House of Lords - Explanatory Note
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Clause 15: Absconding by persons released on bail

143.     Subsection (1) requires the court to refuse bail to an adult defendant who failed without reasonable cause to surrender to custody in answer to bail in the same proceedings, unless the court is satisfied that there is no significant risk that he would so fail if released.

144.     Subsection (2) disapplies section 127 of the Magistrates' Court Act 1980 (which prevents summary proceedings from being instituted more than 6 months after the commission of an offence) in respect of offences under section 6 of the Bail Act, and substitutes a limitation of three months from the defendant's surrender to custody, arrest or court appearance in respect of that offence. This will ensure that a defendant cannot escape being prosecuted for the Bail Act offence merely by succeeding in absconding for more than six months.

Clause 16: Appeal to Crown Court

145.     Clause 16 creates a new right of appeal to the Crown Court against the imposition by magistrates of certain conditions of bail. The conditions which may be challenged in this way are requirements relating to residence, provision of a surety or giving a security, curfew or electronic monitoring. This complements the removal by clause 17 of the existing High Court power to entertain such appeals.

Clause 17: Appeals to the High Court

146.     Clause 17 abolishes the jurisdiction of the High Court in respect of bail where it duplicates that of the Crown Court.

Clause 18: Appeal by prosecution

147.     Clause 18 amends section 1 of the Bail (Amendment) Act 1993 so that the prosecution's right of appeal to the Crown Court against a decision by magistrates to grant bail is extended to cover all imprisonable offences.

Clause 19: Drug users: restriction on bail

148.     Evidence suggests that there is a link between drug addiction and offending. In addition, it is widely accepted that many abusers of drugs fund their misuse through acquisitive crime. There is thus a real concern that if such offenders who have been charged with an imprisonable offence are placed on bail, they will merely re-offend in order to fund their drug use.

149.     Under this clause, an alleged offender aged 18 or over who has been charged with an imprisonable offence will not be granted bail (unless the court is satisfied that there is no significant risk of his committing an offence while on bail), where the three conditions below exist:

(i)     there is drug test evidence that the person has a specified Class A drug in his body (by way of a lawful test obtained under section 63B of the Police and Criminal Evidence Act 1984 or clause 154 of the Bill);

(ii)     either the offence is a drugs related offence associated with a specified Class A drug or the court is satisfied that there are substantial grounds for believing that the misuse of a specified Class A drug caused or contributed to that offence or provided its motivation; and

(iii)     the person does not agree to undergo an assessment as to his dependency upon or propensity to misuse specified Class A drugs or, has undergone such an assessment but does not agree to participate in any relevant follow-up offered.

150.     The assessment will be carried out by a suitably qualified person, who will have received training in the assessment of drug problems. The person will normally be an employee of a recognised drug service provider. If an assessment or follow-up is proposed and agreed to, it will be a condition of bail that they be undertaken. The provision can only apply in areas where appropriate assessment and treatment facilities are in place.

PART 3: CONDITIONAL CAUTIONS

Clause 22: Conditional cautions

151.     Clause 22 defines a conditional caution and provides that it may be given to an adult offender if the requirements in clause 23 are met. The conditions which may be imposed are restricted to those aimed at reparation for the offence, or at the rehabilitation of the offender. A conditional caution may be given by an authorised person as defined in subsection (4).

Clause 23: The five requirements

152.     Clause 23 sets out the requirements which need to be met for a conditional caution to be given. The requirements are that there is evidence against the offender; that the Crown Prosecution Service consider that the evidence would be sufficient to charge him or her and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of what the caution (and failure to comply with it) would mean; and that he or she signs a document containing details of the offence, the admission, the offender's consent to the caution, and the conditions imposed.

Clause 24: Failure to comply with the conditions

153.     Clause 24 provides that if the offender fails without reasonable excuse to satisfy the conditions attached to the conditional caution he or she may be prosecuted for the offence. If proceedings are commenced the document referred to in clause 23 is admissible in evidence, and the conditional caution ceases to have effect.

Clause 25: Code of practice

154.     This clause makes provision for the Home Secretary, with the consent of the Attorney General, to publish a Code of Practice setting out the criteria for giving conditional cautions, how they are to be given and who may give them, the conditions which may be imposed and for what period, and arrangements for monitoring compliance.

