Criminal Justice and Immigration Act 2008

Part 1 — Youth rehabilitation orders

Youth rehabilitation orders

Consecutive terms of imprisonment

1

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Amendment of section 127 of Criminal Justice and Public Order Act 1994

2

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Transfer of youth rehabilitation orders to Northern Ireland

3

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Amendments to armed forces legislation

4

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Responsible officer and offender: duties in relation to the other

5

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Supplementary

Abolition of certain youth orders and related amendments

6

• (1) Chapters 1, 2, 4 and 5 of Part 4 of (and Schedules 3 and 5 to 7 to) the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (curfew orders, exclusion orders, attendance centre orders, supervision orders and action plan orders) cease to have effect.

• (2) Part 1 of Schedule 4 makes amendments consequential on provisions of this Part.

• (3) Part 2 of Schedule 4 makes minor amendments regarding other community orders which are related to the consequential amendments in Part 1 of that Schedule.

Youth rehabilitation orders: interpretation

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Isles of Scilly

8

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Part 2 — Sentencing

General sentencing provisions

Purposes etc. of sentencing: offenders under 18

9

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In section 44 of the Children and Young Persons Act 1933 (c. 12) (general considerations) after subsection (1) insert—

(1A) Subsection (1) is to be read with paragraphs (a) and (c) of section 142A(2) of the Criminal Justice Act 2003 (which require a court dealing with an offender aged under 18 also to have regard to the principal aim of the youth justice system and the specified purposes of sentencing). (1B) Accordingly, in determining in the case of an offender whether it should take steps as mentioned in subsection (1), the court shall also have regard to the matters mentioned in those paragraphs.

• (4) In section 42(1) of the Crime and Disorder Act 1998 (c. 37) (interpretation of Part 3 of Act), after the definition of “local authority” insert—

“offending” includes re-offending;

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Effect of restriction on imposing community sentences

10

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Restriction on power to make a community order

11

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Pre-sentence reports

12

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Custodial sentences

Sentences of imprisonment for public protection

13

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Sentences of detention for public protection

14

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Extended sentences for certain violent or sexual offences: persons 18 or over

15

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Extended sentences for certain violent or sexual offences: persons under 18

16

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The assessment of dangerousness

17

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Further amendments relating to sentences for public protection

18

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Indeterminate sentences: determination of tariffs

19

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Consecutive terms of imprisonment

20

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Release and recall of prisoners

Credit for period of remand on bail: terms of imprisonment and detention

21

• (1) The Criminal Justice Act 2003 (c. 44) is amended as follows.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In the italic heading before section 240, after “custody” insert “ or on bail subject to certain types of condition ”.

• (4) After section 240 insert—

(240A) (1) This section applies where— (a) a court sentences an offender to imprisonment for a term in respect of an offence committed on or after 4th April 2005, (b) the offender was remanded on bail by a court in course of or in connection with proceedings for the offence, or any related offence, after the coming into force of section 21 of the Criminal Justice and Immigration Act 2008, and (c) the offender's bail was subject to a qualifying curfew condition and an electronic monitoring condition (“the relevant conditions”). (2) Subject to subsection (4), the court must direct that the credit period is to count as time served by the offender as part of the sentence. (3) The “credit period” is the number of days represented by half of the sum of— (a) the day on which the offender's bail was first subject to conditions that, had they applied throughout the day in question, would have been relevant conditions, and (b) the number of other days on which the offender's bail was subject to those conditions (excluding the last day on which it was so subject), rounded up to the nearest whole number. (4) Subsection (2) does not apply if and to the extent that— (a) rules made by the Secretary of State so provide, or (b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection. (5) Where as a result of paragraph (a) or (b) of subsection (4) the court does not give a direction under subsection (2), it may give a direction in accordance with either of those paragraphs to the effect that a period of days which is less than the credit period is to count as time served by the offender as part of the sentence. (6) Rules made under subsection (4)(a) may, in particular, make provision in relation to— (a) sentences of imprisonment for consecutive terms; (b) sentences of imprisonment for terms which are wholly or partly concurrent; (c) periods during which a person granted bail subject to the relevant conditions is also subject to electronic monitoring required by an order made by a court or the Secretary of State. (7) In considering whether it is of the opinion mentioned in subsection (4)(b) the court must, in particular, take into account whether or not the offender has, at any time whilst on bail subject to the relevant conditions, broken either or both of them. (8) Where the court gives a direction under subsection (2) or (5) it shall state in open court— (a) the number of days on which the offender was subject to the relevant conditions, and (b) the number of days in relation to which the direction is given. (9) Subsection (10) applies where the court— (a) does not give a direction under subsection (2) but gives a direction under subsection (5), or (b) decides not to give a direction under this section. (10) The court shall state in open court— (a) that its decision is in accordance with rules made under paragraph (a) of subsection (4), or (b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are. (11) Subsections (7) to (10) of section 240 apply for the purposes of this section as they apply for the purposes of that section but as if— (a) in subsection (7)— (i) the reference to a suspended sentence is to be read as including a reference to a sentence to which an order under section 118(1) of the Sentencing Act relates; (ii) in paragraph (a) after “Schedule 12” there were inserted “ or section 119(1)(a) or (b) of the Sentencing Act ”; and (b) in subsection (8) the reference to subsection (3) of section 240 is to be read as a reference to subsection (2) of this section and, in paragraph (b), after “Chapter” there were inserted “ or Part 2 of the Criminal Justice Act 1991 ”. (12) In this section— - “electronic monitoring condition” means any electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976 for the purpose of securing the electronic monitoring of a person's compliance with a qualifying curfew condition; - “qualifying curfew condition” means a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day; and - “related offence” means an offence, other than the offence for which the sentence is imposed (“offence A”), with which the offender was charged and the charge for which was founded on the same facts or evidence as offence A.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) In section 242 (interpretation of sections 240 and 241), in the title and in subsection (1), after “sections 240” insert “ , 240A ”.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Credit for period of remand on bail: other cases

22

• (1) The Criminal Justice Act 2003 (c. 44) is amended in accordance with subsections (2) and (3).

