House of Lords - Explanatory Note
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Sentences passed on or after commencement date in respect of offences committed before that date: Paragraphs 9 and 10

727.     Some trials for murder post commencement of these provisions will concern murders that occurred before commencement. Paragraphs 9 and 10 deal with such cases. The need to avoid imposing a sentence that is greater than that which would have been available at the time of the commission of the offence applies here as much as it does to the cases covered in the preceding paragraphs. Accordingly, paragraph 10 imposes a restriction equivalent to that in paragraph 8.

Paragraph 11

728.     Paragraph 11 provides for any review or determination of a minimum term under either paragraphs 3 or 6 by the High Court to be undertaken by a single judge on the papers.

Paragraphs 12 and 13

729.     Paragraphs 12 requires a court reviewing an existing minimum term to give reasons for the order it makes and if the order specifies a minimum term that is shorter than that imposed by the Secretary of State to explain its reasons for doing so. Where a court determines the minimum term in the case of a convicted prisoner who has not been given a minimum term by the Home Secretary, paragraph 13 brings the duty to give reasons into line with that under paragraph 12.

730.     Paragraph 14 extends rights of appeal to the Court of Appeal and the House of Lords, if appropriate, to prisoners who have either had their minimum term reviewed or determined by the High Court under these transitional provisions. Paragraph 15 extends section 36 of the Criminal Justice Act 1988 to these transitional arrangements and provides for a means by which the Attorney General can challenge a minimum term which he considers unduly lenient.

731.     Paragraph 16 ensures that the early release provisions apply consistently to both a minimum term in arising from a review of an existing minimum term by the High Court and those minimum terms fixed by the Home Secretary that remain effective if no application is made. Paragraph 17 ensures that transferred prisoners may be dealt with under these transitional arrangements if necessary.

Schedule 19: Deferment of sentence

732.     This Schedule inserts new provisions about deferment of sentence into the Powers of Criminal Courts (Sentencing) Act 2000. In most cases, a court will pass sentence on an offender immediately after his conviction for the offence or offences for which he is before the court. However, the court also has the power to defer sentencing. As at present, the new provisions allow the court to defer sentencing for the purpose of enabling the court to have regard to the conduct of the offender and any change in his circumstances. However, it strengthens the deferred sentence by providing for reparative and other activity to be undertaken during the period of deferment, and extends "conduct" to include reference to how well the offender complies with such requirements. Progress will continue to act as a mitigating factor in the final sentence passed, including imposing a community sentence in lieu of a custodial one when clear progress against undertakings has been made. Sentencing can be deferred only if the offender consents and undertakes to comply with any requirements set out by the court, and only where the court considers that deferment is in the interests of justice. The court cannot remand an offender if it also defers his sentence. As currently, sentence cannot be deferred for more than six months. The court has the power to issue a summons or a warrant to arrest the offender if he does not appear on the date for sentencing specified by the court. Sub-section (5) of the new section prescribes who should receive a copy of the order deferring the passing of sentence.

733.     Under new section 1A the court can include requirements regarding the offender's residence. If an offender is to undertake requirements the court may appoint a supervisor to monitor the offender's compliance with the requirements. The supervisor can be an officer of the local probation board or anyone else the court thinks appropriate. The person must consent to being a supervisor. The supervisor must provide the court with information as to the offender's compliance with the requirements, as it wishes.

734.     Under new section 1B the court may deal with the offender before the end of the period of deferment if it is satisfied that the offender has failed to comply with one or more requirements. Currently, as there are no requirements attached to deferred sentences, the offender can only be returned to court early for sentencing if he commits another offence. Subsection (2) sets out the circumstances in which he can be returned to court early clear. Subsection (3) gives the court the power to issue a summons or warrant for the offender to appear before it.

735.     Under new section 1C the court may deal with an offender before the end of the period of deferment if he commits another offence. Subsections (2) and (3) set out the powers of the Crown and magistrates' courts in these cases. If the offender is convicted of another offence during the period of deferment, the court may deal with the original deferred sentence at the same time as sentencing the offender for the new offence. If the original sentence was deferred by a Crown Court, it must be a Crown Court that passes sentence for both the offences. If the original sentence was deferred by a magistrates court, and the offender is brought before a Crown Court to be sentenced for the two offences, the Court cannot pass a sentence greater than a magistrates court could have passed. That is, it cannot pass a sentence of greater than 12 months. The court the power to issue a summons or a warrant for the offender to appear before it.

