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Legal Aid, Sentencing and Punishment of Offenders BillPage 100

from the country or territory from which that person has been
transferred, other than the offence in respect of which the
person has been transferred.

(3) For the purposes of subsection (2), the conditions are as follows—

(a) 5the person has consented to the transfer;

(b) the offence is an offence which is not punishable with
imprisonment or another form of detention;

(c) the offence is an offence in respect of which the person will not
be detained in connection with the person’s trial, sentence or
10appeal;

(d) the person is given an opportunity to leave Great Britain and—

(i) the person does not do so before the end of the
permitted period, or

(ii) if the person does so before the end of the permitted
15period, the person subsequently returns to Great Britain;

(e) after the transfer has taken place, the person has made a
renunciation of the application of subsection (2) to the offence;

(f) the appropriate authority of the country or territory from which
the person has been transferred consents to the prosecution of
20the offence.

(4) For the purpose of subsection (3)(d) the “permitted period” is 45 days
starting with the day on which the person’s sentence ends.

(5) For the purpose of subsection (3)(e) a renunciation must be made before
a court before which the person may be prosecuted for that offence.

(6) 25In this section a “speciality provision” means a provision preventing or
limiting the prosecution, detention or other restriction of liberty of the
person (“P”) for any offence committed before the departure of P from
the country or territory from which P has been transferred, other than
for the offence in respect of which P has been transferred.

120 30Transit of prisoners

(1) In the Repatriation of Prisoners Act 1984, after section 6 insert—

6A Transit

(1) The relevant Minister may issue a transit order where—

(a) the United Kingdom is a party to international arrangements
35providing for the transfer between the United Kingdom and a
country or territory outside the British Islands of persons to
whom subsection (2) applies; and

(b) the relevant Minister has received a request from the
appropriate authority of that country or territory in accordance
40with those arrangements for the transit of a person to whom
subsection (2) applies through a part of Great Britain.

(2) A person falls within this subsection if—

(a) that person is for the time being required to be detained in a
prison, a hospital or any other institution either—

Legal Aid, Sentencing and Punishment of Offenders BillPage 101

(i) by virtue of an order made in the course of the exercise
by a court or tribunal in a country or territory outside
the British Islands of its criminal jurisdiction; or

(ii) by virtue of any provisions of the law of such a country
5or territory which are similar to any of the provisions of
this Act; and

(b) except in a case where a transit request is made in the
circumstances described in section 6D(1), that person is present
in a country or territory outside the British Islands.

(3) 10Terms used in subsection (2)(a) have the same meaning as in section
1(7).

(4) In this section and sections 6B, 6C and 6D “transit order” means an
order issued by the relevant Minister, in respect of a person who has
been the subject of a request within subsection (1)(b), which authorises
15the detention of that person in any part of Great Britain at any time
when that person is in transit.

(5) In subsection (4) “detention” includes detention while the person is
being taken from one place to another place within Great Britain.

(6) A person may be detained pursuant to a transit order only for as long
20as is reasonable and necessary to allow the transit to take place.

(7) In this section and section 6B “relevant Minister” means—

(a) the Scottish Ministers, in a case where it is proposed that the
person who is the subject of a request under subsection (1)(b)
will, whilst in transit—

(i) 25be present only in Scotland, or

(ii) arrive in Scotland before being taken to another part of
Great Britain;

(b) the Secretary of State, in any other case.

(8) For the purposes of this section and sections 6B and 6C a person who is
30the subject of a transit order is “in transit” at any time during the period
beginning with the arrival of that person in Great Britain and ending
with the removal of that person from Great Britain.

6B Transit: supplementary

(1) A person who is the subject of a transit order is deemed to be in the legal
35custody of the relevant Minister at any time when that person is in
transit.

(2) A constable may for the purposes of a transit order detain a person who
is the subject of that order.

(3) The relevant Minister may, from time to time, designate any person as
40a person who is for the time being authorised for the purposes of a
transit order to detain a person under the order.

(4) A person authorised under subsection (3) has all the powers, authority,
protection and privileges of a constable in any part of Great Britain in
which the person who is the subject of the transit order is for the time
45being.

