A number of the provisions of the Criminal Justice and Immigration Act 2008 (CJIA) have been brought into force.

CJIA – bailA new part 1A has been introduced into schedule 1 of the Bail Act 1976 providing for the exceptions to the right to bail in cases where a defendant is charged with an imprisonable summary only offence. Part 1 of the schedule now contains the full set of objections available against those who are charged with indictable offences. Part 2 remains the relevant schedule for those charged with non-imprisonable offences. In relation to imprisonable summary only offences the reasons for which bail may be refused are: On 3 November 2008 further significant changes were made in relation to bail. Half of the time spent on bail by a defendant who is subject to an electronically monitored curfew condition for at least nine hours in any one day, shall on application count towards a custodial sentence later imposed in that case. An application for the time to count must be made under the provisions of the inserted section 240A of the Criminal Justice Act 2003. The court shall normally make the order unless the defendant is already on a curfew as part of a sentence, or the court is of the opinion that it is just in all the circumstances not to do so, for instance because the defendant had regularly breached the terms of the curfew.

  • fear of failure to surrender, but only if the defendant has previously failed to surrender;
  • fear of the commission of further offences, but only if the current offence was committed while on bail;
  • fear of the commission of further offences which are likely to cause another person to suffer or fear physical or mental injury. This will be particularly relevant to cases of domestic common assault;
  • for the defendant’s own protection or his welfare if he is a child;
  • if the defendant is serving custody;
  • where there is a lack of sufficient information; and
  • the full grounds of failure to surrender, commission of further offences and interference with witnesses or obstruction of the course of justice are available if the defendant has been arrested for breach of his bail terms in respect of the current offence.

CJIA – sentencingThe act has made significant changes in relation to sentencing law. Those applying to ‘dangerous’ offenders were considered in a previous Gazette (see [2008] Gazette, 4 September, 20). A further amendment to the Criminal Justice Act 2003 makes clear that a court does not have to impose a community order merely because the case is serious enough to do so. A fine may still be an appropriate remedy and on occasion is more punitive than a community order. In addition, community orders may not be imposed in relation to an offence that does not carry imprisonment unless the defendant is a persistent offender previously fined within the meaning of section 151 of the 2003 act.

Section 12 makes clear that where a pre-sentence report is ordered it must be in writing if the defendant is under 18 or if the court is considering the imposition of a custodial sentence. In R v Reid 2008 EWCA Crim 1257, the court again emphasised that a report should be ordered notwithstanding that custody may be inevitable. The report may affect its length or the later management of that sentence. This decision does not appear to interfere with the decision in R v Gillette [1999] The Times, 3 December, that when the court intends to impose a short sentence, and the defence agrees, then a report need not be ordered. However, the defence should only give that agreement when the length of the remand in custody for the preparation of the report would exceed the sentence to be imposed.

Sexual Offences Act 2003On 14 July 2008 various amendments to the Sexual Offences Act 2003 were brought into force. The offence of grooming under section 73 was amended to criminalise cases where not only did the abuser travel towards the child, but also where the child travelled towards the abuser, and all the other statutory requirements are met. In addition, section 72 was amended to allow the prosecution of UK nationals for an offence committed abroad, even though it was not a crime in that jurisdiction, as long as it was a sexual offence within the section in the UK. However, where the accused is a UK resident it will remain necessary to prove that the act was a crime in both jurisdictions. In all cases, however, the law is extended to protect victims up to 18 rather than 16 years of age.

Adopted children are brought within the definition of familial sexual offences under the act.

Extreme pornographyOn 26 January 2009 the new offence of possession of extreme pornographic images is brought into force. An image is pornographic if it must reasonably be assumed to have been produced solely or principally for the purposes of sexual arousal. An image is defined as including a moving or still image produced by any means, or data stored by any means capable of conversion into a moving or still image. It should be noted that classified films are excluded from the scope of this offence.

An ‘extreme image’ is one which is ‘grossly offensive, disgusting, or otherwise of an obscene character’ and which falls within one of the following descriptions:

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, breasts or genitals;c) an act which involves sexual interference with a human corpse;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.

There is no defence of the image being for the public good. Section 65 provides a defence if the defendant proves:Under section 66 it is a defence for D to prove that the images, if they fall under paragraphs (a) (b) or (c) above (but not those involving animals (d)), were portrayals of acts in which the defendant directly participated and that the acts did not involve any infliction of non-consensual harm, and in cases in which the image portrays an act with what appears to be a human corpse, that is was not in fact a corpse. Under section 66(3), ‘non consensual harm’ is defined to include harm to which a person cannot in law consent as well as cases where there is no consent in fact.

  • that the person (such as a defence solicitor holding prosecution evidence) had a legitimate reason for being in possession of the image concerned; or
  • 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;
  • 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.

Anthony Edwards, TV Edwards, London