The Bill in April 2008
This page shows the
wording of the Bill if amendments tabled in March, and a further defence drafted by Liberty at 65 (2)(d) tabled in April, would have been passed.
In the event they were withdrawn during the debate on 21 April, but may return in some form or other in coming weeks.
Deletions are struck through and replacement wording is underlined to assist understanding the significance of these changes.
There were also amendments to strike each section entirely, one of which was actually voted on, but lost because the Conservatives abstained.
Criminal Justice and Immigration Bill
Part 5 - Criminal law
Section 63 Possession of extreme pornographic images
(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 and
(c) records an actual act (whether performed in the United Kingdom or not) in which one or more persons committed a sexual offence
(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.
(6) An "extreme image" is an image which-
(a) falls within subsection (7), and
(b) is grossly offensive, disgusting or otherwise of an obscene
character.
is obscene as defined by section 1 of the Obscene Publications Act 1959 (c. 66) (test of obscenity)
(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, breast 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.
(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).
(8A) In subsection (2) of this section, "a sexual offence" is an act which, if performed in the United Kingdom, would constitute an offence under Schedule 3 of the Sexual Offences Act 2003 (c. 42).
(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.
64 Exclusion of classified films etc.
(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 (c.
39) (effect of alterations) applies for the purposes of this section
as it applies for the purposes of that Act.
65 Defence
(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.
(d) that they reasonably believe that no person portrayed in the image was made to act against their will. ( For the purposes of this section whether a belief is reasonable is to be determined having regard to all the circumstances ) .
(3) In this section "extreme pornographic image" and "image" have the
same meanings as in section 63.
66 Penalties etc. for possession of extreme pornographic images
(1) This section has effect where a person is guilty of an offence under
section 63.
(2) Except where subsection (3) applies to the offence, the
offender is liable-
(a) on summary conviction, to imprisonment for a term not exceeding the
relevant period or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not
exceeding
3 years or a fine or both.
(3) If the offence relates to an image that does not depict any act
within section 63(6)(a) or (b), 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, 12 months;
(b) in relation to Northern Ireland, 6 months.
