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

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Clause 295: Arrangements for assessing etc. risks posed by certain offenders

631.     This clause re-enacts with amendments section 67 of the Criminal Justice and Courts Services 2000. It places a duty on the "responsibility authority" (the chief officer of police, the local probation board for each area and the Prison Service) to establish and keep under review arrangements for assessing and managing the risks posed by "relevant sexual and violent offenders" or other offenders who may cause serious harm to the public (see subsection (2)). The arrangements which have been established at area level to undertake this duty take the form of "multi-agency public protection arrangements".

632.     Under subsection (3), the responsible authority and those bodies listed in subsection (6) must co-operate with each other, so as to enable the responsible authority to perform its duty. Subsection (5) states that a memorandum outlining this process must be produced. The Secretary of State is given the power in subsection (7) to amend the list of specified bodies who must co-operate with the responsible authority, so as to add or remove an entry.

Clause 296: Review of arrangements

633.     This clause requires the responsible authority to keep the effectiveness of the arrangements it has established under review and to change them where necessary. This review must be conducted in consultation with two lay advisers to be appointed for each area by the Secretary of State. This clause also requires the responsible authority to publish an annual report detailing how it has discharged its functions.

Clause 297: Clause 295 - interpretation

634.     This clause defines "relevant sexual or violent offender" for the purposes of clause 269. It therefore clarifies to which offenders multi-agency protection arrangements should apply.

Clause 298: Criminal record certificates: amendments of Part 5 of Police Act 1997

635.     Clause 298 introduces Schedule 29 which makes a number of amendments to Part 5 of the Police Act 1997 ('the 1997 Act') which governs the disclosure of criminal and other records by the Criminal Records Bureau (CRB) for employment vetting purposes. The CRB's higher level disclosure service was launched in March 2002. This is intended for employers and voluntary organisations seeking to appoint persons to work with children or vulnerable adults or involving other sensitive positions of trust.

636.     The CRB experienced some initial difficulties in meeting its published performance standards, as a result, in September 2002, the Home Secretary appointed an Independent Review Team to take a fundamental look at the operations of the CRB. The Home Secretary announced the Government's response to the Review Team's recommendations on 27th February 2003 (Official Report, col: 32WS-36WS). The amendments to the 1997 Act implement a number of the Review Team's recommendations.

637.     Paragraphs 2, 3(2)(b) and 4(2)(b) of Schedule 29 amend sections 112(1)(a), 113(1)(a) and 115(1)(a) of the 1997 Act respectively to enable regulations to be made prescribing the manner in which an application for a disclosure must be made. In the case of standard and enhanced disclosures, the intention is to require applications to be submitted to the CRB via a registered body (which is already the current practice) and, in due course, to require applications to be submitted electronically. Paragraphs 3(2)(c) and 4(2)(c) amend sections 113(1)(b) and 115(1)(b) respectively so that regulations may also be made prescribing the manner in which the fee for a standard or enhanced disclosure application is to be payable. Again, it is the intention to require the fee to be routed to the CRB via the registered body countersigning the application, although liability for payment will remain with the individual applicant.

638.     Paragraph 3(3) and 4(5) insert a new subsection into sections 113 and 115 respectively. The purpose is to enable the CRB to issue a standard disclosure where an enhanced disclosure has been applied for but the application does not satisfy the requirements for such a disclosure, and vice versa. The CRB will first and foremost seek to educate and support registered bodies to ensure that they correctly apply the criteria for each type of disclosure; accordingly it is intended that this reserve power will only be used in exceptional circumstances.

639.     Paragraph 4(3) and (4) repeal the existing subsections in section 115 which determine who qualifies for an enhanced disclosure. The intention is that, henceforth, the criteria will be specified in regulations so that there is the flexibility to alter them as circumstances require, for example, because of a change to the risk assessment in relation to a given occupational group. Paragraph 5 makes a similar change to section 116 of the 1997 Act which relates to applications for enhanced disclosures for judicial appointments and Crown employment.

