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Clause 50: Encouraging or assisting suicide (Northern Ireland)
351. This clause makes provision for Northern Ireland equivalent to clause 49.
Clause 51 and Schedule 10: Encouraging or assisting suicide: providers of information society services
352. Clause 51 and Schedule 10 ensure that the provisions outlined in clauses 49 and 50 above are consistent with the UK’s obligations under the E-Commerce Directive.
353. Schedule 10 ensures that providers of information society services who are established in England, Wales or Northern Ireland are covered by the offence of encouraging or assisting suicide even when they are operating in other European Economic Area states. Paragraphs 4 to 6 of the Schedule provide exemptions for internet service providers from the offence in limited circumstances, such as where they are acting as mere conduits for information that is capable, and provided with the intention, of encouraging or assisting suicide or are storing it as caches or hosts.
Chapter 2: Images of Children
Clause 52: Prohibited images
354. Subsection (1) creates a new offence in England and Wales and Northern Ireland of possession of a prohibited image of a child.
355. Subsections (2) to (8) set out the definition of a “prohibited image of a child”. Under subsection (2) in order to be a prohibited image, an image must be pornographic, fall within subsection (6) and be grossly offensive, disgusting or otherwise of an obscene character. The definition of “pornographic” is set out in subsection (3). An image must be of such a nature that it must reasonably be assumed to have been produced solely or mainly for the purpose of sexual arousal. Whether this threshold has been met will be an issue for a jury to determine. Subsection (4) makes it clear that where (as found in a person’s possession) an individual image forms part of a series of images, the question of whether it is pornographic must be determined by reference both to the image itself and the context in which it appears in the series of images.
356. Subsection (5) expands on subsection (4). It provides that, where an image is integral to a narrative (for example a mainstream or documentary film) which when it is taken as a whole could not reasonably be assumed to be pornographic, the image itself may not be pornographic, even though if considered in isolation the contrary conclusion might have been reached.
357. Subsection (6) and (7) provide that a prohibited image for the purposes of the offence is one which focuses solely or principally on a child’s genitals or anal region or portrays any of a list of acts set out in subsection (7).
358. Subsection (8) provides that for the purposes of subsection (7) penetration is a continuing act from entry to withdrawal.
359. Subsection (9) requires proceedings to be instituted by or with the consent of the Director of Public Prosecutions.
Clause 53: Exclusion of classified film, etc
360. This clause provides an exclusion from the scope of the offence under clause 52 for excluded images.
361. An “excluded image” is defined in subsection (2) as an image which forms part of a series of images contained in a recording of the whole or part of a classified work. A “recording” is defined in subsection (7) as any disc, tape or other device capable of storing data electronically and from which images may be produced. This therefore includes images held on a computer. A classified work is a video work in respect of which a classification certificate has been issued by an authority designated under section 4 of the Video Recordings Act 1984.
362. The effect of the exclusion is that a person who has a video recording of a film which has been classified by the British Board of Film Classification (BBFC), and which contains images that, despite their context, might amount to a “prohibited image of a child” for the purposes of the clause 52 offence, will not be liable for prosecution for the offence.
363. However, the effect of subsection (3) is that the exclusion from the scope of the offence does not apply in respect of images contained within extracts from classified films which must reasonably be assumed to have been extracted solely or principally for the purpose of sexual arousal. Essentially the exemption for an image forming part of a classified work is lost where the image is extracted from that work for pornographic purposes. Subsection (7) defines “extract” to include a single image.
364. Subsection (4) provides that when an extracted image is one of a series of images, in establishing whether or not it is of such a nature that it must reasonably be assumed to have been extracted for the purpose of sexual arousal, regard is to be had to the image itself and to the context it which it appears in the series of images. This is the same test as set out in subsection (4) of clause 52. Subsection (5) of clause 52 also applies in determining this question.
365. The effect of subsection (5) is that, in determining whether a recording is a recording of a whole or part of a classified work, alterations due to technical reasons (such as a failure in the recording system), due to inadvertence (such as setting the wrong time for a recording) or due to the inclusion of extraneous material (such as advertisements), are to be disregarded.
366. Subsection (6) makes it clear that nothing in clause 53 affects any duty of a designated authority to take into account the offence in clause 52 when considering whether to issue a classification certificate in respect of a video work.
367. Subsection (7) sets out the definitions used in this section. Subsection (8) states that section 22(3) of the Video Recordings Act 1984 applies. The effect of section 22(3) is that, where an alteration is made to a video work in respect of which a classification certificate has been issued, the classification certificate does not apply to the altered work.
