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Notices of Amendments: 27 October 2011                  

3670

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

“232A

Certificates of conviction

 

    

Where—

 

(a)    

on any date after the commencement of Schedule 15B a

 

person is convicted in England and Wales of an offence listed

 

in that Schedule, and

 

(b)    

the court by or before which the person is so convicted states

 

in open court that the person has been convicted of such an

 

offence on that date, and

 

(c)    

that court subsequently certifies that fact,

 

    

that certificate is evidence, for the purposes of section 224A, that the

 

person was convicted of such an offence on that date.”

 

21         

In section 305(4) (interpretation of Part 12) after paragraph (ba) insert—

 

“(bb)    

a sentence falls to be imposed under section 224A if the court

 

is obliged to pass a sentence of imprisonment for life under

 

that section,”.

 

Coroners and Justice Act 2009 (c. 25)

 

22         

In section 125(6) of the Coroners and Justice Act 2009 (sentencing guidelines:

 

duty of court) after paragraph (d) insert—

 

“(da)    

section 224A of that Act (life sentence for second listed

 

offence for certain dangerous offenders);”.

 

Part 2

 

Transitory provision

 

23  (1)  

In relation to any time before the coming into force of section 61 of the

 

Criminal Justice and Court Services Act 2000 (abolition of sentences of

 

detention in a young offender institution, custody for life etc), Part 12 of the

 

Criminal Justice Act 2003 (sentencing) has effect with the following

 

modifications.

 

      (2)  

In section 224A (life sentence for second listed offence)—

 

(a)    

in subsection (2), after “imprisonment for life” insert “or, in the case

 

of a person aged at least 18 but under 21, custody for life”, and

 

(b)    

in subsection (3), after “more” insert “or, if the person is aged at least

 

18 but under 21, a sentence of detention in a young offender institution

 

for such a period”.’.

 



 
 

Notices of Amendments: 27 October 2011                  

3671

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

Secretary Kenneth Clarke

 

NS6

 

To move the following Schedule:—

 

‘New extended sentences: consequential and transitory provision

 

Part 1

 

Consequential provision

 

Juries Act 1974 (c. 23)

 

1          

In Part 2 of Schedule 1 to the Juries Act 1974 (persons disqualified from jury

 

service) in paragraph 6(d), before “227” insert “226A, 226B,”.

 

Rehabilitation of Offenders Act 1974 (c. 53)

 

2          

In section 5 of the Rehabilitation of Offenders Act 1974 (sentences excluded

 

from rehabilitation under that Act) in subsection (1)(f), before “227” insert

 

“226A, 226B,”.

 

Criminal Justice Act 1982 (c. 48)

 

3          

In section 32 of the Criminal Justice Act 1982 (early release of prisoners) in

 

subsection (1)(a), before “227” insert “226A or”.

 

Road Traffic Offenders Act 1988 (c. 53)

 

4          

In section 35A of the Road Traffic Offenders Act 1988 (extension of

 

disqualification where custodial sentence imposed as well as driving

 

disqualification) in subsection (4) after paragraph (d) insert—

 

“(da)    

where section 226A of that Act (extended sentence for certain

 

violent or sexual offences: persons 18 or over) applies in

 

relation to the custodial sentence, a period equal to two-thirds

 

of the term imposed pursuant to section 226A(5)(a) of that Act

 

after that term has been reduced by any relevant discount;

 

(db)    

where section 226B of that Act (extended sentence for certain

 

violent or sexual offences: persons under 18) applies in

 

relation to the custodial sentence, a period equal to two-thirds

 

of the term imposed pursuant to section 226B(3)(a) of that Act

 

after that term has been reduced by any relevant discount;”.

 

Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

 

5          

The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.

 

6          

In section 76 (meaning of “custodial sentence”) in subsection (1)(bc) after

 

“section” insert “226B or”.

 

7    (1)  

Section 99 (conversion of sentence of detention to sentence of imprisonment)

 

is amended as follows.

 

      (2)  

In subsection (3), omit the words from “; and” to the end.

 

      (3)  

After that subsection insert—

 

“(3A)    

Where the Secretary of State gives a direction under subsection (1)

 

above in relation to an offender serving an extended sentence of

 

detention imposed under Chapter 5 of Part 12 of the Criminal Justice

 

Act—


 
 

Notices of Amendments: 27 October 2011                  

3672

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

(a)    

if the sentence was imposed under section 226B of that Act,

 

the offender shall be treated as if the offender had been

 

sentenced under section 226A of that Act, and

 

(b)    

if the sentence was imposed under section 228 of that Act, the

 

offender shall be treated as if the offender had been sentenced

 

under section 227 of that Act.”

