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Criminal Justice Bill


Criminal Justice Bill
Schedule 2 — Charging or release of persons in police detention

194

 

(a)   

for the purpose of enabling custody officers to decide how

persons should be dealt with under section 37(7) above or

37C(2) below, and

(b)   

as to the information to be sent to the Director of Public

Prosecutions under section 37B(1) below.

5

(2)   

The Director of Public Prosecutions may from time to time revise

guidance issued under this section.

(3)   

Custody officers are to have regard to guidance under this section in

deciding how persons should be dealt with under section 37(7)

above or 37C(2) below.

10

(4)   

A report under section 9 of the Prosecution of Offences Act 1985

(report by DPP to Attorney General) must set out the provisions of

any guidance issued, and any revisions to guidance made, in the year

to which the report relates.

(5)   

The Director of Public Prosecutions must publish in such manner as

15

he thinks fit—

(a)   

any guidance issued under this section, and

(b)   

any revisions made to such guidance.

(6)   

Guidance under this section may make different provision for

different cases, circumstances or areas.

20

37B     

Consultation with the Director of Public Prosecutions

(1)   

Where a person is released on bail under section 37(7)(a) above, an

officer involved in the investigation of the offence shall, as soon as is

practicable, send to the Director of Public Prosecutions such

information as may be specified in guidance under section 37A

25

above.

(2)   

The Director of Public Prosecutions shall decide whether there is

sufficient evidence to charge the person with an offence.

(3)   

If he decides that there is sufficient evidence to charge the person

with an offence, he shall decide—

30

(a)   

whether or not the person should be charged and, if so, the

offence with which he should be charged, and

(b)   

whether or not the person should be given a caution and, if

so, the offence in respect of which he should be given a

caution.

35

(4)   

The Director of Public Prosecutions shall give written notice of his

decision to an officer involved in the investigation of the offence.

(5)   

If his decision is—

(a)   

that there is not sufficient evidence to charge the person with

an offence, or

40

(b)   

that there is sufficient evidence to charge the person with an

offence but that the person should not be charged with an

offence or given a caution in respect of an offence,

   

a custody officer shall give the person notice in writing that he is not

to be prosecuted.

45

 

 

Criminal Justice Bill
Schedule 2 — Charging or release of persons in police detention

195

 

(6)   

If the decision of the Director of Public Prosecutions is that the

person should be charged with an offence, or given a caution in

respect of an offence, the person shall be charged or cautioned

accordingly.

(7)   

But if his decision is that the person should be given a caution in

5

respect of the offence and it proves not to be possible to give the

person such a caution, he shall instead be charged with the offence.

(8)   

For the purposes of this section, a person is to be charged with an

offence either—

(a)   

when he is in police detention after returning to a police

10

station to answer bail or is otherwise in police detention at a

police station, or

(b)   

in accordance with section 29 of the Criminal Justice Act 2003.

(9)   

In this section “caution” includes—

(a)   

a conditional caution within the meaning of Part 3 of the

15

Criminal Justice Act 2003, and

(b)   

a warning or reprimand under section 65 of the Crime and

Disorder Act 1998.

37C     

Breach of bail following release under section 37(7)(a)

(1)   

This section applies where—

20

(a)   

a person released on bail under section 37(7)(a) above or

subsection (2)(b) below is arrested under section 46A below

in respect of that bail, and

(b)   

at the time of his detention following that arrest at the police

station mentioned in section 46A(2) below, notice under

25

section 37B(4) above has not been given.

(2)   

The person arrested—

(a)   

shall be charged, or

(b)   

shall be released without charge, either on bail or without

bail.

30

(3)   

The decision as to how a person is to be dealt with under subsection

(2) above shall be that of a custody officer.

(4)   

A person released on bail under subsection (2)(b) above shall be

released on bail subject to the same conditions (if any) which applied

immediately before his arrest.

