House of Lords - Explanatory Note
Criminal Justice And Court Services Bill - continued          House of Lords

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Clause 49: Breach of community orders: failure to answer summons

118. Clause 49 provides the Crown Court with new powers to issue a summons or warrant in respect of an offender who fails to appear at the Crown Court to answer a summons issued by a justice in respect of an alleged breach of a community order. The clause inserts two new sub-paragraphs into paragraph 3 of Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000. New sub-paragraph (3) provides a power to issue a summons and new sub-paragraph (4) the power to issue a warrant.

Clause 50: Regulation of community orders

119. Clause 50 provides for regulations relating to community sentences (community rehabilitation orders, community punishment orders and community punishment and rehabilitation orders). This will allow the Secretary of State to set standards for the delivery of these orders.

Chapter II: Miscellaneous

Clause 51: Reprimands and warnings

120. Clause 51 removes the current requirement that a reprimand or warning may only be given in a police station. This will give the police flexibility to arrange for restorative conferences in more suitable locations such as the offices of the youth offending team responsible for assessing the young offender and providing the intervention programme. This clause also gives the police an explicit power to bail pending delivery of reprimands and final warnings. This will enable the police to deliver reprimands and final warning at restorative conferences involving parents and, where appropriate, victims.

Clause 52: Testing persons in police detention

121. Clause 52 sets out the procedure for taking urine and non-intimate samples (e.g. oral saliva swabs) for the purposes of testing those charged with certain acquisitive and drugs offences for the presence of specified Class A drugs. The procedures are set out through insertions of new sections in the Police and Criminal Evidence Act 1984. Only those aged over 18 can be tested under these provisions.

122. The procedure for testing states that:

  • A test may be taken if a person has been charged with a "trigger offence" or;

  • a police officer of at least the rank of Inspector has reasonable grounds to suspect a link between the offence and the misuse of a specified Class A drug, and authorises the taking of the sample.

123. As well as setting out the procedure for testing, the clause provides for requesting a sample for testing, and creates a new offence, with a penalty of up to three months in prison or a fine (not exceeding level 4 on the standard scale - currently £2,500), or both for failing without good cause to give a sample.

124. The Secretary of State may authorise people other than police officers to take samples, but only by affirmative resolution order.

125. The clause also provides powers for a custody officer to detain someone for up to six hours, following charge, for the purposes of testing.

Clause 53: Right to bail: relevance of drug misuse

126. Clause 53 amends section 4 of the Bail Act 1976 in order to require courts to have regard to any evidence of drugs misuse when considering the granting of bail and/or any conditions of bail.

Clause 54: Remand Centres

127. Clause 54 repeals the power to set up remand centres. No remand centres have ever been set up under this power. Clause 56 of the Bill will lead to 18-20 year old offenders being detained together with 17-20 year old remands and this removes the main reason for the existence of the power to establish remand centres.

Clause 55: Life sentences: tariffs

128. This clause changes the way tariffs are set in cases of detention during Her Majesty's pleasure. It provides for the sentencing court, rather than the Home Secretary, to do so in future and replaces the tariff setting aspects of the Crime (Sentences) Act 1997 with separate provision in the Powers of Criminal Courts (Sentencing) Act 2000. The tariff will continue to represent the minimum period that must be served before a case can be referred to the Parole Board to consider release. The period set by the court will be open to appeal by the offender or referral by the Attorney General if he considers it unduly lenient.

129. The effect of this provision is to bring the law into compliance with the conclusions of the European Court of Human Rights in the cases of T v. UK and V v. UK. There the Court found, amongst other things, that it was not compatible with Article 6 of the European Convention on Human Rights for the Home Secretary to set tariffs in cases of detention during Her Majesty's pleasure.

130. As a result of the change contained in this Clause, the arrangements for setting tariffs in these cases will be the same as those that currently apply to offenders serving discretionary life sentences. The Parole Board is already responsible for determining release, following tariff expiry, in respect of both groups of offender.

Clause 56: Abolition of sentences of detention in a young offender institution and custody for life

131. Clause 56 abolishes the sentences of detention in a young offender institution and custody for life. Following abolition, all defendants aged 18 or over at the time of sentencing who receive a custodial sentence will be sentenced to imprisonment or life imprisonment. Subsections (2) and (4) make provision for the Secretary of State to determine certain arrangements for the detention of those sentenced before this clause comes into effect (i.e. before the abolition of detention in a young offender institution and custody for life). These arrangements will be necessary in order to make the transition from the current system to that created by this clause.

