Chapter 3: Other offences
Section 70: Genocide, crimes against humanity and war crimes
397.Section 70 makes amendments to Part 5 of the 2001 Act in respect of the offences of genocide, crimes against humanity and war crimes. The amendments extend to England and Wales and Northern Ireland.
398.Subsection (3) inserts a new section 65A into the 2001 Act. The new section makes provision for the retrospective application of the offences of genocide, crimes against humanity and war crimes and related offences to things done on or after 1st January 1991.
399.Subsections (1), (3), (4), (5) and (7) of new section 65A have the effect of applying certain offences to acts committed on or after 1 January 1991. Those offences are genocide, crimes against humanity, war crimes, conduct ancillary to such offences committed outside the jurisdiction, offences ancillary to those offences and offences based on the responsibility of commanders and other superiors for such offences. With the exception of genocide and some of the categories of war crimes, the retrospective application of these offences is 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.
400.The effect of this requirement is to allow the courts to apply these offences in the 2001 Act to the extent that they were recognised in international law during the relevant period. So, for example, if a particular offence was recognised in international law at the time of the relevant conduct but in a narrower form than that of the offence set out in the 2001 Act, the defendant may still be convicted of the offence provided that his or her conduct met the elements of the offence as recognised at the relevant time in international law. The international law requirement ensures that the provisions comply with the principles enshrined in Article 7 of the ECHR. The requirement does not apply to genocide and certain categories of war crimes as it is beyond dispute that those offences (and all their constituent elements) were fully recognised in international law in 1991. The requirement is necessary for the other offences as, whilst the vast majority of them were recognised in international law during the relevant period, a small number may have been recognised in a narrower form than that provided for in the 2001 Act and a very small number of offences may not have been sufficiently recognised at all. In addition, international law developed during the period in question.
401.Subsection (3) also inserts a new section 65B into Part 5 of the 2001 Act. The new section modifies the penalties applicable to the offences for the period of retrospection (1 January 1991 to 1 September 2001) in respect of certain specific offences. The 2001 Act provides for a maximum sentence of 30 years’ imprisonment (other than where murder is involved). The same will generally apply for offences committed from 1 January 1991. However for domestic genocide and grave breaches of the Geneva Conventions (a category of war crimes), both of which were already offences in domestic law in 1991, a maximum penalty of 14 years’ imprisonment applies instead of 30 years’ (other than where murder is involved). This provision ensures that a higher penalty cannot be imposed for such offences than existed in domestic law at the time of their commission and consequently ensures compliance with Article 7 of the ECHR.
402.Subsection (4) inserts a new section 67A into Part 5 of the 2001 Act to make supplemental provision about UK residents. Such residents are liable under the 2001 Act for offences committed abroad if they are resident at the time of committing the crime or subsequently become resident. New section 67A makes additional provision in respect of UK residents in two ways. First, subsection (1) lists a number of categories of person who are to be treated as being resident in the UK for the specific purposes of Part 5 of the 2001 Act to the extent this would not otherwise be the case. The specific categories are listed in paragraphs (a) to (j). Secondly, subsection (2) of new section 67A provides a non-exhaustive list of considerations a court must take into account in determining whether a person is resident in the UK.
Section 71: Slavery, servitude and forced or compulsory labour
403.Section 71 creates a new offence in England and Wales and Northern Ireland of holding someone in slavery or servitude, or requiring a person to perform forced or compulsory labour. Subsection (1) creates the new offence.
404.Subsection (2) requires subsection (1) to be interpreted in accordance with Article 4 of the ECHR. Article 4 of the ECHR states:
No one shall be held in slavery or servitude.
No one shall be required to perform forced or compulsory labour.
For the purpose of this Article the term “forced or compulsory labour” shall not include:
any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
any work or service which forms part of normal civic obligations.
405.In England and Wales and Northern Ireland on conviction on indictment the maximum sentence for the new offence is imprisonment for 14 years.
406.The maximum sentence on summary conviction for the offence in England and Wales is six months’ imprisonment. On the commencement of section 154(1) of the 2003 Act, the maximum sentence on summary conviction in England and Wales will rise to 12 months. The maximum custodial penalty on summary conviction in Northern Ireland is six months.
Section 72: Conspiracy
407.Section 72 amends section 1A of the Criminal Law Act 1977 which sets out the conditions for the offence of “conspiracy to commit offences outside the United Kingdom”. As a result section 1A will apply to conspiracies to commit offences “outside England and Wales”, thereby including conspiracies to commit offences in Scotland or Northern Ireland (which are not currently covered by section 1A).
408.This change is achieved by widening the scope of the first condition in section 1A(2) of the Criminal Law Act 1977, which currently applies only to agreements to pursue a course of conduct that would involve an act or event intended to take place in a country or territory outside the United Kingdom. This condition will now be satisfied where the act or event is intended to take place outside England and Wales and therefore will include acts or events in Scotland or Northern Ireland.
409.The section also substitutes three new subsections for section 1A(14) of the Criminal Law Act 1977. These ensure that the changes made by section 72 do not have retrospective effect. Any agreement entered into during the period beginning on 4 September 1998 and ending with the date that section 72(1) comes into force will be subject to the current wording of section 1A(2).
410.Subsection (2) makes equivalent changes for Northern Ireland.
Section 73: Abolition of common law libel offences etc
411.Section 73 abolishes the common law offences of sedition, seditious libel, defamatory libel and obscene libel in England and Wales and Northern Ireland.
