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A

BILL

[AS AMENDED IN PUBLIC BILL COMMITTEE]

TO

Make provision about how offenders are dealt with before and after
conviction; to amend the offence of possession of extreme pornographic
images; to make provision about the proceedings and powers of courts and
tribunals; to make provision about judicial review; and for connected
purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 Criminal Justice

Dangerous offenders

1 Maximum sentence for certain offences to be life imprisonment

(1) 5In section 4 of the Explosive Substances Act 1883 (making or possession of
explosive under suspicious circumstances)—

(a) in subsection (1), for the words from “guilty” to the end substitute
“guilty of an offence”, and

(b) after that subsection insert—

(1A) 10A person who is guilty of an offence under subsection (1) is
liable, on conviction on indictment, to imprisonment for life.

(1B) Where a person is convicted of an offence under subsection (1)
the explosive substance is to be forfeited.

(2) In section 54(6)(a) of the Terrorism Act 2000 (penalty on conviction on
15indictment of offence involving weapons training for terrorism), for

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“imprisonment for a term not exceeding ten years” substitute “imprisonment
for life”.

(3) In section 6(5)(a) of the Terrorism Act 2006 (penalty on conviction on
indictment of offence involving training for terrorism), for “imprisonment for
5a term not exceeding 10 years” substitute “imprisonment for life”.

(4) The amendments made by this section apply only in relation to an offence
committed on or after the day on which they come into force.

(5) Where an offence is found to have been committed over a period of 2 or more
days, or at some time during a period of 2 or more days, it must be taken for
10the purposes of subsection (4) to have been committed on the last of those days.

2 Specified offences

(1) Schedule 15 to the Criminal Justice Act 2003 (specified offences for purposes of
Chapter 5 of Part 12 of that Act) is amended as follows.

(2) After paragraph 22 (offence under section 3 of the Explosive Substances Act
151883) insert—

22A An offence under section 4 of that Act (making or possession of
explosive under suspicious circumstances).

(3) For paragraph 64 (accessories and inchoate offences: violent offences)
substitute—

64 (1) 20Aiding, abetting, counselling or procuring the commission of an
offence specified in the preceding paragraphs of this Part of this
Schedule.

(2) An attempt to commit such an offence.

(3) Conspiracy to commit such an offence.

(4) 25Incitement to commit such an offence.

(5) An offence under Part 2 of the Serious Crime Act 2007 in relation to
which an offence specified in the preceding paragraphs of this Part
of this Schedule is the offence (or one of the offences) which the
person intended or believed would be committed.

(4) 30For paragraph 65 (attempt or conspiracy to commit murder) substitute—

65 (1) An attempt to commit murder.

(2) Conspiracy to commit murder.

(3) Incitement to commit murder.

(4) An offence under Part 2 of the Serious Crime Act 2007 in relation to
35which murder is the offence (or one of the offences) which the person
intended or believed would be committed.

(5) Omit paragraph 92 (offence of keeping a brothel under section 33 of the Sexual
Offences Act 1956).

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(6) After that paragraph insert—

92A An offence under section 33A of that Act (keeping a brothel used for
prostitution).

(7) For paragraph 153 (accessories and inchoate offences: sexual offences)
5substitute—

153 (1) Aiding, abetting, counselling or procuring the commission of an
offence specified in this Part of this Schedule.

(2) An attempt to commit such an offence.

(3) Conspiracy to commit such an offence.

(4) 10Incitement to commit such an offence.

(5) An offence under Part 2 of the Serious Crime Act 2007 in relation to
which an offence specified in this Part of this Schedule is the offence
(or one of the offences) which the person intended or believed would
be committed.

(8) 15The amendments made by this section apply in relation to a person sentenced
for an offence on or after the day on which they come into force, whenever the
offence was committed.

(9) But subsection (8) does not apply for the purposes of the provisions referred to
in subsection (10).

(10) 20For the purposes of sections 225(1)(a) and 226(1)(a) of the Criminal Justice Act
2003 and sections 219(1)(b) and 221(1)(b) of the Armed Forces Act 2006, the
amendments made by subsections (2), (4), (5) and (6) apply only in relation to
a person sentenced for an offence that was committed on or after the day on
which they come into force.

