House of Lords - Explanatory Note
Criminal Justice Bill - continued          House of Lords

back to previous text

Part 10 - Retrial for serious offences

41.     This Part of the Bill seeks to reform the law relating to double jeopardy, by permitting retrials in respect of a number of very serious offences, where new and compelling evidence has come to light. At present the law does not permit a person who has been acquitted or convicted of an offence to be retried for that same offence - this risk of retrial is known as "double jeopardy". There are two principles arising from the common law which prevent this. The first is known by the legal terms autrefois acquit and autrefois convict. These principles provide a bar to the trial, in respect of the same offence, of a person who has previously been either acquitted or convicted of that offence. In addition, the courts may consider it an abuse of process for additional charges to be brought, following an acquittal or conviction, for different offences which arose from the same behaviour or facts. There are certain exceptions to this rule.

42.     The Government considers that the law should be reformed to permit a re-trial in cases of serious offences where there has been an acquittal in court, but compelling new evidence subsequently comes to light against the acquitted person. This is in line with, but drawn more widely than, recommendations of the Law Commission and those set out in Lord Justice Auld's review of the Criminal Courts, published in 2001. Examples of new evidence might include DNA or fingerprint tests, or new witnesses to the offence coming forward. The measures seek to amend the law to permit the police to re-investigate a person acquitted of serious offences in these circumstances, to enable the prosecuting authorities to apply to the Court of Appeal for an acquittal to be quashed, and for a re-trial to take place where the Court of Appeal is satisfied that the new evidence is highly probative of the case against the acquitted person. The measures provide safeguards aimed at preventing the possible harassment of acquitted persons in cases where there is not a genuine question of new and compelling evidence, by requiring the personal consent of the Director of Public Prosecutions (DPP) both to the taking of significant steps in the re-opening of investigations - except in urgent cases - and to the making of an application to the Court of Appeal. The DPP will take into account both the strength of the evidence and the public interest in determining whether a re-investigation or application to the Court is appropriate.

43.     The new arrangements will apply only in respect of serious offences. These are offences which carry a maximum sentence of life imprisonment, and for which the consequences for victims or for society as a whole are particularly serious. The offences are listed in Schedule 4 to the Bill and include, for example, murder, manslaughter, rape and robbery involving firearms. They do not include all offences for which life imprisonment is the maximum punishment, because this would catch a number of common law offences which may not have such serious consequences, and for which a life sentence would rarely be imposed.

44.     Where the Court of Appeal quashes an acquittal, a new indictment for the same offence may then be preferred by the prosecuting authorities, and a retrial will follow. The retrial will take account of all the evidence available in the case. The Court of Appeal may refuse to quash an acquittal in cases where the evidence is not new and compelling, or where it is not considered in the interests of justice to proceed with a retrial.

Part 11 - Evidence

45.     Chapter 1 deals with the admissibility in criminal proceedings of evidence of a person's bad character. Under the law as it currently stands, the prosecution generally cannot produce evidence in a trial of a defendant's previous misconduct. This includes the fact that they have previously been convicted of an offence and any other evidence that might show a disposition in that person to break the law or act in particular way. This rule is an exception to the general principle that all relevant evidence is admissible and is itself subject to a number of exceptions. These include the "similar fact rule", which allows the prosecution to rely on evidence of a defendant's previous misconduct as part of its case against him in certain circumstances. There are also statutory exceptions such as section 1(3) of the Criminal Evidence Act 1898, which allows a defendant to be asked questions about his past in cross-examination where he has claimed to be of good character or has himself attacked the character of a prosecution witness or given evidence against a co-defendant. There are, however, no comparable rules governing the introduction of a witness's previous misconduct, which is therefore admissible provided that it is relevant.

46.     This area of the law has been the subject of a comprehensive study by the Law Commission, who published a report of their conclusions and recommendations for reform in October 2001: "Evidence of Bad Character in Criminal Proceedings" (Report No. 273). It was also considered by Sir Robin Auld during his Review of the Criminal Courts, which also reported in October 2001. Both offered substantial criticism of the present rules.

47.     The Government's approach has been closely informed by both reports and was set out in the Criminal Justice White Paper "Justice for All" (Cm 5563, July 2002). The Bill's provisions are intended to provide a comprehensive set of rules for the admissibility of this sort of evidence in respect both of witnesses and defendants. Accordingly, the existing common law rules are abolished and other statute law substantially repealed.

48.     Chapter 2 makes further changes to the rules of evidence by reforming the law relating to the admissibility of hearsay evidence in criminal proceedings.