Clauses 57, 58 and 59: Conditions or requirements of release of prisoners - electronic monitoring and drug testing

132. Clause 57 will provide powers to include, in the licence of any prisoner being released from a custodial sentence, a requirement to submit to electronic monitoring. The Secretary of State currently has the statutory power to attach conditions to a release licence. It is therefore already possible to impose curfew conditions, non-contact or exclusion conditions, and such conditions are used where appropriate. This clause will enable these types of condition to have the additional requirement of electronic monitoring attached to them. At present, the only statutory basis for the use of electronic monitoring of curfew conditions in a release licence is under the Home Detention Curfew scheme, which applies only to prisoners serving sentences of less than 4 years.

133. The new powers provided for in subsection (2)(a) may be used in the following ways:

  • where a licence requires the released person to observe a curfew or otherwise remain at a specified place, electronic monitoring could be used to determine whether the curfew is observed;

  • where a licence requires the released person not to enter a specified place or places, electronic monitoring could be used to determine whether that person has entered the restricted area.

134. In addition, subsection (2)(b) of clause 50 introduces new powers enabling the "tracking" of offenders released from prison on licence, by electronically monitoring their whereabouts, on a continuous basis, until the expiry of the licence or the removal of the condition, whichever happens first. Suitable technology to support "tracking" is not currently available, but is under development. These powers will therefore provide the basis for making use of "tracking" technology as and when it becomes available. Subsection (3) of clause 50 establishes that these new powers should not be used to achieve the electronic monitoring of curfew conditions imposed on prisoners who are subject to the Home Detention Curfew scheme. Those powers are provided for separately in the Criminal Justice Act 1991, as amended by the Crime and Disorder Act 1998.

135. Clause 58 makes similar provision to those in clause 57 and clause 59 but applies to those released on a Notice of Supervision under section 65 of the Criminal Justice Act 1991, rather than a licence. This covers some young offenders under 22 years of age who are released from a young offender institution and those released under section 53 of the Children and Young Persons Act 1933. Clause 58 also stipulates that any electronic monitoring or drug testing condition included in a Notice of Supervision must cease at the sentence expiry date - the date on which the person would (but for release) have served the custodial sentence in full.

136. Clause 59 provides powers to impose drug testing conditions on those who are convicted of a trigger offence and are subsequently released from prison on licence, provided they are over 18 at the time of release from custody. It is already a standard condition in release licences that a prisoner should be "of good behaviour" whilst on licence. These new powers will be used to determine compliance with that condition in respect of drug use, and may also be used to determine compliance with other more specific conditions which may be imposed in individual cases.

137. The enforcement mechanism for breaches of electronic monitoring or drug testing conditions or requirements will be the same as that applying in respect of any other type of condition or requirement. The arrangements will be those already in place for, and determined by, the particular type of licence or Notice of Supervision.

Clause 60: Short-term prisoners: release subject to curfew conditions

138. Clause 60 amends the Criminal Justice Act 1991 to provide that sex offenders subject to the Sex Offenders Act 1997 should not be eligible for the Home Detention Curfew scheme.

Chapter III: Supplementary

Clause 61: Interpretation

139. Clause 61 provides the Secretary of State with an order making power to amend the list of "trigger offences" in Schedule 5. It also allows for the Secretary of State to specify, by order, which Class A drugs are to be tested for.

Part IV: General and Supplementary

Chapter I: General

Clause 62: Access to driver licensing records

140. Clause 62 provides for the Secretary of State to make driver licensing records available to the Police Information Technology Organisation for use by the police. The intention is that this information will be transferred on to the Police National Computer (PNC).

141. These records will include the licence holder's name, address, sex, date of birth, country of birth (where known), driver number, type of licence held, classes of vehicle covered, other relevant restrictions on driving entitlement, endorsements, penalty points, licence commencement and expiry date. They will also include an electronic photograph and electronic signature which are an integral part of the photo-card driving licence record which the PNC is not currently able to store, but provision needs to made now to allow transfer of this data for a time when the PNC is able to store it.

Clause 63: Failure to secure regular attendance at school: increase in penalty

142. Clause 63 amends section 444 of the Education Act 1996 to raise the level of penalty if a parent is found guilty of not securing regular attendance at school of a registered child of compulsory school age to £2,500, that is up to level 4 on the standard scale of offences, and/or imprisonment for three months or less.

Clause 64: Parenting orders: responsible officer

143. Clause 64 extends the range of persons who may serve as responsible officer under a parenting order under section 8 of the Crime and Disorder Act 1998. This is currently limited under section 8(8) of the 1998 Act to a probation officer, a social worker of a local authority social services department or a member of a youth offending team. Clause 62 enables local education authority staff working outside youth offending teams to serve as responsible officer under a parenting order. Such staff could include education welfare officers and education social workers.