(11) 25Where an offence is found to have been committed over a period of 2 or more
days, or at some time during a period of 2 or more days, it must be taken for
the purposes of subsection (10) to have been committed on the last of those
days.

3 Schedule 15B offences

(1) 30Part 1 of Schedule 15B to the Criminal Justice Act 2003 (offences under the law
of England and Wales listed for the purposes of sections 224A(1) and (4), 226A
and 246A of that Act) is amended as follows.

(2) After paragraph 3 (offence under section 18 of the Offences Against the Person
Act 1861) insert—

3A 35An offence under section 28 of that Act (causing bodily injury by
explosives).

3B An offence under section 29 of that Act (using explosives etc with
intent to do grievous bodily harm).

3C An offence under section 2 of the Explosive Substances Act 1883
40(causing explosion likely to endanger life or property).

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3D An offence under section 3 of that Act (attempt to cause explosion, or
making or keeping explosive with intent to endanger life or
property).

3E An offence under section 4 of that Act (making or possession of
5explosive under suspicious circumstances).

(3) After paragraph 8 insert—

8A An offence under section 54 of the Terrorism Act 2000 (weapons
training).

(4) In paragraph 9, for “the Terrorism Act 2000” substitute “that Act”.

(5) 10After paragraph 40 (offence under section 5 of the Terrorism Act 2006) insert—

40A An offence under section 6 of that Act (training for terrorism).

(6) For the purposes of section 224A of the Criminal Justice Act 2003 and section
218A of the Armed Forces Act 2006, the amendments made by this section
apply only in relation to a person sentenced for an offence that was committed
15on or after the day on which they come into force.

(7) For the purposes of section 226A of the Criminal Justice Act 2003 and section
219A of the Armed Forces Act 2006, the amendments made by this section
apply in relation to a person sentenced for an offence on or after the day on
which they come into force, whenever the offence was committed.

(8) 20For the purposes of section 246A of the Criminal Justice Act 2003, the
amendments made by this section apply in relation to a person serving an
extended sentence imposed on or after the day on which they come into force,
whenever the offence in question was committed.

(9) Where an offence is found to have been committed over a period of 2 or more
25days, or at some time during a period of 2 or more days, it must be taken for
the purposes of subsection (6) to have been committed on the last of those days.

4 Parole Board release when serving extended sentences

(1) Section 246A of the Criminal Justice Act 2003 (release on licence of prisoners
serving extended sentences under section 226A or 226B) is amended as follows.

(2) 30In subsection (2) (automatic release at the end of requisite custodial period), for
the words from “unless” to the end substitute if—

(a) the sentence was imposed before the coming into force of
section 4 of the Criminal Justice and Courts Act 2014,

(b) the appropriate custodial term is less than 10 years, and

(c) 35the sentence was not imposed in respect of an offence listed in
Parts 1 to 3 of Schedule 15B or in respect of offences that include
one or more offences listed in those Parts of that Schedule.

(3) In subsection (3) (release following Parole Board direction), for “If either or
both of those conditions are met” substitute “In any other case”.

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Other offenders of particular concern

5 Sentence and Parole Board release for offenders of particular concern

(1) Part 1 of Schedule 1 contains—

(a) provision about the sentence to be imposed on certain offenders of
5particular concern, and

(b) provision for such offenders to be released on licence following a Parole
Board direction.

(2) That Schedule also contains—

(a) equivalent provision in respect of offenders convicted of service
10offences (see Part 2),

(b) transitional and transitory provision (see Part 3), and

(c) consequential provision (see Part 4).

Release and recall of prisoners

6 Electronic monitoring following release on licence etc

(1) 15Part 3 of the Criminal Justice and Court Services Act 2000 (dealing with
offenders) is amended as follows.

(2) In section 62 (release on licence etc: conditions as to monitoring)—

(a) for subsection (2) substitute—

(2) The conditions may include electronic monitoring conditions.

(2A) 20An electronic monitoring condition imposed under this section
must include provision for making a person responsible for the
monitoring.

(2B) A person may not be made responsible for the monitoring
unless the person is of a description specified in an order made
25by the Secretary of State., and

(b) after subsection (5) insert—

(5A) In this section “electronic monitoring condition” means a
condition requiring the person to submit to either or both of the
following—

(a) 30electronic monitoring of the person’s compliance with
another condition of release, and

(b) electronic monitoring of the person’s whereabouts
(other than for the purpose of monitoring compliance
with another condition of release).

