Criminal Justice and Immigration Bill

House of Lords

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Criminal Justice and Immigration Bill

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67
Special rules relating to providers of information society services
Schedule 14 makes special provision in connection with the operation of
section 63 in relation to persons providing information society services within
the meaning of that Schedule.
68
Indecent photographs of children
5
(1)
The Protection of Children Act 1978 (c. 37) is amended as follows.
(2)
In section 1B(1)(b) (exception for members of the Security Service)—
(a)
after “Security Service” insert “or the Secret Intelligence Service”;
(b)
for “the Service” substitute “that Service”.
(3)
After section 7(4) (meaning of photograph), insert—
10
“(4A)
References to a photograph also include—
(a)
a tracing or other image, whether made by electronic or other
means (of whatever nature)—
(i)
which is not itself a photograph or pseudo-photograph,
but
15
(ii)
which is derived from the whole or part of a photograph
or pseudo-photograph (or a combination of either or
both); and
(b)
data stored on a computer disc or by other electronic means
which is capable of conversion into an image within paragraph
20
(a);

and subsection (8) applies in relation to such an image as it applies in
relation to a pseudo-photograph.”
(4)
In section 7(9)(b) (meaning of indecent pseudo-photograph), for “a pseudo-
photograph” substitute “an indecent pseudo-photograph”.
25
69
Indecent photographs of children (Northern Ireland)
(1)
The Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047
(N.I. 17)) is amended as follows.
(2)
In Article 2(2) (interpretation) in paragraph (b) of the definition of “indecent
pseudo-photograph”, for “a pseudo-photograph” substitute “an indecent
30
pseudo-photograph”.
(3)
After Article 2(2) insert—
“(2A)
In this Order, references to a photograph also include—
(a)
a tracing or other image, whether made by electronic or other
means (of whatever nature)—
35
(i)
which is not itself a photograph or pseudo-photograph,
but
(ii)
which is derived from the whole or part of a photograph
or pseudo-photograph (or a combination of either or
both); and
40
(b)
data stored on a computer disc or by other electronic means
which is capable of conversion into an image within paragraph
(a);

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and paragraph (3)(c) applies in relation to such an image as it applies in
relation to a pseudo-photograph.”
(4)
In article 3A(1)(b) (exception for members of the Security Service)—
(a)
after “Security Service” insert “or the Secret Intelligence Service”;
(b)
for “the Service” substitute “that Service”.
5
70
Maximum penalty for publication etc. of obscene articles
In section 2(1)(b) of the Obscene Publications Act 1959 (c. 66) (maximum
penalty on indictment for publication etc. of obscene articles) for “three years”
substitute “five years”.
Sexual offences
10
71
Offences committed outside the United Kingdom
(1)
For section 72 of the Sexual Offences Act 2003 (c. 42) substitute—
“72
Offences outside the United Kingdom
(1)
If—
(a)
a United Kingdom national does an act in a country outside the
15
United Kingdom, and
(b)
the act, if done in England and Wales or Northern Ireland,
would constitute a sexual offence to which this section applies,

the United Kingdom national is guilty in that part of the United
Kingdom of that sexual offence.
20
(2)
If—
(a)
a United Kingdom resident does an act in a country outside the
United Kingdom,
(b)
the act constitutes an offence under the law in force in that
country, and
25
(c)
the act, if done in England and Wales or Northern Ireland,
would constitute a sexual offence to which this section applies,

the United Kingdom resident is guilty in that part of the United
Kingdom of that sexual offence.
(3)
If—
30
(a)
a person does an act in a country outside the United Kingdom
at a time when the person was not a United Kingdom national
or a United Kingdom resident,
(b)
the act constituted an offence under the law in force in that
country,
35
(c)
the act, if done in England and Wales or Northern Ireland,
would have constituted a sexual offence to which this section
applies, and
(d)
the person meets the residence or nationality condition at the
relevant time,
40

proceedings may be brought against the person in that part of the
United Kingdom for that sexual offence as if the person had done the
act there.

