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78 | |
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79 | |
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80 | |
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81 | |
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82 | |
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83 | |
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84 | Page 68, line 39, leave out “offenders aged 16 and 17” and insert “children and |
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| |
85 | Page 68, line 41, at end insert— |
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| “(2) | The Secretary of State may by order amend the Crime and Disorder Act |
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| 1998 (c. 37), as amended by Schedule 18, so as to vary the provision made |
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| by it for the giving of youth conditional cautions to children and young |
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| persons under the age of 16 (including doing so by adding or omitting any |
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| |
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86 | Page 71, line 3, at end insert— |
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| “( ) | After subsection (1) (designation of non-legal staff) insert— |
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| “(1A) | A person designated under subsection (1) shall only be permitted to |
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| carry out any legal activity as defined by section 12 of the Legal |
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| Services Act 2007 if he has been authorised so to do by a body which |
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| is designated as an approved regulator by Part 1 of Schedule 4 to |
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| that Act or under Part 2 of that Schedule (or both) and whose |
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| regulatory arrangements are approved for the purposes of that |
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| |
87 | Page 71, line 4, leave out “(2)(a)” and insert “(2)” |
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88 | Page 71, leave out lines 5 and 6 and insert— |
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| “(a) | in paragraph (a)(ii), after “trials” insert “of offences triable either |
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| way or offences which are punishable with imprisonment”; |
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| (b) | after paragraph (a)(ii) insert—” |
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| |
| | |
89 | Page 71, line 12, at end insert— |
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| “(c) | for paragraph (b) substitute— |
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| “(b) | any powers of a Crown Prosecutor that do not |
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| involve the exercise of such rights of audience as are |
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| mentioned in paragraph (a) above but are |
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| exercisable in relation to the conduct of— |
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| (i) | criminal proceedings in magistrates’ courts |
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| other than trials of offences triable either way |
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| or offences which are punishable with |
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| |
| (ii) | applications or proceedings falling within |
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| paragraph (a)(iii) or (iv).”” |
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90 | Page 71, leave out lines 23 to 27 |
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91 | Page 71, line 27, at end insert— |
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| “(5A) | For the purposes of this section a trial begins with the opening of |
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| the prosecution case after the entry of a plea of not guilty and ends |
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| with the conviction or acquittal of the accused.”” |
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|
92 | Page 79, line 4, leave out “£500,000” and insert— |
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| “(a) | £1 million in a case to which section 133B applies, and |
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| (b) | £500,000 in any other case.” |
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93 | Page 79, line 12, leave out first “the” and insert “any” |
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94 | Page 79, line 17, at end insert— |
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| “133B | Cases where person has been detained for at least 10 years |
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| (1) | For the purposes of section 133A(5) this section applies to any case |
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| where the person concerned (“P”) has been in qualifying detention |
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| for a period (or total period) of at least 10 years by the time when— |
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| (a) | the conviction is reversed, or |
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| |
| | as mentioned in section 133(1). |
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| (2) | P was “in qualifying detention” at any time when P was detained in |
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| a prison, a hospital or at any other place, if P was so detained— |
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| (a) | by virtue of a sentence passed in respect of the relevant |
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| |
| (b) | under mental health legislation by reason of P’s conviction |
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| of that offence (disregarding any conditions other than the |
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| fact of the conviction that had to be fulfilled in order for P to |
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| |
| (c) | as a result of P’s having been remanded in custody in |
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| connection with the relevant offence or with any other |
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| offence the charge for which was founded on the same facts |
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| or evidence as that for the relevant offence. |
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| (3) | In calculating the period (or total period) during which P has been |
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| in qualifying detention as mentioned in subsection (1), no account |
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| is to be taken of any period of time during which P was both— |
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| (a) | in qualifying detention, and |
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| |
| | |
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| (b) | in excluded concurrent detention. |
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| (4) | P was “in excluded concurrent detention” at any time when P was |
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| detained in a prison, a hospital or at any other place, if P was so |
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| |
| (a) | during the term of a sentence passed in respect of an offence |
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| other than the relevant offence, |
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| (b) | under mental health legislation by reason of P’s conviction |
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| of any such other offence (disregarding any conditions |
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| other than the fact of the conviction that had to be fulfilled |
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| in order for P to be so detained), or |
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| (c) | as a result of P’s having been remanded in custody in |
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| connection with an offence for which P was subsequently |
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| |
| (i) | the relevant offence, or |
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| (ii) | any other offence the charge for which was founded |
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| on the same facts or evidence as that for the relevant |
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| |
| (5) | But P was not “in excluded concurrent detention” at any time by |
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| virtue of subsection (4)(a), (b) or (c) if P’s conviction of the other |
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| offence mentioned in that provision was quashed on appeal, or a |