49.     The common law rule against the admission of hearsay evidence is that 'an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted'. This means that only a statement given by a witness orally in court proceedings is admissible as evidence of the facts as they represent them. The main implication of this rule is that witnesses must give oral evidence in court from first-hand knowledge, and may not repeat what other people have told them. For example:

  • Written records are inadmissible evidence of the matters they contain;

  • Witnesses must give oral evidence and a written statement cannot be a substitute for their personal appearance in the witness box;

  • Witnesses must give evidence from first hand knowledge and may not repeat what other people have told them; and

  • Previous out of court oral statements made by the witness themselves are inadmissible evidence of the matters they contain.

50.     There are several exceptions to this rule, some of which are found in common law and some in statute. Both the common law rule and the way in which the exceptions operate, however, have been the subject of considerable criticism.

51.     This area of the law was the subject of a Law Commission Report Evidence in Criminal Proceedings: Hearsay and Related Topics (Report No 245) in 1997, which included 50 recommendations for reform and incorporated a draft Bill. This area of law was again considered by Sir Robin Auld as part of his Review. Sir Robin Auld concluded that we should move away from the strict rule against the admission of hearsay evidence in criminal proceedings, to a more flexible position where we admit such evidence and instead trust fact-finders to assess the weight of the evidence.

52.     The provisions in Chapter 2 of part 11 are intended, so far as necessary, to codify the law relating to the admissibility of out of court statements in criminal proceedings. They aim to simplify the law and to provide greater certainty as to the circumstances when such evidence will be admitted. The main provisions (in clauses 107 and 108) remove the old common law rule against the admission of hearsay evidence and provide that such evidence will be admissible (on behalf of the prosecution and defence) provided certain safeguards are met.

53.     Chapter 2 also provides the court with an additional statutory discretion to allow an out of court statement where it would not be contrary to the interests of justice for it to be admitted. In addition, witness's previous statements will be more widely admissible at trial (as proof of the facts contained within), including allowing certain witnesses in serious cases to use their video recorded statements in place of their main evidence.

Part 12 - Sentencing

54.     Chapter 1 sets out general sentencing provisions. Many of these re-enact existing provisions, which are currently contained in the Powers of Criminal Courts (Sentencing) Act 2000.

55.     Clauses 135 to 138 make provision for matters to be taken into account in sentencing. These include the purposes of adult sentencing, determining the seriousness of an offence, whether the offender pleaded guilty and whether the offence was racially or religiously aggravated. The purposes of sentencing are set out in statute for the first time. They are: punishment, public protection, crime reduction, reparation and the reform and rehabilitation of offenders.

56.     Clauses 139 to 143 specify when community sentences can be used and set out general restrictions on imposing community sentences. Clauses 144 and 145 perform a similar function in relation to custodial sentences. Clauses 146 to 148 amend the existing limits on magistrates' court's powers to impose custodial sentences and also provide an order-making power to increase those limits further. Clauses 149 to 153 set out the procedural requirements for imposing community and custodial sentences. They deal, in particular, with pre-sentence reports and other requirements in the case of mentally disordered offenders. For adult offenders pre-sentence reports are written by the probation service on the basis of their analysis of the offender's behaviour, criminal history and needs. They suggest to the court the kind of punishment and rehabilitation that would be appropriate in each particular case and make recommendations as to the particular sentence that should be passed. In the case of mentally disordered offenders the court has to obtain a medical report before imposing a custodial sanction. Clause 154 provides for pre-sentence drug testing when the court is considering imposing a community sentence. The test is intended to help the court to decide whether drug treatment and testing is necessary. Clauses 1557 to 158 deal with the court's powers to impose and remit fines. Clause 159 re-enacts existing provisions about mitigation and about dealing with mentally disordered offenders.

57.     Clauses 160 to 166 set up the Sentencing Guidelines Council, a new body which will produce a set of sentencing guidelines for all criminal courts and guidelines on allocation of cases between courts. Sentencing guidelines enable Courts to approach sentence in any case from a common starting point. They will also enable practitioners and the public generally to know what that starting point will be. The Bill creates a new Council to promulgate those guidelines and provides for the existing Sentencing Advisory Panel to tender its advice to that Council. The Council will create guidelines across a wide range of issues that are relevant to sentencing and Courts will be obliged to take the guidelines into account when deciding a sentence.

58.     Clause 167 replaces the existing duties on courts to provide reasons for sentence, with a new overarching duty to provide reasons and explain the sentence. The court is required to give reasons if it departs from a recommended guideline. Clause 168 expands the existing duty on the Home Secretary in section 95 of the Criminal Justice Act 1991 to publish information on the effectiveness of sentencing.

