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Criminal Justice Bill


Criminal Justice Bill
Schedule 28 — Amendments relating to sentencing
Part 1 — General

    346

 

  102      After section 106 there is inserted—

       “106A                                                                         Interaction with sentences of detention

              (1)             In this section—

                                      “the 2003 Act” means the Criminal Justice Act 2003;

                                      “sentence of detention” means—

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                           (a)                          a sentence of detention under section 91 above, or

                           (b)                          a sentence of detention under section 210 of the 2003

Act (extended sentence for certain violent or sexual

offences: persons under 18).

              (2)             Where a court passes a sentence of detention in the case of an

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offender who is subject to a detention and training order, the

sentence shall take effect as follows—

                    (a)                   if the offender has at any time been released by virtue of

subsection (2), (3), (4) or (5) of section 102 above, at the

beginning of the day on which the sentence is passed, and

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                    (b)                   if not, either as mentioned in paragraph (a) above or, if the

court so orders, at the time when the offender would

otherwise be released by virtue of subsection (2), (3), (4) or (5)

of section 102.

              (3)             Where a court makes a detention and training order in the case of an

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offender who is subject to a sentence of detention, the order shall take

effect as follows—

                    (a)                   if the offender has at any time been released under Chapter 6

of Part 11 of the 2003 Act (release on licence of fixed-term

prisoners), at the beginning of the day on which the order is

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made, and

                    (b)                   if not, either as mentioned in paragraph (a) above or, if the

court so orders, at the time when the offender would

otherwise be released under that Chapter.

              (4)             Where an order under section 102(5) above is made in the case of a

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person in respect of whom a sentence of detention is to take effect as

mentioned in subsection (2)(b) above, the order is to be expressed as

an order that the period of detention attributable to the detention and

training order is to end at the time determined under section

102(5)(a) or (b) above.

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              (5)             In determining for the purposes of subsection (3)(b) the time when

an offender would otherwise be released under Chapter 6 of Part 11

of the 2003 Act, section 228 of that Act (power of Secretary of State to

release prisoners on licence before he is required to do so) is to be

disregarded.

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              (6)             Where by virtue of subsection (3)(b) above a detention and training

order made in the case of a person who is subject to a sentence of

detention under section 210 of the 2003 Act is to take effect at the time

when he would otherwise be released under Chapter 6 of Part 11 of

that Act, any direction by the Parole Board under subsection (2)(b) of

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section 229 of that Act in respect of him is to be expressed as a

direction that the Board would, but for the detention and training

order, have directed his release under that section.

 

 

Criminal Justice Bill
Schedule 28 — Amendments relating to sentencing
Part 1 — General

    347

 

              (7)             Subject to subsection (9) below, where at any time an offender is

subject concurrently—

                    (a)                   to a detention and training order, and

                    (b)                   to a sentence of detention,

he shall be treated for the purposes of the provisions specified in

5

subsection (8) below as if he were subject only to the sentence of

detention.

              (8)             Those provisions are—

                    (a)                   sections 102 to 105 above,

                    (b)                   section 92 above and section 217 of the 2003 Act (place of

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detention, etc.), and

                    (c)                   Chapter 6 of Part 11 of the 2003 Act.

              (9)             Nothing in subsection (7) above shall require the offender to be

released in respect of either the order or the sentence unless and until

he is required to be released in respect of each of them.

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  103      In section 110 (required custodial sentence for third class A drug trafficking

offence), subsection (3) is omitted.

  104      In section 111 (minimum of three years for third domestic burglary)

subsection (3) is omitted.

  105      Sections 116 and 117 (return to prison etc. where offence committed during

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original sentence) shall cease to have effect.

  106      In section 130 (compensation orders against convicted persons), in

subsection (2), for “109(2), 110(2) or 111(2) above,” there is substituted

“110(2) or 111(2) above, section 51A(2) of the Firearms Act 1968 or section

207, 208, 209 or 210 of the Criminal Justice Act 2003,”.

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  107      In section 136 (power to order statement as to financial circumstances of

parent or guardian) in subsection (2), for “section 126 above” there is

substituted “section 144 of the Criminal Justice Act 2003”.