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| pardon was given in respect of it. |
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| |
| “mental health legislation” means— |
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| (a) | Part 3 of the Mental Health Act 1983, |
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| (b) | Part 3 of the Mental Health (Northern Ireland) Order |
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| |
| (c) | the provisions of any earlier enactment |
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| corresponding to Part 3 of that Act or Part 3 of that |
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| |
| “the relevant offence” means the offence in respect of which |
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| the conviction is quashed or the pardon is given (but see |
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| |
| “remanded in custody” is to be read in accordance with |
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| |
| “reversed” has the same meaning as in section 133 of this Act. |
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| (7) | If, as a result of the miscarriage of justice— |
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| (a) | two or more convictions are reversed, or |
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| (b) | a pardon is given in respect of two or more offences, |
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| | “the relevant offence” means any of the offences concerned. |
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| (8) | In relation to England and Wales, “remanded in custody” has the |
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| meaning given by section 242(2) of the Criminal Justice Act 2003, |
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| but that subsection applies for the purposes of this section as if any |
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| reference there to a provision of the Mental Health Act 1983 |
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| included a reference to any corresponding provision of any earlier |
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| |
| (9) | In relation to Northern Ireland, “remanded in custody” means— |
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| (a) | remanded in or committed to custody by an order of a court, |
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| |
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| |
| | |
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| (b) | remanded, admitted or removed to hospital under Article |
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| 42, 43, 45 or 54 of the Mental Health (Northern Ireland) |
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| Order 1986 or under any corresponding provision of any |
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| |
95 | Page 79, line 19, leave out from “Wales)” to end of line 20 and insert “for “section |
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| 133” substitute “sections 133 to 133B”.” |
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96 | Page 79, line 38, leave out “appears” and insert “is of such a nature that it must |
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| |
97 | Page 80, line 1, after “Where” insert “(as found in the person’s possession)” |
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98 | Page 80, line 2, leave out “appears to have been so produced” and insert “is of such |
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| a nature as is mentioned in subsection (3)” |
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99 | Page 80, line 9, leave out from beginning to “produced” and insert “having regard |
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| to those images as a whole, they are not of such a nature that they must reasonably |
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| |
100 | Page 80, line 14, leave out subsection (6) and insert— |
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| “(5A) | An “extreme image” is an image which— |
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| (a) | falls within subsection (6), and |
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| (b) | is grossly offensive, disgusting or otherwise of an obscene |
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| |
| (6) | An image falls within this subsection if it portrays, in an explicit and |
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| realistic way, any of the following— |
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| (a) | an act which threatens a person’s life, |
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| (b) | an act which results, or is likely to result, in serious injury to a |
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| person’s anus, breasts or genitals, |
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| (c) | an act which involves sexual interference with a human corpse, or |
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| (d) | a person performing an act of intercourse or oral sex with an animal |
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| |
| | and a reasonable person looking at the image would think that any such |
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| person or animal was real.” |
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101 | Page 80, line 41, leave out “appears that the image was” and insert “is of such a |
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| nature that it must reasonably be assumed to have been” |
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102 | Page 80, line 44, leave out “appears to have been extracted as” and insert “is of such |
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| |
|
103 | Insert the following new Clause— |
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| | “Defence: participation in consensual acts |
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| (1) | This section applies where— |
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| (a) | a person (“D”) is charged with an offence under section 113, and |
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| |
| | |
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| (b) | the offence relates to an image that portrays an act or acts within |
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| paragraphs (a) to (c) (but none within paragraph (d)) of subsection |
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| |
| (2) | It is a defence for D to prove— |
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| (a) | that D directly participated in the act or any of the acts portrayed, |
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| |
| (b) | that the act or acts did not involve the infliction of any non- |
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| consensual harm on any person, and |
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| (c) | if the image portrays an act within section 113(6)(c), that what is |
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| portrayed as a human corpse was not in fact a corpse. |
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| (3) | For the purposes of this section harm inflicted on a person is “non- |
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| |
| (a) | the harm is of such a nature that the person cannot, in law, consent |
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| to it being inflicted on himself or herself; or |
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| (b) | where the person can, in law, consent to it being so inflicted, the |
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| person does not in fact consent to it being so inflicted.” |
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|
104 | Page 82, line 8, leave out “depict” and insert “portray” |
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|
105 | |
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106 | |
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107 | |
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108 | Page 88, line 38, leave out “(4) and (5)” insert “(3A) to (6)” |
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109 | Page 88, line 39, at end insert— |
|
| “(3A) | If D claims to have held a particular belief as regards the existence of any |
|
| |
| (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— |
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| |
| (ii) | (if it was mistaken) the mistake was a reasonable one to |
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| |
| (3B) | But subsection (3A)(b) does not enable D to rely on any mistaken belief |
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| attributable to intoxication that was voluntarily induced.” |
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110 | Page 89, line 2, leave out first “those circumstances” and insert “the circumstances |
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| as D believed them to be” |
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|