|
| |
|
Partial defence to murder: loss of control |
| |
41 | Partial defence to murder: loss of control |
| |
(1) | Where a person (“D”) kills or is a party to the killing of another (“V”), D is not |
| |
to be convicted of murder if— |
| |
(a) | D’s acts and omissions in doing or being a party to the killing resulted |
| 5 |
from D’s loss of self-control, |
| |
(b) | the loss of self-control had a qualifying trigger, and |
| |
(c) | a person of D’s sex and age, with a normal degree of tolerance and self- |
| |
restraint and in the circumstances of D, might have reacted in the same |
| |
or in a similar way to D. |
| 10 |
(2) | For the purposes of subsection (1)(a), it does not matter whether or not the loss |
| |
| |
(3) | In subsection (1)(c) the reference to “the circumstances of D” is a reference to |
| |
all of D’s circumstances other than those whose only relevance to D’s conduct |
| |
is that they bear on D’s general capacity for tolerance or self-restraint. |
| 15 |
(4) | Subsection (1) does not apply if, in doing or being a party to the killing, D acted |
| |
in a considered desire for revenge. |
| |
(5) | On a charge of murder, if sufficient evidence is adduced to raise an issue with |
| |
respect to the defence under subsection (1), the jury must assume that the |
| |
defence is satisfied unless the prosecution proves beyond reasonable doubt |
| 20 |
| |
(6) | For the purposes of subsection (5), sufficient evidence is adduced to raise an |
| |
issue with respect to the defence if evidence is adduced on which, in the |
| |
opinion of the trial judge, a jury, properly directed, could reasonably conclude |
| |
that the defence might apply. |
| 25 |
(7) | A person who, but for this section, would be liable to be convicted of murder |
| |
is liable instead to be convicted of manslaughter. |
| |
(8) | The fact that one party to a killing is by virtue of this section not liable to be |
| |
convicted of murder does not affect the question whether the killing amounted |
| |
to murder in the case of any other party to it. |
| 30 |
42 | Meaning of “qualifying trigger” |
| |
(1) | This section applies for the purposes of section 41. |
| |
(2) | A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. |
| |
(3) | This subsection applies if D’s loss of self-control was attributable to D’s fear of |
| |
serious violence from V against D or another identified person. |
| 35 |
(4) | This subsection applies if D’s loss of self-control was attributable to a thing or |
| |
things done or said (or both) which— |
| |
(a) | constituted circumstances of an extremely grave character, and |
| |
(b) | caused D to have a justifiable sense of being seriously wronged. |
| |
(5) | This subsection applies if D’s loss of self-control was attributable to a |
| 40 |
combination of the matters mentioned in subsections (3) and (4). |
| |
(6) | In determining whether a loss of self-control had a qualifying trigger— |
| |
|
| |
|
| |
|
(a) | D’s fear of serious violence is to be disregarded to the extent that it was |
| |
caused by a thing which D incited to be done or said for the purpose of |
| |
providing an excuse to use violence; |
| |
(b) | a sense of being seriously wronged by a thing done or said is not |
| |
justifiable if D incited the thing to be done or said for the purpose of |
| 5 |
providing an excuse to use violence; |
| |
(c) | the fact that a thing done or said constituted sexual infidelity is to be |
| |
| |
(7) | In this section references to “D” and “V” are to be construed in accordance with |
| |
| 10 |
43 | Abolition of common law defence of provocation |
| |
(1) | The common law defence of provocation is abolished and replaced by sections |
| |
| |
(2) | Accordingly, the following provisions cease to have effect— |
| |
(a) | section 3 of the Homicide Act 1957 (c. 11) (questions of provocation to |
| 15 |
| |
(b) | section 7 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20) |
| |
(questions of provocation to be left to the jury). |
| |
| |
44 | Infanticide (England and Wales) |
| 20 |
(1) | Section 1 of the Infanticide Act 1938 (c. 36) (offence of infanticide) is amended |
| |
| |
| |
(a) | for “notwithstanding that” substitute “if”, and |
| |
(b) | after “murder” insert “or manslaughter”. |
| 25 |
| |
(a) | for “notwithstanding that” substitute “if”, and |
| |
(b) | after “murder” insert “or manslaughter”. |
| |
45 | Infanticide (Northern Ireland) |
| |
(1) | Section 1 of the Infanticide Act (Northern Ireland) 1939 (c. 5) (offence of |
| 30 |
infanticide) is amended as follows. |
| |
| |
(a) | for “notwithstanding that” substitute “if”, and |
| |
(b) | after “murder” insert “or manslaughter”. |
| |
| 35 |
(a) | for “notwithstanding that” substitute “if”, and |
| |
(b) | after “murder” insert “or manslaughter”. |
| |
|
| |
|
| |
|
| |
46 | Encouraging or assisting suicide (England and Wales) |
| |
(1) | The Suicide Act 1961 (c. 60) is amended as follows. |
| |
(2) | In section 2 (criminal liability for complicity in another’s suicide), for |
| |
subsection (1) substitute— |
| 5 |
“(1) | A person (“D”) commits an offence if— |
| |
(a) | D does an act capable of encouraging or assisting the suicide or |
| |
attempted suicide of another person, and |
| |
(b) | D’s act was intended to encourage or assist suicide or an |
| |
| 10 |
(1A) | The person referred to in subsection (1)(a) need not be a specific person |
| |
(or class of persons) known to, or identified by, D. |
| |