(3) 35After section 62 insert—

62A Release on licence etc: compulsory electronic monitoring conditions

(1) The Secretary of State may by order provide that the power under
section 62 to impose an electronic monitoring condition must be
exercised.

(2) 40An order under this section may—

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(a) require an electronic monitoring condition to be included for so
long as the person’s release is required to be, or may be, subject
to conditions or for a shorter period;

(b) make provision generally or in relation to a case described in the
5order.

(3) An order under this section may, in particular—

(a) make provision in relation to cases in which compliance with a
condition imposed on a person’s release is monitored by a
person specified or described in the order;

(b) 10make provision in relation to persons selected on the basis of
criteria specified in the order or on a sampling basis;

(c) make provision by reference to whether a person specified in
the order is satisfied of a matter.

(4) An order under this section may not make provision about a case in
15which the sentence imposed on the person is—

(a) a detention and training order,

(b) a sentence of detention under section 91 of the Powers of
Criminal Courts (Sentencing) Act 2000 (detention of offenders
under 18 convicted of certain offences),

(c) 20a sentence of detention under section 209 of the Armed Forces
Act 2006 (detention of offenders under 18 convicted of certain
offences), or

(d) an order under section 211 of that Act.

(5) In this section, “electronic monitoring condition” has the same meaning
25as in section 62.

62B Data from electronic monitoring: code of practice

(1) The Secretary of State must issue a code of practice relating to the
processing of data gathered in the course of monitoring persons under
electronic monitoring conditions imposed under section 62.

(2) 30A failure to observe a code issued under this section does not of itself
make a person liable to any criminal or civil proceedings.

(4) Schedule 2 to this Act contains consequential provision.

(5) The amendments made by this section and Schedule 2 apply in relation to a
person who is released from prison on or after the day on which they come into
35force.

7 Test for release after recall: determinate sentences

(1) Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release etc of fixed-term
prisoners) is amended as follows.

(2) In section 255A (suitability for automatic release after recall), after
40subsection (4) insert—

(4A) But a person is not suitable for automatic release if—

(a) it appears to the Secretary of State that the person is highly
likely to breach a condition included in the person’s licence if
released at the end of the automatic release period, and

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(b) for that reason, the Secretary of State considers that it would not
be appropriate to release the person at the end of that period.

(3) In section 255B (automatic release)—

(a) in subsection (2), at the end insert “(but see subsections (3) and (3A))”,

(b) 5after subsection (3), insert—

(3A) The Secretary of State must not release P under subsection (2)
if—

(a) it appears to the Secretary of State that, if released, P is
highly likely to breach a condition included in P’s
10licence, and

(b) for that reason, the Secretary of State considers that it is
not appropriate to release P under that subsection.,

(c) in subsection (4), for “that period” substitute “the period mentioned in
subsection (1)(b)”,

(d) 15after subsection (4) insert—

(4A) On a reference under subsection (4), the Board must determine
the reference by—

(a) directing P’s immediate release on licence under this
Chapter,

(b) 20directing P’s release on licence under this Chapter as
soon as conditions specified in the direction are met, or

(c) giving no direction as to P’s release,

(but see subsections (4B) and (4C)).

(4B) The Board must not give a direction under subsection (4A)(a) or
25(b) unless the Board is satisfied that it is not necessary for the
protection of the public that P should remain in prison until the
end of the period mentioned in subsection (1)(b).

(4C) The Board must not give a direction under subsection (4A)(a) or
(b) if—

(a) 30it appears to the Board that, if released, P is highly likely
to breach a condition included in P’s licence, and

(b) for that reason, the Board considers that it is not
appropriate to give the direction., and

(e) for subsection (5) substitute—

(5) 35The Secretary of State must give effect to any direction under
subsection (4A)(a) or (b).

(4) In section 255C (extended sentence prisoners and those not suitable for
automatic release)—

(a) in subsection (2), at the end insert “(but see subsections (3) and (3A))”,

(b) 40after subsection (3), insert—

(3A) The Secretary of State must not release P under subsection (2)
if—

(a) it appears to the Secretary of State that, if released, P is
highly likely to breach a condition included in P’s
45licence, and

(b) for that reason, the Secretary of State considers that it is
not appropriate to release P under that subsection.,

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(c) after subsection (4) insert—

(4A) On a reference under subsection (4), the Board must determine
the reference by—

(a) directing P’s immediate release on licence under this
5Chapter,

(b) directing P’s release on licence under this Chapter as
soon as conditions specified in the direction are met, or

(c) giving no direction as to P’s release,

(but see subsections (4B) and (4C)).

