Criminal Justice and Immigration Bill

With this it will be convenient to discuss the following: New clause 14— Hatred against persons on transgender grounds— ‘The Public Order Act 1986 (c. 64) is amended in accordance with Schedule [Hatred against persons on transgender grounds] to this Act, which creates offences involving stirring up hatred against persons on transgender grounds.’. New clause 15— Increase in sentences for aggravation related to transgender— ‘The Criminal Justice Act 2003 (c. 44) is amended in accordance with Schedule [Increases in sentences for aggravation related to transgender] to this Act, which creates increased tariffs where offences are on transgender grounds.’. New clause 16— Amendment of Police and Criminal Evidence Act 1984— ‘In section 24A of the Police and Criminal Evidence Act 1984 (c. 60) (arrest without warrant by persons other than constables) in subsection (5) leave out from ‘or’ to end and insert ‘, 3A or 3B of the Public Order Act 1986.’. New schedule 1— ‘Hatred against persons on transgender grounds— In the Public Order Act 1986 (c. 64), after Part 3A insert— ““Part 3B Hatred against persons on transgender grounds Meaning of ““transgender hatred”” 29P Meaning of ““transgender hatred”” In this Part ““transgender hatred”” means hatred against a group of persons defined by reference to transgender identity or appearance. Acts intended to stir up transgender hatred 29Q Use of words or behaviour or display or written material (1) A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if— (a) he intends thereby to stir up transgender hatred, or (b) having regard to all the circumstances transgender hatred is likely to be stirred up thereby. (2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the written material is displayed, by a person inside a dwelling and are not heard or seen except by other persons in that or another dwelling. (3) A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section. (4) In proceedings for an offence under this section it is a defence for the accused to prove that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the written material displayed, would be heard or seen by a person outside that or any other dwelling. (5) This section does not apply to words or behaviour used, or written material displayed, solely for the purpose of being included in a programme service. 29R Publishing or distributing written material (1) A person who publishes or distributes written material which is threatening is guilty of an offence if— (a) he intends thereby to stir up transgender hatred, or (b) having regard to all the circumstances transgender hatred is likely to be stirred up thereby. (2) References in this Part to the publication or distribution of written material are to its publication or distribution to the public or a section of the public. 29S Public performance of play (1) If a public performance of a play is given which involves the use of threatening words or behaviour, any person who presents or directs the performance is guilty of an offence if— (a) he intends thereby to stir up transgender hatred, or (b) having regard to all the circumstances (and, in particular, taking the performance as a whole) transgender hatred is likely to be stirred up thereby. (2) This section does not apply to a performance given solely or primarily for one or more of the following purposes— (a) rehearsal, (b) making a recording of the performance, or (c) enabling the performance to be included in a programme service; but if it is proved that the performance was attended by persons other than those directly connected with the giving of the performance or the doing in relation to it of the things mentioned in paragraph (b) or (c), the performance shall, unless the contrary is shown, be taken not to have been given solely or primarily for the purpose mentioned above. (3) For the purposes of this section— (a) a person shall not be treated as presenting a performance of a play by reason only of his taking part in it as a performer, (b) a person taking part as a performer in a performance directed by another shall be treated as a person who directed the performance if without reasonable excuse he performs otherwise than in accordance with that person’s direction, and (c) a person shall be taken to have directed a performance of a play given under his direction notwithstanding that he was not present during the performance; and a person shall not be treated as aiding or abetting the commission of an offence under this section by reason only of his taking part in a performance as a performer. (4) In this section ““play”” and ““public performance”” have the same meaning as in the Theatres Act 1968. (5) The following provisions of the Theatres Act 1968 apply in relation to an offence under this section as they apply to an offence under section 2 of that Act— (a) section 9 (script as evidence of what was performed), (b) section 10 (power to make copies of script), (c) section 15 (powers of entry and inspection). 29T Distributing, showing or playing a recording (1) A person who distributes, or shows or plays, a recording of visual images or sounds which are threatening is guilty of an offence if— (a) he intends thereby to stir up transgender hatred, or (b) having regard to all the circumstances transgender hatred is likely to be stirred up thereby. (2) In this Part ““recording”” means any record from which visual images or sounds may, by any means, be reproduced; and references to the distribution, showing or playing of a recording are to its distribution, showing or playing to the public or a section of the public. (3) This section does not apply to the showing or playing of a recording solely for the purpose of enabling the recording to be included in a programme service. 29U Broadcasting or including programme in programme service (1) If a programme involving threatening visual images or sounds is included in a programme service, each of the persons mentioned in subsection (2) is guilty of an offence if— (a) he intends thereby to stir up transgender hatred, or (b) having regard to all the circumstances transgender hatred is likely to be stirred up thereby. (2) The persons are— (a) the person providing the programme service, (b) any person by whom the programme is produced or directed, and (c) any person by whom offending words or behaviours are used. Inflammatory material 29V Possession of inflammatory material (1) A person who has in his possession written material which is threatening, abusive or insulting, or a recording of visual images or sounds which are threatening, abusive or insulting, with a view to— (a) in the case of written material, its being displayed, published, distributed, or included in a programme service whether by himself or another, or (b) in the case of a recording, its being distributed, shown, played, or included in a programme service, whether by himself or another, is guilty of an offence if he intends transgender hatred to be stirred up thereby or, having regard to all the circumstances, transgender hatred is likely to be stirred up thereby. (2) For this purpose regard shall be had to such display, publication, distribution, showing, playing, or inclusion in a programme service as he has, or