(1B) | D may commit an offence under this section whether or not a suicide, |
| |
or an attempt at suicide, occurs. |
| |
(1C) | An offence under this section is triable on indictment and a person |
| 15 |
convicted of such an offence is liable to imprisonment for a term not |
| |
| |
(3) | In subsection (2) of that section, for “it” to the end substitute “of a person it is |
| |
proved that the deceased person committed suicide, and the accused |
| |
committed an offence under subsection (1) in relation to that suicide, the jury |
| 20 |
may find the accused guilty of the offence under subsection (1).” |
| |
(4) | After that section insert— |
| |
“2A | Acts capable of encouraging or assisting |
| |
(1) | If D arranges for a person (“D2”) to do an act that is capable of |
| |
encouraging or assisting the suicide or attempted suicide of another |
| 25 |
person and D2 does that act, D is also to be treated for the purposes of |
| |
this Act as having done it. |
| |
(2) | Where the facts are such that an act is not capable of encouraging or |
| |
assisting suicide or attempted suicide, for the purposes of this Act it is |
| |
to be treated as so capable if the act would have been so capable had the |
| 30 |
facts been as D believed them to be at the time of the act or had |
| |
subsequent events happened in the manner D believed they would |
| |
| |
(3) | A reference in this Act to a person (“P”) doing an act that is capable of |
| |
encouraging the suicide or attempted suicide of another person |
| 35 |
includes a reference to P doing so by threatening another person or |
| |
otherwise putting pressure on another person to commit or attempt |
| |
| |
| |
A reference in this Act to an act includes a reference to a course of |
| 40 |
conduct, and a reference to doing an act is to be read accordingly.” |
| |
|
| |
|
| |
|
47 | Encouraging or assisting suicide (Northern Ireland) |
| |
(1) | The Criminal Justice Act (Northern Ireland) 1966 (c. 20) is amended as follows. |
| |
(2) | In section 13 (criminal liability for complicity in another’s suicide), for |
| |
subsection (1) substitute— |
| |
“(1) | A person (“D”) commits an offence if— |
| 5 |
(a) | D does an act capable of encouraging or assisting the suicide or |
| |
attempted suicide of another person, and |
| |
(b) | D’s act was intended to encourage or assist suicide or an |
| |
| |
(1A) | The person referred to in subsection (1)(a) need not be a specific person |
| 10 |
(or class of persons) known to, or identified by, D. |
| |
(1B) | D may commit an offence under this section whether or not a suicide, |
| |
or an attempt at suicide, occurs. |
| |
(1C) | An offence under this section is triable on indictment and a person |
| |
convicted of such an offence is liable to imprisonment for a term not |
| 15 |
| |
(3) | In subsection (2) of that section, for “it” to the end substitute “of a person it is |
| |
proved that the deceased person committed suicide, and the person charged |
| |
committed an offence under subsection (1) in relation to that suicide, the jury |
| |
may find the person charged guilty of the offence under subsection (1).” |
| 20 |
(4) | After that section insert— |
| |
“13A | Acts capable of encouraging or assisting |
| |
(1) | If D arranges for a person (“D2”) to do an act that is capable of |
| |
encouraging or assisting the suicide or attempted suicide of another |
| |
person and D2 does that act, D is also to be treated for the purposes of |
| 25 |
section 13 as having done it. |
| |
(2) | Where the facts are such that an act is not capable of encouraging or |
| |
assisting suicide or attempted suicide, for the purposes of section 13 |
| |
and this section it is to be treated as so capable if the act would have |
| |
been so capable had the facts been as D believed them to be at the time |
| 30 |
of the act or had subsequent events happened in the manner D believed |
| |
they would happen (or both). |
| |
(3) | A reference in section 13 or this section to a person (“P”) doing an act |
| |
that is capable of encouraging the suicide or attempted suicide of |
| |
another person includes a reference to P doing so by threatening |
| 35 |
another person or otherwise putting pressure on another person to |
| |
commit or attempt suicide. |
| |
| |
A reference in section 13 or 13A to an act includes a reference to a course |
| |
of conduct, and a reference to doing an act is to be read accordingly.” |
| 40 |
48 | Encouraging or assisting suicide: information society services |
| |
Schedule 10 makes special provision in connection with the operation of |
| |
section 2 of the Suicide Act 1961 (c. 60) and section 13 of the Criminal Justice |
| |
|
| |
|
| |
|
Act (Northern Ireland) 1966 (c. 20) in relation to persons providing information |
| |
society services within the meaning of that Schedule. |
| |
| |
| |
| 5 |
49 | Possession of prohibited images of children |
| |
(1) | It is an offence for a person to be in possession of a prohibited image of a child. |
| |
(2) | A prohibited image is an image which— |
| |
| |
(b) | falls within subsection (6), and |
| 10 |
(c) | is grossly offensive, disgusting or otherwise of an obscene character. |
| |
(3) | An image is “pornographic” if it is of such a nature that it must reasonably be |
| |
assumed to have been produced solely or principally for the purpose of sexual |
| |
| |
(4) | Where (as found in the person’s possession) an image forms part of a series of |
| 15 |
