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Criminal Justice Bill


Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

    79

 

in subsection (1) of this section, from imposing any sentence which is not less

than 80 per cent of that specified in that subsection.

 128   Increase in sentences for racial or religious aggravation

     (1)    This section applies where a court is considering the seriousness of an offence

other than one under sections 29 to 32 of the Crime and Disorder Act 1998

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(c. 37) (racially or religiously aggravated assaults, criminal damage, public

order offences and harassment etc).

     (2)    If the offence was racially or religiously aggravated, the court—

           (a)           must treat that fact as an aggravating factor, and

           (b)           must state in open court that the offence was so aggravated.

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     (3)    Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or

religiously aggravated”) applies for the purposes of this section as it applies for

the purposes of sections 29 to 32 of that Act.

General restrictions on community sentences

 129   Meaning of “community sentence” etc.

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     (1)    In this Part “community sentence” means a sentence which consists of or

includes—

           (a)           a community order (as defined by section 159), or

           (b)           one or more youth community orders.

     (2)    In this Chapter “youth community order” means—

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           (a)           a curfew order as defined by section 163 of the Sentencing Act,

           (b)           an exclusion order under section 40A(1) of that Act,

           (c)           an attendance centre order as defined by section 163 of that Act,

           (d)           a supervision order under section 63(1) of that Act, or

           (e)           an action plan order under section 69(1) of that Act.

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 130   Restrictions on imposing community sentences

     (1)    A court must not pass a community sentence on an offender unless it is of the

opinion that the offence, or the combination of the offence and one or more

offences associated with it, was serious enough to warrant such a sentence.

     (2)    Where a court passes a community sentence which consists of or includes a

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community order—

           (a)           the particular requirement or requirements forming part of the

community order must be such as, in the opinion of the court, is, or

taken together are, the most suitable for the offender, and

           (b)           the restrictions on liberty imposed by the order must be such as in the

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opinion of the court are commensurate with the seriousness of the

offence, or the combination of the offence and one or more offences

associated with it.

     (3)    Where a court passes a community sentence which consists of or includes one

or more youth community orders—

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Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

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           (a)           the particular order or orders forming part of the sentence must be such

as, in the opinion of the court, is, or taken together are, the most suitable

for the offender, and

           (b)           the restrictions on liberty imposed by the order or orders must be such

as in the opinion of the court are commensurate with the seriousness of

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the offence, or the combination of the offence and one or more offences

associated with it.

     (4)    Subsections (1) and (2)(b) have effect subject to section 133(2).

 131   Passing of community sentence on offender remanded in custody

     (1)    In determining the restrictions on liberty to be imposed by a community order

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or youth community order in respect of an offence, the court may have regard

to any period for which the offender has been remanded in custody in

connection with the offence or any other offence the charge for which was

founded on the same facts or evidence.

     (2)    In subsection (1) “remanded in custody” has the meaning given by section

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224(2).

 132   Community sentence not available where sentence fixed by law etc.

The power to make a community order or youth community order is not

exercisable in respect of an offence for which the sentence—

           (a)           is fixed by law,

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           (b)           falls to be imposed under section 51A(2) of the Firearms Act 1968 (c. 27)

(required custodial sentence for certain firearms offences),

           (c)           falls to be imposed under section 110(2) or 111(2) of the Sentencing Act

(requirement to impose custodial sentences for certain repeated

offences committed by offenders aged 18 or over), or

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           (d)           falls to be imposed under any of sections 207 to 210 of this Act

(requirement to impose custodial sentences for certain offences

committed by offenders posing risk to public).

 133   Community order for persistent offender previously fined

     (1)    Subsection (2) applies where—

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           (a)           a person aged 16 or over is convicted of an offence (“the current

offence”),

           (b)           on three or more previous occasions he has, on conviction by a court in

the United Kingdom of any offence committed by him after attaining

the age of 16, had passed on him a sentence consisting only of a fine,

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and

           (c)           despite the effect of section 126(2), the court would not (apart from this

section) regard the current offence, or the combination of the current

offence and one or more offences associated with it, as being serious

enough to warrant a community sentence.