 

      (4)  

In subsection (5)(c), after “section” insert “226B or”.

 

8          

In section 100 (offenders under 18: detention and training orders) in subsection

 

(1) after “226” insert “, 226B”.

 

9          

In section 106A(1) (interaction of detention and training orders with sentences

 

of detention), in paragraph (b) of the definition of “sentence of detention”, after

 

“section” insert “226B or”.

 

Criminal Justice and Court Services Act 2000 (c. 43)

 

10         

The Criminal Justice and Court Services Act 2000 is amended as follows.

 

11         

In section 62 (release on licence etc: conditions as to monitoring) in subsection

 

(5)(f), after “226” insert “, 226B”.

 

12         

In section 64 (release on licence: drug testing requirements) in subsection

 

(5)(f), after “226” insert “, 226B”.

 

Sexual Offences Act 2003 (c. 42)

 

13         

In section 131 of the Sexual Offences Act 2003 (young offenders: application),

 

in paragraph (l), before “228” insert “226B or”.

 

Criminal Justice Act 2003 (c. 44)

 

14         

The Criminal Justice Act 2003 is amended as follows.

 

15         

In section 153 (length of discretionary custodial sentences: general provision)

 

in subsection (2) before “227(2)” insert “226A(4), 226B(2)”.

 

16         

In section 156 (pre-sentence reports and other requirements) in subsection

 

(3)(a) after “226(1)(b),” insert “section 226A(1)(b), section 226B(1)(b)”.

 

17         

In section 235 (detention under sections 226 and 228) after “226” insert “,

 

226B”.

 

18         

In the heading of that section after “226” insert “, 226B”.

 

19         

In section 327 (arrangements for assessing etc risks posed by certain offenders:

 

interpretation) in subsection (3)(b)(vi) after “section” insert “226B or”.

 

Offender Management Act 2007 (c. 21)

 

20  (1)  

Section 28 of the Offender Management Act 2007 (application of polygraph

 

conditions for certain offenders released on licence) is amended as follows.

 

      (2)  

In subsection (3)(a) after “section” insert “226A or”.

 

      (3)  

In subsection (3)(f) after “226” insert “, 226B”.

 

Part 2

 

Transitory provision

 

21  (1)  

In relation to any time before the coming into force of section 61 of the

 

Criminal Justice and Court Services Act 2000 (abolition of sentences of

 

detention in a young offender institution, custody for life etc), Chapter 5 of Part

 

12 of the Criminal Justice Act 2003 (sentencing: dangerous offenders) has

 

effect with the modifications in sub-paragraphs (2) and (3).


 
 

Notices of Amendments: 27 October 2011                  

3673

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

      (2)  

In section 226A (extended sentence for certain violent or sexual offences:

 

persons 18 or over), at the end insert—

 

“(12)    

In the case of a person aged at least 18 but under 21, this section has

 

effect as if—

 

(a)    

the reference in subsection (1)(c) to imprisonment for life

 

were to custody for life, and

 

(b)    

other references to imprisonment (including in the expression

 

“extended sentence of imprisonment”) were to detention in a

 

young offender institution.”

 

      (3)  

In section 226B (mandatory extended sentence for certain violent or sexual

 

offences: persons under 18), in subsection (7), for “18” substitute “21”.

 

22  (1)  

In relation to any time before the repeal of section 30 of the Criminal Justice

 

and Court Services Act 2000 (protection of children: supplemental) by

 

Schedule 10 to the Safeguarding Vulnerable Groups Act 2006, that section has

 

effect with the modification in sub-paragraph (2).

 

      (2)  

In subsection (1), in paragraph (dd) of the definition of “qualifying sentence”,

 

after “226” insert “, 226B”.’.

 


 

Secretary Kenneth Clarke

 

NS7

 

To move the following Schedule:—

 

‘Release of new extended sentence prisoners: consequential provision

 

1          

Chapter 6 of Part 12 of the Criminal Justice Act 2003 (sentencing: release and

 

recall) (as amended by Chapter 4 of Part 3 of this Act) is amended as follows.

 

2          

In section 237 (meaning of “fixed-term prisoner” etc), in subsection (1)(b),

 

before “228” insert “226B”.

 

3          

In section 238 (power of court to recommend licence conditions), in subsection

 

(4), after “Sentencing Act” insert “or section 226B”.

