Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 10 — Amendment of enactments relating to bail
165

(b)
in the reference to Chapter 4 of Part 12 of that Act, the words
“custody plus order or”.
      (3)
Omit sections 197 to 199 (imprisonment with or without custody plus order).
      (4)
In section 207 (definitions), omit the definition of “custody plus order”.
      (5)
In Schedule 7 (suspended sentence: further conviction or breach of
5
requirement), omit paragraph 9(1)(a) (modification of paragraph 9(1)(a) of
Schedule 12 to the Criminal Justice Act 2003).
      (6)
In Schedule 16 (minor and consequential amendments), omit paragraphs
222 and 223.
Criminal Justice and Immigration Act 2008 (c. 4)
10
42
Omit section 20(2) and (3) of the Criminal Justice and Immigration Act 2008.
Policing and Crime Act 2009 (c. 26)
43
Omit section 71(10) of the Policing and Crime Act 2009.
Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005 (S.I. 2005/643)
44
Article 2(4) of the Criminal Justice Act 2003 (Sentencing) (Transitory
15
Provisions) Order 2005 is revoked.
Schedule 10
Section 73

Amendment of enactments relating to bail
Bail Act 1976
1
The Bail Act 1976 is amended as follows.
20
2
In section 2(2) (definitions)—
(a)
insert the following definitions at the appropriate places—
““bail in non-extradition proceedings” means bail in
criminal proceedings of the kind mentioned in section
1(1)(a),”;
25
““custodial sentence” means a sentence or order
mentioned in section 76(1) of the Powers of Criminal
Courts (Sentencing) Act 2000 or any corresponding
sentence or order imposed or made under any earlier
enactment,”, and
30
(b)
in the definition of “young person” for “seventeen” substitute
“eighteen”.
3
In section 3(7) (provision relating to parent or guardian being surety for
child or young person)—
(a)
for “a child or young person” substitute “a person under the age of
35
seventeen”,
(b)
for the words “the child or young person”, in both places they
appear, substitute “the person”, and

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 10 — Amendment of enactments relating to bail
166

(c)
in paragraph (a)—
(i)
omit “of a young person”, and
(ii)
omit “young” in the second place it appears.
4     (1)
Section 3AB (conditions for the imposition of electronic monitoring
requirements: other persons) is amended as follows.
5
      (2)
In subsection (1) for “seventeen” substitute “eighteen”.
      (3)
Omit subsection (4).
5     (1)
Section 7 (liability to arrest for absconding or breaking conditions of bail) is
amended as follows.
      (2)
In subsection (5) for “subsection (6)” substitute “subsections (5A) and (6)”.
10
      (3)
After subsection (5) insert—
“(5A)
A justice of the peace may not remand a person in, or commit a
person to, custody under subsection (5) if—
(a)
the person has attained the age of eighteen,
(b)
the person was released on bail in non-extradition
15
proceedings,
(c)
the person has not been convicted of an offence in those
proceedings, and
(d)
it appears to the justice of the peace that there is no real
prospect that the person will be sentenced to a custodial
20
sentence in the proceedings.”
      (4)
In subsection (6) for “the person so brought before the justice” substitute “a
person brought before a justice under subsection (4) or (4B)”.
6     (1)
Section 9A (bail decisions relating to persons aged under 18 who are accused
of offences mentioned in Schedule 2 to the Magistrates’ Court Act 1980) is
25
amended as follows.
      (2)
In the heading of “persons aged under 18” substitute “children or young
persons”.
      (3)
In subsection (1)(a) for “person aged under 18” substitute “child or young
person”.
30
      (4)
In subsections (2) and (3)(b) after “accused” insert “child or young”.
7
Part 1 of Schedule 1 (bail for defendants accused or convicted of certain
imprisonable offences) is amended in accordance with paragraphs 8 to 18.
8
For the heading immediately before paragraph 1 (defendants to whom Part
1 applies) substitute “Application of Part 1”.
35
9
In paragraph 1 (defendants to whom Part 1 applies) in sub-paragraph (1)
after “sub-paragraph (2)” insert “and paragraph 1A”.
10
After paragraph 1 insert—
“1A   (1)
The paragraphs of this Part of this Schedule mentioned in sub-
paragraph (2) do not apply in relation to bail in non-extradition
40
proceedings where—
(a)
the defendant has attained the age of 18,