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) In paragraph 2 of Schedule 2 to the Criminal Appeal Act 1968 (c. 19) (sentence on conviction at retrial), in sub-paragraph (4), for the words from the beginning to “custody:” substitute “ Sections 240 and 240A of the Criminal Justice Act 2003 (crediting of periods of remand in custody or on bail subject to certain types of condition: ”.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) In paragraph 2(1) of Schedule 7 to the International Criminal Court Act 2001 (c. 17) (provisions of law of England and Wales affecting length of sentence which are not applicable to ICC prisoners), for paragraph (d) substitute—

(d) sections 240 and 240A of the Criminal Justice Act 2003 (crediting of periods spent on remand in custody or on bail subject to certain types of condition: terms of imprisonment and detention).

Credit for period of remand on bail: transitional provisions

23

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Minimum conditions for early release under section 246(1) of Criminal Justice Act 2003

24

In section 246(2) of the Criminal Justice Act 2003 (c. 44) (minimum conditions for early release of fixed-term prisoner other than intermittent custody prisoner) for paragraph (b) substitute

and (b) he has served— (i) at least 4 weeks of that period, and (ii) at least one-half of that period.

Release on licence under Criminal Justice Act 2003 of prisoners serving extended sentences

25

• (1) Section 247 of the Criminal Justice Act 2003 (release on licence of prisoner serving extended sentence) is amended as follows.

• (2) In subsection (2)—

• (a) the word “and” at the end of paragraph (a) is omitted, and

• (b) paragraph (b) is omitted.

• (3) Subsections (3), (4), (5) and (6) are omitted.

Release of certain long-term prisoners under Criminal Justice Act 1991

26

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Application of section 35(1) of Criminal Justice Act 1991 to prisoners liable to removal from the UK

27

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Release of fine defaulters and contemnors under Criminal Justice Act 1991

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Release of prisoners after recall

29

• (1) In section 254 of the Criminal Justice Act 2003 (c. 44) (recall of prisoners while on licence)—

• (a) subsections (3) to (5) cease to have effect;

• (b) in subsection (7) for “subsections (2) to (6)” substitute “ this section ”.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Further review and release of prisoners after recall

30

• (1) Section 256 of the Criminal Justice Act 2003 (c. 44) (further release after recall) is amended as follows.

• (2) In subsection (1) for paragraph (b) substitute—

(b) determine the reference by making no recommendation as to his release.

• (3) In subsection (2) omit “or (b)”.

• (4) Subsections (3) and (5) cease to have effect.

• (5) In consequence of the amendments made by section 29 and this section, the heading to section 256 becomes “ Review by the Board ”.

• (6) After section 256 insert—

(256A) (1) The Secretary of State must, not later than the first anniversary of a determination by the Board under section 256(1) or subsection (4) below, refer the person's case to the Board. (2) The Secretary of State may, at any time before that anniversary, refer the person's case to the Board. (3) The Board may at any time recommend to the Secretary of State that a person's case be referred under subsection (2). (4) On a reference under subsection (1) or (2), the Board must determine the reference by— (a) recommending the person's immediate release on licence under this Chapter, (b) fixing a date for his release on licence, or (c) making no recommendation as to his release. (5) The Secretary of State— (a) where the Board makes a recommendation under subsection (4)(a) for the person's immediate release on licence, must give effect to the recommendation; and (b) where the Board fixes a release date under subsection (4)(b), must release the person on licence on that date.

Recall of life prisoners: abolition of requirement for recommendation by Parole Board

31

• (1) Section 32 of the Crime (Sentences) Act 1997 (c. 43) (recall of life prisoners while on licence) is amended as follows.

• (2) For subsections (1) and (2) (power of Secretary of State to revoke licence) substitute—

(1) The Secretary of State may, in the case of any life prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.

• (3) In subsection (3) (representations by prisoner) for “subsection (1) or (2) above” substitute “ this section ”.

• (4) In subsection (4) (reference to Parole Board by Secretary of State) for paragraphs (a) and (b) substitute “ the case of a life prisoner recalled under this section ”.

Release of prisoners recalled following release under Criminal Justice Act 1991

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Early removal of prisoners from the United Kingdom

Removal under Criminal Justice Act 1991

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• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Removal under Criminal Justice Act 2003

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• (1) In Part 12 of the Criminal Justice Act 2003 (c. 44) (sentencing) Chapter 6 (release on licence) is amended as follows.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Section 260 (early removal of prisoners liable to removal from United Kingdom) is amended as follows.

• (4) In subsection (1) (the power of removal)—

• (a) for “subsections (2) and (3)” substitute “ subsection (2) ”, and

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) For subsection (2) (conditions relating to time) substitute—

(2) Subsection (1) does not apply in relation to a prisoner unless he has served at least one-half of the requisite custodial period.

