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Criminal Justice Bill


Criminal Justice Bill
Part 11 — Sentencing
Chapter 6 — Release on licence

150

 

Drug testing requirements

238     

Release on licence etc: drug testing requirements

(1)   

Section 64 of the Criminal Justice and Court Services Act 2000 (c. 43) (release on

licence etc: drug testing requirements) is amended as follows.

(2)   

In subsection (1) for paragraph (a) there is substituted— 

5

“(a)   

the Secretary of State releases from prison a person aged 14 or

over on whom a sentence of imprisonment has been imposed,

(aa)   

a responsible officer is of the opinion—

(i)   

that the offender has a propensity to misuse specified

Class A drugs, and

10

(ii)   

that the misuse by the offender of any specified Class A

drug caused or contributed to any offence of which he

has been convicted, or is likely to cause or contribute to

the commission of further offences, and”.

(3)   

After subsection (4) there is inserted—

15

“(4A)   

A person under the age of 17 years may not be required by virtue of this

section to provide a sample otherwise than in the presence of an

appropriate adult.”

(4)   

In subsection (5), after paragraph (e) there is inserted “and

(f)   

a sentence of detention under section 198 or 200 of the Criminal

20

Justice Act 2003,”.

(5)   

After subsection (5) there is inserted—

“(6)   

In this section—

   

“appropriate adult”, in relation to a person aged under 17,

means—

25

(a)   

his parent or guardian or, if he is in the care of a local

authority or voluntary organisation, a person

representing that authority or organisation,

(b)   

a social worker of a local authority social services

department, or

30

(c)   

if no person falling within paragraph (a) or (b) is

available, any responsible person aged 18 or over who is

not a police officer or a person employed by the police;

   

“responsible officer” means—

(a)   

in relation to an offender aged under 18, an officer of a

35

local probation board or a member of a youth offending

team;

(b)   

in relation to an offender aged 18 or over, an officer of a

local probation board.”

Supplemental

40

239     

Alteration by order of relevant proportion of sentence

The Secretary of State may by order provide that any reference in section

216(3)(a), section 219(2) or section 236(6)(a)(ii) to a particular proportion of a

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 7 — Effect of life sentence

151

 

prisoner’s sentence is to be read as a reference to such other proportion of a

prisoner’s sentence as may be specified in the order.

240     

Interpretation of Chapter 6

In this Chapter—

“the 1997 Act” means the Crime (Sentences) Act 1997 (c. 43);

5

“the Board” means the Parole Board;

“fixed-term prisoner” has the meaning given by section 209(1);

“intermittent custody prisoner” means a prisoner serving a sentence of

imprisonment to which an intermittent custody order relates;

“prison” and “prisoner” are to be read in accordance with section 209(2);

10

“release”, in relation to a prisoner serving a sentence of imprisonment to

which an intermittent custody order relates, includes temporary

release;

“relevant court order”, in relation to a person serving a sentence of

imprisonment to which a custody plus order or intermittent custody

15

order relates, means that order.

Chapter 7

Effect of life sentence

241     

Determination of minimum term in relation to mandatory life sentence

(1)   

This section applies where after the commencement of this section a court

20

passes a life sentence in circumstances where the sentence is fixed by law.

(2)   

The court must, unless it makes an order under subsection (4), order that the

provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to

in this Chapter as “the early release provisions”) are to apply to the offender as

soon as he has served the part of his sentence which is specified in the order.

25

(3)   

The part of his sentence is to be such as the court considers appropriate taking

into account—

(a)   

the seriousness of the offence, or of the combination of the offence and

any one or more offences associated with it, and

(b)   

the effect of any direction which it would have given under section 212

30

(crediting periods of remand in custody) if it had sentenced him to a

term of imprisonment.

(4)   

If the offender was 21 or over when he committed the offence and the court is

of the opinion that, because of the seriousness of the offence, or of the

combination of the offence and one or more offences associated with it, no

35

order should be made under subsection (2), the court must order that the early

release provisions are not to apply to the offender.

