Criminal Justice and Courts Bill – new criminal offences

Another year, and yet more criminal justice legislation. The Criminal Justice and Courts Bill 2013-14  is going through Parliament at the moment, and it will come as no surprise that it includes new criminal offences. Here’s a quick look at them:

 Criminal Justice and Courts Bill – new criminal offences

Research by jurors (s 44)

This adds a new s 20A-D to the Juries Act 1974. It comes off the back of the Law Commission Report on Juror Misconduct that was published on 9 December 2013 and effectively implements the recommendations, save that there is no exception for academic research which is a disappointment. The new offences mainly codify the common law on contempt of court as it relates to jurors. It allows them to be dealt with by the “usual” criminal courts rather than through proceedings for contempt, which is arguably a sensible way forward. In reality, there will not be that many cases that are prosecuted.

From the moment when they are sworn as a juror to when they are discharged, either individually or as part of a general discharge (the “trial period”), it is a criminal offence to undertake any research. This is defined as including:

(a) asking a question;

(b) searching an electronic database, including by means of the internet;

(c) visiting or inspecting a place or object;

(d) conducting an experiment; and

(e) asking another person to seek the information.

That is relevant to the case. This is defined ((4)) as including information about:

(a) a person involved in events relevant to the case;

(b) the judge dealing with the issue;

(c) any other person involved in the trial, whether as a lawyer, a witness or otherwise;

(d) the law relating to the case;

(e) the law of evidence; and

(f) court procedure.

There is an analogous offence under s 20B of sharing information with a fellow juror, a very wide s 20C relating to encouraging a juror to engage in “Prohibited Conduct” (which means “conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue”). Lastly, there is s 20D, an offence of disclosing (or trying to get information from) details of a jury’s deliberation.

There are various exceptions as to be expected, mostly in line with common sense (not always a given sadly). A couple of points to note is that the “public interest” disclosures protect a juror if the information is passed to any police officer, a Judge from the Crown Court of Court of Appeal, the Registrar of the Court of Appeal (and presumably their delegate) or a staff member of the Crown Court. Note, this does not include any of the lawyers involved in the case (nor a journalist, but that is perhaps less surprising).

One aspect of concern is the prohibition on researching court procedure and the law of evidence is very wide. It of course only applies when someone is actually a juror (rather than after they have received their summons), but even so, in applying the law it is hoped that there is an element of common sense.

Possession of pornographic images of rape and assault by penetration (s 18)

This adds to the current extreme images offence and creates a new category of “extreme images” by adding a new s 63(7A) Criminal Justice and Immigration Act 2008. This widens the ambit to include an image that “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.

The defence in s 66 (that the images are of consensual activity which the defendant was a participant in) applies to this new category. This offence is either way with a maximum sentence of three years.

The impetus for this new offence comes from a letter from Rape Crisis South London to the Prime Minister pointing out an alleged lacuna. There is no evidence that has been put forward establishing a causal link between “rape porn” and sexual violence. Whilst there are obvious concerns about filming people who are actually being abused, there is a legitimate concern in the BDSM community and wider, as to whether it is appropriate to criminalise the possession of “rape porn” involving actors where there is genuine consent.

Scotland has had this legislation since 2010 and it seems that there has been only one prosecution since then, and that was when the offending image was found in a collection of other illegal images that would have prosecuted in any event.

Given all that, and that the Impact Assessment reckons on a total cost of £10,000 per prosecution, it is unclear whether this is a necessary addition to the criminal law.

Remaining Unlawfully at large after recall (s 10)

Someone released from prison who is notified that they are to be recalled and then fails “without reasonable excuse, to take all necessary steps to return to prison as soon as possible.” is guilty of an offence. This is either way, with a maximum sentence of two years.

The similar offence of remaining unlawfully at large after a temporary release is made either way with a maximum sentence of two years. Currently, such people are returned to prison to serve their sentence.

One other change of note is that the offence under s 1 Malicious Communications Act 1988 is also made either way with a maximum of two years. Note that this isn’t the offence under s 127 Communications Act that has caused so much notoriety of late, which remains summary only.