 

4          

In section 240ZA (time remanded in custody to count as time served), in

 

subsection (12)—

 

(a)    

in paragraph (a), after “or section” insert “226B or”, and

 

(b)    

in paragraph (b), after “or section” insert “226A or”.

 

5    (1)  

Section 250 (licence conditions) is amended as follows.

 

      (2)  

In subsection (4)—

 

(a)    

before “227” insert “226A or”, and

 

(b)    

before “228” insert “226B or”.

 

      (3)  

After subsection (5) insert—

 

“(5A)    

In respect of a prisoner serving an extended sentence imposed under

 

section 226A or 226B whose release is directed by the Board under

 

section 246A(5), a licence under—

 

(a)    

section 246A(5) (initial release), or

 

(b)    

section 255C (release after recall),

 

    

may not include conditions referred to in subsection (4)(b)(ii) unless

 

the Board directs the Secretary of State to include them.”

 

6          

In section 255A (further release after recall), in subsection (7)(a) (meaning of

 

“extended sentence prisoner”) after “section” insert “226A, 226B,”.


 
 

Notices of Amendments: 27 October 2011                  

3674

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

7    (1)  

Section 260 (early removal of prisoners liable to removal from UK) is

 

amended as follows.

 

      (2)  

After subsection (2) insert—

 

“(2A)    

If a fixed-term prisoner serving an extended sentence imposed under

 

section 226A or 226B—

 

(a)    

is liable to removal from the United Kingdom, and

 

(b)    

has not been removed from prison under this section during

 

the period mentioned in subsection (1),

 

    

the Secretary of State may remove the prisoner from prison under this

 

section at any time after the end of that period.

 

(2B)    

Subsection (2A) applies whether or not the Parole Board has directed

 

the prisoner’s release under section 246A.”

 

      (3)  

In subsection (5), after “244” (but before “, 247”) insert “, 246A”.

 

      (4)  

In subsection (7), before paragraph (a) insert—

 

“(za)    

in relation to a prisoner serving an extended sentence imposed

 

under section 226A or 226B, has the meaning given by

 

paragraph (a) or (b) of the definition in section 246A(8);”.

 

8    (1)  

Section 261 (re-entry to UK of offender removed early) is amended as follows.

 

      (2)  

In subsection (5)(b) for “or 244” substitute “, 244 or 246A”.

 

      (3)  

In subsection (6), in the definition of “requisite custodial period”, before

 

paragraph (a) insert—

 

“(za)    

in relation to a prisoner serving an extended sentence imposed

 

under section 226A or 226B, has the meaning given by

 

paragraph (a) or (b) of the definition in section 246A(8);”.

 

9          

In section 263 (concurrent terms), in subsection (4), before “228” insert “226B

 

or”.

 

10  (1)  

Section 264 (consecutive terms) is amended as follows.

 

      (2)  

In subsection (6)(a) (definition of “custodial period”), before sub-paragraph (i)

 

insert—

 

“(zi)    

in relation to an extended sentence imposed under

 

section 226A or 226B, means two-thirds of the

 

appropriate custodial term determined by the court

 

under that section,”.

 

      (3)  

In subsection (7) before “228” insert “226B or”.

 

11         

In section 265 (restriction on consecutive sentences for released prisoners), in

 

subsection (2), before “228” insert “226B or”.’.

 


 

NEW CLAUSES AND NEW SCHEDULES RELATING TO REFERRAL FEES

 

Rules against referral fees

 

Secretary Kenneth Clarke

 

NC18

 

To move the following Clause:—

 

‘(1)    

A regulated person is in breach of this section if—


 
 

Notices of Amendments: 27 October 2011                  

3675

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

(a)    

the regulated person refers prescribed legal business to another person

 

and is paid or has been paid for the referral, or

 

(b)    

prescribed legal business is referred to the regulated person, and the

5

regulated person pays or has paid for the referral.

 

(2)    

A regulated person is also in breach of this section if in providing legal services

 

in the course of prescribed legal business the regulated person—

 

(a)    

arranges for another person to provide services to the client, and

 

(b)    

is paid or has been paid for making the arrangement.

10

(3)    

Section [Regulators and regulated persons] defines “regulated person”.

 

(4)    

“Prescribed legal business” means business that involves the provision of legal

 

services to a client, where—

 

(a)    

the legal services relate to a claim or potential claim for damages for

 

personal injury or death, or

15

(b)    

the business is of a description specified in regulations made by the Lord

 

Chancellor.

