Coroners and Justice Act 2009 (Provisions coming into force on 6 APRIL 2010)

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Circular 2010/06

TITLE CORONERS AND JUSTICE ACT 2009 (PROVISIONS COMING INTO FORCE ON 6APRIL 2010)
From: Criminal Law Policy UnitMinistry of Justice
Distribution date: 19 March 2010
Implementation Date: 06 April 2010
For further information contact: See Annex C at the end of the Circular
Broad subject: Criminal Justice and Data Protection
Sub category: Coroners and Justice Act 2009
This circular is being sent to: Lord Chief Justice, President of the Queen’s Bench Division, Senior Presiding Judge, Justices of the Supreme Court, Lords of Appeal in Ordinary, Lords Justices of Appeal, Judge Advocate General, High Court Judges, Crown Court Judges, DistrictJudges (Magistrates’ Courts), Bench Chairmen of Justices, Clerks to the Justices, Judicial Studies Board, Council of Circuit Judges, Magistrates’ Association, Justices’ Clerks’ Society, Chief Officers of Police, Association of Chief Police Officers, Police Federation, Police Superintendents’ Association, HM Chief Inspector of Constabulary, Chairs of Police Authorities, Association of Police Authorities, CPS, Chief Crown Prosecutors, Heads of Division RCPO, Whitehall Prosecutors’ Group, Law Society, Criminal Law Solicitors’ Association, Criminal Bar Association, Bar Council, HMCS Area Directors, Crown Court Managers, Tribunals Service, CountyCourt Managers, County Court District Judges and Deputy District Judges, Citizens Advice Bureaux, Community Legal Advice, Civil Court Users’ Association
Copies are being sent to: Directors of Offender Management,  Chief Officersof Probation, Chief Executives of Probation Trusts

CORONERS AND JUSTICE ACT (COMMENCEMENT NO. 4, TRANSITIONAL AND SAVINGS PROVISIONS) ORDER 2010 (SI. 2010/816)

1.  This circular provides details of the key provisions of the Coroners and Justice Act 2009 (“the 2009 Act”) which come into force on 6 April 2010.

2.  A separate circular is being produced by the Northern Ireland Office for provisions that are relevant to Northern Ireland and will be distributed locally.

3.  The purpose of this circular is to provide guidance and it should not be regarded as providing legal advice. Legal advice should be sought if there is any doubt as to the application or interpretation of the legislation.

Sections 62-68: Possession of Prohibited Images of Children

4.  Section 62 of the 2009 Act makes it an offence to possess a prohibited image of a child. The offence targets certain non-photographic images of children, possession of which is not covered by existing legislation. These changes will mean that:

  • the possession of a prohibited image of a child is now a criminal offence subject to a maximum three year prison sentence;
  • the police will now be able to forfeit prohibited images of children using the  established forfeiture powers (for example: section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 and the Schedule to the Protection of Children Act 1978).

5.  Annex A provides information on the new offence at sections 62 to 68.

Section 69: Indecent pseudo-photographs of children: marriage etc

6.  Section 69 of the 2009 Act amends section 1A of the Protection of Children Act 1978 (c.37) and section 160A of the Criminal Justice Act 1988 (c.33) to extend the “marriage and other relationships” provisions to offences relating to indecent pseudo-photographs of children.

7.  The “marriage and other relationships” provisions in the 1978 and 1988 Acts relate to certain offences involving indecent photographs of children. They provide certain defences in circumstances where it is proved that the child was aged 16 or over and at the relevant time the child and defendant were married, civil partners or living together as partners in an enduring family relationship.

8.  The effect of section 69 of the 2009 Act is to extend the “marriage and other relationships” provisions so that they equally apply to offences involving indecent pseudo-photographs of children as well as to offences involving indecent photographs of children.

Section 70: Genocide, crimes against humanity and war crimes

9.  Section 70 amends Part 5 of the International Criminal Court Act 2001 (“the 2001 Act”) in relation to the offences of genocide, war crimes and crimes against humanity and related offences. It amends Part 5 of the 2001 Act in two important respects.

10. Firstly, it adds a new section 65A into the 2001 Act so as to make provision for the retrospective application of the offences to acts committed on or after 1 January 1991. Previously, the 2001 Act offences only applied to conduct committed on or after 1 September 2001, being the date that Part 5 of the Act came into force.

11. The retrospective application of the offences is, with the exception of genocide and some categories of war crimes, subject to a requirement that, at the time of its commission, the act constituting the offence amounted in the circumstances to a criminal offence under international law. This requirement ensures that the provisions comply with the principle enshrined in Article 7 of the European Convention on Human Rights that no one shall be held guilty of any criminal offence on account of any act which did not constitute a criminal offence under national or international law at the time when it was committed.

12. The requirement does not need to apply to genocide and certain categories of war crimes, because it is beyond dispute that those offences (and all their elements) were fully recognised in international law by 1991. The requirement is needed for the other offences as, although the vast majority were recognised in international law during the relevant period, a small number may have been recognised in a narrower form and a very small number may not have been sufficiently recognised at all. International law also developed during the period in question.

13. The effect of the international law requirement, where it applies, is that the relevant offences will apply to acts committed in the period 1 January 1991 – 31 August 2001 to the full extent that they were recognised in international law during that period. This means, for example, that if a particular offence was recognised in international law at the time that the accused person committed the alleged criminal act but in a narrower form to the offence described in the 2001 Act, the accused can still be convicted of the offence so long as his or her conduct met the elements of the offence as recognised in international law at that time.

14. In consequence of new section 65A, new section 65B modifies the penalties that apply to some offences committed pursuant to section 65A. These modifications ensure that, in respect of 2001 Act offences that were already covered by domestic law in 1991, the courts cannot impose a higher penalty under the 2001 Act than the maximum penalty that was available at the time under domestic law.