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(4)
The person meets the residence or nationality condition at the relevant
time if the person is a United Kingdom national or a United Kingdom
resident at the time when the proceedings are brought.
(5)
An act punishable under the law in force in any country constitutes an
offence under that law for the purposes of subsections (2) and (3)
5
however it is described in that law.
(6)
The condition in subsection (2)(b) or (3)(b) is to be taken to be met
unless, not later than rules of court may provide, the defendant serves
on the prosecution a notice—
(a)
stating that, on the facts as alleged with respect to the act in
10
question, the condition is not in the defendant’s opinion met,
(b)
showing the grounds for that opinion, and
(c)
requiring the prosecution to prove that it is met.
(7)
But the court, if it thinks fit, may permit the defendant to require the
prosecution to prove that the condition is met without service of a
15
notice under subsection (6).
(8)
In the Crown Court the question whether the condition is met is to be
decided by the judge alone.
(9)
In this section—
“country” includes territory;
20
“United Kingdom national” means an individual who is—
(a)
a British citizen, a British overseas territories citizen, a
British National (Overseas) or a British Overseas citizen;
(b)
a person who under the British Nationality Act 1981 is a
British subject; or
25
(c)
a British protected person within the meaning of that
Act;
“United Kingdom resident” means an individual who is resident
in the United Kingdom.
(10)
Schedule 2 lists the sexual offences to which this section applies.”
30
(2)
Schedule 2 to that Act (list of sexual offences to which section 72 applies) is
amended as follows.
(3)
In paragraph 1 (offences under the law of England and Wales)—
(a)
for paragraphs (a) and (b) substitute—
“(a)
an offence under any of sections 5 to 19, 25 and 26 and
35
47 to 50;
(b)
an offence under any of sections 1 to 4, 30 to 41 and 61
where the victim of the offence was under 18 at the
time of the offence;”;
(b)
in paragraph (c), for “16” substitute “18”; and
40
(c)
in paragraph (d), omit “in relation to a photograph or pseudo-
photograph showing a child under 16”.
(4)
In paragraph 2 (offences under the law of Northern Ireland)—
(a)
in sub-paragraph (1)(c)(iv), for “17” substitute “18”; and
(b)
in sub-paragraph (2), for “17” substitute “18”.
45

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72
Grooming and adoption
Schedule 15—
(a)
amends section 15 of the Sexual Offences Act 2003 (c. 42) (meeting a
child following sexual grooming etc),
(b)
amends that Act in relation to adoption, and
5
(c)
amends the Adoption Act 1976 (c. 36) in relation to offences under
sections 64 and 65 of the Sexual Offences Act 2003.
Hatred on the grounds of sexual orientation
73
Hatred on the grounds of sexual orientation
Schedule 16—
10
(a)
amends Part 3A of the Public Order Act 1986 (c. 64) (hatred against
persons on religious grounds) to make provision about hatred against
a group of persons defined by reference to sexual orientation, and
(b)
makes minor amendments of that Part.
Offences relating to nuclear material and nuclear facilities
15
74
Offences relating to the physical protection of nuclear material and nuclear
facilities
(1)
Part 1 of Schedule 17 amends the Nuclear Material (Offences) Act 1983 (c. 18)
to create—
(a)
further offences relating to the physical protection of nuclear material,
20
and
(b)
offences relating to the physical protection of nuclear facilities,

and makes other amendments to that Act.
(2)
Part 2 of that Schedule makes related amendments to the Customs and Excise
Management Act 1979 (c. 2).
25
Self-defence etc
75
Reasonable force for purposes of self-defence etc.
(1)
This section applies where in proceedings for an offence—
(a)
an issue arises as to whether a person charged with the offence (“D”) is
entitled to rely on a defence within subsection (2), and
30
(b)
the question arises whether the degree of force used by D against a
person (“V”) was reasonable in the circumstances.
(2)
The defences are—
(a)
the common law defence of self-defence; and
(b)
the defences provided by section 3(1) of the Criminal Law Act 1967
35
(c. 58) or section 3(1) of the Criminal Law Act (Northern Ireland) 1967
(c. 18 (N.I.)) (use of force in prevention of crime or making arrest).
(3)
The question whether the degree of force used by D was reasonable in the
circumstances is to be decided by reference to the circumstances as D believed

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them to be, and subsections (4) and (5) also apply in connection with deciding
that question.
(4)
The degree of force used by D is not to be regarded as having been reasonable
in those circumstances if it was disproportionate in those circumstances.
(5)
In deciding the question the following considerations are to be taken into
5
account (so far as relevant in the circumstances of the case)—
(a)
that a person acting for a legitimate purpose may not be able to weigh
to a nicety the exact measure of any necessary action; and
(b)
that evidence of a person’s having only done what the person honestly
and instinctively thought was necessary for a legitimate purpose
10
constitutes strong evidence that only reasonable action was taken by
that person for that purpose.
(6)
Subsection (5) is not to be read as preventing other matters from being taken
into account where they are relevant to deciding the question mentioned in
subsection (3).
15
(7)
This section is intended to clarify the operation of the existing defences
mentioned in subsection (2).
(8)
For the purposes of references in this section to what D believed, it is
immaterial whether—
(a)
any belief of D’s was mistaken, or
20
(b)
(if it was mistaken) the mistake was reasonable.
(9)
But subsection (3) does not enable D to rely on any mistaken belief attributable
to intoxication that was voluntarily induced.
(10)
In this section—
(a)
“legitimate purpose” means—
25
(i)
the purpose of self-defence under the common law, or
(ii)
the prevention of crime or effecting or assisting in the lawful
arrest of persons mentioned in the provisions referred to in
subsection (2)(b);
(b)
references to self-defence include acting in defence of another person;
30
and
(c)
references to the degree of force used are to the type and amount of
force used.
Penalty for unlawfully obtaining etc. personal data
76
Imprisonment for unlawfully obtaining etc. personal data
35
(1)
Section 60 of the Data Protection Act 1998 (c. 29) (penalties for offences under
Act) is amended as follows.
(2)
In subsection (2) (offences under Act punishable by fine) for “other than section
54A” substitute “other than sections 54A and 55”.
(3)
After subsection (3) insert—
40
“(3A)
A person guilty of an offence under section 55 is liable—