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     (2)    The court may make a community order in respect of the current offence

instead of imposing a fine if it considers that, having regard to all the

circumstances including the matters mentioned in subsection (3), it would be

in the interests of justice to make such an order.

     (3)    The matters referred to in subsection (2) are—

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Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

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           (a)           the nature of the offences to which the previous convictions mentioned

in subsection (1)(b) relate and their relevance to the current offence, and

           (b)           the time that has elapsed since the offender’s conviction of each of those

offences.

     (4)    In subsection (1)(b), the reference to conviction by a court in the United

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Kingdom includes a reference to the finding of guilt in service disciplinary

proceedings; and, in relation to any such finding of guilt, the reference to the

sentence passed is a reference to the punishment awarded.

     (5)    For the purposes of subsection (1)(b), a compensation order does not form part

of an offender’s sentence.

10

     (6)    For the purposes of subsection (1)(b), it is immaterial whether on other

previous occasions a court has passed on the offender a sentence not consisting

only of a fine.

     (7)    This section does not limit the extent to which a court may, in accordance with

section 126(2), treat any previous convictions of the offender as increasing the

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seriousness of an offence.

General restrictions on discretionary custodial sentences

 134   General restrictions on imposing discretionary custodial sentences

     (1)    This section applies where a person is convicted of an offence punishable with

a custodial sentence other than one—

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           (a)           fixed by law, or

           (b)           falling to be imposed under section 51A(2) of the Firearms Act 1968

(c. 27), under 110(2) or 111(2) of the Sentencing Act or under any of

sections 207 to 210 of this Act.

     (2)    The court must not pass a custodial sentence unless it is of the opinion that the

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offence, or the combination of the offence and one or more offences associated

with it, was so serious that neither a fine alone nor a community sentence can

be justified for the offence.

     (3)    Nothing in subsection (2) prevents the court from passing a custodial sentence

on the offender if—

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           (a)            he fails to express his willingness to comply with a requirement which

is proposed by the court to be included in a community order and

which requires an expression of such willingness, or

           (b)           he fails to comply with an order under section 143(2) (pre-sentence

drug testing).

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 135   Length of discretionary custodial sentences: general provision

     (1)    This section applies where a court passes a custodial sentence other than one

fixed by law or falling to be imposed under section 207 or 208.

     (2)    Subject to section 51A(2) of the Firearms Act 1968, sections 110(2) and 111(2) of

the Sentencing Act and sections 209(2) and 210(2) of this Act, the custodial

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sentence must be for the shortest term (not exceeding the permitted maximum)

that in the opinion of the court is commensurate with the seriousness of the

offence, or the combination of the offence and one or more offences associated

with it.

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

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General limit on magistrates’ court’s power to impose imprisonment

 136   General limit on magistrates’ court’s power to impose imprisonment

     (1)    A magistrates’ court does not have power to impose imprisonment for more

than 12 months in respect of any one offence.

     (2)    Unless expressly excluded, subsection (1) applies even if the offence in        

5

question is one for which a person would otherwise be liable on summary

conviction to imprisonment for more than 12 months.

     (3)    Subsection (1) is without prejudice to section 133 of the Magistrates’ Courts Act

1980 (c. 43) (consecutive terms of imprisonment).

     (4)    Any power of a magistrates’ court to impose a term of imprisonment for non-

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payment of a fine, or for want of sufficient distress to satisfy a fine, is not

limited by virtue of subsection (1).

     (5)    In subsection (4) “fine” includes a pecuniary penalty but does not include a

pecuniary forfeiture or pecuniary compensation.

     (6)    In this section “impose imprisonment” means pass a sentence of imprisonment

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or fix a term of imprisonment for failure to pay any sum of money, or for want

of sufficient distress to satisfy any sum of money, or for failure to do or abstain

from doing anything required to be done or left undone.