(4B) 10The Board must not give a direction under subsection (4A)(a) or
(b) unless the Board is satisfied that it is not necessary for the
protection of the public that P should remain in prison.

(4C) The Board must not give a direction under subsection (4A)(a) or
(b) if—

(a) 15it appears to the Board that, if released, P is highly likely
to breach a condition included in P’s licence, and

(b) for that reason, the Board considers that it is not
appropriate to give the direction., and

(d) for subsection (5) substitute—

(5) 20The Secretary of State must give effect to any direction under
subsection (4A)(a) or (b).

(5) Omit section 256 (powers of Board where it does not direct immediate release).

(6) In section 256A (further review)—

(a) for subsection (1) substitute—

(1) 25Where a case has been referred to the Board under section
255C(4) or this section and the person has not been released, the
Secretary of State must refer the person’s case back to the Board
no later than the review date.

(1A) In the case of a person serving one sentence of imprisonment,
30“the review date” is the first anniversary of the determination
by the Board on the reference mentioned in subsection (1).

(1B) In the case of a person serving more than one sentence of
imprisonment, “the review date” is—

(a) the first anniversary of the determination by the Board
35on the reference mentioned in subsection (1), or

(b) if later, the day on which the person has served—

(i) the requisite custodial period, and

(ii) if the sentences include a life sentence, the
minimum term.,

(b) 40in subsection (2), for “that anniversary” substitute “the review date”,

(c) in subsection (4), for paragraph (b) substitute—

(b) directing the person’s release on licence under this
Chapter as soon as conditions specified in the direction
are met,,

(d) 45at the end of subsection (4) insert—

(but see subsections (4A) and (4B)).,

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(e) after subsection (4) insert—

(4A) The Board must not give a direction under subsection (4)(a) or
(b) unless the Board is satisfied that it is not necessary for the
protection of the public that the person should remain in prison.

(4B) 5The Board must not give a direction under subsection (4)(a) or
(b) if—

(a) it appears to the Board that, if released, the person is
highly likely to breach a condition included in the
person’s licence, and

(b) 10for that reason, the Board considers that it is not
appropriate to give the direction., and

(f) for subsection (5) substitute—

(5) The Secretary of State must give effect to any direction under
subsection (4)(a) or (b).

(6) 15In subsection (1B)(b)—

(7) In Schedule 20A (application of Chapter 6 of Part 12 to pre 4 April 2005 cases),
omit paragraph 6(5) (certain determinations to be treated as determinations
under section 256(1) of the Criminal Justice Act 2003).

(8) The amendments made by this section apply to a person recalled before the
25day on which they come into force as well as to a person recalled on or after
that day.

8 Power to change test for release after recall: determinate sentences

(1) In Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release etc of fixed-term
prisoners), after section 256A insert—

256AZA 30 Power to change test for release following recall

(1) The Secretary of State may by order change—

(a) the test to be applied by the Secretary of State in deciding under
section 255A whether a person is suitable for automatic release;

(b) the tests to be applied by the Secretary of State in deciding
35whether to release a person under section 255B(2) or 255C(2);

(c) the tests to be applied by the Board in deciding how to
determine a reference under section 255B(4), 255C(4) or 256A(1)
or (2).

(2) An order under subsection (1) may, in particular—

(a) 40apply to people recalled before the day on which it comes into
force as well as to people recalled on or after that day;

(b) amend this Chapter.

(2) In section 330(5)(a) of that Act (orders subject to affirmative procedure) at the
appropriate place insert—

9 Initial release and release after recall: life sentences

(1) In section 28(7)(c) of the Crime (Sentences) Act 1997 (duty to release certain life
prisoners), for “one-half of that sentence” substitute “the requisite custodial
5period (as defined in section 268 of the Criminal Justice Act 2003)”.