Clause 54: Defences
368. This clause sets out a series of defences to the clause 52 offence of possession of prohibited images of children. These defences are set out in subsection (1). They are the same as those for the offence of possession of indecent images of children under section 160(2) of the Criminal Justice Act 1988 and Article 15(2) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988. They are:
- that the person had a legitimate reason for being in possession of the image (this will cover those who can demonstrate that their legitimate business means that they have a reason for possessing the image);
- that the person had not seen the image and did not know, or have reasonable cause to suspect, that the images held were prohibited images of children (this will cover those who are in possession of offending images but are unaware of the nature of the images); and
- that the person had not asked for the image - it having been sent without request - and that he or she had not kept it for an unreasonable period of time (this will cover those who are sent unsolicited material and who act quickly to delete it or otherwise get rid of it).
369. Subsection (2) provides that “prohibited image” in this clause has the same meaning as in clause 52.
Clause 55: Meaning of “image” and “child”
370. This clause defines “image” and “child” for the purposes of clauses 52, 53 and 54. These definitions are applied to these clauses by subsection (1).
371. Subsection (2) sets out the definition of an image. It states that for the purposes of this offence, “an image” includes still images such as photographs, or moving images such as those in a film. The term “image” also incorporates any type of data, including that stored electronically (as on a computer disk), which is capable of conversion into an image. This covers material available on computers, mobile phones or any other electronic device.
372. Subsection (3) provides that “image” does not include an indecent photograph or indecent pseudo-photograph of a child, as these are subject to other controls. Subsection (4) defines “indecent photograph” and “indecent pseudo-photograph” in accordance with the Protection of Children Act 1978 and for Northern Ireland, the Protection of Children (Northern Ireland) Order 1978. “Indecent photograph” includes an indecent film, a copy of a photograph or film, a negative and electronic data capable of conversion into a photograph. It also includes a tracing or other image derived from the whole or part of a photograph or pseudo-photograph and electronic data capable of conversion into such an image. A pseudo-photograph is an image, whether made by computer-graphics or otherwise, which appears to be a photograph and includes a copy of a pseudo-photograph and electronic data capable of conversion into a pseudo-photograph.
373. Subsection (5) defines a child to be a person under 18 years of age.
374. Subsection (6) requires that a person in an image is to be treated as a child if the impression conveyed by the image is that the person shown is a child, or the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not of a child.
375. Subsection (7) provides that references to an image of a person include references to an imaginary person, and subsection (8) makes it clear that references to an image of a child include references to an imaginary child.
Clause 56: Penalties
376. The penalties that will apply to persons found guilty of an offence under clause 52 are set out in this clause.
377. In England and Wales and Northern Ireland on conviction on indictment the maximum sentence is imprisonment for three years.
378. The maximum sentence on summary conviction of the offence in England and Wales is six months’ imprisonment. On the commencement of section 154(1) of the 2003 Act, the maximum sentence on summary conviction in England and Wales will rise to 12 months (see paragraph 14(1) of Schedule 20 to the Bill). The maximum custodial penalty on summary conviction in Northern Ireland is six months.
Clause 57: Entry, search, seizure and forfeiture
379. Subsection (1) applies the entry, search, seizure and forfeiture powers of the Protection of Children Act 1978 to prohibited images of children. Subsection (2) applies the equivalent Northern Ireland legislation.
380. Subsection (3) applies these powers to prohibited images to which clause 52 applies.
381. Paragraph 14(2) of Schedule 20 to the Bill provides that these powers of forfeiture have effect regardless of when the images were lawfully seized.
Clause 58 and Schedule 11: Special rules relating to providers of information society services
382. Clause 58 and Schedule 11 ensure that the provisions outlined above which make it an offence to possess prohibited images of children are consistent with the UK’s obligations under the E-Commerce Directive.
383. Under Schedule 11 providers of information society services who are established in England, Wales or Northern Ireland are covered by the new offence even when they are operating in other European Economic Area states. Paragraphs 3 to 5 of the Schedule provide exemptions for internet service providers from the offence of possession of prohibited images of children in limited circumstances, such as where they are acting as mere conduits for such material or are storing it as caches or hosts.
Clause 59: Indecent pseudo-photographs of children: marriage etc
384. Subsection (1) amends section 1A of the Protection of Children Act 1978 to extend the “marriage and other relationships” defence to offences under that Act so that it applies in relation to “pseudo-photographs”. The defence already applies to an offence under section 1(1)(a) of the Protection of Children Act 1978 of taking or making an indecent photograph of a child and to an offence under section 1(1)(b) or (c) of that Act relating to possession and distribution of an indecent photograph of a child.
385. Subsection (2) amends section 160A of the Criminal Justice Act 1988 to extend the “marriage and other relationships” defence to offences under that Act to “pseudo-photographs”. The defence already applies to an offence under section 160 of the Criminal Justice Act 1988 relating to possessing an indecent photograph of a child.
