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

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     Clause 165: Duty of court to have regard to sentencing guidelines

452.     This clause places a duty on courts to have regard to any sentencing guidelines issued by the Council.

     Clause 166: Annual report by Council

453.     The Council must prepare an annual report on the exercise of its functions, which it must present to Ministers, who in turn must lay a copy of the report before each House of Parliament. The Council must then publish the report. Some leeway is allowed for the publication of the first report which can be published at the end of the financial year, following the one in which clause 160 comes into force (subsection (2)).

     Clause 167: Duty to give reasons for, and explain effect of, sentence

454.     This clause imposes a general statutory duty on courts to give reasons for, and explain the effect of, the sentence passed. In doing so, it seeks to bring together in a single provision many of the obligations on a Court to give reasons when passing sentence which are currently scattered across sentencing legislation.

455.     Subsection (1) requires a Court to explain its reasons for deciding on the sentence to be passed but to do so in non-technical terms. The aim is to enable the offender and other interested parties to understand why this particular sentence was chosen. The Court will also be under an obligation to explain to the offender how the sentence is structured, what the sentence requires him to do, what will happen if it is not done and any power that exists to vary or review the sentence.

456.     Subsection (2) extends the obligation to give reasons stated in subsection (1) by setting out certain matters that have to be dealt with. Where the Sentencing Guidelines Council has issued definitive guidelines relevant to the sentence, and the Court departs from them it must give reasons for doing so. In the case of a custodial sentence or a community sentence, the court must explain why it regards the offence as being sufficiently serious to warrant such a sentence. Where the Court reduces a sentence on account of a guilty plea, that fact must be included in the reasons, as must any other aggravating or mitigating factors relevant to the sentencing decision.

457.     Subsection (3) excludes from the obligation to give reasons those cases where the sentence is fixed by law (a separate duty to give reasons in relation to such sentences being made by clause 255) or falls to be imposed under the provisions of sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act, and section 51A of the Firearms Act.

458.     Subsection (4) provides the Secretary of State with an order-making power to confer exemptions from the duty to give reasons for and explain the effect of the sentence passed. He may also prescribe cases in which the reasons or explanation may be given in the absence of the offender. Subsection (5) requires a magistrates' court which passes a custodial sentence to ensure that the reason required under subsection (1) should be recorded on the warrant authorising the commitment of the offender and also entered in the court register.

Clause 168: Duty to publish information about sentencing

459.     This clause amends section 95 of the Criminal Justice Act 1991, so as to require the Secretary of State publish information each year on the effectiveness of sentencing in preventing re-offending and in promoting confidence in the criminal justice system. He is already required to publish information on race, gender and costs in the criminal justice system.

Clause 169: Interpretation of Chapter 1

460.     This clause defines various terms used in the Chapter.

Chapter 2 : Community Sentences for offenders aged 16 or Over

Clause 170: Community orders

461.     Subsection (1) provides that a community order may impose on the offender one or more of the following requirements:

  • an unpaid work requirement;

  • an activity requirement;

  • a programme requirement;

  • a prohibited activity requirement;

  • a curfew requirement;

  • an exclusion requirement;

  • a residence requirement;

  • a mental health treatment requirement;

  • a drug rehabilitation requirement;

  • an alcohol treatment requirement;

  • a supervision requirement;

  • if an offender is under 25, an attendance centre requirement.

462.     Certain of the requirements are subject to restrictions, identified in subsection (2). Subsection (3) provides that if the court makes a community order that includes a curfew requirement or an exclusion requirement, it must also impose an electronic monitoring requirement (as defined in clause 206) unless electronic monitoring is not available in the local area or if someone else whose consent is required (e.g. a landlord) withholds that consent. The court may also decide electronic monitoring is inappropriate in the case. Subject to the same provisos, under subsection (4), the court may impose electronic monitoring in conjunction with any of the other requirements listed above. Subsection (5) states that community orders cannot exceed three years in length, and the court can specify the duration of requirements within a community order. Subsection (6) requires the court to consider the compatibility of the various requirements it proposes to include.

     Clause 171: Power to provide for court review of community orders

463.     This clause enables the Secretary of State to make an order allowing or requiring a court to review the progress of an offender under a community order. The Secretary of State can also allow a court to attach or remove a review provision from a community order, and regulate the timing of reviews. Such an order may in particular contain provisions similar to those applying to reviews of suspended sentences, as provided in clauses 183 and 184. It is intended that the decision to extend reviews to community orders would be based on consultation with the courts.

     Clause 172: Breach, revocation or amendment of community order

464.     This clause introduces Schedule 7 which sets out procedures relating to the enforcement, revocation or amendment of community orders.

