Legal Aid, Sentencing and Punishment of Offenders Bill (HL Bill 129)

(a) must not make an order under section 12(1)(b) of the Powers of
Criminal Courts (Sentencing) Act 2000 (conditional discharge)
in respect of the offence unless it is of the opinion that there are
exceptional circumstances relating to the offence or the person
5that 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) There may be cited in criminal proceedings—

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

(b) 10a 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) In this section “rehabilitation programme” means a programme with
the purpose of rehabilitating participants and preventing them from re-
15offending.”

(3) Schedule 23 (youth cautions: consequential amendments) has effect.

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

(5) A reprimand or warning of a person under section 65 of the Crime and
20Disorder 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 (whenever passed or made) as a youth caution given to that person
under section 66ZA(1) of that Act.

(6) A referral of a person to a youth offending team under section 66(1) of the
25Crime 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
Disorder Act 1998 is to be treated for the purposes of any enactment or
instrument (whenever passed or made) as provided under section 66ZB of that
30Act.

128 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
“and” at the end of that paragraph (requirement of no previous convictions).

129 35Youth conditional cautions: references to youth offending teams

In section 66A of the Crime and Disorder Act 1998 (youth conditional cautions)
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
40offender to a youth offending team.”

130 Youth 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
evidence to prosecute and that a conditional caution should be given) after “a
5relevant 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) In section 66D (variation of conditions by relevant prosecutor) after “A relevant
10prosecutor” 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
condition”.

CHAPTER 8 15Rehabilitation of offenders

131 Establishment or alteration of rehabilitation periods

(1) The Rehabilitation of Offenders Act 1974 is amended as follows.

(2) In section 5(1)(b) and (d) (sentences excluded from rehabilitation) for “thirty
months” substitute “forty eight months”.

(3) 20In the opening words of section 5(1A) (references to provisions of the Armed
Forces Act 2006) for “subsection (1)(d)” substitute “this section”.

(4) For section 5(2) to (11) (rehabilitation periods) substitute—

“(2) For the purposes of this Act and subject to subsections (3) and (4), the
rehabilitation period for a sentence is the period—

(a) 25beginning with the date of the conviction in respect of which the
sentence is imposed, and

(b) ending at the time listed in the following Table in relation to that
sentence:

(3) 20Where no provision is made by or under a community or youth
rehabilitation order or a relevant order for the last day on which the
order is to have effect, the rehabilitation period for the order is to be the
period of 24 months beginning with the date of conviction.

(4) There is no rehabilitation period for—

(a) 25an order discharging a person absolutely for an offence, or

(b) any other sentence in respect of a conviction where the sentence
is not dealt with in the Table or under subsection (3),

and, in such cases, references in this Act to any rehabilitation period are
to be read as if the period of time were nil.

(5) 30See also—

(a) section 8AA (protection afforded to spent alternatives to
prosecution), and

(b) Schedule 2 (protection for spent cautions).

(6) The Secretary of State may by order amend column 2 or 3 of the Table
35or the number of months for the time being specified in subsection (3).

(7) For the purposes of this section—

(a) consecutive terms of imprisonment or other custodial sentences
are to be treated as a single term,

(b) terms of imprisonment or other custodial sentences which are
40wholly or partly concurrent (that is terms of imprisonment or
other custodial sentences imposed in respect of offences of
which a person was convicted in the same proceedings) are to
be treated as a single term,

(c) no account is to be taken of any subsequent variation, made by
45a court dealing with a person in respect of a suspended sentence
of imprisonment, of the term originally imposed,

(d) no account is to be taken of any subsequent variation of the day
originally provided for by or under an order as the last day on
which the order is to have effect,

(e) no account is to be taken of any detention or supervision
5ordered by a court under section 104(3) of the Powers of
Criminal Courts (Sentencing) Act 2000,

(f) a sentence imposed by a court outside England and Wales is to
be treated as the sentence mentioned in this section to which it
most closely corresponds.

(8) 10In this section—

• “community or youth rehabilitation order” means—

  (a)

  a community order under section 177 of the Criminal
  Justice Act 2003,

  (b)

  a service community order or overseas community
  15order under the Armed Forces Act 2006,

  (c)

  a youth rehabilitation order under Part 1 of the Criminal
  Justice and Immigration Act 2008, or

  (d)

  any order of a kind superseded (whether directly or
  indirectly) by an order mentioned in paragraph (a), (b)
  20or (c),

• “custodial sentence” means—

  (a)

  a sentence of imprisonment,

  (b)

  a sentence of detention in a young offender institution,

  (c)

  a sentence of Borstal training,

  (d)

  25a sentence of youth custody,

  (e)

  a sentence of corrective training,

  (f)

  a sentence of detention under section 91 of the Powers of
  Criminal Courts (Sentencing) Act 2000 or section 209 of
  the Armed Forces Act 2006,