(2) In section 32 of the Crime (Sentences) Act 1997 (recall of life prisoners while on
licence), after subsection (5) insert—

(5A) The Board must not give a direction unless satisfied that it is no longer
necessary for the protection of the public that the life prisoner should
10remain in prison.

(3) In section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012 (power to change test for release on licence of certain prisoners), in
subsection (3), after paragraph (a) insert—

(aa) amend section 32 of the Crime (Sentences) Act 1997 (recall of
15IPP prisoners and others while on licence and further release),.

(4) The amendment made by subsection (1) applies to a person sentenced before
the day on which it comes into force as well as to a person sentenced on or after
that day.

(5) The amendment made by subsection (2) applies in relation to a person recalled
20before the day on which it comes into force as well as in relation to a person
recalled on or after that day.

10 Offence of remaining unlawfully at large after recall

(1) After section 32 of the Crime (Sentences) Act 1997 (recall of life prisoners)
insert—

32ZA 25 Offence of remaining unlawfully at large after recall

(1) A person recalled to prison under section 32 commits an offence if the
person—

(a) has been notified of the recall orally or in writing, and

(b) while unlawfully at large fails, without reasonable excuse, to
30take all necessary steps to return to prison as soon as possible.

(2) A person is to be treated for the purposes of subsection (1)(a) as having
been notified of the recall if—

(a) written notice of the recall has been delivered to an appropriate
address, and

(b) 35a period specified in the notice has elapsed.

(3) In subsection (2) “an appropriate address” means—

(a) an address at which, under the person’s licence, the person is
permitted to reside or stay, or

(b) an address nominated, in accordance with the person’s licence,
40for the purposes of this section.

(4) A person is also to be treated for the purposes of subsection (1)(a) as
having been notified of the recall if—

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(a) the person’s licence requires the person to keep in touch in
accordance with any instructions given by an officer of a
provider of probation services,

(b) the person has failed to comply with such an instruction, and

(c) 5the person has not complied with such an instruction for at least
6 months.

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

(a) on conviction on indictment to imprisonment for a term not
exceeding 2 years or a fine (or both);

(b) 10on summary conviction to imprisonment for a term not
exceeding 12 months or a fine (or both).

(6) In relation to an offence committed before section 154(1) of the Criminal
Justice Act 2003 comes into force, the reference in subsection (5)(b) to 12
months is to be read as a reference to 6 months.

(7) 15In relation to an offence committed before section 85 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 comes into force, the
reference in subsection (5)(b) to a fine is to be read as a reference to a
fine not exceeding the statutory maximum.

(2) After section 255 of the Criminal Justice Act 2003 (recall of prisoners) insert—

255ZA 20 Offence of remaining unlawfully at large after recall

(1) A person recalled to prison under section 254 or 255 commits an offence
if the person—

(a) has been notified of the recall orally or in writing, and

(b) while unlawfully at large fails, without reasonable excuse, to
25take all necessary steps to return to prison as soon as possible.

(2) A person is to be treated for the purposes of subsection (1)(a) as having
been notified of the recall if—

(a) written notice of the recall has been delivered to an appropriate
address, and

(b) 30a period specified in the notice has elapsed.

(3) In subsection (2) “an appropriate address” means—

(a) an address at which, under the person’s licence, the person is
permitted to reside or stay, or

(b) an address nominated, in accordance with the person’s licence,
35for the purposes of this section.

(4) A person is also to be treated for the purposes of subsection (1)(a) as
having been notified of the recall if—

(a) the person’s licence requires the person to keep in touch in
accordance with any instructions given by an officer of a
40provider of probation services,

(b) the person has failed to comply with such an instruction, and

(c) the person has not complied with such an instruction for at least
6 months.

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

(a) 45on conviction on indictment to imprisonment for a term not
exceeding 2 years or a fine (or both);

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(b) on summary conviction to imprisonment for a term not
exceeding 12 months or a fine (or both).

(6) In relation to an offence committed before section 154(1) comes into
force, the reference in subsection (5)(b) to 12 months is to be read as a
5reference to 6 months.

(7) In relation to an offence committed before section 85 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 comes into force, the
reference in subsection (5)(b) to a fine is to be read as a reference to a
fine not exceeding the statutory maximum.

(3) 10Section 32ZA of the Crime (Sentences) Act 1997 and section 255ZA of the
Criminal Justice Act 2003 apply in relation to a person recalled to prison before
or after this section comes into force.