15. Secondly, section 70 inserts a new section 67A into Part 5 of the 2001 Act to make further provision in respect of UK residents. The offences in the 2001 Act apply to acts committed outside the UK by such residents. Section 67A(1) lists a number of categories of person who are to be treated as resident in the UK for the specific purposes of Part 5 of the 2001 Act to the extent that this would not otherwise be the case. The list includes, for example, those who have successfully applied for asylum or who are in the UK applying for asylum and also those with indefinite leave to remain in the UK or who are in the UK applying for such indefinite leave.

16. The new section 67A(2) of the 2001 Act also provides a non-exhaustive list of factors that a court must take into account in determining whether a person is resident in the UK. These include, for example, the length and purpose of the person’s stay or intended stay, and whether the person has family or other connections to the UK or an interest in residential property located in the UK.

Section 74-85: Investigation Anonymity Orders

17. Chapter 1 of Part 3 of the 2009 Act creates a new investigation anonymity order.  This order is separate from witness anonymity orders at trial, which are covered by Chapter 2 of Part 3 of the 2009 Act. Chapter 2 came into force on 1 January, replacing the Criminal Evidence (Witness Anonymity) Act 2008.  Ministry of Justice Circular 2009/08 provides further details: http://www.justice.gov.uk/publications/witness-anonymity-provisions- circular.htm

18. The purpose of the investigation anonymity order is to give informants in gang-related gun or knife homicide investigations greater reassurance that their identity will be protected throughout the investigation and permanently thereafter.  However, if the protected person wishes to give evidence at trial anonymously, an application to the court for a witness anonymity order will still be required (see chapter 2 of Part 3 of the 2009 Act mentioned above).  The legislation is designed to give people who have information about the most serious gang-related crimes greater confidence to come forward.  For the purposes of investigation anonymity orders, gangs are defined as groups, the majority of whose members appear to be aged at least 11 but under 30.

19. The basic effect of the legislation is to make it a criminal offence for anybody to disclose in any way that a person covered by one of these orders is or was able or willing to assist a relevant investigation.  The offence will apply to the police and to any other person.  The legislation includes safeguards to enable law enforcement agencies to disclose the informant’s identity internally where it is required for the purposes of the investigation or prosecution.

20. Investigation anonymity orders are in addition to existing constraints on the disclosure of information about informants to which the police and others are already subject (e.g. the offence of conspiracy to pervert the course of justice in the case of corrupt disclosures, data protection legislation and common law confidentiality duties).

21. An order will last in perpetuity unless discharged as the danger to an informant can remain after the investigation and any trial that follows. In recognition of the fact that disclosure of an informant’s identity may seriously harm other individuals (e.g. family members), the order is not automatically lifted on the informant’s death.  However, an investigation anonymity order is not contravened if disclosure is made pursuant to a court order, or if disclosure is required by another piece of legislation and section 76(9) does not apply (see section 76(8)).

Procedural information

22. Practitioners’ attention is drawn to section 5 of Part 6 of the Criminal Procedure Rules, which sets out the detailed procedure for applying for an investigation anonymity order and other related matters.  A new version of Part 6, amended to take account of investigation anonymity orders, comes into force on 5 April 2010.  SI  2010/60 [L2] refers.

23. The persons who can apply for an investigation anonymity order are set out in sections 77 and 81 of the 2009 Act.  The broad effect of these sections is to restrict the function to police officers and prosecutors specially authorised by their organisations.  It is not available to police officers and prosecutors generally.

24. Application must be made to a justice of the peace (section 77) which for this purpose includes a District Judge (Magistrates’ Courts).  In practice, applications will be in writing and will include a draft of the order requested. It is expected that this will be followed by an oral hearing in private, in accordance with part 6.23(1) of the Criminal Procedures Rules.  Note that section 77(3) empowers a JP to deal with an application without knowing the identity of the person who is to be the subject of the order.  It is anticipated that the applicant will not normally supply that information unless specifically requested to do so.

25. A refusal to make the order attracts a right of appeal to a Crown Court judge (section 79).  Practitioners should be aware of the need to indicate an intention of appealing in advance (section 79(2)), and also of the 21 day time limit for service of a copy of the original application on the Crown Court (set out in Criminal Procedure Rule 6.26(2)).

26. A JP can discharge an investigation anonymity order.  The main difference between this procedure and the procedure for applying for the order is that the person to whom the order relates can apply, as well as the police or prosecutor.  A decision to discharge an order, and a refusal to do so, attracts a right of appeal to a Crown Court judge. There is no obligation to indicate an intention of appealing in advance, but failure to do so may mean the order is discharged immediately (section 80(7)).  The other parties to the discharge proceedings must be informed of the appeal within 21 days of the discharge decision (Criminal Procedure Rule 6.26(2)).

Monitoring

27. Section 83 of the Act requires the Secretary of State to review the operation of investigation anonymity orders and prepare a report of that review. A copy of that report must be laid before Parliament by 6 April 2012.

28. In order to ensure that an effective report is placed before Parliament on the operation of the provisions, they should be monitored over the period before the report is due.  Arrangements are being made for the police to record applications by the police or the CPS for investigation anonymity orders, together with other suitable information, for subsequent collation centrally.

Section 113: Powers in respect of offenders who assist investigations and prosecutions

Background

29. Sections 71 to 74 of the Serious Organised Crime and Police Act 2005 (“the 2005 Act”) created a statutory framework for the provision of immunity from prosecution and sentence reductions for defendants who co-operate in the investigation and prosecution of others. The following powers are conferred on “specified prosecutors”:

  • Power to grant a person immunity from prosecution (section 71).
    • Power to give an undertaking that any information which a person provides will not be used against that person in criminal proceedings (section 72).
    • Power to enter into a written agreement with a defendant for the defendant to provide assistance in relation to an offence, which the court may take into account when sentencing (section 73).
    • Power to refer a case back to court where a defendant reneges on such an agreement, or provides new or additional assistance (section 74).

30. Before the present amendment the “specified prosecutors” were:

  • The Director of Public Prosecutions.
  • The Director of Revenue and Customs Prosecutions.
  • The Director of the Serious Fraud Office.
  • The Director of Public Prosecutions for Northern Ireland.
  • A prosecutor designated by one of the above.

