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Legal Aid, Sentencing and Punishment of Offenders BillPage 90

112 Youth conditional cautions: involvement of prosecutors

(1) The Crime and Disorder Act 1998 is amended as follows.

(2) In section 66A(4) (conditions that may be attached to a youth conditional
caution) for “by a relevant prosecutor” substitute “in the condition”.

(3) 5In section 66B(2) (relevant prosecutor must decide that 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 66C(5) (relevant prosecutor must specify amount of financial penalty
and how it must be paid etc) for “a relevant prosecutor must also” substitute
10“the condition must”.

(5) In section 66D (variation of conditions by relevant prosecutor) after “A relevant
prosecutor” insert “or an authorised person”.

(6) In section 66G (code of practice) in subsection (2)(h) (Secretary of State’s code
of practice may include provision about what a relevant prosecutor may
15provide under section 66C(5)(b)) for “by a relevant prosecutor” substitute “in a
condition”.

CHAPTER 7 Knives and offensive weapons

113 Offences of threatening with article with blade or point or offensive weapon
in public or on school premises

(1) 20In the Prevention of Crime Act 1953, after section 1 (prohibition of the carrying
of offensive weapons without lawful authority or reasonable excuse) insert—

1A Offence of threatening with weapon in public

(1) A person is guilty of an offence if that person—

(a) has an offensive weapon with him or her in a public place,

(b) 25unlawfully and intentionally threatens another person with the
weapon, and

(c) does so in such a way that there is an immediate risk of serious
physical harm to that other person.

(2) For the purposes of this section physical harm is serious if it amounts
30to grievous bodily harm for the purposes of the Offences against the
Person Act 1861.

(3) It is a defence for a person charged with an offence under this section
to prove lawful authority or reasonable excuse for having the weapon
with him or her in the place concerned.

(4) 35In this section “public place” and “offensive weapon” have the same
meaning as in section 1.

(5) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not
exceeding 6 months or to a fine not exceeding the statutory
40maximum, or to both;

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(b) on conviction on indictment, to imprisonment for a term not
exceeding 4 years, or to a fine, or to both.

(6) Where a person aged 18 or over is convicted of an offence under this
section, the court must impose a sentence of imprisonment for a term
5of at least 6 months (with or without a fine) unless the court is of the
opinion that there are particular circumstances which—

(a) relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(7) In relation to times before the coming into force of paragraph 180 of
10Schedule 7 to the Criminal Justice and Court Services Act 2000, the
reference in subsection (6) to a sentence of imprisonment, in relation to
an offender aged under 21 at the time of conviction, is to be read as a
reference to a sentence of detention in a young offender institution.

(2) In the Criminal Justice Act 1988 after section 139A (offence of having article
15with blade or point or offensive weapon on school premises) insert—

139AA Offence of threatening with article with blade or point or offensive
weapon

(1) A person is guilty of an offence if that person—

(a) has an article to which this section applies with him or her in a
20public place or on school premises,

(b) unlawfully and intentionally threatens another person with the
article, and

(c) does so in such a way that there is an immediate risk of serious
physical harm to that other person.

(2) 25In relation to a public place this section applies to an article to which
section 139 applies.

(3) In relation to school premises this section applies to each of these—

(a) an article to which section 139 applies;

(b) an offensive weapon within the meaning of section 1 of the
30Prevention of Crime Act 1953.

(4) For the purposes of this section physical harm is serious if it amounts
to grievous bodily harm for the purposes of the Offences against the
Person Act 1861.

(5) It is a defence for a person charged with an offence under this section
35to prove good reason or lawful authority for having the article with him
or her in the place or on the premises concerned.

(6) Without prejudice to the generality of subsection (5), it is a defence for
a person charged with an offence under this section—

(a) in any case, to prove that that person had the article with him or
40her for use at work, for religious reasons, or as part of a national
costume;

(b) in a case relating to school premises, to prove that that person
had the article with him or her for educational purposes.

(7) In this section—

Legal Aid, Sentencing and Punishment of Offenders BillPage 92

(8) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not
exceeding 6 months or to a fine not exceeding the statutory
maximum, or to both;

(b) 5on conviction on indictment, to imprisonment for a term not
exceeding 4 years, or to a fine, or to both.

(9) Where a person aged 18 or over is convicted of an offence under this
section, the court must impose a sentence of imprisonment for a term
of at least 6 months (with or without a fine) unless the court is of the
10opinion that there are particular circumstances which—

(a) relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(10) In relation to times before the coming into force of paragraph 180 of
Schedule 7 to the Criminal Justice and Court Services Act 2000, the
15reference in subsection (9) to a sentence of imprisonment, in relation to
an offender aged under 21 at the time of conviction, is to be read as a
reference to a sentence of detention in a young offender institution.

(3) Schedule 16 (minor and consequential amendments) has effect.