640.     Paragraphs 6 to 9 enable the CRB to set clear standards for registered bodies, particularly in respect of validating the identity of applicants for disclosures, and confers powers on the CRB to suspend or revoke registration where such standards are not complied with.

641.     Paragraph 6 amends section 120 of the 1997 Act which relates to registered persons. Section 120(2) of the 1997 Act requires the Secretary of State to register any person who satisfies the requirements for registration. These requirements are set down either in regulations (hitherto made under section 120(3), but in future made under new section 120ZA(2) as inserted by paragraph 6 of the Schedule) or in section 120(4) to (6) of the 1997 Act which relate to the legal status of the person applying for registration and whether that person can ask (on his own or another person's behalf) an exempted question under the provisions of the Rehabilitation of Offenders Act 1974. The revised section 120(2) sets down an additional requirement, namely that the applicant has not had his registration cancelled in the past two years.

642.     Paragraph 7 inserts new section 120ZA into the 1997 Act. This new section replaces and extends the existing power to make regulations about registration. In particular, the new power enables regulations to make provision for the registration of any registered body to be subject to conditions. It is envisaged that such conditions would require a registered body to take specified steps to verify the identity of any applicant for disclosure, to ensure that disclosure applications are properly completed and to ensure that adequate security measures are in place to control the use of, access to and security of disclosures. Registered bodies will also be required to pay disclosure application fees monthly in arrears rather than submitting a separate fee with each individual application. A condition might also be imposed requiring applications for disclosure to be submitted to the CRB by electronic means. It would be open to a registered body to delegate the identity validation function to one or more agents (e.g. a Local Education Authority may delegate the function to headteachers of maintained schools), but would retain overall responsibility for ensuring that identity checks were properly carried out.

643.     Paragraph 8 makes a consequential amendment to the heading of section 120A of the 1997 Act (refusal and cancellation of registration).

644.     Paragraph 9 inserts new sections 120AA and 120AB into the 1997 Act. New section 120AA sets out further grounds on which a registration may be refused, suspended or cancelled, while new section 120AB sets out the procedure to apply in the event of a suspension or cancellation. Under new section 120AA(1) registration may be refused where an applicant is likely to countersign fewer than a prescribed minimum number of disclosure applications per year. A registration may be suspended or cancelled where a registered body is no longer likely to wish to countersign disclosure applications (this ground for cancellation may currently be found in regulations); has not countersigned the prescribed minimum number of applications in the past 12 months; or has failed to comply with any condition attached to registration. Before a decision to suspend or cancel a registration takes effect, a registered body must be given an opportunity to submit representations. If, following consideration of the representations, the decision is confirmed the registered body has a 6 week period of grace before the suspension or cancellation takes effect to allow time for alternative arrangements for counter-signing disclosure applications to be put in place. Regulations may be made to extend (or reduce) the 6 week period of grace.

645.     Paragraph 10 inserts new section 122A into the 1997 Act. This enables the Secretary of State to delegate his functions under Part 5 of the 1997. Act to another person (e.g. to a Public Private Partnership provider or Managed Service provider). The Home Secretary is precluded from delegating his powers to make regulations or to publish or revise a code of practice.

646.     Paragraph 11 inserts a new section 124A into the 1997 Act. This new section makes it an offence for any person to whom the Secretary of State has delegated functions under new section 122A (e.g. a PPP provider or his employees) to disclose any personal information obtained in connection with those functions. There are certain exceptions, including where the disclosure is made in the course of the person's duties.

PART 14 : GENERAL

Clause 299: Orders and rules

647.     This clause provides that where the Bill confers power on a Minister to make an order or rules, the power is exercisable by statutory instrument. The only exception is the case of rules under clause 230(5) about the proceedings of the Parole Board.

648.     Subsection (4) specifies that this power may also include the power to make transitional and consequential provisions and savings, whenever a provision in the Bill is commenced by order under clause 305.

649.     Subsection (5) lists statutory instruments that are to be subject to affirmative resolution procedure. All other instruments made under powers to which the clause applies, apart from those excluded by subsection (7), are subject to negative resolution procedure. An instrument made under any of the provisions mentioned in subsection (7) is not subject to any parliamentary procedure.

