Office of Public Sector Information
386.The amendments made by Schedule 3 to the 2003 Act achieve this through, firstly, a revised procedure (called allocation) for deciding whether a case that is triable either way should be heard in the magistrates’ court or in the Crown Court; secondly, abolition of committal and transfer proceedings and the substitution of a sending procedure like that already used to get indictable-only cases to the Crown Court; and, thirdly, abolition of the general power, contained in section 3 of the 2000 Act, to commit for sentence, except on a guilty plea “before venue” or where an indefinite or extended sentence is required. Under the scheme, the general power of committal for sentence is abolished for cases that magistrates decide to hear.
387.Most of the provisions of Schedule 3 to the 2003 Act are not yet in force.
388.The principal amendment in Schedule 13, which is made by paragraph 7, is to preserve the general power of a magistrates' court to commit to the Crown Court for sentence an offender whom it has convicted after a summary trial, if it considers that a Crown Court sentence should be available. Paragraph 22 of Schedule 3 to the 2003 Act provided for this general power under section 3 of the 2000 Act to be replaced with a more limited power. As set out above, this limited the power to commit for sentence to cases where a defendant enters a guilty plea “before venue” (that is, before the court has made an allocation decision) to a serious either way offence which is beyond the magistrates’ powers of punishment. Paragraph 22 has not been brought into force and paragraph 7 of Schedule 13 to the Act removes it from Schedule 3 (so that the general power in section 3 of the 2000 Act will be preserved).
389.Although the general power to commit for sentence is preserved, paragraph 8 of Schedule 13 amends Schedule 3 to the 2003 Act to make amendments of section 3 of the 2000 Act. The most important of these is the repeal of subsection (2)(b). This subsection refers to the longer than commensurate sentence for violent and sexual offences in section 80 of the 2000 Act. As that section has now been repealed (subject to savings) and replaced by the dangerousness provisions in Chapter 5 of Part 12 of the 2003 Act, it is appropriate to repeal section 3(2)(b).
390.Paragraph 3 modifies the warning about the possibility of committal for sentence that is to be given to a defendant offered summary trial under section 20(2) of the Magistrates’ Courts Act 1980. Under that section, as substituted by paragraph 6 of Schedule 3 to the 2003 Act, the court must explain to the defendant that the case appears suitable for summary trial, that he can consent to be tried summarily or choose to be tried on indictment; and, in the case of a specified offence, if he consents to be tried summarily and is convicted, he may be committed to the Crown Court for sentence if he qualifies for a sentence of imprisonment for public protection or an extended sentence. The modified warning makes clear that the possibility of committal to the Crown Court for sentence also exists if the magistrates’court considers that a Crown Court sentence should be available (because the magistrates’ sentencing powers are inadequate). The amendment made by paragraph 3 is in consequence of the restoration of the general power to commit for sentence (as discussed in the preceding paragraphs).
391.The remaining paragraphs make minor amendments to Schedule 3 to the 2003 Act.
392.Section 54 amends section 11 of the Magistrates’ Courts Act 1980, which makes provision for the circumstances in which a magistrates' court may proceed in the absence of the defendant.
393.Subsection (2) amends subsection (1) of section 11 of the Magistrates’ Courts Act 1980. The present subsection (1) provides that, where at the time and place appointed for trial or adjourned trial the prosecutor appears but the accused does not, the court has a discretion to proceed in the accused's absence. New subsection (1)(b) provides that in those circumstances, where the accused is 18 or over, the court must proceed with a trial in the absence of the accused unless it would be contrary to the interests of justice. Where the accused is under 18, the court's discretion to proceed in absence is unchanged (new subsection (1)(a)).
394.Subsection (3) inserts a new subsection (2A) into section 11 of the Magistrates’ Courts Act 1980. This provides that the court may not proceed if it considers that there is an acceptable reason for the accused’s absence.
395.Subsection (4) amends subsections (3) and (4) of section 11 the Magistrates’ Courts Act 1980 to reflect the fact that they now only apply to proceedings specified in subsection (5) of that section.