736.     New section 1D clarifies some of the legal detail surrounding the deferment of sentences. Deferment of sentence is to be regarded as an adjournment, and if the offender does not appear before the court when required to he is to be dealt with accordingly. When the court deals with an offender at the end of the period of deferment (or earlier if he does not comply with the requirements or commits another offence) it has the same powers as if the offence had just been committed. This includes committing him for sentence to the Crown Court. The court may issue a summons to someone appointed as a supervisor if that person refuses to appear before the court when the court wants to consider an offender's failure to comply with the requirements of the deferment or anything to do with the original offence.

Schedule 20: Inclusion of drug treatment and testing requirement in supervision order or action plan order

737.     This Schedule amends section 70 of the Powers of Criminal Courts (Sentencing) Act 2000. It introduces drug treatment, which may include testing, as a requirement available for inclusion in an action plan order. The Schedule also amends Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000 to allow drug treatment, which may include testing, as a requirement available for inclusion in a supervision order.

738.     The new requirement is available where the court is satisfied that the young offender is dependent on, or has a propensity to misuse, drugs and that this dependency or propensity may be susceptible to treatment. The Schedule strengthens the existing interventions available to the court to assist young offenders with a drug misuse problem to address both their drug misuse and offending behaviour. The testing element of the requirement can only apply to those aged 14 years and over and can be included in an action plan order or supervision order only if the offender consents and the court has been notified by the Secretary of State that arrangements are in place for implementation.

Schedule 21: Summary offences no longer punishable with imprisonment

739.     Schedule 21 provides a list of summary offences which, following commencement of clause 252, will cease to be punishable with imprisonment. In effect, this will mean that the maximum penalties for these offences will be the new generic community sentence and/or a fine. In connection to this, Part 2 of Schedule 26 makes the necessary consequential amendments to the relevant enactments. Part 7 of Schedule 31 contains associated repeals.

     Schedule 22: Increase in maximum term for certain summary offences

740.     Schedule 22 makes amendments in respect of certain summary offences so as to increase the maximum penalty for these offences from a term of imprisonment of five months or less to a term of 51 weeks (equating to a full sentence of custody plus - see clause 174).

Schedule 23: Enabling powers: alteration of maximum penalties etc.

741.     Schedule 23 makes the necessary changes to specific enabling powers contained within existing legislation so as to ensure that the offences that these powers may create have maximum penalties that are compatible with the new sentencing framework.

Schedule 24: Increase in penalties for drug-related offences

742.     The drug trafficking offence provisions in the Bill increase the maximum penalty for trafficking controlled drugs which are Class C under the Misuse of Drugs Act 1971 from 5 years' to 14 years' imprisonment. This will enable the courts to continue to impose substantial sentences on cannabis traffickers after the proposed reclassification of the drug from Class B to Class C. Other Class C drugs include benzodiazepines and anabolic steroids. Trafficking includes, among other things, unlawful importing, supply and possession with intent to supply. This provision will also enable the United Kingdom Government to meet its obligations in connection with establishing minimum levels for drug trafficking penalties across the European Union.

Schedule 25: Default orders: modification of provisions relating to community orders

743.     This Schedule must be read in conjunction with clause 278 which gives the court to impose an unpaid work requirement or a curfew requirement, in lieu of imprisonment, where an offender has defaulted on the payment of a fine, and has a default order imposed on him.

744.     Paragraph 2 modifies the unpaid work provisions in clause 190 so that the minimum number of hours which a person may be required to work as part of a default order is 20 hours and the maximum is laid out in the Table in paragraph 2 corresponding to the amount of the sum in default.

745.     Paragraph 3 makes similar modifications to the provisions of the curfew requirement under clause 195 and lays out in a table the maximum number of days to which the offender subject to a default order can be subject, which correspond to the amount of the sum in default.

746.     Paragraph 4 modifies the enforcement; revocation and amendment provisions in Schedule 7 to make them apply to the default order. If an offender breaches his default order, the Court can deal with him in any way in which the Court which made the default order could deal with him for the original default. In other words, it can commit him to custody. Paragraph 6 modifies Schedule 8 (transfer of community orders to Scotland or Northern Ireland) to allow default orders to be transferred to Scotland and Northern Ireland.

747.     Paragraph 5 provides the Secretary of State with an order making power to amend the number of amounts of money specified in the tables under paragraphs 2 and 3 and the number of hours or days specified.

Schedule 26 - Amendments relating to sentencing

748.     Paragraph 101 of Schedule 26 substitutes a new Schedule 3 in the Powers of Criminal Courts (Sentencing) Act 2000.

