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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

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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.

20

(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;”.

30

(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.

30

(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

48

 

(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);

 
 

Criminal Justice and Immigration Bill
Part 5 — Criminal law

49

 

“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.

 
 

 
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