396.Subsection (5) inserts into section 11 of the Magistrates’ Courts Act 1980 a new subsection (3A) which provides that, where a court does impose a custodial sentence in the offender's absence, the person must be brought before the court before being taken to prison to start serving the sentence.
397.Subsection (6) inserts three new subsections into section 11 of the Magistrates’ Courts Act 1980: (5), (6) and (7).
New subsection (5) provides that the two limits on magistrates’ courts’ powers that are specified in subsections (3) and (4) apply where proceedings have been issued either by written charge and requisition or by way of an information followed by issue of a summons (i.e. in cases other than where the defendant was bailed to appear before the court on a certain date). In those cases, the court cannot pass a custodial sentence in the defendant’s absence, and cannot impose any disqualification unless they have already adjourned. Where a defendant was bailed to return to the court, those restrictions do not apply.
New subsection (6) makes clear that the court is not required to enquire into the reason for an accused’s absence before deciding whether to proceed in his absence, although it is intended that the court should take account of facts known to it (eg about the effect of severe weather on public transport) in deciding whether an acceptable reason for the accused’s absence exists.
New subsection (7) requires the court to state in open court its reasons for not proceeding in absence where the accused is 18 or over.
398.This section amends section 7A of the Prosecution of Offences Act 1985, which sets out the powers and rights of audience of a Crown Prosecutor which a member of staff of the CPS who is not a Crown Prosecutor may have if he or she is designated under that section by the Director of Public Prosecutions.
399.The effect of the amendments made by subsections (2) and (4) is that members of staff designated under section 7A will, in addition to their existing powers, be able to: (a) conduct trials of non-imprisonable summary offences in magistrates’ courts, (b) conduct proceedings in magistrates’ courts (other than trials) in relation to certain offences previously excluded from their remit (for example, an offence triable only on indictment or one for which the accused has elected to be tried by jury, or the court has found that it should be so tried), (c) conduct applications or other proceedings relating to “preventative civil orders”, and (d) conduct certain proceedings assigned to the Director of Public Prosecutions by the Attorney General under section 3(2)(g) of the Prosecution of Offences Act 1985 (these include proceedings on an application under section 2 of the Dogs Act 1871).
400.Subsection (3) amends subsection (5) of section 7A to make consequential changes to the definition of “bail in criminal proceedings” and to define preventative civil orders. These include restraining orders, parenting orders and other civil orders which follow criminal proceedings (such as ASBOs, drinking banning orders and football banning orders). The new subsection (5A) reproduces the existing definition of “trial” for the purposes of the section.
401.Subsection (5) inserts new subsections (8), (9) and (10) into section 7A. Subsections (8) and (9) provide that from 1 May 2011 Associate Prosecutors (formerly known as Designated Caseworkers) will cease to be exempt from the regulatory framework for persons who engage in legal activities provided for in the Legal Services Act 2007. Subsection (10) is included in case consequential amendments are required to the Legal Services Act 2007 to ensure that Associate Prosecutors can properly be catered for within the regulatory framework provided for by that Act. An order-making power (subject to the affirmative procedure) would enable appropriate modifications to be made to the 2007 Act, and if necessary other enactments (including section 7A), to this end.
402.Subsection (5) also inserts new subsections (11) and (12) into section 7A. Associate Prosecutors’ trial remit is limited through subsection (2) to non-imprisonable summary offences. The inclusion of subsections (11) and (12) provides a power that would allow the restriction on conducting proceedings in respect of imprisonable summary offences to be lifted by order (subject to affirmative procedure).
403.Subsection (6) amends section 15 of the Prosecution of Offences Act 1985 so as to enable designated members of staff to undertake binding over proceedings in the magistrates’ court.
404.Sections 12 to 18 of, and Schedule 3 to, the Access to Justice Act 1999 (the 1999 Act), as amended by the Criminal Defence Service Act 2006, deal with the Criminal Defence Service. Under section 12 of the Access to Justice Act, the Legal Services Commission (the LSC) is required to set up the Criminal Defence Service to secure that people involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require. Broadly speaking, advice and assistance is available for the investigation stage and representation for proceedings.
