Legal Aid, Sentencing and Punishment of Offenders Bill (HL Bill 109)

(7) “Client”—

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

(b) where subsection (4)(b) applies, has the meaning given by the
5regulations.

(8) Payment includes any form of consideration (but does not include the
provision of hospitality that is reasonable in the circumstances).

55 Effect of the rules against referral fees

(1) The relevant regulator must ensure that it has appropriate arrangements for
10monitoring and enforcing the restrictions imposed on regulated persons by
section 54.

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

(3) The rules may in particular provide for the relevant regulator to exercise in
relation to anything done in breach of that section any powers (subject to
15subsections (5) and (6)) that the regulator would have in relation to anything
done by the regulated person in breach of another restriction.

(4) Where the relevant regulator is the Financial Services Authority, section 56
applies instead of subsections (1) to (3) (and (7) to (9)).

(5) A breach of section 54—

(a) 20does not make a person guilty of an offence, and

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

(6) A breach of section 54 does not make anything void or unenforceable, but a
contract to make or pay for a referral or arrangement in breach of that section
is unenforceable.

(7) 25Subsection (8) applies in a case where—

(a) a referral of prescribed legal business has been made by or to a
regulated person, or

(b) a regulated person has made an arrangement as mentioned in section
54(2)(a),

30and it appears to the regulator that a payment made to or by the regulated
person may be a payment for the referral or for making the arrangement (a
“referral fee”).

(8) Rules under subsection (2) may provide for the payment to be treated as a
referral fee unless the regulated person shows that the payment was made—

(a) 35as consideration for the provision of services, or

(b) for another reason,

and not as a referral fee.

(9) For the purposes of provision made by virtue of subsection (8) a payment that
would otherwise be regarded as consideration for the provision of services of
40any description may be treated as a referral fee if it exceeds the amount
specified in relation to services of that description in regulations made by the
Lord Chancellor.

56 Regulation by the FSA

(1) The Treasury may make regulations to enable the Financial Services Authority,
where it is the relevant regulator, to take action for monitoring and enforcing
compliance with the restrictions imposed on regulated persons by section 54.

(2) 5The regulations may apply, or make provision corresponding to, any of the
provisions of the Financial Services and Markets Act 2000 with or without
modification.

(3) Those provisions include in particular—

(a) provisions as to investigations, including powers of entry and search
10and criminal offences;

(b) provisions for the grant of an injunction in relation to a contravention
or anticipated contravention.

(c) provisions giving Ministers or the Financial Services Authority powers
to make subordinate legislation;

(d) 15provisions for the Financial Services Authority to charge fees.

(4) The regulations may make provision corresponding to the provision that may
be made by virtue of section 55(7) to (9) (but as if the reference to the Lord
Chancellor were a reference to the Treasury).

(5) The power to make regulations under this section is subject to section 55(5) and
20(6).

57 Regulators and regulated persons

(1) In relation to a referral of business within section 54(4)(a)—

(a) a regulator is any person listed in column 1 below;

(b) a regulated person is any person listed in column 2;

(c) 25a regulator in column 1 is the relevant regulator in relation to the
corresponding person in column 2.

(2) In relation to a referral of prescribed legal business of any other kind—

(a) a regulator is any person listed in column 1 below and specified in
relation to business of that kind in regulations made by the Lord
Chancellor;

(b) 15a regulated person is any person specified in accordance with column
2 in relation to business of that kind;

(c) a person specified under paragraph (a) in relation to business of that
kind is the relevant regulator in relation to a person specified in
accordance with the corresponding entry in column 2 in relation to
20business of that kind.

58 Referral fees: regulations

(1) This section applies to any regulations under sections 54 to 57.

(2) The regulations are to be made by statutory instrument.

(3) The power to make the regulations includes power to make consequential,
5supplementary, incidental, transitional, transitory or saving provision.

(4) A statutory instrument containing the regulations may not be made unless a
draft of the instrument has been laid before, and approved by a resolution of,
each House of Parliament.

Costs in criminal cases

59 10Costs in criminal cases

(1) Schedule 7 (costs in criminal cases) has effect.

(2) Schedule 8 (costs in criminal cases: service courts) has effect.

Part 3 Sentencing and Punishment of Offenders

CHAPTER 1 15Sentencing

General

60 Court’s duty to consider compensation order

(1) In section 130 of the Powers of Criminal Courts (Sentencing) Act 2000
(compensation orders against convicted persons), after subsection (2) insert—

“(2A) 20A court must consider making a compensation order in any case where
this section empowers it to do so.”