     (7)    Section 132 of the Magistrates’ Courts Act 1980 (c. 43) contains provisions

about the minimum term of imprisonment which may be imposed by a

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magistrates’ court.

 137   Consecutive terms of imprisonment

     (1)    Section 133 of the Magistrates’ Courts Act 1980 (consecutive terms of

imprisonment) is amended as follows.

     (2)    In subsection (1), for “6 months” there is substituted “65 weeks”.

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     (3)    Subsection (2) is omitted.

     (4)    In subsection (3) for “the preceding subsections” there is substituted

“subsection (1) above”.

Procedural requirements for imposing community sentences and discretionary custodial

sentences

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 138   Pre-sentence reports and other requirements

     (1)    In forming any such opinion as is mentioned in section 130(1), (2)(b) or (3)(b),

section 134(2) or section 135(2), a court must take into account all such

information as is available to it about the circumstances of the offence or (as the

case may be) of the offence and the offence or offences associated with it,

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including any aggravating or mitigating factors.

     (2)    In forming any such opinion as is mentioned in section 130(2)(a) or (3)(a), the

court may take into account any information about the offender which is before

it.

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

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     (3)    Subject to subsection (4), a court must obtain and consider a pre-sentence

report before—

           (a)           in the case of a custodial sentence, forming any such opinion as is

mentioned in section 134(2), section 135(2), section 207(1)(b), section

208(1)(b), section 209(1)(b) or section 210(1)(b)(i), or

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           (b)           in the case of a community sentence, forming any such opinion as is

mentioned in section 130(1), (2)(b) or (3)(b) or any opinion as to the

suitability for the offender of the particular requirement or

requirements to be imposed by the community order.

     (4)    Subsection (3) does not apply if, in the circumstances of the case, the court is of

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the opinion that it is unnecessary to obtain a pre-sentence report.

     (5)    In a case where the offender is aged under 18 and the offence is not triable only

on indictment and there is no other offence associated with it that is triable only

on indictment, the court must not form the opinion mentioned in subsection (4)

unless—

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           (a)           there exists a previous pre-sentence report obtained in respect of the

offender, and

           (b)           the court has had regard to the information contained in that report, or,

if there is more than one such report, the most recent report.

     (6)    No custodial sentence or community sentence is invalidated by the failure of a

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court to obtain and consider a pre-sentence report before forming an opinion

referred to in subsection (3), but any court on an appeal against such a

sentence—

           (a)           must, subject to subsection (7), obtain a pre-sentence report if none was

obtained by the court below, and

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           (b)           must consider any such report obtained by it or by that court.

     (7)    Subsection (6)(a) does not apply if the court is of the opinion—

           (a)           that the court below was justified in forming an opinion that it was

unnecessary to obtain a pre-sentence report, or

           (b)           that, although the court below was not justified in forming that opinion,

30

in the circumstances of the case at the time it is before the court, it is

unnecessary to obtain a pre-sentence report.

     (8)    In a case where the offender is aged under 18 and the offence is not triable only

on indictment and there is no other offence associated with it that is triable only

on indictment, the court must not form the opinion mentioned in subsection (7)

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unless—

           (a)           there exists a previous pre-sentence report obtained in respect of the

offender, and

           (b)           the court has had regard to the information contained in that report, or,

if there is more than one such report, the most recent report.

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 139   Additional requirements in case of mentally disordered offender

     (1)    Subject to subsection (2), in any case where the offender is or appears to be

mentally disordered, the court must obtain and consider a medical report

before passing a custodial sentence other than one fixed by law.

     (2)    Subsection (1) does not apply if, in the circumstances of the case, the court is of

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the opinion that it is unnecessary to obtain a medical report.

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

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     (3)    Before passing a custodial sentence other than one fixed by law on an offender

who is or appears to be mentally disordered, a court must consider—

           (a)           any information before it which relates to his mental condition

(whether given in a medical report, a pre-sentence report or otherwise),

and

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           (b)           the likely effect of such a sentence on that condition and on any

treatment which may be available for it.