749.     Schedule 3 to the PCC(S)A deals with breach, revocation and amendment of a number of community orders. Most of them are replaced by the generic community sentence in this Bill. Curfew and exclusion orders are being retained as stand-alone orders for offenders aged 10-15. Curfew orders are governed by sections 37 to 40 of the PCC(S)A and exclusion orders are governed by sections 40A to 40C of that Act. The provisions on exclusion orders are inserted by section 46 of the Criminal Justice and Court Services Act 2000, which is not yet in force. Paragraphs 78 to 82 of Schedule 24 to the Bill make the changes which limit the availability of those orders to offenders under 16.

750.     The new Schedule 3 therefore deals with breach, revocation and amendment of curfew orders and exclusion orders for young people up to the age of 16. The new Schedule 3 does not make any substantive changes to the way in which the existing Schedule 3 operates for those aged under 16.

Schedule 27 - Jury service

751.     Schedule 27 amends the principal statute governing jury service, the Juries Act 1974, to abolish (except in the case of mentally disordered persons) the categories of ineligibility for, and excusal "as of right" from, jury service, currently set out in Parts 1 and 3 of Schedule 1 to that Act. This means that certain groups of people who currently must not, or need not, do jury service will, when these provisions are brought into force, be required to do so unless they can show good reason not to. Schedule 27 also makes amendments to the category of those disqualified from jury service, as set out in Part 2 of Schedule 1 to the Juries Act 1974, to reflect developments in sentencing legislation, including those made by the Bill itself.

     Paragraphs 2, 3, 14 and 15:

752.     These provisions have the effect of removing the status of "ineligibility" for jury service, and entitlement to "excusal as of right" from jury service, from a number of people; they will, as a result, in future be regarded in all cases as potential jurors. Under the Juries Act 1974, as it currently stands, the judiciary, others concerned with the administration of justice, and the clergy, are "ineligible" for jury service and therefore barred from serving as jurors. That bar will be lifted. Others, including people over 65, members of parliament, medical professionals and members of certain religious bodies, are currently entitled to refuse to serve as jurors. That entitlement will be removed. If any person affected by these changes does not wish to serve as a juror, he or she will now be required to apply for excusal or deferral under section 9 or 9A of the 1974 Act, showing "good reason" why he or she should not serve as summoned.

753.     Paragraph 2 of Schedule 27 replaces section 1 of the Juries Act 1974 with a new version, removing the status of ineligibility for jury service currently in section 1 of the 1974 Act, with a saving for mentally disordered persons only. Paragraph 15 substitutes a new version of Schedule 1 to the 1974 Act, and correspondingly removes the first three groups of persons ineligible (the judiciary, others concerned with the administration of justice, and the clergy), leaving only mentally disordered persons with that status. Paragraph 14 of Schedule 27 makes consequential provision to remove references to these groups of ineligible people in the context of the jury summoning offences in section 20 of the Juries Act 1974.

754.     Paragraph 15 also replaces the categories of those who are disqualified from jury service with a new list for Part 2 of Schedule 1 to the Juries Act 1974. These are people who have served, or are serving, prison sentences or community orders of varying degrees of seriousness. The period of time during which they are to be disqualified varies accordingly. A number of amendments have been made to Part 2 to reflect recent and forthcoming developments in sentencing legislation. Juveniles sentenced under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 to detention for life, or for a term of five years or more, will be disqualified for life from jury service. People sentenced to imprisonment or detention for public protection, or to an extended sentence under clause 209 or 210 of the Bill, are to be disqualified for life from jury service. Anyone who has received a community order (as defined in clause 161 of the Bill) will be disqualified from jury service for ten years.

755.     Paragraph 3 of Schedule 27 repeals section 9(1) of the Juries Act 1974. This subsection provided that certain groups of people listed in Part 3 of Schedule 1 to the 1974 Act should be "excused as of right" from jury service: that is, they were entitled to refuse to do jury service if they so wish. These groups include people over 65 years of age, members of parliament, members of medical and similar professions, people with religious objections to doing jury service, and (in specified circumstances) members of the armed forces. No one will in future be entitled to excusal as of right from jury service, as is currently provided. Part 3 has been omitted from the substituted Schedule 1 in Paragraph 15.

     Paragraphs 4 to 11:

756.     These paragraphs make provision consequential on the repeal of Part 3 of Schedule 1 to the Juries Act 1974. Full-time serving members of the armed forces are at present entitled to excusal as of right from jury service if, but only if, their commanding officer certifies that their absence would be prejudicial to the efficiency of the service in question. With the abolition of excusal as of right, service personnel who do not wish to do jury service will, like everyone else, have to apply under section 9 or 9A of the 1974 Act and show "good reason" why they should not serve as summoned. A commanding officer's certificate is, however, to be regarded in future as conclusive evidence of good reason for the purposes of these provisions, so that on its production a jury service summons will be deferred; if there has already been a deferral or if the commanding officer certifies that absence would be prejudicial for a specified period of time, then service personnel will be excused altogether from the obligation imposed by the summons. But that is without prejudice to the position should a further summons be issued on a future occasion.