  108     (1)      Section 138 (fixing of fine or compensation to be paid by parent or guardian)

is amended as follows.

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          (2)      In subsection (1)(a), for “section 128 above” there is substituted “section 146

of the Criminal Justice Act 2003”.

          (3)      In subsection (2), for “sections 128(1) (duty to inquire into financial

circumstances) and” there is substituted “section 146(1) of the Criminal

Justice Act 2003 and section”.

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          (4)      In subsection (4)—

              (a)             for “section 129 above” there is substituted “section 147 of the

Criminal Justice Act 2003”,

              (b)             for “section 129(1)” there is substituted “section 147(1)”, and

              (c)             for “section 129(2)” there is substituted “section 147(2)”.

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  109      In section 146 (driving disqualification for any offence), in subsection (2), for

“109(2), 110(2) or 111(2) above” there is substituted “110(2) or 111(2) above,

section 51A(2) of the Firearms Act 1968 or section 207, 208, 209 or 210 of the

Criminal Justice Act 2003”.

 

 

Criminal Justice Bill
Schedule 28 — Amendments relating to sentencing
Part 1 — General

    348

 

  110      In section 154 (commencement of Crown Court sentence), in subsection (2),

for “section 84 above” there is substituted “section 243 of the Criminal Justice

Act 2003”.

  111      In section 159 (execution of process between England and Wales and

Scotland), for “10(7) or 24(1)” there is substituted “10(6) or 18(1)”.

5

  112     (1)      Section 163 (interpretation) is amended as follows.

          (2)      In the definition of “attendance centre” for “section 62(2) above” there is

substituted “section 203(2) of the Criminal Justice Act 2003”.

          (3)               In the definition of “attendance centre order” for the words from “by virtue

of” to “Schedule 3” there is substituted “by virtue of paragraph 4(2)(b) or

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5(2)(b) of Schedule 3”.

          (4)      In the definition of “community order”, for “section 33(1) above” there is

substituted “section 159(1) of the Criminal Justice Act 2003”.

          (5)      For the definition of “curfew order” there is substituted—

                                “curfew order” means an order under section 37(1) above (and, except

15

where the contrary intention is shown by paragraph 7 of Schedule

3 or paragraph 3 of Schedule 7 or 8, includes orders made under

section 37(1) by virtue of paragraph 4(2)(a) or 5(2)(a) of Schedule 3

or paragraph 2(2)(a) of Schedule 7 or 8).”.

          (6)      In the definition of “operational period”, for “section 118(3) above” there is

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substituted “section 171(1)(b)(ii) of the Criminal Justice Act 2003”.

          (7)      In the definition of “suspended sentence”, for “section 118(3) above” there is

substituted “section 171(7) of the Criminal Justice Act 2003”.

          (8)      At the end there is inserted—

               ““youth community order” has the meaning given by section 33(1)

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above.”.

  113      In section 164 (further interpretative provision) for subsection (3) there is

substituted—

              “(3)                References in this Act to a sentence falling to be imposed—

                    (a)                   under section 110(2) or 111(2) above,

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                    (b)                   under section 51A(2) of the Firearms Act 1968, or

                    (c)                   under any of sections 207 to 210 of the Criminal Justice Act

2003,

                              are to be read in accordance with section 281(4) of the Criminal

Justice Act 2003.”

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  114      For Schedule 3 (breach revocation and amendment of certain community

 

 

Criminal Justice Bill
Schedule 28 — Amendments relating to sentencing
Part 1 — General

    349

 

orders) there is substituted—

“Schedule 3

Breach, revocation and amendment of curfew orders and exclusion

orders

Part 1

5

Preliminary

Definitions

          1                 In this Schedule—

                                     “the petty sessions area concerned” means—

                             (a)                            in relation to a curfew order, the petty sessions area

10

in which the place for the time being specified in

the order is situated; and

                             (b)                            in relation to an exclusion order, the petty sessions

area for the time being specified in the order;

                                     “relevant order” means a curfew order or an exclusion order.

