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 5 — Prisoners etc
84

105
Transit of prisoners
In the Repatriation of Prisoners Act 1984, after section 6 insert—
“6A
Transit
(1)
The relevant Minister may issue a transit order where—
(a)
the United Kingdom is a party to international arrangements
5
providing for the transfer between the United Kingdom and a
country or territory outside the British Islands of persons to
whom subsection (2) applies; and
(b)
the relevant Minister has received a request from the
appropriate authority of that country or territory in accordance
10
with those arrangements for the transit of a person to whom
subsection (2) applies through a part of the relevant area.
(2)
A person falls within this subsection if—
(a)
that person is for the time being required to be detained in a
prison, a hospital or any other institution either—
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(i)
by virtue of an order made in the course of the exercise
by a court or tribunal in a country or territory outside
the British Islands of its criminal jurisdiction; or
(ii)
by virtue of any provisions of the law of such a country
or territory which are similar to any of the provisions of
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this Act; and
(b)
except in a case where a transit request is made in the
circumstances described in section 6C(1), that person is present
in a country or territory outside the British Islands.
(3)
Terms used in subsection (2)(a) have the same meaning as in section
25
1(7).
(4)
In this section and sections 6B and 6C “transit order” means an order
issued by the relevant Minister, in respect of a person who has been the
subject of a request within subsection (1)(b), which authorises the
detention of that person in any part of the relevant area at any time
30
when that person is in transit.
(5)
In subsection (4) “detention” includes detention while the person is
being transported from one place to another place within the relevant
area.
(6)
A person may be detained pursuant to a transit order only for as long
35
as is reasonable and necessary to allow the transit to take place.
(7)
In this section and section 6B “relevant Minister” means—
(a)
the Department of Justice in Northern Ireland, in a case where
it is proposed that the person who is the subject of a request
under subsection (1)(b) will transit only through Northern
40
Ireland;
(b)
the Secretary of State, in any other case.
(8)
In this section and sections 6B and 6C “relevant area” means the United
Kingdom except Scotland.
(9)
For the purposes of this section and section 6B a person who is the
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subject of a transit order is “in transit” at any time during the period

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 5 — Prisoners etc
85

beginning with the arrival of that person in the relevant area and
ending with the removal of that person from the relevant area.
6B
Transit: supplementary
(1)
A person who is the subject of a transit order is deemed to be in the legal
custody of the relevant Minister at any time when that person is in
5
transit.
(2)
A constable may for the purposes of a transit order detain a person who
is the subject of that order.
(3)
The relevant Minister may, from time to time, designate any person as
a person who is for the time being authorised for the purposes of a
10
transit order to detain a person under the order.
(4)
A person authorised under subsection (3) has all the powers, authority,
protection and privileges of a constable in any part of the relevant area
in which the person who is the subject of the transit order is for the time
being.
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(5)
If a person who is the subject of a transit order escapes or is unlawfully
at large, that person may be arrested without warrant by a constable.
(6)
In this section and section 6C “constable”, in relation to any part of the
relevant area, means any person who is a constable in that or any other
part of the relevant area or any person who has, under any enactment
20
(including subsection (4) above), the powers of a constable in that or
any other part of the relevant area.
6C
Transit: unscheduled arrivals
(1)
This section applies where—
(a)
a person is being transferred between two countries or
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territories outside the United Kingdom in accordance with
international arrangements between those two countries or
territories providing for the transfer of persons within section
6A(2)(a),
(b)
the United Kingdom is a party to international arrangements of
30
the kind mentioned in section 6A(1)(a) with at least one of those
countries or territories such that the country or territory can
make a request under section 6A(1)(b), and
(c)
the person makes an unscheduled arrival in the relevant area.
(2)
A constable may detain a person to whom subsection (1) applies until
35
the expiry of the period of 72 hours beginning with the person’s arrival
in the relevant area or until a transit order is issued under section 6A in
respect of that person, whichever is the sooner.”