(5)   

In considering under subsection (3) or (4) the seriousness of an offence (or of

the combination of an offence and one or more offences associated with it), the

court must have regard to—

40

(a)   

the general principles set out in Schedule 20, and

(b)   

any guidelines relating to offences in general which are relevant to the

case and are not incompatible with the provisions of Schedule 20.

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 7 — Effect of life sentence

152

 

(6)   

The Secretary of State may by order amend Schedule 20.

(7)   

Before making an order under subsection (6), the Secretary of State shall

consult the Sentencing Guidelines Council.

(8)   

This section does not apply if the offender was under 18 when he committed

the offence.

5

242     

Duty to give reasons

(1)   

Any court making an order under subsection (2) or (4) of section 241 must state

in open court, in ordinary language, its reasons for deciding on the order made.

(2)   

In stating its reasons the court must, in particular—

(a)   

state which of the starting points in Schedule 20 it has chosen and its

10

reasons for doing so, and

(b)   

state its reasons for any departure from that starting point.

243     

Appeals

(1)   

In section 9 of the Criminal Appeal Act 1968 (c. 19) (appeal against sentence

following conviction on indictment), after subsection (1) there is inserted—

15

“(1A)   

In subsection (1) of this section, the reference to a sentence fixed by law

does not include a reference to an order made under subsection (2) or

(4) of section 241 of the Criminal Justice Act 2003 in relation to a life

sentence (as defined in section 249 of that Act) that is fixed by law.”.

(2)   

In section 8 of the Courts-Martial (Appeals) Act 1968 (c. 20) (right of appeal

20

from court-martial to Courts-Martial Appeal Court) after subsection (1) there

is inserted—

“(1ZA)   

In subsection (1) above, the reference to a sentence fixed by law does

not include a reference to an order made under subsection (2) or (4) of

section 241 of the Criminal Justice Act 2003 in relation to a life sentence

25

(as defined in section 249 of that Act) that is fixed by law.”.

244     

Review of minimum term on a reference by Attorney General

(1)   

In section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing)

after subsection (3) there is inserted—

“(3A)   

Where a reference under this section relates to an order under

30

subsection (2) of section 241 of the Criminal Justice Act 2003

(determination of minimum term in relation to mandatory life

sentence), the Court of Appeal shall not, in deciding what order under

that section is appropriate for the case, make any allowance for the fact

that the person to whom it relates is being sentenced for a second

35

time.”.

(2)   

Each of the following sections (which relate to the review by the Courts-Martial

Appeal Court of sentences passed by courts-martial)—

(a)   

section 113C of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),

(b)   

section 113C of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), and

40

(c)   

section 71AC of the Naval Discipline Act 1957 (c. 53),

   

is amended as follows.

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 7 — Effect of life sentence

153

 

(3)   

After subsection (3) there is inserted—

“(3A)    

Where a reference under this section relates to an order under

subsection (2) of section 241 of the Criminal Justice Act 2003

(determination of minimum term in relation to mandatory life

sentence), the Courts-Martial Appeal Court shall not, in deciding what

5

order under that section is appropriate for the case, make any

allowance for the fact that the person to whom it relates is being

sentenced for a second time.”.

245     

Life prisoners transferred to England and Wales

(1)   

The Secretary of State must refer the case of any transferred life prisoner to the

10

High Court for the making of one or more relevant orders.

(2)   

In subsection (1) “transferred life prisoner” means a person—

(a)   

on whom a court in a country or territory outside the British Islands has

imposed one or more sentences of imprisonment or detention for an

indeterminate period, and

15

(b)   

who has been transferred to England and Wales after the

commencement of this section in pursuance of—

(i)   

an order made by the Secretary of State under section 2 of the

Colonial Prisoners Removal Act 1884 (c. 31), or

(ii)   

a warrant issued by the Secretary of State under the

20

Repatriation of Prisoners Act 1984 (c. 47),

   

there to serve his sentence or sentences or the remainder of his sentence or

sentences.