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Orders made on appeal

          2                 Where a relevant order has been made on appeal, for the purposes

of this Schedule it shall be deemed—

                      (a)                     if it was made on an appeal brought from a magistrates’

court, to have been made by a magistrates’ court;

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                      (b)                     if it was made on an appeal brought from the Crown Court

or from the criminal division of the Court of Appeal, to

have been made by the Crown Court.

Part 2

Breach of requirement of order

25

Issue of summons or warrant

          3                (1)               If at any time while a relevant order is in force in respect of an

offender it appears on information to a justice of the peace acting

for the petty sessions area concerned that the offender has failed to

comply with any of the requirements of the order, the justice

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may—

                      (a)                     issue a summons requiring the offender to appear at the

place and time specified in it; or

                      (b)                     if the information is in writing and on oath, issue a warrant

for his arrest.

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                           (2)               Any summons or warrant issued under this paragraph shall direct

the offender to appear or be brought—

                      (a)                     in the case of any relevant order which was made by the

Crown Court and included a direction that any failure to

comply with any of the requirements of the order be dealt

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with by the Crown Court, before the Crown Court; and

 

 

Criminal Justice Bill
Schedule 28 — Amendments relating to sentencing
Part 1 — General

    350

 

                      (b)                     in the case of a relevant order which is not an order to

which paragraph (a) above applies, before a magistrates’

court acting for the petty sessions area concerned.

                           (3)               Where a summons issued under sub-paragraph (1)(a) above

requires an offender to appear before the Crown Court and the

5

offender does not appear in answer to the summons, the Crown

Court may issue a further summons requiring the offender to

appear at the place and time specified in it.

                           (4)               Where a summons issued under sub-paragraph (1)(a) above or a

further summons issued under sub-paragraph (3) above requires

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an offender to appear before the Crown Court and the offender

does not appear in answer to the summons, the Crown Court may

issue a warrant for the arrest of the offender.

Powers of magistrates’ court

          4                (1)               This paragraph applies if it is proved to the satisfaction of a

15

magistrates’ court before which an offender appears or is brought

under paragraph 3 above that he has failed without reasonable

excuse to comply with any of the requirements of the relevant

order.

                           (2)               The magistrates’ court may deal with the offender in respect of the

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failure in one of the following ways (and must deal with him in

one of those ways if the relevant order is in force)—

                      (a)                     by making a curfew order in respect of him (subject to

paragraph 7 below);

                      (b)                     by making an attendance centre order in respect of him

25

(subject to paragraph 8 below); or

                      (c)                     where the relevant order was made by a magistrates’

court, by dealing with him, for the offence in respect of

which the order was made, in any way in which he could

have been dealt with for that offence by the court which

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made the order if the order had not been made.

                           (3)               In dealing with an offender under sub-paragraph (2)(c) above, a

magistrates’ court—

                      (a)                     shall take into account the extent to which the offender has

complied with the requirements of the relevant order; and

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                      (b)                     in the case of an offender who has wilfully and persistently

failed to comply with those requirements, may impose a

custodial sentence (where the relevant order was made in

respect of an offence punishable with such a sentence)

notwithstanding anything in section 134(2) of the Criminal

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Justice Act 2003.

                           (4)               Where a magistrates’ court deals with an offender under sub-

paragraph (2)(c) above, it shall revoke the relevant order if it is still

in force.

                           (5)               Where a relevant order was made by the Crown Court and a

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magistrates’ court has power to deal with the offender under sub-

paragraph (2)(a) or (b) above, it may instead commit him to

custody or release him on bail until he can be brought or appear

before the Crown Court.

 

 

Criminal Justice Bill
Schedule 28 — Amendments relating to sentencing
Part 1 — General

    351

 

                           (6)               A magistrates’ court which deals with an offender’s case under

sub-paragraph (5) above shall send to the Crown Court—

                      (a)                     a certificate signed by a justice of the peace certifying that

the offender has failed to comply with the requirements of

the relevant order in the respect specified in the certificate;

5

and

                      (b)                     such other particulars of the case as may be desirable;

                                             and a certificate purporting to be so signed shall be admissible as

evidence of the failure before the Crown Court.

                           (7)               A person sentenced under sub-paragraph (2)(c) above for an

10

offence may appeal to the Crown Court against the sentence.