Chapter 3 : Prison sentences of less than 12 months

Clause 174: Prison sentences of less than 12 months

465.     This clause ensures that in general all prison sentences of less than 12 months will consist of a short period of custody followed by a longer period on licence, during which the offender has to comply with requirements fixed by the courts as part of his sentence. Subsection (2) sets out the minimum and maximum lengths of the sentence. Subsection (3) requires the court to specify both the 'custodial period' and the 'licence period'. During the licence period the offender is to be subject to conditions specified in the "custody plus order". Subsection (5) makes provision for the length of the custodial period, which must be between 2 and 13 weeks. Subsection (6) requires the licence period to be at least 26 weeks. Subsection (7) makes provision for consecutive sentences and limits the total term of imprisonment to 15 months. Subsection (9) provides that, in the case of a suspended sentence, the court need not specify the licence conditions that would apply should the sentence take effect at the point of sentence.

Clause 175: Licence conditions

466.     This clause lists the requirements which the court may attach to the licence period under the custody plus order provided for in clause 174. Subsection (2) sets out restrictions which apply when attaching certain requirements and subsection (5) requires the court to consider the compatibility of the requirements it imposes.

467.     Subsections (3 and (4) make provision for the imposition of an electronic monitoring requirement. Depending upon the other requirements which are imposed the court is either under a duty or has a discretion whether to impose this requirement. Subsection (5) requires the court to consider whether the requirements attached to the licence period are compatible.

     Clause 176: Intermittent custody

468.     Subsection (1) enables a court passing a sentence of imprisonment of under 12 months to specify the number of days the offender must serve in prison, and at the same time provide for his release on licence, subject to specified conditions, at set intervals throughout his sentence. Subsections (2) and (3) are interpretative provisions. Subsection (4) makes provision for the minimum and maximum length of the sentence, which like a custody plus sentence under clause 165 must always be at least 28 weeks but no more than 51 in respect of any one offence. Subsection (5) provides for the minimum and maximum amount of time the offender must spend in prison. Subsection (6) prohibits a court from imposing a sentence of this nature unless the offender consents. Subsection (7) makes provision for consecutive sentences and limits the total term to 65 weeks. Subsection (8) enables the Secretary of State by order to make provision about license periods that the court may specify. These include specifying the length of licence periods (such as 'between 2 and 4 days'); particular days of the week on which licence periods may begin or end (to restrict custodial periods to weekends, for example); and periods including or not including specified parts of the week (for example 'not Fridays'). Subsection (9) enables the court to require different requirements to be fulfilled within different time limits.

Clause 177: Restrictions on power to make intermittent custody order

469.     Intermittent custody may not be available in all parts of the country. Subsection (1) provides that a court must not make an intermittent custody order unless it has been notified by the Secretary of State that suitable arrangements are available in the relevant area. Subsection (2) requires the court to ensure that suitable prison accommodation is available for the custodial periods and that the offender has somewhere suitable to live during the licence periods. The court must consult an officer of the local probation board before making an intermittent custody order in respect of an offender. This is intended to assist the court in assessing whether the offender is suitable for intermittent custody.

Clause 178 Intermittent custody: licence conditions

470.     Subsection (1) sets out the restrictions on licence conditions available for intermittent custody. Subsection (2) provides that subsections (3) to (5) of clause 175 (which relate to electronic monitoring of licence conditions and compatibility of licence conditions in the context of custody plus orders) apply to intermittent custody orders.

Clause 179: Further provisions relating to intermittent custody

471.     Subsection (1) provides that payments under section 21 of the Prison Act 1952 (expenses of conveyance to prison) are not available in relation to intermittent release. Subsection (2) gives the Prison Service discretion to pay expenses for transport. Subsection (3) ensures that in respect of intermittent custody the standard discharge grant that prisoners receive when they leave custody is only available at the end of the last custodial period. Subsection (4) stipulates the point at which a person who has been temporarily released in pursuance of an intermittent custody order will be regarded as being "unlawfully at large". Subsection (5) creates an offence of remaining at large after temporary release in pursuance of an intermittent custody order.

Clause 180: Revocation or amendment of order

472.     This clause introduces Schedule 9 which sets out the procedure where the court decides to revoke or amend an intermittent custody or custody plus order.

Clause 181: Suspended sentences of imprisonment

473.     This clause deals with suspended sentences of imprisonment. Subsection (1) enables a court which passes a prison sentence of less than 12 months to suspend that sentence for a period of between six months and two years while ordering the offender to undertake certain requirements in the community. The custodial part of the sentence will not take effect unless the offender fails to comply with those requirements or commits another offence within the period of suspension. The period during which the offender undertakes requirements is called "the supervision period" and the entire length of suspension is called "the operational period". Subsection (2) makes provision for consecutive sentences and limits the total term to 65 weeks. Under subsection (3) the length of time the offender undertakes requirements may be less (but not more) than the entire period of suspension, but each of the two periods must last between six months and two years. Subsection (4) provides that the supervision period must not exceed the operational period. Subsection (5) prohibits the court from imposing a community sentence alongside a suspended sentence (though a fine or compensation order could be imposed). Subsection (6) provides that a suspended sentence is to be treated as a sentence of imprisonment. Subsection (7) is an interpretation provision.