59.     Chapter 2 provides for community orders for offenders aged 16 or over. There are currently a number of different community orders: community rehabilitation orders, community punishment orders, community punishment and rehabilitation orders, curfew orders, drug treatment and testing orders, drug abstinence orders (being piloted), and exclusion orders (not yet commenced). This Bill creates a single generic community sentence, which combines all of the requirements currently available under different community sentences.

60.     The range of requirements available with a generic community sentence will be:

  • Compulsory (unpaid) work;

  • Participation in any specified activities;

  • Programmes aimed at changing offending behaviour;

  • Prohibition from certain activities;

  • Curfew;

  • Exclusion from certain areas;

  • Residence requirement;

  • Mental health treatment (with consent of the offender);

  • Drug treatment and testing (with consent of the offender);

  • Alcohol treatment (with consent of the offender);

  • Supervision;

  • Attendance centre requirements (for under 25s).

61.     Chapter 3 contains new provisions in relation to short prison sentences of less than 12 months. Currently an offender serving a prison sentence of less than 12 months is released automatically at the half way point of the sentence, and the second half of the sentence is not subject to any licence conditions. Following the recommendations of the Halliday Report 'Making Punishments Work', new sentences of less than 12 months have been developed which are designed to provide a more effective framework within which to address the needs of offenders.

62.     Clauses 174 and 175 make provision for the new sentence (described in the Halliday Report as custody plus), that will replace all short prison sentences of under 12 months (with the exception of intermittent custody). It will be made up of a short period in custody of up to 3 months (to fulfil the punishment purpose of the sentence) followed by a longer period under supervision in the community (to fulfil the reparation and crime reduction purposes of the sentence) of a minimum of 6 months. At the point of sentence the court will specify the lengths of the two parts and attach specific requirements, based upon those available under the generic community sentence, to the supervision part of the sentence so as to address the rehabilitative needs of the offender.

63.     If the court deems it appropriate, and the offender consents, the custodial part of the sentence can be served intermittently. Clauses 176 to 179 outline this sentence. Where an intermittent custody order is made the custodial periods will be served in short blocks of a few days at a time, while the licence period runs between the blocks (and may continue after the last custodial period). Intermittent custody will enable offenders to maintain jobs, family ties or education, all of which have been shown to play a part in reducing re-offending. This will be a new type of sentence in England and Wales, although there are similar systems in Europe. It will be piloted in two sites. If an offender fails to comply with the terms of the community part of the sentence he will be returned to custody. As with all recalls, the Parole Board will decide when he is to be re-released.

64.     Clauses 181 to 185 deal with suspended sentences. At present a custodial sentence can be suspended for between one and two years provided that the offence warrants custody and the suspension is justified by the "exceptional circumstances" of the case. A suspended sentence can be combined with a fine or compensation order, but not with a community sentence (although a supervision order can be attached). The custodial sentence is activated by the committal of another imprisonable offence. This Bill presents an amended version of the suspended sentence which is designed to be more widely available and more effective in correcting offending behaviour. The key change is that the court may suspend a short custodial sentence (as described in clause 174) for between six months and two years on condition that the offender undertakes activities in the community. These activities are chosen by the court from the list available under the generic community sentence. If the offender breaches the terms of the suspension the suspended sentence will be activated. Committal of a further offence during the entire length of suspension will also count as breach, and the offender's existing suspended sentence will be dealt with at the time the court sentences him to the new offence.

65.     This Bill provides the courts with a discretionary power to review an offender's progress under a suspended sentence. Courts already have the power to review drug treatment and testing orders (see section 54(6) of the Powers of Criminal Courts (Sentencing) Act 2000). The court can amend any requirement or provision of the drug treatment and testing order based on the progress of the offender under the sentence. The court will continue to have this power in relation to a drug treatment and testing requirement of a community sentence. It will also have the power to review the progress of an offender on a suspended sentence, if it chooses, whether or not a drug rehabilitation requirement forms part of the order, and alter the requirements accordingly. This more general power of review is limited to the new suspended sentence in this Bill, but may be extended further if it proves successful.

66.     Chapter 4 outlines the provisions common to community sentences and short prison sentences. Clauses 188 and 189 describe the duties of the "responsible officer". A responsible officer is an employee of the local probation board, an electronic monitoring provider (if electronic monitoring of a curfew or exclusion requirement is the only requirement on the order), and if the offender is under 18 it can be either a probation officer or a Youth Offending Team member. The responsible officer has overall control of an offender on a community sentence or the licence period of a custodial sentence. Clauses 190 to 205 describe in detail the requirements available in relation to community orders, custody plus orders, suspended sentence orders and intermittent custody orders. Clause 206 provides that electronic monitoring can be attached to any of the requirements. Clauses 207 to 211 set out general procedural requirements for community orders and short prison sentences, such as ensuring that people receive relevant information concerning each order. Clauses 212 to 214 set out the powers of the Secretary of State in relation to various requirements.