• (6) Subsections (3) and (3A) (cases where subsection (1) does not apply) cease to have effect.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) In subsection (6) (order-making powers)—

• (a) in paragraph (a) omit “or (3)(e)”,

• (b) omit paragraph (b), and

• (c) in paragraph (c) for “subsection (2)(b)(ii)” substitute “ subsection (2) ”.

• (9) For subsection (7) (meaning of “requisite custodial period”) substitute—

(7) In this section “requisite custodial period”— (a) in relation to a prisoner serving an extended sentence imposed under section 227 or 228, means one-half of the appropriate custodial term (determined by the court under that section); (b) in any other case, has the meaning given by paragraph (a), (b) or (d) of section 244(3).

• (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Referral orders

Referral conditions

35

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Power to revoke a referral order

36

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Extension of period for which young offender contract has effect

37

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Enforcement of sentences

Imposition of unpaid work requirement for breach of community order

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Youth default orders

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• (1) Subsection (2) applies in any case where, in respect of a person aged under 18, a magistrates' court would, but for section 227 of the Sentencing Code (restrictions on custodial sentences), have power to issue a warrant of commitment for default in paying a sum adjudged to be paid by a conviction (other than a sum ordered to be paid under section 6 of the Proceeds of Crime Act 2002 (c. 29)).

• (2) The magistrates' court may, instead of proceeding under section 81 of the Magistrates' Courts Act 1980 (enforcement of fines imposed on young offender), order the person in default to comply with—

• (a) in the case of a person aged 16 or 17, an unpaid work requirement (see Part 3 of Schedule 6 to the Sentencing Code),

• (b) an attendance centre requirement (see Part 5 of that Schedule), or

• (c) a curfew requirement (see Part 7 of that Schedule).

• (3) In this section (and Schedule 7) “youth default order” means an order under subsection (2).

• (4) A youth default order—

• (a) may, in addition to any other requirement that it imposes, impose an electronic compliance monitoring requirement (see sections 173 and 174 of the Sentencing Code), and

• (b) must do so where, in the case of a youth rehabilitation order, such a requirement would be required by paragraph 19(3) of Schedule 6 to the Sentencing Code.

• (5) Where a magistrates' court has power to make a youth default order, it may, if it thinks it expedient to do so, postpone the making of the order until such time and on such conditions (if any) as it thinks just.

• (6) The following provisions of the Sentencing Code have effect in relation to youth default orders as they have effect in relation to youth rehabilitation orders, but subject to the modifications contained in Schedule 7 to this Act—

• (a) sections 186(2), (10) and (11), 188, 190 to 192, 197, 198(3) to (5), 198A, 397(1), 400 and 403 to 405 (youth rehabilitation orders: responsible officer, interpretation and further provisions),

• (b) Parts 3, 5 and 7 of Schedule 6 (youth rehabilitation orders: requirements),

• (ba) Part 17 of that Schedule (electronic monitoring requirements), so far as it applies to electronic compliance monitoring requirements,

• (c) Schedule 7 (breach, revocation or amendment of youth rehabilitation order),

• (d) Schedule 8 (transfer of youth rehabilitation orders to Northern Ireland), and

• (e) paragraph 9 of Schedule 23 (power to amend limits).

• (7) Where a youth default order has been made for default in paying any sum—

• (a) on payment of the whole sum to any person authorised to receive it, the order ceases to have effect, and

• (b) on payment of a part of the sum to any such person, the total number of hours or days to which the order relates is to be taken to be reduced by a proportion corresponding to that which the part paid bears to the whole sum.

• (8) In calculating any reduction required by subsection (7)(b), any fraction of a day or hour is to be disregarded.

Power to impose attendance centre requirement on fine defaulter

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• (1) Section 300 of the Criminal Justice Act 2003 (c. 44) (power to impose unpaid work requirement or curfew requirement on fine defaulter) is amended as follows.

• (2) In the heading for “or curfew requirement” substitute “ curfew requirement or attendance centre requirement ”.

• (3) In subsection (2), at the end of paragraph (b) insert

, or (c) in a case where the person is aged under 25, an attendance centre requirement (as defined by section 214)

.

Disclosure of information for enforcing fines

41

• (1) Part 3 of Schedule 5 to the Courts Act 2003 (c. 39) (attachment of earnings orders and applications for benefit deductions) is amended as follows.

