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
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(2)
In section 11(2)(f)(ii) of that Act (faults in disclosure by accused), after “matter”
insert “(or any particular of any matter of fact)”.
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Compensation for miscarriages of justice
(1)
The Criminal Justice Act 1988 (c. 33) has effect subject to the following
amendments.
5
(2)
Section 133 (compensation for miscarriages of justice) is amended as follows.
(3)
At the end of subsection (2) (compensation only payable if application for
compensation is made) insert “before the end of the period of 2 years beginning
with the date on which the conviction of the person concerned is reversed or
he is pardoned.
10
(2A)
But the Secretary of State may direct that an application for
compensation made after the end of that period is to be treated as if it
had been made within that period if the Secretary of State considers
that there are exceptional circumstances which justify doing so.”
(4)
For subsection (4A) substitute—
15
“(4A)
Section 133A applies in relation to the assessment of the amount of the
compensation.”
(5)
After subsection (5) (meaning of “reversed” in relation to a conviction) insert—
“(5A)
But in a case where—
(a)
a person’s conviction for an offence is quashed on an appeal out
20
of time, and
(b)
the person is to be subject to a retrial,

the conviction is not to be treated for the purposes of this section as
“reversed” unless and until the person is acquitted of all offences at the
retrial or the prosecution indicates that it has decided not to proceed
25
with the retrial.
(5B)
In subsection (5A) above any reference to a retrial includes a reference
to proceedings held following the remission of a matter to a
magistrates’ court by the Crown Court under section 48(2)(b) of the
Supreme Court Act 1981.”
30
(6)
In subsection (6) (meaning of suffering punishment as a result of conviction)
after “this section” insert “and section 133A”.
(7)
After section 133 insert—
“133A
Miscarriages of justice: amount of compensation
(1)
This section applies where an assessor is required to assess the amount
35
of compensation payable to or in respect of a person under section 133
for a miscarriage of justice.
(2)
In assessing so much of any compensation payable under section 133 as
is attributable to suffering, harm to reputation or similar damage, the
assessor must have regard in particular to—
40
(a)
the seriousness of the offence of which the person was
convicted and the severity of the punishment suffered as a
result of the conviction, and

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(b)
the conduct of the investigation and prosecution of the offence.
(3)
The assessor may make from the total amount of compensation that the
assessor would otherwise have assessed as payable under section 133
any deduction or deductions that the assessor considers appropriate by
reason of either or both of the following—
5
(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.
10
(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.
15
(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—
(a)
£1 million in a case to which section 133B applies, and
20
(b)
£500,000 in any other case.
(6)
The total amount of compensation payable under section 133 for a
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
25
earnings according to the latest figures published by the Office of
National Statistics at the time of the assessment.
(7)
The Secretary of State may by order made by statutory instrument
amend subsection (5) or (6) so as to alter any amount for the time being
specified as the overall compensation limit or the earnings
30
compensation limit.
(8)
No order may be made under subsection (7) unless a draft of the order
has been laid before and approved by a resolution of each House of
Parliament.
133B
Cases where person has been detained for at least 10 years
35
(1)
For the purposes of section 133A(5) this section applies to any case
where the person concerned (“P”) has been in qualifying detention for
a period (or total period) of at least 10 years by the time when—
(a)
the conviction is reversed, or
(b)
the pardon is given,
40

as mentioned in section 133(1).
(2)
P was “in qualifying detention” at any time when P was detained in a
prison, a hospital or at any other place, if P was so detained—
(a)
by virtue of a sentence passed in respect of the relevant offence,
(b)
under mental health legislation by reason of P’s conviction of
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that offence (disregarding any conditions other than the fact of