Legal Aid, Sentencing and Punishment of Offenders BillPage 102

(5) If a person who is the subject of a transit order escapes or is unlawfully
at large, that person may be arrested without warrant by a constable.

(6) A constable may search a person who is the subject of a transit order,
and any item in the possession of that person, for any item which that
5person might use—

(a) to cause physical injury to that person or to any other person; or

(b) to assist that person to escape from detention.

(7) The power conferred by subsection (6) does not authorise a constable to
require a person to remove any clothing other than an outer coat, jacket,
10headgear or gloves.

(8) The power conferred by subsection (6) includes power to use
reasonable force where necessary.

(9) A constable searching a person in the exercise of the power conferred
by subsection (6) may seize any item found if the constable has
15reasonable grounds for believing that the person searched might use
the item —

(a) to cause physical injury to that person or to any other person; or

(b) to assist that person to escape from detention.

(10) Any item seized from a person under subsection (9) may be retained
20while that person is in transit.

(11) In this section “constable” means—

(a) any person who is a constable in any part of Great Britain or
who has, under any enactment (including subsection (4) above),
the powers of a constable in any part of Great Britain, or

(b) 25any person who is a prison officer within the meaning of section
117(1) of the Criminal Justice and Public Order Act 1994.

(12) A person who is a constable by virtue of subsection (11)(a) has, for the
purposes of section 6A, this section and section 6C, all the powers,
authority, protection and privileges of a constable in any part of Great
30Britain in which a person who is the subject of a transit order is for the
time being.

6C Transit through different parts of Great Britain

(1) Where the Scottish Ministers issue a transit order and it is proposed
that the person who is the subject of the order will be taken to a part of
35Great Britain other than Scotland whilst in transit, they must notify the
Secretary of State.

(2) The Scottish Ministers need not notify the Secretary of State where the
Secretary of State has agreed in writing to the transit order.

(3) Unless the Secretary of State agrees in writing to the transit order, that
40order authorises the detention of the person subject to it in Scotland
only.

(4) But where the person escapes or is unlawfully at large, the order also
authorises—

(a) the arrest of the person under section 6B(5) in a part of Great
45Britain other than Scotland, and

Legal Aid, Sentencing and Punishment of Offenders BillPage 103

(b) the detention of the person in that part by a constable (within
the meaning of that section) for the purpose of taking the person
to Scotland.

(5) Where the Secretary of State issues a transit order and it is proposed
5that the person who is the subject of the order will be taken to Scotland
whilst in transit, the Secretary of State must notify the Scottish
Ministers.

(6) The Secretary of State need not notify the Scottish Ministers where the
Scottish Ministers have agreed in writing to the transit order.

(7) 10Unless the Scottish Ministers agree in writing to the transit order, that
order authorises the detention of the person subject to it only in a part
of Great Britain other than Scotland.

(8) But where the person escapes or is unlawfully at large, the order also
authorises—

(a) 15the arrest of the person under section 6B(5) in Scotland, and

(b) the detention of the person in Scotland by a constable (within
the meaning of that section) for the purpose of taking the person
to a part of Great Britain other than Scotland.

6D Transit: unscheduled arrivals

(1) 20This section applies where—

(a) a person is being transferred between two countries or
territories outside the United Kingdom in accordance with
international arrangements between those two countries or
territories providing for the transfer of persons within section
256A(2)(a),

(b) the United Kingdom is a party to international arrangements of
the kind mentioned in section 6A(1)(a) with at least one of those
countries or territories such that the country or territory can
make a request under section 6A(1)(b), and

(c) 30the person makes an unscheduled arrival in Great Britain.

(2) A constable may detain a person to whom subsection (1) applies until
the expiry of the period of 72 hours beginning with the person’s arrival
in Great Britain or until a transit order is issued under section 6A in
respect of that person, whichever is the sooner.

(3) 35In this section “constable” means any person who is a constable in any
part of Great Britain or who has, under any enactment (including
section 6B(4) above), the powers of a constable in any part of Great
Britain.

