House of Commons Amendments

Session 2014 - 15
Internet Publications
Other Bills before Parliament

Consideration of Bill: 17 June 2014
119

Criminal Justice and Courts Bill, continued

“adult” means an individual aged 18 or over;

“child” means an individual aged under 18;

“foster parent” means—

(a)
a local authority foster parent within the meaning of the Children

Act 1989,

(b)
a person with whom a child has been placed by a voluntary

organisation under section 59(1)(a) of that Act, or

(c)
a private foster parent within the meaning of section 53 of the

Safeguarding Vulnerable Groups Act 2006.

(9)
In relation to an offence committed before section 154(1) of the Criminal Justice

Act 2003 comes into force, the reference in subsection (2)(b) to 12 months is to

be read as a reference to 6 months.

(10)
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 (2)(b) to a fine is to be read as a reference to a fine not

exceeding the statutory maximum.”

Member’s explanatory statement

This establishes a criminal offence of ill-treatment or wilful neglect of an individual by a care

worker who is paid to provide the individual with health care, other than excluded health care (see

new Schedule NS2), or adult social care. It sets out the penalties on conviction for the new offence.

Secretary Chris Grayling

NC46

To move the following Clause—

“Ill-treatment or wilful neglect: care provider offence

(1)
A care provider commits an offence if—

(a)
an individual who has the care of another individual by virtue of being

part of the care provider’s arrangements ill-treats or wilfully neglects that

individual,

(b)
the care provider’s activities are managed or organised in a way which

amounts to a gross breach of a relevant duty of care owed by the care

provider to the individual who is ill-treated or neglected, and

(c)
in the absence of the breach, the ill-treatment or wilful neglect would not

have occurred or would have been less likely to occur.

(2)
“Care provider” means—

(a)
a body corporate or unincorporated association which provides or

arranges for the provision of—

(i)
health care for an adult or child, other than excluded health care,

or

(ii)
social care for an adult, or

(b)
an individual who provides such care and employs, or has otherwise

made arrangements with, other persons to assist him or her in providing

such care,


subject to section (Ill-treatment or wilful neglect: excluded care providers).

(3)
An individual is “part of a care provider’s arrangements” where the individual—

(a)
is not the care provider, but

(b)
provides health care or social care as part of health care or social care

provided or arranged for by the care provider,

Consideration of Bill: 17 June 2014
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Criminal Justice and Courts Bill, continued


including where the individual is not the care provider but supervises or manages

individuals providing health care or social care as described in paragraph (b) or is

a director or similar officer of an organisation which provides health care or social

care as described there.

(4)
A “relevant duty of care” means—

(a)
a duty owed under the law of negligence, or

(b)
a duty that would be owed under the law of negligence but for a provision

contained in an Act, or an instrument made under an Act, under which

liability is imposed in place of liability under that law,


but only to the extent that the duty is owed in connection with providing, or

arranging for the provision of, health care or social care.

(5)
For the purposes of this section, there is to be disregarded any rule of the common

law that has the effect of—

(a)
preventing a duty of care from being owed by one person to another by

reason of the fact that they are jointly engaged in unlawful conduct, or

(b)
preventing a duty of care being owed to a person by reason of that

person’s acceptance of a risk of harm.

(6)
A breach of a duty of care by a care provider is a “gross” breach if the conduct

alleged to amount to the breach falls far below what can reasonably be expected

of the care provider in the circumstances.

(7)
In this section—

(a)
references to a person providing health care or social care do not include

a person whose provision of such care is merely incidental to the carrying

out of other activities by the person, and

(b)
references to a person arranging for the provision of such care do not

include a person who makes arrangements under which the provision of

such care is merely incidental to the carrying out of other activities.

(8)
References in this section to providing or arranging for the provision of health

care or social care do not include making payments under—

(a)
regulations under section 57 of the Health and Social Care Act 2001

(direct payments for community services and carers);

(b)
section 12A of the National Health Act 2006 (direct payments for health

care);

(c)
section 31 or 32 of the Care Act 2014 (direct payments for care and

support);

(d)
regulations under section 50 of the Social Services and Well-being

(Wales) Act 2014 (anaw 4) (direct payments to meet an adult’s needs).

