Coroners and Justice Bill

House of Lords

Session 2008 - 09
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Other Bills before Parliament

Coroners and Justice Bill

Coroners and Justice Bill
Part 2 — Criminal offences
Chapter 1 — Murder, infanticide and suicide
29

(3)
In section 2 (citation of witnesses for precognition), in subsection (1), after
“section 1(1)” insert “or 1A(4)”.
(4)
In section 3 (holding of public inquiry), in subsections (1) and (3), after “section
1” insert “or 1A”.
(5)
In section 6 (sheriff’s determination etc), in subsection (4)(a)(i), after “section 1”
5
insert “or 1A”.
Part 2
Criminal offences
Chapter 1
Murder, infanticide and suicide
10
Partial defence to murder: diminished responsibility
50
Persons suffering from diminished responsibility (England and Wales)
(1)
In section 2 of the Homicide Act 1957 (c. 11) (persons suffering from
diminished responsibility), for subsection (1) substitute—
“(1)
A person (“D”) who kills or is a party to the killing of another is not to
15
be convicted of murder if D was suffering from an abnormality of
mental functioning which—
(a)
arose from a recognised medical condition,
(b)
substantially impaired D’s ability to do one or more of the
things mentioned in subsection (1A), and
20
(c)
provides an explanation for D’s acts and omissions in doing or
being a party to the killing.
(1A)
Those things are—
(a)
to understand the nature of D’s conduct;
(b)
to form a rational judgment;
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(c)
to exercise self-control.
(1B)
For the purposes of subsection (1)(c), an abnormality of mental
functioning provides an explanation for D’s conduct if it causes, or is a
significant contributory factor in causing, D to carry out that conduct.”
(2)
In section 6 of the Criminal Procedure (Insanity) Act 1964 (c. 84) (evidence by
30
prosecution of insanity or diminished responsibility), in paragraph (b) for
“mind” substitute “mental functioning”.
51
Persons suffering from diminished responsibility (Northern Ireland)
(1)
Section 5 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20) (effect, in
cases of homicide, of impaired mental responsibility) is amended as follows.
35
(2)
For subsection (1) substitute—
“(1)
A person (“D”) who kills or is a party to the killing of another is not to
be convicted of murder if D was suffering from an abnormality of
mental functioning which—

Coroners and Justice Bill
Part 2 — Criminal offences
Chapter 1 — Murder, infanticide and suicide
30

(a)
arose from a recognised mental condition,
(b)
substantially impaired D’s ability to do one or more of the
things mentioned in subsection (1A), and
(c)
provides an explanation for D’s acts and omissions in doing or
being a party to the killing.
5
(1A)
Those things are—
(a)
to understand the nature of D’s conduct;
(b)
to form a rational judgment;
(c)
to exercise self-control.
(1B)
For the purposes of subsection (1)(c), an abnormality of mental
10
functioning provides an explanation for D’s conduct if it causes, or is a
significant contributory factor in causing, D to carry out that conduct.
(1C)
Where, but for this section, D would be liable, whether as principal or
as accessory, to be convicted of murder, D is liable instead to be
convicted of manslaughter.”
15
(3)
In subsection (2), for “subsection (1)” substitute “subsection (1C)”.
(4)
In subsections (4) and (5), for “mental abnormality” substitute “abnormality of
mental functioning”.
Partial defence to murder: loss of control
52
Partial defence to murder: loss of control
20
(1)
Where a person (“D”) kills or is a party to the killing of another (“V”), D is not
to be convicted of murder if—
(a)
D’s acts and omissions in doing or being a party to the killing resulted
from D’s loss of self-control,
(b)
the loss of self-control had a qualifying trigger, and
25
(c)
a person of D’s sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of D, might have reacted in the same
or in a similar way to D.
(2)
For the purposes of subsection (1)(a), it does not matter whether or not the loss
of control was sudden.
30
(3)
In subsection (1)(c) the reference to “the circumstances of D” is a reference to
all of D’s circumstances other than those whose only relevance to D’s conduct
is that they bear on D’s general capacity for tolerance or self-restraint.
(4)
Subsection (1) does not apply if, in doing or being a party to the killing, D acted
in a considered desire for revenge.
35
(5)
On a charge of murder, if sufficient evidence is adduced to raise an issue with
respect to the defence under subsection (1), the jury must assume that the
defence is satisfied unless the prosecution proves beyond reasonable doubt
that it is not.
(6)
For the purposes of subsection (5), sufficient evidence is adduced to raise an
40
issue with respect to the defence if evidence is adduced on which, in the
opinion of the trial judge, a jury, properly directed, could reasonably conclude
that the defence might apply.