31. All these prosecutors deal with serious and organised crime. All are superintended or overseen by the Attorney General, whom they consult before using the power to grant immunity from prosecution (because decisions on immunity are taken on a public interest basis and also bind other prosecutors).

32. In addition, under the common law prosecutorial discretion can be used by any prosecutor to secure the co-operation of potential co- defendants. The Attorney General’s agreement is sought to any proposal to grant immunity from prosecution under the common law.

The changes from 6 April 2010

33. Section 113 of the 2009 Act amends sections 71 and 72 of the 2005

Act to provide that those statutory provisions can only be used for the investigation or prosecution of serious criminal offences. While a person who assists the authorities under those powers can be offered the relevant incentives in respect of any offence, the assistance must be in relation to the investigation or prosecution of an offence that is capable of being tried in the Crown Court (that is, it is either an indictable only offence or an indictable offence triable either way).

34. That amendment has been made because it is considered desirable to make explicit the existing intention that the provisions are to be used only in obtaining assistance in respect of serious offences, particularly in view of the extension of the powers to two additional authorities as described below.

35. Section 113 adds to the list of “specified prosecutors” who can use the above statutory powers the Financial Services Authority and the Secretary of State for Business, Innovation and Skills. Because those authorities are not superintended or overseen by the Attorney General, their power to grant immunity from prosecution is made subject to the consent of the Attorney General. They may delegate the powers within their respective organisations only to one prosecutor and a nominated deputy to act in that person’s absence. Their addition to the list reflects the fact that both prosecute serious financial crime, such as insider dealing and major frauds, under a number of Acts.

36. Finally, there is a power for the Attorney General to issue guidance to all “specified prosecutors” about the exercise by them of the above statutory powers, to ensure consistency of approach and proper liaison in the event of overlapping interests, should the Attorney consider such guidance necessary.

Section 118 -136:  Sentencing Council for England and Wales

37. Sections 118 to 136 of the 2009 Act establish the Sentencing Council for England and Wales. The Sentencing Council will be independent. It will be an advisory Non-Departmental Public Body sponsored by the Ministry of Justice.

38. The Sentencing Council will:

  • prepare and issue guidelines for the courts as to the sentencing of offenders and as to the allocation of cases as between Magistrates and the Crown Court;
  • assess and review the resource implications of these guidelines and, at the request of the Lord Chancellor, of government policy or legislative proposals, for the provision of prison places and probation and youth justice services;
  • monitor the use of guidelines by the courts and consider what conclusions can be drawn from that monitoring
  • promote awareness of sentencing practice and matters including the cost and effectiveness of different sentences;
  • publish information regarding the sentencing practice of the magistrates’ courts acting in each local justice area;
  • publish information regarding the sentencing practice of the

Crown Court at each location at which it sits;

  • assess the impact of sentencing practice and other non- sentencing factors on the resources needed for the provision of prison places and probation and youth justice services; and
  • report annually to the Lord Chancellor.

39. Section 120(11) provides that in developing and reviewing its guidelines the Sentencing Council will have regard to the sentences imposed by the courts for offences, the need to promote consistency in sentencing, the impact of sentencing decisions on victims, the need to promote public confidence in the criminal justice system, the cost of different sentences and their relative effectiveness in preventing re- offending and the results of its monitoring of the operation and effect of its guidelines.

40. Section 120(6) requires that the Sentencing Council shall, except where urgency demands otherwise (as provided for in Section 123), publish draft guidelines and consult widely including with the public, practitioners in the criminal justice system, Government Ministers and Parliament (through the Justice Select Committee). The final decision on the content of a guideline will be that of the Council.

41. Section 128(2) provides that, in monitoring the operation and effect of guidelines, the Sentencing Council must in particular seek to draw conclusions about the frequency and extent to which courts depart from guidelines, the factors which influence sentences imposed, the effect of the guidelines on the promotion of consistency in sentencing and the effect of the guidelines on public confidence in the criminal justice system. The Council will report in its annual report on the conclusions drawn.

Sentencing Guidelines Council and Sentencing Advisory Panel

42. Section 135 provides for the abolition of the Sentencing Guidelines Council (SGC) and the Sentencing Advisory Panel. These are abolished from 6 April 2010. The final report of the SGC has been published.

43. The transitional provisions in Schedule 22 to the Act have the effect that the section 125 duty on courts (i.e. to follow sentencing guidelines unless the interests of justice require otherwise) does not apply to courts dealing with offences committed before 6 April 2010.  In such cases, courts will continue to apply the “have regard” duty as regards applying the existing sentencing guidelines.  The definitive guidelines issued by the SGC are subject to transitional provisions in the relevant commencement order so as to become definitive guidelines issued by the Sentencing Council.

Requirements on the courts

44. Section 121 provides that the guidelines prepared by the Sentencing Council in respect of an offence should specify an ‘offence range’ which is the range of sentences that the Sentencing Council considers it appropriate for a court to impose. The guideline should also, if reasonably practicable given the nature of the offence, specify ranges of sentences considered appropriate to different categories of case involving the commission of the offence; these are termed ‘category ranges’. The guidelines should also specify starting points for the offence and for any categories of case described in the guideline.

45. Courts are required by section 125(1) to follow the definitive guidelines, including those already issued by the SGC, when sentencing for offences committed on or after 6 April 2010 unless it would be contrary to the interests of justice to do so.  In relation to Sentencing Council guidelines, section 125 (1) replaces section 172 of the Criminal Justice Act 2003 (“the 2003 Act”) which simply required courts to “have regard” to any relevant guideline.

46. Section 125(3) sets out what this means for courts. The court has a duty to impose a sentence within the offence range set out in the guideline unless it would be contrary to the interests of justice to do so. If the guideline sets out categories of case the court must identify which category the case before the court most resembles in order to identify the relevant starting point within the offence range. Courts are not however required to sentence within the category range, if such is described in a guideline, and the court may decide that the case before the court does not sufficiently resemble any of the categories described in the guideline.  In each scenario outlined above, the court may depart from the guidelines where it is in the interests of justice to do so, in accordance with section 125(1).