  (g)

  30a detention and training order under section 100 of the
  Powers of Criminal Courts (Sentencing) Act 2000 or an
  order under section 211 of the Armed Forces Act 2006,

  (h)

  any sentence of a kind superseded (whether directly or
  indirectly) by a sentence mentioned in paragraph (f) or
  35(g),

• “earlier statutory order” means—

  (a)

  an order under section 54 of the Children and Young
  Persons Act 1933 committing the person convicted to
  custody in a remand home,

  (b)

  40an approved school order under section 57 of that Act,
  or

  (c)

  any order of a kind superseded (whether directly or
  indirectly) by an order mentioned in any of paragraphs
  (c) to (e) of the definition of “relevant order” or in
  45paragraph (a) or (b) above,

• “relevant order” means—

  (a)

  an order discharging a person conditionally for an
  offence,

  (b)

  an order binding a person over to keep the peace or be
  50of good behaviour,

  Legal Aid, Sentencing and Punishment of Offenders BillPage 115

  (c)

  an order under section 1(2A) of the Street Offences Act
  1959,

  (d)

  a hospital order under Part 3 of the Mental Health Act
  1983 (with or without a restriction order),

  (e)

  5a referral order under section 16 of the Powers of
  Criminal Courts (Sentencing) Act 2000,

  (f)

  an earlier statutory order, or

  (g)

  any order which imposes a disqualification, disability,
  prohibition or other penalty and is not otherwise dealt
  10with in the Table or under subsection (3),

  but does not include a reparation order under section 73 of the
  Powers of Criminal Courts (Sentencing) Act 2000,

• “removal from Her Majesty’s service” means a sentence of
  dismissal with disgrace from Her Majesty’s service, a sentence
  15of dismissal from Her Majesty’s service or a sentence of
  cashiering or discharge with ignominy,

• “sentence of imprisonment” includes a sentence of penal servitude
  (and “term of imprisonment” is to be read accordingly),

• “sentence of service detention” means—

  (a)

  20a sentence of service detention (within the meaning
  given by section 374 of the Armed Forces Act 2006), or a
  sentence of detention corresponding to such a sentence,
  in respect of a conviction in service disciplinary
  proceedings, or

  (b)

  25any sentence of a kind superseded (whether directly or
  indirectly) by a sentence mentioned in paragraph (a).”

(<5\>) In section 6 (subsequent convictions to extend the rehabilitation period
applicable to a conviction)—

(a) in subsection (5) (exception to rule for certain orders imposing
30disqualifications etc.) for “in accordance with section 5(8) above”
substitute “by virtue of paragraph (g) of the definition of “relevant
order” in section 5(8) above”, and

(b) omit subsection (6) (other exceptions to the rule).

(6) After section 8A (protection afforded to spent cautions) insert—

“8AA 35Protection afforded to spent alternatives to prosecution

(1) The following provisions of this Act apply, with the modifications
specified in subsection (3), to a spent alternative to prosecution as they
apply to a spent caution—

(a) section 9A (unauthorised disclosure of spent cautions), and

(b) 40paragraphs 2 to 6 of Schedule 2 (protection relating to spent
cautions and ancillary circumstances).

(2) An alternative to prosecution becomes spent for the purposes of this
Act when it becomes spent under the law of Scotland.

(3) The modifications mentioned in subsection (1) are—

(a) 45references to cautions are to be read as references to alternatives
to prosecution (and references to cautioned are to be read
accordingly),

(b) references to the offence which was the subject of the caution
are to be read as references to the offence in respect of which the
alternative to prosecution was given,

(c) paragraphs (e) and (f) of paragraph 2(1) of Schedule 2 are to be
5read as if they were—

“(e) anything done or undergone in pursuance of the
terms of the alternative to prosecution,”,

(d) references to cautions for an offence are to be read as references
to alternatives to prosecution in respect of an offence, and

(e) 10the reference in paragraph 5 of Schedule 2 to the rehabilitation
period applicable to the caution is to be read as a reference to the
time at which the alternative to prosecution becomes spent.

(4) In this section “alternative to prosecution” has the same meaning as in
section 8B as that section has effect in the law of Scotland but
15disregarding subsection (1)(f) of that section.”

(7) In paragraph 1 of Schedule 2 (protection for spent cautions)—

(a) in sub-paragraph (1)(a) (when conditional cautions to be regarded as
spent cautions) for “, at the end of the relevant period for the caution;”
substitute “—

(i) 20at the end of the period of three months from
the date on which the caution is given, or

(ii) if earlier, when the caution ceases to have
effect; and”, and

(b) omit sub-paragraphs (2) and (3) (meaning of “the relevant period for
25the caution”).