(2) In section 175 of the Armed Forces Act 2006 (service compensation orders),
after subsection (7) insert—

“(7A) The court must consider making a service compensation order in any
25case where it has power to do so.”

61 Duty to give reasons for and to explain effect of sentence

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

(2) For section 174 substitute—

“174 Duty to give reasons for and to explain effect of sentence

(1) 30A court passing sentence on an offender has the duties in subsections
(2) and (3).

(2) The court must state in open court, in ordinary language and in general
terms, the court’s reasons for deciding on the sentence.

(3) The court must explain to the offender in ordinary language—

(a) the effect of the sentence,

(b) the effects of non-compliance with any order that the offender
is required to comply with and that forms part of the sentence,

(c) 5any power of the court to vary or review any order that forms
part of the sentence, and

(d) the effects of failure to pay a fine, if the sentence consists of or
includes a fine.

(4) The Lord Chancellor may by order—

(a) 10prescribe cases in which either duty does not apply, and

(b) prescribe cases in which the statement or explanation may be
made in the absence of the offender, or may be provided in
written form.

(5) Subsections (6) to (8) are particular duties of the court in complying
15with the duty in subsection (2).

(6) The court must identify any definitive sentencing guidelines relevant to
the offender’s case and—

(a) explain how the court discharged any duty imposed on it by
section 125 of the Coroners and Justice Act 2009 (duty to follow
20guidelines unless satisfied it would be contrary to the interests
of justice to do so);

(b) where the court was satisfied it would be contrary to the
interests of justice to follow the guidelines, state why.

(7) Where, as a result of taking into account any matter referred to in
25section 144(1) (guilty pleas), the court imposes a punishment on the
offender which is less severe than the punishment it would otherwise
have imposed, the court must state that fact.

(8) Where the offender is under 18 and the court imposes a sentence that
may only be imposed in the offender’s case if the court is of the opinion
30mentioned in—

(a) section 1(4)(a) to (c) of the Criminal Justice and Immigration Act
2008 and section 148(1) of this Act (youth rehabilitation order
with intensive supervision and surveillance or with fostering),
or

(b) 35section 152(2) of this Act (discretionary custodial sentence),

the court must state why it is of that opinion.

(9) In this section “definitive sentencing guidelines” means sentencing
guidelines issued by the Sentencing Council for England and Wales
under section 120 of the Coroners and Justice Act 2009 as definitive
40guidelines, as revised by any subsequent guidelines so issued.”

(3) In section 270 (duty to give reasons)—

(a) for subsection (1) substitute—

“(1) Subsection (2) applies where a court makes an order under
section 269(2) or (4).”, and

(b) 45in subsection (2) for “In stating its reasons” substitute “In complying
with the duty under section 174(1)(a) to state its reasons for deciding on
the order made,”.

(4) In the Armed Forces Act 2006—

(a) in section 252 (duty to give reasons and explain sentence), omit
subsection (2);

(b) in section 253 (duties in complying with section 252), omit subsections
5(1)(a), (c) and (d) and (2)(b) and (d) to (h).

(5) In consequence of the amendments made by this section omit—

(a) paragraph 9(6) of Schedule 1 to the Violent Crime Reduction Act 2006;

(b) paragraph 80 of Schedule 4 to the Criminal Justice and Immigration Act
2008;

(c) 10paragraph 24 of Schedule 25 to that Act;

(d) paragraph 84 of Schedule 21 to the Coroners and Justice Act 2009.

Community orders

62 Duration of community order

(1) In section 177 of the Criminal Justice Act 2003 (general provisions about
15community orders), in subsection (5) (requirement for order to specify date on
which requirements must have been complied with)—

(a) after the first “date” insert “(“the end date”)”, and

(b) omit the words from “; and” to the end of the subsection.

(2) After that subsection insert—

“(5A) 20If a community order imposes two or more different requirements
falling within subsection (1), the order may also specify a date by which
each of those requirements must have been complied with; and the last
of those dates must be the same as the end date.

(5B) Subject to section 200(3) (duration of community order imposing
25unpaid work requirement), a community order ceases to be in force on
the end date.”