47. Paragraph 84 of Schedule 21 to the 2009 Act amends section 174 of the 2003 Act to require courts, when giving reasons for and explaining the effect of sentences, to explain how the court discharged any duty on it to follow a relevant guideline, and to explain if the court so decided why it was considered that it would be contrary to the interests of

justice to follow the guideline.

Offences committed before 6 April 2010

48. Sections 125 and 126 and the amendment to section 174 of the 2003

Act do not apply to courts when sentencing for offences committed before 6 April 2010.  In these cases the repeal of section 172 of the

2003 Act does not apply and the courts must continue to have regard to the relevant guidelines, issued by the SGC. The court must explain (in the terms of section 174 of the 2003 Act before amendment) its reasons for deciding on a sentence of a different kind or outside the range indicated in a relevant guideline.

Proposals by Lord Chancellor or Court of Appeal

49. Section 124 provides that the Lord Chancellor or the Court of Appeal may propose that the Sentencing Council prepare or revise guidelines, and that the Council must consider whether or not to prepare or revise guidelines in response to such a proposal.

Resource implications of government policy or legislative proposals

50. Section 132 provides that the Sentencing Council will at the request of the Lord Chancellor assess and review the resource implications of government policy or legislative proposals, for the provision of prison places and probation and youth justice services.

Composition of the Sentencing Council

51. Schedule 15 provides that the Sentencing Council will have 14 members; 8 judicial members appointed by the Lord Chief Justice with the agreement of the Lord Chancellor and 6 non-judicial members appointed by the Lord Chancellor with the agreement of the Lord Chief Justice.

52. The judicial members will include at least one Circuit Judge, one

District Judge (Magistrates’ Courts) and a Magistrate. Others eligible to be judicial members are judges of the Court of Appeal and puisne judges of the High Court.

53. The chairing member of the Council and a deputy to the chairing member will be appointed from amongst the judicial members.

54. The non–judicial members must have experience in one or more of criminal defence, criminal prosecution, policing, sentencing policy and the administration of justice, promoting the welfare of the victims of crime, academic study or research in criminology or criminal law, the use of statistics or the rehabilitation of offenders. The Director of Public Prosecutions is eligible to be considered on the basis of experience in criminal prosecution.

55. The appointments will be announced shortly.

56. The President of the Sentencing Council will be the Lord Chief Justice.

The President will be entitled to attend meetings but will not be a member of the Sentencing Council.

57. The Lord Chancellor will appoint a representative with experience of sentencing policy. The representative will have a right to attend and speak at meetings of the Sentencing Council but will not be a member of the Council.

Office of the Sentencing Council

58. The Sentencing Council will be supported by the Office of the Sentencing Council. The Office of the Sentencing Council will be provided with the staff and resources to help the Council to deliver its new remit; in particular to engage public confidence and to develop arrangements for the capture and analysis of data on sentencing, and on the cost and impact of sentences, to support the Council’s monitoring and impact assessment functions.

Section 173 -175: Data protection

Assessment notices

59. Section 173 is being commenced in so far as it inserts new sections

41A and 41B into the Data Protection Act 1998 (“the 1998 Act”). This provides for the Information Commissioner to serve assessment notices on government departments (and other organisations, if designated by order) to assess compliance with the 1998 Act’s data protection principles. No designation orders have yet been made.

60. Requirements that may be included in an assessment notice include:

  • permitting the Information Commissioner to enter any specified premises and observe the processing of any personal data that takes place on the premises;
  • directing the Commissioner to any documents, equipment or other material on the premises that are of a specified description and to assist the Commissioner to view any information of a specified description that is capable of being viewed using equipment on the premises;
  • permitting the Commissioner to inspect or examine any of the documents, information, equipment or material to which the Commissioner is directed or which the Commissioner is assisted to view;
  • complying with any request from the Commissioner for a copy of any of the documents to which the Commissioner is directed and a copy (in a form requested by the Commissioner) of any of the information which the Commissioner is assisted to view;
  • making available for interview by the Commissioner persons who process personal data on behalf of the data controller (and are willing to be interviewed).

61. New section 41C of the 1998 Act, also inserted by section 173, places a duty on the Information Commissioner to produce a code of practice about assessment notices. This provision was commenced on 1 February 2010 (see Ministry of Justice circular 2010/02 at http://www.justice.gov.uk/publications/coroners-justice-act-key- provisions.htm for further details).The code of practice is available at: www.ico.gov.uk

Further amendments of the Data Protection Act 1998

62. Section 175 is being commenced in so far as it relates to the provisions in Schedule 20 mentioned below.

Amendments of the Data Protection Act 1998

63. Paragraph 5 of Schedule 20 to the 2009 Act amends section 48 of the 1998 Act  to provide that organisations will have a right of appeal to the First-tier Tribunal (Information Rights) against the terms of an assessment notice, analogous to that which exists for the information notices and enforcement notices the Information Commissioner can currently serve. Paragraphs 6 and 7 amend sections 67 and 70 of the 1998 Act to set out the parliamentary procedures for designating other organisations as liable to assessment notices, and the definition of “government department” for the purposes of these provisions.

64. Paragraphs 8 to 11 of Schedule 20 strengthen the existing powers of the Information Commissioner. They amend sections 43 and 44 of the Data Protection Act 1998 to allow the Information Commissioner to specify the information to be provided, specify the time and place that information is to be provided under the terms of an information notice or special information notice, and the form in which that information is to be provided. Paragraphs 10 and 11 also amend sections 43 and 44 of the 1998 Act to provide that a data controller is now required to provide information which would incriminate him or her in relation to proceedings for certain perjury offences, further to an information notice or special information notice. They also provide that statements made under these new expanded powers cannot be used as evidence against the data controller for any data protection offence (other than the offence of failing to comply with the terms of an information notice), unless evidence inconsistent with such a statement is relied on by the accused during proceedings, in which case this particular protection is forfeited. In those circumstances evidence of the original statement would be admissible in order to rebut the false assertions made by the accused.