(9)
In this section—

“Act” includes an Act or Measure of the National Assembly for Wales;

“adult”, “child”, “excluded health care”, “health care” and “social care”

have the same meaning as in section (Ill-treatment or wilful neglect: care

worker offence).”

Member’s explanatory statement

This establishes a criminal offence committed by care providers, i.e. bodies and certain individuals

that provide or arrange for the provision of health care, other than excluded health care (see new

Schedule NS2NS2), or adult social care. It applies where ill-treatment or wilful neglect of an

individual has followed a gross breach of a duty of care by the care provider.

Consideration of Bill: 17 June 2014
121

Criminal Justice and Courts Bill, continued

Secretary Chris Grayling

NC47

To move the following Clause—

“Ill-treatment or wilful neglect: excluded care providers

(1)
A local authority in England is not a care provider for the purposes of section (Ill-

treatment or wilful neglect: care provider offence) to the extent that it carries out

functions to which Chapter 4 of Part 8 of the Education and Inspections Act 2006

applies.

(2)
Where a body corporate has entered into arrangements with a local authority in

England under Part 1 of the Children and Young Persons Act 2008 (social work

services for children and young persons), the body is not a care provider for the

purposes of section (Ill-treatment or wilful neglect: care provider offence) to the

extent that it carries out relevant care functions of that authority (as defined in that

Part of that Act) under those arrangements.

(3)
A local authority in Wales is not a care provider for the purposes of section (Ill-

treatment or wilful neglect: care provider offence) to the extent that it—

(a)
carries out functions under Part 2 of the Childcare Act 2006;

(b)
carries out the education functions of the authority (as defined in section

579(1) of the Education Act 1996);

(c)
carries out the social services functions of the authority (as defined in the

Local Authority Social Services Act 1970), so far as relating to a child.

(4)
In this section, “local authority” means—

(a)
in England, a county council, a metropolitan district council, a non-

metropolitan district council for an area for which there is no county

council, a London borough council, the Council of the Isles of Scilly and

(in its capacity as a local authority) the Common Council of the City of

London, and

(b)
in Wales, a county council or a county borough council.

(5)
In this section, “child” has the same meaning as in section (Ill-treatment or wilful

neglect: care worker offence).”

Member’s explanatory statement

This excludes from the scope of the offence in new clause 46NC46, relating to care providers, local

authorities when carrying out their wider children‘s services functions and other organisations

when carrying out those functions on a local authority‘s behalf.

Secretary Chris Grayling

NC48

To move the following Clause—

“Care provider offence: penalties

(1)
A person guilty of an offence under section (Ill-treatment or wilful neglect: care

provider offence) is liable, on conviction on indictment or summary conviction,

to a fine.

(2)
A court before which a person is convicted of an offence under section (Ill-

treatment or wilful neglect: care provider offence) may make either or both of the

following orders—

(a)
a remedial order;

(b)
a publicity order;

Consideration of Bill: 17 June 2014
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Criminal Justice and Courts Bill, continued


(whether instead of or as well as imposing a fine).

(3)
A “remedial order” is an order requiring the person to take specified steps to

remedy one or more of the following—

(a)
the breach mentioned in section (Ill-treatment or wilful neglect: care

provider offence)(1)(b) (“the relevant breach”);

(b)
any matter that appears to the court to have resulted from the relevant

breach and to be connected with the ill-treatment or neglect;

(c)
any deficiency in the person’s policies, systems or practices of which the

relevant breach appears to the court to be an indication.

(4)
A “publicity order” is an order requiring the person to publicise in a specified

manner—

(a)
the fact that the person has been convicted of the offence;

(b)
specified particulars of the offence;

(c)
the amount of any fine imposed;

(d)
the terms of any remedial order made.

