House of Commons Public Bill Committee Proceedings

Session 2014 - 15
Internet Publications
Other Bills before Parliament

Report Stage Proceedings: 17 June 2014
27

Criminal Justice and Courts Bill, continued

(2D)
In relation to times before the coming into force of paragraph 180 of

Schedule 7 to the Criminal Justice and Court Services Act 2000, the

reference in subsection (2B) to a sentence of imprisonment in relation to

an offender aged under 21 at the time of conviction, is to be read as a

reference to a sentence of detention in a young offender institution.”

(3)
The Criminal Justice Act 1988 is amended as follows.

(4)
In section 139 (Offence of having article with blade or point in public place) after

subsection (6) insert—

“(6A)
Subsection (6b) applies where—

(a)
a person is convicted of an offence under subsection (1)

committed after this subsection is commenced;

(b)
at the time when the offence was committed, he was 18 or over

and had one other conviction under—

(i)
subsection (1);

(ii)
section 139A;

(iii)
section 139AA; or

(iv)
sections (1) or (1A) of the Prevention of Crime Act

1953;

(c)
the offence was committed after he had been convicted of the

other.

(6B)
Where a person is convicted of an offence under subsection (1) the court

must impose a sentence of imprisonment for a term of at least 6 months

unless the court is of the opinion that there are particular circumstances

which—

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

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

(6C)
Where an offence is found to have been committed over a period of two

or more days, or at some time during a period of two or more days, it shall

be taken for the purposes of this section to have been committed on the

last of those days.

(6D)
In relation to times before the coming into force of paragraph 180 of

Schedule 7 to the Criminal Justice and Court Services Act 2000, the

reference in subsection (6B) to a sentence of imprisonment, in relation to

an offender aged under 21 at the time of conviction, is to be read as a

reference to a sentence of detention in a young offender institution.”

(5)
In section 139A (Offence of having article with blade or point (or offensive

weapon)) on school premises after subsection (5) insert—

“(5A)
Section (5B) applies where—

(a)
a person is convicted of an offence under subsection (1)

committed after this subsection is commenced;

(b)
at the time when the offence was committed, he was 18 or over

and had one other conviction under—

(i)
subsection (1);

(ii)
section 139;

(iii)
section 139AA; or

(iv)
sections (1) or (1A) of the Prevention of Crime Act

1953;

(c)
the offence was committed after he had been convicted of the

other.

Report Stage Proceedings: 17 June 2014
28

Criminal Justice and Courts Bill, continued

(5B)
Where a person is convicted of an offence under subsection (1) the court

must impose a sentence of imprisonment for a term of at least 6 months

unless the court is of the opinion that there are particular circumstances

which—

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

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

(5C)
Where an offence is found to have been committed over a period of two

or more days, or at some time during a period of two or more days, it shall

be taken for the purposes of this section to have been committed on the

last of those days.

(5D)
In relation to times before the coming into force of paragraph 180 of

Schedule 7 to the Criminal Justice and Court Services Act 2000, the

reference in subsection (5B) to a sentence of imprisonment, in relation to

an offender aged under 21 at the time of conviction, is to be read as a

reference to a sentence of detention in a young offender institution.”.”

REMAINING NEW CLAUSES and NEW SCHEDULES

Secretary Chris Grayling

Added  NC44

To move the following Clause—

“Corrupt or other improper exercise of police powers and privileges

(1)
A police constable commits an offence if he or she—

(a)
exercises the powers and privileges of a constable improperly, and

(b)
knows or ought to know that the exercise is improper.

(2)
A police constable guilty of an offence under this section is liable, on conviction

on indictment, to imprisonment for a term not exceeding 14 years or a fine (or

both).

(3)
“Police constable” means—

(a)
a constable of a police force;

(b)
a special constable for a police area;

(c)
a constable or special constable of the British Transport Police Force;

(d)
a constable of the Civil Nuclear Constabulary;

(e)
a constable of the Ministry of Defence Police;

(f)
a National Crime Agency officer designated by the Director General of

the National Crime Agency as having the powers and privileges of a

constable.

(4)
For the purposes of this section, a police constable exercises the powers and

privileges of a constable improperly if—

(a)
he or she exercises a power or privilege of a constable for the purpose of

achieving—

(i)
a benefit for himself or herself, or

(ii)
a benefit or a detriment for another person, and

(b)
a reasonable person would not expect the power or privilege to be

exercised for the purpose of achieving that benefit or detriment.