• (2) After paragraph 9 insert—

(9A) (1) The designated officer for a magistrates' court may make an information request to the Secretary of State for the purpose of facilitating the making of a decision by the court as to whether it is practicable or appropriate to make an application for benefit deductions in respect of P. (2) An information request is a request for the disclosure of some or all of the following information— (a) P's full name; (b) P's address (or any of P's addresses); (c) P's date of birth; (d) P's national insurance number; (e) P's benefit status. (3) On receiving an information request, the Secretary of State may disclose the information requested to— (a) the officer who made the request, or (b) a justices' clerk specified in the request. (9B) (1) A person to whom information is disclosed under paragraph 9A(3), or this sub-paragraph, may disclose the information to any person to whom its disclosure is necessary or expedient in connection with facilitating the making of a decision by the court as to whether it is practicable or appropriate to make an application for benefit deductions in respect of P. (2) A person to whom such information is disclosed commits an offence if the person— (a) discloses or uses the information, and (b) the disclosure is not authorised by sub-paragraph (1) or (as the case may be) the use is not for the purpose of facilitating the making of such a decision as is mentioned in that sub-paragraph. (3) But it is not an offence under sub-paragraph (2)— (a) to disclose any information in accordance with any enactment or order of a court or for the purposes of any proceedings before a court; or (b) to disclose any information which has previously been lawfully disclosed to the public. (4) It is a defence for a person charged with an offence under sub-paragraph (2) to prove that the person reasonably believed that the disclosure or use was lawful. (5) A person guilty of an offence under sub-paragraph (2) is liable on summary conviction to a fine not exceeding level 4 on the standard scale. (9C) (1) This paragraph applies for the purposes of paragraphs 9A and 9B. (2) “Benefit status”, in relation to P, means whether or not P is in receipt of any prescribed benefit or benefits and, if so (in the case of each benefit)— (a) which benefit it is, (b) where it is already subject to deductions under any enactment, the nature of the deductions concerned, and (c) the amount received by P by way of the benefit, after allowing for any such deductions. (3) “Information” means information held in any form. (4) “Prescribed” means prescribed by regulations made by the Lord Chancellor. (5) Nothing in paragraph 9A or 9B authorises the making of a disclosure which contravenes the Data Protection Act 1998.

Part 3 — Appeals

Appeals by defendant

Power to dismiss certain appeals following references by the CCRC: England and Wales

42

After section 16B of the Criminal Appeal Act 1968 (c. 19) insert—

(16C) (1) This section applies where there is an appeal under this Part following a reference by the Criminal Cases Review Commission under section 9(1)(a), (5) or (6) of the Criminal Appeal Act 1995 or section 1(1) of the Criminal Cases Review (Insanity) Act 1999. (2) Notwithstanding anything in section 2, 13 or 16 of this Act, the Court of Appeal may dismiss the appeal if— (a) the only ground for allowing it would be that there has been a development in the law since the date of the conviction, verdict or finding that is the subject of the appeal, and (b) the condition in subsection (3) is met. (3) The condition in this subsection is that if— (a) the reference had not been made, but (b) the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law, the Court would not think it appropriate to grant the application by exercising the power conferred by section 18(3).

Power to dismiss certain appeals following references by the CCRC: Northern Ireland

43

After section 13A of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) insert—

(13B) (1) This section applies where there is an appeal under this Part following a reference by the Criminal Cases Review Commission under section 10(1)(a), (6) or (7) of the Criminal Appeal Act 1995 or section 1(1) of the Criminal Cases Review (Insanity) Act 1999. (2) Notwithstanding anything in section 2, 12 or 13A of this Act, the Court of Appeal may dismiss the appeal if— (a) the only ground for allowing it would be that there has been a development in the law since the date of the conviction, verdict or finding that is the subject of the appeal, and (b) the condition in subsection (3) is met. (3) The condition in this subsection is that if— (a) the reference had not been made, but (b) the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law, the Court would not think it appropriate to grant the application by exercising the power conferred by section 16(2).

Appeals by prosecution

Determination of prosecution appeals: England and Wales

44

In section 61 of the Criminal Justice Act 2003 (c. 44) (determination of prosecution appeal by Court of Appeal) for subsection (5) substitute—

(5) But the Court of Appeal may not make an order under subsection (4)(c) in respect of an offence unless it considers that the defendant could not receive a fair trial if an order were made under subsection (4)(a) or (b).

Determination of prosecution appeals: Northern Ireland

45

In Article 20 of the Criminal Justice (Northern Ireland) Order 2004 (S.I. 2004/1500 (N.I.9)) (determination of prosecution appeal by Court of Appeal) for paragraph (5) substitute—

(5) But the Court of Appeal may not make an order under paragraph (4)(c) in respect of an offence unless it considers that the defendant could not receive a fair trial if an order were made under paragraph (4)(a) or (b).

Miscellaneous

Review of sentence on reference by Attorney General

46

• (1) Section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) is amended as follows.

• (2) In subsection (3A) (as amended by paragraph 89(3) of Schedule 24 to the Sentencing Act 2020) omit “in respect of an offence the sentence for which is fixed by law

• (3) In subsection (9) after paragraph (b) insert

, and (c) the reference in subsection (3A) to an order specified in subsection (3B) shall be construed as a reference to an order under Article 5(1) of the Life Sentences (Northern Ireland) Order 2001.

Further amendments relating to appeals in criminal cases

47

Schedule 8 amends the Criminal Appeal Act 1968 (c. 19), the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) and other Acts relating to appeals in criminal cases.

Part 4 — Other criminal justice provisions

Alternatives to prosecution

Alternatives to prosecution for offenders under 18

48

• (1) Schedule 9 amends the Crime and Disorder Act 1998 (c. 37)—

• (a) to make provision for the giving of youth conditional cautions to children and young persons, ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) The Secretary of State may by order amend the Crime and Disorder Act 1998 (c. 37), as amended by Schedule 9, so as to vary the provision made by it for the giving of youth conditional cautions to children and young persons under the age of 16 (including doing so by adding or omitting any provision).

Protection for spent cautions under Rehabilitation of Offenders Act 1974

49

• (1) Schedule 10 amends the Rehabilitation of Offenders Act 1974 (c. 53) so as to provide for the protection of spent cautions.

• (2) The provisions of Schedule 10 (and this section) extend only to England and Wales.

Criminal conviction certificates and criminal record certificates

50

• (1) Part 5 of the Police Act 1997 (c. 50) (certificates of criminal records) is amended as follows.