Schedules:

Schedule 1: Local Boards

144. Schedule 1 provides details of the constitution and operation of the local boards of the National Probation Service for England and Wales. Paragraph 8 gives local boards the power to appoint their staff and determine their terms and conditions, but these must be approved by the Secretary of State. The Secretary of State can also specify the qualifications or training that staff are required to have.

145. Paragraphs 9 and 10 allow a local board to delegate its functions to committees and subcommittees, and enable regulations to specify functions which the board will be required to delegate to the chief officer. The effect of this provision will be to enable the Secretary of State to give directions (under paragraph 12) with which the chief officer will be required to comply.

Schedule 2: CAFCASS

146. Schedule 2 provides details of the constitution of CAFCASS, its powers and those of the Lord Chancellor.

Schedule 3: Transfer of Property

147. Schedule 3 sets out the basis on which a Minister (the Secretary of State or the Lord Chancellor) may devise a scheme under clause 19 for the transfer of property. It provides that all ownership and liabilities will be transferred under such a scheme, and that the Minister's judgement as to whether a transfer has taken place is final.

Schedule 4: Meaning of "offence against a child"

148. Schedule 4 provides a list of offences and circumstances as a result of committing which, or falling within the categories defined, an individual will be deemed to have committed an offence against a child, as designated in subsection (1) of clause 25.

Schedule 5: Trigger Offences

149. Schedule 5 lists those offences defined as "trigger offences" for the purposes of drug testing. If an offence is defined as a "trigger offence", the authorisation required for the testing procedure will differ as described above.

FINANCIAL EFFECTS OF THE BILL

150. The costs and savings below depend on a range of assumptions, many of which cannot be easily quantified. For these reasons, the figures given are estimates only. All figures are full year figures at current year prices unless otherwise indicated.

151. The estimated costs, which provide for national roll out of both electronic monitoring and drugs testing and the enforcement measures, are likely to be between £210 and £240 million in the first year, which includes the set up costs, and between £140 and £166 million per annum thereafter. Costs will be offset by potential savings of up to an estimated £41 million per annum.

Part I: The New Services

152. Chapter I: The total costs to establish the National Probation Service for England and Wales are estimated at approximately £28.1 million. This includes costs for the establishment of the National Directorate, the amalgamation of 54 services into 42 areas, national IT support, training and recruiting 42 chairmen for the new local Boards. The net annual savings are likely to be in the region of £11.5 million although these are not likely to be realised until around 2003/4.

153. Chapter II: The set up costs for CAFCASS will be a maximum of £22.5 million over a two year period. This includes the costs for investment in an integrated IT system (up to £20 million), securing some new accommodation (£2 million) and ensuring suitable management structures are in place (£0.5 million). Up to an additional £6 million is required for further capital expenditure and IT support costs over a two year period. There may be possible savings in the running costs in later years.

Part II: Protection of Children

154. The costs for the protection of children measure are estimated about £100,000 per annum. This comprises around £40,000 for the operation of the proposed ban and costs associated with those breaching the ban in the courts. Approximately £60,000 is likely to be incurred in legal aid fees. Minimal costs are expected for enforcing the breach of the ban.

Part III: Dealing with Offenders

Electronic Monitoring

155. The proposed measures will be piloted and the estimated annual costs for national implementation total £8.9 million. This breaks down as follows:

  • use of exclusion as a sentence or condition of community order net cost of £0.6 million;

  • net cost of using exclusion as a licence condition net cost of £2.1 million;

  • net cost of using curfew as a licence condition net cost of £6.2 million.

Drug Testing

156. The proposals will be piloted and the estimated annual cost for national implementation are approximately £52.9m - £81.1m, of which £20 million will be police costs. This breaks down as follows:

  • Drug testing on arrest after charge net cost of £22.6 - £24.6 million;

  • Drug testing on bail net cost of £19.5 - £23.9 million

  • Drug testing under community sentence net cost of £5.1 million ;

  • Drug testing on license from prison net cost of £5.7 - £27.5 million.

157. Estimated costs for a pilot in three areas break down as follows:

  • Drug testing on arrest after charge new cost of £0.7 - £1.1 million;

  • Drug testing on bail net cost of £0.9 - £1.1 million;

  • Drug testing under community sentence net cost of £0.7 million;

  • Drug testing on license from prison net cost of £0.4 - £1.8 million.

Breach of Community Orders

Enforcement of community sentences: statutory warning scheme

158. The net annual costs for this measure are estimated at £2.7 million. This is derived from likely Probation Service costs of around £3.2 million for supervision costs, offset by savings of about £0.4 million for the courts and about £0.1 million in legal aid fees.