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the conviction that had to be fulfilled in order for P to be so
detained), or
(c)
as a result of P’s having been remanded in custody in
connection with the relevant offence or with any other offence
the charge for which was founded on the same facts or evidence
5
as that for the relevant offence.
(3)
In calculating the period (or total period) during which P has been in
qualifying detention as mentioned in subsection (1), no account is to be
taken of any period of time during which P was both—
(a)
in qualifying detention, and
10
(b)
in excluded concurrent detention.
(4)
P was “in excluded concurrent detention” at any time when P was
detained in a prison, a hospital or at any other place, if P was so
detained—
(a)
during the term of a sentence passed in respect of an offence
15
other than the relevant offence,
(b)
under mental health legislation by reason of P’s conviction of
any such other offence (disregarding any conditions other than
the fact of the conviction that had to be fulfilled in order for P to
be so detained), or
20
(c)
as a result of P’s having been remanded in custody in
connection with an offence for which P was subsequently
convicted other than—
(i)
the relevant offence, or
(ii)
any other offence the charge for which was founded on
25
the same facts or evidence as that for the relevant
offence.
(5)
But P was not “in excluded concurrent detention” at any time by virtue
of subsection (4)(a), (b) or (c) if P’s conviction of the other offence
mentioned in that provision was quashed on appeal, or a pardon was
30
given in respect of it.
(6)
In this section—
“mental health legislation” means—
(a)
Part 3 of the Mental Health Act 1983,
(b)
Part 3 of the Mental Health (Northern Ireland) Order
35
1986, or
(c)
the provisions of any earlier enactment corresponding
to Part 3 of that Act or Part 3 of that Order;
“the relevant offence” means the offence in respect of which the
conviction is quashed or the pardon is given (but see subsection
40
(7));
“remanded in custody” is to be read in accordance with
subsections (8) and (9);
“reversed” has the same meaning as in section 133 of this Act.
(7)
If, as a result of the miscarriage of justice—
45
(a)
two or more convictions are reversed, or
(b)
a pardon is given in respect of two or more offences,

“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
meaning given by section 242(2) of the Criminal Justice Act 2003, but
that subsection applies for the purposes of this section as if any
reference there to a provision of the Mental Health Act 1983 included a
reference to any corresponding provision of any earlier enactment.
5
(9)
In relation to Northern Ireland, “remanded in custody” means—
(a)
remanded in or committed to custody by an order of a court, or
(b)
remanded, admitted or removed to hospital under Article 42,
43, 45 or 54 of the Mental Health (Northern Ireland) Order 1986
or under any corresponding provision of any earlier
10
enactment.”
(8)
In section 172 (extent) in subsection (3) (provisions extending to Northern
Ireland as well as England and Wales) for “section 133” substitute “sections 133
to 133B”.
(9)
This section extends to England and Wales and Northern Ireland.
15
61
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—
(a)
subsection (1), and
20
(b)
the repeal of section 8 of that Act in Part 4 of Schedule 28,

extend to England and Wales and Northern Ireland.
Part 5
Criminal law
Pornography etc.
25
62
Possession of extreme pornographic images
(1)
It is an offence for a person to be in possession of an extreme pornographic
image.
(2)
An “extreme pornographic image” is an image which is both—
(a)
pornographic, and
30
(b)
an extreme image.
(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
arousal.
(4)
Where (as found in the person’s possession) an image forms part of a series of
35
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.
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(5)
So, for example, where—
(a)
an image forms an integral part of a narrative constituted by a series of
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
5
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
taken by itself.
(6)
An “extreme image” is an image which—
10
(a)
falls within subsection (7), and
(b)
is grossly offensive, disgusting or otherwise of an obscene character.
(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,
15
(b)
an act which results, or is likely to result, in serious injury to a person’s
anus, breasts or genitals,
(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),
20

and a reasonable person looking at the image would think that any such person
or animal was real.
(8)
In this section “image” means—
(a)
a moving or still image (produced by any means); or
(b)
data (stored by any means) which is capable of conversion into an
25
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—
(a)
in England and Wales, except by or with the consent of the Director of
30
Public Prosecutions; or
(b)
in Northern Ireland, except by or with the consent of the Director of
Public Prosecutions for Northern Ireland.
63
Exclusion of classified films etc.
(1)
Section 62 does not apply to excluded images.
35
(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
(b)
it is of such a nature that it must reasonably be assumed to have been
40
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
in subsection (3)(b) is to be determined by reference to—
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(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 62(5) applies in connection with determining that question as it
applies in connection with determining whether an image is pornographic.
5
(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
any person, or
10
(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
authority to have regard to section 62 (along with other enactments creating
15
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
of which a classification certificate has been issued by a designated
20
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);
“designated authority” means an authority which has been designated by
the Secretary of State under section 4 of that Act;
25
“extract” includes an extract consisting of a single image;
“image” and “pornographic” have the same meanings as in section 62;
“recording” means any disc, tape or other device capable of storing data
electronically and from which images may be produced (by any
means).
30
(8)
Section 22(3) of the Video Recordings Act 1984 (effect of alterations) applies for
the purposes of this section as it applies for the purposes of that Act.
64
Defence
(1)
Where a person is charged with an offence under section 62, it is a defence for
the person to prove any of the matters mentioned in subsection (2).
35
(2)
The matters are—
(a)
that the person had a legitimate reason for being in possession of the
image concerned;
(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;
40
(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
(ii)
did not keep it for an unreasonable time.
(3)
In this section “extreme pornographic image” and “image” have the same
45
meanings as in section 62.