Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill


Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing

46

 

62      

Mental health treatment requirement

(1)   

Section 207 of the Criminal Justice Act 2003 (mental health treatment

requirement) is amended as follows.

(2)   

In subsection (3)(a) (requirement for court to be satisfied as to offender’s

mental condition on evidence of registered medical practitioner)—

5

(a)   

omit the words from “, on the evidence” to “1983,”, and

(b)   

in sub-paragraph (ii), for “that Act” substitute “the Mental Health Act

1983”.

(3)   

Omit subsection (5) (application of section 54(2) and (3) of the Mental Health

Act 1983 to proof of offender’s mental condition).

10

63      

Drug rehabilitation requirement

(1)   

In section 209 of the Criminal Justice Act 2003 (drug rehabilitation

requirements) omit subsection (3) (requirement for treatment and testing

period to be at least six months).

(2)   

In section 211(2) of that Act (powers of court at review hearing)—

15

(a)   

at the end of paragraph (a) insert “and”, and

(b)   

omit paragraph (b) and the “and” at the end of that paragraph.

64      

Alcohol treatment requirement

In section 212 of the Criminal Justice Act 2003 (alcohol treatment requirement)

omit subsection (4) (requirement for alcohol treatment requirement to have

20

effect for at least six months).

Youth sentences

65      

Referral orders for young offenders

(1)   

In section 16(1)(c) of the Powers of Criminal Courts (Sentencing) Act 2000 (duty

or power to refer a young offender to a youth offender panel not to apply if

25

court proposes to discharge the offender absolutely) for “absolutely” substitute

“, whether absolutely or conditionally,”.

(2)   

In section 17 of that Act (the referral conditions)—

(a)   

in subsection (2) at the end of paragraph (a) insert “and”,

(b)   

in that subsection omit paragraph (c) and the word “and” immediately

30

before it, and

(c)   

omit subsections (2A) to (2D).

(3)   

In consequence of the amendment made by subsection (2)(c) omit paragraph

12(3), (4) and (5) of Schedule 17 to the Coroners and Justice Act 2009.

(4)   

The amendments made by this section do not apply in relation to any sentence

35

passed in relation to an offence committed before the coming into force of this

section.

66      

Breach of detention and training order

(1)   

The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing

47

 

(2)   

In section 104 (breach of detention and training order), in subsection (3)

(penalties for breach), for paragraph (a) and the “or” at the end of that

paragraph substitute—

“(a)   

order the offender to be detained, in such youth detention

accommodation as the Secretary of State may determine, for

5

such period, not exceeding the maximum period found under

subsection (3A), as the court may specify;

(aa)   

order the offender to be subject to such period of supervision,

not exceeding the maximum period found under subsection

(3A), as the court may specify; or”.

10

(3)   

After subsection (3) of that section insert—

“(3A)   

The maximum period referred to in subsection (3)(a) and (aa) above is

the shorter of—

(a)   

three months, and

(b)   

the period beginning with the date of the offender’s failure and

15

ending with the last day of the term of the detention and

training order.

(3B)   

For the purposes of subsection (3A) above a failure that is found to have

occurred over two or more days is to be taken to have occurred on the

first of those days.

20

(3C)   

A court may order a period of detention or supervision, or impose a

fine, under subsection (3) above before or after the end of the term of

the detention and training order.

(3D)   

A period of detention or supervision ordered under subsection (3)

above—

25

(a)   

begins on the date the order is made, and

(b)   

may overlap to any extent with the period of supervision under

the detention and training order.”

(4)   

After subsection (4) insert—

“(4A)   

Where an order under subsection (3)(a) above is made in the case of a

30

person who has attained the age of 18, the order has effect to require the

person to be detained in prison for the period specified by the court.”

(5)   

After subsection (5) of that section insert—

“(5A)   

Sections 104A and 104B below make further provision about the

operation of orders under subsection (3) above.”

35

(6)   

In subsection (6) of that section, after “(a)” insert “, (aa)”.