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 10 — Amendment of enactments relating to bail
167

(b)
the defendant has not been convicted of an offence in those
proceedings, and
(c)
it appears to the court that there is no real prospect that the
defendant will be sentenced to a custodial sentence in the
proceedings.
5
      (2)
The paragraphs are—
(a)
paragraph 2 (refusal of bail where defendant may fail to
surrender to custody, commit offences on bail or interfere
with witnesses),
(b)
paragraph 2A (refusal of bail where defendant appears to
10
have committed indictable or either way offence while on
bail), and
(c)
paragraph 6 (refusal of bail where defendant has been
arrested under section 7).”
11
In paragraph 2 (exceptions to bail where defendant may fail to surrender to
15
custody, commit offences on bail or interfere with witnesses) for sub-
paragraph (2) substitute—
    “(2)
Where the defendant falls within paragraph 6B, this paragraph
does not apply unless—
(a)
the court is of the opinion mentioned in paragraph 6A, or
20
(b)
paragraph 6A does not apply by virtue of paragraph 6C.”
12
After paragraph 2 insert—
“2ZA  (1)
The defendant need not be granted bail if the court is satisfied that
there are substantial grounds for believing that the defendant, if
released on bail (whether subject to conditions or not), would
25
commit an offence while on bail by engaging in conduct that
would, or would be likely to, cause—
(a)
physical or mental injury to an associated person; or
(b)
an associated person to fear physical or mental injury.
      (2)
In sub-paragraph (1) “associated person” means a person who is
30
associated with the defendant within the meaning of section 62 of
the Family Law Act 1996.”
13
For paragraph 2A (refusal of bail where defendant appears to have
committed offence while on bail) substitute—
“2A
The defendant need not be granted bail if—
35
(a)
the offence is an indictable offence or an offence triable
either way, and
(b)
it appears to the court that the defendant was on bail in
criminal proceedings on the date of the offence.”
14
For paragraph 6 (refusal of bail where defendant fails to surrender to
40
custody or has been arrested under section 7 of that Act) substitute—
“6
The defendant need not be granted bail if, having previously been
released on bail in, or in connection with, the proceedings, the
defendant has been arrested in pursuance of section 7.”

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 10 — Amendment of enactments relating to bail
168

15
In paragraph 6A (certain drug users to be refused bail unless no significant
risk of offending while on bail) for “is satisfied” substitute “is of the
opinion”.
16
In paragraph 9 (considerations to which the court must have regard)—
(a)
for “2A(1), 6(1) or 6A” substitute “2ZA(1)”, and
5
(b)
after “paragraph 6ZA” insert “or 6A”.
17
In paragraph 9AA (court to give particular weight to the fact that an under
18 defendant was on bail when the offence was committed) in sub-
paragraph (1)(a) for “under the age of 18” substitute “a child or young
person”.
10
18
In paragraph 9AB (factors to be given particular weight by the court when
making a decision for the purposes of section 2(1)(a), in the case of an under
18 defendant who has failed to surrender) in sub-paragraph (1)(a) for “under
the age of 18” substitute “a child or young person”.
19
Part 1A of Schedule 1 (bail for defendants accused or convicted of
15
imprisonable offences to which Part 1 of that Schedule does not apply) is
amended in accordance with paragraphs 20 to 23.
20
For the heading immediately before paragraph 1 (defendants to whom Part
1A applies) substitute “Application of Part 1A”.
21
In paragraph 1 (defendants to whom Part 1A applies) for “The” substitute
20
“Subject to paragraph 1A, the”.
22
After paragraph 1 insert—
“1A   (1)
The paragraphs of this Part of this Schedule mentioned in sub-
paragraph (2) do not apply in relation to bail in, or in connection
with, proceedings where—
25
(a)
the defendant has attained the age of 18,
(b)
the defendant has not been convicted of an offence in those
proceedings, and
(c)
it appears to the court that there is no real prospect that the
defendant will be sentenced to a custodial sentence in the
30
proceedings.
      (2)
The paragraphs are—
(a)
paragraph 2 (refusal of bail for failure to surrender to
custody),
(b)
paragraph 3 (refusal of bail where defendant would
35
commit further offences on bail), and
(c)
paragraph 7 (refusal of bail in certain circumstances when
arrested under section 7).”
23    (1)
Paragraph 4 (refusal of bail to defendants who are likely to cause injury or
fear of injury) is amended as follows.
40
      (2)
The existing words become sub-paragraph (1).
      (3)
In paragraphs (a) and (b) of that sub-paragraph for “any person other than
the defendant”, in both places those words appear, substitute “an associated
person”.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 10 — Amendment of enactments relating to bail
169