Clause 182: Imposition of requirements by suspended sentence order

474.     This clause specifies the requirements that can be attached to a suspended sentence order. Subsection (1) lists those requirements. Subsection (2) sets out certain restrictions on imposing particular requirements. Subsection (3) states that where the court makes a imposes a curfew requirement or an exclusion requirement, it must also impose an electronic monitoring requirement (as defined in clause 206) unless electronic monitoring is not available in the local area or someone else whose consent is required (e.g. a landlord) withholds that consent. Subsection (4) provides for the court to add an electronic monitoring requirement to ensure compliance with certain other requirements. Subsection (5) requires the court to consider the compatibility of the requirements before imposing them.

Clause 183: Power to provide for review of suspended sentence

475.     Subsection (1) confers a discretion on courts to provide that a suspended sentence order passed under clause 172(1) be subject to periodic review at a review hearing. Subsection (2) excludes cases where the offender is subject to an order that imposes a drug rehabilitation requirement that is subject to court review, as those orders will already be subject to review. A review hearing is conducted by the court responsible for the order. Subsections (3) to (5) specify which court is responsible for the order in particular situations.

Clause 184: Periodic reviews of suspended sentence order

476.     This clause makes provision for what is to happen at a review hearing. Subsection (1) confers on the court a power to amend any community requirement of the suspended sentence order, following consideration of the responsible officer's report. Subsection (2) limits the power of amendment. In particular, the court cannot impose a new requirement unless the offender consents, but it can impose a requirement of the same kind (this is explained in subsection (3)). An offender's consent is also required before amending a drug, alcohol or mental health treatment requirement. The court may extend the supervision period, but not so that it lasts longer than two years or ends later than the operational period. The court may not amend the operational period. Unless the offender consents, the court may not amend the order if an appeal against it is pending. Subsection (3) provides that a requirement of the same kind means that it comes under the same paragraph of clause 182(1). It also means that the court can add an electronic monitoring requirement to a requirement of the same kind.

477.     Under subsection (4), where on the basis of the responsible officer's report, the court is of the opinion that the offender is making satisfactory progress, it can dispense with a review hearing. It may also amend the order to provide that subsequent reviews can be held on the papers, and without a hearing. Subsection (5) provides the court with the power to require the offender to attend a review hearing where the court is of the opinion his progress is no longer satisfactory. Under subsection (6) the court may adjourn a review hearing where it wishes to deal with the offender in respect of a breach of a requirement under formal breach proceedings. Subsection (7) enables the court to adjust the intervals between review hearings. Subsection (8) is an interpretation provision.

Clause 185: Breach, revocation or amendment of suspended sentence order, and effect of further conviction

478.     This clause introduces Schedule 10.

Clause 186: Interpretation of Chapter 3

479.     This clause defines various terms used in the Chapter.

Chapter 4 : Further provisions about orders under Chapters 2 and 3

Clause 187: Meaning of "relevant order"

480.     This clause defines "relevant order" for the purposes of this Chapter as meaning a community order, a suspended sentence order, a custody plus order or an intermittent custody order.

Clause 188: Meaning of "the responsible officer"

481.     This clause defines who the responsible officer is. Under subsection (1)(a), if an order imposes a curfew or exclusion requirement but no other requirement, and if that curfew or exclusion order is electronically monitored, the responsible officer is the person responsible for the electronic monitoring (currently the private sector providers under contract to the Home Office). If an offender is 18 or over and under 25, he may be given an attendance centre requirement. If this is as the only requirement of the order, subsection (1)(b) provides that the responsible officer is the officer in charge of the attendance centre. In all other cases, under subsections (1)(c) and (2), the responsible officer is either an officer of the local probation board, or for offenders under 18 at the time of the order, the responsible officer can be either an officer of the local probation board or a member of a youth offending team. Subsection (3) confers a power on the Secretary of State to amend subsections (1) and (2) by order subject to affirmative procedure.

Clause 189: Duties of responsible officer

482.     The statutory duties of the responsible officer are set out in subsection (1). Where the responsible officer is an officer of a local probation board or a youth offending team member, he or she must make any necessary arrangements for the offender to fulfil the requirements of the order, promote the offender's compliance with the requirements, and take enforcement action in the case of non-compliance. Subsection (2) makes an exception for responsible officers who are electronic monitoring providers.

