls within this subsection if it portrays, in an explicit and

realistic way, any of the following—

(a)
an act which threatens a person’s life,

(b)
an act which results, or is likely to result, in serious injury to a

person’s anus, breasts or genitals,

(c)
an act which involves sexual interference with a human corpse, or

(d)
a person performing an act of intercourse or oral sex with an animal

(whether dead or alive),


and a reasonable person looking at the image would think that any such

person or animal was real.”
Clause 114
101
Page 80, line 41, leave out “appears that the image was” and insert “is of such a

nature that it must reasonably be assumed to have been”
102
Page 80, line 44, leave out “appears to have been extracted as” and insert “is of such

a nature as is”
After Clause 115
103
Insert the following new Clause—


“Defence: participation in consensual acts

(1)
This section applies where—

(a)
a person (“D”) is charged with an offence under section 113, and

14

(b)
the offence relates to an image that portrays an act or acts within

paragraphs (a) to (c) (but none within paragraph (d)) of subsection

(6) of that section.

(2)
It is a defence for D to prove—

(a)
that D directly participated in the act or any of the acts portrayed,

and

(b)
that the act or acts did not involve the infliction of any non-

consensual harm on any person, and

(c)
if the image portrays an act within section 113(6)(c), that what is

portrayed as a human corpse was not in fact a corpse.

(3)
For the purposes of this section harm inflicted on a person is “non-

consensual” harm if—

(a)
the harm is of such a nature that the person cannot, in law, consent

to it being inflicted on himself or herself; or

(b)
where the person can, in law, consent to it being so inflicted, the

person does not in fact consent to it being so inflicted.”
Clause 116
104
Page 82, line 8, leave out “depict” and insert “portray”
Clause 123
105
Leave out Clause 123
Clause 124
106
Leave out Clause 124
Clause 125
107
Leave out Clause 125
Clause 128
108
Page 88, line 38, leave out “(4) and (5)” insert “(3A) to (6)”
109
Page 88, line 39, at end insert—

“(3A)
If D claims to have held a particular belief as regards the existence of any

circumstances—

(a)
the reasonableness or otherwise of that belief is relevant to the

question whether D genuinely held it; but

(b)
if it is determined that D did genuinely hold it, D is entitled to rely

on it for the purposes of subsection (3), whether or not—

(i)
it was mistaken, or

(ii)
(if it was mistaken) the mistake was a reasonable one to

have made.

(3B)
But subsection (3A)(b) does not enable D to rely on any mistaken belief

attributable to intoxication that was voluntarily induced.”
110
Page 89, line 2, leave out first “those circumstances” and insert “the circumstances

as D believed them to be”