(5)
A remedial order—

(a)
may be made only on an application by the prosecution which specifies

the terms of the proposed order,

(b)
must be made on such terms as the court considers appropriate having

regard to any representations made, and any evidence adduced, in

relation to its terms by the prosecution or by or on behalf of the person

convicted, and

(c)
must specify a period within which the steps specified in the order must

be taken.

(6)
A publicity order must specify a period within which the requirements specified

in the order must be complied with.

(7)
A person who fails to comply with a remedial order or a publicity order commits

an offence and is liable, on conviction on indictment or summary conviction, to

a fine.

(8)
In relation to an offence committed before section 85 of the Legal Aid,

Sentencing and Punishment of Offenders Act 2012 comes into force, subsections

(1) and (7) have effect as if they provided for a fine on summary conviction not

exceeding the statutory maximum.”

Member’s explanatory statement

This sets out the penalties available following conviction of the offence in new clause NC46

relating to care providers. Courts will have powers to impose fines or to make remedial or

publicity orders (or any combination of those options).

Secretary Chris Grayling

NC49

To move the following Clause—

“Care provider offence: application to unincorporated associations

(1)
For the purposes of sections (Ill-treatment or wilful neglect: care provider

offence) and (Care provider offence: penalties), an unincorporated association is

to be treated as owing whatever duties of care it would owe if it were a body

corporate.

Consideration of Bill: 17 June 2014
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Criminal Justice and Courts Bill, continued

(2)
Proceedings for an offence under those sections alleged to have been committed

by an unincorporated association must be brought in the name of the association

(and not in that of any of its members).

(3)
In relation to such proceedings, rules of court relating to the service of documents

have effect as if the unincorporated association were a body corporate.

(4)
In proceedings under section (Ill-treatment or wilful neglect: care provider

offence) or (Care provider offence: penalties) brought against an unincorporated

association, the following apply as they apply in relation to a body corporate—

(a)
section 33 of the Criminal Justice Act 1925 (procedure on charge of

offence against corporation);

(b)
Schedule 3 to the Magistrates’ Courts Act 1980 (provision about

corporation charged with offence before a magistrates’ court).

(5)
A fine imposed on an unincorporated association on its conviction of an offence

under section (Ill-treatment or wilful neglect: care provider offence) or (Care

provider offence: penalties) is to be paid out of the funds of the association.”

Member’s explanatory statement

This sets out how the new criminal offence in new clause NC4646 relating to care providers is to

be applied in relation to unincorporated associations, including partnerships.

Secretary Chris Grayling

NC50

To move the following Clause—

“Care provider offence: liability for ancillary and other offences

(1)
An individual cannot be guilty of—

(a)
aiding, abetting, counselling or procuring the commission of an offence

under section (Ill-treatment or wilful neglect: care provider offence), or

(b)
an offence under Part 2 of the Serious Crime Act 2007 (encouraging or

assisting crime) by reference to an offence under section (Ill-treatment or

wilful neglect: care provider offence).

(2)
Where, in the same proceedings, there is—

(a)
a charge under section (Ill-treatment or wilful neglect: care provider

offence) arising out of a particular set of circumstances, and

(b)
a charge against the same defendant of a relevant offence arising out of

some or all of those circumstances,


the defendant may, if the interests of justice so require, be convicted of both

offences.

(3)
A person convicted of an offence under section (Ill-treatment or wilful neglect:

care provider offence) arising out of a particular set of circumstances may, if the

interests of justice so require, be charged with a relevant offence arising out of

some or all of those circumstances.

(4)
“Relevant offence” means an offence under an Act, or an instrument made under

an Act, dealing with—

(a)
health and safety matters, or

(b)
the provision of health care or social care.

(5)
In this section—

“Act” includes an Act or Measure of the National Assembly for Wales;

“health care” and “social care” have the same meaning as in section (Ill-

treatment or wilful neglect: care worker offence).”