155.     The Home Secretary is required to publish the Code in draft and to consider any representations regarding it. The completed Code must then be laid before Parliament.

PART 4: CHARGING ETC

Clause 27: Charging or release of persons in police detention

156.     Clause 27 introduces Schedule 2 which makes additional provision for the charging or release of people in police detention. It amends section 37 of the Police and Criminal Evidence Act 1984 and inserts new sections 37A-37D. New section 37A enables the Director of Public Prosecutions to issue guidance to which custody officers are to have regard in deciding whether, in cases where they consider that there is sufficient evidence to charge a suspect, they should release the suspect without charge but on bail, release him or her without charge and without bail, or charge him.

157.     It is envisaged that the DPP's guidance will set out the circumstances in which it will be appropriate for the police to charge or otherwise deal with a suspect without reference to the Crown Prosecution Service; this is likely to include minor cases (such as the majority of road traffic offences), cases where there is an admission by the suspect and which could be disposed of by the magistrates' court, and cases where there is a need to bring the suspect before a court with a view to seeking a remand in custody. In other cases it will be appropriate for the police to release the suspect without charge but on bail while (as required by section 37B) the case is referred to the CPS.

158.     New section 37B provides that, if a suspect is released without charge but on bail, it is then for the CPS to determine, if they agree that the evidence is sufficient, whether the suspect should be charged, and if so with what offence; or whether he should be given a caution (and if so in respect of what offence). The suspect is then to be charged, cautioned, or informed in writing that he is not to be prosecuted.

159.     Section 37C makes provision for dealing with breach of any conditions attached to police bail granted pending the CPS decision as to charge. Paragraph 5 of Schedule 2 amends section 46A of the Police and Criminal Evidence Act 1984 to confer a power of arrest on reasonable suspicion that bail conditions have been broken. Paragraph 6(3) of that Schedule amends section 47(1A) of that Act to enable conditions to be imposed where a person is released on bail pending consultation with the CPS.

Clause 28: New method of instituting proceedings

160.     This clause provides for a new method of instituting criminal proceedings which is available to a public prosecutor as defined in subsection (5). It consists in the issue to the person to be prosecuted of a written charge, together with a written requirement ('a requisition') for him or her to appear before a magistrates' court to answer to the charge.

161.     Subsection (3) requires the written charge and the requisition to be served on the person named and to be copied to the court.

162.     Subsection (4) prohibits public prosecutors from laying an information for the purpose of obtaining the issue of a summons under section 1 of the Magistrates' Courts Act 1980. They may still do so, however, for the purpose of obtaining the issue of a warrant (clause 29(4)).

Clause 30: Removal of requirement to substantiate information on oath

163.     Clause 30 abolishes the need for applications for warrants under section 1 of the Magistrates' Court Act 1980 to be substantiated on oath.

PART 5: DISCLOSURE

164.     This Part amends some of the provisions in the Criminal Procedure and Investigations Act 1996 (the 1996 Act) that govern the disclosure of unused prosecution material to the defence and the provision of a defence case statement.

Clause 31: Initial duty of disclosure by prosecutor

165.     This clause amends section 3 of the 1996 Act and introduces a new objective single test for the disclosure of unused prosecution material to the defence. It replaces the current two tests that apply at the primary and secondary disclosure stages of the present scheme.

166.     The new test will require the prosecutor to disclose to the accused:

         "..any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused."

Clause 32: Defence disclosure

167.     This clause amends the defence disclosure requirements in section 5 of the 1996 Act.

168.     Subsection (1) amends section 5 of the 1996 Act to provide for the cross service of defence statements following an order of the court. The court may make such an order of its own motion or on the application of any party (new sub-section 5(B)).

169.     Subsection (2) inserts a new section 6A in the 1996 Act. The new section prescribes the content of a defence statement. It replaces subsections (6) to (9) of section 5 of the 1996 Act (which are repealed).

170.     At present the accused is required to set out in general terms the nature of his defence. The effect of the new section is to require the accused to provide a more detailed defence statement. The present requirements contained in section 5(6)(b) and (c) of the 1996 Act are replicated in the new section 6A(1)(b) and (c) and the alibi notification provisions in section 5(7) and (8) are replicated in the new section 6A(2) and (3). The main changes are that the accused will, in the future, be required to set out the nature of his defence, including any particular defences on which he intends to rely, and indicate any points of law he wishes to take. Details of alibi witnesses must include the witness's date of birth.