Coroners and Justice Bill
Part 2 — Criminal offences
Chapter 1 — Murder, infanticide and suicide
31

(7)
A person who, but for this section, would be liable to be convicted of murder
is liable instead to be convicted of manslaughter.
(8)
The fact that one party to a killing is by virtue of this section not liable to be
convicted of murder does not affect the question whether the killing amounted
to murder in the case of any other party to it.
5
53
Meaning of “qualifying trigger”
(1)
This section applies for the purposes of section 52.
(2)
A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3)
This subsection applies if D’s loss of self-control was attributable to D’s fear of
serious violence from V against D or another identified person.
10
(4)
This subsection applies if D’s loss of self-control was attributable to a thing or
things done or said (or both) which—
(a)
constituted circumstances of an extremely grave character, and
(b)
caused D to have a justifiable sense of being seriously wronged.
(5)
This subsection applies if D’s loss of self-control was attributable to a
15
combination of the matters mentioned in subsections (3) and (4).
(6)
In determining whether a loss of self-control had a qualifying trigger—
(a)
D’s fear of serious violence is to be disregarded to the extent that it was
caused by a thing which D incited to be done or said for the purpose of
providing an excuse to use violence;
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(b)
a sense of being seriously wronged by a thing done or said is not
justifiable if D incited the thing to be done or said for the purpose of
providing an excuse to use violence.
(7)
In this section references to “D” and “V” are to be construed in accordance with
section 52.
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54
Abolition of common law defence of provocation
(1)
The common law defence of provocation is abolished and replaced by sections
52 and 53.
(2)
Accordingly, the following provisions cease to have effect—
(a)
section 3 of the Homicide Act 1957 (c. 11) (questions of provocation to
30
be left to the jury);
(b)
section 7 of the Criminal Justice Act (Northern Ireland) 1966 (c. 20)
(questions of provocation to be left to the jury).
Infanticide
55
Infanticide (England and Wales)
35
(1)
Section 1 of the Infanticide Act 1938 (c. 36) (offence of infanticide) is amended
as follows.
(2)
In subsection (1)—
(a)
for “notwithstanding that” substitute “if”, and
(b)
after “murder” insert “or manslaughter”.
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Coroners and Justice Bill
Part 2 — Criminal offences
Chapter 1 — Murder, infanticide and suicide
32

(3)
In subsection (2)—
(a)
for “notwithstanding that” substitute “if”, and
(b)
after “murder” insert “or manslaughter”.
56
Infanticide (Northern Ireland)
(1)
Section 1 of the Infanticide Act (Northern Ireland) 1939 (c. 5) (offence of
5
infanticide) is amended as follows.
(2)
In subsection (1)—
(a)
for “notwithstanding that” substitute “if”, and
(b)
after “murder” insert “or manslaughter”.
(3)
In subsection (2)—
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(a)
for “notwithstanding that” substitute “if”, and
(b)
after “murder” insert “or manslaughter”.
Suicide
57
Encouraging or assisting suicide (England and Wales)
(1)
The Suicide Act 1961 (c. 60) is amended as follows.
15
(2)
In section 2 (criminal liability for complicity in another’s suicide), for
subsection (1) substitute—
“(1)
A person (“D”) commits an offence if—
(a)
D does an act capable of encouraging or assisting the suicide or
attempted suicide of another person, and
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(b)
D’s act was intended to encourage or assist suicide or an
attempt at suicide.
(1A)
The person referred to in subsection (1)(a) need not be a specific person
(or class of persons) known to, or identified by, D.
(1B)
D may commit an offence under this section whether or not a suicide,
25
or an attempt at suicide, occurs.
(1C)
An offence under this section is triable on indictment and a person
convicted of such an offence is liable to imprisonment for a term not
exceeding 14 years.”
(3)
In subsection (2) of that section, for “it” to the end substitute “of a person it is
30
proved that the deceased person committed suicide, and the accused
committed an offence under subsection (1) in relation to that suicide, the jury
may find the accused guilty of the offence under subsection (1).”
(4)
After that section insert—
“2A
Acts capable of encouraging or assisting
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(1)
If D arranges for a person (“D2”) to do an act that is capable of
encouraging or assisting the suicide or attempted suicide of another
person and D2 does that act, D is also to be treated for the purposes of
this Act as having done it.

