Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill


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

119

 

(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

cautions,

5

(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

which they are to be given and recorded.

10

(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)   

a parent or guardian of the child or young person,

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(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)   

if no person falling within paragraph (a), (b) or (c) is available,

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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

soon as practicable refer the person to a youth offending team.

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(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

the person to participate in a rehabilitation programme.

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(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)   

may arrange for the person to participate in a rehabilitation

35

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

arranged for a person under subsection (2) or (3),

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(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—

 
 

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

120

 

(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

by a youth caution is convicted of an offence committed within

5

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)

in respect of the offence unless it is of the opinion that there are

10

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)   

There may be cited in criminal proceedings—

15

(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)   

In this section “rehabilitation programme” means a programme with

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the purpose of rehabilitating participants and preventing them from re-

offending.”

(3)   

Schedule 24 (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.

25

(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 (whenever passed or made) as a youth caution given to that person

under section 66ZA(1) of that Act.

30

(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

Disorder Act 1998 is to be treated for the purposes of any enactment or

35

instrument (whenever passed or made) as provided under section 66ZB of that

Act.

137     

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).

138     

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 Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 8 — Rehabilitation of offenders

121

 

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.”

139     

Youth conditional cautions: involvement of prosecutors

5

(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

10

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)   

In section 66D (variation of conditions by relevant prosecutor) after “A relevant

15

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

condition”.

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Chapter 8

Rehabilitation of offenders

140     

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

25

months” substitute “forty eight months”.

(3)   

In 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

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rehabilitation period for a sentence is the period—

(a)   

beginning 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:

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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 8 — Rehabilitation of offenders

122

 
 

Sentence

End of rehabilitation

End of rehabilitation

 
  

period for adult

period for offenders

 
  

offenders

under 18 at date of

 
   

conviction

 
 

A custodial sentence of more than 30

The end of the

The end of the

 

5

 

months and up to, or consisting of, 48

period of 7 years

period of 42

 
 

months

beginning with the

months beginning

 
  

day on which the

with the day on

 
  

sentence

which the sentence

 
  

(including any

(including any

 

10

  

licence period) is

licence period) is

 
  

completed

completed

 
 

A custodial sentence of more than 6

The end of the

The end of the

 
 

months and up to, or consisting of, 30

period of 48

period of 24

 
 

months

months beginning

months beginning

 

15

  

with the day on

with the day on

 
  

which the sentence

which the sentence

 
  

(including any

(including any

 
  

licence period) is

licence period) is

 
  

completed

completed

 

20

 

A custodial sentence of 6 months or

The end of the

The end of the

 
 

less

period of 24

period of 18

 
  

months beginning

months beginning

 
  

with the day on

with the day on

 
  

which the sentence

which the sentence

 

25

  

(including any

(including any

 
  

licence period) is

licence period) is

 
  

completed

completed

 
 

Removal from Her Majesty’s service

The end of the

The end of the

 
  

period of 12

period of 6 months

 

30

  

months beginning

beginning with the

 
  

with the date of the

date of the

 
  

conviction in

conviction in

 
  

respect of which

respect of which

 
  

the sentence is

the sentence is

 

35

  

imposed

imposed

 
 

A sentence of service detention

The end of the

The end of the

 
  

period of 12

period of 6 months

 
  

months beginning

beginning with the

 
  

with the day on

day on which the

 

40

  

which the sentence

sentence is

 
  

is completed

completed

 
 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 8 — Rehabilitation of offenders

123

 
 

Sentence

End of rehabilitation

End of rehabilitation

 
  

period for adult

period for offenders

 
  

offenders

under 18 at date of

 
   

conviction

 
 

A fine

The end of the

The end of the

 

5

  

period of 12

period of 6 months

 
  

months beginning

beginning with the

 
  

with the date of the

date of the

 
  

conviction in

conviction in

 
  

respect of which

respect of which

 

10

  

the sentence is

the sentence is

 
  

imposed

imposed

 
 

A compensation order

The date on which

The date on which

 
  

the payment is

the payment is

 
  

made in full

made in full

 

15

 

A community or youth rehabilitation

The end of the

The end of the

 
 

order

period of 12

period of 6 months

 
  

months beginning

beginning with the

 
  

with the day

day provided for

 
  

provided for by or

by or under the

 

20

  

under the order as

order as the last

 
  

the last day on

day on which the

 
  

which the order is

order is to have

 
  

to have effect

effect

 
 

A relevant order

The day provided

The day provided

 

25

  

for by or under the

for by or under the

 
  

order as the last

order as the last

 
  

day on which the

day on which the

 
  

order is to have

order is to have

 
  

effect

effect

 

30

 

(3)   

Where 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—

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(a)   

an 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.

40

(5)   

See 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

45

or the number of months for the time being specified in subsection (3).

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 8 — Rehabilitation of offenders

124

 

(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

wholly or partly concurrent (that is terms of imprisonment or

5

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

a court dealing with a person in respect of a suspended sentence

10

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

15

ordered 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.

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(8)   

In 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

25

order 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)

30

or (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,

35

(d)   

a 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,

40

(g)   

a 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

45

(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,

50

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 8 — Rehabilitation of offenders

125

 

(b)   

an 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

5

paragraph (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

10

of good behaviour,

(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),

15

(e)   

a 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

20

with 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

25

of 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—

30

(a)   

a 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

35

(b)   

any 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

40

disqualifications 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—

45

“8AA    

Protection 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—

 
 

 
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Revised 22 March 2012