Part 4 20Final provisions

114 Power to make consequential and supplementary provision etc

(1) The Lord Chancellor or the Secretary of State may by regulations make
consequential, supplementary, incidental or transitional provision in relation
to any provision of Parts 1 to 3 of this Act.

(2) 25The regulations may, in particular—

(a) amend, repeal, revoke or otherwise modify legislation, and

(b) include transitory or saving provision.

(3) Regulations made under this section in relation to a provision of section 71
may, in particular, include provision amending any legislation for the purpose
30of providing—

(a) that a term of imprisonment may be imposed on summary conviction
for an offence under the law of England and Wales;

(b) that the maximum term of imprisonment that may be imposed on
summary conviction for an offence under the law of England and
35Wales is 6 months or a period of less than 6 months.

(4) Regulations under this section are to be made by statutory instrument.

(5) A statutory instrument containing regulations under this section is subject to
annulment in pursuance of a resolution of either House of Parliament, subject
to subsection (6).

(6) 40A statutory instrument containing regulations under this section that amend or
repeal an Act (whether alone or with other provision) may not be made unless
a draft of the instrument has been laid before, and approved by a resolution of,
each House of Parliament.

(7) In this section—

115 Financial provision

There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown by virtue of this Act, and

(b) 10any increase attributable to this Act in the sums payable under any other Act
out of money so provided.

116 Commencement

(1) The provisions of this Act come into force on such day as the Lord Chancellor
or the Secretary of State may appoint by order, subject to subsection (2).

(2) 15This Part comes into force on the day on which this Act is passed.

(3) An order under this section is to be made by statutory instrument.

(4) An order under this section may—

(a) appoint different days for different purposes, and

(b) make transitional, transitory or saving provision.

(5) 20An order under this section bringing into force section 107, 108, 110, 111 or 112
may appoint different days for different areas.

117 Extent

(1) This Act extends to England and Wales only, subject to subsections (2) to (4).

(2) The following provisions extend to England and Wales and Northern
25Ireland—

(a) section 21,

(b) section 32, and

(c) sections 104 and 105.

(3) The following provisions extend to England and Wales, Scotland and Northern
30Ireland—

(a) Schedule 7 (and section 52(2)), and

(b) this Part.

(4) An amendment, repeal or revocation made by this Act has the same extent as
the provision amended, repealed or revoked.

118 35Channel Islands, Isle of Man and British overseas territories

(1) The power conferred by section 9(4) of the Repatriation of Prisoners Act 1984
(power to extend to Channel Islands, Isle of Man and British overseas
territories) is exercisable in relation to any amendment of that Act that is made
by or under this Act.

Legal Aid, Sentencing and Punishment of Offenders BillPage 94

(2) The power conferred by section 338 of the Criminal Justice Act 2003 (power to
extend to Channel Islands and Isle of Man) is exercisable in relation to any
amendment of that Act that is made by or under this Act.

(3) In section 384 of the Armed Forces Act 2006 (extent to Channel Islands, Isle of
5Man and British overseas territories) references to that Act include that Act as
amended by or under this Act.

119 Short title

This Act may be cited as the Legal Aid, Sentencing and Punishment of
Offenders Act 2011.

Legal Aid, Sentencing and Punishment of Offenders BillPage 95

SCHEDULES

Section 8

SCHEDULE 1 Civil legal services

Part 1 5Services

Care, supervision and protection of children

1 (1) Civil legal services provided in relation to—

(a) orders under section 25 of the Children Act 1989 (“the 1989 Act”)
(secure accommodation);

(b) 10orders under Part 4 of the 1989 Act (care and supervision);

(c) orders under Part 5 of the 1989 Act (protection of children);

(d) approval by a court under paragraph 19 of Schedule 2 to the 1989 Act
(arrangements to assist children to live abroad);

(e) parenting orders under section 8 of the Crime and Disorder Act 1998
15(“1998 Act”);

(f) child safety orders under section 11 of the 1998 Act;

(g) orders for contact under section 26 of the Adoption and Children Act
2002 (“the 2002 Act”);

(h) applications for leave of the court to remove a child from a person’s
20custody under section 36 of the 2002 Act;

(i) placement orders, recovery orders or adoption orders under Chapter
3 of Part 1 of the 2002 Act (see sections 21, 41 and 46 of that Act);

(j) orders under section 84 of the 2002 Act (parental responsibility prior
to adoption abroad);

(k) 25any other orders or procedures under an enactment for the care,
supervision or protection of children that are prescribed for the
purposes of this paragraph.

(2) Civil legal services provided in relation to an order under an enactment
made—

(a) 30as an alternative to an order mentioned in, or prescribed under,
paragraph 1, or

(b) in proceedings heard together with proceedings relating to such an
order.

Exclusions

(3) 35Sub-paragraphs (1) and (2) are subject to the exclusions in Parts 2 and 3 of
this Schedule.