Report Stage Proceedings: 17 June 2014
29

Criminal Justice and Courts Bill, continued

(5)
For the purposes of this section, a police constable is to be treated as exercising

the powers and privileges of a constable improperly in the cases described in

subsections (6) and (7).

(6)
The first case is where—

(a)
the police constable fails to exercise a power or privilege of a constable,

(b)
the purpose of the failure is to achieve a benefit or detriment described in

subsection (4)(a), and

(c)
a reasonable person would not expect a constable to fail to exercise the

power or privilege for the purpose of achieving that benefit or detriment.

(7)
The second case is where—

(a)
the police constable threatens to exercise, or not to exercise, a power or

privilege of a constable,

(b)
the threat is made for the purpose of achieving a benefit or detriment

described in subsection (4)(a), and

(c)
a reasonable person would not expect a constable to threaten to exercise,

or not to exercise, the power or privilege for the purpose of achieving that

benefit or detriment.

(8)
An offence is committed under this section if the act or omission in question takes

place in England and Wales or in the adjacent United Kingdom waters.

(9)
In this section—

“benefit” and “detriment” mean any benefit or detriment, whether or not in

money or other property and whether temporary or permanent;

“United Kingdom waters” means the sea and other waters within the

seaward limits of the United Kingdom’s territorial sea.

(10)
References in this section to exercising, or not exercising, the powers and

privileges of a constable include performing, or not performing, the duties of a

constable.

(11)
Nothing in this section affects what constitutes the offence of misconduct in

public office at common law.”

Member’s explanatory statement

This new Clause makes it an offence for a police officer and certain other persons to exercise the

powers and privileges of a constable in a way which is corrupt or otherwise improper. It

supplements the existing common law offence of misconduct in public office.

Secretary Chris Grayling

Added  NC45

To move the following Clause—

“Ill-treatment or wilful neglect: care worker offence

(1)
It is an offence for an individual who has the care of another individual by virtue

of being a care worker to ill-treat or wilfully to neglect that individual.

(2)
An individual guilty of an offence under this section is liable—

(a)
on conviction on indictment, to imprisonment for a term not exceeding 5

years or a fine (or both);

(b)
on summary conviction, to imprisonment for a term not exceeding 12

months or a fine (or both).

(3)
“Care worker” means an individual who, as paid work, provides—

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

Report Stage Proceedings: 17 June 2014
30

Criminal Justice and Courts Bill, continued

(b)
social care for an adult,


including an individual who, as paid work, supervises or manages individuals

providing such care or is a director or similar officer of an organisation which

provides such care.

(4)
An individual does something as “paid work” if he or she receives or is entitled

to payment for doing it other than—

(a)
payment in respect of the individual’s reasonable expenses,

(b)
payment to which the individual is entitled as a foster parent,

(c)
a benefit under social security legislation, or

(d)
a payment made under arrangements under section 2 of the Employment

and Training Act 1973 (arrangements to assist people to select, train for,

obtain and retain employment).

(5)
“Health care” includes—

(a)
all forms of health care provided for individuals, including health care

relating to physical health or mental health and health care provided for

or in connection with the protection or improvement of public health, and

(b)
procedures that are similar to forms of medical or surgical care but are

not provided in connection with a medical condition,


and “excluded health care” has the meaning given in Schedule (Ill-treatment or

wilful neglect: excluded health care).

(6)
“Social care” includes all forms of personal care and other practical assistance

provided for individuals who are in need of such care or assistance by reason of

age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs or

any other similar circumstances.

(7)
References in this section 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.

(8)
In this section—

“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.

Report Stage Proceedings: 17 June 2014
31

Criminal Justice and Courts Bill, continued

Secretary Chris Grayling

Added  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,


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

Report Stage Proceedings: 17 June 2014
32

Criminal Justice and Courts Bill, continued

(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 NS2), 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.

Secretary Chris Grayling

Added  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

Report Stage Proceedings: 17 June 2014
33

Criminal Justice and Courts Bill, continued

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 46, 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

Added  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;


(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.



© Parliamentary copyright	Revised 18 June 2014