132 No rehabilitation for certain immigration or nationality purposes

Before section 57 of the UK Borders Act 2007 (and after the italic cross-heading
before that section) insert—

“56A No rehabilitation for certain immigration or nationality purposes

(1) 30Section 4(1), (2) and (3) of the Rehabilitation of Offenders Act 1974
(effect of rehabilitation) do not apply—

(a) in relation to any proceedings in respect of a relevant
immigration decision or a relevant nationality decision, or

(b) otherwise for the purposes of, or in connection with, any such
35decision.

(2) In this section—

• “immigration officer” means a person appointed by the Secretary
  of State as an immigration officer under paragraph 1 of
  Schedule 2 to the Immigration Act 1971,

• 40“relevant immigration decision” means any decision, or proposed
  decision, of the Secretary of State or an immigration officer
  under or by virtue of the Immigration Acts, or rules made under
  section 3 of the Immigration Act 1971 (immigration rules), in
  relation to the entitlement of a person to enter or remain in the
  45United Kingdom (including, in particular, the removal of a
  person from the United Kingdom, whether by deportation or
  otherwise),

Legal Aid, Sentencing and Punishment of Offenders BillPage 117

• “relevant nationality decision” means any decision, or proposed
  decision, of the Secretary of State under or by virtue of—

  (a)

  the British Nationality Act 1981,

  (b)

  the British Nationality (Hong Kong) Act 1990, or

  (c)

  5the Hong Kong (War Wives and Widows) Act 1996,

  in relation to the good character of a person.

(3) The references in subsection (2) to the Immigration Acts and to the Acts
listed in the definition of “relevant nationality decision” include
references to any provision made under section 2(2) of the European
10Communities Act 1972, or of EU law, which relates to the subject matter
of the Act concerned.”

133 Transitional and consequential provision: Chapter 8

(1) Section 131 applies in relation to convictions or (as the case may be) cautions
before the commencement date (as well as in relation to convictions or cautions
15on or after that date).

(2) The Rehabilitation of Offenders Act 1974 applies in relation to convictions or
cautions before the commencement date as if the amendments and repeals
made by section 131 had always had effect.

(3) Where by virtue of subsection (2)—

(a) 20a person would, before the commencement date, have been treated for
the purposes of the Act of 1974 as a rehabilitated person in respect of a
conviction, or

(b) a conviction would, before that date, have been treated for the purposes
of that Act as spent,

25the person or conviction concerned is (subject to any order made by virtue of
section 4(4) or 7(4)) to be so treated on and after that date.

(4) Where by virtue of subsection (2)—

(a) a person would, before the commencement date, have been treated as
mentioned in paragraph 3(1) of Schedule 2 to the Act of 1974 in respect
30of a caution, or

(b) a caution would, before that date, have been treated for the purposes of
that Act as spent,

the person or caution concerned is (subject to any order made by virtue of
paragraph 4 or 6(1) and (4) of that Schedule to that Act) to be so treated on and
35after that date.

(5) But—

(a) no person who, immediately before the commencement date—

(i) is treated as a rehabilitated person for the purposes of the Act of
1974 in respect of a conviction, or

(ii) 40is treated as mentioned in paragraph 3(1) of Schedule 2 to that
Act in respect of a caution, and

(b) no conviction or caution which, immediately before the
commencement date, is treated for the purposes of that Act as spent,

is to cease to be so treated merely because of section 131.

(6) 45Section 131 does not apply in relation to alternatives to prosecution given
before the commencement date.

(7) Section 132 applies in relation to convictions before the commencement date
(as well as in relation to convictions on or after that date).

(8) Section 132 applies as mentioned in subsection (7) above whether or not,
immediately before the commencement date—

(a) 5the person concerned is treated as a rehabilitated person for the
purposes of the Act of 1974 in respect of the conviction, or

(b) the conviction is treated for the purposes of that Act as spent.

(9) But section 132 does not affect—

(a) any proceedings begun, but not completed, before the commencement
10date,

(b) any applications for immigration or nationality decisions made, but not
finally determined, before the commencement date, or

(c) the validity of any proceedings, or any relevant immigration or
nationality decision (within the meaning of section 56A of the UK
15Borders Act 2007) which is made, before the commencement date.

(10) Schedule 24 (consequential provision) has effect.

(11) Any reference in this section to section 131 is to be read as including a reference
to Schedule 24.

(12) In this section “the commencement date” means such day as may be specified
20by order of the Secretary of State made by statutory instrument; and different
days may be specified for different purposes.

CHAPTER 9 Offences

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

(1) 25In the Prevention of Crime Act 1953, after section 1 (prohibition of the carrying
of 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) 30unlawfully and intentionally threatens another person with the
weapon, 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
35to grievous bodily harm for the purposes of the Offences against the
Person 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—

(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;