Legal Aid, Sentencing and Punishment of Offenders Bill (HC Bill 205)

Legal Aid, Sentencing and Punishment of Offenders BillPage 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
5240ZA or direction under section 240A”.

(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
10court the number of days for which the prisoner was kept in custody
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) 15In section 246 (power to release prisoners early)—

(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) 20In section 330(5) (rules to be subject to affirmative resolution)—

(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) 25section 21(2), (5) and (7);

(b) section 22(2).

Release

93 Prisoners serving less than 12 months

(1) After section 243 of the Criminal Justice Act 2003 insert—

30Unconditional release
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) 35imposed in respect of an offence committed on or after 4th April
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) 40For the purposes of this section “the requisite custodial period” is—

Legal Aid, Sentencing and Punishment of Offenders BillPage 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) 5in relation to a person serving two or more concurrent or
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) 10In section 246 of the Criminal Justice Act 2003 (power to release prisoners on
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) 15for “during the currency of the sentence” substitute “at any time”, and

(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
20section 40 of the Criminal Justice Act 1991 or section 116 of the
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
25is—

(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
30aggregate of the terms.

(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
    3596 of the Sentencing Act or under section 227 of this Act.”

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) 40The Secretary of State, after considering any representations under
subsection (2)(a) or any other matters, may cancel a revocation under
this section.

Legal Aid, Sentencing and Punishment of Offenders BillPage 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
5subsection (2A), the person is to be treated as if the recall under
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) 10For sections 255A to 255D of the Criminal Justice Act 2003 (further release after
recall) substitute—

Further release after recall
255A Further release after recall: introductory

(1) This section applies for the purpose of identifying which of sections
15255B and 255C governs the further release of a person who has been
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) 20For this purpose “automatic release” means release at the end of the
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
25members of the public if released at the end of that period.

(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
30person, having been recalled, is detained (whether or not in prison) in
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) 35section 85 of the Powers of Criminal Courts (Sentencing) Act
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 40 Automatic release

(1) A prisoner who is suitable for automatic release (“P”) must—

Legal Aid, Sentencing and Punishment of Offenders BillPage 73

(a) on return to prison, be informed that he or she will be released
under this section (subject to subsection (9)), and

(b) at the end of the 28 day period mentioned in section 255A(3), be
released by the Secretary of State on licence under this Chapter
5(unless P is released before that date under subsection (2) or (5)).

(2) The Secretary of State may, at any time after P is returned to prison,
release P again on licence under this Chapter.

(3) The Secretary of State must not release P under subsection (2) unless the
Secretary of State is satisfied that it is not necessary for the protection of
10the public that P should remain in prison until the end of the period
mentioned in subsection (1)(b).

(4) If P makes representations under section 254(2) before the end of that
period, the Secretary of State must refer P’s case to the Board on the
making of those representations.

(5) 15Where on a reference under subsection (4) the Board recommends P’s
immediate release on licence under this Chapter, the Secretary of State
must give effect to the recommendation.

(6) Subsection (7) applies if P is recalled before the date on which P would
(but for the earlier release) have served the requisite custodial period
20for the purposes of section 243A or (as the case may be) section 244.

(7) Where this subsection applies—

(a) if P is released under this section before that date, P’s licence
must include a curfew condition complying with section 253,
and

(b) 25P is not to be so released (despite subsections (1)(b) and (5))
unless the Secretary of State is satisfied that arrangements are in
place to enable that condition to be complied with.

(8) Subsection (9) applies if, after P has been informed that he or she will
be released under this section, the Secretary of State receives further
30information about P (whether or not relating to any time before P was
recalled).

(9) If the Secretary of State determines, having regard to that and any other
relevant information, that P is not suitable for automatic release—

(a) the Secretary of State must inform P that he or she will not be
35released under this section, and

(b) section 255C applies to P as if the Secretary of State had
determined, on P’s recall, that P was not suitable for automatic
release.

255C Extended sentence prisoners and those not suitable for automatic
40release

(1) This section applies to a prisoner (“P”) who—

(a) is an extended sentence prisoner, or

(b) is not considered to be suitable for automatic release.