35

37D     

Release under section 37(7)(a): further provision

(1)   

Where a person is released on bail under section 37(7)(a) or section

37C(2)(b) above, a custody officer may subsequently appoint a

different time, or an additional time, at which the person is to attend

at the police station to answer bail.

40

(2)   

The custody officer shall give the person notice in writing of the

exercise of the power under subsection (1).

(3)   

The exercise of the power under subsection (1) shall not affect the

conditions (if any) to which bail is subject.

 

 

Criminal Justice Bill
Schedule 2 — Charging or release of persons in police detention

196

 

(4)   

Where a person released on bail under section 37(7)(a) or 37C(2)(b)

above returns to a police station to answer bail or is otherwise in

police detention at a police station, he may be kept in police

detention to enable him to be dealt with in accordance with section

37B or 37C above or to enable the power under subsection (1) above

5

to be exercised.

(5)   

If the person is not in a fit state to enable him to be so dealt with or to

enable that power to be exercised, he may be kept in police detention

until he is.

(6)   

Where a person is kept in police detention by virtue of subsection (4)

10

or (5) above, section 37(1) to (3) and (7) above (and section 40(8)

below so far as it relates to section 37(1) to (3)) shall not apply to the

offence in connection with which he was released on bail under

section 37(7)(a) or 37C(2)(b) above.”

4          

In section 40 (review of police detention) in subsection (9) after “37(9)” there

15

is inserted “or 37D(5)”.

5          

In section 46A (power of arrest for failure to answer police bail) after

subsection (1) insert—

“(1A)   

A person who has been released on bail under section 37(7)(a) or

37C(2)(b) above may be arrested without warrant by a constable if

20

the constable has reasonable grounds for suspecting that the person

has broken any of the conditions of bail.”

6     (1)  

Section 47 (bail after arrest) is amended as follows.

      (2)  

In subsection (1) (release on bail under Part 4 shall be release on bail granted

in accordance with certain provisions of the Bail Act 1976) for “Subject to

25

subsection (2) below” there is substituted “Subject to the following

provisions of this section”.

      (3)  

In subsection (1A) (bail conditions may be imposed when a person is

released under section 38(1)) after “section”, in the first place where it occurs,

there is inserted “37(7)(a) above or section”.

30

      (4)  

After that subsection there is inserted—

“(1B)   

No application may be made under section 5B of the Bail Act 1976 if

a person is released on bail under section 37(7)(a) or 37C(2)(b) above.

(1C)   

Subsections (1D) to (1F) below apply where a person released on bail

under section 37(7)(a) or 37C(2)(b) above is on bail subject to

35

conditions.

(1D)   

The person shall not be entitled to make an application under section

43B of the Magistrates’ Courts Act 1980.

(1E)    

A magistrates’ court may, on an application by or on behalf of the

person, vary the conditions of bail; and in this subsection “vary” has

40

the same meaning as in the Bail Act 1976.

(1F)   

Where a magistrates’ court varies the conditions of bail under

subsection (1E) above, that bail shall not lapse but shall continue

subject to the conditions as so varied.”

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

197

 

Schedule 3

Section 41

 

Allocation of cases triable either way, and sending cases to the Crown Court

etc

Part 1

Principal amendments

5

Magistrates’ Courts Act 1980 (c. 43)

1          

The Magistrates’ Courts Act 1980 is amended as follows.

2     (1)  

Section 17A (initial indication as to plea) is amended as follows.

      (2)  

For paragraph (b) of subsection (4) there is substituted—

“(b)   

he may (unless section 17D(2) below were to apply) be

10

committed to the Crown Court under section 3 or (if

applicable) 3A of the Powers of Criminal Courts (Sentencing)

Act 2000 if the court is of such opinion as is mentioned in

subsection (2) of the applicable section.”

      (3)  

After subsection (9) there is inserted—

15

“(10)   

If in respect of the offence the court receives a notice under section

51B or 51C of the Crime and Disorder Act 1998 (which relate to

serious or complex fraud cases and to certain cases involving

children respectively), the preceding provisions of this section and

the provisions of section 17B below shall not apply, and the court

20

shall proceed in relation to the offence in accordance with section 51

or, as the case may be, section 51A of that Act.”

