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Criminal Justice and Immigration Bill
Part 5 — Criminal law

52

 

65      

Penalties etc. for possession of extreme pornographic images

(1)   

This section has effect where a person is guilty of an offence under section 62.

(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;

5

(b)   

on conviction on indictment, to imprisonment for a term not exceeding

3 years or a fine or both.

(3)   

If the offence relates to an image that does not depict any act within section

62(7)(a) or (b), the offender is liable—

(a)   

on summary conviction, to imprisonment for a term not exceeding the

10

relevant period or a fine not exceeding the statutory maximum or both;

(b)   

on conviction on indictment, to imprisonment for a term not exceeding

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;

15

(b)   

in relation to Northern Ireland, 6 months.

66      

Special rules relating to providers of information society services

Schedule 14 makes special provision in connection with the operation of

section 62 in relation to persons providing information society services within

the meaning of that Schedule.

20

67      

Indecent photographs of children

(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”.

25

(3)   

After section 7(4) (meaning of photograph), insert—

“(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,

30

but

(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

35

which is capable of conversion into an image within paragraph

(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-

40

photograph” substitute “an indecent pseudo-photograph”.

 
 

Criminal Justice and Immigration Bill
Part 5 — Criminal law

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68      

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

5

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)—

10

(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

15

(b)   

data stored on a computer disc or by other electronic means

which is capable of conversion into an image within paragraph

(a);

   

and paragraph (3)(c) applies in relation to such an image as it applies in

relation to a pseudo-photograph.”

20

(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”.

69      

Maximum penalty for publication etc. of obscene articles

In section 2(1)(b) of the Obscene Publications Act 1959 (c. 66) (maximum

25

penalty on indictment for publication etc. of obscene articles) for “three years”

substitute “five years”.

Sexual offences

70      

Offences committed outside the United Kingdom

(1)   

For section 72 of the Sexual Offences Act 2003 (c. 42) substitute—

30

“72     

Offences outside the United Kingdom

(1)   

If—

(a)   

a United Kingdom national does an act in a country outside the

United Kingdom, and

(b)   

the act, if done in England and Wales or Northern Ireland,

35

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.

(2)   

If—

(a)   

a United Kingdom resident does an act in a country outside the

40

United Kingdom,

 
 

Criminal Justice and Immigration Bill
Part 5 — Criminal law

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(b)   

the act constitutes an offence under the law in force in that

country, and

(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

5

Kingdom of that sexual offence.

(3)   

If—

(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,

10

(b)   

the act constituted an offence under the law in force in that

country,

(c)   

the act, if done in England and Wales or Northern Ireland,

would have constituted a sexual offence to which this section

applies, and

15

(d)   

the person meets the residence or nationality condition at the

relevant time,

   

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.

20

(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)

25

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

30

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

35

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;

40

“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

45

(c)   

a British protected person within the meaning of that

Act;

 
 

Criminal Justice and Immigration Bill
Part 5 — Criminal law

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“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.”

(2)   

Schedule 2 to that Act (list of sexual offences to which section 72 applies) is

amended as follows.

5

(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

47 to 50;

(b)   

an offence under any of sections 1 to 4, 30 to 41 and 61

10

where the victim of the offence was under 18 at the

time of the offence;”;

(b)   

in paragraph (c), for “16” substitute “18”; and

(c)   

in paragraph (d), omit “in relation to a photograph or pseudo-

photograph showing a child under 16”.

15

(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”.

71      

Grooming and adoption

Schedule 15

20

(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

(c)   

amends the Adoption Act 1976 (c. 36) in relation to offences under

sections 64 and 65 of the Sexual Offences Act 2003.

25

Hatred on the grounds of sexual orientation

72      

Hatred on the grounds of sexual orientation

Schedule 16

(a)   

amends Part 3A of the Public Order Act 1986 (c. 64) (hatred against

persons on religious grounds) to make provision about hatred against

30

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

73      

Offences relating to the physical protection of nuclear material and nuclear

facilities

35

(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,

and

(b)   

offences relating to the physical protection of nuclear facilities,

40

 
 

Criminal Justice and Immigration Bill
Part 5 — Criminal law

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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).

Self-defence etc

74      

Reasonable force for purposes of self-defence etc.

5

(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

(b)   

the question arises whether the degree of force used by D against a

person (“V”) was reasonable in the circumstances.

10

(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

(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).

15

(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

them to be, and subsections (4) to (8) also apply in connection with deciding

that question.

(4)   

If D claims to have held a particular belief as regards the existence of any

20

circumstances—

(a)   

the reasonableness or otherwise of that belief is relevant to the question

whether D genuinely held it; but

(b)   

if it is determined that D did genuinely hold it, D is entitled to rely on

it for the purposes of subsection (3), whether or not—

25

(i)   

it was mistaken, or

(ii)   

(if it was mistaken) the mistake was a reasonable one to have

made.

(5)   

But subsection (4)(b) does not enable D to rely on any mistaken belief

attributable to intoxication that was voluntarily induced.

30

(6)   

The degree of force used by D is not to be regarded as having been reasonable

in the circumstances as D believed them to be if it was disproportionate in

those circumstances.

(7)   

In deciding the question mentioned in subsection (3) the following

considerations are to be taken into account (so far as relevant in the

35

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

40

constitutes strong evidence that only reasonable action was taken by

that person for that purpose.

 
 

Criminal Justice and Immigration Bill
Part 5 — Criminal law

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(8)   

Subsection (7) 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).

(9)   

This section is intended to clarify the operation of the existing defences

mentioned in subsection (2).

5

(10)   

In this section—

(a)   

“legitimate purpose” means—

(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

10

subsection (2)(b);

(b)   

references to self-defence include acting in defence of another person;

and

(c)   

references to the degree of force used are to the type and amount of

force used.

15

Unlawfully obtaining etc. personal data

75      

Power to alter penalty for unlawfully obtaining etc. personal data

(1)   

The Secretary of State may by order provide for a person who is guilty of an

offence under section 55 of the Data Protection Act 1998 (c. 29) (unlawful

obtaining etc. of personal data) to be liable—

20

(a)   

on summary conviction, to imprisonment for a term not exceeding the

specified period or to a fine not exceeding the statutory maximum or to

both,

(b)   

on conviction on indictment, to imprisonment for a term not exceeding

the specified period or to a fine or to both.

25

(2)   

In subsection (1)(a) and (b) “specified period” means a period provided for by

the order but the period must not exceed—

(a)   

in the case of summary conviction, 12 months (or, in Northern Ireland,

6 months), and

(b)   

in the case of conviction on indictment, two years.

30

(3)   

The Secretary of State must ensure that any specified period for England and

Wales which, in the case of summary conviction, exceeds 6 months is to be read

as a reference to 6 months so far as it relates to an offence committed before the

commencement of section 282(1) of the Criminal Justice Act 2003 (increase in

sentencing powers of magistrates’ courts from 6 to 12 months for certain

35

offences triable either way).

(4)   

Before making an order under this section, the Secretary of State must

consult—

(a)   

the Information Commissioner,

(b)   

such media organisations as the Secretary of State considers

40

appropriate, and

(c)   

such other persons as the Secretary of State considers appropriate.

(5)   

An order under this section may, in particular, amend the Data Protection Act

1998.

 
 

 
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