386. Subsection (3) amends Article 15A of the Criminal Justice (Evidence etc.) (Northern Ireland) Order 1988 (SI 1988/1847 (NI.17)) to extend the “marriage and other relationships” defence to offences under that Order to “pseudo-photographs”. The defence already applies to an offence under Article 15 of the Criminal Justice (Evidence etc.) (Northern Ireland) Order 1988 (SI 1988/1847 (NI 17)) relating to possession of an indecent photograph of a child.
387. Subsection (4) amends Article 3B of the Protection of Children (Northern Ireland) Order 1978 (SI 1978/1047 (NI 17)) to extend to the “marriage and other relationships” defence to offences under that Order “pseudo-photographs”. The defence already applies to an offence under Article 3(1)(a) of the Protection of Children (Northern Ireland) Order 1978 (SI 1978/1047 (NI 17)) of taking or making an indecent photograph of a child and to Article 3(1)(b) or (c) of that Order relating to possession and distribution of an indecent photograph of a child.
Chapter 3: Other offences
Clause 60: Conspiracy
388. Clause 60 amends section 1A of the Criminal Law Act 1977 which sets out the conditions for the offence of “conspiracy to commit offences outside the United Kingdom”. As a result section 1A will apply to conspiracies to commit offences “outside England and Wales”, thereby including conspiracies to commit offences in Scotland or Northern Ireland (which are not currently covered by section 1A).
389. This change is achieved by widening the scope of the first condition in section 1A(2) of the Criminal Law Act 1977, which currently applies only to agreements to pursue a course of conduct that would involve an act or event intended to take place in a country or territory outside the United Kingdom. This condition will now be satisfied where the act or event is intended to take place outside England and Wales and therefore will include acts or events in Scotland or Northern Ireland.
390. The clause also substitutes 3 new subsections for section 1A(14) of the Criminal Law Act 1977. These ensure that the changes made by the clause do not have retrospective effect. Any agreement entered into during the period beginning on 4th September 1998 and ending with the date that the clause comes into force will be subject to the current wording of section 1A(2).
391. Subsection (2) makes equivalent changes for Northern Ireland.
Clause 61: Hatred against persons on grounds of sexual orientation
392. This clause removes section 29JA of the Public Order Act 1986, which provides that, for the purposes of the offence of stirring up hatred on the grounds of sexual orientation, discussion or criticism of sexual conduct or practices or urging persons to refrain from or modify such conduct is not, in itself, to be taken to be threatening or intended to stir up hatred. The removal of the section will not affect the threshold required for the offence to be made out.
Part 3 - Criminal Evidence, Investigations and Procedure
Chapter 1: Anonymity in investigations
Clause 62: Qualifying offences
393. Subsection (1) stipulates that an offence is a qualifying offence if it is listed in subsection (2) and the condition in subsection (3) is satisfied in relation to it. The offences listed in subsection (2) are murder and manslaughter, and the condition in subsection (3) is that the death was caused by being shot with a firearm, and/or by being injured with a knife. The purpose of defining qualifying offence in this way is to limit investigation anonymity orders so that they are available only in respect of investigations concerning suspected homicides (murder and manslaughter) where death was caused by gun and/or knife.
394. Subsections (4) gives power to the Secretary of State to amend subsections (2) and (3) by order so as to alter what is a qualifying offence. The order making power is subject to the affirmative resolution procedure (see clause 159(4)(a) and (5)).
Clause 63: Qualifying criminal investigations
395. Subsection (1) defines a qualifying criminal investigation as one which is conducted by an investigating authority, wholly or in part with a view to ascertaining whether a person should be charged with a qualifying offence (as defined in clause 62), or whether a person charged with a qualifying offence is guilty of it. Investigating authorities are listed in subsection (2). They are:
- a police force in England and Wales;
- the British Transport Police Force;
- the Serious Organised Crime Agency; or
- the Police Service of Northern Ireland
396. Subsection (3) gives power to the Secretary of State to amend subsection (2) by order so as to alter the list of investigating authorities. The power is linked to (although not contingent upon) the power to amend clause 62. If that power is exercised so as to add a new offence to subsection (2) of that clause, the power in clause 63, may need to be exercised to add a person not already listed in subsection (2) as an investigating authority, if that person has power to investigate the newly added offence. This order making power is subject to the affirmative resolution procedure (see clause 159(4)(a) and (5)).
397. Subsection (4) provides that an order made under subsection (3) may modify any provision of this Chapter.
Clause 64: Investigation anonymity orders
398. Subsection (1) defines an investigation anonymity order. An investigation anonymity order is an order made by a justice of the peace, in relation to a person specified in the order, prohibiting the disclosure of any information that (a) identifies the specified person as a person who is or was able or willing to assist a qualifying criminal investigation specified in the order, or (b) that might enable the specified person to be identified as such a person. The order applies to the officers and others involved in the investigation, and indeed to anybody else, including the specified person. The purpose of the order is to prevent disclosure of information relating to the identity of an individual who is or was able or willing to assist a qualifying criminal investigation, and thus to protect an informant from harm and to provide reassurance to a reluctant informant that their identity will be protected by a court order.