(2) The Secretary of State may, at any time after P is returned to prison,
45release P again on licence under this Chapter.

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(3) The Secretary of State must not release P under subsection (2) unless the
Secretary of State is satisfied that it is not necessary for the protection of
the public that P should remain in prison.

(4) The Secretary of State must refer P’s case to the Board—

(a) 5if P makes representations under section 254(2) before the end
of the period of 28 days beginning with the date on which P
returns to custody, on the making of those representations, or

(b) if, at the end of that period, P has not been released under
subsection (2) and has not made such representations, at that
10time.

(5) Where on a reference under subsection (4) the Board recommends P’s
immediate release on licence under this Chapter, the Secretary of State
must give effect to the recommendation.

(6) Subsection (7) applies if P is recalled before the date on which P would
15(but for the earlier release) have served the requisite custodial period
for the purposes of section 243A or (as the case may be) section 244.

(7) Where this subsection applies—

(a) if P is released under this section before that date, P’s licence
must include a curfew condition complying with section 253,
20and

(b) P is not to be so released (despite subsection (5)) unless the
Secretary of State is satisfied that arrangements are in place to
enable that condition to be complied with.

(8) For the purposes of this section, P returns to custody when P, having
25been recalled, is detained (whether or not in prison) in pursuance of the
sentence.

(2) After section 244(1) of that Act (duty to release certain prisoners on licence at
half-way point) insert—

(1A) Subsection (1) does not apply if the prisoner has been released on
30licence under section 246 and recalled under section 254 (provision for
the release of such persons being made by sections 255B and 255C).

(3) In the heading of section 253 of that Act (curfew conditions) after “section 246”
insert “, 255B or 255C”.

(4) In section 256(1) of that Act (review by the Board), for “section 255B(4), 255C(4)
35or 255D(1)” substitute “section 255B(4) or 255C(4)”.

(5) In consequence of the amendments made by this section, omit section 29(2) and
(3) of the Criminal Justice and Immigration Act 2008.

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Other provisions about release

97 Supervision of young offenders after release

After section 256A of the Criminal Justice Act 2003 insert—

Supervision of young offenders after release
256B 5Supervision of young offenders after release

(1) This section applies where a person (“the offender”) is released under
this Chapter from one of the following terms if the term is for less than
12 months—

(a) a term of detention in a young offender institution;

(b) 10a term of detention under section 91 of the Sentencing Act;

(c) a term of detention under section 209 of the Armed Forces Act
2006.

(2) The offender is to be under the supervision of—

(a) an officer of a provider of probation services,

(b) 15a social worker of a local authority, or

(c) if the offender is under the age of 18 years at the date of release,
a member of the youth offending team.

(3) Where the supervision is to be provided by an officer of a provider of
probation services, the officer must be an officer acting in the local
20justice area in which the offender resides for the time being.

(4) Where the supervision is to be provided by—

(a) a social worker of a local authority, or

(b) a member of a youth offending team,

the social worker or member must be a social worker of, or a member
25of a youth offending team established by, the local authority within
whose area the offender resides for the time being.

(5) The supervision period begins on the offender’s release and ends three
months later (whether or not the offender is detained under section
256C or otherwise during that period).

(6) 30During the supervision period, the offender must comply with such
requirements, if any, as may for the time being be specified in a notice
from the Secretary of State.

(7) The requirements that may be specified in a notice under subsection (6)
include—

(a) 35requirements for securing the electronic monitoring of the
offender’s compliance with any other requirements specified in
the notice;

(b) requirements for securing the electronic monitoring of the
offender’s whereabouts (otherwise than for the purpose of
40securing compliance with requirements specified in the notice);

(c) in the circumstances mentioned in subsection (8), requirements
to provide, when instructed to do so by an officer of a provider
of probation services or a person authorised by the Secretary of
State, any sample mentioned in the instruction for the purpose

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of ascertaining whether the offender has any specified Class A
drug in his or her body.