(4) A person who is a constable by virtue of subsection (3) has for the
40purposes of this section all the powers, authority, protection and
privileges of a constable in the part of Great Britain in which the person
mentioned in subsection (2) is for the time being.

(2) In section 9 of the Repatriation of Prisoners Act 1984 (short title,
commencement and extent)—

(a) 45at the beginning of subsection (3) insert “Subject to subsection (3A),”,
and

Legal Aid, Sentencing and Punishment of Offenders BillPage 104

(b) after that subsection insert—

(3A) Sections 3A and 6A to 6D extend to England and Wales and
Scotland only.

CHAPTER 7 Out of court disposals

5Penalty notices

121 Penalty notices for disorderly behaviour

Schedule 20 (which amends the provision for penalty notices for disorderly
behaviour) has effect.

Cautions

122 10Conditional cautions: involvement of prosecutors

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

(2) In section 22(3A) (conditions that may be attached to a conditional caution) for
“by a relevant prosecutor” substitute “in the condition”.

(3) In section 23(2) (relevant prosecutor must decide there is sufficient evidence to
15prosecute and that a conditional caution should be given) after “a relevant
prosecutor” insert “or the authorised person”.

(4) In section 23A(5) (relevant prosecutor must specify amount of financial penalty
and how it is to be paid etc) for “a relevant prosecutor must also” substitute
“the condition must”.

(5) 20In section 23B (variation of conditions by relevant prosecutor) after “A relevant
prosecutor” insert “or an authorised person”.

(6) In section 25 (code of practice) in subsection (2)(ga) (Secretary of State’s code
of practice may include provision about what a relevant prosecutor may
provide under section 23A(5)(b)) for “by a relevant prosecutor” substitute “in
25a condition”.

123 Conditional cautions: removal etc of certain foreign offenders

In section 22 of the Criminal Justice Act 2003 (conditional cautions)—

(a) in subsection (3) (both as originally enacted and as substituted by
section 17 of the Police and Justice Act 2006) (conditions attached to
30conditional cautions to have certain objects) for “such a caution”
substitute “any conditional caution”, and

(b) after subsection (3C) insert—

(3D) A conditional caution given to a relevant foreign offender may
have conditions attached to it that have one or more of the
35objects mentioned in subsection (3E) (whether or not in addition
to conditions with one or more of the objects mentioned in
subsection (3)).

Legal Aid, Sentencing and Punishment of Offenders BillPage 105

(3E) The objects are—

(a) bringing about the departure of the relevant foreign
offender from the United Kingdom;

(b) ensuring that the relevant foreign offender does not
5return to the United Kingdom for a period of time.

(3F) If a relevant foreign offender is given a conditional caution with
a condition attached to it with the object of ensuring that the
offender does not return to the United Kingdom for a period of
time, the expiry of that period does not of itself give rise to any
10right on the part of the offender to return to the United
Kingdom.

(3G) In this section “relevant foreign offender” means—

(a) an offender directions for whose removal from the
United Kingdom have been, or may be, given under—

(i) 15Schedule 2 to the Immigration Act 1971, or

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

(b) an offender against whom a deportation order under
section 5 of the Immigration Act 1971 is in force.

20Youth cautions

124 Youth cautions

(1) Omit sections 65 (reprimands and warning) and 66 (effect of reprimands and
warnings) of the Crime and Disorder Act 1998.

(2) Before section 66A of that Act insert—

25Young offenders: youth cautions
66ZA Youth cautions

(1) A constable may give a child or young person (“Y”) a caution under this
section (a “youth caution”) if—

(a) the constable decides that there is sufficient evidence to charge
30Y with an offence,

(b) Y admits to the constable that Y committed the offence, and

(c) the constable does not consider that Y should be prosecuted or
given a youth conditional caution in respect of the offence.

(2) A youth caution given to a person under the age of 17 must be given in
35the presence of an appropriate adult.

(3) If a constable gives a youth caution to a person, the constable must
explain the matters referred to in subsection (4) in ordinary language
to—

(a) that person, and

(b) 40where that person is under the age of 17, the appropriate adult.

(4) Those matters are—

(a) the effect of subsections (1) to (3) and (5) to (7) of section 66ZB,
and

Legal Aid, Sentencing and Punishment of Offenders BillPage 106

(b) any guidance issued under subsection (4) of that section.