171.     Subsection (1) of the new section 6A defines a defence statement for the purposes of Part 1 of the 1996 Act. The accused will be required to provide a written statement setting out the nature of his defence, including any particular defences on which he intends to rely. The statement must also indicate any facts on which the accused takes issue with the prosecution, setting out in respect of which matter the reason why he takes issue with the prosecution and indicating any point of law he wishes to take, including the admissibility of evidence and abuse of process points, and any authority on which he intends to rely for that purpose.

172.     Subsection (2) of the new section 6A provides that if the statement discloses an alibi, the accused must include particulars of the alibi in the statement. These are to include the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, if the accused knows these details, when the defence statement is given. If the accused does not have this information, the particulars are to include any information in his possession that might assist in identifying or finding any such witness.

173.     Subsection (3) of the new section 6A defines evidence in support of an alibi for the purpose of section 6A as evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time, he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission. This definition reproduces the definition of evidence in support of an alibi given in section 11(8) of the Criminal Justice Act 1967.

174.     Subsection (4) of the new section 6A gives the Secretary of State power to prescribe in regulations further details that are to be contained in defence statements. Such regulations will be subject to the affirmative resolution procedure.

175.     Subsection (3) of the clause inserts a new Section 6B in to the 1996 Act which requires the accused to provide an updated defence statement within a period specified in regulations made under section 12 of the 1996 Act. However, if the accused has nothing to add to his earlier defence statement, he may instead give a written statement to that effect.

176.     Updated defence case statements must comply with the requirements applicable to defence statements.

177.     Subsections (5) and (6) of the new section 6B provide for the cross service of updated statements following an order of the court (made either of its own motion or on application by any party). This mirrors new sub section (5B) of section 5 of the 1996 Act (inserted by clause 28(1)) that provides for the cross service of the initial statement.

Clause 33: Notification of intention to call defence witnesses

178.     This clause inserts a new section 6C in the 1996 Act which imposes a new requirement on the accused to serve, before the trial, a notice giving details of any witnesses he intends to call to give evidence at his trial. Details of the witnesses' name, address and date of birth must be given to the court and the prosecutor within a time limit specified in regulations made under section 12 of the 1996 Act. If the address is not known, the accused must provide any information that might assist in identifying or finding the witness. The clause does not require the accused to provide advance notice that he personally intends, or does not intend, to give evidence at the trial.

179.     Subsection (2) of the new section 6C provides that if details of any alibi witnesses have already been provided as part of the defence statement in accordance with new section 6A(2), further details do not have to given under this provision.

180.     Subsection (4) of the new section 6C requires the accused to give an amended notice if he subsequently decide to call a witness who is not in the notice, decides not to call someone who is on the list or discovers any information on the whereabouts of the witness.

Clause 34: Notification of names of experts instructed by defendant

181.     This clause inserts a new section 6D into the 1996 Act, which imposes a new requirement on the accused to serve, before the trial, a notice giving details of the name and address of any expert witness consulted. A notice will be required in respect of each expert consulted.

182.     Subsection (2) of the new section 6D provides that if details of the expert have already been provided under new section 6C (notification of intention to call defence witnesses), a notice is not required under this section.

Clause 35: Further provisions about defence disclosure

183.     This clause inserts a new section 6E into the 1996 Act.

184.     Subsection (1) of new section 6E provides that a defence statement served under sections 5,6 or 6B of the 1996 Act on behalf of an accused, by his solicitor, is deemed to have been given on the authority of the accused, unless the contrary is proved.

185.     Subsections (2) and (3) of the new section 6E provides that where it appears to the judge at a pre trial hearing (as defined in Part 4 of the 1996 Act) that the accused has not fully complied with the requirements set out in sections 5 (defence statement), 6B (updated defence statement) or 6C (witness list), the judge must warn him that there is the possibility of comment being made or inferences being drawn.

186.     Subsections (4), (5) and (6) of section 6E apply where there is a trial before judge and jury. They enable the judge, either of his own motion or on the application of any party, to give to the jury a copy of the defence statement and, if he does so, to direct that it be edited to exclude any inadmissible material. The defence statement that is given to the jury is the updated defence statement where this has been provided. Where no updated defence statement has been given it is the initial defence statement.