it may reasonably be inferred that he has, in view. 29W Powers of entry and search (1) If in England and Wales a justice of the peace is satisfied by information on oath laid by a constable that there are reasonable grounds for suspecting that a person has possession of written materials or a recording in contravention of section 29V, the justice may issue a warrant under his hand authorising any constable to enter and search the premises where it is suspected the material or recording is situated. (2) If in Scotland a sheriff or justice of the peace is satisfied by evidence on oath that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of section 29V, the sheriff or justice may issue a warrant authorising any constable to enter and search the premises where it is suspected the material or recording is situated. (3) A constable entering or searching premises in pursuance of a warrant issued under this section may use reasonable force if necessary. (4) In this section ““premises”” means any place and, in particular, includes— (a) any vehicle, vessel, aircraft or hovercraft, (b) any offshore installation as defined in section 12 of the Mineral Workings (Offshore Installations) Act 1971, and (c) any tent or movable structure. 29X Power to order forfeiture (1) A court by or before which a person is convicted of— (a) an offence under section 29Q relating to the display of written material, or (b) an offence under section 29R, 29T or 29V, shall order to be forfeited any written material or recording produced to the court and shown to its satisfaction to be written material or a recording to which the offence relates. (2) An order made under this section shall not take effect— (a) in the case of an order made in proceedings in England and Wales, until the expiry of the ordinary time within which an appeal may be instituted or where an appeal is duly instituted, until its finally decided or abandoned; (b) in the case of an order made in proceedings in Scotland, until the expiration of the time within which, by virtue of any statute, an appeal may be instituted or, where such an appeal is duly instituted, until the appeal is finally decided or abandoned. (3) For the purposes of subsection (2)(a)— (a) an application for a case stated or for leave to appeal shall be treated as the institution of an appeal, and (b) where a decision on appeal is subject to a further appeal, the appeal is not finally determined until the expiry of the ordinary time within which a further appeal may be instituted or, where a further appeal is duly instituted, until the further appeal is finally decided or abandoned. (4) For the purposes of subsection (2)(b) the lodging of an application for a stated case or note of appeal against sentence shall be treated as the institution of an appeal. Supplementary provisions 29Y Saving for reports of parliamentary or judicial proceedings (1) Nothing in this Part applies to a fair and accurate report or proceedings in Parliament or in the Scottish Parliament. (2) Nothing in this Part applies to a fair and accurate report of proceedings publicly heard before a court or tribunal exercising judicial authority where the report is published contemporaneously with the proceedings or, if it is not reasonably practicable or would be unlawful to publish a report of them contemporaneously, as soon as publication is reasonably practicable and lawful. 29YA Procedure and punishment (1) No proceedings for an offence under this Part may be instituted in England and Wales except by or with the consent of the Attorney General. (2) For the purposes of the rules in England and Wales against charging more than one offence in the same count or information, each of sections 29Q to 29V creates one offence. (3) A person guilty of an offence under this Part is liable— (a) on conviction on indictment to imprisonment for a term not exceeding seven years or a fine or both; (b) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both. 29YB Offences by corporations (1) Where a body corporate is guilty of an offence under this Part and it is shown that the offence was committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly. (2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as it applies to a director. 29YC Interpretation In this Part— ““distribute””, and related expressions, shall be construed in accordance with section 29R(2) (written material) and section 29T(2) (recordings); ““dwelling”” means any structure or part of a structure occupied as a person’s home or other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose ““structure”” includes a tent, caravan, vehicle, vessel or other temporary or movable structure; ““programme”” means any item which is included in a programme service; ““programme service”” has the same meaning as in the Broadcasting Act 1990; ““publish””, and related expressions, in relation to written material, shall be construed in accordance with section 29R(2); ““recording”” has the meaning given by section 29T(2) and ““play”” and ““show””, and related expressions, in relation to a recording, shall be construed in accordance with that provision; ““transgender hatred”” has the meaning given by section 29P; ““written material”” includes any sign or other visible representation.””’. New schedule 2— ‘increase in sentences for aggravation related to transgender— 1 Section 146 of the Criminal Justice Act 2003 (c. 44) (increase in sentences for aggravation related to disability or sexual orientation) is amended as follows. 2 In the heading, after ““disability”” insert ““, transgender””. 3 In subsection (2)(a)(ii) at end insert— ““(iii) the transgender identity or appearance (or presumed transgender identity) of the victim, or””. 4 In subsection (2)(b)(ii) at end insert ““, or (iii) by hostility towards persons who have a transgender identity or appearance.””’. Amendment No. 214, page 234, line 4 [Schedule 22], at end insert— ‘(2A) After subsection (1) insert— ““(1A) An action under subsection (1) may include any action intending to equate sexual orientation with a propensity or intention to commit an imprisonable offence, where such action is threatening and intended to incite hatred on the grounds of sexual orientation.””’. Amendment No. 231, page 234, line 4, at end insert— ‘(2A) After subsection (1) insert— ““(1A) When considering whether to consent to a prosecution under subsection (1) the Attorney General must have particular regard to the importance of the right to freedom of expression provided by the European Convention on Human Rights.””’. Amendment No. 1, in page 234, line 26, at end insert— ‘13A After section 29J insert— ““29JA Protection of freedom of expression (sexual orientation) Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion of, criticism of or expressions of antipathy towards, conduct relating to a particular sexual orientation, or urging persons of a particular sexual orientation to refrain from or modify conduct related to that orientation.””.’. No. 215, in page 234, line 26, at end insert— ‘13A After subsection 29I insert— ““29IA European Convention on Human Rights Unless expressly limited by any provision within this Part, no right under Article 10 of the European Convention on Human Rights shall be affected.””’.