Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
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Other Bills before Parliament

Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 6 — Prisoners etc
112

(b)
section 47A of that Act has effect as if—
(i)
“prison” included a young offender institution, and
(ii)
“prisoner” included a person aged 18 or over who is required to
be detained in a young offender institution.
(12)
The Secretary of State may make such payments to such persons as the
5
Secretary of State considers appropriate in connection with measures that
appear to the Secretary of State to be intended to—
(a)
rehabilitate offenders,
(b)
prevent re-offending, or
(c)
limit the impact of crime.
10
(13)
In making payments under subsection (12), the Secretary of State must have
regard to the sums that have been made available to, or received by, the
Secretary of State by virtue of rules under section 47A of the Prison Act 1952
(reductions, deductions and levies in respect of payments to prisoners etc.).
131
Transfer of prisoners: prosecution of other offences
15
In the Repatriation of Prisoners Act 1984, after section 3 insert—
“3A
Prosecution of other offences
(1)
This section applies where—
(a)
a person has been transferred into Great Britain under a warrant
under section 1, and
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(b)
the international arrangements in accordance with which the
person has been transferred contain a speciality provision.
(2)
The person must not, unless a condition in subsection (3) is met—
(a)
be prosecuted for any offence committed before the departure
of that person from the country or territory from which that
25
person has been transferred, or
(b)
be detained or otherwise subjected to any restriction of liberty
for any offence committed before the departure of that person
from the country or territory from which that person has been
transferred, other than the offence in respect of which the
30
person has been transferred.
(3)
For the purposes of subsection (2), the conditions are as follows—
(a)
the person has consented to the transfer;
(b)
the offence is an offence which is not punishable with
imprisonment or another form of detention;
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(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
appeal;
(d)
the person is given an opportunity to leave Great Britain and—
(i)
the person does not do so before the end of the
40
permitted period, or
(ii)
if the person does so before the end of the permitted
period, 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;
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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 6 — Prisoners etc
113

(f)
the appropriate authority of the country or territory from which
the person has been transferred consents to the prosecution of
the 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
(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)
In 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
10
the country or territory from which P has been transferred, other than
for the offence in respect of which P has been transferred.”
132
Transit of prisoners
(1)
In the Repatriation of Prisoners Act 1984, after section 6 insert—
“6A
Transit
15
(1)
The relevant Minister may issue a transit order where—
(a)
the United Kingdom is a party to international arrangements
providing for the transfer between the United Kingdom and a
country or territory outside the British Islands of persons to
whom subsection (2) applies; and
20
(b)
the relevant Minister has received a request from the
appropriate authority of that country or territory in accordance
with 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—
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(a)
that person is for the time being required to be detained in a
prison, a hospital or any other institution either—
(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
30
(ii)
by virtue of any provisions of the law of such a country
or 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
35
in a country or territory outside the British Islands.
(3)
The relevant Minister may issue a transit order where—
(a)
international arrangements apply to any of the Channel Islands
or the Isle of Man which provide for the transfer between that
island and a country or territory outside the British Islands of
40
persons to whom subsection (4) applies; and
(b)
the relevant Minister has received a request from the
appropriate authority of that island for the transit of a person to
whom subsection (4) applies through a part of Great Britain.
(4)
A person falls within this subsection if—
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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 6 — Prisoners etc
114

(a)
that person is for the time being required to be detained in a
prison, a hospital or any other institution either—
(i)
by virtue of an order made in the course of the exercise
of its criminal jurisdiction by a court or tribunal in the
island from which the transit request is made; or
5
(ii)
by virtue of any provisions of the law of that island
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
10
in that island.
(5)
Terms used in subsection (2)(a) or (4)(a) have the same meaning as in
section 1(7).
(6)
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
15
been the subject of a request within subsection (1)(b) or (3)(b), which
authorises the detention of that person in any part of Great Britain at
any time when that person is in transit.
(7)
In subsection (6) “detention” includes detention while the person is
being taken from one place to another place within Great Britain.
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(8)
A person may be detained pursuant to a transit order only for as long
as is reasonable and necessary to allow the transit to take place.
(9)
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) or
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(3)(b) will, whilst in transit—
(i)
be 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.
30
(10)
For the purposes of this section and sections 6B and 6C a person who is
the 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
35
(1)
A person who is the subject of a transit order is deemed to be in the legal
custody 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.
40
(3)
The relevant Minister may, from time to time, designate any person as
a 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
45
which the person who is the subject of the transit order is for the time
being.

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 6 — Prisoners etc
115

(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
person might use—
5
(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,
headgear or gloves.
10
(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
reasonable grounds for believing that the person searched might use
15
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
while that person is in transit.
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(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)
any person who is a prison officer within the meaning of section
25
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
Britain in which a person who is the subject of a transit order is for the
30
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
Great Britain other than Scotland whilst in transit, they must notify the
35
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
order authorises the detention of the person subject to it in Scotland
40
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
Britain other than Scotland, and
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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 6 — Prisoners etc
116

(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
that the person who is the subject of the order will be taken to Scotland
5
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)
Unless the Scottish Ministers agree in writing to the transit order, that
10
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)
the arrest of the person under section 6B(5) in Scotland, and
15
(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)
This section applies where—
20
(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
6A(2)(a) or (4)(a),
25
(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)
the person makes an unscheduled arrival in Great Britain.
30
(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)
In this section “constable” means any person who is a constable in any
35
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
purposes of this section all the powers, authority, protection and
40
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)
at the beginning of subsection (3) insert “Subject to subsection (3A),”,
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and

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 7 — Out of court disposals
117

(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
5
Penalty notices
133
Penalty notices for disorderly behaviour
Schedule 23 (penalty notices for disorderly behaviour) has effect.
Cautions
134
Conditional cautions: involvement of prosecutors
10
(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
prosecute and that a conditional caution should be given) after “a relevant
15
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)
In section 23B (variation of conditions by relevant prosecutor) after “A relevant
20
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
a condition”.
25
135
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
conditional cautions to have certain objects) for “such a caution”
30
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
objects mentioned in subsection (3E) (whether or not in addition
35
to conditions with one or more of the objects mentioned in
subsection (3)).

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 7 — Out of court disposals
118

(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
return to the United Kingdom for a period of time.
5
(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
right on the part of the offender to return to the United
10
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)
Schedule 2 to the Immigration Act 1971, or
15
(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.”
Youth cautions
20
136
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—
“Young offenders: youth cautions
25
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
Y with an offence,
30
(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
the presence of an appropriate adult.
35
(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)
where that person is under the age of 17, the appropriate adult.
40
(4)
Those matters are—
(a)
the effect of subsections (1) to (3) and (5) to (7) of section 66ZB,
and