405.Section 14 and Schedule 3 deal with representation in criminal proceedings. “Representation” is defined in section 26. It covers the preparation of a case and advocacy at any hearing. Paragraph 1(1) of Schedule 3 says that a right to representation for the purposes of any kind of criminal proceedings before a court may be granted to an individual such as is mentioned in relation to that kind of proceedings in section 12(2). The grant of a right to representation is subject to a test of the interests of justice (paragraph 5(1) of Schedule 3). Paragraph 5(2) sets out factors to be considered in deciding what the interests of justice consist of.
406.Schedule 3 was amended by the Criminal Defence Service Act 2006 to add regulation-making powers to provide for the transfer of the responsibility for granting rights to representation from the courts to the LSC and the re-introduction of a test of financial eligibility (paragraphs 2A and 3B of Schedule 3). These powers were exercised, in relation to criminal proceedings in magistrates’ courts, in the Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006 (S.I. 2006/2493) and the Criminal Defence Service (Financial Eligibility) Regulations 2006 (S.I. 2006/2492). Applications for representation orders are handled by Her Majesty’s Courts Service on behalf of the LSC.
407.This section amends Part 1 of and Schedule 3 to the 1999 Act to allow for the provisional grant of a right to representation in prescribed circumstances.
408.Subsection (6) inserts a new paragraph 1A into Schedule 3. This provides for regulations (subject to the affirmative resolution procedure) to set out circumstances in which a right to representation may be provisionally granted to individuals involved in an investigation which may result in criminal proceedings, for the purpose of those proceedings. Regulations may make provision about the stage of an investigation at which the right may be provisionally granted, and the circumstances in which any provisional grant ceases to be provisional and becomes a full grant, or where it is to be withdrawn.
409.Subsection (2) amends section 14(1) and subsection (3) amends section 15(1) of the 1999 Act so as to refer to provisional grants.
410.Subsection (4) makes regulations under new paragraph 1A subject to the affirmative resolution procedure.
411.Subsection (5) adds to the definition of “proceedings” for the purposes of the definition of “representation” in section 26 of the 1999 Act.
412.Subsection (7) amends paragraph 2A of Schedule 3 to provide that any provisional grant of a right to representation under regulations made under new paragraph 1A is to be made by the Legal Services Commission.
413.Subsections (8) and (9) make consequential amendments to paragraphs 3A(1) and 3B of Schedule 3 so as to refer to provisional grants.
414.Subsection (10) amends Schedule 3 and provides that the right of appeal set out in paragraph 4 does not apply in relation to any right granted under new paragraph 1A.
415.Subsection (11) makes consequential amendments to paragraph 5 of Schedule 3 so as to refer to provisional grants and inserts a new sub-paragraph (2A) which defines “proceedings” for the purposes of any provisional grant.
416.This section amends the 1999 Act to allow the relevant authority to request and receive information from the Secretary of State (in practice the Secretary of State for Work and Pensions) and HMRC for purposes relating to the assessment of a person’s financial eligibility for legal aid, and places certain restrictions on the disclosure of that information.
417.Subsection (2) amends section 25(9) of the 1999 Act, making regulations under new paragraphs 6 of Schedule 3 subject to the affirmative resolution procedure.
418.Subsection (3) inserts new paragraphs 6 to 8 of Schedule 3. New paragraph 6 provides that the relevant authority may make an information request to the DWP or HMRC for the purpose of making a decision about a person’s financial eligibility for legal aid in accordance with paragraph 3B(1) and (2) or regulations under paragraph 3B(3) of Schedule 3. It further sets out the categories of information which may be requested (with a power to add further such categories by regulations subject to the affirmative resolution procedure). New paragraph 7 provides that a person to whom information is disclosed under paragraph 6 may disclose that information where necessary or expedient for those purposes. Except in these circumstances, or in accordance with any enactment or order of a court, or if information has already been lawfully disclosed to the public, any disclosure is an offence. A person guilty of this offence is liable on conviction on indictment to imprisonment for up to two years, a fine or both, or on summary conviction, to imprisonment for no more than twelve months, a fine not exceeding the statutory maximum (£5,000) or both. New paragraph 8 defines “benefit status”, “the Commissioners” and “information” for the purposes of new paragraphs 6 and 7.