images, the question whether the image is of such a nature as is mentioned in |
| |
subsection (3) 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. |
| 20 |
(5) | So, for example, where— |
| |
(a) | an image forms an integral part of a narrative constituted by a series of |
| |
| |
(b) | having regard to those images as a whole, they are not of such a nature |
| |
that they must reasonably be assumed to have been produced solely or |
| 25 |
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 |
| |
| |
(6) | An image falls within this subsection if it— |
| 30 |
(a) | is an image which focuses solely or principally on a child’s genitals or |
| |
| |
(b) | portrays any of the acts mentioned in subsection (7). |
| |
| |
(a) | the performance by a person of an act of intercourse or oral sex with or |
| 35 |
in the presence of a child; |
| |
(b) | an act of masturbation by, of, involving or in the presence of a child; |
| |
(c) | an act which involves penetration of the vagina or anus of a child with |
| |
a part of a person’s body or with anything else; |
| |
(d) | an act of penetration, in the presence of a child, of the vagina or anus of |
| 40 |
a person with a part of a person’s body or with anything else; |
| |
|
| |
|
| |
|
(e) | the performance by a child of an act of intercourse or oral sex with an |
| |
animal (whether dead or alive or imaginary); |
| |
(f) | the performance by a person of an act of intercourse or oral sex with an |
| |
animal (whether dead or alive or imaginary) in the presence of a child. |
| |
(8) | For the purposes of subsection (7), penetration is a continuing act from entry to |
| 5 |
| |
(9) | Proceedings for an offence under subsection (1) may not be instituted— |
| |
(a) | in England and Wales, except by or with the consent of the Director of |
| |
| |
(b) | in Northern Ireland, except by or with the consent of the Director of |
| 10 |
Public Prosecutions for Northern Ireland. |
| |
50 | Exclusion of classified film etc |
| |
(1) | Section 49(1) 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. |
| 15 |
(3) | But such an image is not an “excluded image” if— |
| |
(a) | it is contained in a recording of an extract from a classified work, and |
| |
(b) | it is of such a nature that it must reasonably be assumed to have been |
| |
extracted (whether with or without other images) solely or principally |
| |
for the purpose of sexual arousal. |
| 20 |
(4) | Where an extracted image is one of a series of images contained in the |
| |
recording, the question whether the image is of such a nature as is 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 |
| 25 |
the image) the context in which it occurs in the series of images; |
| |
| and section 49(5) applies in connection with determining that question as it |
| |
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 |
| 30 |
| |
(a) | a defect caused for technical reasons or by inadvertence on the part of |
| |
| |
(b) | the inclusion in the recording of any extraneous material (such as |
| |
| 35 |
| |
(6) | Nothing in this section is to be taken as affecting any duty of a designated |
| |
authority to have regard to section 49 (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. |
| 40 |
| |
“classified work” means (subject to subsection (8)) a video work in respect |
| |
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 meaning as in |
| |
the Video Recordings Act 1984 (c. 39); |
| |
“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; |
| 5 |
“pornographic” has the same meaning as in section 49; |
| |
“recording” means any disc, tape or other device capable of storing data |
| |
electronically and from which images may be produced (by any |
| |
| |
(8) | Section 22(3) of the Video Recordings Act 1984 (effect of alterations) applies for |
| 10 |
the purposes of this section as it applies for the purposes of that Act. |
| |
| |
(1) | Where a person is charged with an offence under section 49(1), it is a defence |
| |
for the person to prove any of the following matters— |
| |
(a) | that the person had a legitimate reason for being in possession of the |
| 15 |
| |
(b) | that the person had not seen the image concerned and did not know, |
| |
nor had any cause to suspect, it to be a prohibited image of a child; |
| |
| |
(i) | was sent the image concerned without any prior request having |
| 20 |
been made by or on behalf of the person, and |
| |
(ii) | did not keep it for an unreasonable time. |
| |
(2) | In this section “prohibited image” has the same meaning as in section 49. |
| |
52 | Meaning of “image” and “child” |
| |
(1) | The following apply for the purposes of sections 49 to 51. |
| 25 |
| |
(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). |
| |
(3) | “Image” does not include an indecent photograph, or indecent pseudo- |
| 30 |
| |
(4) | In subsection (3) “indecent photograph” and “indecent pseudo-photograph” |
| |
| |
(a) | in relation to England and Wales, in accordance with the Protection of |
| |
Children Act 1978 (c. 37), and |
| 35 |
(b) | in relation to Northern Ireland, in accordance with the Protection of |
| |
Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)). |
| |
(5) | “Child”, subject to subsection (6), means a person under the age of 18. |
| |
(6) | Where an image shows a person the image is to be treated as an image of a child |
| |
| 40 |
(a) | the impression conveyed by the image is that the person shown is a |
| |
| |
|
| |
|