Here we go again…. More nonsense criminal provisions introduced based on previous nonsense provisions. The below provisions were introduced within the Coroners and Justice Bill on 14 January, 2009. Note clauses 48-56.
The following text has been taken from the Explanatory Note for the Coroners And Justice Bill.
For the progress of the Bill see the Parliament pages.
The Bill itself can be accessed here.
Note also the Ministry of Justice pages on the Coroners and Justice Bill.
Clause 48 and Schedule 10: Encouraging or assisting suicide: providers of information society services
332. Clause 48 and Schedule 10 ensure that the provisions outlined in clauses 46 and 47 above are consistent with the UK’s obligations under the E-Commerce Directive.
333. Schedule 10 ensures that providers of information society services who are established in England, Wales or Northern Ireland are covered by the offence of encouraging or assisting suicide even when they are operating in other European Economic Area states. Paragraphs 4 to 6 of the Schedule provide exemptions for internet service providers from the offence in limited circumstances, such as where they are acting as mere conduits for information that is capable, and provided with the intention, of encouraging or assisting suicide or are storing it as caches or hosts.
Clause 49: Prohibited images
334. Subsection (1) creates a new offence in England and Wales and Northern Ireland of possession of a prohibited image of a child.
335. Subsections (2) to (8) set out the definition of a “prohibited image of a child”. Under subsection (2) in order to be a prohibited image, an image must be pornographic, fall within subsection (6) and be grossly offensive, disgusting or otherwise of an obscene character. The definition of “pornographic” is set out in subsection (3). An image must be of such a nature that it must reasonably be assumed to have been produced solely or mainly for the purpose of sexual arousal. Whether this threshold has been met will be an issue for a jury to determine. Subsection (4) makes it clear that where (as found in a person’s possession) an individual image forms part of a series of images, the question of whether it is pornographic must be determined by reference both to the image itself and the context in which it appears in the series of images.
336. Subsection (5) expands on subsection (4). It provides that, where an image is integral to a narrative (for example a mainstream or documentary film) which when it is taken as a whole could not reasonably be assumed to be pornographic, the image itself may be not be pornographic, even though if considered in isolation the contrary conclusion would have been reached.
337. Subsection (6) and (7) provide that a prohibited image for the purposes of the offence is one which focuses solely or principally on a child’s genitals or anal region or portrays any of a list of acts set out in subsection (7).
338. Subsection (8) provides that for the purposes of subsection (7) penetration is a continuing act from entry to withdrawal.
339. Subsection (9) requires proceedings to be instituted by or with the consent of the Director of Public Prosecutions.
Clause 50: Exclusion of classified film, etc
340. This clause provides an exclusion from the scope of the offence under clause 49 for excluded images.
341. An “excluded image” is defined in subsection (2) as an image which forms part of a series of images contained in a recording of the whole or part of a classified work. A “recording” is defined in subsection (7) as any disc, tape or other device capable of storing data electronically and from which images may be produced. This therefore includes images held on a computer. A classified work is a video work in respect of which a classification certificate has been issued by an authority designated under section 4 of the Video Recordings Act 1984.
342. The effect of the exclusion is that a person who has a video recording of a film which has been classified by the British Board of Film Classification (BBFC), and which contains images that, despite their context, might amount to a “prohibited image of a child” for the purposes of the clause 49 offence, will not be liable for prosecution for the offence.
343. 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.
344. Subsection (4) provides that when an extracted image is one of a series of images, in establishing whether or not it is of such a nature that it must reasonably be assumed to have been extracted for the purpose of sexual arousal, regard is to be had to the image itself and to the context it which it appears in the series of images. This is the same test as set out in subsection (4) of clause 49. Subsection (5) of clause 49 also applies in determining this question.
345. The effect of subsection (5) is that, in determining whether a recording is a recording of a whole or part of a classified work, alterations due to technical reasons (such as a failure in the recording system), due to inadvertence (such as setting the wrong time for a recording) or due to the inclusion of extraneous material (such as advertisements), are to be disregarded.
346. Subsection (6) makes it clear that nothing in clause 50 affects any duty of a designated authority to take into account the offence in clause 49 when considering whether to issue a classification certificate in respect of a video work.
347. Subsection (7) sets out the definitions used in this section. Subsection (8) states that section 22(3) of the Video Recordings Act 1984 applies. The effect of section 22(3) is that where, an alteration is made to a video work in respect of which a classification certificate has been issued, the classification certificate does not apply to the altered work.
Clause 51: Defences
348. This clause sets out a series of defences to the clause 49 offence of possession of prohibited images of children. These defences are set out in subsection (1). They are the same as those for the offence of possession of indecent images of children under section 160(2) of the Criminal Justice Act 1988 and Article 15(2) of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988. They are:
* that the person had a legitimate reason for being in possession of the image (this will cover those who can demonstrate that their legitimate business means that they have a reason for possessing the image);
* that the person had not seen the image and did not know, or have reasonable cause to suspect, that the images held were prohibited images of children (this will cover those who are in possession of offending images but are unaware of the nature of the images); and
* that the person had not asked for the image – it having been sent without request – and that he or she had not kept it for an unreasonable period of time (this will cover those who are sent unsolicited material and who act quickly to delete it or otherwise get rid of it).
