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Legal Aid, Sentencing and Punishment of Offenders BillPage 40

(b) it is information that a provider of legal services would need to make
an offer to the client to provide relevant services, and

(c) the person providing the information is not the client;

and “relevant services” means any of the legal services that the business
5involves.

(6) “Legal services” means services provided by a person which consist of or
include legal activities (within the meaning of the Legal Services Act 2007)
carried on by or on behalf of that person; and a provider of legal services is a
person authorised to carry on a reserved legal activity within the meaning of
10that Act.

(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
15regulations.

(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
20monitoring 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
25subsections (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) 30does 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) 35Subsection (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),

40and 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) 45as consideration for the provision of services, or

Legal Aid, Sentencing and Punishment of Offenders BillPage 41

(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
5any 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,
10where it is the relevant regulator, to take action for monitoring and enforcing
compliance with the restrictions imposed on regulated persons by section 54.

(2) The 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) 15Those provisions include in particular—

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

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

(c) 20provisions giving Ministers or the Financial Services Authority powers
to make subordinate legislation;

(d) provisions 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
25Chancellor were a reference to the Treasury).

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

57 Regulators and regulated persons

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

(a) 30a regulator is any person listed in column 1 below;

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

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

1. Regulator 2. Regulated person
the Financial Services
Authority
35an authorised person (within the
meaning of the Financial Services and
Markets Act 2000) of a description
specified in regulations made by the
Treasury

Legal Aid, Sentencing and Punishment of Offenders BillPage 42

1. Regulator 2. Regulated person
the Claims Management
Regulator
a person authorised by the Regulator
under section 5(1)(a) of the
Compensation Act 2006 to provide
5regulated claims management services
the General Council of the
Bar
a person authorised by the Council to
carry on a reserved legal activity within
the meaning of the Legal Services Act
2007
the Law Society 10a person authorised by the Society to
carry on a reserved legal activity within
the meaning of the Legal Services Act
2007
a regulatory body specified
for the purposes of this
subsection in regulations
made by the Lord
Chancellor
a person of a description specified in the
15regulations in relation to the body


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

(a) 20a 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) a regulated person is any person specified in accordance with column
2 in relation to business of that kind;

(c) 25a 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
business of that kind.

1. Regulator 2. Regulated person
the Financial Services
Authority
30an authorised person (within the
meaning of the Financial Services and
Markets Act 2000) of a description
specified in regulations made by the
Treasury
the Claims Management
Regulator
35a person who is authorised by the
Regulator under section 5(1)(a) of the
Compensation Act 2006 to provide
regulated claims management services
and is of a description specified in
40regulations made by the Lord
Chancellor

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1. Regulator 2. Regulated person
an approved regulator for
the purposes of Part 3 of
the Legal Services Act 2007
(approved legal activities);
a person who is authorised by the
regulator to carry on a reserved legal
activity and is of a description specified
5in regulations made by the Lord
Chancellor
a licensing authority for
the purposes of Part 5 of
that Act (alternative
business structures)
a person who is licensed by the
authority to carry on a reserved legal
activity and is of a description specified
10in regulations made by the Lord
Chancellor

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) 15The power to make the regulations includes power to make consequential,
supplementary, 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.

20Costs in criminal cases

59 Costs 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 25Sentencing and Punishment of Offenders

CHAPTER 1 Sentencing

General

60 Court’s duty to consider compensation order

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

(2A) A 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),

Legal Aid, Sentencing and Punishment of Offenders BillPage 44

after subsection (7) insert—

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

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

(1) 5The 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) A court passing sentence on an offender has the duties in subsections
(2) and (3).

(2) 10The 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
15is required to comply with and that forms part of the sentence,

(c) any 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) 20The Lord Chancellor may by order—

(a) prescribe 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) 25Subsections (6) to (8) are particular duties of the court in complying
with 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
30section 125 of the Coroners and Justice Act 2009 (duty to follow
guidelines 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) 35Where, as a result of taking into account any matter referred to in
section 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
40may only be imposed in the offender’s case if the court is of the opinion
mentioned 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

Legal Aid, Sentencing and Punishment of Offenders BillPage 45

with intensive supervision and surveillance or with fostering),
or

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

the court must state why it is of that opinion.

(9) 5In 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
guidelines, as revised by any subsequent guidelines so issued.

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

(a) 10for subsection (1) substitute—

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

(b) in subsection (2) for “In stating its reasons” substitute “In complying
with the duty under section 174(2) to state its reasons for deciding on
15the 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
20(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) 25paragraph 24 of Schedule 25 to that Act;

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

62 Sentencing where there is aggravation related to transgender identity

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

(2) Section 146 (increase in sentence for aggravation related to disability or sexual
30orientation) is amended as follows.