(7)   

After that section insert—

“104A   

  Application of sections 103 to 105 in relation to orders under section

104(3)(aa)

(1)   

Subsections (3) to (7) of section 103 above apply in relation to a period

40

of supervision to which an offender is subject by virtue of an order

under section 104(3)(aa) above as they apply to the period of

supervision under a detention and training order.

(2)   

In the application of section 103 above by virtue of subsection (1) above,

subsection (7)(a) of that section is to be read as requiring a notice to be

45

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing

48

 

given to the offender as soon as is reasonably practicable after the order

under section 104(3)(aa) above is made.

(3)   

Section 104 above and section 105 below apply where an offender is

subject to a period of supervision under section 104(3)(aa) above as they

apply where a detention and training order is in force in respect of an

5

offender.

(4)   

In the application of section 104 above by virtue of subsection (3)

above—

(a)   

the references in that section to section 103(6)(b) above are to be

read as references to that provision as applied by subsection (1)

10

above,

(b)   

the references in subsections (3A)(b) and (3C) of that section to

the term of the detention and training order are to be read as

references to the term of the period of supervision under section

104(3)(aa), and

15

(c)   

the reference in subsection (3D)(b) of that section to the period

of supervision under the detention and training order is to be

read as including a reference to the period of supervision under

section 104(3)(aa).

(5)   

In the application of section 105 below by virtue of subsection (3)

20

above—

(a)   

paragraph (a) of subsection (1) of that section is to be read as if

the words “after his release and” were omitted, and

(b)   

the reference in that paragraph to the date on which the term of

the detention and training order ends is to be read as a reference

25

to the date on which the period of supervision under section

104(3)(aa) ends.

104B    

 Interaction of orders under section 104(3)(a) with other sentences

(1)   

Where a court makes a detention and training order in the case of an

offender who is subject to a period of detention under section 104(3)(a)

30

above, the detention and training order takes effect—

(a)   

at the beginning of the day on which it is made, or

(b)   

if the court so orders, at the time when the period of detention

under section 104(3)(a) above ends.

(2)   

Where a court orders an offender who is subject to a detention and

35

training order to be subject to a period of detention under section

104(3)(a) for a failure to comply with requirements under a different

detention and training order, the period of detention takes effect as

follows—

(a)   

if the offender has been released by virtue of subsection (2), (3),

40

(4) or (5) of section 102 above, at the beginning of the day on

which the order for the period of detention is made, and

(b)   

if not, either as mentioned in paragraph (a) above or, if the court

so orders, at the time when the offender would otherwise be

released by virtue of subsection (2), (3), (4) or (5) of section 102

45

above.

(3)   

Subject to subsection (4) below, where at any time an offender is subject

concurrently—

(a)   

to a detention and training order, and

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing

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(b)   

to a period of detention under section 104(3)(a),

   

the offender is to be treated for the purposes of sections 102 to 105 of

this Act as if the offender were subject only to the detention and

training order.

(4)   

Nothing in subsection (3) requires the offender to be released in respect

5

of either the order or the period of detention unless and until the

offender is required to be released in respect of each of them.

(5)   

The Secretary of State may by regulations make provision about the

interaction between a period of detention under section 104(3)(a) above

and a custodial sentence in a case where—

10

(a)   

an offender who is subject to such a period of detention

becomes subject to a custodial sentence, or

(b)   

an offender who is subject to a custodial sentence becomes

subject to such a period of detention.

(6)   

The provision that may be made by regulations under subsection (5)

15

includes—

(a)   

provision as to the time at which the period of detention under

section 104(3)(a) above or the custodial sentence is to take effect;

(b)   

provision for the offender to be treated, for the purposes of the

enactments specified in the regulations, as subject only to the

20

period of detention or the custodial sentence;

(c)   

provision about the effect of enactments relating to the person’s

release from detention or imprisonment in a case where that

release is not to take effect immediately by virtue of provision

in the regulations.

25

(7)   

The power of the Secretary of State to make regulations under

subsection (5)—

(a)   

is exercisable by statutory instrument;

(b)   

includes power to make supplementary, incidental,

transitional, transitory or saving provision.

