Powers of Criminal Courts (Sentencing) Bill [H.L.] - continued        House of Lords
PART V, CUSTODIAL SENTENCES ETC. - continued

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General restrictions on discretionary custodial sentences
General restrictions on imposing discretionary custodial sentences.     79. - (1) This section applies where a person is convicted of an offence punishable with a custodial sentence other than one-
 
 
    (a) fixed by law; or
 
    (b) falling to be imposed under section 109(2), 110(2) or 111(2) below.
      (2) Subject to subsection (3) below, the court shall not pass a custodial sentence on the offender unless it is of the opinion-
 
 
    (a) that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only such a sentence can be justified for the offence; or
 
    (b) where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him.
      (3) Nothing in subsection (2) above shall prevent the court from passing a custodial sentence on the offender if he fails to express his willingness to comply with-
 
 
    (a) a requirement which is proposed by the court to be included in a probation order or supervision order and which requires an expression of such willingness; or
 
    (b) a requirement which is proposed by the court to be included in a drug treatment and testing order or an order under section 52(4) above (order to provide samples).
      (4) Where a court passes a custodial sentence, it shall-
 
 
    (a) in a case not falling within subsection (3) above, state in open court that it is of the opinion that either or both of paragraphs (a) and (b) of subsection (2) above apply and why it is of that opinion; and
 
    (b) in any case, explain to the offender in open court and in ordinary language why it is passing a custodial sentence on him.
      (5) A magistrates' court shall cause a reason stated by it under subsection (4) above to be specified in the warrant of commitment and to be entered in the register.
 
Length of discretionary custodial sentences: general provision.     80. - (1) This section applies where a court passes a custodial sentence other than one fixed by law or falling to be imposed under section 109(2) below.
 
      (2) Subject to sections 110(2) and 111(2) below, the custodial sentence shall be-
 
 
    (a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or
 
    (b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender.
      (3) Where the court passes a custodial sentence for a term longer than is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it, the court shall-
 
 
    (a) state in open court that it is of the opinion that subsection (2)(b) above applies and why it is of that opinion; and
 
    (b) explain to the offender in open court and in ordinary language why the sentence is for such a term.
      (4) A custodial sentence for an indeterminate period shall be regarded for the purposes of subsections (2) and (3) above as a custodial sentence for a term longer than any actual term.
 
      (5) Subsection (3) above shall not apply in any case where the court passes a custodial sentence falling to be imposed under subsection (2) of section 110 or 111 below which is for the minimum term specified in that subsection.
 
 
Procedural requirements for imposing discretionary custodial sentences
Pre-sentence reports and other requirements.     81. - (1) Subject to subsection (2) below, a court shall obtain and consider a pre-sentence report before forming any such opinion as is mentioned in subsection (2) of section 79 or 80 above.
 
      (2) Subsection (1) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report.
 
      (3) In a case where the offender is aged under 18 and the offence is not triable only on indictment and there is no other offence associated with it that is triable only on indictment, the court shall not form such an opinion as is mentioned in subsection (2) above unless-
 
 
    (a) there exists a previous pre-sentence report obtained in respect of the offender; and
 
    (b) the court has had regard to the information contained in that report, or, if there is more than one such report, the most recent report.
      (4) In forming any such opinion as is mentioned in subsection (2) of section 79 or 80 above, a court-
 
 
    (a) shall take into account all such information as is available to it about the circumstances of the offence or (as the case may be) of the offence and the offence or offences associated with it, including any aggravating or mitigating factors; and
 
    (b) in the case of any such opinion as is mentioned in paragraph (b) of that subsection, may take into account any information about the offender which is before it.
      (5) No custodial sentence shall be invalidated by the failure of a court to obtain and consider a pre-sentence report before forming an opinion referred to in subsection (1) above, but any court on an appeal against such a sentence-
 
 
    (a) shall, subject to subsection (6) below, obtain a pre-sentence report if none was obtained by the court below; and
 
    (b) shall consider any such report obtained by it or by that court.
      (6) Subsection (5)(a) above does not apply if the court is of the opinion-
 
 
    (a) that the court below was justified in forming an opinion that it was unnecessary to obtain a pre-sentence report; or
 