(3) In Schedule 8 to that Act (breach, revocation or amendment of community
order), in paragraph 9 (powers of magistrates’ court in case of breach)—

(a) in sub-paragraph (3), for the words from “but may” to the end of the
30sub-paragraph substitute “but may only amend the order to substitute
a later date for that specified under section 177(5) in accordance with
sub-paragraphs (3ZA) and (3ZB)”, and

(b) after that sub-paragraph insert—

“(3ZA) A date substituted under sub-paragraph (3)—

(a) 35may not fall outside the period of six months
beginning with the date previously specified under
section 177(5);

(b) subject to that, may fall more than three years after the
date of the order.

(3ZB) 40The power under sub-paragraph (3) to substitute a date may
not be exercised in relation to an order if that power or the
power in paragraph 10(3) to substitute a date has previously
been exercised in relation to that order.

(3ZC) A date substituted under sub-paragraph (3) is to be treated as
having been specified in relation to the order under section
177(5).”

(4) In that Schedule, in paragraph 10 (powers of Crown Court in case of breach)—

(a) 5in sub-paragraph (3), for the words from “but may” to the end of the
sub-paragraph substitute “but may only amend the order to substitute
a later date for that specified under section 177(5) in accordance with
sub-paragraphs (3ZA) and (3ZB)”, and

(b) after that sub-paragraph insert—

“(3ZA) 10A date substituted under sub-paragraph (3)—

(a) may not fall outside the period of six months
beginning with the date previously specified under
section 177(5);

(b) subject to that, may fall more than three years after the
15date of the order.

(3ZB) The power under sub-paragraph (3) to substitute a date may
not be exercised in relation to an order if that power or the
power under paragraph 9(3) to substitute a date has
previously been exercised in relation to that order.

(3ZC) 20A date substituted under sub-paragraph (3) is to be treated as
having been specified in relation to the order under section
section 177(5).”

(5) In that Schedule, after paragraph 19 insert—

“Extension of order

19A (1) 25The appropriate court may, on the application of the offender or the
responsible officer, amend a community order by substituting a later
date for that specified under section 177(5).

(2) A date substituted under sub-paragraph (1)—

(a) may not fall outside the period of six months beginning with
30the date previously specified under section 177(5);

(b) subject to that, may fall more than three years after the date
of the order.

(3) The power under sub-paragraph (1) may not be exercised in relation
to an order if it has previously been exercised in relation to that
35order.

(4) A date substituted under sub-paragraph (1) is to be treated as having
been specified in relation to the order under section 177(5).

(5) In this paragraph “the appropriate court” has the same meaning as in
paragraph 16.”

63 40Breach of community order

(1) Schedule 8 to the Criminal Justice Act 2003 (breach, revocation or amendment
of community order) is amended as follows.

(2) In paragraph 9 (powers of magistrates’ court in case of breach), in sub-
paragraph (1)—

(a) in the opening words, for “must” substitute “may”, and

(b) after paragraph (a) insert—

“(aa) 5by ordering the offender to pay a fine of an amount
not exceeding £2,500;”.

(3) In that paragraph, after sub-paragraph (3A) insert—

“(3B) A fine imposed under sub-paragraph (1)(aa) is to be treated, for the
purposes of any enactment, as being a sum adjudged to be paid by a
10conviction.”

(4) In sub-paragraph (6) of that paragraph, for the words from “be required to” to
“or (c),” substitute “have the power to deal with the offender under sub-
paragraph (1)(a), (aa), (b) or (c),”.

(5) In paragraph 10 (powers of Crown Court in case of breach), in sub-paragraph
15(1)—

(a) in the opening words, for “must” substitute “may”, and

(b) after paragraph (a) insert—

“(aa) by ordering the offender to pay a fine of an amount
not exceeding £2,500;”.

(6) 20In that paragraph, after sub-paragraph (3A) insert—

“(3B) A fine imposed under sub-paragraph (1)(aa) is to be treated, for the
purposes of any enactment, as being a sum adjudged to be paid by a
conviction.”

(7) After paragraph 11 insert—

25“Power to amend amounts of fines

11A (1) The Secretary of State may by order amend any sum for the time
being specified in paragraph 9(1)(aa) or 10(1)(aa).

(2) The power conferred by sub-paragraph (1) may be exercised only if
it appears to the Secretary of State that there has been a change in the
30value of money since the relevant date which justifies the change.

(3) In sub-paragraph (2), “the relevant date” means—

(a) if the sum specified in paragraph 9(1)(aa) or 10(1)(aa) (as the
case may be) has been substituted by an order under sub-
paragraph (1), the date on which the sum was last so
35substituted;

(b) otherwise the date on which section 63 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2011 (which
inserted this paragraph) came into force.