(5) The Secretary of State must publish, in such manner as the Secretary of
State considers appropriate, guidance as to—

(a) the circumstances in which it is appropriate to give youth
5cautions,

(b) the places where youth cautions may be given,

(c) the category of constable by whom youth cautions may be
given, and

(d) the form which youth cautions are to take and the manner in
10which they are to be given and recorded.

(6) No caution other than a youth caution or a youth conditional caution
may be given to a child or young person.

(7) In this Chapter “appropriate adult”, in relation to a child or young
person, means—

(a) 15a parent or guardian of the child or young person,

(b) if the child or young person is in the care of a local authority or
voluntary organisation, a person representing that authority or
organisation,

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

(d) 20if no person falling within paragraph (a), (b) or (c) is available,
any responsible person aged 18 or over who is not a police
officer or a person employed by the police.

66ZB Effect of youth cautions

(1) If a constable gives a youth caution to a person, the constable must as
25soon as practicable refer the person to a youth offending team.

(2) Subject to subsection (3), on a referral of a person under subsection (1),
the youth offending team—

(a) must assess the person, and

(b) unless they consider it inappropriate to do so, must arrange for
30the person to participate in a rehabilitation programme.

(3) If the person has not previously been referred under subsection (1) and
has not previously been given a youth conditional caution, the youth
offending team—

(a) may assess the person, and

(b) 35may arrange for the person to participate in a rehabilitation
programme.

(4) The Secretary of State must publish, in such manner as the Secretary of
State considers appropriate, guidance as to—

(a) what should be included in a rehabilitation programme
40arranged for a person under subsection (2) or (3),

(b) the manner in which any failure by a person to participate in a
programme is to be recorded, and

(c) the persons to whom any such failure must be notified.

(5) Subsection (6) applies if—

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(a) a person who has received two or more youth cautions is
convicted of an offence committed within two years beginning
with the date of the last of those cautions, or

(b) a person who has received a youth conditional caution followed
5by a youth caution is convicted of an offence committed within
two years beginning with the date of the youth caution.

(6) The court by or before which the person is convicted—

(a) must not make an order under section 12(1)(b) of the Powers of
Criminal Courts (Sentencing) Act 2000 (conditional discharge)
10in respect of the offence unless it is of the opinion that there are
exceptional circumstances relating to the offence or the person
that justify it doing so, and

(b) where it does so, must state in open court that it is of that
opinion and its reasons for that opinion.

(7) 15There may be cited in criminal proceedings—

(a) a youth caution given to a person, and

(b) a report on a failure by a person to participate in a rehabilitation
programme arranged for the person under subsection (2) or (3),

in the same circumstances as a conviction of the person may be cited.

(8) 20In this section “rehabilitation programme” means a programme with
the purpose of rehabilitating participants and preventing them from re-
offending.

(3) Schedule 21 (youth cautions: consequential amendments) has effect.

(4) The amendments made by this section and that Schedule do not apply in
25relation to an offence committed before they come into force.

(5) A reprimand or warning of a person under section 65 of the Crime and
Disorder Act 1998, or any caution treated as such by virtue of paragraph 5 of
Schedule 9 to that Act, is to be treated for the purposes of any enactment or
instrument as a youth caution given to that person under section 66ZA(1) of
30that Act.

(6) A referral of a person to a youth offending team under section 66(1) of the
Crime and Disorder Act 1998 is to be treated for the purposes of section 66ZB
of that Act as a referral under that section.

(7) A rehabilitation programme provided under section 66 of the Crime and
35Disorder Act 1998 is to be treated for the purposes of any enactment or
instrument as provided under section 66ZA of that Act.

125 Youth conditional cautions: previous convictions

In section 66A(1) of the Crime and Disorder Act 1998 (requirements to be met
before youth conditional caution may be given) omit paragraph (a) and the
40“and” at the end of that paragraph (requirement of no previous convictions).