30

(8)   

A statutory instrument containing regulations under subsection (5) is

subject to annulment in pursuance of a resolution of either House of

Parliament.”

(8)   

Before the coming into force of section 61 of the Criminal Justice and Court

Services Act 2000 (abolition of sentence of detention in a young offender

35

institution) section 104(4A) of the Powers of Criminal Courts (Sentencing) Act

2000 has effect as if it referred to a person who has attained the age of 21.

(9)   

The amendments made by this section apply in relation to a failure to comply

with requirements under section 103(6)(b) of the Powers of Criminal Courts

(Sentencing) Act 2000 that occurs after this section comes into force.

40

(10)   

Where a failure is found to have occurred over two or more days, it is to be

taken for the purposes of subsection (9) to have occurred on the first of those

days.

67      

Youth rehabilitation order: curfew requirement

(1)   

Paragraph 14 of Schedule 1 to the Criminal Justice and Immigration Act 2008

45

(youth rehabilitation order: curfew requirement) is amended as follows.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing

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(2)   

In sub-paragraph (2) (order may not specify curfew period of more than 12

hours) for “12” substitute “16”.

(3)   

In sub-paragraph (3) (order may not specify curfew periods outside period of

6 months from making of order) for “6” substitute “12”.

68      

Youth rehabilitation order: mental health treatment requirement

5

(1)   

Paragraph 20 of Schedule 1 to the Criminal Justice and Immigration Act 2008

(youth rehabilitation order: mental health treatment requirement) is amended

as follows.

(2)   

In sub-paragraph (3)(a) (requirement for court to be satisfied as to offender’s

mental condition on evidence of registered medical practitioner)—

10

(a)   

omit the words from “, on the evidence” to “1983 (c. 20),”, and

(b)   

in sub-paragraph (ii), for “that Act” substitute “the Mental Health Act

1983”.

(3)   

Omit sub-paragraph (5) (application of section 54(2) and (3) of the Mental

Health Act 1983 to proof of offender’s mental condition).

15

69      

Youth rehabilitation order: duration

(1)   

In Schedule 1 to the Criminal Justice and Immigration Act 2008 (further

provisions about youth rehabilitation orders), in paragraph 32 (requirement

for order to specify date by which requirements must have been complied

with)—

20

(a)   

in sub-paragraph (1), after the first “date” insert “(“the end date”)”,

(b)   

for sub-paragraph (2) substitute—

    “(2)  

If a youth rehabilitation order imposes two or more different

requirements falling within Part 2 of this Schedule, the order

may also specify a date by which each of those requirements

25

must have been complied with; and the last of those dates

must be the same as the end date.”

(c)   

after sub-paragraph (3) insert—

    “(4)  

Subject to paragraph 10(7) (duration of youth rehabilitation

order imposing unpaid work requirement), a youth

30

rehabilitation order ceases to be in force on the end date.”

(2)   

In Schedule 2 to that Act (breach, revocation or amendment of youth

rehabilitation order), in paragraph 6 (powers of magistrates’ court in case of

breach of order)—

(a)   

in sub-paragraph (6), at the beginning insert “Subject to sub-paragraph

35

(6A),”, and

(b)   

after that sub-paragraph insert—

   “(6A)  

When imposing a req uirement under sub-paragraph (2)(b),

the court may amend the order to substitute a later date for

that specified under paragraph 32(1) of Schedule 1.

40

     (6B)  

A date substituted under sub-paragraph (6A)—

(a)   

may not fall outside the period of six months

beginning with the date previously specified under

paragraph 32(1) of Schedule 1;

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing

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(b)   

subject to that, may fall more than three years after the

date on which the order took effect.

     (6C)  

The power under sub-paragraph (6A) may not be exercised

in relation to an order if that power or the power in

paragraph 8(6A) has previously been exercised in relation to

5

that order.

     (6D)  

A date substituted under sub-paragraph (6A) is to be treated

as having been specified in relation to the order under

paragraph 32(1) of Schedule 1.”