(4) An order under sub-paragraph (1) (a “fine amendment order”) must
40not have effect in relation to any community order made in respect
of an offence committed before the fine amendment order comes into
force.”

Suspended sentence orders

64 Changes to powers to make suspended sentence order

(1) In section 189 of the Criminal Justice Act 2003 (suspended sentences of
imprisonment), for subsection (1) substitute—

“(1) 5If a court passes a sentence of imprisonment for a term of least 14 days
but not more than 2 years, it may make an order providing that the
sentence of imprisonment is not to take effect unless—

(a) during a period specified in the order for the purposes of this
paragraph (“the operational period”) the offender commits
10another offence in the United Kingdom (whether or not
punishable with imprisonment), and

(b) a court having power to do so subsequently orders under
paragraph 8 of Schedule 12 that the original sentence is to take
effect.

(1A) 15An order under subsection (1) may also provide that the offender must
comply during a period specified in the order for the purposes of this
subsection (“the supervision period”) with one or more requirements
falling within section 190(1) and specified in the order.

(1B) Where an order under subsection (1) contains provision under
20subsection (1A), it must provide that the sentence of imprisonment will
also take effect if—

(a) during the supervision period the offender fails to comply with
a requirement imposed under subsection (1A), and

(b) a court having power to do so subsequently orders under
25paragraph 8 of Schedule 12 that the original sentence is to take
effect.”

(2) In subsection (2) of that section (application of subsection (1) where
consecutive sentences imposed), for the words from “does not exceed” to the
end substitute “does not exceed 2 years”.

(3) 30In subsection (3) of that section (length of supervision period and operational
period), after “supervision period” insert “(if any)”.

(4) In subsection (4) of that section (supervision period not to end later than
operational period), at the beginning insert “Where an order under subsection
(1) imposes one or more community requirements,”.

(5) 35In subsection (7)(c) of that section (meaning of “community requirement”), for
“(1)(a)” substitute “(1A)”.

(6) Schedule 9 (changes to powers to make suspended sentence orders:
consequential and transitory provision) has effect.

(7) The amendments and modifications made by this section and that Schedule
40apply in relation to offences committed before or after the coming into force of
any provision of this section or that Schedule.

65 Fine for breach of suspended sentence order

(1) Schedule 12 to the Criminal Justice Act 2003 (breach or amendment of
suspended sentence order, and effect of further conviction) is amended as
follows.

(2) 5In paragraph 8 (powers of court in case of breach or conviction)—

(a) in sub-paragraph (2), after paragraph (b) insert—

“(ba) the court may order the offender to pay a fine of an
amount not exceeding £2,500,”,

(b) after sub-paragraph (4) insert—

“(4ZA) 10A fine imposed under sub-paragraph (2)(ba) is to be treated,
for the purposes of any enactment, as being a sum adjudged
to be paid by a conviction.”, and

(c) in sub-paragraph (6), after “(b)” insert “, (ba)”.

(3) After paragraph 12 insert—

15“Power to amend amount of fine

12A (1) The Secretary of State may by order amend the sum for the time
being specified in paragraph 8(2)(ba).

(2) The power conferred by sub-paragraph (1) may be exercised only if
it appears to the Secretary of State that there has been a change in the
20value of money since the relevant date which justifies the change.

(3) In sub-paragraph (2), “the relevant date” means—

(a) if the sum specified in paragraph 8(2)(ba) has been
substituted by an order under sub-paragraph (1), the date on
which the sum was last so substituted;

(b) 25otherwise the date on which section 65 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2011 (which
inserted this paragraph) came into force.

(4) An order under sub-paragraph (1) (a “fine amendment order”) must
not have effect in relation to any suspended sentence order made in
30respect of an offence committed before the fine amendment order
comes into force.”

Requirements under community orders and suspended sentence orders

66 Programme requirement

(1) In section 177(2) of the Criminal Justice Act 2003 (community orders:
35restrictions relating to particular requirements) omit paragraph (c) (which
refers to section 202(4) and (5) of that Act).

(2) In section 190(2) of that Act (suspended sentence orders: restrictions relating to
particular requirements) omit paragraph (c) (which refers to section 202(4) and
(5) of that Act).

(3) 40Section 202 of that Act (orders imposing programme requirements) is
amended as follows.

(4) In subsection (1) (meaning of “programme requirement”)—