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 8 — Rehabilitation of offenders

126

 

(a)   

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

(b)   

paragraphs 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.

5

(3)   

The modifications mentioned in subsection (1) are—

(a)   

references 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

10

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

read as if they were—

“(e)   

anything done or undergone in pursuance of the

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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)   

the reference in paragraph 5 of Schedule 2 to the rehabilitation

period applicable to the caution is to be read as a reference to the

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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

disregarding subsection (1)(f) of that section.”

(7)   

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

25

(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)   

at the end of the period of three months from

the date on which the caution is given, or

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(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

the caution”).

141     

No rehabilitation for certain immigration or nationality purposes

35

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)   

Section 4(1), (2) and (3) of the Rehabilitation of Offenders Act 1974

(effect of rehabilitation) do not apply—

40

(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

decision.

(2)   

In this section—

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

127

 

“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,

“relevant immigration decision” means any decision, or proposed

decision, of the Secretary of State or an immigration officer

5

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

United Kingdom (including, in particular, the removal of a

person from the United Kingdom, whether by deportation or

10

otherwise),

“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

15

(c)   

the 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

20

Communities Act 1972, or of EU law, which relates to the subject matter

of the Act concerned.”

142     

Transitional and consequential provision: Chapter 8

(1)   

Section 140 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

25

on 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 140 had always had effect.

(3)   

Where by virtue of subsection (2)—

30

(a)   

a 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,

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the person or conviction concerned is (subject to any order made by virtue of

section 4(4) or 7(4) of that Act) 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

40

of 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

45

after that date.

(5)   

But—

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 9 — Offences

128

 

(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)   

is treated as mentioned in paragraph 3(1) of Schedule 2 to that

Act in respect of a caution, and

5

(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 140.

(6)   

Section 140 does not apply in relation to alternatives to prosecution given

before the commencement date.

10

(7)   

Section 141 applies in relation to convictions before the commencement date

(as well as in relation to convictions on or after that date).

(8)   

Section 141 applies as mentioned in subsection (7) above whether or not,

immediately before the commencement date—

(a)   

the person concerned is treated as a rehabilitated person for the

15

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 141 does not affect—

(a)   

any proceedings begun, but not completed, before the commencement

date,

20

(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

Borders Act 2007) which is made, before the commencement date.

25

(10)   

Schedule 25 (consequential provision) has effect.

(11)   

Any reference in this section to section 140 is to be read as including a reference

to Schedule 25.

(12)   

In this section “the commencement date” means such day as may be specified

by order of the Secretary of State made by statutory instrument; and different

30

days may be specified for different purposes.

Chapter 9

Offences

143     

Offences of threatening with article with blade or point or offensive weapon

in public or on school premises

35

(1)   

In 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,

40

(b)   

unlawfully and intentionally threatens another person with the

weapon, and

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 9 — Offences

129

 

(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

to grievous bodily harm for the purposes of the Offences against the

Person Act 1861.

5

(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

10

maximum, or to both;

(b)   

on conviction on indictment, to imprisonment for a term not

exceeding 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

15

or without a fine) unless the court is of the opinion that there are

particular circumstances which—

(a)   

relate 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—

20

(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)   

in 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)

25

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)   

In 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.

30

(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

reference 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.

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(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

proved 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

40

with blade or point or offensive weapon on school premises) insert—

“139AA  

 Offence of threatening with article with blade or point or offensive

weapon

(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

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public place or on school premises,

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 9 — Offences

130

 

(b)   

unlawfully and intentionally threatens another person with the

article, 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

5

section 139 applies.

(3)   

In relation to school premises this section applies to each of these—

(a)   

an article to which section 139 applies;

(b)   

an offensive weapon within the meaning of section 1 of the

Prevention of Crime Act 1953.

10

(4)   

For the purposes of this section physical harm is serious if it amounts

to grievous bodily harm for the purposes of the Offences against the

Person Act 1861.

(5)   

In this section—

“public place” has the same meaning as in section 139;

15

“school premises” has the same meaning as in section 139A.

(6)   

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;

20

(b)   

on conviction on indictment, to imprisonment for a term not

exceeding 4 years or to a fine, or to both.

(7)   

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

25

particular circumstances which—

(a)   

relate to the offence or to the offender, and

(b)   

would make it unjust to do so in all the circumstances.

(8)   

In this section “appropriate custodial sentence” means—

(a)   

in the case of a person who is aged 18 or over when convicted,

30

a sentence of imprisonment for a term of at least 6 months;

(b)   

in 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.

(9)   

In considering whether it is of the opinion mentioned in subsection (7)

in the case of a person aged under 18, the court must have regard to its

35

duty under section 44 of the Children and Young Persons Act 1933.

(10)   

In relation to an offence committed before the commencement of

section 154(1) of the Criminal Justice Act 2003, the reference in

subsection (6)(a) to 12 months is to be read as a reference to 6 months.