67.     Chapter 5 provides measures for dealing with dangerous offenders. The Halliday report criticised the existing disparate set of provisions for sexual and violent offenders and identified a need for a more coherent sentencing structure to deal with this type of offender. The Bill introduces a new scheme of sentences for offenders who have been assessed as dangerous and have committed a specified sexual or violent offence. Under the new scheme, dangerous offenders who have committed a trigger offence (listed in Schedule 12) for which the maximum sentence is less than ten years will be given an extended sentence (clause 218). This sentence will be a determinate sentence served in custody to the half way point. Release during the whole of the second half of the sentence will be on recommendation of the Parole Board. In addition extended supervision periods of up to five years for violent offenders and eight years for sexual offenders must be added to the sentence.

68.     If an offender has been assessed as dangerous and committed a sexual or violent offence whose maximum sentence length is ten years or more, he will receive either a sentence of imprisonment for public protection (clause 216) or a discretionary life sentence. In cases where the offender has committed an offence carrying a maximum sentence of life imprisonment the court must consider the seriousness of the offence when deciding upon which of the two possible sentences to impose. For both sentences the court will specify a minimum term which the offender is required to serve in custody. After this point the offender will remain in prison until the Parole Board is satisfied that their risk has sufficiently diminished for them to be released and supervised in the community. Following release, those serving a sentence of imprisonment for public protection would be able to apply to the Parole Board to have their licence rescinded after ten years had elapsed. Offenders serving a discretionary life sentence would be on licence for the rest of their lives. The Bill makes similar provisions for juveniles providing for the sentence of detention for public protection (clause 217) and the extended sentence (clause 219) to be passed for offenders aged under 18 who have committed a specified offence and have been assessed by the courts as dangerous.

69.     Chapter 6 deals with the arrangements for prisoners' release on licence, recall to prison following breach of licence requirements, and further re-release. It also contains provisions for calculating remand time, calculating how sentences should be served and drug testing requirements on licence.

70.     Clauses 231 to 234 enable the court to deduct any time spent on remand from the custodial part of the sentence that it passes.

71.     Clauses 235 to 242 provide for the release of offenders from custody. Under the present system only half of a prison sentence of between 12 months and 4 years has to be served in prison. Following release the offender will be subject to licence conditions until the three-quarter point of his sentence. If the sentence is of 4 years or more then the offender may be released between the half and two thirds point of the sentence subject to a recommendation by the Parole Board. After the two thirds point release is automatic and the prisoner is subject to licence conditions until the three quarter point and remains on licence until the end of his sentence.

72.     Under the new framework, offenders serving sentences of 12 months or more will be released automatically on licence at the half way point of their sentence (subject to early release on home detention curfew (HDC) which will remain available). Upon release, the second half of their sentence will be subject to standard licence conditions and any combination of the additional prescribed conditions that the Secretary of State may determine by order. New custodial sentences of 12 months or more will now be served in full and conditions may be imposed right up to the end of the sentence.

73.     If an offender fails to comply with a licence condition or commits an offence on licence he is liable to be recalled to prison, as described in clauses 243 and 244. This Bill makes recall to custody an executive decision - by the prison and probation services - rather than by the Parole Board, as at present. The offender will have the right of appeal to the Parole Board, and even if the offender chooses not to exercise this right the Parole Board will nonetheless scrutinise all recall decisions, to ensure they are fairly taken. By allowing the Parole Board to focus on assessing decisions of recall, the Bill removes the anomaly by which the Parole Board currently both advise on recalls and act as an appeal body against those same recalls.

74.     When determining an appeal against recall, or scrutinising the validity of a recall decision, the Parole Board will consider the issue of re-release, which is provided in clause 245. It will either set a date for re-release or for a review of re-release if setting a date is not feasible.

75.     Clause 246 provides the Secretary of State with the power to add days to prison sentences, under prison rules, where disciplinary offences are committed whilst in custody.

76.     Clauses 248 and 249 set out the principles for calculating the time offenders must spend in custody and on licence where several sentences are passed on the same or different occasions, and are ordered to be served concurrently (at the same time) or consecutively (one after the other).