Clause 36: Continuing duty of disclosure by prosecutor

187.     This clause inserts a new section 7A in the 1996 Act. The new section 7A replaces the existing sections 7 and 9 of the 1996 Act (which are repealed). The new section 7A imposes a continuing duty on prosecutors to disclose unused material.

188.     Subsection (1) of the new section 7A provides that the section applies at all times after the prosecutor has provided initial prosecution disclosure under section 3, or has purported to do so. This duty continues until the accused is acquitted, convicted or the prosecutor decides not to continue with the case.

189.     Subsection (2) of the new section 7A requires the prosecutor to keep under review the question of whether there is any material that meets the new disclosure test in set out in section 3 (material that might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused and has not been disclosed to the accused).

190.     Subsection (3) of the new section 7A provides that if there is any such material the prosecutor must disclose it to the accused as soon as is reasonably practicable or within any time limit specified in regulations made under section 12 of the 1996 Act.

191.     Subsection (4) of the new section 7A provides that when complying with the requirement to review the unused prosecution material the prosecutor must take account of the state of affairs as it stands at the time, including the prosecution case.

192.     Subsection (5) of the new section 7A provides that where the prosecutor receives a defence statement served under sections 5, 6 or 6B and as a result of that statement is required to make further disclosure in accordance with section 7A, he must do so within the relevant period specified in regulations made under section 12 of the 1996 Act or give a written statement that that no disclosure is required.

193.     Subsection (6) of the new section 7A defines prosecution material for the purposes of the section as material which is in the prosecutor's possession, or which he has been allowed to inspect in pursuance with a Code of Practice issued under Part 2 of the 1996 Act.

194.     Subsection (7) of the new section 7A provides that the prosecutor should disclose material under this section as he does so when carrying out initial prosecution disclosure in accordance with section 3 of the 1996 Act.

195.     Subsection (8) of the new section 7A provides that material must not be disclosed to the accused under this section if the court, on application by the prosecutor concludes that it is not in the public interest to disclose it, and has ordered accordingly.

196.     Subsection (9) of the new section 7A provides that material must not be disclosed to the accused under this section if disclosure is prohibited under section 17 of the Regulation of Investigatory Powers Act 2000.

Clause 37: Application by defence for disclosure

197.     This clause replaces subsections (1) and (2) of section 8 the 1996 Act. Section 8 enables the accused to apply to the court for further disclosure of unused prosecution material if certain conditions are met.

198.     New subsection (1) of section 8 provides that the section applies when the defence has given a defence statement under sections 5, 6 or 6 B and the prosecutor has complied with his continuing duty to disclose or purported to comply with it or has failed to comply with it.

199.     New subsection (2) of section 8 enables the accused to apply to the court for an order requiring the prosecutor to disclose material, to the accused, if the accused has reasonable cause to believe that there is prosecution material that should have been, but has not been, disclosed to the accused pursuant to the prosecutor's continuing duty to disclose.

Clause 38: Faults in defence disclosure

200.     This clause substitutes a new section 11 for existing section 11 of the 1996 Act. The new section 11 extends the existing list of defence disclosure failures and removes the leave requirement for making comment in respect of some of these.

201.     New section 11 provides that a court or jury may draw inferences from certain faults in relation to disclosure by the accused in deciding whether he is guilty.

202.     Subsection (1) of section 11 provides that this section applies in three sets of circumstances, as set out in subsections (2), (3) and (4).

203.     Subsection (6) provides that in the case of a failure to mention a point of law in a defence statement, comment by another party may only be made with the leave of court.

204.     Subsection (7) provides that in the case of failures in relation to witness lists, comment by another party may only be made with the leave of the court.

205.     Subsection (10) provides that a person cannot be convicted solely on an inference under this section.

PART 6: ALLOCATION AND TRANSFER OF OFFENCES

Clause 39: Allocation of offences triable either way, and sending cases to Crown Court

206.     Clause 39 introduces Schedule 3, which sets out how it is to be decided whether cases triable either way should be tried summarily or on indictment, and provides for the sending to the Crown Court of those cases which need to go there.

Amendments to the Magistrates' Courts Act 1980.

207.     Paragraphs 3 and 4 of Schedule 3 clarify that the preliminary stages of an either-way case, including the plea before venue and allocation procedures, may take place at a hearing before a single justice. But a single justice may not conduct a contested trial, nor - whilst he may take a guilty plea - may he impose a sentence on the offender. Paragraph 3 also limits the sentence that may be imposed where a person pleads guilty to a small-value offence.