• (2) In section 112 (criminal conviction certificates)—

• (a) in the definition of “central records”, after “convictions” insert “ and conditional cautions ”;

• (b) after that definition insert—

• “conditional caution” means a caution given under section 22 of the Criminal Justice Act 2003 (c. 44) or section 66A of the Crime and Disorder Act 1998, other than one that is spent for the purposes of Schedule 2 to the Rehabilitation of Offenders Act 1974.

• (3) In section 113A(6) (criminal record certificates)—

• (a) in the definition of “exempted question”, after “a question” insert

which— (“) so far as it applies to convictions, is a question

;

• (b) in that definition, at the end insert

; and— (“) so far as it applies to cautions, is a question to which paragraph 3(3) or (4) of Schedule 2 to that Act has been excluded by an order of the Secretary of State under paragraph 4 of that Schedule;

;

• (c) in the definition of “relevant matter”, after “caution” insert “ , including a caution that is spent for the purposes of Schedule 2 to that Act ”.

• (4) This section extends to England and Wales only.

Bail

Bail conditions: electronic monitoring

51

Schedule 11 makes provision in connection with the electronic monitoring of persons released on bail subject to conditions.

Bail for summary offences and certain other offences to be tried summarily

52

Schedule 12—

• (a) imposes a duty on a magistrates' court considering whether to withhold or grant bail in relation to a person under 18 accused of an offence mentioned in Schedule 2 to the Magistrates' Courts Act 1980 (c. 43) (offences for which the value involved is relevant to the mode of trial) to consider the value involved in the offence; and

• (b) amends Schedule 1 to the Bail Act 1976 (persons entitled to bail: supplementary provisions).

Proceedings in magistrates' courts

Allocation of offences triable either way etc.

53

Schedule 13 amends Schedule 3 to the Criminal Justice Act 2003 (c. 44) (which makes provision in relation to the allocation and other treatment of offences triable either way, and the sending of cases to the Crown Court).

Trial or sentencing in absence of accused in magistrates' courts

54

• (1) Section 11 of the Magistrates' Courts Act 1980 (non-appearance of accused) is amended as follows.

• (2) In subsection (1), for “the court may proceed in his absence” substitute

— (a) if the accused is under 18 years of age, the court may proceed in his absence; and (b) if the accused has attained the age of 18 years, the court shall proceed in his absence unless it appears to the court to be contrary to the interests of justice to do so. This is subject to subsections (2), (2A), (3) and (4).

• (3) After subsection (2) insert—

(2A) The court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear.

• (4) In each of subsections (3) and (4), for “A magistrates' court” substitute “ In proceedings to which this subsection applies, the court. ”

• (5) After subsection (3) insert—

(3A) But where a sentence or order of a kind mentioned in subsection (3) is imposed or given in the absence of the offender, the offender must be brought before the court before being taken to a prison or other institution to begin serving his sentence (and the sentence or order is not to be regarded as taking effect until he is brought before the court).

• (6) After subsection (4) insert—

(5) Subsections (3) and (4) apply to— (a) proceedings instituted by an information, where a summons has been issued; and (b) proceedings instituted by a written charge. (6) Nothing in this section requires the court to enquire into the reasons for the accused's failure to appear before deciding whether to proceed in his absence. (7) The court shall state in open court its reasons for not proceeding under this section in the absence of an accused who has attained the age of 18 years; and the court shall cause those reasons to be entered in its register of proceedings.

• (7) Section 13(5) of that Act (non-appearance of accused: issue of warrant) ceases to have effect.

Extension of powers of non-legal staff

55

• (1) Section 7A of the Prosecution of Offences Act 1985 (c. 23) (powers of non-legal staff) is amended as follows.

• (2) In subsection (2) (powers of designated non-legal staff)—

• (a) in paragraph (a)(ii), after “trials” insert “ of offences triable either way or offences which are punishable with imprisonment in the case of persons aged 21 or over ”;

• (b) after paragraph (a)(ii) insert—

(iii) the conduct of applications or other proceedings relating to preventative civil orders; (iv) the conduct of proceedings (other than criminal proceedings) in, or in connection with, the discharge of functions assigned to the Director under section 3(2)(g) above.

;

• (c) for paragraph (b) substitute—

(b) any powers of a Crown Prosecutor that do not involve the exercise of such rights of audience as are mentioned in paragraph (a) above but are exercisable in relation to the conduct of— (i) criminal proceedings in magistrates' courts, or (ii) applications or proceedings falling within paragraph (a)(iii) or (iv).

• (3) For subsection (5) (interpretation) substitute—

(5) In this section— - “bail in criminal proceedings” has the same meaning as in the Bail Act 1976 (see section 1 of that Act); - “preventative civil orders” means— 1. orders within section 3(2)(fa) to (fe) above; 2. orders under section 5 or 5A of the Protection from Harassment Act 1997 (restraining orders); or 3. orders under section 8 of the Crime and Disorder Act 1998 (parenting orders). (5A) For the purposes of this section a trial begins with the opening of the prosecution case after the entry of a plea of not guilty and ends with the conviction or acquittal of the accused.

• (4) Omit subsection (6) (powers not applicable to offences triable only on indictment etc.).