      (4)
After that sub-paragraph insert—
    “(2)
In sub-paragraph (1) “associated person” means a person who is
associated with the defendant within the meaning of section 62 of
the Family Law Act 1996.”
24
Part 2 of Schedule 1 (bail for defendants accused or convicted of non-
5
imprisonable offences) is amended in accordance with paragraphs 25 to 27.
25
In paragraph 2 (refusal of bail for failure to surrender to custody) after “bail
if—” insert—
“(za)
the defendant—
(i)
is a child or young person, or
10
(ii)
has been convicted in the proceedings of an offence;”.
26
In paragraph 5 (refusal of bail in certain circumstances when arrested under
section 7) after “bail if—” insert—
“(za)
the defendant—
(i)
is a child or young person, or
15
(ii)
has been convicted in the proceedings of an offence;”.
27
After paragraph 5 insert—
“6    (1)
The defendant need not be granted bail if—
(a)
having been released on bail in, or in connection with, the
proceedings for the offence, the defendant has been
20
arrested in pursuance of section 7, and
(b)
the court is satisfied that there are substantial grounds for
believing that the defendant, if released on bail (whether
subject to conditions or not), would commit an offence
while on bail by engaging in conduct that would, or would
25
be likely to, cause—
(i)
physical or mental injury to an associated person,
or
(ii)
an associated person to fear physical or mental
injury.
30
      (2)
In sub-paragraph (1) “associated person” means a person who is
associated with the defendant within the meaning of section 62 of
the Family Law Act 1996.”
28    (1)
Paragraph 2 of Part 3 of Schedule 1 (references to previous grants of bail) is
amended as follows.
35
      (2)
In paragraph (b) for “section 14(1) of the Criminal Justice Act 2003”
substitute “paragraph 13 of Schedule 10 to the Legal Aid, Sentencing and
Punishment of Offenders Act 2011”.
      (3)
In paragraph (c) for “section 15(1) of the Criminal Justice Act 2003”
substitute “paragraph 14 of Schedule 10 to the Legal Aid, Sentencing and
40
Punishment of Offenders Act 2011”.
      (4)
After paragraph (f) insert “;
(g)
as respects the reference in paragraph 6 of Part 2 of this
Schedule, bail granted before the coming into force of that
paragraph.”
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 11 — Remands of children otherwise than on bail: minor and consequential amendments
170

Criminal Justice and Public Order Act 1994
29
In section 25 of the Criminal Justice and Public Order Act 1994 (no bail for
defendants charged with or convicted of homicide or rape after previous
conviction for such offences) in subsection (1) for “is satisfied” substitute “is
of the opinion”.
5
Consequential amendment
30
In section 38(2A) of the Police and Criminal Evidence Act 1984
(considerations applicable to paragraph 2 of Part 1 of Schedule 1 to the 1976
Act to be taken into account by custody officer when making decision about
bail after charge) for “paragraph 2(2)” substitute “paragraphs 1A and 2(2)”.
10
Schedule 11
Section 88