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 6 — Out of court disposals
86

Chapter 6
Out of court disposals
Penalty notices
106
Penalty notices for disorderly behaviour
Schedule 14 (which amends the provision for penalty notices for disorderly
5
behaviour) has effect.
Cautions
107
Conditional cautions: involvement of prosecutors
(1)
The Criminal Justice Act 2003 is amended as follows.
(2)
In section 22(3A) (conditions that may be attached to a conditional caution) for
10
“by a relevant prosecutor” substitute “in the condition”.
(3)
In section 23(2) (relevant prosecutor must decide there is sufficient evidence to
prosecute and that a conditional caution should be given) after “a relevant
prosecutor” insert “or the authorised person”.
(4)
In section 23A(5) (relevant prosecutor must specify amount of financial penalty
15
and how it is to be paid etc) for “a relevant prosecutor must also” substitute
“the condition must”.
(5)
In section 23B (variation of conditions by relevant prosecutor) after “A relevant
prosecutor” insert “or an authorised person”.
(6)
In section 25 (code of practice) in subsection (2)(ga) (Secretary of State’s code
20
of practice may include provision about what a relevant prosecutor may
provide under section 23A(5)(b)) for “by a relevant prosecutor” substitute “in
a condition”.
108
Conditional cautions: removal etc of certain foreign offenders
In section 22 of the Criminal Justice Act 2003 (conditional cautions)—
25
(a)
in subsection (3) (both as originally enacted and as substituted by
section 17 of the Police and Justice Act 2006) (conditions attached to
conditional cautions to have certain objects) for “such a caution”
substitute “any conditional caution”, and
(b)
after subsection (3C) insert—
30
“(3D)
A conditional caution given to a relevant foreign offender may
have conditions attached to it that have one or more of the
objects mentioned in subsection (3E) (whether or not in addition
to conditions with one or more of the objects mentioned in
subsection (3)).
35
(3E)
The objects are—
(a)
bringing about the departure of the relevant foreign
offender from the United Kingdom;

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 6 — Out of court disposals
87

(b)
ensuring that the relevant foreign offender does not
return to the United Kingdom for a period of time.
(3F)
If a relevant foreign offender is given a conditional caution with
a condition attached to it with the object of ensuring that the
offender does not return to the United Kingdom for a period of
5
time, the expiry of that period does not of itself give rise to any
right on the part of the offender to return to the United
Kingdom.
(3G)
In this section “relevant foreign offender” means—
(a)
an offender directions for whose removal from the
10
United Kingdom have been, or may be, given under—
(i)
Schedule 2 to the Immigration Act 1971, or
(ii)
section 10 of the Immigration and Asylum Act
1999, or
(b)
an offender against whom a deportation order under
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section 5 of the Immigration Act 1971 is in force.”
Youth cautions
109
Youth cautions
(1)
Sections 65 (reprimands and warning) and 66 (effect of reprimands and
warnings) of the Crime and Disorder Act 1998 are repealed.
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(2)
Before section 66A of that Act insert—
“Young offenders: youth cautions
66ZA
Youth cautions
(1)
A constable may give a child or young person (“Y”) a caution under this
section (a “youth caution”) if—
25
(a)
the constable decides that there is sufficient evidence to charge
Y with an offence,
(b)
Y admits to the constable that Y committed the offence, and
(c)
the constable does not consider that Y should be prosecuted or
given a youth conditional caution in respect of the offence.
30
(2)
A youth caution given to a person under the age of 17 must be given in
the presence of an appropriate adult.
(3)
If a constable gives a youth caution to a person, the constable must
explain the matters referred to in subsection (4) in ordinary language
to—
35
(a)
that person, and
(b)
where that person is under the age of 17, the appropriate adult.
(4)
Those matters are—
(a)
the effect of subsections (1) to (3) and (5) to (7) of section 66ZB,
and
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(b)
any guidance issued under subsection (4) of that section.