419.This section inserts a new section 18A into the 1999 Act to provide for a power to pilot schemes under secondary legislation concerning the Criminal Defence Service.
420.Subsection (2) removes subsection (5) of section 17A, a provision about a specific kind of pilot scheme.
421.Subsection (3) inserts a new section 18A. This provides that any instruments under sections 12 to 15, 17, 17A or 22(5) or paragraphs 1A to 5 of Schedule 3 may be made so as to have effect only for a specified period of up to twelve months, unless the Lord Chancellor extends this period where necessary to ensure the effective operation of a scheme or to coordinate it with another relevant pilot scheme, for up to eighteen months. The Lord Chancellor may further extend this period in order to cover any gap between the end of the pilot and full implementation. Any pilot scheme may apply in relation to one or more areas, type of court, type of offence or class of person.
422.Subsection (4) inserts a new subsection (9B) into section 25, and provides that any instrument under new section 18A will be subject to the affirmative resolution procedure.
423.Section 59 inserts a new section 2A into the Criminal Justice Act 1987. Section 2 of the Criminal Justice Act 1987 grants the Director of the Serious Fraud Office (SFO) powers to require a person to answer questions, provide information or produce documents for the purposes of an investigation.
424.The new subsection 2A(1) extends these powers to allow their use where the Director believes certain offences may have taken place and is considering whether to start an investigation.
425.The new subsection 2A(2) ensures that the investigatory powers under section 2(2) and 2(3) Criminal Justice Act 1987 can only be exercised against an individual during the pre-investigative stage where the Director of the SFO considers it expedient to do so.
426.The new subsection 2A(3) provides adaptations to secure that section 2 works properly during the pre-investigation stage.
427.The new subsection 2A(4) extends the offence under s.2(16) so that (among other things) it covers the destruction of documents which a person knows or suspects are relevant to the making of a determination whether to start a formal investigation.
428.New subsection 2A(5) limits the circumstances under which the pre-investigative powers can be used to where the suspected conduct would constitute a corruption offence under section 108 of the Anti-terrorism, Crime and Security Act 2001 (bribery and corruption: foreign officers etc). New subsection 2A(6) defines corruption offence.
429.Subsection (3) ensures that the investigative powers set out in the new section 2A apply in Northern Ireland and Scotland, in addition to England and Wales.
430.Section 60 amends the defence disclosure regime in Part I of the Criminal Procedure and Investigations Act 1996 so that an accused’s defence statement will, in addition to the existing requirements, also have to set out particulars of any matters of fact on which he intends to rely in his defence.
431.Subsection (1) amends section 6A of the 1996 Act to add this new requirement to the list of matters to be included in a defence statement. Subsection (2) amends section 11(2)(f)(ii) of the 1996 Act so that the sanctions for failure to comply with the defence statement requirements (comment by the court or another party and the drawing of inferences by the court or jury) will apply.
432.Section 61 amends the current provision for compensating victims of miscarriages of justice in section 133 of the 1988 Act.
433.Section 133(1) of the 1988 Act sets out the test which the Secretary of State applies in determining whether there is a right to compensation in a particular case. Section 133(1) is not amended by this Act.
434.Currently there is no time limit for making an application to the Secretary of State for compensation in respect of a miscarriage of justice. This means that applications can be received in respect of convictions that were quashed many years ago.
435.Subsection (3) amends section 133(2) of the 1988 Act to impose a time limit of two years within which an application under that section must be made. The two-year period begins with the date on which the conviction of the applicant was reversed or the date on which he was granted a pardon.
436.Subsection (3) also inserts a new section 133(2A) into the 1988 Act. This allows an application made outside the new time limit to be treated as made within the time limit if the Secretary of State considers that there are exceptional circumstances which justify doing so. For example, the Secretary of State might regard the applicant being incapacitated for all or almost all of the two-year period as an exceptional circumstance. However it is not anticipated that the Secretary of State would regard the applicant being unaware of the right to apply for compensation as an exceptional circumstance.