Clause 300: Further minor and consequential amendments

650.     This clause introduces Schedule 30.

Clause 301: Repeals

651.     This Clause introduces Schedule 31.

Clause 302: Supplementary and consequential provision etc

652.     This clause enables the Secretary of State to make supplementary, incidental or consequential provision, and transitory, transitional or saving provision. An order made under this power will be subject to negative resolution procedure (see clause 299(6)), other than where primary legislation is being amended in which case it is subject to the affirmative resolution procedure (see clause 299(5)(b)).

653.     Where one provision of the Bill is brought into force before another, the power includes power to modify the provision brought into force so as to take account of the fact that the other provision is not yet in force. The power also includes a general power to make consequential amendment of other Acts.

654.     Clause 302 is different from the power provided in clause 299(4) in that it is exercisable independently of the commencement power in clause 305 and creates in effect a new, free-standing power to make transitional provisions at any time, including a power to amend primary legislation. It is considered necessary, particularly in respect of the sentencing provisions, to pick up any consequential amendments not identified before the Bill's introduction or during its passage; and also to deal with long-term transitional arrangements created by the introduction of a new system which will gradually replace the existing arrangements.

Clause 303:Provisions for Northern Ireland

655.     This clause provides that an Order in Council under section 85 of the Northern Ireland Act 1998 (or during direct rule, paragraph 1 of the Schedule to the Northern Ireland Act 2000), is to be subject to negative resolution rather than affirmative procedure if it contains a statement that it is made only for purposes corresponding to those in Part 11 of the Bill (evidence).

Clause 305: Commencement

656.     The provisions listed in subsection (1) will come into force on Royal Assent. The life sentence provisions listed in subsection (2) will come into force 2 weeks later. The remaining provisions in the Bill will be brought into force by order, which can also - by virtue of subsection (4) - introduce different elements for different purposes, in different areas.

Clause 306: Extent

657.     This clause provides that in general the Bill extends to England and Wales only, subject to the exceptions mentioned.

SCHEDULES

Schedule 1: Amendments related to Part 1

658.     Paragraphs 1 to 10 make various amendments which are consequential on the specific modifications and extensions to powers set out in Part 1.

659.     Paragraph 11 amends section 2 of the Criminal Justice Act 1987 to allow "appropriate persons" to exercise the powers of a constable executing a warrant under that section. "Appropriate persons" are either members of the Serious Fraud Office or authorised by the Director of that Office to accompany a constable executing a warrant under that section. This amendment is similar to that made by clause 2 of the Bill. "Appropriate persons" may exercise those powers only in the company and under the supervision of a constable. Paragraphs 12 and 13 make related amendments of section 2.

660.     Paragraph 14 extends the meaning of property seized by a constable, for the purposes of section 56(1) of the Criminal Justice and Police Act 2001, to include property seized by persons accompanying constables executing warrants (as allowed for by clause 2, of and paragraph 11 of Schedule 1 to, the Bill). This amendment is required for those cases in which a person accompanying a constable executing a warrant has (because of the changes made by the Bill) a power of seizure to which section 50, 53, 54, or 55 of the Criminal Justice and Police Act 2001 applies. Section 50 confers extended powers of seizure and sections 53 to 55 impose obligations to return certain seized items. Section 56 is relevant in determining whether items must be returned under sections 53 to 55 or whether they may be retained. Its effect is to authorise the retention of certain items.

661.     Paragraph 15 extends stop and search powers under section 2 of the Armed Forces Act 2001 to articles made, adapted or intended for use in causing criminal damage. This amendment is similar to that made by clause 1 of the Bill.

662.     Paragraphs 16 to 19 amend Schedule 4 to the Police Reform Act 2002 which allows certain police powers to be exercised by designated civilian members of staff. The amendments are necessary to ensure that those provisions are consistent with the amendments to PACE powers set out in the Bill.

Schedule 7 - Breach, revocation and amendment of community order

663.     This Schedule largely reproduces with some amendments the provisions of Schedule 3 of the Powers of Criminal Courts (Sentencing) Act 2000 (which will continue to apply to certain orders for young offenders). Part 1 deals with interpretation and other matters. Part 2 deals with breaches of requirements of a community order.