757.     Paragraph 12: Sections 9A and 9 of the Juries Act 1974 deal, respectively, with discretionary deferral and excusal. If a person who has been summoned to do jury service can show that there is a "good reason" that his summons should be deferred or excused, then a discretion exists to defer or excuse. The discretion currently rests with the Jury Central Summoning Bureau, a part of the Lord Chancellor's Department, which administers the jury summoning system on behalf of the Crown Court in England and Wales. With the abolition of most of the categories of persons ineligible for jury service, and of the availability of excusal as of right, many of these cases will now fall to be dealt with as applications for excusal or deferral under sections 9 and 9A. New section 9AA, introduced by this paragraph, places a statutory duty on the Lord Chancellor (in whom responsibility for jury summoning is vested by section 2 of the 1974 Act) to publish and lay before Parliament guidelines relating to the exercise by the Jury Central Summoning Bureau of its functions in relation to discretionary deferral and excusal.

758.     Paragraph 13: Section 19 of the Juries Act 1974 gives an entitlement to jurors to be paid, amongst other things, a subsistence allowance during the period they are serving on a court case. This paragraph will enable the Court Service of the Lord Chancellor's Department (which administers the Crown Court, and the payment of jurors' subsistence allowances) to pay this allowance otherwise than by means of cash. Some court facilities enable staff to obtain refreshments by non-monetary means, such as a voucher or an electronic 'swipe card'; this paragraph will enable them to extend the same means to jurors.

Schedule 28: Parenting Order attached to Referral Order

759.     Schedule 28 makes provision about the interaction of parenting orders, made under sections 8 to 10 Crime and Disorder Act 1998 and referral orders made under Part 3 of the Powers of Criminal Courts (Sentencing) Act 2000.

760.     Removal of restriction in Crime and Disorder Act 1998. This removes from section 8 of the Crime and Disorder Act 1998 the restriction currently on a court for the making of a Parenting Order alongside a Referral Order.

761.     Supplemental provisions relating to Parenting Orders. This amends section 9 of the Crime and Disorder Act 1998 (which makes supplemental provision relating to Parenting Orders) so that it is possible to make a parenting order and a referral order in respect of the same offence.

762.     Subparagraph (2) substitutes a new subsection (1) into section 9. The old subsection provided that a parenting order could not be made in respect of the same offence. The new subsection provides that the normal duty on the court to make a parenting order (or explain why it would not help to prevent the offender from committing another offence) where a person under the age of 16 is convicted of an offence does not apply where the court makes a referral order in respect of the offence.

763.     Subparagraph (3) inserts a new subsection (2A) into section 9. This provides that where the court does decide to make a Parenting Order with a Referral Order, the court must obtain and consider a report by a probation officer, a local authority social worker, or a member of a youth offending team. The report should indicate what the requirements of the Parenting Order might include, the reasons why it would be desirable, and also, if the offender is under age 16 years, information about the family's circumstances and the likely effect of the Order on those circumstances.

764.     Subparagraph (4) inserts a new subsection (7A) which defines a Referral Order an order imposed under section 16(2) or (3) Powers of Criminal Courts (Sentencing) Act 2000.

765.     Removal of Restriction in Powers of Criminal Courts (Sentencing) Act 2000. This removes the restriction in section 19(5) of the Powers of Criminal Courts (Sentencing) Act 2000 preventing the court from imposing a parenting order and a referral order in respect of the same offence.

766.     Panel to refer case back to Youth Court where parent or guardian fails to comply. This inserts a new subsection (2A) into section 22 of the Powers of Criminal Courts (Sentencing) Act 2000. A court making a referral order may require a parent or guardian to attending the meetings of the youth offender panel under Section 20 of the Powers of Criminal Courts (Sentencing) Act 2000. Where the parent or guardian fails to comply with such an order, the new subsection provides the power to the panel to refer the case back to the offender's youth court. This would then allow the court the opportunity to decide whether it should impose a Parenting Order.