437.Compensation can only be paid to those who have been pardoned or whose convictions have been “reversed”. Section 133(5) of the 1988 Act currently provides that a conviction has been “reversed” if it has been quashed, either on an appeal out of time or following one of several types of reference. Subsection (5) inserts two new subsections (5A) and (5B) into section 133 of the 1988 Act. The new subsection (5A) amends the definition of “reversed” for the purposes of section 133 in cases in which the conviction has been quashed but a retrial has been ordered. In such a case the conviction will now only be “reversed” when the person is acquitted of all offences at retrial (or when the prosecution indicates that it has decided not to proceed with a retrial). In such a case, it is the occurrence of one of these two events that will trigger the right to apply for compensation and the two-year time period within which an application should be made. The new subsection (5B) provides that references to a retrial in new subsection (5A) include proceedings in a magistrates’ court following remission of a case from the Crown Court.
438.If the Secretary of State decides that there is a right to compensation under section 133(1), the amount of compensation is assessed by an assessor.
439.Subsections (4) and (7) replace the existing section 133(4A) of the 1988 Act, which currently makes provision about the assessment of the amount of compensation, with new sections 133A and 133B. Currently:
There is no limit on the amount of compensation payable in respect of a miscarriage of justice. In determining the amount to be paid, the assessor uses principles analogous to those governing the assessment of damages for civil wrongs. Assessments are, as far as possible, intended to put the applicant back to the financial position he or she would have been in but for the miscarriage of justice.
Section 133(4A) of the 1988 Act requires the assessor, when assessing the element of an award attributable to suffering, harm to reputation or similar damage (i.e. non-pecuniary loss), to take account of: (a) the seriousness of the offence and the severity of the punishment suffered by the applicant as a result of the conviction; (b) the conduct of the investigation and prosecution of the offence; and (c) other convictions of the applicant and any punishment resulting from them.
The Note for Guidance sent to successful applicants states that the assessor may also make a deduction from the non-pecuniary loss element of an award to take account of conduct of the applicant which could be construed as contributing to the miscarriage of justice.
As contributory conduct and other convictions and punishments were not taken into account in assessing the pecuniary element of an award, significant levels of awards could be made to applicants who have other serious convictions or who had contributed to the occurrence of the miscarriage of justice.
440.The new section 133A(2) preserves the effect of the existing section 133(4A)(a) and (4A)(b) of the 1988 Act (as to which, see the second bullet point in the paragraph above).
441.Section 133A(3) provides that the assessor may make deductions from the overall award, not just from the non-pecuniary element, by reason of any conduct of the applicant which appears to the assessor to have caused or contributed to the conviction and by reason of other convictions of the applicant and any resulting punishments.
442.Section 133A(4) allows the assessor to make only a nominal award if he considers there to be exceptional circumstances which justify doing so. This might be the result, for example, in cases in which the applicant’s own conduct contributed very significantly to the conviction, and/or the applicant has either a lengthy criminal record or has been convicted of particularly serious offences (whether before or after the miscarriage of justice in respect of which the claim is being made).
443.Section 133A(5) introduces overall limits on the amount of compensation payable in respect of a particular miscarriage of justice. The limit is £1,000,000 where the new section 133B applies (in summary, this is where the applicant has been in detention for more than 10 years as a result of the conviction) and £500,000 in all other cases. No compensation will be payable for pecuniary or non-pecuniary loss in excess of the relevant limit.
444.Section 133A(6) introduces a limit on the amount of compensation payable in respect of each year of an applicant’s lost earnings or earnings capacity. That limit is one and a half times the median annual gross earnings according to the latest figures published by the Office for National Statistics at the time of the assessment (rather than at the time the loss was suffered). Applicants, no matter what their actual or projected level of earnings, will not be compensated for any losses of earnings or earnings capacity at a rate higher than the limit. The same limit applies in respect of claims made by victims of violent crime to the Criminal Injuries Compensation Authority.
445.Section 133A(7) and (8) enables the overall compensation limit (as set by section 133A(5)) and the earnings compensation limit (as set by section 133A(6)) to be amended by the Secretary of State by order (subject to the affirmative procedure).