399. Subsection (3) provides that an investigation anonymity order is not contravened if a person discloses information identifying the specified person, or which might enable the specified person to be identified, as someone is or was able or willing to assist a specified qualifying criminal investigation, if the person disclosing the information does not know and has no reason to suspect that an order is in force.
400. Subsection (4) provides that an investigation anonymity order is not contravened if a person discloses information which might enable the specified person to be identified as someone who is or was able or willing to assist a specified qualifying criminal investigation, if the person disclosing the information does not know, and has no reason to suspect, that the information might enable the specified person to be so identified.
401. Subsections (5) and (6) provide that an investigation anonymity order is not contravened if a person (“A”) discloses the fact that an investigation anonymity order has been made to another person (“B”), where A knows that B is aware that the informant for whose benefit the order was made is or was able or willing to help with an investigation.
402. Subsection (7) provides that an investigation anonymity order is not contravened where disclosure of information is to a person who is involved in the specified qualifying criminal investigation or in the prosecution of an offence to which the instigation relates, and the disclosure is made for the purposes of the investigation or prosecution.
403. Subsection (8) provides that an investigation anonymity order is not contravened where disclosure is required by any enactment or rule of law, or where required by a court order. However, subsection (9) provides that a person may not rely on subsection (8) in a case where (a) it might have been determined that the person was required or permitted to withhold the information but (b) the person disclosed the information without there having been a determination as to whether the person was required or permitted to withhold the information. The effect of subsection (9) on subsection (8) is to limit the protection based on being obliged to disclose to cases where there is no exception to that obligation and cases where an exception that could have applied to protect the informant (such as public interest immunity) has been raised.
404. Subsection (10) provides that disclosing information in contravention of an investigation anonymity order is a criminal offence. A person who is guilty of this offence is liable to imprisonment and/or a fine. On summary conviction the maximum term of imprisonment is 12 months (or, in Northern Ireland, 6 months). Following conviction on indictment, the maximum term of imprisonment is 5 years. However, subsections (3) to (8) set out the circumstances in which an order will not be contravened.
405. Subsection (13) defines the term “specified” as meaning specified in the investigation anonymity order.
Clause 65: Applications
406. Subsection (1) provides that an application must be made to a justice of the peace. A justice of the peace includes any person acting as such, whether a lay justice, or a judge who is a District Judge (Magistrates’ Court) (see section 25 of the Courts Act 2003), or a Crown Court judge (see section 66 of the Courts Act 2003).
407. The subsection also restricts the availability of investigation anonymity orders to investigations conducted by certain organisations. Only certain persons in those organisations (and persons to whom they delegate the function under clause 69) may apply for an order. Those persons are listed in subsection (1)(a) to (g):
(a) in a case where a police force in England and Wales is conducting the qualifying criminal investigation, the chief officer of police of the police force;
(b) in a case where the British Transport Police Force is conducting the qualifying criminal investigation, the Chief Constable of the British Transport Police Force;
(c) in a case where the Serious Organised Crime Agency is conducting the qualifying criminal investigation, the Director General of the Serious Organised Crime Agency;
(d) in a case where the Police Service of Northern Ireland is conducting the qualifying criminal investigation, the Chief Constable of the Police Service of Northern Ireland;
(e) the Director of Public Prosecutions;
(f) the Director of Revenue and Customs Prosecutions; and
(g) the Director of Public Prosecutions for Northern Ireland.
408. Subsection (2) makes it clear that the applicant is not obliged to give notice of the application to a suspect or someone who has been charged with an offence subject to a qualifying criminal investigation (or their legal representatives). Such notice could defeat the purpose of the order.
409. Subsection (3) requires the applicant to inform the justice of the peace of the identity of the person whose identity is to be protected by the investigation anonymity order. However, the justice of the peace can direct the identity of that person to be withheld.
410. Subsection (4) permits a justice of the peace to grant an application on the papers, without an oral hearing. The Government expects, however, that in the vast majority of cases there will be an oral hearing.
411. Subsection (5) provides that where a justice of the peace determines an application without a hearing the designated officer in relation to that justice of the peace must notify the applicant about the decision, and subsection (6) makes similar provision for Northern Ireland.
412. Subsection (7) provides the Secretary of State with a power to amend subsection (1) by order. This will allow the persons who may make an application to be altered. The order-making power will also allow for consequential changes where amendments are made to the list of offences or conditions specified in relation to qualifying offences in clause 62, or for amendments to reflect changes in organisations that investigate qualifying offences. Subsection (8) provides that an order made under subsection (7) may modify any provision of this Chapter.
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