65. Paragraph 12 amends Schedule 7 to the 1998 Act to make provision in relation to the principle against self-incrimination. The 1998 Act provides that data controllers are not obliged to satisfy subject access requests under section 7 of the 1998 Act, where to do so would reveal incriminating evidence of an offence other than an offence under the 1998 Act. It additionally provides that any information that was so disclosed under a subject access request is not admissible against the data controller in proceedings for any offence under the 1998 Act. Paragraph 12 amends those provisions so that certain perjury offences are not covered by this protection.

66. Paragraph 13 amends section 55A of the Data Protection Act 1998 to prohibit the Information Commissioner from issuing a civil monetary penalty based on information that has been obtained from a good practice assessment (under section 51(7) of the 1998 Act) or the issuing of an assessment notice.

67. Paragraph 14 of Schedule 20 amends Schedule 9 to the 1998 Act to provide that a failure on the part of a data controller to comply with the requirements of an assessment notice is grounds for the Information Commissioner to apply to the Court for a warrant for entry and inspection and seizure under Schedule 9 to the 1998 Act, to determine whether the data controller is complying with the data protection principles. The warrant must apply to the premises specified in the initial assessment notice. Paragraph 14 also specifies that an assessment notice is not to be regarded as fulfilling the requirement in the 1998 Act that the Information Commissioner give seven days’ notice to a data controller before applying for a warrant.

68. Paragraph 14 also broadens the range of activities the Information Commissioner can engage in when executing a warrant granted under Schedule 9 to the 1998 Act. In particular it gives the Information Commissioner the power to require any person on the premises to provide an explanation of any document or other material found on the premises and to require such a person to provide information that is reasonably required to determine whether there has been any contravention of the data protection principles.

69. These provisions also make amendments to paragraph 12 of Schedule 9 to the 1998 Act, which provides a criminal offence for the obstruction of, or failure to assist, a person executing a warrant under that Schedule. The additional text extends the offence to cover deliberately or recklessly making false statements in response to the new powers to require information detailed above.

70. Paragraph 14(7) provides protection against self-incrimination for any person required to provide information under the extended powers exercisable by the Information Commissioner executing a warrant under Schedule 9. In particular, any information provided by that person in response to this new warrant power cannot be used as evidence in criminal proceedings against that person. However, the response given can be used in evidence if the offence concerned is either the offence of obstructing or failing to assist a person executing a Schedule 9 warrant or is one of a specific group of perjury offences. Furthermore the response can be used in evidence for the prosecution of any criminal offence if evidence inconsistent with such a statement is relied on by the accused during proceedings, in which case this particular protection is forfeited.  In those circumstances evidence of the original statement becomes admissible in order to rebut the false assertions made by the accused.

Section 52-58: Murder and infanticide

71. Sections 52 to 58 of the Coroners and Justice Act, so far as they relate to England and Wales, will come into force on 4 October 2010.  A separate circular will be published on these provisions in due course.

Section 71: Slavery, servitude and forced or compulsory labour

72. Section 71 introduces a new offence of holding someone in slavery or servitude, or requiring them to perform forced or compulsory labour. Guidance on section 71 is contained in Circular No. 2010/07.

Section 155-172: Criminal memoirs etc

73. Guidance on sections 155-172 of the 2009 Act will be issued in a separate circular.

Annex A

PROHIBITED IMAGES OF CHILDREN Background and change in legislation

1.  The Government has legislated in the Coroners and Justice Act 2009 to create a new offence of possession of a prohibited image of a child, punishable by up to three years imprisonment.  The new offence is targeted at certain non-photographic images.

2.  It is currently  an offence under the Protection of Children Act 1978 to take, make or permit to be taken any indecent photograph or pseudo- photograph (an image which appears to be a photograph) of a child (under the age of 18). These offences carry a ten year maximum prison sentence.

3.  It is also an offence under Section 160 of the Criminal Justice Act 1988 to possess an indecent photograph or pseudo-photograph of a child (under the age of 18). This offence carries a five year maximum prison sentence.

4.  The Criminal Justice and Immigration Act 2008 also extended the law to cover tracings or other images, produced electronically or otherwise, which are derived from a photograph or pseudo photograph.

5.  The proposals for the new offence were first published on 28 May 2008 as part of the Government’s response following its consultation paper on the possession of non-photographic visual depictions of child sexual abuse: http://www.justice.gov.uk/consultations/non-photographic- depictions.htm

6.  The consultation was prompted by the concerns expressed by the police, children’s welfare organisations and others at the increase in availability of these graphic depictions of child sexual abuse and their increasing discovery alongside photographs of real abuse.

7.  There were concerns that the images could be used as a “grooming” tool to prepare children for real abuse. In addition, it was recognised that modern computer software made it easy to create drawings and other fantasy style images of explicit child sexual abuse from photographic images. If the link to a real image that would not be covered by prior legislation could not be proved it could create a situation where an abuser could create a fantasy-style visual record of actual abuse. There was also a concern that the possession and circulation of these images could reinforce offenders’ inappropriate feelings towards children.

8.  Prior to the change in legislation simple possession of non- photographic images of child sexual abuse was not a criminal offence. Owners could not be prosecuted and the images could not be forfeited by the police.

9.  The offence applies to images both on and offline. Publication of these images in England and Wales is likely to be an offence under the Obscene Publications Act 1959 (“the 1959 Act”) so it is probable that most publications originate from, or are hosted, abroad. The new legislation should only catch material which is already illegal to publish here under the 1959 Act.

Elements of the offence (section 62 subsections (2) – (8))

10. Section 62(1) makes it an offence to possess a prohibited image of a child.

11. In order for an image to be a ‘prohibited image’, there are three elements that must be satisfied. An image must meet all three of the elements before falling foul of the offence. The elements are:

1)  That the image is pornographic;

2)  That the image is grossly offensive, disgusting, or otherwise of an obscene character; and

3)  That the image focuses solely or principally on a child’s genitals or anal region, or  portrays any of the following acts:

a)  the performance by a person of an act of intercourse or oral sex with or in the presence of a child;

b)  an act of masturbation by, of, involving or in the presence of a child;

c)  an act which involves penetration of the vagina or anus of a child with a part of a person’s body or with anything else;

d)  an act of penetration , in the presence of a child, of the vagina or anus of a person with a part of a person’s body or with anything else;

e)  the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);

f)    the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.