    (b) that, although the court below was not justified in forming that opinion, in the circumstances of the case at the time it is before the court, it is unnecessary to obtain a pre-sentence report.
      (7) In a case where the offender is aged under 18 and the offence is not triable only on indictment and there is no other offence associated with it that is triable only on indictment, the court shall not form such an opinion as is mentioned in subsection (6) above unless-
 
 
    (a) there exists a previous pre-sentence report obtained in respect of the offender; and
 
    (b) the court has had regard to the information contained in that report, or, if there is more than one such report, the most recent report.
      (8) Section 156 below (disclosure of pre-sentence report to offender etc.) applies to any pre-sentence report obtained in pursuance of this section.
 
Additional requirements in case of mentally disordered offender.     82. - (1) Subject to subsection (2) below, in any case where the offender is or appears to be mentally disordered, the court shall obtain and consider a medical report before passing a custodial sentence other than one fixed by law or falling to be imposed under section 109(2) below.
 
      (2) Subsection (1) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a medical report.
 
      (3) Before passing a custodial sentence, other than one fixed by law or falling to be imposed under section 109(2) below, on an offender who is or appears to be mentally disordered, a court shall consider-
 
 
    (a) any information before it which relates to his mental condition (whether given in a medical report, a pre-sentence report or otherwise); and
 
    (b) the likely effect of such a sentence on that condition and on any treatment which may be available for it.
      (4) No custodial sentence which is passed in a case to which subsection (1) above applies shall be invalidated by the failure of a court to comply with that subsection, but any court on an appeal against such a sentence-
 
 
    (a) shall obtain a medical report if none was obtained by the court below; and
 
    (b) shall consider any such report obtained by it or by that court.
      (5) In this section, "mentally disordered", in relation to any person, means suffering from a mental disorder within the meaning of the Mental Health Act 1983.
 
      (6) In this section, "medical report" means a report as to an offender's mental condition made or submitted orally or in writing by a registered medical practitioner who is approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder.
 
      (7) Nothing in this section shall be taken as prejudicing the generality of section 81 above.
 
 
Other restrictions
Restriction on imposing custodial sentences on persons not legally represented.     83. - (1) A magistrates' court on summary conviction, or the Crown Court on committal for sentence or on conviction on indictment, shall not pass a sentence of imprisonment on a person who-
 
 
    (a) is not legally represented in that court, and
 
    (b) has not been previously sentenced to that punishment by a court in any part of the United Kingdom,
  unless he is a person to whom subsection (3) below applies.
 
      (2) A magistrates' court on summary conviction, or the Crown Court on committal for sentence or on conviction on indictment, shall not-
 
 
    (a) pass a sentence of detention under section 90 or 91 below,
 
    (b) pass a sentence of custody for life under section 93 or 94 below,
 
    (c) pass a sentence of detention in a young offender institution, or
 
    (d) make a detention and training order,
  on or in respect of a person who is not legally represented in that court unless he is a person to whom subsection (3) below applies.
 
      (3) This subsection applies to a person if either-
 
 
    (a) he was granted a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service but the right was withdrawn because of his conduct; or
 
    (b) having been informed of his right to apply for such representation and having had the opportunity to do so, he refused or failed to apply.
      (4) For the purposes of this section a person is to be treated as legally represented in a court if, but only if, he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before he is sentenced.
 
      (5) For the purposes of subsection (1)(b) above a previous sentence of imprisonment which has been suspended and which has not taken effect under section 119 below or under section 19 of the Treatment of Offenders Act (Northern Ireland) 1968 shall be disregarded.
 
      (6) In this section "sentence of imprisonment" does not include a committal for contempt of court or any kindred offence.
 
Restriction on consecutive sentences for released prisoners.     84. - (1) A court sentencing a person to a term of imprisonment shall not order or direct that the term shall commence on the expiry of any other sentence of imprisonment from which he has been released under Part II of the Criminal Justice Act 1991 (early release of prisoners).
 
      (2) Expressions used in this section shall be construed as if they were contained in that Part.
 
      (3) Without prejudice to the generality of subsection (2) above, any reference in this section to imprisonment shall be construed in accordance with section 43 (young offenders) and section 45 (fine defaulters and contemnors) of that Act.
 
 
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