(3)   

In subsection (1) “a relevant order” means—

(a)   

in the case of an offence which appears to the court to be an offence for

25

which, if it had been committed in England and Wales, the sentence

would have been fixed by law, an order under subsection (2) or (4) of

section 241, and

(b)   

in any other case, an order under subsection (2) or (4) of section 82A of

the Sentencing Act.

30

(4)   

In section 34(1) of the Crime (Sentences) Act 1997 (c. 43) (meaning of “life

prisoner” in Chapter 2 of Part 2 of that Act) at the end there is inserted “and

includes a transferred life prisoner as defined by section 245 of the Criminal

Justice Act 2003”.

246     

Further provisions about references relating to transferred life prisoners

35

(1)   

A reference to the High Court under section 245 is to be determined by a single

judge of that court without an oral hearing.

(2)   

In relation to a reference under that section, any reference to “the court” in

subsections (2) to (5) of section 241, in Schedule 20 or in section 82A(2) to (4) of

the Sentencing Act is to be read as a reference to the High Court.

40

(3)   

A person in respect of whom a reference has been made under section 241 may

with the leave of the Court of Appeal appeal to the Court of Appeal against the

decision of the High Court on the reference.

(4)   

Section 1(1) of the Administration of Justice Act 1960 (c. 65) (appeal to House

of Lords from decision of High Court in a criminal cause or matter) and section

45

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 7 — Effect of life sentence

154

 

18(1)(a) of the Supreme Court Act 1981 (c. 54) (exclusion of appeal from High

Court to Court of Appeal in a criminal cause or matter) do not apply in relation

to a decision to which subsection (3) applies.

(5)   

The jurisdiction conferred on the Court of Appeal by subsection (3) is to be

exercised by the criminal division of that court.

5

(6)   

Section 33(3) of the Criminal Appeal Act 1968 (c. 19) (limitation on appeal from

criminal division of Court of Appeal) does not prevent an appeal to the House

of Lords under this section.

(7)   

In relation to appeals to the Court of Appeal or the House of Lords under this

section, the Secretary of State may make an order containing provision

10

corresponding to any provision in the Criminal Appeal Act 1968 (subject to any

specified modifications).

247     

Duty to release certain life prisoners

(1)   

Section 28 of the Crime (Sentences) Act 1997 (duty to release certain life

prisoners) is amended as follows.

15

(2)   

For subsection (1A) there is substituted—

“(1A)   

This section applies to a life prisoner in respect of whom a minimum

term order has been made; and any reference in this section to the

relevant part of such a prisoner’s sentence is a reference to the part of

the sentence specified in the order.”

20

(3)   

In subsection (1B)(a)—

(a)   

“for the words from the beginning to “applies” there is substituted “this

section does not apply to him”, and

(b)   

for the words from “such an order” to “appropriate stage” there is

substituted “a minimum term order has been made in respect of each of

25

those sentences”.

(4)   

After subsection (8) there is inserted—

“(8A)   

In this section “minimum term order” means an order under—

(a)   

subsection (2) of section 82A of the Powers of Criminal Courts

(Sentencing) Act 2000 (determination of minimum term in

30

respect of life sentence that is not fixed by law), or

(b)   

subsection (2) of section 241 of the Criminal Justice Act 2003

(determination of minimum term in respect of mandatory life

sentence).”.

248     

Mandatory life sentences: transitional cases

35

Schedule 21 (which relates to the effect in transitional cases of mandatory life

sentences) shall have effect.

249     

Interpretation of Chapter 7

In this Chapter—

“court” includes a court-martial;

40

“guidelines” has the same meaning as in section 144(1);

“life sentence” means—

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 8 — Other provisions about sentencing

155

 

(a)   

a sentence of imprisonment for life,

(b)   

a sentence of detention during Her Majesty’s pleasure, or

(c)   

a sentence of custody for life passed before the commencement

of section 61(1) of the Criminal Justice and Court Services Act

2000 (c. 43) (which abolishes that sentence).

