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
Part 3 — Sentencing and Punishment of Offenders
Chapter 3 — Remands of children otherwise than on bail
66

89
Interpretation of Chapter
(1)
In this Chapter—
“child” has the meaning given by section 74(5);
“court” and “magistrates’ court” include a justice of the peace;
“custodial sentence” has the meaning given by section 82(10);
5
“the designated authority”—
(a)
in relation to a child remanded to local authority
accommodation, means the local authority that is designated by
the court under section 75(2) to receive the child;
(b)
in relation to a child remanded to youth detention
10
accommodation, means the local authority that is designated by
the court under section 85(6) to receive the child;
“electronic monitoring condition” has the meaning given by section 77(8);
“extradition proceedings” means proceedings under the Extradition Act
2003;
15
“imprisonable offence” has the meaning given by 77(8) (and see section
78(8));
“local authority” means—
(a)
a county council;
(b)
a county borough council;
20
(c)
a district council for an area for which there is no county
council;
(d)
a London borough council;
(e)
the Common Council of the City of London;
(f)
the Council of the Isles of Scilly;
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“secure children’s home” has the meaning given by section 85(10);
“sexual offence” has the meaning given by section 77(8);
“violent offence” has the meaning given by section 77(8);
“youth offending team” has the meaning given by section 77(8).
(2)
In this Chapter, references to the remand of a child, and related expressions,
30
are to be construed in accordance with section 74(6) and (7).
(3)
In this Chapter, references to a remand to local authority accommodation, and
related expressions, are to be construed in accordance with section 75(1).
(4)
Subsection (3) is subject to sections 77(9), 78(10) and 82(11) (references to
remand to local authority accommodation to include such a remand under
35
section 23 of the Children and Young Persons Act 1969).
(5)
In this Chapter, references to a child being subject to a custodial remand are to
be construed in accordance with section 78(9).
(6)
In this Chapter, references to a remand to youth detention accommodation are
to be construed in accordance with section 85(1).
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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc
67

Chapter 4
Release on licence etc
Calculation of days to be served
90
Crediting of periods of remand in custody
(1)
Omit section 240 of the Criminal Justice Act 2003 (court to direct that remand
5
time be credited towards time served).
(2)
Before section 240A of that Act insert—
“240ZA
Time remanded in custody to count as time served: terms of
imprisonment and detention
(1)
This section applies where—
10
(a)
an offender is serving a term of imprisonment in respect of an
offence committed on or after 4th April 2005, and
(b)
the offender has been remanded in custody (within the
meaning given by section 242) in connection with the offence or
a related offence.
15
(2)
It is immaterial for that purpose whether, for all or part of the period
during which the offender was remanded in custody, the offender was
also remanded in custody in connection with other offences (but see
subsection (5)).
(3)
The number of days for which the offender was remanded in custody
20
in connection with the offence or a related offence is to count as time
served by the offender as part of the sentence.

But this is subject to subsections (4) to (6).
(4)
If, on any day on which the offender was remanded in custody, the
offender was also detained in connection with any other matter, that
25
day is not to count as time served.
(5)
A day counts as time served—
(a)
in relation to only one sentence, and
(b)
only once in relation to that sentence.
(6)
A day is not to count as time served as part of any period of 28 days
30
served by the offender before automatic release (see section 255B(1)).
(7)
For the purposes of this section a suspended sentence—
(a)
is to be treated as a sentence of imprisonment when it takes
effect under paragraph 8(2)(a) or (b) of Schedule 12, and
(b)
is to be treated as being imposed by the order under which it
35
takes effect.
(8)
In this section “related offence” means an offence, other than the
offence for which the sentence is imposed (“offence A”), with which the
offender was charged and the charge for which was founded on the
same facts or evidence as offence A.
40
(9)
For the purposes of the references in subsections (3) and (5) to the term
of imprisonment to which a person has been sentenced (that is to say,

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc
68

the reference to the offender’s “sentence”), consecutive terms and terms
which are wholly or partly concurrent are to be treated as a single term
if—
(a)
the sentences were passed on the same occasion, or
(b)
where they were passed on different occasions, the person has
5
not been released at any time during the period beginning with
the first and ending with the last of those occasions.
(10)
The reference in subsection (4) to detention in connection with any
other matter does not include remand in custody in connection with
another offence but includes—
10
(a)
detention pursuant to any custodial sentence;
(b)
committal in default of payment of any sum of money;
(c)
committal for want of sufficient distress to satisfy any sum of
money;
(d)
committal for failure to do or abstain from doing anything
15
required to be done or left undone.
(11)
Where an offence is found to have been committed over a period of two
or more days, or at some time during a period of two or more days, it
is to be taken for the purposes of subsection (1) to have been committed
on the last of those days.
20
(12)
This section applies to—
(a)
a determinate sentence of detention under section 91 of the
Sentencing Act or section 228 of this Act, or
(b)
a sentence of detention in a young offender institution under
section 96 of the Sentencing Act or section 227 of this Act,
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as it applies to an equivalent sentence of imprisonment.”
91
Crediting of periods of remand on bail
(1)
Section 240A of the Criminal Justice Act 2003 (crediting periods of remand on
bail: terms of imprisonment and detention) is amended as follows.
(2)
In subsection (2), for “subsection (4)” substitute “subsections (3A) and (3B)”.
30
(3)
For subsections (3) to (7) substitute—
“(3)
The credit period is calculated by taking the following steps.