Consideration of Bill: 17 June 2014
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Criminal Justice and Courts Bill, continued

Member’s explanatory statement

This provides for there to be no individual liability for ancillary offences connected to the new

criminal offence in new clause NC4646 relating to care providers. It also makes provision in

relation to proceedings before a court where the same circumstances result in the commission of

both the new offence and another relevant offence.

Secretary Chris Grayling

NC51

To move the following Clause—

“Personal injury claims: cases of fundamental dishonesty

(1)
This section applies where, in proceedings on a claim for damages in respect of

personal injury (“the primary claim”)—

(a)
the court finds that the claimant is entitled to damages in respect of the

claim, but

(b)
on an application by the defendant for the dismissal of the claim under

this section, the court is satisfied on the balance of probabilities that the

claimant has been fundamentally dishonest in relation to the primary

claim or a related claim.

(2)
The court must dismiss the primary claim, unless it is satisfied that the claimant

would suffer substantial injustice if the claim were dismissed.

(3)
The duty under subsection (2) includes the dismissal of any element of the

primary claim in respect of which the claimant has not been dishonest.

(4)
The court’s order dismissing the claim must record the amount of damages that

the court would have awarded to the claimant in respect of the primary claim but

for the dismissal of the claim.

(5)
A costs order made by a court which dismisses a claim under this section may

require the claimant to pay costs incurred by the defendant only to the extent that

they exceed the amount of the damages recorded in accordance with subsection

(4).

(6)
If a claim is dismissed under this section, subsection (7) applies to—

(a)
any subsequent criminal proceedings against the claimant in respect of

the fundamental dishonesty mentioned in subsection (1)(b), and

(b)
any subsequent proceedings for contempt of court against the claimant in

respect of that dishonesty.

(7)
If the court in those proceedings finds the claimant guilty of an offence or of

contempt of court, it must have regard to the dismissal of the primary claim under

this section when sentencing the claimant or otherwise disposing of the

proceedings.

(8)
In this section—

“personal injury” includes any disease and any other impairment of a

person’s physical or mental condition;

“related claim” means a claim for damages in respect of personal injury

which is made—

(d)
in connection with the same incident or series of incidents in

connection with which the primary claim is made, and

(e)
by a person other than the person who made the primary claim;

Consideration of Bill: 17 June 2014
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Criminal Justice and Courts Bill, continued

“claim” includes a counter-claim and, accordingly, “claimant” includes a

counter-claimant and “defendant” includes a defendant to a counter-

claim.

(9)
This section does not apply to proceedings started by the issue of a claim form

before the date on which this section comes into force.”

Member’s explanatory statement

This new clause requires a court to dismiss in its entirety any personal injury claim where it is

satisfied that the claimant has been fundamentally dishonest, unless it would cause substantial

injustice to the claimant to do so, and makes certain related provision.

Ann Coffey

NC8

To move the following Clause—

“Giving evidence at remote sites

(1)
The Youth Justice and Criminal Evidence Act 1999 is amended as follows.

(2)
After Section (30) insert—

“30A
Giving evidence at remote sites

(1)
A special measures direction may provide for persons eligible for

assistance under section (16) to give evidence at a remote site.

(2)
For the purposes of this section any facility may be designated as a

remote site where the court is satisfied that all the five criteria as follows

have been met—

(a)
the facility must be suitable for hearing evidence;

(b)
the facility must be absent from the court building;

(c)
the location of the facility must be appropriate to meet the needs

and promote the welfare of the witness;

(d)
the arrangement must not prevent the witness from being able to

see, and to be seen by—

(i)
the judge or justices (or both) and the jury (if there is

one);

(ii)
legal representatives acting in the proceedings; and

(iii)
any interpreter or other person appointed (in pursuance

of the direction or otherwise) to assist the witness.”.”

Ann Coffey

NC9

To move the following Clause—

“Persons under 11 years of age to give evidence through intermediaries

(1)
The Youth Justice and Criminal Evidence 1999 is amended as follows.

(2)
After Section (29) insert—



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