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Session 2007 - 08
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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”


 
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