• (5) After subsection (7) insert—

(8) As from 1 May 2011 nothing in this section confers on persons designated under this section— (a) any rights of audience, or (b) any right to conduct litigation, for the purposes of Part 3 of the Legal Services Act 2007 (reserved legal activities). (9) As from that date the following provisions of that Act accordingly do not apply to persons designated under this section— (a) paragraph 1(3) of Schedule 3 (exemption for persons with statutory rights of audience), and (b) paragraph 2(3) of that Schedule (exemption for persons with statutory right to conduct litigation). (10) The Attorney General may by order make such modifications in the application of any enactment (including this section) in relation to persons designated under this section as the Attorney General considers appropriate in consequence of, or in connection with, the matters provided for by subsections (8) and (9). (11) The Attorney General may also by order amend subsection (2)(a)(ii) so as to omit the words “or offences which are punishable with imprisonment in the case of persons aged 21 or over”. (12) The power to make an order under subsection (10) or (11) is exercisable by statutory instrument, but a statutory instrument containing such an order may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

• (6) In section 15 of that Act (interpretation of Part 1) in subsection (4) (provisions for the purposes of which binding over proceedings are to be taken to be criminal proceedings) for “and 7(1)” substitute “ , 7(1) and 7A ”.

Criminal legal aid

Provisional grant of right to representation

56

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disclosure of information to enable assessment of financial eligibility

57

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Pilot schemes

58

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Miscellaneous

SFO’s pre-investigation powers in relation to bribery and corruption: foreign officers etc.

59

• (1) The Criminal Justice Act 1987 (c. 38) is amended as follows.

• (2) After section 2 insert—

(2A) (1) The powers of the Director under section 2 are also exercisable for the purpose of enabling him to determine whether to start an investigation under section 1 in a case where it appears to him that conduct to which this section applies may have taken place. (2) But— (a) the power under subsection (2) of section 2 is so exercisable only if it appears to the Director that for the purpose of enabling him to make that determination it is expedient to require any person appearing to him to have relevant information to do as mentioned in that subsection, and (b) the power under subsection (3) of that section is so exercisable only if it appears to the Director that for that purpose it is expedient to require any person to do as mentioned in that subsection. (3) Accordingly, where the powers of the Director under section 2 are exercisable in accordance with subsections (1) and (2) above— (a) the reference in subsection (2) of that section to the person under investigation or any other person whom the Director has reason to believe has relevant information is to be read as a reference to any such person as is mentioned in subsection (2)(a) above, (b) the reference in subsection (3) of that section to the person under investigation or any other person is to be read as a reference to any such person as is mentioned in subsection (2)(b) above, and (c) any reference in subsection (2), (3) or (4) of that section to the investigation is to be read as a reference to the making of any such determination as is mentioned in subsection (1) above. (4) Any reference in section 2(16) to the carrying out of an investigation by the Serious Fraud Office into serious or complex fraud includes a reference to the making of any such determination as is mentioned in subsection (1) above. (5) This section applies to any conduct which, as a result of section 108 of the Anti-terrorism, Crime and Security Act 2001 (bribery and corruption: foreign officers etc), constitutes a corruption offence (wherever committed). (6) The following are corruption offences for the purposes of this section— (a) any common law offence of bribery; (b) the offences under section 1 of the Public Bodies Corrupt Practices Act 1889 (corruption in office); and (c) the offences under section 1 of the Prevention of Corruption Act 1906 (corrupt transactions with agents).

• (3) In section 17 (extent)—

• (a) in subsection (2) (provisions of Act extending to Scotland), for “section 2” substitute “ sections 2 and 2A ”; and

• (b) in subsection (3) (provisions of Act extending to Northern Ireland), after “sections 2” insert “ , 2A ”.

Contents of an accused’s defence statement

60

• (1) In section 6A(1) of the Criminal Procedure and Investigations Act 1996 (c. 25) (contents of defence statement), after “prosecution,” in paragraph (c) insert—

(ca) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence,

.

• (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) ”.

Compensation for miscarriages of justice

61

• (1) The Criminal Justice Act 1988 (c. 33) has effect subject to the following amendments.

• (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. (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—

(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 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 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.

• (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) (1) This section applies where an assessor is required to assess the amount 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— (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 (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— (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. (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. (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 (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 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 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) (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, 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 that 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 (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 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 (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 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 (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 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 given in respect of it. (6) In this section— - “mental health legislation” means— 1. Part 3 of the Mental Health Act 1983, 2. Part 3 of the Mental Health (Northern Ireland) Order 1986, or 3. 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 (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— (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. (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. (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 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.

Annual report on Criminal Justice (Terrorism and Conspiracy) Act 1998

62

• (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

• (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.

Possession of extreme pornographic images

63

• (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

• (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 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.

• (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 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.

• (5A) In relation to possession of an image in England and Wales, an “extreme image” is an image which—

• (a) falls within subsection (7) or (7A), and

• (b) is grossly offensive, disgusting or otherwise of an obscene character.

• (6) In relation to possession of an image in Northern Ireland, an “extreme image” is an image which—

• (a) falls within subsection (7) or (7A) , 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,

• (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),

and a reasonable person looking at the image would think that any such person or animal was real.

• (7A) An image falls within this subsection if it portrays, in an explicit and realistic way, either of the following—

• (a) an act which involves the non-consensual penetration of a person's vagina, anus or mouth by another with the other person's penis, or

• (b) an act which involves the non-consensual sexual penetration of a person's vagina or anus by another with a part of the other person's body or anything else,

and a reasonable person looking at the image would think that the persons were real.

• (7B) For the purposes of subsection (7A)—

• (a) penetration is a continuing act from entry to withdrawal;

• (b) “vagina” includes vulva.