(3)   

In that Schedule, in paragraph 8 (powers of Crown Court in case of breach of

10

order)—

(a)   

in sub-paragraph (6), at the beginning insert “Subject to sub-paragraph

(6A),”, and

(b)   

after that sub-paragraph insert—

   “(6A)  

When imposing a req uirement under sub-paragraph (2)(b),

15

the Crown Court may amend the order to substitute a later

date for that specified under paragraph 32(1) of Schedule 1.

     (6B)  

A date substituted under sub-paragraph (6A)—

(a)   

may not fall outside the period of six months

beginning with the date previously specified under

20

paragraph 32(1) of Schedule 1;

(b)   

subject to that, may fall more than three years after the

date on which the order took effect.

     (6C)  

The power under sub-paragraph (6A) may not be exercised

in relation to an order if that power or the power in

25

paragraph 6(6A) has previously been exercised in relation to

that order.

     (6D)  

A date substituted under sub-paragraph (6A) is to be treated

as having been specified in relation to the order under

paragraph 32(1) of Schedule 1.”

30

(4)   

In that Schedule, in paragraph 16(1) (exercise of powers under paragraph 13(4)

or 14(4): further provision), at the beginning insert “Subject to paragraph 16A,”.

(5)   

After that paragraph insert—

“Extension of order

16A   (1)  

The appropriate court may, on the application of the offender or the

35

responsible officer, amend a youth rehabilitation order by

substituting a later date for that specified under paragraph 32(1) of

Schedule 1.

      (2)  

A date substituted under sub-paragraph (1)—

(a)   

may not fall outside the period of six months beginning with

40

the date previously specified under paragraph 32(1) of

Schedule 1;

(b)   

subject to that, may fall more than three years after the date

on which the order took effect.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing

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      (3)  

The power under sub-paragraph (1) may not be exercised in relation

to an order if it has previously been exercised in relation to that

order.

      (4)  

A date substituted under sub-paragraph (1) is to be treated as having

been specified in relation to the order under paragraph 32(1) of

5

Schedule 1.

      (5)  

In this paragraph “the appropriate court” means—

(a)   

if the order was made by a youth court or other magistrates’

court, or was made by the Crown Court and contains a

direction under paragraph 36 of Schedule 1, the court

10

determined under sub-paragraph (6), and

(b)   

if the order was made by the Crown Court and does not

contain a direction under paragraph 36 of Schedule 1, the

Crown Court.

      (6)  

The court referred to in sub-paragraph (5)(a) is—

15

(a)   

if the offender is aged under 18 when the application is made,

a youth court acting in the local justice area specified in the

youth rehabilitation order, and

(b)   

if the offender is aged 18 or over at that time, a magistrates’

court (other than a youth court) acting in that local justice

20

area.”

70      

Youth rehabilitation order: fine for breach

(1)   

Schedule 2 to the Criminal Justice and Immigration Act 2008 (breach of

requirement of youth rehabilitation order) is amended as follows.

(2)   

In paragraph 6 (powers of magistrates’ court in case of breach), in sub-

25

paragraph (2)(a), for sub-paragraphs (i) and (ii) substitute “£2,500”.

(3)   

In paragraph 8 (powers of Crown Court in case of breach), in sub-paragraph

(2)(a), for sub-paragraphs (i) and (ii) substitute “£2,500”.

(4)   

In paragraph 10 (power to amend amounts of fine)—

(a)   

in sub-paragraph (1) omit “(i) or (ii)” in both places, and

30

(b)   

in sub-paragraph (3)—

(i)   

in paragraph (a) omit “(i) or (ii)” in both places, and

(ii)   

in paragraph (b), for “this Act was passed” substitute “section

70 of the Legal Aid, Sentencing and Punishment of Offenders

Act 2011 came into force”.

35

Repeal of uncommenced provisions

71      

Magistrates’ courts’ powers to impose imprisonment

(1)   

The provisions of the Criminal Justice Act 2003 mentioned in subsection (2) are

repealed.

(2)   

The provisions are—

40

(a)   

section 154 (general limit on magistrates’ court’s power to impose

imprisonment),

(b)   

section 155 (consecutive terms of imprisonment),

 
 

 
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Revised 21 June 2011