(3) In the heading, for “or sexual orientation” substitute “, sexual orientation or
transgender identity”.

(4) In subsection (2)(a)—

(a) after sub-paragraph (i) omit “or”;

(b) 35at the end insert—

(iii) the victim being (or being presumed to be)
transgender, or.

(5) In subsection (2)(b)—

(a) after sub-paragraph (i) omit “or”;

(b) 40at the end insert , or

(iii) by hostility towards persons who are
transgender.

Legal Aid, Sentencing and Punishment of Offenders BillPage 46

(6) After subsection (5) insert—

(6) In this section references to being transgender include references to
being transsexual, or undergoing, proposing to undergo or having
undergone a process or part of a process of gender reassignment.

(7) 5Schedule 21 (determination of minimum term in relation to mandatory life
sentence) is amended as follows.

(8) For paragraph 3 substitute—

3 For the purposes of this Schedule—

(a) an offence is aggravated by sexual orientation if it is
10committed in circumstances mentioned in section 146(2)(a)(i)
or (b)(i);

(b) an offence is aggravated by disability if it is committed in
circumstances mentioned in section 146(2)(a)(ii) or (b)(ii);

(c) an offence is aggravated by transgender identity if it is
15committed in circumstances mentioned in section
146(2)(a)(iii) or (b)(iii).

(9) In paragraph 5(2)(g) (30 year starting point), after “aggravated by sexual
orientation” insert “, disability or transgender identity”.

(10) Section 241 of the Armed Forces Act 2006 (increase in sentence for aggravation
20related to disability or sexual orientation) is amended as follows.

(11) In the heading, for “or sexual orientation” substitute “, sexual orientation or
transgender identity”.

(12) In subsection (2)(a)—

(a) after sub-paragraph (i) omit “or”;

(b) 25at the end insert—

(iii) the victim being (or being presumed to be)
transgender, or.

(13) In subsection (2)(b)—

(a) after sub-paragraph (i) omit “or”;

(b) 30at the end insert , or

(iii) by hostility towards persons who are
transgender.

(14) After subsection (5) insert—

(6) In this section references to being transgender include references to
35being transsexual, or undergoing, proposing to undergo or having
undergone a process or part of a process of gender reassignment.

Community orders

63 Duration of community order

(1) In section 177 of the Criminal Justice Act 2003 (general provisions about
40community 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

Legal Aid, Sentencing and Punishment of Offenders BillPage 47

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

(2) After that subsection insert—

(5A) If a community order imposes two or more different requirements
falling within subsection (1), the order may also specify a date by which
5each 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
unpaid work requirement), a community order ceases to be in force on
the end date.

(3) 10In 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
sub-paragraph substitute “but may only amend the order to substitute
a later date for that specified under section 177(5) in accordance with
15sub-paragraphs (3ZA) and (3ZB)”, and

(b) after that sub-paragraph insert—

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

(a) may not fall outside the period of six months
beginning with the date previously specified under
20section 177(5);

(b) subject to that, may fall more than three years after the
date 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
25power 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) 30In that Schedule, in paragraph 10 (powers of Crown Court in case of breach)—

(a) in 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) 35after that sub-paragraph insert—

(3ZA) A 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) 40subject to that, may fall more than three years after the
date 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
45previously been exercised in relation to that order.

Legal Aid, Sentencing and Punishment of Offenders BillPage 48

(3ZC) A 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—

5Extension of order

19A (1) The 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) 10may 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.

(3) The power under sub-paragraph (1) may not be exercised in relation
15to an order if it has previously been exercised in relation to that
order.

(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
20paragraph 16.

64 Breach 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-
25paragraph (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;.

(3) 30In 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.

(4) In sub-paragraph (6) of that paragraph, for the words from “be required to” to
35“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
(1)—

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

(b) 40after paragraph (a) insert—

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

Legal Aid, Sentencing and Punishment of Offenders BillPage 49

(6) 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
conviction.

(7) 5After paragraph 11 insert—

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
10it appears to the Secretary of State that there has been a change in the
value 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-
15paragraph (1), the date on which the sum was last so
substituted;

(b) otherwise, the date on which section 64 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 (which
inserted this paragraph) came into force.

(4) 20An order under sub-paragraph (1) (a “fine amendment order”) must
not 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

65 25Changes 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) If 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
30sentence 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
another offence in the United Kingdom (whether or not
punishable with imprisonment), and

(b) 35a court having power to do so subsequently orders under
paragraph 8 of Schedule 12 that the original sentence is to take
effect.

(1A) An order under subsection (1) may also provide that the offender must
comply during a period specified in the order for the purposes of this
40subsection (“the supervision period”) with one or more requirements
falling within section 190(1) and specified in the order.

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