664.     Under paragraph 5, if an offender's responsible officer is of the view that he has failed to comply with any of the requirements of a community order without reasonable excuse, he either must give the offender a written warning or start enforcement proceedings. Under paragraph 6, if the offender fails again to comply, within a 12 month period and without reasonable excuse, the responsible officer must start enforcement proceedings. The responsible officer institutes proceedings by laying an information before a magistrates' or Crown Court, depending on the order.

665.     Under paragraph 7, the magistrates' court may issue a summons requiring the attendance of the offender (or a warrant for his arrest) if it appears that he has failed to comply with any of the requirements of either of the following: a community order made by a magistrates' court; a community order made by the Crown Court which includes a direction that any failure to comply with the requirements of the order is to be dealt with by a magistrates' court. In the case of a community order which includes a drug rehabilitation requirement which is subject to review, the summons or warrant must direct the offender to appear or be brought before the magistrates' court responsible for that order.

666.     Paragraph 8 confers similar powers on the Crown Court where it has made a community order which does not include a direction that a failure to comply with the requirements be dealt with by the magistrates' court.

667.     Paragraph 9 provides that if a magistrates' court is satisfied that the offender has failed to comply with the community order it must deal with him in one of the ways specified. It can amend the order to make the requirements more onerous on the offender (for example by extending the duration of a particular requirement, but not beyond the limits that apply to that certain requirement nor beyond the three year limit of a community order). It can revoke the order and re-sentence the offender as if he had just been convicted. If the offender has wilfully and persistently failed to comply with the order the court can revoke the order and sentence him to a custodial sentence of not exceeding 51 weeks, if the original offence was punishable by imprisonment. When choosing any of these options the court must take into account the extent to which the offender has complied with the order. If the court takes the second or third option, it must revoke the community order if it is still in force. If the offender is re-sentenced, he can appeal against the new sentence. Where the order was made by the Crown Court (and that court directed that failures to comply should be dealt with by the magistrates' court) the magistrates' court dealing with the breach can remand the offender in custody or release him on bail to appear before the Crown Court. In this instance, it must send various details to the Crown Court regarding the breach.

668.     Paragraph 10 sets out how the Crown Court must deal with failure to comply with a community order whether dealt with directly under paragraph 8 or on committal from a magistrates' court under paragraph 9. The Crown Court's powers are similar to the magistrates' courts', except that the Crown Court will be able to exercise its own wider sentencing powers when re-sentencing. The court determines whether a breach has occurred, not a jury.

669.     Under paragraph 11, if an offender has refused to comply with a mental health, drug or alcohol treatment requirement, and the refusal is believed by the court to be reasonable under the circumstances, it is not to count as a breach of the order.

670.     Paragraph 12 deals with the powers of a magistrates' court in a case where the offender was under 18 when the order was made, the offence would have been triable only on indictment had it been committed by an adult and the offender has attained 18 by the time the court deals with the enforcement proceedings.

671.     Part 3 of the Schedule deals with the revocation of community orders. Under paragraph 13 either the offender or the responsible officer can apply to have the order revoked, due to circumstances that have arisen since the order was made. An example might be if the offender has become very ill and is unable to complete the requirements. The court can also revoke the order and re-sentence the offender as if he had just been convicted. This might occur if the offender or his responsible officer wanted to apply for a community order with different requirements, for example due to the good progress of the offender. If the court re-sentences, it must take into account the extent to which the offender complied with the original order. The offender can appeal against the second sentence. If the offender has not made the application to revoke, the court must summon him to appear in order to revoke or revoke and re-sentence. An offender cannot apply to revoke the order if an appeal against it is pending.

672.     Paragraph 14 gives similar powers to the Crown Court in the case of orders it has made which do not contain a direction that failure to comply is to be dealt with by the magistrates' court.