208.     Paragraph 5 substitutes section 19 of the Magistrates' Courts Act 1980, which makes provision for the procedure to be followed by a magistrates' court in deciding whether a case involving an offence triable either way to which the defendant has not indicated a guilty plea should be tried summarily or on indictment. The new procedure ('allocation') differs from the present one in that the court is to be informed about, and take account of, any previous convictions of the defendant in assessing whether the sentencing powers available to it are adequate. The court is to have regard, not only (as now) to any representations made by the prosecution or defence, but also to allocation guidelines which may be issued by the Sentencing Guidelines Council under clause 163.

209.     Paragraph 6 substitutes section 20 of the Magistrates' Courts Act 1980 which sets out the procedure to be followed by the magistrates' court where it decides that a case is suitable for summary trial. As now, defendants will be told that they can either consent to be tried summarily or, if they wish, be tried on indictment. In making that decision they may be influenced by the knowledge that, since it will no longer be possible to be committed for sentence to the Crown Court once the magistrates have accepted jurisdiction, they cannot receive a sentence beyond the magistrates' powers. But defendants are moreover to have the opportunity of requesting an indication from the magistrates whether, if they pleaded guilty at that point, the sentence would be custodial or not.

210.     The magistrates' court will have a discretion whether or not to give an indication to a defendant who has sought one. Where an indication is given, defendants will be given the opportunity to reconsider their original indication as to plea. Where a defendant then decides to plead guilty, the magistrates' court will proceed to sentence. A custodial sentence will be available only if such a sentence was indicated, and if so - unlike after a guilty plea indication under s17A or 17B - the option of committal to the Crown Court for sentence under s3 of the Powers of Criminal Courts (Sentencing) Act 2000 will not be available.

211.     Otherwise (i.e. where the defendant declines to reconsider his plea indication, or where no sentence indication is given) the defendant will be given the choice between accepting summary trial or electing trial on indictment, as at present. Where an indication of sentence is given and the defendant does not choose to plead guilty on the basis of it, the sentence indication is not binding on the magistrates who later try the case summarily, or on the Crown Court if the defendant elects trial on indictment.

212.     Paragraph 7 amends section 21 of the Magistrates' Courts Act 1980 so that, where the court decides that trial on indictment appears more suitable, it will proceed to send the case to the Crown Court in accordance with section 51(1) of the Crime and Disorder Act 1998.

213.     Paragraph 10 adds four new sections (24A-24D) to the Magistrates' Courts Act 1980 which apply a procedure akin to that in sections 17A-17C ('plea before venue') to cases involving defendants who are under 18. It would apply in certain cases where it falls to the court to decide whether the defendant should be sent to the Crown Court for trial, whether in his or her own right, or for joint trial with an adult defendant.

214.     Paragraph 11 amends section 25 of the Magistrates' Courts Act 1980. The current power to switch between summary trial and committal proceedings is abolished, and in its place there is a new power for the prosecution to apply for an either-way case which has been allocated for summary trial to be tried on indictment instead.

     Sending cases to the Crown Court etc.

215.     Paragraphs 15-20 amend the Crime and Disorder Act 1998. Paragraph 17 sets out the order in which a magistrates' court is to apply various procedures in respect of either-way offences.

216.     Paragraph 18 substitutes section 51 of the Crime and Disorder Act 1998 so that it applies not just (as now) to indictable-only offences (and cases related to such offences), but also where an either-way case involving an adult defendant is allocated for trial on indictment. The provisions for sending to the Crown Court related cases against the same defendant or another defendant (including one under 18) are preserved.

217.     Paragraph 18 also inserts into the Crime and Disorder Act 1998 new section 51A, which replaces the existing provisions for moving cases where the principal defendant is under 18 to the Crown Court for trial; and new sections 51B and 51C, which subsume the transfer provisions now in section 4 of the Criminal Justice Act 1987 (serious fraud cases) and section 53 of the Criminal Justice Act 1991 (child witness cases) respectively. The procedure in sections 51B and 51C is initiated, as it is now, by the issue of a notice by the prosecutor.

218.     Paragraph 19 makes provision for reporting restrictions.

 
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Prepared: 23 May 2003