126 Youth conditional cautions: references to youth offending teams

In section 66A of the Crime and Disorder Act 1998 (youth conditional cautions)

Legal Aid, Sentencing and Punishment of Offenders BillPage 108

after subsection (6) insert—

(6A) If an authorised person gives a youth conditional caution to an
offender, the authorised person must as soon as practicable refer the
offender to a youth offending team.

127 5Youth conditional cautions: involvement of prosecutors

(1) The Crime and Disorder Act 1998 is amended as follows.

(2) In section 66A(4) (conditions that may be attached to a youth conditional
caution) for “by a relevant prosecutor” substitute “in the condition”.

(3) In section 66B(2) (relevant prosecutor must decide that there is sufficient
10evidence to prosecute and that a conditional caution should be given) after “a
relevant prosecutor” insert “or the authorised person”.

(4) In section 66C(5) (relevant prosecutor must specify amount of financial penalty
and how it must be paid etc) for “a relevant prosecutor must also” substitute
“the condition must”.

(5) 15In section 66D (variation of conditions by relevant prosecutor) after “A relevant
prosecutor” insert “or an authorised person”.

(6) In section 66G (code of practice) in subsection (2)(h) (Secretary of State’s code
of practice may include provision about what a relevant prosecutor may
provide under section 66C(5)(b)) for “by a relevant prosecutor” substitute “in a
20condition”.

CHAPTER 8 Offences

128 Offences of threatening with article with blade or point or offensive weapon
in public or on school premises

(1) In the Prevention of Crime Act 1953, after section 1 (prohibition of the carrying
25of offensive weapons without lawful authority or reasonable excuse) insert—

1A Offence of threatening with weapon in public

(1) A person is guilty of an offence if that person—

(a) has an offensive weapon with him or her in a public place,

(b) unlawfully and intentionally threatens another person with the
30weapon, and

(c) does so in such a way that there is an immediate risk of serious
physical harm to that other person.

(2) For the purposes of this section physical harm is serious if it amounts
to grievous bodily harm for the purposes of the Offences against the
35Person Act 1861.

(3) In this section “public place” and “offensive weapon” have the same
meaning as in section 1.

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

Legal Aid, Sentencing and Punishment of Offenders BillPage 109

(a) on summary conviction, to imprisonment for a term not
exceeding 12 months or to a fine not exceeding the statutory
maximum, or to both;

(b) on conviction on indictment, to imprisonment for a term not
5exceeding 4 years or to a fine, or to both.

(5) Where a person aged 16 or over is convicted of an offence under this
section, the court must impose an appropriate custodial sentence (with
or without a fine) unless the court is of the opinion that there are
particular circumstances which—

(a) 10relate to the offence or to the offender, and

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

(6) In this section “appropriate custodial sentence” means—

(a) in the case of a person who is aged 18 or over when convicted,
a sentence of imprisonment for a term of at least 6 months;

(b) 15in the case of a person who is aged at least 16 but under 18 when
convicted, a detention and training order of at least 4 months.

(7) In considering whether it is of the opinion mentioned in subsection (5)
in the case of a person aged under 18, the court must have regard to its
duty under section 44 of the Children and Young Persons Act 1933.

(8) 20In relation to an offence committed before the commencement of
section 154(1) of the Criminal Justice Act 2003, the reference in
subsection (4)(a) to 12 months is to be read as a reference to 6 months.

(9) 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
25reference in subsection (6)(a) 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.

(10) If on a person’s trial for an offence under this section (whether on
indictment or not) the person is found not guilty of that offence but it is
30proved that the person committed an offence under section 1, the
person may be convicted of the offence under that section.

(2) In the Criminal Justice Act 1988 after section 139A (offence of having article
with blade or point or offensive weapon on school premises) insert—

139AA Offence of threatening with article with blade or point or offensive
35weapon

(1) A person is guilty of an offence if that person—

(a) has an article to which this section applies with him or her in a
public place or on school premises,

(b) unlawfully and intentionally threatens another person with the
40article, and

(c) does so in such a way that there is an immediate risk of serious
physical harm to that other person.

(2) In relation to a public place this section applies to an article to which
section 139 applies.

(3) 45In relation to school premises this section applies to each of these—

(a) an article to which section 139 applies;

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