• (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 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 Public Prosecutions; or

• (b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

Exclusion of classified films etc.

64

• (1) Section 63 does not apply to excluded images.

• (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 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—

• (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 63(5) applies in connection with determining that question as it applies in connection with determining whether an image is pornographic.

• (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

• (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 63 (along with other enactments creating 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 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;

• “extract” includes an extract consisting of a single image;

• “image” and “pornographic” have the same meanings as in section 63;

• “recording” means any disc, tape or other device capable of storing data electronically and from which images may be produced (by any means).

• (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.

Defences: general

65

• (1) Where a person is charged with an offence under section 63, it is a defence for the person to prove any of the matters mentioned in subsection (2).

• (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;

• (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 meanings as in section 63.

Defence: participation in consensual acts

66

• (A1) Subsection (A2) applies where in England and Wales—

• (a) a person (“D”) is charged with an offence under section 63, and

• (b) the offence relates to an image that portrays an act or acts within subsection (7)(a) to (c) or (7A) of that section (but does not portray an act within subsection (7)(d) of that section).

• (A2) It is a defence for D to prove—

• (a) that D directly participated in the act or any of the acts portrayed, and

• (b) that the act or acts did not involve the infliction of any non-consensual harm on any person, and

• (c) if the image portrays an act within section 63(7)(c), that what is portrayed as a human corpse was not in fact a corpse, and

• (d) if the image portrays an act within section 63(7A), that what is portrayed as non-consensual penetration was in fact consensual.

• (1) Subsection (2) applies where in Northern Ireland —

• (a) a person (“D”) is charged with an offence under section 63, and

• (b) the offence relates to an image that portrays an act or acts within subsection (7)(a) to (c) or (7A) of that section (but does not portray an act within subsection (7)(d) of that section).

• (2) It is a defence for D to prove—

• (a) that D directly participated in the act or any of the acts portrayed, and

• (b) that the act or acts did not involve the infliction of any non-consensual harm on any person, and

• (c) if the image portrays an act within section 63(7)(c), that what is portrayed as a human corpse was not in fact a corpse; and

• (d) if the image portrays an act within section 63(7A), that what is portrayed as non-consensual penetration was in fact consensual.

• (3) For the purposes of this section harm inflicted on a person is “non-consensual” harm if—

• (a) the harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or

• (b) where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted.

Penalties etc. for possession of extreme pornographic images

67

• (1) This section has effect where a person is guilty of an offence under section 63.

• (2) If the offence relates to an image that portrays any relevant act (with or without other acts) , 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;

• (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 portray any relevant act, 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;

• (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, the general limit in a magistrates’ court;

• (b) in relation to Northern Ireland, 6 months.

• (5) In this section “relevant act” means—

• (a) in relation to England and Wales, an act within section 63(7)(a) or (b) or (7A)(a) or (b);

• (b) in relation to Northern Ireland, an act within section 63(7)(a) or (b) or (7A)(a) or (b).

Special rules relating to providers of information society services

68

Schedule 14 makes special provision in connection with the operation of section 63 in relation to persons providing information society services within the meaning of that Schedule.

Indecent photographs of children: England and Wales

69

• (1) The Protection of Children Act 1978 (c. 37) is amended as follows.

• (2) In section 1B(1)(b) (exception for members of the Security Service)—

• (a) after “Security Service” insert “ or the Secret Intelligence Service ”;

• (b) for “the Service” substitute “ that Service ”.

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

(4A) References to a photograph also include— (a) a tracing or other image, whether made by electronic or other means (of whatever nature)— (i) which is not itself a photograph or pseudo-photograph, but (ii) which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both); and (b) data stored on a computer disc or by other electronic means which is capable of conversion into an image within paragraph (a); and subsection (8) applies in relation to such an image as it applies in relation to a pseudo-photograph.

• (4) In section 7(9)(b) (meaning of indecent pseudo-photograph), for “a pseudo-photograph” substitute “ an indecent pseudo-photograph ”.

Indecent photographs of children: Northern Ireland

70

• (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 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)— (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 (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.

• (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 ”.

Maximum penalty for publication etc. of obscene articles

71

In section 2(1)(b) of the Obscene Publications Act 1959 (c. 66) (maximum penalty on indictment for publication etc. of obscene articles) for “three years” substitute “ five years ”.

Sexual offences

Offences committed outside the United Kingdom

72

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

(72) (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, 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 United Kingdom, (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 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, (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 (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. (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) 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 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 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; - “United Kingdom national” means an individual who is— 1. a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen; 2. a person who under the British Nationality Act 1981 is a British subject; or 3. a British protected person within the meaning of that Act; - “United Kingdom resident” means an individual who is resident in the United Kingdom. (10) Schedule 2 lists the sexual offences to which this section applies.

• (2) Schedule 2 to that Act (list of sexual offences to which section 72 applies) is amended as follows.

• (3) In paragraph 1 (offences under the law of England and Wales)—

• (a) for paragraphs (a) and (b) substitute—

(a) an offence under any of sections 5 to 19, 25 and 26 and 47 to 50; (b) an offence under any of sections 1 to 4, 30 to 41 and 61 where the victim of the offence was under 18 at the time of the offence;

;

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

• (c) in paragraph (d), omit “in relation to a photograph or pseudo-photograph showing a child under 16”.

• (4) In paragraph 2 (offences under the law of Northern Ireland)—

• (a) in sub-paragraph (1)(c)(iv), for “17” substitute “ 18 ”; and

• (b) in sub-paragraph (2), for “17” substitute “ 18 ”.

