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"PRISONERS LIABLE TO REMOVAL FROM UNITED KINGDOM:MODIFICATIONS OF CRIMINAL JUSTICE ACT 1991

1 In this Schedule "the 1991 Act" means the Criminal Justice Act 1991 (c. 53).
2 In section 42 of the 1991 Act (additional days for disciplinary offences), in subsection (2) before the word "and" at the end of paragraph (a) there is inserted—
"(aa) any period which he must serve before he can be removed under section 46A below;".
3 (1) In section 46 of the 1991 Act (persons liable to removal from the United Kingdom) in subsection (3) after paragraph (d) there is inserted "or
(e) he is liable to removal under section 10 of the Immigration and Asylum Act 1999".
(2) Sub-paragraph (1) does not apply to any prisoner whose sentence relates to an offence committed before the commencement of this Schedule.
4 After section 46 of the 1991 Act there is inserted—
"46A EARLY REMOVAL OF PERSONS LIABLE TO REMOVAL FROM UNITED KINGDOM
(1) Subject to subsection (2) below, where a short-term or long-term prisoner is liable to removal from the United Kingdom, the Secretary of State may under this section remove him from prison at any time after he has served the requisite period.
(2) Subsection (1) above does not apply where—
(a) the sentence is an extended sentence within the meaning of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000,
(b) the sentence is for an offence under section 1 of the Prisoners (Return to Custody) Act 1995,
(c) the prisoner is subject to a hospital order, hospital direction or transfer direction under section 37, 45A or 47 of the Mental Health Act 1983,
(d) the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, or

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(e) the interval between—
(i) the date on which the prisoner will have served the requisite period for the term of the sentence, and
(ii) the date on which he will have served one-half of the sentence,
is less than 14 days.
(3) A prisoner removed from prison under this section—
(a) is so removed only for the purpose of enabling the Secretary of State to remove him from the United Kingdom under powers conferred by—
(i) Schedule 2 or 3 to the Immigration Act 1971, or
(ii) section 10 of the Immigration and Asylum Act 1999, and
(b) so long as remaining in the United Kingdom, remains liable to be detained in pursuance of his sentence until he falls to be released under section 33 or 35 above.
(4) So long as a prisoner removed from prison under this section remains in the United Kingdom but has not been returned to prison, any duty or power of the Secretary of State under section 33, 35 or 36 is exercisable in relation to him as if he were in prison.
(5) In this section "the requisite period" means—
(a) for a term of three months or more but less than four months, a period of 30 days;
(b) for a term of four months or more but less than 18 months, a period equal to one-quarter of the term;
(c) for a term of 18 months or more, a period that is 135 days less than one-half of the term.
(6) The Secretary of State may by order made by statutory instrument—
(a) amend the definition of "the requisite period" in subsection (5) above,
(b) make such transitional provision as appears to him necessary or expedient in connection with the repeal or amendment.
(7) No order shall be made under subsection (6) above unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
(8) In relation to any time before the commencement of sections 80 and 81 of the Sexual Offences Act 2003, the reference in subsection (2)(d) above to Part 2 of that Act is to be read as a reference to Part 1 of the Sex Offenders Act 1997.
46B RE-ENTRY INTO UNITED KINGDOM OF OFFENDER REMOVED EARLY FROM PRISON
(1) This section applies in relation to a person who, after being removed from prison under section 46A above, has been removed from the United Kingdom before he has served one-half of his sentence.
(2) If a person to whom this section applies enters the United Kingdom at any time before his sentence expiry date he is liable to be detained in pursuance of his sentence from the time of his entry into the United Kingdom until whichever is the earlier of the following—
(a) the end of a period ("the further custodial period") beginning with that time and equal in length to the outstanding custodial period, and
(b) his sentence expiry date.
(3) A person who is liable to be detained by virtue of subsection (2) above is, if at large, to be taken for the purposes of section 49 of the Prison Act 1952 (c. 52) (persons unlawfully at large) to be unlawfully at large.

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(4) Subsection (2) above does not prevent the further removal from the United Kingdom of a person falling within that subsection.
(5) Where, in the case of a person returned to prison by virtue of subsection (2) above, the further custodial period ends before the sentence expiry date, subsections (1) and (2) of section 33 above apply in relation to him as if any reference to one-half or two-thirds of the prisoner's sentence were a reference to the further custodial period.
(6) If a person returned to prison by virtue of subsection (2) above falls by virtue of subsection (5) above to be released on licence under section 33(1) or (2) above after the date on which (but for his removal from the United Kingdom) he would have served three-quarters of his sentence, section 37(1) above has effect in relation to him as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of his sentence.
(7) If a person who is released on licence under section 33(1) or (2) above at the end of the further custodial period is recalled to prison under section 39(1) or (2) above, section 33A(3) above shall not apply, but it shall be the duty of the Secretary of State—
(a) if the person is recalled before the date on which (but for his removal from the United Kingdom) he would have served three-quarters of his sentence, to release him on licence on that date, and
(b) if he is recalled after that date, to release him on the sentence expiry date.
(8) A licence granted by virtue of subsection (7)(a) above shall remain in force until the sentence expiry date.
(9) In this section—
"further custodial period" has the meaning given by subsection (2)(a) above;
"outstanding custodial period", in relation to a person to whom this section applies, means the period beginning with the date on which he was removed from the United Kingdom and ending with the date on which (but for his removal) he would have served one-half of his sentence;
"sentence expiry date", in relation to a person to whom this section applies, means the date on which (but for his removal from the United Kingdom) he would have served the whole of this sentence."

On Question, amendment agreed to.

Schedule 19 [Determination of minimum term in relation to mandatory life sentence]:

Baroness Scotland of Asthal moved Amendment No. 225B:


    Page 290, line 25, leave out from "orientation" to end of line 28 and insert "if it is committed in circumstances falling within subsection (2)(a)(i) or (b)(i) of section (Increase in sentence for offence aggravated by reference to disability or sexual orientation)."

On Question, amendment agreed to.

Lord Ackner moved Amendment No. 225C:


    Page 290, line 29, at end insert—


"Nothing in this Schedule shall fetter the judge's own discretion in the individual case to set the sentence he thinks is appropriate."

The noble and learned Lord said: My Lords, having regard to what the noble Baroness said, I have quite a simple task. She has maintained that I have all that I need to give the judges what I have asked for in my amendment; that is, that Schedule 19 should begin with the statement:


    "Nothing in this Schedule shall fetter the judge's own discretion in the individual case to set the sentence he thinks is appropriate".

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It is clear that the noble Baroness, Lady Anelay—who has not been able, no doubt for good political reasons, to support quite a number of my amendments—was unconvinced that by putting a reference to discretion in paragraphs 7 and 8 of Schedule 19, the discretion which the noble Baroness, Lady Scotland, emphasised the judge has is properly catered for. As the noble Baroness has confirmed that these two paragraphs provide that discretion, surely she can have no objection to making clarity, which she says exists, doubly clear by having this stated at the outset of the schedule. It cannot harm her in any way. She says that the discretion is there. It cannot in any way detract from her submissions. All it does is to transpose paragraphs 7 and 8 into the opening phrase of my amendment. If she does not agree to do that, it seems to me that paragraphs 7 and 8 will merely turn out to be a provision that obliges the judge to comply with the excessive sentences alleged to be minimum sentences in the schedule, and that is contrary to the justice of the position. I beg to move.


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