446.Section 133B defines when the higher overall compensation limit applies. The higher limit applies where the applicant has been in “qualifying detention” for at least 10 years at the time the conviction is reversed or the pardon is given. Qualifying detention includes, for example: time spent in prison or in a young offenders institution as a result of the sentence passed for the conviction which was subsequently quashed; time spent detained in a hospital under mental health legislation as a result of the conviction (ignoring, for these purposes, other conditions for such detention such as those relating to the person’s health); and time spent on remand for the offence or for another offence where the charge was founded on the same facts or evidence.
447.However, a period will not count toward the 10-year threshold if during that period the applicant was in both “qualifying detention” and “excluded concurrent detention”. Excluded concurrent detention is defined in the section, and includes, for example, periods in which the applicant was serving a concurrent sentence for a second conviction which has not been quashed (and has not resulted in a pardon). Note that in circumstances where the second conviction has been quashed but the person has been convicted at retrial and again sentenced to detention, the sentence imposed at retrial runs from the time when a like sentence passed at the original trial would have begun (see the 1968 Act, Schedule 2). Therefore, pre-retrial detention can be “excluded concurrent detention” if the retrial results in a conviction and sentence of detention.
448.Subsection (8) amends section 172 of the 1988 Act to extend the new sections 133A and 133B to Northern Ireland as well as England and Wales.
449.Paragraph 22 of Schedule 27 sets out some transitional provisions dealing with the application of the new measures in section 61. Paragraph 22(1) provides that the two-year time limit introduced by section 61(3) will only apply to applications for compensation made in relation to convictions reversed or pardons given on or after the date on which section 61 comes into force (the commencement date).
450.As a result of paragraph 22(2), the provisions for the assessment of compensation in the new sections 133A and 133B will apply in relation to applications made on or after the commencement date, and also to applications made before the commencement date but in respect of which the Secretary of State has not, before that date, determined whether there is a right to compensation.
451.Paragraph 22(3) and (4) provide that the changes to the definition of “reversed” introduced by section 61(5) apply to any conviction quashed on an appeal out of time (whether before or after the commencement date) if an application for compensation in relation to that conviction has not been made before the commencement date.
452.Paragraph 22(5) and (6) apply a time limit to applications for compensation in relation to convictions reversed and pardons given before the commencement date. Such applications must be made within the two years beginning with the commencement date. Applications made outside this time limit can be treated as made within the time limit if the Secretary of State considers that there are exceptional circumstances which justify doing so.
453.Section 62 repeals section 8 of the Criminal Justice (Terrorism and Conspiracy) Act 1998, which requires a report on the working of that Act to be laid before both Houses of Parliament at least annually.
454.This section creates a new offence of possession of extreme pornographic images. Subsection (1) provides that it is an offence to be in possession of an extreme pornographic image.
455.Subsections (2) to (8) set out the definition of “extreme pornographic image”. The definition of “pornographic” is set out in subsection (3). In order to be considered pornographic, 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 an individual image as it is held in a person’s possession forms part of a larger series of images, the question of whether it is pornographic must be determined by reference both to the image itself and also the context in which it appears in the larger series of images.
456.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 taken as a whole could not reasonably be assumed to be pornographic, the image itself may be taken not to be pornographic even though if considered in isolation the contrary conclusion would have been reached.
457.Subsection (6) defines an “extreme image” for the purposes of the offence. An extreme image is one which is grossly offensive, disgusting or otherwise of an obscene character and which depicts one of a list of acts set out in subsection (7). These are explicit and realistic portrayals of:
acts which threaten a person’s life; this could include depictions of hanging, suffocation, or sexual assault involving a threat with a weapon;
acts which result in, or are likely to result in, serious injury to a person’s anus, breasts or genitals; this could include the insertion of sharp objects or the mutilation of breasts or genitals;
acts which involve sexual interference with a human corpse; or
a person performing an act of intercourse or oral sex with an animal.
458.The people and the animals portrayed must appear to a reasonable person to be real.
459.Subsection (8) sets out the definition of an image. It states that for the purposes of this offence, “an image” means either 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. The scope of the definition of image is also affected by the requirement referred to above that persons and animals portrayed in an image must appear to be real. That requirement has the effect of excluding animated characters, sketches, paintings and the like.