77.     Clause 251 amends section 64 of the Criminal Justice and Court Services Act 2000 (release on licence etc. drug testing requirements) to require a young offender aged 14 and above, to be tested for specified Class A drugs if a responsible officer believes that the offender is likely to misuse any specified class A drug and that such misuse has caused or contributed to any offence for which he was convicted, or may cause him to commit further offences. An appropriate adult is required to be present during the testing procedure for those under the age of 17. The requirement for a trigger offence to apply is removed.

78.     Chapter 7 establishes a new scheme under which the court, rather than the Home Secretary, will determine the minimum term to be served in prison by a person convicted of murder. The length of this minimum term is to be determined by reference to a new statutory framework set out in Schedule 17. Once the minimum term has expired, the Parole Board will consider the person's suitability for release, and if appropriate, direct his release. These provisions respond to two court judgements, the judgement of the European Court of Human Rights in May 2002 in Stafford, and the judgement of the House of Lords in Anderson in November 2002.

79.     Chapter 8 contains additional sentencing provisions. One of these relates to deferred sentences. Currently a court can defer passing a sentence pending the good behaviour of the offender, as long as the offender consents and the court believes that deferring the sentence is in the interests of justice. If the offender commits another offence during the deferment period the court will deal with both sentences at once. This Bill will require more of the offender on a deferred sentence. The power to defer passing sentence is only exercisable if the offender undertakes to comply with any requirements as to his conduct that the court considers it appropriate to impose. He may have to complete undertakings in the community as set by the court. These can be activities such as reparation to the community. The probation service or other responsible body will monitor the offender's compliance with the requirements and will prepare a report for the court at the point of sentence. Failure to comply with a requirement will result in the offender being brought back to court early for sentence. As now, if the offender commits another offence during the deferment period the court will deal with both sentences at once.

80.     Clause 264 introduces Schedule 20 to the Bill which enables a requirement as to drug treatment and testing to be included in an action plan order or a supervision order.

81.     Clauses 265 to 268 In conjunction with Schedules 21, 22, 23 and 24 make the necessary alterations to the maximum penalties available for certain offences so as to ensure that they are compatible with the new sentencing framework. The Bill creates a new sentence of less than 12 months, custody plus, that will replace all short custodial sentences currently available (see clauses 174 and 175). The maximum length of a sentence of custody plus, in relation to a single offence, will be 51 weeks. Therefore, in order to ensure that a full sentence of custody plus may be passed for a certain offence, this offence must have a maximum penalty of 51 weeks imprisonment or more. Currently there are a number of offences, triable only in the magistrates' court, that have maximum penalties of six months imprisonment or less. These penalties will have no practical application under the new sentencing framework, therefore clauses 265 and 266 make the necessary alterations to the maximum penalties for such offences by either raising them to 51 weeks or lowering them to non custodial penalties. Similarly, clause 267 makes the necessary alterations to the penalties for certain triable-either-way offences on summary conviction so that they may be compatible with the new sentencing framework. Clause 268 also amends those powers in other legislation that provide for the creation of new summary or triable either way offences, so as to ensure that any offences created under these 'enabling powers' may be compatible with the new sentencing framework. Clause 269 and Schedule 24 increase the penalties for certain drug-related offences.

82.     In July 2002, the Government published its Report on the Review of Road Traffic Penalties and proposed to increase the maximum penalties for the offences of causing death by dangerous driving, causing death by careless driving under the influence of drink or drugs and aggravated vehicle taking where the aggravating feature is that, owing to the driving of the vehicle, an accident occurs and death results. Concerns had been expressed in response to the Review about the level of the maximum penalties and some sentences had been passed at, or close to, the maximum. Clause 296 the Bill provides that each of these three offences should have the same maximum penalty of 14 years imprisonment, an increase from 5 years for the aggravated vehicle taking offence and from 10 years for the other two offences. This will provide consistency in approach for driving offences where death results.

83.     Clauses 271 to 276 make provision for establishing a mandatory minimum sentence for anyone who is convicted, on indictment, of illegal possession or distribution of prohibited firearms.

84.     Clauses 278 and 279 provide a power to impose an unpaid work or curfew requirement on a fine defaulter or to disqualify them from driving, rather than sending them to prison. Schedule 25 sets out the equivalent number of hours of unpaid work or days of curfew in relation to amounts of fine defaulted.

85.     Chapter 9 sets out the principal repeals and deals with the interpretation of Part 12.

previous Section contents continue
House of Commons home page Houses of Parliament home page House of Lords home page search Page enquiries index

© Parliamentary copyright 2003
Prepared: 23 May 2003