5

Chapter 8

Other provisions about sentencing

Deferment of sentence

250     

Deferment of sentence

Schedule 22 (deferment of sentence) shall have effect.

10

Power to include drug treatment and testing requirement in certain orders in respect of young

offenders

251     

Drug treatment and testing requirement in action plan order or supervision

order

Schedule 23 (which enables a requirement as to drug treatment and testing to

15

be included in an action plan order or a supervision order) shall have effect.

Alteration of penalties for offences

252     

Alteration of penalties for specified summary offences

(1)   

The summary offences listed in Schedule 24 are no longer punishable with

imprisonment.

20

(2)   

Schedule 25 (which contains amendments increasing the maximum term of

imprisonment for certain summary offences from 4 months or less to 51 weeks)

shall have effect.

(3)   

This section does not affect the penalty for any offence committed before the

commencement of this section.

25

253     

Alteration of penalties for other summary offences

(1)   

Subsection (2) applies to any summary offence which—

(a)   

is an offence under a relevant enactment,

(b)   

is punishable with a maximum term of imprisonment of five months or

less, and

30

(c)   

is not listed in Schedule 24 or Schedule 25.

(2)   

The Secretary of State may by order amend any relevant enactment so as to—

(a)   

provide that any summary offence to which this subsection applies is

no longer punishable with imprisonment, or

(b)   

increase to 51 weeks the maximum term of imprisonment to which a

35

person is liable on conviction of the offence.

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 8 — Other provisions about sentencing

156

 

(3)   

An order under subsection (2) may make such supplementary, incidental or

consequential provision as the Secretary of State considers necessary or

expedient, including provision amending any relevant enactment.

(4)   

Subsection (5) applies to any summary offence which—

(a)   

is an offence under a relevant enactment, and

5

(b)   

is punishable with a maximum term of imprisonment of six months.

(5)   

The maximum term of imprisonment to which a person is liable on conviction

of an offence to which this subsection applies is, by virtue of this subsection, 51

weeks (and the relevant enactment in question is to be read as if it had been

amended accordingly).

10

(6)   

Neither of the following—

(a)   

an order under subsection (2), or

(b)   

subsection (5),

   

affects the penalty for any offence committed before the commencement of that

order or subsection (as the case may be).

15

(7)   

In this section and section 254 “relevant enactment” means any enactment

contained in—

(a)   

an Act passed before or in the same Session as this Act, or

(b)   

any subordinate legislation made before the passing of this Act.

(8)   

In subsection (7) “subordinate legislation” has the same meaning as in the

20

Interpretation Act 1978 (c. 30).

254     

Increase in maximum term that may be imposed on summary conviction of

offence triable either way

(1)   

In section 32 of the Magistrates’ Courts Act 1980 (c. 43) (penalties on summary

conviction for offences triable either way) in subsection (1) (offences listed in

25

Schedule 1 to that Act) for “not exceeding 6 months” there is substituted “not

exceeding 12 months”.

(2)   

Subsection (3) applies to any offence triable either way which—

(a)   

is an offence under a relevant enactment,

(b)   

is punishable with imprisonment on summary conviction, and

30

(c)   

is not listed in Schedule 1 to the Magistrates’ Courts Act 1980 (c. 43).

(3)   

The maximum term of imprisonment to which a person is liable on summary

conviction of an offence to which this subsection applies is by virtue of this

subsection 12 months (and the relevant enactment in question is to be read as

if it had been amended accordingly).

35

(4)   

Nothing in this section affects the penalty for any offence committed before the

commencement of this section.

255     

Enabling powers: power to alter maximum penalties

(1)   

The Secretary of State may by order, in accordance with subsection (2) or (3),

amend any relevant enactment which confers a power (however framed or

40

worded) by subordinate legislation to make a person—

(a)   

as regards a summary offence, liable on conviction to a term of

imprisonment,

 

 

 
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