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 6 — Out of court disposals
88

(5)
The Secretary of State must publish, in such manner as the Secretary of
State considers appropriate, guidance as to—
(a)
the circumstances in which it is appropriate to give youth
cautions,
(b)
the places where youth cautions may be given,
5
(c)
the category of constable by whom youth cautions may be
given, and
(d)
the form which youth cautions are to take and the manner in
which they are to be given and recorded.
(6)
No caution other than a youth caution or a youth conditional caution
10
may be given to a child or young person.
(7)
In this Chapter “appropriate adult”, in relation to a child or young
person, means—
(a)
a parent or guardian of the child or young person,
(b)
if the child or young person is in the care of a local authority or
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voluntary organisation, a person representing that authority or
organisation,
(c)
a social worker of a local authority, or
(d)
if no person falling within paragraph (a), (b) or (c) is available,
any responsible person aged 18 or over who is not a police
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officer or a person employed by the police.
66ZB
Effect of youth cautions
(1)
If a constable gives a youth caution to a person, the constable must as
soon as practicable refer the person to a youth offending team.
(2)
Subject to subsection (3), on a referral of a person under subsection (1),
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the youth offending team—
(a)
must assess the person, and
(b)
unless they consider it inappropriate to do so, must arrange for
the person to participate in a rehabilitation programme.
(3)
If the person has not previously been referred under subsection (1) and
30
has not previously been given a youth conditional caution, the youth
offending team—
(a)
may assess the person, and
(b)
may arrange for the person to participate in a rehabilitation
programme.
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(4)
The Secretary of State must publish, in such manner as the Secretary of
State considers appropriate, guidance as to—
(a)
what should be included in a rehabilitation programme
arranged for a person under subsection (2) or (3),
(b)
the manner in which any failure by a person to participate in a
40
programme is to be recorded, and
(c)
the persons to whom any such failure must be notified.
(5)
Subsection (6) applies if—
(a)
a person who has received two or more youth cautions is
convicted of an offence committed within two years beginning
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with the date of the last of those cautions, or

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 6 — Out of court disposals
89

(b)
a person who has received a youth conditional caution followed
by a youth caution is convicted of an offence committed within
two years beginning with the date of the youth caution.
(6)
The court by or before which the person is convicted—
(a)
must not make an order under section 12(1)(b) of the Powers of
5
Criminal Courts (Sentencing) Act 2000 (conditional discharge)
in respect of the offence unless it is of the opinion that there are
exceptional circumstances relating to the offence or the person
that justify it doing so, and
(b)
where it does so, must state in open court that it is of that
10
opinion and its reasons for that opinion.
(7)
There may be cited in criminal proceedings—
(a)
a youth caution given to a person, and
(b)
a report on a failure by a person to participate in a rehabilitation
programme arranged for the person under subsection (2) or (3),
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in the same circumstances as a conviction of the person may be cited.
(8)
In this section “rehabilitation programme” means a programme with
the purpose of rehabilitating participants and preventing them from re-
offending.”
(3)
Schedule 15 (youth cautions: consequential amendments) has effect.
20
(4)
The amendments made by this section and that Schedule do not apply in
relation to an offence committed before they come into force.
(5)
A reprimand or warning of a person under section 65 of the Crime and
Disorder Act 1998, or any caution treated as such by virtue of paragraph 5 of
Schedule 9 to that Act, is to be treated for the purposes of any enactment or
25
instrument as a youth caution given to that person under section 66ZA(1) of
that Act.
(6)
A referral of a person to a youth offending team under section 66(1) of the
Crime and Disorder Act 1998 is to be treated for the purposes of section 66ZB
of that Act as a referral under that section.
30
(7)
A rehabilitation programme provided under section 66 of the Crime and
Disorder Act 1998 is to be treated for the purposes of any enactment or
instrument as provided under section 66ZA of that Act.
110
Youth conditional cautions: previous convictions
In section 66A(1) of the Crime and Disorder Act 1998 (requirements to be met
35
before youth conditional caution may be given) omit paragraph (a) and the
“and” at the end of that paragraph (requirement of no previous convictions).
111
Youth conditional cautions: references to youth offending teams
In section 66A of the Crime and Disorder Act 1998 (youth conditional cautions)
after subsection (6) insert—
40
“(6A)
If an authorised person gives a youth conditional caution to an
offender, the authorised person must as soon as practicable refer the
offender to a youth offending team.”