(8) The circumstances referred to in subsection (7)(c) are that—

(a) the offender has attained the age of 18 years;

(b) 5the offender’s term of detention was imposed for a trigger
offence; and

(c) the requirements to provide samples are being imposed for the
purpose of determining whether the offender is complying with
any other requirements specified in the notice.

(9) 10The function of giving such an instruction as is mentioned in subsection
(7)(c) must be exercised in accordance with guidance given from time
to time by the Secretary of State; and the Secretary of State may make
rules about the requirements that may be imposed by virtue of
subsection (7) and the provision of samples in pursuance of such an
15instruction.

(10) In this section “specified Class A drug” and “trigger offence” have the
same meaning as in Part 3 of the Criminal Justice and Court Services
Act 2000.

256C Breach of supervision requirements

(1) 20Where an offender is under supervision under section 256B and it
appears on information to a justice of the peace that the offender has
failed to comply with requirements under section 256B(6), the justice
may—

(a) issue a summons requiring the offender to appear at the place
25and time specified in the summons, or

(b) if the information is in writing and on oath, issue a warrant for
the offender’s arrest.

(2) Any summons or warrant issued under this section must direct the
offender to appear or be brought—

(a) 30before a court acting for the local justice area in which the
offender resides, or

(b) if it is not known where the offender resides, before a court
acting for same local justice area as the justice who issued the
summons or warrant.

(3) 35Where the offender does not appear in answer to a summons issued
under subsection (1)(a), the court may issue a warrant for the offender’s
arrest.

(4) If it is proved to the satisfaction of the court that the offender has failed
to comply with requirements under section 256B(6), the court may—

(a) 40order the offender to be detained, in prison or such youth
detention accommodation as the Secretary of State may
determine, for such period, not exceeding 30 days, as the court
may specify, or

(b) impose on the offender a fine not exceeding level 3 on the
45standard scale.

(5) An offender detained in pursuance of an order under subsection (4)(a)
is to be regarded as being in legal custody.

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(6) A fine imposed under subsection (4)(b) is to be treated, for the purposes
of any enactment, as being a sum adjudged to be paid by a conviction.

(7) An offender may appeal to the Crown Court against any order made
under subsection (4)(a) or (b).

(8) 5In this section “court” means—

(a) if the offender has attained the age of 18 years at the date of
release, a magistrates’ court other than a youth court;

(b) if the offender is under the age of 18 years at the date of release,
a youth court.

98 10Miscellaneous amendments relating to release and recall

(1) The Criminal Justice Act 2003 is amended as follows.

(2) Omit section 248(2) (Secretary of State to consult Board before releasing
extended sentence prisoner on compassionate grounds).

(3) In section 260(5) (duties and powers remaining exercisable in relation to
15persons removed from prison), after “244” insert “, 247”.

(4) In section 261(5) (re-entry to UK of offender removed early: re-release), after
“sentence expiry date,” insert—

(a) if the person is serving an extended sentence imposed under
section 227 or 228, section 247 has effect in relation to that
20person as if the reference to one-half of the appropriate
custodial term were a reference to the further custodial period;

(b) in any other case,.

(5) In section 261(6) (re-entry to UK of offender removed early: definitions), in the
definition of “requisite custodial period”, after the words “requisite custodial
25period” insert—

  • “( a)

    in relation to a prisoner serving an extended sentence
    imposed under section 227 or 228, means one-half of the
    appropriate custodial term (determined by the court
    under that section);

    (ii)

    30in any other case,.

99 Repeal of uncommenced provisions

(1) This section repeals certain provisions which have not been commenced.

(2) Omit section 266 of the Criminal Justice Act 2003 (which amends section 64 of
the Criminal Justice and Court Services Act 2000 in relation to drug testing
35requirements).

(5) Omit section 34 of the Police and Justice Act 2006 (which makes amendments
of Part 12 of the Criminal Justice Act 2003 relating to imprisonment for bail
offences).

(6) Omit the following provisions of the Criminal Justice and Immigration Act
402008 (which relate to the early release of persons with a settled intention of
residing permanently outside the UK)—

(a) section 33(2), (4), (7) and (8) (amendments of the Criminal Justice Act
1991);

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(b) section 34(2), (4)(b), (7) and (10) (amendments of the Criminal Justice
Act 2003).