3          

After section 17C there is inserted—

“17D    

Maximum penalty under section 17A(6) or 17B(2)(c) for certain

offences

25

(1)   

If—

(a)   

the offence is a scheduled offence (as defined in section 22(1)

below);

(b)   

the court proceeds in relation to the offence in accordance

with section 17A(6) or 17B(2)(c) above; and

30

(c)   

the court convicts the accused of the offence,

   

the court shall consider whether, having regard to any

representations made by him or by the prosecutor, the value

involved (as defined in section 22(10) below) appears to the court to

exceed the relevant sum (as specified for the purposes of section 22

35

below).

(2)   

If it appears to the court clear that the value involved does not exceed

the relevant sum, or it appears to the court for any reason not clear

whether the value involved does or does not exceed the relevant

sum—

40

(a)   

subject to subsection (4) below, the court shall not have

power to impose on the accused in respect of the offence a

sentence in excess of the limits mentioned in section 33(1)(a)

below; and

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

198

 

(b)   

sections 3 and 4 of the Powers of Criminal Courts

(Sentencing) Act 2000 shall not apply as regards that offence.

(3)   

Subsections (9) to (12) of section 22 below shall apply for the

purposes of this section as they apply for the purposes of that section

(reading the reference to subsection (1) in section 22(9) as a reference

5

to subsection (1) of this section).

(4)   

Subsection (2)(a) above does not apply to an offence under section

12A of the Theft Act 1968 (aggravated vehicle-taking).

17E     

Functions under sections 17A to 17D capable of exercise by single

justice

10

(1)   

The functions of a magistrates’ court under sections 17A to 17D

above may be discharged by a single justice.

(2)   

Subsection (1) above shall not be taken as authorising—

(a)   

the summary trial of an information (otherwise than in

accordance with section 17A(6) or 17B(2)(c) above); or

15

(b)   

the imposition of a sentence,

   

by a magistrates’ court composed of fewer than two justices.”

4          

In section 18 (initial procedure on information against adult for offence

triable either way), for subsection (5) there is substituted—

“(5)   

The functions of a magistrates’ court under sections 19 to 23 below

20

may be discharged by a single justice, but this subsection shall not be

taken as authorising—

(a)   

the summary trial of an information (otherwise than in

accordance with section 20(7) below); or

(b)   

the imposition of a sentence,

25

   

by a magistrates’ court composed of fewer than two justices.”

5          

For section 19 (court to begin by considering which mode of trial appears

more suitable) there is substituted—

“19     

Decision as to allocation

(1)   

The court shall decide whether the offence appears to it more

30

suitable for summary trial or for trial on indictment.

(2)   

Before making a decision under this section, the court—

(a)   

shall give the prosecution an opportunity to inform the court

of the accused’s previous convictions (if any); and

(b)   

shall give the prosecution and the accused an opportunity to

35

make representations as to whether summary trial or trial on

indictment would be more suitable.

(3)   

In making a decision under this section, the court shall consider—

(a)   

whether the sentence which a magistrates’ court would have

power to impose for the offence would be adequate; and

40

(b)   

any representations made by the prosecution or the accused

under subsection (2)(b) above,

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

199

 

   

and shall have regard to any allocation guidelines (or revised

allocation guidelines) issued as definitive guidelines under section

142 of the Criminal Justice Act 2003.

(4)   

Where—

(a)   

the accused is charged with two or more offences; and

5

(b)   

it appears to the court that the charges for the offences could

be joined in the same indictment or that the offences arise out

of the same or connected circumstances,

   

subsection (3)(a) above shall have effect as if references to the

sentence which a magistrates’ court would have power to impose for

10

the offence were a reference to the maximum aggregate sentence

which a magistrates’ court would have power to impose for all of the

offences taken together.