12. As mentioned above, to fall within the offence an image must meet all three elements. To focus on one element alone could well lead to incorrect conclusions about what is caught under the new legislation.

13. The offence is targeted at non-photographic images and therefore specifically excludes indecent photographs, or pseudo-photographs, of children, as well as tracings or derivatives of photographs and pseudo- photographs.

Pornographic

14. The Act defines a pornographic image as one which must reasonably be assumed to have been produced solely or principally for the

purpose of sexual arousal. Whether this threshold has been met will be an issue for the magistrate or jury to determine by looking at the image. It is not a question of the intentions of those who produced the image. Nor is it a question of the sexual arousal of the defendant.

15. Even if an image is pornographic, it will not come within the terms of the offence unless it also satisfies all the other aspects of the offence.

16. Section 62(4) and (5) address situations where an individual image is held in a person’s possession as part of a larger series of images.  The question of whether the image is pornographic must be determined by reference both to the image itself and also the context in which it appears in the larger series of images.  Take for example, the circumstances where an image is integral to a narrative such as a documentary film which, if taken as a whole, could not reasonably be assumed to be pornographic. That image itself may be taken not to be pornographic, even if were it considered in isolation, a contrary conclusion would have been reached.

17. It is important to understand that the context in which the image appears is that in which it is held at any given time, not its original context. Thus a collection of images put together, perhaps from various different films, out of their original context could be considered pornographic even if the original context, for example a whole film or a documentary, would not be considered pornographic.

Grossly offensive, disgusting or otherwise of an obscene character

18. The words ‘grossly offensive’ and ‘disgusting’ are not alternatives to ‘obscene character’ but are examples of it. They are drawn from the ordinary dictionary definition of ‘obscene’ and reflect different aspects of that concept. They are intended to convey a non-technical definition of that concept. It is a definition which is distinct from the technical definition contained in the Obscene Publications Act 1959, that definition being specifically geared to the concept of publication.

19. Again, this element of the offence must be read in conjunction with the other two elements.  The test as to whether an image comes within the terms of the offence is not simply whether it is grossly offensive, disgusting or otherwise of an obscene character, rather it is a test of whether all three elements of ‘prohibited image’ are met. It is all three elements working together which should ensure that the only images which are caught are those which would also fall foul of the Obscene Publications Act 1959.

Exclusion of classified films (section 63)

20. The intention of section 63 is to give certainty to members of the public that they will not be at risk of prosecution if they possess a video recording of a film which has been classified by the British Board of Film Classification (BBFC), even if the film contains an image or images, considered by the Board to be justified by the context of the work as a whole, which nevertheless may appear to fall foul of the offence in section 62. The fact that the images are held as part of a BBFC classified film takes them outside the scope of the offence.

21. However the exclusion 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 purposes of sexual arousal – see section 63(3).

22. The offence covers the deliberate extraction of images because the benefit of context can be lost once an image is removed and held either on its own or with other images.

23. The context within which the image is judged is the same under both sections 62 and 63; that is, the context in which the defendant holds the image. It will already have been decided under section 62 that, having regard to that context, the image is pornographic.  The question which is asked under Section 63 is whether it must reasonably be assumed that the image was extracted i.e. that particular part of the film was isolated – for pornographic purposes.  The effect is to distinguish between deliberately extracted prohibited images and those extracts which have occurred through inadvertence, such as setting the wrong time for a recording, or which have been extracted for non- pornographic purposes.

Defences; general (section 64)

24. There are three general defences set out in section 64.  These are the same as for the possession of indecent images of children under section 160(2) of the Criminal Justice Act 1988.  They are:

  • that the person had a legitimate reason for being in possession of the image; this will cover those who can demonstrate that their legitimate business means they have a reason for possessing the image.  This would include, for example, the police and the prosecuting authorities, those involved in the classification of films, those dealing with complaints from the public about content in the mobile and internet industries such as the Internet Watch Foundation and those creating security software to block such images.
  • that the person was in possession of a prohibited image but had not looked at it and therefore neither knew, nor had reason to suspect that it was a prohibited image; this will cover those who are in possession of offending images but are unaware of the nature of the images.
  • that the person had been sent the image without having asked for it, on their own behalf or through someone else, and, having

looked at it had not kept it for an unreasonable length of time. This will cover those who are sent unsolicited material by any means and who act quickly to delete it or otherwise get rid of it. What constitutes an unreasonable amount of time depends on all the circumstances of the case.

Deleting images

25. Case law supports the view that, in normal circumstances, deleting images held on a computer is sufficient to get rid of them, i.e. to divest oneself of possession of them.  An exception would be where a person is shown to have intended to remain in control of an image even though he has deleted it – that will entail him having the capacity (through skill or software) to retrieve the image.  Porter [2006] 1 WLR 2633

Accidental Access

26. The offence is not targeted at those who accidentally stumble across prohibited images while searching for legal material on the Internet. As with the position regarding deleted images the key issue will be whether the person has control and custody and therefore possession of the image in question.

Meanings (section 65):

27. The terms ‘image’ and ‘child’ for the purposes of the offence are defined in the Act.

28. An ‘image’ includes a moving or still image (produced by any means), or data stored (by any means) which is capable of conversion into an ‘image’. For the purpose of the offence an ‘image’ does not include an indecent photograph, or indecent pseudo-photograph of a child, because such images are covered by existing legislation, as outlined above.

29. A ‘child’ means a person under the age of 18.

30. Where an image shows a person the image is to be treated as an image of 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 those of a child (see section 65(6)).

31. References to an image of a person include references to an imaginary person, and references to an image of a child include references to an imaginary child.

Penalties (section 66):

32. The new offence of possession of a prohibited image of a child is triable either way.

33. If a case is heard in a Magistrates’ Court in England and Wales the maximum penalty available will be six months’ imprisonment, or a fine of up to £5,000 or both. Where a case is heard in the Crown Court, the maximum sentence is imprisonment for three years. An unlimited fine may also be imposed.