(7) In Schedule 8 to the Crime and Disorder Act 1998 (minor and consequential
amendments) omit—

(a) 5paragraph 86 (amendments of section 41 of the Criminal Justice Act
1991);

(b) paragraph 90 (amendment of section 47 of that Act).

Life sentence prisoners

100 Removal of prisoners from the United Kingdom

10After section 32 of the Crime (Sentences) Act 1997 insert—

Persons liable to removal from the United Kingdom
32A Removal of prisoners liable to removal from United Kingdom

(1) Where P—

(a) is a life prisoner in respect of whom a minimum term order has
15been made, and

(b) is liable to removal from the United Kingdom,

the Secretary of State may remove P from prison under this section at
any time after P has served the relevant part of the sentence (whether
or not the Parole Board has directed P’s release under section 28).

(2) 20But if P is serving two or more life sentences—

(a) this section does not apply to P unless a minimum term order
has been made in respect of each of those sentences; and

(b) the Secretary of State may not remove P from prison under this
section until P has served the relevant part of each of them.

(3) 25If P is removed from prison under this section—

(a) P is so removed only for the purpose of enabling the Secretary
of State to remove P from the United Kingdom under powers
conferred by—

(i) Schedule 2 or 3 to the Immigration Act 1971, or

(ii) 30section 10 of the Immigration and Asylum Act 1999, and

(b) so long as remaining in the United Kingdom, P remains liable to
be detained in pursuance of the sentence.

(4) So long as P, having been removed from prison under this section,
remains in the United Kingdom but has not been returned to prison,
35any duty or power of the Secretary of State under section 28 or 30 is
exercisable in relation to P as if P were in prison.

(5) In this section—

  • “liable to removal from the United Kingdom” has the meaning
    given by section 259 of the Criminal Justice Act 2003;

  • 40“the relevant part” has the meaning given by section 28.

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32B Re-entry into United Kingdom of offender removed from prison

(1) This section applies if P, having been removed from prison under
section 32A, is removed from the United Kingdom.

(2) If P enters the United Kingdom—

(a) 5P is liable to be detained in pursuance of the sentence from the
time of P’s entry into the United Kingdom;

(b) if no direction was given by the Parole Board under subsection
(5) of section 28 before P’s removal from prison, that section
applies to P;

(c) 10if such a direction was given before that removal, P is to be
treated as if P had been recalled to prison under section 32.

(3) A person who is liable to be detained by virtue of subsection (2)(a) is, if
at large, to be taken for the purposes of section 49 of the Prison Act 1952
(persons unlawfully at large) to be unlawfully at large.

(4) 15Subsection (2)(a) does not prevent P’s further removal from the United
Kingdom.

Application and transitional provision

101 Application and transitional etc provision

Schedule 13 (provision about the application of sections 90 to 100 and
20transitional and transitory provision) has effect.

Restatement of earlier enactments and transitional provisions

102 Power to restate earlier enactments and existing transitional provisions

(1) This section applies to—

(a) an order under section 336(3) of the Criminal Justice Act 2003 which
25brings into force any provision of Chapter 6 of Part 12 of that Act (“the
2003 Act”),

(b) an order under that section which brings into force the repeal of any
provision of Part 2 of the Criminal Justice Act 1991, and

(c) an order under section 153(7) of the Criminal Justice and Immigration
30Act 2008 (“the 2008 Act”) which brings into force any provision
amending or repealing any provision of Chapter 6 of Part 12 of the 2003
Act.

(2) Such an order may—

(a) amend or revoke any transitory, transitional or saving provision made
35by a previous order;

(b) restate (with or without amendment) any provision so revoked.

(3) The powers conferred by—

(a) section 330(4) of the 2003 Act and section 153(8)(b) of the 2008 Act
(power to make transitory, transitional and saving provision etc), and

(b) 40subsection (2)(b),

may be exercised by amending or repealing any provision of Chapter 6 of Part
12 of the 2003 Act.