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(a)
on summary conviction, to imprisonment for a term not
exceeding 12 months or to a fine not exceeding the statutory
maximum or to both;
(b)
on conviction on indictment, to imprisonment for a term not
exceeding two years or to a fine or to both.
5
(3B)
In the application of subsection (3A)(a)—
(a)
in England and Wales, in relation to an offence committed
before the commencement of section 282(1) of the Criminal
Justice Act 2003 (increase in sentencing powers of magistrates’
court from 6 to 12 months for certain offences triable either
10
way), and
(b)
in Northern Ireland,

the reference to 12 months is to be read as a reference to 6 months.”
Blasphemy
77
Abolition of common law offences of blasphemy and blasphemous libel
15
(1)
The offences of blasphemy and blasphemous libel under the common law of
England and Wales are abolished.
(2)
In section 1 of the Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8) (orders for
seizure of copies of blasphemous or seditious libel) the words “any
blasphemous libel, or” are omitted.
20
(3)
In sections 3 and 4 of the Law of Libel Amendment Act 1888 (c. 64) (privileged
matters) the words “blasphemous or” are omitted.
(4)
Subsections (2) and (3) (and the related repeals in Schedule 38) extend to
England and Wales only.
Part 6
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International co-operation in relation to criminal justice matters
Recognition of financial penalties: requests to other member States
78
Requests to other member States: England and Wales
(1)
In Schedule 5 to the Courts Act 2003 (c. 39) (collection of fines and other sums
imposed on conviction) in paragraph 38 (the range of further steps available
30
against defaulters)—
(a)
after sub-paragraph (1)(e) insert—
“(f)
subject to sub-paragraph (4), issuing a certificate
requesting enforcement under the Framework Decision
on financial penalties;” and
35
(b)
after sub-paragraph (3) insert—
    “(4)
A certificate requesting enforcement under the Framework
Decision on financial penalties may only be issued where—
(a)
the sum due is a financial penalty within the meaning
of section 78 of the Criminal Justice and Immigration
40
Act 2008, and

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(b)
it appears to the fines officer or the court that P is
normally resident, or has property or income, in a
member State other than the United Kingdom.
      (5)
In this paragraph, references to a certificate requesting
enforcement under the Framework Decision on financial
5
penalties are to be construed in accordance with section 90(3)
of the Criminal Justice and Immigration Act 2008.”
(2)
The designated officer for a magistrates’ court may issue a certificate
requesting enforcement under the Framework Decision on financial penalties
where—
10
(a)
a person is required to pay a financial penalty,
(b)
the penalty is not paid in full within the time allowed for payment,
(c)
there is no appeal outstanding in relation to the penalty,
(d)
Schedule 5 to the Courts Act 2003 (c. 39) does not apply in relation to
the enforcement of the penalty, and
15
(e)
it appears to the designated officer that the person is normally resident
in, or has property or income in, a member State other than the United
Kingdom.
(3)
For the purposes of subsection (2)(c), there is no appeal outstanding in relation
to a financial penalty if—
20
(a)
no appeal has been brought in relation to the imposition of the financial
penalty within the time allowed for making such an appeal, or
(b)
such an appeal has been brought but the proceedings on appeal have
been concluded.
(4)
Where the person required to pay the financial penalty is a body corporate,
25
subsection (2)(e) applies as if the reference to the person being normally
resident in a member State other than the United Kingdom were a reference to
the person having its registered office in a member State other than the United
Kingdom.
(5)
In this section, “financial penalty” means—
30
(a)
a fine imposed by a court in England and Wales on a person’s
conviction of an offence;
(b)
any sum payable under a compensation order (within the meaning of
section 130(1) of the Powers of Criminal Courts (Sentencing) Act 2000
(c. 6));
35
(c)
a surcharge under section 161A of the Criminal Justice Act 2003 (c. 44);
(d)
any sum payable under any such order as is mentioned in paragraphs
1 to 9 of Schedule 9 to the Administration of Justice Act 1970 (c. 31)
(orders for payment of costs);
(e)
any sum payable by virtue of section 137(1) or (1A) of the Powers of
40
Criminal Courts (Sentencing) Act 2000 (orders requiring parents to pay
fines etc.);
(f)
any fine or other sum mentioned in section 80(4)(b)(i) to (iv), or any fine
imposed by a court in Scotland, which is enforceable in a local justice
area in England and Wales by virtue of section 91 of the Magistrates’
45
Courts Act 1980 (c. 43);
(g)
any other financial penalty, within the meaning of the Framework
Decision on financial penalties, specified in an order made by the Lord
Chancellor.