Grooming and adoption

73

Schedule 15—

• (a) amends section 15 of the Sexual Offences Act 2003 (c. 42) (meeting a child following sexual grooming etc.),

• (b) amends that Act in relation to adoption, and

• (c) amends the Adoption Act 1976 (c. 36) in relation to offences under sections 64 and 65 of the Sexual Offences Act 2003.

Hatred on the grounds of sexual orientation

Hatred on the grounds of sexual orientation

74

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 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

Offences relating to the physical protection of nuclear material and nuclear facilities

75

• (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,

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.

Reasonable force for purposes of self-defence etc.

76

• (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.

• (2) The defences are—

• (a) the common law defence of self-defence; and

• (aa) the common law defence of defence of property; 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).

• (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 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—

• (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.

• (5A) In a householder case, 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 grossly disproportionate in those circumstances.

• (6) In a case other than a householder case, 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.

• (6A) In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.

• (7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

• (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

• (b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

• (8) Subsections (6A) and (7) are 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).

• (8A) For the purposes of this section “a householder case” is a case where—

• (a) the defence concerned is the common law defence of self-defence,

• (b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),

• (c) D is not a trespasser at the time the force is used, and

• (d) at that time D believed V to be in, or entering, the building or part as a trespasser.

• (8B) Where—

• (a) a part of a building is a dwelling where D dwells,

• (b) another part of the building is a place of work for D or another person who dwells in the first part, and

• (c) that other part is internally accessible from the first part,

that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is a dwelling.

• (8C) Where—

• (a) a part of a building is forces accommodation that is living or sleeping accommodation for D,

• (b) another part of the building is a place of work for D or another person for whom the first part is living or sleeping accommodation, and

• (c) that other part is internally accessible from the first part,

that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is forces accommodation.

• (8D) Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they apply for the purposes of subsection (3).

• (8E) The fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser for the purposes of subsection (8A).

• (8F) In subsections (8A) to (8C)—

• “building” includes a vehicle or vessel, and

• “forces accommodation” means service living accommodation for the purposes of Part 3 of the Armed Forces Act 2006 by virtue of section 96(1)(a) or (b) of that Act.

• (9) This section , except so far as making different provision for householder cases, is intended to clarify the operation of the existing defences mentioned in subsection (2).

• (10) In this section—

• (a) “legitimate purpose” means—

• (i) the purpose of self-defence under the common law, or

• (ia) the purpose of defence of property under the common law, or

• (ii) the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b);

• (b) references to self-defence include acting in defence of another person; and

• (c) references to the degree of force used are to the type and amount of force used.

Unlawfully obtaining etc. personal data

Power to alter penalty for unlawfully obtaining etc. personal data

77

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New defence for purposes of journalism and other special purposes

78

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Blasphemy

Abolition of common law offences of blasphemy and blasphemous libel

79

• (1) The offences of blasphemy and blasphemous libel under the common law of England and Wales are abolished.

• (2) In section 1 of the Criminal Libel Act 1819 (60 Geo. 3 & 1 Geo. 4 c. 8) (orders for seizure of copies of blasphemous or seditious libel) the words “any blasphemous libel, or” are omitted.

• (3) In sections 3 and 4 of the Law of Libel Amendment Act 1888 (c. 64) (privileged matters) the words “blasphemous or” are omitted.

• (4) Subsections (2) and (3) (and the related repeals in Schedule 28) extend to England and Wales only.

Part 6 — International co-operation in relation to criminal justice matters

Recognition of financial penalties: requests to other member States

Requests to other member States: England and Wales

80

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Procedure on issue of certificate: England and Wales

81

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Requests to other member States: Northern Ireland

82

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Procedure on issue of certificate: Northern Ireland

83

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Recognition of financial penalties: requests from other member States

Requests from other member States: England and Wales

84

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Procedure on receipt of certificate by designated officer

85

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Modification of Magistrates' Courts Act 1980

86

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Requests from other member States: Northern Ireland

87

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Procedure on receipt of certificate by clerk of petty sessions

88

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Modification of Magistrates' Courts (Northern Ireland) Order 1981

89

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Transfer of certificates to central authority for Scotland

90

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Recognition of financial penalties: miscellaneous

Recognition of financial penalties: general

91

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Interpretation of sections 80 to 91 etc.

92

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Repatriation of prisoners

Delivery of prisoner to place abroad for purposes of transfer out of the United Kingdom

93

In section 2(1) of the Repatriation of Prisoners Act 1984 (c. 47) (transfer out of the UK), for subsection (1) substitute—

(1) The effect of a warrant under section 1 providing for the transfer of the prisoner out of the United Kingdom shall be to authorise— (a) the taking of the prisoner to any place in any part of the United Kingdom, his delivery at a place of departure from the United Kingdom into the custody of an appropriate person and his removal by that person from the United Kingdom to a place outside the United Kingdom; or (b) the taking of the prisoner to any place in any part of the United Kingdom, his removal from the United Kingdom and his delivery, at the place of arrival from the United Kingdom, into the custody of an appropriate person. (1A) In subsection (1) “appropriate person” means a person representing the appropriate authority of the country or territory to which the prisoner is to be transferred.

Issue of warrant transferring responsibility for detention and release of an offender to or from the relevant Minister

94

After section 4 of the Repatriation of Prisoners Act 1984 (transfer into the United Kingdom) insert—