673.     Under paragraph 15, if the offender was under 18 when the community order was made, and the offence was triable only on indictment had it been committed by an adult, as part of revocation and re-sentencing after he attains 18 the court can impose a fine up to £5000 or re-sentence him as if he had just been convicted of an offence punishable with imprisonment of less than 12 months.

674.     Part 4 of the Schedule deals with amendment of community orders. Paragraph 16 deals with amendments by reason of the offender changing residence. A change of residence may necessitate amendment of the order to refer to an alternative petty sessions area. In this case, the change may be made on application by either the offender or his responsible officer. The appropriate court may (and if the application was made by the responsible officer, must) cancel or change any requirements of the order that are not available in the area to which the offender wishes to move. This is especially important in the case of a programme requirement. The appropriate court is the Crown Court where the order was made by the Crown Court and the order does not include a direction that any failure to comply should be dealt with by the magistrates' court, or in any other case, a magistrates' court in the petty sessions area concerned.

675.     Under paragraph 17 an offender or his responsible officer can also apply to have the requirements of an order amended, even if he is not planning to move. The court cannot add a wholly new requirement or substitute a different requirement for one that was originally specified in the order. The appropriate court can cancel a requirement or adjust it, for example to alter the hours of a curfew or substitute one activity for another. It can also impose electronic monitoring onto any requirement of the order. Any amendment is subject to the same restrictions as would be in place if the order were being made at that point. The court cannot amend a drug rehabilitation, alcohol treatment or mental health treatment requirement without the offender's consent. If the offender fails to consent, the court can revoke the order and re-sentence him. If it re-sentences him it must take into account the extent to which the offender has complied with the requirements of the community order. It can impose a custodial sentence if the original offence was punishable with imprisonment. If the offender was under 18 when the community order was made, and the offence would have been triable only on indictment had it been committed by an adult, as part of re-sentencing the court can impose a fine up to £5000 or re-sentence him as if he had just been convicted of an offence punishable with imprisonment of less than 12 months.

676.     Paragraph 18 provides that, where a community order includes a drug rehabilitation, alcohol treatment or mental health treatment requirement, and the medical practitioner or other person responsible for the treatment is of the opinion that the treatment should be extended beyond the period specified in the order, that the offender should receive different treatment, that the offender is not susceptible to treatment or that the offender does not require further treatment he must make a report to the responsible officer. He can also report that he is unwilling to continue to treat (or direct the treatment) of the offender for any reason. The responsible officer must then apply to the court to have the requirement amended or cancelled.

677.     Under paragraph 19, where a community order includes a drug rehabilitation requirement with provision for review, the responsible officer can apply to the court to amend the order to provide for future reviews to take place with or without hearings.

678.     Paragraph 20 provides that, on the application of the offender or the responsible officer, the court may extend an unpaid work requirement beyond the 12 months limit specified in clause 193, if it believes it to be in the interests of justice to do so having regard to circumstances which have arisen since the order was made.

679.     Part 5 deals with the powers of the court in relation to a community order where the offender is subsequently convicted for another offence. Paragraph 21 sets out what the magistrates' court can do in this situation. It may, if it appears to the court to be in the interests of justice, revoke the order, or revoke the order and re-sentence the offender for the original offence as if he had just been convicted of it. If it re-sentences him, the court must take into account the extent to which the offender complied with the order. If it re-sentences, the offender has the right of appeal. If the magistrates' court is dealing with the new offence but the community order was made in the Crown Court it can commit the offender to custody or release him on bail to appear at the Crown Court.

680.     Paragraph 23 makes similar provision in relation to the powers of a Crown Court following conviction of a subsequent offence.

681.     Part 6 of the Schedule contains supplementary provisions. The court cannot amend an order while an appeal against the order is pending. Where a court is amending an order or dealing with a breach, and the application is not by the offender, the court must summon the offender to appear before the court and may issue a warrant if he does not appear. This does not apply if the court is cancelling a requirement, reducing the period of a requirement or substituting a new petty sessions area or place in the order. When amending a requirement any restrictions on the requirement still apply. The rest of this Part sets out procedural arrangements for sending copies of the order to relevant parties.

 
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Prepared: 23 May 2003