Remands of children otherwise than on bail: minor and consequential
amendments
Criminal Justice Act 1948 (c. 58)
1
Section 27 of the Criminal Justice Act 1948 (remand of persons aged 17 to 20)
15
is amended as follows.
2
In the heading, for “17” substitute “18”.
3
In subsection (1) for “seventeen” substitute “eighteen”.
Children and Young Persons Act 1969 (c. 54)
4
The Children and Young Persons Act 1969 is amended as follows.
20
5
Omit section 23 (remands and committals to local authority
accommodation).
6
Omit section 23AA (electronic monitoring of conditions of remand).
7
Omit section 23A (liability to arrest for breaking conditions of remand).
8     (1)
Section 23B (report by local authority in certain cases where person
25
remanded on bail) is amended as follows.
      (2)
In subsection (2), at the end insert “under section 74(3) of the Legal Aid,
Sentencing and Punishment of Offenders Act 2011.”
      (3)
In subsection (3), for “section 23(2) of this Act” substitute “section 75(2) of the
Legal Aid, Sentencing and Punishment of Offenders Act 2011”.
30
      (4)
In subsection (6)—
(a)
in paragraph (a), for “17” substitute “18”, and
(b)
for paragraph (b) and the “and” at the end of that paragraph
substitute—
“(b)
the requirements in section 77(3) and (4) or 78(3) and
35
(4) of the Legal Aid, Sentencing and Punishment of
Offenders Act 2011 would have been fulfilled if the
person had not been remanded on bail, and”.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 11 — Remands of children otherwise than on bail: minor and consequential amendments
171

9     (1)
Section 32 (detention of absentees) is amended as follows.
      (2)
In subsection (1A)—
(a)
in paragraph (b), omit sub-paragraph (iii), and
(b)
after that paragraph insert—
“(c)
from a place in which the child or young person has
5
been accommodated pursuant to a remand under
section 74 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2011,”.
      (3)
In subsection (1B), for the “or” at the end of paragraph (b) substitute—
“(ba)
the place mentioned in subsection (1A)(c); or”.
10
      (4)
In subsection (1C), for paragraph (d) and the “or” preceding that paragraph
substitute—
“(d)
where the child or young person was accommodated
pursuant to a remand under section 74(3) of the Legal Aid,
Sentencing and Punishment of Offenders Act 2011 (remands
15
to local authority accommodation), the designated authority
within the meaning of section 89(1) of that Act; or
(e)
where the child or young person was accommodated pursuant to a
remand under section 74(4) of that Act (remands to youth detention
accommodation), the Secretary of State.”
20
10
In section 34(1) (transitional modifications of Part 1 for persons of specified
ages)—
(a)
in paragraph (c) omit “, 23(1)”, and
(b)
omit paragraph (e).
11
In section 69 (orders and regulations etc) omit subsection (4A).
25
Local Authority Social Services Act 1970 (c. 42)
12
In Schedule 1 to the Local Authority Social Services Act 1970 (social services
functions for the purposes of the Act), at the end insert—

“Legal Aid, Sentencing and

Punishment of Offenders Act

30

2011

Section 75
Functions in relation to a

child remanded to local

authority accommodation.”

Bail Act 1976 (c. 63)
35
13
The Bail Act 1976 is amended as follows.
14
In section 3AA (conditions for the imposition of electronic monitoring
requirements: persons under the age of seventeen), for subsection (11)
substitute—
“(11)
In this section the reference to being remanded to local authority
40
accommodation is to be construed in accordance with section 75 of
the Legal Aid, Sentencing and Punishment of Offenders Act 2011.”