Powers of Crown Court

          5                (1)               This paragraph applies where under paragraph 3 or by virtue of

paragraph 4(5) above an offender is brought or appears before the

Crown Court and it is proved to the satisfaction of that court that

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he has failed without reasonable excuse to comply with any of the

requirements of the relevant order.

                           (2)               The Crown Court may deal with the offender in respect of the

failure in one of the following ways (and must deal with him in

one of those ways if the relevant order is in force)—

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                      (a)                     by making a curfew order in respect of him (subject to

paragraph 7 below);

                      (b)                     by making an attendance centre order in respect of him

(subject to paragraph 8 below); or

                      (c)                     by dealing with him, for the offence in respect of which the

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order was made, in any way in which he could have been

dealt with for that offence by the court which made the

order if the order had not been made.

                           (3)               In dealing with an offender under sub-paragraph (2)(c) above, the

Crown Court—

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                      (a)                     shall take into account the extent to which the offender has

complied with the requirements of the relevant order; and

                      (b)                     in the case of an offender who has wilfully and persistently

failed to comply with those requirements, may impose a

custodial sentence (where the relevant order was made in

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respect of an offence punishable with such a sentence)

notwithstanding anything in section 134(2) of the Criminal

Justice Act 2003.

                           (4)               Where the Crown Court deals with an offender under sub-

paragraph (2)(c) above, it shall revoke the relevant order if it is still

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in force.

                           (5)               In proceedings before the Crown Court under this paragraph any

question whether the offender has failed to comply with the

requirements of the relevant order shall be determined by the

court and not by the verdict of a jury.

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Criminal Justice Bill
Schedule 28 — Amendments relating to sentencing
Part 1 — General

    352

 

Exclusions from paragraphs 4 and 5

          6                 Without prejudice to paragraphs 10 and 11 below, an offender

who is convicted of a further offence while a relevant order is in

force in respect of him shall not on that account be liable to be dealt

with under paragraph 4 or 5 in respect of a failure to comply with

5

any requirement of the order.

Curfew orders imposed for breach of relevant order

          7                (1)                                 Section 37 of this Act (curfew orders) shall apply for the purposes

of paragraphs 4(2)(a) and 5(2)(a) above as if for the words from the

beginning to “make” there were substituted “Where a court has

10

power to deal with an offender under Part 2 of Schedule 3 to this

Act for failure to comply with any of the requirements of a

relevant order, the court may make in respect of the offender”.

                           (2)                                                   The following provisions of this Act, namely—

                      (a)                     section 37(3) to (12), and

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                      (b)                     so far as applicable, sections 36B and 40 and this Schedule

so far as relating to curfew orders;

                            have effect in relation to a curfew order made by virtue of

paragraphs 4(2)(a) and 5(2)(a) as they have effect in relation to any

other curfew order, subject to sub-paragraph (3) below.

20

                           (3)                                 This Schedule shall have effect in relation to such a curfew order

as if—

                      (a)                     the power conferred on the court by each of paragraphs

4(2)(c), 5(2)(c) and 10(3)(b) to deal with the offender for the

offence in respect of which the order was made were a

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power to deal with the offender, for his failure to comply

with the relevant order, in any way in which the

appropriate court could deal with him for that failure if it

had just been proved to the satisfaction of the court;

                      (b)                     the reference in paragraph 10(1)(b) to the offence in respect

30

of which the order was made were a reference to the failure

to comply in respect of which the curfew order was made;

and

                      (c)                     the power conferred on the Crown Court by paragraph

11(2)(b) to deal with the offender for the offence in respect

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of which the order was made were a power to deal with the

offender, for his failure to comply with the relevant order,

in any way in which the appropriate court (if the relevant

order was made by the magistrates’ court) or the Crown

Court (if that order was made by the Crown Court) could

40

deal with him for that failure if it had just been proved to

its satisfaction.

                           (4)                                                   For the purposes of the provisions mentioned in paragraphs (a)

and (c) of sub-paragraph (3) above, as applied by that sub-

paragraph, if the relevant order is no longer in force the

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appropriate court’s powers shall be determined on the

assumption that it is still in force.

 

 

 
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