Coroners and Justice Bill
Part 2 — Criminal offences
Chapter 1 — Murder, infanticide and suicide
33

(2)
Where the facts are such that an act is not capable of encouraging or
assisting suicide or attempted suicide, for the purposes of this Act it is
to be treated as so capable if the act would have been so capable had the
facts been as D believed them to be at the time of the act or had
subsequent events happened in the manner D believed they would
5
happen (or both).
(3)
A reference in this Act to a person (“P”) doing an act that is capable of
encouraging the suicide or attempted suicide of another person
includes a reference to P doing so by threatening another person or
otherwise putting pressure on another person to commit or attempt
10
suicide.
2B
Course of conduct
A reference in this Act to an act includes a reference to a course of
conduct, and a reference to doing an act is to be read accordingly.”
58
Encouraging or assisting suicide (Northern Ireland)
15
(1)
The Criminal Justice Act (Northern Ireland) 1966 (c. 20) is amended as follows.
(2)
In section 13 (criminal liability for complicity in another’s suicide), for
subsection (1) substitute—
“(1)
A person (“D”) commits an offence if—
(a)
D does an act capable of encouraging or assisting the suicide or
20
attempted suicide of another person, and
(b)
D’s act was intended to encourage or assist suicide or an
attempt at suicide.
(1A)
The person referred to in subsection (1)(a) need not be a specific person
(or class of persons) known to, or identified by, D.
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(1B)
D may commit an offence under this section whether or not a suicide,
or an attempt at suicide, occurs.
(1C)
An offence under this section is triable on indictment and a person
convicted of such an offence is liable to imprisonment for a term not
exceeding 14 years.”
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(3)
In subsection (2) of that section, for “it” to the end substitute “of a person it is
proved that the deceased person committed suicide, and the person charged
committed an offence under subsection (1) in relation to that suicide, the jury
may find the person charged guilty of the offence under subsection (1).”
(4)
After that section insert—
35
“13A
Acts capable of encouraging or assisting
(1)
If D arranges for a person (“D2”) to do an act that is capable of
encouraging or assisting the suicide or attempted suicide of another
person and D2 does that act, D is also to be treated for the purposes of
section 13 as having done it.
40
(2)
Where the facts are such that an act is not capable of encouraging or
assisting suicide or attempted suicide, for the purposes of section 13
and this section it is to be treated as so capable if the act would have
been so capable had the facts been as D believed them to be at the time

Coroners and Justice Bill
Part 2 — Criminal offences
Chapter 2 — Images of children
34

of the act or had subsequent events happened in the manner D believed
they would happen (or both).
(3)
A reference in section 13 or this section to a person (“P”) doing an act
that is capable of encouraging the suicide or attempted suicide of
another person includes a reference to P doing so by threatening
5
another person or otherwise putting pressure on another person to
commit or attempt suicide.
13B
Course of conduct
A reference in section 13 or 13A to an act includes a reference to a course
of conduct, and a reference to doing an act is to be read accordingly.”
10
59
Encouraging or assisting suicide: information society services
Schedule 12 makes special provision in connection with the operation of
section 2 of the Suicide Act 1961 (c. 60) and section 13 of the Criminal Justice
Act (Northern Ireland) 1966 (c. 20) in relation to persons providing information
society services within the meaning of that Schedule.
15
Chapter 2
Images of children
Prohibited images
60
Possession of prohibited images of children
(1)
It is an offence for a person to be in possession of a prohibited image of a child.
20
(2)
A prohibited image is an image which—
(a)
is pornographic,
(b)
falls within subsection (6), and
(c)
is grossly offensive, disgusting or otherwise of an obscene character.
(3)
An image is “pornographic” if it is of such a nature that it must reasonably be
25
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—
30
(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
35
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,

Coroners and Justice Bill
Part 2 — Criminal offences
Chapter 2 — Images of children
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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 image falls within this subsection if it—
(a)
is an image which focuses solely or principally on a child’s genitals or
5
anal region, or
(b)
portrays any of the acts mentioned in subsection (7).
(7)
Those acts are—
(a)
the performance by a person of an act of intercourse or oral sex with or
in the presence of a child;
10
(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;
15
(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.
(8)
For the purposes of subsection (7), penetration is a continuing act from entry to
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withdrawal.
(9)
Proceedings for an offence under subsection (1) may not be instituted—
(a)
in England and Wales, except by or with the consent of the Director of
Public Prosecutions;
(b)
in Northern Ireland, except by or with the consent of the Director of
25
Public Prosecutions for Northern Ireland.
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Exclusion of classified film etc
(1)
Section 60(1) 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.
30
(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.
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(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
40
the image) the context in which it occurs in the series of images;

and section 60(5) applies in connection with determining that question as it
applies in connection with determining whether an image is pornographic.