     (4)    No custodial sentence which is passed in a case to which subsection (1) applies

is invalidated by the failure of a court to comply with that subsection, but any

court on an appeal against such a sentence—

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           (a)           must obtain a medical report if none was obtained by the court below,

and

           (b)           must consider any such report obtained by it or by that court.

     (5)    In this section “mentally disordered”, in relation to any person, means

suffering from a mental disorder within the meaning of the Mental Health Act

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1983 (c. 20).

     (6)    In this section “medical report” means a report as to an offender’s mental

condition made or submitted orally or in writing by a registered medical

practitioner who is approved for the purposes of section 12 of the Mental

Health Act 1983 (c. 20) by the Secretary of State as having special experience in

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the diagnosis or treatment of mental disorder.

     (7)    Nothing in this section is to be taken to limit the generality of section 138.

 140   Meaning of “pre-sentence report”

     (1)    In this Part “pre-sentence report” means a report which—

           (a)           with a view to assisting the court in determining the most suitable

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method of dealing with an offender, is made or submitted by an

appropriate officer, and

           (b)           contains information as to such matters, presented in such manner, as

may be prescribed by rules made by the Secretary of State.

     (2)    In subsection (1) “an appropriate officer” means—

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           (a)           where the offender is aged 18 or over, an officer of a local probation

board, and

           (b)           where the offender is aged under 18, an officer of a local probation

board, a social worker of a local authority social services department or

a member of a youth offending team.

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Disclosure of pre-sentence reports etc

 141   Disclosure of pre-sentence reports

     (1)    This section applies where the court obtains a pre-sentence report, other than

a report given orally in open court.

     (2)    Subject to subsections (3) and (4), the court must give a copy of the report—

40

           (a)                         to the offender or his counsel or solicitor,

           (b)                         if the offender is aged under 18, to any parent or guardian of his who is

present in court, and

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

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           (c)           to the prosecutor, that is to say, the person having the conduct of the

proceedings in respect of the offence.

     (3)           If the offender is aged under 18 and it appears to the court that the disclosure

to the offender or to any parent or guardian of his of any information contained

in the report would be likely to create a risk of significant harm to the offender,

5

a complete copy of the report need not be given to the offender or, as the case

may be, to that parent or guardian.

     (4)    If the prosecutor is not of a description prescribed by order made by the

Secretary of State, a copy of the report need not be given to the prosecutor if the

court considers that it would be inappropriate for him to be given it.

10

     (5)    No information obtained by virtue of subsection (2)(c) may be used or

disclosed otherwise than for the purpose of—

           (a)           determining whether representations as to matters contained in the

report need to be made to the court, or

           (b)           making such representations to the court.

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     (6)           In relation to an offender aged under 18 for whom a local authority have

parental responsibility and who—

           (a)           is in their care, or

           (b)           is provided with accommodation by them in the exercise of any social

services functions,

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            references in this section to his parent or guardian are to be read as references

to that authority.

     (7)           In this section and section 142

                    “harm” has the same meaning as in section 31 of the Children Act 1989

(c. 41);

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                    “local authority” and “parental responsibility” have the same meanings as

in that Act;

                    “social services functions”, in relation to a local authority, has the meaning

given by section 1A of the Local Authority Social Services Act 1970

(c. 42).

30

 142   Other reports of local probation boards and members of youth offending

teams

     (1)    This section applies where—

           (a)           a report by an officer of a local probation board or a member of a youth

offending team is made to any court (other than a youth court) with a

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view to assisting the court in determining the most suitable method of

dealing with any person in respect of an offence, and

           (b)           the report is not a pre-sentence report.

     (2)    Subject to subsection (3), the court must give a copy of the report—

           (a)           to the offender or his counsel or solicitor, and

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           (b)                         if the offender is aged under 18, to any parent or guardian of his who is

present in court.

     (3)           If the offender is aged under 18 and it appears to the court that the disclosure

to the offender or to any parent or guardian of his of any information contained

in the report would be likely to create a risk of significant harm to the offender,

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