 

(5)    

There is a referral of prescribed legal business if—

 

(a)    

a person provides information to another,

 

(b)    

it is information that a provider of legal services would need to make an

20

offer to the client to provide relevant services, and

 

(c)    

the person providing the information is not the client;

 

    

and “relevant services” means any of the legal services that the business involves.

 

(6)    

“Legal services” means services provided by a person which consist of or include

 

legal activities (within the meaning of the Legal Services Act 2007) carried on by

25

or on behalf of that person; and a provider of legal services is a person authorised

 

to carry on a reserved legal activity within the meaning of that Act.

 

(7)    

“Client”—

 

(a)    

where subsection (4)(a) applies, means the person who makes or would

 

made the claim;

30

(b)    

where subsection (4)(b) applies, has the meaning given by the

 

regulations.

 

(8)    

Payment includes any form of consideration (but does not include the provision

 

of hospitality that is reasonable in the circumstances).’.

 

As Amendments to Secretary Kenneth Clarke’s proposed New Clause (Rules against

 

referral fees) (NC18):—

 

Mr Jack Straw

 

(a)

 

Parliamentary Star    

Line  3,  after first ‘paid’, insert ‘will be paid, has made an agreement to be paid,’.

 

Mr Jack Straw

 

(b)

 

Parliamentary Star    

Line  5,  after ‘pays’, insert ‘will pay, has made an agreement to pay’.

 

Mr Jack Straw

 

(c)

 

Parliamentary Star    

Line  9,  after first ‘paid’, insert ‘will be paid, has made an agreement to be paid,’.

 

Mr Jack Straw

 

(d)

 

Parliamentary Star    

Line  14,  after ‘death’, insert ‘and the meaning shall include any payment for the


 
 

Notices of Amendments: 27 October 2011                  

3676

 

Legal Aid, Sentencing and Punishment of Offenders Bill, continued

 
 

introduction of a potential client, for information which might assist in the

 

identification of potential clients, or of any road traffic accidents in which they

 

may have been involved, or of any sharing of fees arising from an action, or

 

threatened action, for the recovery of damages’.

 

Mr Jack Straw

 

(e)

 

Parliamentary Star    

Line  16,  at end insert—

 

‘(4A)    

A breach of the provisions of this section shall be an offence, punishable on

 

summary conviction by a fine not exceeding the statutory maximum or on

 

indictment for a term of imprisonment not exceeding two years, or a fine, or

 

both.’.

 


 

Effect of the rules against referral fees

 

Secretary Kenneth Clarke

 

NC19

 

To move the following Clause:—

 

‘(1)    

The relevant regulator must ensure that it has appropriate arrangements for

 

monitoring and enforcing the restrictions imposed on regulated persons by

 

section [Rules against referral fees].

 

(2)    

A regulator may make rules for the purposes of subsection (1).

5

(3)    

The rules may in particular provide for the relevant regulator to exercise in

 

relation to anything done in breach of that section any powers (subject to

 

subsections (5) and (6)) that the regulator would have in relation to anything done

 

by the regulated person in breach of another restriction.

 

(4)    

Where the relevant regulator is the Financial Services Authority, section

10

[Regulation by the FSA] applies instead of subsections (1) to (3) (and (7) to (9)).

 

(5)    

A breach of section [Rules against referral fees]—

 

(a)    

does not make a person guilty of an offence, and

 

(b)    

does not give rise to a right of action for breach of statutory duty.

 

(6)    

A breach of section [Rules against referral fees] does not make anything void or

15

unenforceable, but a contract to make or pay for a referral or arrangement in

 

breach of that section is unenforceable.

 

(7)    

Subsection (8) applies in a case where—

 

(a)    

a referral of prescribed legal business has been made by or to a regulated

 

person, or

20

(b)    

a regulated person has made an arrangement as mentioned in section

 

[Rules against referral fees](2)(a),

 

    

and it appears to the regulator that a payment made to or by the regulated person

 

may be a payment for the referral or for making the arrangement (a “referral fee”).

 

(8)    

Rules under subsection (2) may provide for the payment to be treated as a referral

25

fee unless the regulated person shows that the payment was made—

 

(a)    

as consideration for the provision of services, or

 

(b)    

for another reason,

 

    

and not as a referral fee.

 

(9)    

For the purposes of provision made by virtue of subsection (8) a payment that

30

would otherwise be regarded as consideration for the provision of services of any


 
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Revised 28 October 2011