Step 1

Add—
(a)
the day on which the offender’s bail was first subject to relevant
35
conditions (and for this purpose a condition is not prevented
from being a relevant condition by the fact that it does not apply
for the whole of the day in question), and
(b)
the number of other days on which the offender’s bail was
subject to those conditions (but exclude the last of those days if
40
the offender spends the last part of it in custody).

Step 2

Deduct the number of days on which the offender, whilst on bail
subject to the relevant conditions, was also—
(a)
subject to a licence under section 246 or 248 (having been
45
released early under that section), or

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc
69

(b)
on temporary release under rules made under section 47 of the
Prison Act 1952.

Step 3

From the remainder, deduct the number of days during that remainder
on which the offender has broken either or both of the relevant
5
conditions.

Step 4

Divide the result by 2.

Step 5

If necessary, round up to the nearest whole number.
10
(3A)
A day of the credit period counts as time served—
(a)
in relation to only one sentence, and
(b)
only once in relation to that sentence.
(3B)
A day of the credit period is not to count as time served as part of any
period of 28 days served by the offender before automatic release (see
15
section 255B(1)).”
(4)
In subsection (8)—
(a)
omit “or (5)”;
(b)
for paragraph (b) substitute—
“(b)
the number of days (if any) which it deducted under
20
each of steps 2 and 3.”
(5)
Omit subsections (9) and (10).
(6)
In subsection (11)—
(a)
for “Subsections (7) to (10) of section 240” substitute “Subsections (7) to
(9), (11) and (12) of section 240ZA”;
25
(b)
in paragraph (b), for “in subsection (8) the reference to subsection (3) of
section 240 is” substitute “in subsection (9) the references to subsections
(3) and (5) of section 240ZA are”.
(7)
In subsection (12), omit the definition of “related offence” and the “and”
preceding it.
30
(8)
In the heading of the section, for “Crediting periods of remand on bail”
substitute “Time remanded on bail to count towards time served”.
92
Amendments consequential on sections 90 and 91
(1)
The Criminal Justice Act 2003 is amended as follows.
(2)
In section 237(1C) (meaning of “fixed-term prisoner”)—
35
(a)
for “section 240” substitute “section 240ZA”;
(b)
after “Armed Forces Act 2006)” insert “or section 240A”.
(3)
Section 241 (effect of direction under section 240 or 240A) is amended as
follows.
(4)
In subsection (1)—
40
(a)
for “to whom a direction under section 240 or 240A relates” substitute
“to whom section 240ZA applies or a direction under section 240A
relates”;

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc
70

(b)
for “specified in the direction” substitute “specified in section 240ZA or
in the direction under section 240A”.
(5)
In subsection (1A), for “section 240 or 240A” substitute “section 240A”.
(6)
In the heading, for “direction under section 240 or 240A” substitute “section
240ZA or direction under section 240A”.
5
(7)
In section 242 (interpretation of sections 240 to 241), in subsections (1) and (2)
and in the heading, for “sections 240” substitute “sections 240ZA”.
(8)
For section 243(2) (persons extradited to the United Kingdom) substitute—
“(2)
In the case of an extradited prisoner, the court must specify in open
court the number of days for which the prisoner was kept in custody
10
while awaiting extradition.
(2A)
Section 240ZA applies to days specified under subsection (2) as if they
were days for which the prisoner was remanded in custody in
connection with the offence or a related offence.”
(9)
In section 246 (power to release prisoners early)—
15
(a)
in subsection (4)(i), for “to whom a direction under section 240 or 240A
relates” substitute “to whom section 240ZA applies or a direction under
section 240A relates”;
(b)
in subsection (4A)(b), for “section 240” substitute “section 240A”.
(10)
In section 330(5) (rules to be subject to affirmative resolution)—
20
(a)
after paragraph (b) insert “or”, and
(b)
omit paragraph (d) and the “or” preceding it.
(11)
In consequence of the amendments made by this section, in the Criminal
Justice and Immigration Act 2008 omit—
(a)
section 21(2), (5) and (7);
25
(b)
section 22(2).
Release
93
Prisoners serving less than 12 months
(1)
After section 243 of the Criminal Justice Act 2003 insert—
“Unconditional release
30
243A
Duty to release prisoners serving less than 12 months
(1)
This section applies to a fixed-term prisoner who is serving a sentence
which is—
(a)
for a term of less than twelve months, and
(b)
imposed in respect of an offence committed on or after 4th April
35
2005.
(2)
As soon as a prisoner to whom this section applies has served the
requisite custodial period for the purposes of this section, it is the duty
of the Secretary of State to release that person unconditionally.
(3)
For the purposes of this section “the requisite custodial period” is—
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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc
71