(11)   

In relation to times before the coming into force of paragraph 180 of

40

Schedule 7 to the Criminal Justice and Court Services Act 2000, the

reference in subsection (8)(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.

(12)   

If on a person’s trial for an offence under this section (whether on

45

indictment or not) the person is found not guilty of that offence but it is

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 9 — Offences

131

 

proved that the person committed an offence under section 139 or

139A, the person may be convicted of the offence under that section.”

(3)   

Schedule 26 (knives and offensive weapons: minor and consequential

amendments) has effect.

144     

Offence of causing serious injury by dangerous driving

5

(1)   

The Road Traffic Act 1988 is amended as follows.

(2)   

After section 1 insert—

“1A     

Causing serious injury by dangerous driving

(1)   

A person who causes serious injury to another person by driving a

mechanically propelled vehicle dangerously on a road or other public

10

place is guilty of an offence.

(2)   

In this section “serious injury” means—

(a)   

in England and Wales, physical harm which amounts to

grievous bodily harm for the purposes of the Offences against

the Person Act 1861, and

15

(b)   

in Scotland, severe physical injury.”

(3)   

In section 2A (meaning of dangerous driving) in subsections (1) and (2) after

“sections 1” insert “, 1A”.

(4)   

Section 1A inserted by subsection (2) has effect only in relation to driving

occurring after that subsection comes into force.

20

(5)   

In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and

punishment of offences under the Traffic Acts) in the appropriate place

insert—

 

“RTA

Causing

(a) Summarily.

(a)                

Obligatory.

Obligatory.

3-11.”

 
 

section

serious

 

12 months

    

25

 

1A

injury by

 

or the

    
  

dangerous

 

statutory

    
  

driving.

 

maximum

    
    

or both.

    
   

(b) On

(b)               

    

30

   

indictment.

 5 years or a

    
    

fine or both.

    

(6)   

In the entry inserted by subsection (5), in relation to an offence committed

before the commencement of section 154(1) of the Criminal Justice Act 2003 “12

months” is to be read as “6 months (in England and Wales) or 12 months (in

35

Scotland)”.

(7)   

Schedule 27 (causing serious injury by dangerous driving: minor and

consequential amendments) has effect.

145     

Offence of squatting in a residential building

(1)   

A person commits an offence if—

40

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 9 — Offences

132

 

(a)   

the person is in a residential building as a trespasser having entered it

as a trespasser,

(b)   

the person knows or ought to know that he or she is a trespasser, and

(c)   

the person is living in the building or intends to live there for any

period.

5

(2)   

The offence is not committed by a person holding over after the end of a lease

or licence (even if the person leaves and re-enters the building).

(3)   

For the purposes of this section—

(a)   

“building” includes any structure or part of a structure (including a

temporary or moveable structure), and

10

(b)   

a building is “residential” if it is designed or adapted, before the time of

entry, for use as a place to live.

(4)   

For the purposes of this section the fact that a person derives title from a

trespasser, or has the permission of a trespasser, does not prevent the person

from being a trespasser.

15

(5)   

A person convicted of an offence under this section is liable on summary

conviction to imprisonment for a term not exceeding 51 weeks or a fine not

exceeding level 5 on the standard scale (or both).

(6)   

In relation to an offence committed before the commencement of section 281(5)

of the Criminal Justice Act 2003, the reference in subsection (5) to 51 weeks is

20

to be read as a reference to 6 months.

(7)   

For the purposes of subsection (1)(a) it is irrelevant whether the person entered

the building as a trespasser before or after the commencement of this section.

(8)   

In section 17 of the Police and Criminal Evidence Act 1984 (entry for purpose

of arrest etc)—

25

(a)   

in subsection (1)(c), after sub-paragraph (v) insert—

“(vi)   

section 145 of the Legal Aid, Sentencing and

Punishment of Offenders Act 2012 (squatting in

a residential building);”;

(b)   

in subsection (3), for “or (iv)” substitute “, (iv) or (vi)”.

30

(9)   

In Schedule 10 to the Criminal Justice and Public Order Act 1994

(consequential amendments), omit paragraph 53(b).

146     

Scrap metal dealing: increase in penalties for existing offences

(1)   

The Scrap Metal Dealers Act 1964 is amended as follows.

(2)   

For the following words (which have effect as references to a fine not exceeding

35

level 3 on the standard scale) substitute in each case “a fine not exceeding level

5 on the standard scale”—

(a)   

in section 1(7) (dealer failing to register) the words from “a fine” to the

end;

(b)   

in section 2(6) (dealer failing to record dealings) the words from “a fine”

40

to the end;

(c)   

in section 3(4) (itinerant collector failing to keep receipts) the words

from “a fine” to the end;

(d)   

in section 4(4) (convicted dealer failing to meet additional

requirements) the same words before “and the court”.

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Revised 22 March 2012