Criminal Justice and Immigration Bill

House of Lords

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill
Part 4 — Other criminal justice provisions
46

(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
suffered as a result of them.
5
(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
only.
10
(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.
(6)
The total amount of compensation payable under section 133 for a
15
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
National Statistics at the time of the assessment.
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(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.
(8)
No order may be made under subsection (7) unless a draft of the order
25
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—
“section 133A;”.
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(9)
This section extends to England and Wales and Northern Ireland.
62
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—
35
(a)
subsection (1), and
(b)
the repeal of section 8 of that Act in Part 4 of Schedule 28,

extend to England and Wales and Northern Ireland.

Criminal Justice and Immigration Bill
Part 5 — Criminal law
47

Part 5
Criminal law
Pornography etc.
63
Possession of extreme pornographic images
(1)
It is an offence for a person to be in possession of an extreme pornographic
5
image.
(2)
An “extreme pornographic image” is an image which is both—
(a)
pornographic, and
(b)
an extreme image.
(3)
An image is “pornographic” if it is of such a nature that it must reasonably be
10
assumed to have been produced solely or principally for the purpose of sexual
arousal.
(4)
Where (as found in the person’s possession) an image forms part of a series of
images, the question whether the image is of such a nature as is mentioned in
subsection (3) is to be determined by reference to—
15
(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
20
images, and
(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
principally for the purpose of sexual arousal,

the image may, by virtue of being part of that narrative, be found not to be
25
pornographic, even though it might have been found to be pornographic if
taken by itself.
(6)
An “extreme image” is an image which—
(a)
falls within subsection (7), and
(b)
is grossly offensive, disgusting or otherwise of an obscene character.
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(7)
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, breast or genitals,
35
(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.
40
(8)
In this section “image” means—
(a)
a moving or still image (produced by any means); or

Criminal Justice and Immigration Bill
Part 5 — Criminal law
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(b)
data (stored by any means) which is capable of conversion into an
image within paragraph (a).
(9)
In this section references to a part of the body include references to a part
surgically constructed (in particular through gender reassignment surgery).
(10)
Proceedings for an offence under this section may not be instituted—
5
(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.
64
Exclusion of classified films etc.
10
(1)
Section 63 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—
(a)
it is contained in a recording of an extract from a classified work, and
15
(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.
(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
20
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 63(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 63 (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);

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Part 5 — 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 63;
“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.
65
Defence
10
(1)
Where a person is charged with an offence under section 63, 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 63.
66
Penalties etc. for possession of extreme pornographic images
(1)
This section has effect where a person is guilty of an offence under section 63.
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
63(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.