460.Subsection (9) states that references to parts of the body include body parts that have been surgically constructed.
461.Subsection (10) requires proceedings to be instituted by or with the consent of the Director of Public Prosecutions.
462.This section provides an exclusion from the scope of the offence under section 63 for classified films.
463.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.
464.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 and which contains images that, notwithstanding their context, might be caught by the offence in section 63, could not be liable for prosecution. The fact that the images are held as part of a BBFC classified film takes them outside the scope of the offence.
465.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.
466.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 section 63. Subsection (5) of section 63 also applies in determining this question.
467.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, or due to inadvertence, such as setting the wrong time for a recording, or the inclusion of extraneous material such as advertisements, are to be disregarded.
468.Subsection (6) makes it clear that nothing in section 64 affects any duty of a designated authority to take into account the offence in section 63 when considering whether to issue a classification certificate in respect of a video work.
469.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.
470.This section sets out a series of defences to the offence of possession of extreme pornographic images. These defences are set out in subsection (2). They are the same as for the possession of indecent images of children under section 160(2) of the Criminal Justice Act 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 therefore neither knew, nor had cause to suspect, that the images held were extreme pornographic images; 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 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.
471.An additional defence for those who participate in the creation of extreme pornographic images is provided for in this section. Subsection (1)(b) limits this defence, however, by excluding the images listed in section 63(7)(d) - those showing images of bestiality. Also excluded are necrophilia images which depict a real corpse.
472.Subsection (2) sets out the matters that a defendant must prove, on the balance of probabilities, in order to benefit from the defence. He must prove that he directly participated in the act or acts portrayed in the image and that the act(s) did not involve the infliction of non-consensual harm on any person. Where the image depicts necrophilia the defendant must also prove that the human corpse portrayed was not in fact a corpse.
473.Subsection (3) defines non-consensual harm as harm which is of such a nature that, in law, a person cannot consent to it being inflicted on him or herself, or harm to which a person can consent but did not in fact consent.
474.The penalties that will apply to persons found guilty of an offence under section 63 are set out in this section.
475.On conviction on indictment, the maximum sentence is imprisonment for three years for possession of images covered by section 63(7)(a) or (b) (life threatening acts, or serious injury), and imprisonment for two years for possession of images covered by section 63(7)(c) or (d) (necrophilia or bestiality).
476.The combined effect of section 67 and the transitional provision in paragraph 23 of Schedule 27 is that initially the maximum sentence on summary conviction of the offence in England and Wales will be 6 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. The maximum custodial penalty in Northern Ireland is six months
477.Section 68 and Schedule 14 are intended to ensure that the provisions outlined above which make illegal the possession of extreme pornographic material are consistent with the UK’s obligations under the EU E-Commerce Directive.
478.Schedule 14 ensures that providers of information society services who are established in England, Wales and 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 extreme pornographic material in limited circumstances, such as where they are acting as mere conduits for such material or are storing it as caches or hosts.
479.Subsection (2) of this section amends section 1B(1)(b) of the Protection of Children Act 1978 (the 1978 Act) to include members of the Secret Intelligence Service in the defence from prosecution for an offence under section 1(1)(a) of the 1978 Act, i.e. making an indecent photograph or pseudo-photograph of a child, if it was necessary for him or her to do so in the exercise of any of the functions of that Service.
480.Subsection (3) of this section amends section 7 of the 1978 Act to extend the definition of “photograph” to include derivatives of photographs, such as tracings or other forms of data. As a result, references to a photograph in the 1978 Act will include tracings or other images, whether made by electronic or other means, that are not in themselves photographs or pseudo-photographs (as defined in the 1978 Act) but which are derived from the whole or part of a photograph or pseudo-photograph, or a combination of either or both. This amendment will mean that an offence under section 1 (indecent photographs of children) of the 1978 Act, will cover derivatives of indecent photographs or pseudo-photographs, alongside indecent photographs and pseudo-photographs themselves. These derivatives include line-traced and computer traced images, for example, pencil traced images using tracing paper or computer traced images of photographs taken on a mobile phone.
Criminal Justice and Immigration Act 2008