349. Subsection (2) provides that “prohibited image” in this clause has the same meaning as in clause 49.
Clause 52: Meaning of “image” and “child”
350. This clause defines “image” and “child” for the purposes of clauses 49, 50 and 51. These definitions are applied to these clauses by subsection (1).
351. Subsection (2) sets out the definition of an image. It states that for the purposes of this offence, “an image” includes still images such as photographs, or moving images such as those in a film. The term “image” also incorporates any type of data, including that stored electronically (as on a computer disk), which is capable of conversion into an image. This covers material available on computers, mobile phones or any other electronic device.
352. Subsection (3) provides that “image” does not include an indecent photograph or indecent pseudo-photograph of a child, as these are subject to other controls. Subsection (4) defines “indecent photograph” and “indecent pseudo-photograph” in accordance with the Protection of Children Act 1978 and for Northern Ireland, the Protection of Children (Northern Ireland) Order 1978. “Indecent photograph” includes an indecent film, a copy of a photograph or film, a negative and electronic data capable of conversion into a photograph. It also includes a tracing or other image derived from the whole or part of a photograph or pseudo-photograph and electronic data capable of conversion into such an image. A pseudo-photograph is an image, whether made by computer-graphics or otherwise, which appears to be a photograph and includes a copy of a pseudo-photograph and electronic data capable of conversion into a pseudo-photograph.
353. Subsection (5) defines a child to be a person under 18 years of age.
354. Subsection (6) requires that a person in an image is to be treated as a child if the impression conveyed by the image is that the person shown is a child, or the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not of a child.
355. Subsection (7) provides that references to an image of a person include references to an imaginary person, and subsection (8) makes it clear that references to an image of a child include references to an imaginary child.
Clause 53: Penalties
356. The penalties that will apply to persons found guilty of an offence under clause 49 are set out in this clause.
357. In England and Wales and Northern Ireland on conviction on indictment the maximum sentence is imprisonment for three years.
358. The maximum sentence on summary conviction of the offence in England and Wales is six months’ imprisonment. On the commencement of section 154(1) of the 2003 Act, the maximum sentence on summary conviction in England and Wales will rise to 12 months (see paragraph 13(1) of Schedule 20 to the Bill). The maximum custodial penalty on summary conviction in Northern Ireland is six months.
Clause 54: Entry, search, seizure and forfeiture
359. Subsection (1) applies the entry, search, seizure and forfeiture powers of the Protection of Children Act 1978 to prohibited images of children. Subsection (2) applies the equivalent Northern Ireland legislation.
360. Subsection (3) applies these powers to prohibited images to which clause 49 applies.
361. Paragraph 13(2) of Schedule 20 to the Bill provides that these powers of forfeiture have effect regardless of when the images were lawfully seized.
Clause 55 and Schedule 11: Special rules relating to providers of information society services
362. Clause 55 and Schedule 11 ensure that the provisions outlined above which make it an offence to possess prohibited images of children are consistent with the UK’s obligations under the E-Commerce Directive.
363. Under Schedule 11 providers of information society services who are established in England, Wales or Northern Ireland are covered by the new offence even when they are operating in other European Economic Area states. Paragraphs 3 to 5 of the Schedule provide exemptions for internet service providers from the offence of possession of prohibited images of children in limited circumstances, such as where they are acting as mere conduits for such material or are storing it as caches or hosts.
Clause 56: Indecent pseudo-photographs of children: marriage etc
364. Subsection (1) amends section 1A of the Protection of Children Act 1978 to extend the “marriage and other relationships” defence to offences under that Act so that it applies in relation to “pseudo-photographs”. The defence already applies to an offence under section 1(1)(a) of the Protection of Children Act 1978 of taking or making an indecent photograph of a child and to an offence under section 1(1)(b) or (c) of that Act relating to possession and distribution of an indecent photograph of a child.
365. Subsection (2) amends section 160A of the Criminal Justice Act 1988 to extendthe “marriage and other relationships” defence to offences under that Act.”to “pseudo-photographs”. The defence already applies to an offence under section 160 of the Criminal Justice Act 1988 relating to possessing an indecent photograph of a child.
366. Subsection (3) amends Article 15A of the Criminal Justice (Evidence etc.) (Northern Ireland) Order 1988 (SI 1988/1847 (NI.17)) to extend the “marriage and other relationships” defence to offences under that Order to “pseudo-photographs”. The defence already applies to an offence under Article 15 of the Criminal Justice (Evidence etc.) (Northern Ireland) Order 1988 (SI 1988/1847 (NI 17)) relating to possession of an indecent photograph of a child.
367. Subsection (4) amends Article 3B of the Protection of Children (Northern Ireland) Order 1978 (SI 1978/1047 (NI 17)) to extend to the “marriage and other relationships” defence to offences under that Order“pseudo-photographs”. The defence already applies to an offence under Article 3(1)(a) of the Protection of Children (Northern Ireland) Order 1978 (SI 1978/1047 (NI 17)) of taking or making an indecent photograph of a child and to Article 3(1)(b) or (c) of that Order relating to possession and distribution of an indecent photograph of a child.