Definitions

Legal Aid, Sentencing and Punishment of Offenders BillPage 96

(4) In this paragraph “children” means persons under the age of 18.

Special educational needs

2 (1) Civil legal services provided in relation to matters arising under Part 4 of the
Education Act 1996 (special educational needs).

5Exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.

Abuse of child or vulnerable adult

3 (1) Civil legal services provided in relation to abuse of an individual that took
10place at a time when the individual was a child or vulnerable adult, but only
where the services are provided—

(a) to the individual, or

(b) for the purposes of a claim under the Fatal Accidents Act 1976 for the
benefit of the individual’s dependants.

15General exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule, with
the exception of paragraphs 1, 3, 8 and 12 of that Part.

(3) But the exclusions described in sub-paragraph (2) are subject to the
exception in sub-paragraph (4).

(4) 20The services described in sub-paragraph (1) include services provided in
relation to negligence other than clinical negligence.

(5) Sub-paragraph (1) is subject to the exclusion in Part 3 of this Schedule.

Specific exclusion

(6) The services described in sub-paragraph (1) do not include services
25provided in relation to a matter arising under a family enactment.

Definitions

(7) In this paragraph—

Working with children and vulnerable adults

4 (1) Civil legal services provided in relation to—

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(a) the inclusion of a person in a barred list or the removal of a person
from a barred list;

(b) a disqualification order under section 28, 29 or 29A of the Criminal
Justice and Court Services Act 2000 (disqualification from working
5with children);

(c) a direction under section 142 of the Education Act 2002 (prohibition
from teaching etc).

Exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
10Schedule.

Definitions

(3) In this paragraph “barred list” means a list maintained under—

(a) section 2 of the Safeguarding Vulnerable Groups Act 2006 (persons
barred from regulated activities relating to children or vulnerable
15adults);

(b) section 81 of the Care Standards Act 2000;

(c) section 1 of the Protection of Children Act 1999.

Mental health and mental capacity

5 (1) Civil legal services provided in relation to matters arising under—

(a) 20the Mental Health Act 1983;

(b) paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act
1984;

(c) the Mental Capacity Act 2005.

General exclusions

(2) 25Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.

Specific exclusion

(3) The services described in sub-paragraph (1) do not include services
provided in relation to—

(a) 30the creation of lasting powers of attorney under the Mental Capacity
Act 2005, or

(b) the making of advance decisions under that Act.

(4) Sub-paragraph (3) does not exclude services provided in relation to
determinations and declarations by a court under the Mental Capacity Act
352005 as to the validity, meaning, effect or applicability of—

(a) a lasting power of attorney that has been created, or

(b) an advance decision that has been made.

Community care

6 (1) Civil legal services provided in relation to community care services.

40Exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.

Definitions

Legal Aid, Sentencing and Punishment of Offenders BillPage 98

(3) In this paragraph—

Inherent jurisdiction of High Court in relation to children and vulnerable adults

7 (1) Civil legal services provided in relation to the inherent jurisdiction of the
45High Court in relation to children and vulnerable adults.

Exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.

Legal Aid, Sentencing and Punishment of Offenders BillPage 99

Definitions

(3) In this paragraph—

5Unlawful removal of children from the United Kingdom

8 (1) Civil legal services provided to an individual in relation to the following
orders and requirements where the individual is seeking to prevent the
unlawful removal of a related child from the United Kingdom—

(a) a prohibited steps order or specific issue order (as defined in section
108(1) of the Children Act 1989);

(b) an order under section 33 of the Family Law Act 1986 for disclosure
of the child’s whereabouts;

(c) a requirement under section 37 of that Act to surrender a passport
issued to, or containing particulars of, the child.

15Exclusions

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this
Schedule.

Definitions

(3) For the purposes of this paragraph, a child is related to an individual if the
20individual is the child’s parent or has parental responsibility for the child.

(4) In this paragraph “child” means a person under the age of 18.

Family homes and domestic violence

9 (1) Civil legal services provided in relation to home rights, occupation orders
and non-molestation orders under Part 4 of the Family Law Act 1996.

(2) 25Civil legal services provided in relation to the following in circumstances
arising out of a family relationship—

(a) an injunction following assault, battery or false imprisonment;

(b) the inherent jurisdiction of the High Court to protect an adult.

Exclusions

(3) 30Sub-paragraphs (1) and (2) are subject to—

(a) the exclusions in Part 2 of this Schedule, with the exception of
paragraphs 3 and 11 of that Part, and

(b) the exclusion in Part 3 of this Schedule.

Definitions

(4) 35For the purposes of this paragraph—

(a) there is a family relationship between two people if they are
associated with each other, and

(b) “associated” has the same meaning as in Part 4 of the Family Law Act
1996 (see section 62 of that Act).

(5) 40For the purposes of this paragraph, the Lord Chancellor may by regulations
make provision about when circumstances arise out of a family relationship.

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