The “Sex Offenders’ Register”

34. Offenders aged 18 or above who receive a sentence of two years’ imprisonment or more shall automatically be made subject to notification requirements under Part 2 of the Sexual Offences Act 2003.

DPP consent

35. In England and Wales, the consent of the relevant Director of Public Prosecutions is needed before a case of possession of prohibited images of children can be taken to court.

Possession of Prohibited Images of Children: Frequently Asked Questions

Q1.      Where can I find the new offence?

The offence is defined at Section 62 of the Coroners and Justice Act 2009. (ref: Section 62)

Q2.      What images does the new offence of possession of prohibited images of children capture?

The offence aims to capture non-photographic visual depictions of child sexual abuse.

To meet the terms of the offence a prohibited image must:

a)  be pornographic

b)  depict one or more of a list of proscribed acts

c)  be grossly offensive, disgusting or otherwise of an obscene nature

A prohibited ‘image’ does not include an indecent photograph, or indecent pseudo-photograph of a child, nor tracings or derivatives of such photographs and pseudo-photographs.

(ref: Section 62 (1) – (8))

Q3.      What is meant by the term ‘pornographic’?

The first element of the offence is an objective test for the jury that the material was pornographic, which means it must reasonably be assumed to have been produced solely or principally for the purposes of sexual arousal. This test should eliminate most works of art, news and mainstream documentary programmes and films from prosecution.

(ref: Section 62 (3))

Q4.    Are ‘grossly offensive, disgusting or otherwise of an obscene character’ intended to be three separate concepts, any one of which could satisfy the requirements of the offence?

Grossly offensive, disgusting or otherwise of an obscene character are not intended to be read as three separate concepts. ‘Grossly offensive’ and ‘disgusting’ are examples of ‘an obscene character‘ and not alternatives to it. They are drawn from the ordinary dictionary definition of ‘obscene’ and are intended to convey a non-technical definition of that concept.

(ref: Section 62 (c))

Q5.      How can the age or characteristics of a non-photographic character be judged?

The age of the depicted character is a matter for a court or jury to reach a view on; this is similar to the current situation with regard to indecent photographs and pseudo-photographs.

Where an image shows a person the image is to be treated as an image of a child if –

a)  the impression conveyed by the image is that the person shown is a child, or

b)  the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child

(ref: Section 65 (5) – (8))

Q6.      Will the new offence capture photographs or pseudo- photographs?

No, the law on indecent photographs and indecent pseudo-photographs is not affected by the new offence. An ‘image’ for the purposes of the new offence does not include indecent photographs, or indecent pseudo-photographs of children. The offence is targeted at non-photographic images and therefore specifically excludes indecent photographs, or pseudo-photographs, of children, as well as tracings or derivatives of photographs and pseudo- photographs.

(ref: Section 65 (3) – (4))

Q7.      What is a pseudo-photograph?

A pseudo-photograph is an image, whether made by computer-graphics or otherwise which appears to be a photograph.

(ref: Section 7 (7) Protection of Children Act 1978)

Q8.      Is this an Internet specific offence?

No. The offence will apply equally offline as online.

Q9.      Will the new offence capture ‘streaming’ images?

One of the aims of the legislation is to tackle the demand for non-photographic images of child sexual abuse which, under the Obscene Publications Act,1959, are already illegal to publish (but not possess) in the UK. The new offence covers moving and still images produced by any means or data capable of conversion into such an image. Ultimately it would be for the courts to determine, on the facts of a particular case, whether a person had committed an offence of possession, in other words whether the person knowingly had control or custody and therefore possession of the image or images in question.

Q10.  How does the new offence affect the current distribution laws?

The new offence does not contain any new distribution laws.   The Obscene Publications Act in England and Wales will continue to catch the publication and distribution of this material.

Q11.  Are there any exclusions/exemptions to the offence?

Yes.  Section 63 of the Act provides an exclusion from the offence for works classified by the British Board of Film Classification, the BBFC, which is the designated authority under the Video Recordings Act 1984 (as repealed and revived by the Video Recordings Act 2010).  It should give certainty to members of the public that they are not at risk of committing the new offence if they are in possession of such a work. In classifying material the BBFC already take into account the Obscene Publications Act 1959  and the Protection of Children Act 1978 as well as considering whether material may be ‘harmful’ under the Video Recordings Act.

Subsection (2) defines the type of material that is excluded. An excluded image is one that forms part of a series of images contained in a recording of the whole or part of a classified work. In deciding whether an image does form part of such a series, subsection (5) clarifies that any alteration due to a technical defect, inadvertence or inclusion of extraneous material such as an advertisement is to be disregarded.

However, this exclusion for classified films does not apply if an image or images have been extracted from one or more classified films and the reason for their extraction appears to be solely or principally for the purposes of sexual arousal.  This would be the case, for example, where a new video work has been created consisting of images from classified films. This question is determined by the same test as is set out in Section 62, that is, by consideration of the image itself and the context in which it appears.

The duty of the designated authority to have regard to the offence set out in Section 62 when classifying a work under the Video Recordings Act is not altered in any way by this exclusion.

(ref: Section 63)

Q12.  Are cinema films also covered?

The exemption does not apply to films shown in cinemas (as opposed to the versions of such films which are classified for DVD or video release).

Q13.  Why are cinema films not covered?

Possession does not arise in respect of viewing a film in the cinema. Cinema staff and others involved in the classification process will be covered by the defences in section 64.

Q14.  What defences are there to the possession of prohibited images of children?

There is a defence of legitimate reason for the possession of these images. In addition there is a defence that the person had not seen the images and did not know or have cause to suspect they were prohibited images, and a further defence that the person had received the images unsolicited and did not keep them for an unreasonable time.

(ref: Section 64)

Q15.  What does the legitimate reason defence cover?

It will be for the jury to decide whether the reason for the possession of these images is legitimate. For example it should cover the police and prosecuting authorities.