(5)   

In this section any reference to a previous conviction is a reference

to—

15

(a)   

a previous conviction by a court in the United Kingdom, or

(b)   

a previous finding of guilt in—

(i)   

any proceedings under the Army Act 1955, the Air

Force Act 1955 or the Naval Discipline Act 1957

(whether before a court-martial or any other court or

20

person authorised under any of those Acts to award a

punishment in respect of any offence), or

(ii)   

any proceedings before a Standing Civilian Court.

(6)   

If, in respect of the offence, the court receives a notice under section

51B or 51C of the Crime and Disorder Act 1998 (which relate to

25

serious or complex fraud cases and to certain cases involving

children respectively), the preceding provisions of this section and

sections 20, 20A and 21 below shall not apply, and the court shall

proceed in relation to the offence in accordance with section 51(1) of

that Act.”

30

6          

For section 20 (procedure where summary trial appears more suitable) there

is substituted—

“20     

Procedure where summary trial appears more suitable

(1)   

If the court decides under section 19 above that the offence appears

to it more suitable for summary trial, the following provisions of this

35

section shall apply (unless they are excluded by section 23 below).

(2)   

The court shall explain to the accused in ordinary language—

(a)   

that it appears to the court more suitable for him to be tried

summarily for the offence;

(b)   

that he can either consent to be so tried or, if he wishes, be

40

tried on indictment; and

(c)   

in the case of a specified offence (within the meaning of

section 196 of the Criminal Justice Act 2003), that if he is tried

summarily and is convicted by the court, he may be

committed for sentence to the Crown Court under section 3A

45

of the Powers of Criminal Courts (Sentencing) Act 2000 if the

committing court is of such opinion as is mentioned in

subsection (2) of that section.

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc
Part 1 — Principal amendments

200

 

(3)   

The accused may then request an indication (“an indication of

sentence”) of whether a custodial sentence or non-custodial sentence

would be more likely to be imposed if he were to be tried summarily

for the offence and to plead guilty.

(4)   

If the accused requests an indication of sentence, the court may, but

5

need not, give such an indication.

(5)   

If the accused requests and the court gives an indication of sentence,

the court shall ask the accused whether he wishes, on the basis of the

indication, to reconsider the indication of plea which was given, or is

taken to have been given, under section 17A or 17B above.

10

(6)   

If the accused indicates that he wishes to reconsider the indication

under section 17A or 17B above, the court shall ask the accused

whether (if the offence were to proceed to trial) he would plead

guilty or not guilty.

(7)   

If the accused indicates that he would plead guilty the court shall

15

proceed as if—

(a)   

the proceedings constituted from that time the summary trial

of the information; and

(b)   

section 9(1) above were complied with and he pleaded guilty

under it.

20

(8)   

Subsection (9) below applies where—

(a)   

the court does not give an indication of sentence (whether

because the accused does not request one or because the court

does not agree to give one);

(b)   

the accused either—

25

(i)   

does not indicate, in accordance with subsection (5)

above, that he wishes; or

(ii)   

indicates, in accordance with subsection (5) above,

that he does not wish,

   

to reconsider the indication of plea under section 17A or 17B

30

above; or

(c)   

the accused does not indicate, in accordance with subsection

(6) above, that he would plead guilty.

(9)   

The court shall ask the accused whether he consents to be tried

summarily or wishes to be tried on indictment and—

35

(a)   

if he consents to be tried summarily, shall proceed to the

summary trial of the information; and

(b)   

if he does not so consent, shall proceed in relation to the

offence in accordance with section 51(1) of the Crime and

Disorder Act 1998.

40

20A     

Procedure where summary trial appears more suitable: supplementary

(1)   

Where the case is dealt with in accordance with section 20(7) above,

no court (whether a magistrates’ court or not) may impose a

custodial sentence for the offence unless such a sentence was

indicated in the indication of sentence referred to in section 20 above.

45

 

 

 
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