Presumption of imprisonment for breach of a community sentence

159. The net costs are estimated at £66.2 million in the first year and £51.2 million in subsequent years. These arise from likely Prison Service costs (based on the assumption of a 50% deterrence factor for the measure) of about £85 million in the first year, which includes £15 million capital costs. Annual running costs thereafter would be £70 million. There will be further costs to the courts of around £1.5 million to the courts and £0.3 million in legal aid fees. These will be offset by estimated savings to the Probation Service of around £20.6 million as a result of a reduction in supervision costs.

Life sentences: tariffs

160. The on-going costs for this measure are estimated at between £15,000 and £23, 000 per year, including legal aid fees. This represents the likely additional costs to the courts of hearing appeals against tariffs in cases of detention during Her Majesty's pleasure. Minimal costs will also be encountered by the Crown Prosecution Service.

161. In addition, there will be transitional costs of approximately £12,000, plus a small sum in legal aid fees, this year. This arises from additional hearings of the Parole Board to deal with a number of cases where the transitional arrangements for existing detainees mean that the tariff in those cases is now expired.

Part IV: General and Supplemental

Access to driver licensing records

162. This provision will enable the police to have ready access to information about driving licences. It is part of a package of measures which includes police access to other key documentation, including insurance data and MOT certificates. Access to driver licensing records will contribute to an estimated efficiency gains of up to £8.6 million. Set up costs are estimated at £0.15 million, with an annual running cost of £66,000. Training costs will be incurred, although these will be minimal. Training will be incorporated into the existing training on use of the Police National Computer.

School attendance

163. The costs of implementing the measure are estimated at £1.2 million per annum. Around £1 million of this is expected to be absorbed in legal aid fees. The remainder of the costs are split approximately equally between police costs for enforcing the warrant to attend court and the Education administration costs for additional prosecutions.

164. Costs arising from proposals in this Bill will be met from agreed Departmental Expenditure Limits.

EFFECTS OF THE BILL ON PUBLIC SERVICE STAFFING

165. With the exception of the following proposal, the measures in the Bill will have no significant public service staffing implications:

  • Part I, Chapter I: (National Probation Service for England and Wales) There may be a reduction of up to 170 posts due to the amalgamations of local areas but this will be partly offset by 50 new posts in headquarters.

SUMMARY OF THE REGULATORY APPRAISAL

166. The Regulatory Impact Unit (RIU) have been consulted and are content that for the most part these proposals will not impose a significant new burden on business or voluntary groups. The RIU therefore does not require a regulatory impact assessment or statement.

167. In relation to the proposals on preventing unsuitable people from working with children, the RIU believe that they could marginally increase the number of people making checks via the Criminal Records Bureau once it is established. However, it does not appear significant enough to warrant the completion of a separate Regulatory Impact Assessment (RIA). RIAs have been completed for both the Criminal Records Bureau and the Protection of Children Act 1999, which places a duty on certain groups to make checks on workers' previous criminal activity.

TERRITORIAL EXTENT

168. Most of the provisions in the Bill will extend to England and Wales only. The exceptions are as follows.

169. First, the provisions relating to the protection of children. Those disqualified in England and Wales from working with children, on the basis of these measures, will also be disqualified in Northern Ireland, but not Scotland. Northern Ireland are examining the need to introduce an equivalent disqualification system and Scotland are examining the need to legislate to ensure the England and Wales disqualifications apply in Scotland and that they introduce an equivalent system of disqualification. In addition, courts-martial have UK jurisdiction and this is reflected in the provisions relating to them.

170. Secondly, the provisions concerning the disclosure by the Secretary of State of driver licensing records extends to both Northern Ireland and Scotland.

171. Thirdly, certain provisions relating to the abolition of DYOI and custody for life. Clause 56 (so far as it relates to sentences passed by court-marital or a Standing Civilian Court) of and the provisions in Schedule 6 to the Bill relating to armed forces legislation will extend throughout the United Kingdom, the Channel Islands, the Isle of Man and certain overseas territories which are set out in the armed forces legislation.

172. The devolved National Assembly for Wales has been informed about the proposals concerning CAFCASS and consulted where appropriate, including in areas which are not within its formal responsibilities.

EUROPEAN CONVENTION ON HUMAN RIGHTS

173. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Lord Bassam of Brighton, Parliamentary Under-Secretary of State, Home Office, has made the following statement:

In my view the provisions of the Criminal Justice and Court Services Bill are compatible with the Convention rights.

 
 
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Prepared: 15 June 2000