11 Offence of remaining unlawfully at large after temporary release

(1) Section 1 of the Prisoners (Return to Custody) Act 1995 (remaining at large
15after temporary release) is amended as follows.

(2) For subsection (3) substitute—

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

(a) on conviction on indictment to imprisonment for a term not
exceeding 2 years or a fine (or both), and

(b) 20on summary conviction to imprisonment for a term not
exceeding 12 months or a fine (or both).

(3) At the end insert—

(7) In relation to an offence committed before section 154(1) of the Criminal
Justice Act 2003 comes into force, the reference in subsection (3)(b) to 12
25months is to be read as a reference to 6 months.

(8) In relation to an offence committed before section 85 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 comes into force, the
reference in subsection (3)(b) to a fine is to be read as a reference to a
fine not exceeding the statutory maximum.

(4) 30The amendment made by subsection (2) does not apply where the period of
temporary release expired, or the order of recall was made, before this section
comes into force.

12 Definition of “requisite custodial period”

(1) Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release etc of fixed-term
35prisoners) is amended as follows.

(2) In section 268 (interpretation of Chapter), after subsection (1) insert—

(1A) In this Chapter, “the requisite custodial period” means—

(a) in relation to a person serving an extended sentence imposed
under section 226A or 226B, the requisite custodial period for
40the purposes of section 246A;

(b) in relation to a person serving an extended sentence imposed
under section 227 or 228, the requisite custodial period for the
purposes of section 247;

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(c) in relation to a person serving a sentence imposed under section
236A, the requisite custodial period for the purposes of section
244A;

(d) in relation to any other fixed-term prisoner, the requisite
5custodial period for the purposes of section 243A or section 244
(as appropriate).

(3) In section 247 (release on licence of prisoner serving extended sentence under
section 227 or 228)—

(a) in subsection (2)(a), for “one-half of the appropriate custodial term”
10substitute “the requisite custodial period”, and

(b) for subsection (7) substitute—

(7) In this section—

(4) In section 260 (early removal of prisoners liable to removal from United
Kingdom), omit subsection (7).

(5) In section 261 (re-entry into United Kingdom of offender removed from prison
25early)—

(a) in subsection (5), omit paragraph (a),

(b) in subsection (5)(b)—

(i) omit “in any other case,” and

(ii) for “or 246A” substitute “, 246A or 247”, and

(c) 30in subsection (6), omit the definition of “requisite custodial period”.

(6) In Schedule 20A (application of Chapter 6 of Part 12 to pre-4 April 2005
cases)—

(a) omit paragraph 8(2) (modification of section 260), and

(b) after paragraph 8 insert—

8A 35Section 268(1A) (definition of “the requisite custodial
period”) has effect as if it provided that, in relation to a
person serving an extended sentence under section 85 of the
Sentencing Act, the requisite custodial period means one-half
of the custodial term determined under that section (subject
40to sections 263 and 264).

(7) The amendments made by this section apply in relation to a person sentenced
before the day on which they come into force as well as in relation to a person
sentenced on or after that day.

13 Minor amendments and transitional cases

(1) 45In section 82A(3) of the Powers of Criminal Courts (Sentencing) Act 2000

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(determination of tariffs for life sentences), for paragraph (b) substitute—

(b) the effect that the following would have if the court had
sentenced the offender to a term of imprisonment—

(i) section 240ZA of the Criminal Justice Act 2003 (crediting
5periods of remand in custody);

(ii) section 246 of the Armed Forces Act 2006 (equivalent
provision for service courts);

(iii) any direction which the court would have given under
section 240A of the Criminal Justice Act 2003 (crediting
10periods of remand on bail subject to certain types of
condition);.

(2) In section 97 of the Powers of Criminal Courts (Sentencing) Act 2000 (term of
detention in a young offender institution)—

(a) in subsection (2), omit “Subject to subsection (3) below,” and

(b) 15omit subsection (3) (power to pass sentence of less than 21 days for
offence under section 65(6) of the Criminal Justice Act 1991).

(3) In section 106(4) of the Powers of Criminal Courts (Sentencing) Act 2000
(persons subject concurrently to detention and training order and sentence of
detention in young offender institution), for “Part II of the Criminal Justice Act
201991 (early release)” substitute “Chapter 6 of Part 12 of the Criminal Justice Act
2003 (release, licences, supervision and recall)”.