767.     Arrangements when a panel refers a parent or guardian to the youth court. These insert new provisions into section 28 and Schedule 1 Powers of Criminal Courts (Sentencing) Act 2000. These provisions set out the arrangements when a youth offender panel refers a parent or guardian to the appropriate youth court using the power set out in the new section 22(2A). The panel must make a report to the court explaining why the parent is being referred to it and the court can require the parent to appear before it by means of the issue of a summons, or a warrant for arrest. Where the parent then appears before the youth court, the court may make a Parenting Order if both of two conditions are satisfied. The first is that the court is satisfied that the parent has failed to comply with an order made by the court under section 20 to attend the youth referral panel, without reasonable excuse. The second is that the court believes that it is desirable in the interests of preventing further offences being committed by the offender. The provisions also state which of the provisions of the Crime and Disorder Act relating to parenting orders apply to a parenting order made in these circumstances and provide for a right of appeal to the Crown Court against the making of a parenting order in these circumstances.

Schedule 32: Transitory, transitional and savings provisions

768.     Paragraph 1 relates to section 61 of the Criminal Justice and Court Services Act 2000, which (among other things) abolishes the sentences of detention in a young offender institution and custody for life and which is not yet in force. If provisions of Part 12 of the Bill come into force before section 61 comes into force, this paragraph enables an order under clause 302(1) to modify the provision of the Bill in relation to things done before section 61 comes into force. For example, it might be necessary to provide for a reference to a sentence of imprisonment to include a reference to a sentence of detention in a young offender institution, or for a reference to an offender aged 18 or over to have effect as a reference to an offender aged 21 or over.

769.     Paragraph 4 makes temporary modifications of the provisions as to drug testing in section 65 of the Criminal Justice Act 1991, which is replaced by the Bill.

770.     Paragraph 5 would enable a shorter version of intermittent custody to be introduced before the sentencing limit on magistrates' courts is increased from 6 months to 12 or 18 months.

FINANCIAL EFFECTS OF THE BILL

771.     The financial effects of the Bill as far as Government Departments are concerned will be subject to a number of variables, including the timing of implementation and the interaction between the different provisions, and the behaviour of agencies, including the courts. On current assumptions about implementation, which are not final, current estimates are that the costs of implementation would be in the order of £39 million, £227million, £311 million, £377 million, £393 million and £405 million in the financial years 2003-2004, 2004-2005, 2005-2006, 2006-2007, 2007-2008 and 2008-2009 respectively. On current estimates the costs would be in the order of £405 million annually thereafter. These are gross costs. There will also be significant potential savings, although these have not yet been fully quantified. The Criminal Justice System departments are committed to their spending settlements; and the costs of the Bill will be met from within them. The Bill's other provisions have negligible expenditure implications for Government Departments. None of the Bill's provisions have tax implications.

772.     The main financial implications of the Bill for the public sector lie in the following areas.

  • Taking fingerprints without consent (clause 7)

  • Taking non-intimate samples without consent (clause 8)

  • Bail, appeal by prosecution (clause 18)

  • Bail, drug users: restriction on bail (clause 19)

  • Conditional cautions (clauses 22 to 26)

  • Charging (clauses 27 to 30)

  • Disclosure (clauses 31 to 38)

  • Prosecution appeals (clauses 56 to 68)

  • Retrial for serious offences (clauses 69 to 89)

  • Evidence of bad character (clauses 90 to 106)

  • Testimony recorded on video (clauses 130 and 131);

  • General limits on magistrates' court's power to impose imprisonment (clauses 146 to 148)

  • Sentencing and allocation guidelines (clauses 160 to 166)

  • Community orders, offenders aged 16 or over (clauses 170 to 173, and clauses 187 to 214)

  • Prison sentences of less than twelve months (clauses 174 to 175, and clauses 187 to 214)

  • Intermittent custody (clauses 176 to 179, and clauses 187 to 214)

  • Suspended sentences (clauses 181 to 186, and clauses 187 to 214)

  • Dangerous offenders (clauses 215 to 227)

  • Release on licence (clause 228 to 242)

  • Recall after release (clauses 243 to 245)

  • Drug testing and rehabilitation requirements (clause 171, clauses 200 to 201, clause 251, and clause 264)

  • Effect of life sentence (clauses 254 t0 262)

  • Increase in penalties for certain driving related offences causing death (clause 270)

  • Firearms offences (clauses 271 to 276)

  • Limit on period of detention without charge of suspected terrorists (clause 284)

  • Individual support orders (clause 292 to 293)

  • Attaching a parental order to a referral order (clause 294)

  • Assessing etc. risks posed by sexual or violent offenders (clauses 295 to 297)

  • Criminal record certificates : amendments of Part 5 of the Police Act 1997 (clause 298)

 
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Prepared: 23 May 2003