(ref: Section 64 (1)(a))

Q16.  What if someone accidentally views this material?

It is not the intention to penalise people who stumble across this material accidentally. In genuine cases of innocent access, the requirement that the person knowingly possessed the image will not be established. The key issue in such cases will be whether the person knowingly has control or custody of an indecent image and therefore possession of the image in question. This mirrors the position that exists for the offence of possession of indecent photographs of children.

Q17.  What is meant by if ‘the impression conveyed by the image is that the person shown is a child…etc’ and ‘the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child’?

These simply assist in determining whether a person in an image is a child. As the images intended to be captured are fantasy images, i.e. drawn, computer generated etc, it is important that the provisions provide clarity on this. Otherwise, offenders could evade prosecution for the possession of highly explicit images by suggesting that an image is not of a ‘human’ child bymmerely tinkering with the image, i.e. by adding non-human attributes like antenna, etc. The test is the same as in other relevant legislation (such as the Protection of Children Act 1978).

(ref: Section 65 (6) – (8))

Q18.  What is the penalty for committing the new offence?

On summary conviction, in England and Wales, the offender is liable to a maximum of 6 months imprisonment or a fine not exceeding the statutory maximum, or both. On conviction on indictment the offender is liable to a 3 year maximum prison sentence, or a fine or both.

(ref: Section 66)

Q19.  Would people convicted of the new offence be subject to the registration requirements under Part 2 of the Sexual Offences Act 2003?

Not if the person convicted is sentenced to less than 2 years’ imprisonment. Only where an offender is sentenced to two or more years’ imprisonment and is over 18 years of age, shall the notification requirements apply.

(ref: Schedule 21, Part 3, Section 62)

Q20.  What forfeiture powers will apply to the new offence?

The existing powers of forfeiture under Section 143 Powers of Criminal Courts (Sentencing) Act 2000 will apply. In addition, from 1 April 2008 the police were given new powers of forfeiture under the new Schedule to the Protection of Children Act 1978 (inserted by the Police & Justice Act 2006, section 39 Schedule 11). These provisions now allow the police to forfeit indecent photographs of children and the equipment that stores them, following any lawful seizure without reference to the courts. Prior to this any material seized under the 1978 Act had to be brought before the Court by the police to obtain forfeiture. The amendment frees up police and court time and widens the police powers of forfeiture. These powers will also apply to the new offence alongside the more general forfeiture powers under Section 143 of the 2000 Act.

(ref: Section 67)

Annex B

Other useful links:

The Coroners and Justice Act 2009:

http://www.opsi.gov.uk/acts/acts2009/ukpga_20090025_en_1

Explanatory notes on the Coroners and Justice Act 2009:

http://www.opsi.gov.uk/acts/acts2009/en/ukpgaen_20090025_en_1

A copy of the commencement order for the provisions addressed in this circular can be found at  http://www.opsi.gov.uk/

Other Ministry of Justice Circulars on provisions in the Coroners and Justice Act 2009:

http://www.justice.gov.uk/publications/coroners-justice-act-key-provisions.htm

http://www.justice.gov.uk/publications/coroners-justice-act-encouraging- assisting-suicide.htm

http://www.justice.gov.uk/publications/coroners-justice-act-slavery-servitude- forced-compulsory-labour.htm

Annex C Contact details:

Sections 62-68 (Possession of Prohibited Images of Children) and section 69 (Indecent pseudo-photographs of children: marriage etc) Dave PearsonCriminal Law Policy UnitMinistry of Justice020 3334 5005

 

Dave Pearson@justice.gsi.gov.uk

Section 70 (Genocide, crimes against humanity and war crimes) Diana SymondsCriminal Law Policy UnitMinistry of Justice020 3334  5012

 

Diana.Symonds@justice.gsi.gov.uk

Section 74-85 (InvestigationAnonymity Orders) Stephen JonesBetter Trials UnitOffice for Criminal Justice ReformMinistry of Justice

020 3334 6089

 

Stephen.Jones1@justice.gsi.gov.uk

Section 113 (Queen’s evidence) Ministry of Justice:Simon MacCullochBetter Trials Unit

Office for Criminal Justice Reform

Ministry of Justice

020 3334 6074

 

Simon.MacCulloch@justice.gsi.gov.uk

 

Financial Services Authority:

 

Emma Walker

Legal Group, Enforcement and Financial Crime Division Financial Services Authority

25 The North Colonnade, Canary

Wharf

London E14 5HS

020 7066 1276

 

Emma.Walker@fsa.gov.uk

 

 

Department for Business, Innovation and Skills:Mark BowringDeputy Director, Legal A3

Department for Business, Innovation and Skills

1 Victoria Street

London SW1H 0ET

020 7215 5121

 

Mark.Bowring@bis.gsi.gov.uk

Section 118 -136 (SentencingCouncil for England and Wales) Chris MarshSentencing Policy and Penalties UnitMinistry of Justice020 3334 5035

 

Chris.Marsh@justice.gsi.gov.uk

 

 

Roz Campion

Head of the Office of the Sentencing

Council

8-10 Great George Street

Westminster London SW1P 3AE

020 7084 8149

 

Rosalind.Campion@sentencing- guidelines.gsi.gov.uk

Section 173 -175 (Data protection) Ollie SimpsonInformation Policy DivisionMinistry of Justice020 3334 4566

 

Ollie.Simpson@justice.gsi.gov.uk

Section 52-58 (Murder and infanticide) Chiara Mac CallCriminal Law Policy UnitMinistry of Justice020 3334 5018

 

Chiara.Maccall@justice.gsi.gov.uk

 

 

Section 71 (Slavery, servitude and forced or compulsory labour) Diana Symonds (as sec 70 above)or 

Louise Douglas

Criminal Law Policy Unit

Ministry of Justice

020 3334 5013

 

Louise.Douglas@justice.gsi.gov.uk

 

See also Circular No.2010/7

Section 155-172 (Criminal memoirs etc) Robin EdwardsCriminal Law Policy UnitMinistry of Justice020 3334 5007

 

Robin.Edwards@justice.gsi.gov.uk