(a)
in relation to a person serving a sentence of imprisonment for a
term of less than twelve months or a determinate sentence of
detention under section 91 or 96 of the Sentencing Act for such
a term, one-half of the sentence, and
(b)
in relation to a person serving two or more concurrent or
5
consecutive sentences, the period determined under sections
263(2) and 264(2).”
(2)
Schedule 12 (amendments consequential on subsection (1)) has effect.
94
Restrictions on early release subject to curfew
(1)
In section 246 of the Criminal Justice Act 2003 (power to release prisoners on
10
licence), subsection (4) is amended as follows.
(2)
After paragraph (a) insert—
“(aa)
the sentence is for a term of 4 years or more,”.
(3)
In paragraph (g)—
(a)
for “during the currency of the sentence” substitute “at any time”, and
15
(b)
at the end insert “(and the revocation has not been cancelled under
section 255(3))”.
(4)
Omit the “or” at the end of paragraph (h) and after that paragraph insert—
“(ha)
the prisoner has at any time been returned to prison under
section 40 of the Criminal Justice Act 1991 or section 116 of the
20
Sentencing Act, or”.
(5)
After subsection (4) of that section insert—
“(4ZA)
Where subsection (4)(aa) applies to a prisoner who is serving two or
more terms of imprisonment, the reference to the term of the sentence
is—
25
(a)
if the terms are partly concurrent, a reference to the period
which begins when the first term begins and ends when the last
term ends;
(b)
if the terms are to be served consecutively, a reference to the
aggregate of the terms.”
30
(6)
In subsection (6), at the end insert—
““term of imprisonment” includes a determinate sentence of detention
under section 91 of the Sentencing Act or under section 228 of this Act
or a sentence of detention in a young offender institution under section
96 of the Sentencing Act or under section 227 of this Act.”
35
Further release after recall
95
Cancellation of revocation of licence
(1)
After section 254(2) of the Criminal Justice Act 2003 (representations by person
recalled) insert—
“(2A)
The Secretary of State, after considering any representations under
40
subsection (2)(a) or any other matters, may cancel a revocation under
this section.

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc
72

(2B)
The Secretary of State may cancel a revocation under subsection (2A)
only if satisfied that the person recalled has complied with all the
conditions specified in the licence.
(2C)
Where the revocation of a person’s licence is cancelled under
subsection (2A), the person is to be treated as if the recall under
5
subsection (1) had not happened.”
(2)
In section 255(3) of that Act (cancellation of revocation under section 255), for
“subsection (2)(b)” substitute “subsection (2)(a)”.
96
Further release after recall
(1)
For sections 255A to 255D of the Criminal Justice Act 2003 (further release after
10
recall) substitute—
“Further release after recall
255A
Further release after recall: introductory
(1)
This section applies for the purpose of identifying which of sections
255B and 255C governs the further release of a person who has been
15
recalled under section 254.
(2)
The Secretary of State must, on recalling a person other than an
extended sentence prisoner, consider whether the person is suitable for
automatic release.
(3)
For this purpose “automatic release” means release at the end of the
20
period of 28 days beginning with the date on which the person returns
to custody.
(4)
A person is suitable for automatic release only if the Secretary of State
is satisfied that the person will not present a risk of serious harm to
members of the public if released at the end of that period.
25
(5)
The person must be dealt with—
(a)
in accordance with section 255B if suitable for automatic release;
(b)
in accordance with section 255C otherwise.
(6)
For the purposes of this section, a person returns to custody when that
person, having been recalled, is detained (whether or not in prison) in
30
pursuance of the sentence.
(7)
An “extended sentence prisoner” is a prisoner serving an extended
sentence imposed under—
(a)
section 227 or 228 of this Act, or
(b)
section 85 of the Powers of Criminal Courts (Sentencing) Act
35
2000;

and paragraph (b) includes (in accordance with paragraph 1(3) of
Schedule 11 to the Powers of Criminal Courts (Sentencing) Act 2000) a
reference to section 58 of the Crime and Disorder Act 1998.
255B
Automatic release
40
(1)
A prisoner who is suitable for automatic release (“P”) must—