(4) In section 246(4) of the Criminal Justice Act 2003 (cases in which power to
release before required to do so is not available), after paragraph (g) insert—

(ga) the prisoner has at any time been released on licence under
25section 34A of the Criminal Justice Act 1991 and has been
recalled to prison under section 38A(1)(a) of that Act (and the
revocation of the licence has not been cancelled under section
38A(3) of that Act);.

(5) In Schedule 20A to the Criminal Justice Act 2003 (application of Chapter 6 of
30Part 12 to pre-4 April 2005 cases), in paragraph 4 (modification of section 246:
power to release before required to do so)—

(a) number the existing text as sub-paragraph (1),

(b) in that sub-paragraph, for “Section 246 applies as if, in subsection (4)”
substitute “Section 246(4) applies as if—”,

(c) 35in that sub-paragraph, omit paragraph (c), and

(d) after that sub-paragraph insert—

(2) Section 246(6) applies as if, in the definition of “term of
imprisonment”, the reference to section 227 or 228 included a
reference to section 85 of the Sentencing Act.

(6) 40In Schedule 20B to the Criminal Justice Act 2003 (modifications of Chapter 6 of
Part 12 in certain transitional cases), omit paragraph 3(2)(a) (application of Part
2 of the Schedule to an extended sentence under section 85 of the Powers of
Criminal Courts (Sentencing) Act 2000).

(7) In paragraph 34 of that Schedule (licence conditions in certain transitional
45cases)—

(a) in sub-paragraph (1), at the end insert “and which was granted to a
person serving—

(a) a 1967 Act sentence,

Criminal Justice and Courts BillPage 15

(b) a 1991 Act sentence, or

(c) a 2003 Act sentence which is an extended sentence
imposed under section 227 or 228 before 14 July
2008., and

(b) 5in sub-paragraph (6)(a), after “condition” insert “referred to in section
250(4)(b)(ii)”.

(8) The amendments made by subsections (1), (3) and (4) apply in relation to a
person sentenced before the day on which they come into force as well as in
relation to a person sentenced on or after that day.

10Prisons

14 Drugs for which prisoners etc may be tested

(1) The Prison Act 1952 is amended as follows.

(2) In section 16A (testing prisoners for drugs), in subsection (3)—

(a) at the end of the definition of “drug” insert “or specified drug”,

(b) 15omit the “and” that follows the definition of “prison officer”, and

(c) at the appropriate place insert—

(3) In section 47 (rules for the management of prisons etc), after subsection (3)
20insert—

(3A) Rules made under this section may specify any substance or product
(which is not a controlled drug for the purposes of the Misuse of Drugs
Act 1971) in relation to which a person may be required to provide a
sample for the purposes of section 16A of this Act.

25Cautions

15 Restrictions on use of cautions

(1) This section applies where, in England and Wales, a person aged 18 or over
admits that he or she has committed an offence.

(2) If the offence is an indictable-only offence, a constable may not give the person
30a caution except—

(a) in exceptional circumstances relating to the person or the offence, and

(b) with the consent of the Director of Public Prosecutions.

(3) If the offence is an either-way offence specified by order made by the Secretary
of State, a constable may not give the person a caution except in exceptional
35circumstances relating to the person or the offence.

(4) If—

(a) the offence is a summary offence or an either-way offence not specified
under subsection (3), and

(b) in the two years before the commission of the offence the person has
40been convicted of, or cautioned for, a similar offence,

Criminal Justice and Courts BillPage 16

a constable may not give the person a caution except in exceptional
circumstances relating to the person, the offence admitted or the previous
offence.

(5) It is for a police officer not below a rank specified by order made by the
5Secretary of State to determine—

(a) whether there are exceptional circumstances for the purposes of
subsection (2), (3) or (4), and

(b) whether a previous offence is similar to the offence admitted for the
purposes of subsection (4)(b).

(6) 10A determination under subsection (5) must be made in accordance with
guidance issued by the Secretary of State.

(7) The Secretary of State may by order amend this section so as to provide for a
different period for the purposes of subsection (4)(b).

(8) For the purposes of this section—

(a) 15“caution” does not include a conditional caution under Part 3 of the
Criminal Justice Act 2003, but

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