Legal Aid, Sentencing and Punishment of Offenders Bill

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
15
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
20
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
30
(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—
45

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,
35

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.
35
(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
45
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”.
45