Clause 190: Unpaid work requirement

483.     This clause re-enacts, with some modification, section 46 of the Powers of Criminal Courts (Sentencing) Act (which deals with "community punishment", previously called "community service"). Unpaid work is done on projects set up by the probation service in consultation with sentencers and the local community. These can include environmental projects such as clearing canals, removing graffiti, painting and decorating community facilities, and working in homes for the elderly. Under subsection (2) no offender can be required to do more than 300 hours of unpaid work or less than 40. The Bill increases the current upper limit from 240 hours. By subsection (3), the court must not impose an unpaid work requirement unless it is satisfied that the offender is a suitable person to perform work under such a requirement. If the court thinks that it is necessary to do so, it will first hear from an appropriate officer (as defined in subsection (4)). Subsection (5) provides that where the court is sentencing an offender for two or more offences, and imposes unpaid work requirements in respect of each of them, it can decide whether the hours of unpaid work should be served concurrently or consecutively. However, the total number of hours must not exceed 300.

Clause 191: Obligations of person subject to unpaid work requirement

484.     Under subsection (1) the offender must perform work as and when required by his responsible officer. Subsection (2) applies where an unpaid work requirement is imposed as part of a community order or a suspended sentence order. In these cases, the work must generally be completed within twelve months. Subsections (3) and (4) deal with the situation where an offender fails to complete the unpaid work within that period of time.

Clause 192: Activity requirement

485.     These provisions are based on the requirements as to activities at paragraph 2 of Schedule 2 of the Powers of Criminal Courts (Sentencing) Act 2000. Subsection (1) defines an activity requirement as a requirement that the offender must either present himself to a specified person, at a specified place, for a certain number of days, and/or take part in specified activities for a certain number of days. An activity requirement may include such tasks as receiving help with employment or group work on social problems. Reparative activities are a particular aim of this requirement. Subsection (3) also requires the court to consult before making such an order. If the offender is aged 18 or over, the court must consult an officer of a local probation board. If the offender is under 18, the court must consult either an officer of a local probation board or a member of a youth offending team. By virtue of subsection (4), the court must not impose an activity requirement on an offender before obtaining the consent of any other person whose co-operation is needed. Subsection (5) sets the maximum number of days of activity at 60. Subsection (6) sets out the duties of a person subject to an activity requirement. The offender is required to present himself at a place or places specified by his responsible officer on the number of days specified in the order, and to comply with instructions given by or under the authority of the person in charge of that place. The responsible officer will tell the offender where he needs to go and for how many hours, and that he must comply with the instructions of the person in charge of the place. Subsection (7) describes where activities must take place. If the place is a community rehabilitation centre, subsection (8) requires an offender to present himself elsewhere, if the person in charge of the community rehabilitation centre instructs him to. Subsection (9) makes further provision as to the obligations of the offender when he is required to participate in activities. Subsection (10) defines the terms used in the clause.

Clause 193: Programme requirement

486.     Subsection (1) defines a "programme requirement" as a requirement that the offender must participate in an accredited programme on a certain number of days. Programmes are courses which address offending behaviour, covering such topics as anger management, sex offending, substance misuse, etc. Subsections (2) and (3) define "accredited programme", "programme" and "the accreditation body". The Secretary of State may by order designate what the accreditation body is. This is left to delegated legislation as changes in the list of accredited bodies will be required from time to time. Under subsection (4) an officer of a local probation board (an officer of a local probation board or youth offending team member if the offender is under 18) must recommend that the specified programme is suitable for the offender before the court imposes a programme requirement. The court must also be satisfied that a place on the programme is available for the offender. Subsection (5) provides that the court must not impose a programme requirement on an offender before obtaining the consent of any person (other than the offender or responsible officer) whose co-operation is needed. Subsection (6) sets out the obligations of an offender who is subject to a programme requirement. The offender is required to participate in the programme as specified in the order in accordance with instructions given by his responsible officer. The offender must also comply with any instructions given by, or under the authority of, the person in charge of the programme. By virtue of subsection (7), a place must not be specified in an order unless it has been approved by the local probation board.

Clause 194: Prohibited activity requirement

487.     Subsection (1) defines a prohibited activity requirement. The court can require an offender to refrain from participating in certain activities. For example, it might forbid him to contact a certain person. The offender may be prohibited from participating in specified activities on a certain day or on a number of days or during a period of time. Under subsection (2), before setting such a requirement the court must consult an officer of the local probation board, or, in the case of an offender who is under 18, an officer of the local probation board or a member of a youth offending team. Subsection (3) makes it clear that the court can make a prohibited activity requirement which prohibits a defendant from possessing, using or carrying a firearm.

 
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Prepared: 23 May 2003