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
Schedule 10 — Repeal of sections 181 to 188 of the Criminal Justice Act 2003: consequential amendments
223

35
In section 268 (interpretation of Chapter 6), omit the definitions of
“intermittent custody prisoner”, “release” and “relevant court order”.
36
In section 302 (execution of process between England and Wales and
Scotland), omit “paragraph 8(1) of Schedule 10”.
37
In section 305(1) (interpretation of Part 12)—
5
(a)
omit the definition of “custody plus order”;
(b)
omit the definition of “intermittent custody order”;
(c)
omit the words “custody plus order, intermittent custody order”
(wherever they appear);
(d)
in the definition of “responsible officer”, omit the words “a custody
10
plus order, an intermittent custody order”.
38    (1)
Schedule 12 (breach or amendment of suspended sentence order etc) is
amended as follows.
      (2)
In paragraph 8(2) (powers of court on breach of community requirement or
conviction of further offence)—
15
(a)
in paragraph (a), omit “and custodial period”;
(b)
in paragraph (b), for the words from “with either or both” to the end
substitute “with the substitution for the original term of a lesser
term”.
      (3)
In paragraph 9(1) (further provision as to order that suspended sentence is
20
to take effect)—
(a)
omit “and custodial period”;
(b)
omit paragraph (a).
39
In Schedule 32 (amendments relating to sentencing), omit paragraphs 12(2),
(3) and (6), 29, 57, 58 and 68(2).
25
Domestic Violence, Crime and Victims Act 2004 (c. 28)
40    (1)
The Domestic Violence, Crime and Victims Act 2004 is amended as follows.
      (2)
Omit section 31 and Schedule 6 (intermittent custody).
      (3)
In Schedule 11 (repeals), omit the entries relating to the Criminal Justice Act
2003.
30
Armed Forces Act 2006 (c. 52)
41    (1)
The Armed Forces Act 2006 is amended as follows.
      (2)
In section 196 (term of sentence etc), omit—
(a)
the reference to sections 181 and 182 of the Criminal Justice Act 2003;
(b)
in the reference to Chapter 4 of Part 12 of that Act, the words
35
“custody plus order or”.
      (3)
Omit sections 197 to 199 (imprisonment with or without custody plus order).
      (4)
In section 207 (definitions), omit the definition of “custody plus order”.
      (5)
In Schedule 7 (suspended sentence: further conviction or breach of
requirement), omit paragraph 9(1)(a) (modification of paragraph 9(1)(a) of
40
Schedule 12 to the Criminal Justice Act 2003).

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 11 — Amendment of enactments relating to bail
224

      (6)
In Schedule 16 (minor and consequential amendments), omit paragraphs
222 and 223.
Criminal Justice and Immigration Act 2008 (c. 4)
42
Omit section 20(2) and (3) of the Criminal Justice and Immigration Act 2008.
Policing and Crime Act 2009 (c. 26)
5
43
Omit section 71(10) of the Policing and Crime Act 2009.
Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005 (S.I. 2005/643)
44
Article 2(4) of the Criminal Justice Act 2003 (Sentencing) (Transitory
Provisions) Order 2005 is revoked.
Schedule 11
10
Section 91

Amendment of enactments relating to bail
Bail Act 1976 (c. 63)
1
The Bail Act 1976 is amended as follows.
2
In section 2(2) (definitions)—
(a)
insert the following definitions at the appropriate places—
15
““bail in non-extradition proceedings” means bail in
criminal proceedings of the kind mentioned in section
1(1)(a),”;
““custodial sentence” means a sentence or order
mentioned in section 76(1) of the Powers of Criminal
20
Courts (Sentencing) Act 2000 or any corresponding
sentence or order imposed or made under any earlier
enactment,”;
““imprisonable offence” means an offence punishable in
the case of an adult with imprisonment,”;
25
““sexual offence” means an offence specified in Part 2 of
Schedule 15 to the Criminal Justice Act 2003,”;
““violent offence” means murder or an offence specified
in Part 1 of Schedule 15 to the Criminal Justice Act
2003,”, and
30
(b)
in the definition of “young person” for “seventeen” substitute
“eighteen”.
3     (1)
Section 3 (general provisions) is amended as follows.
      (2)
In subsection (6ZAA), for “person),” substitute “person granted bail in
criminal proceedings of the kind mentioned in section 1(1)(a) or (b)), section
35
3AAA (in the case of a child or young person granted bail in connection with
extradition proceedings),”.
      (3)
In subsection (7)—

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 11 — Amendment of enactments relating to bail
225

(a)
for “a child or young person” substitute “a person under the age of
seventeen”,
(b)
for the words “the child or young person”, in both places they
appear, substitute “the person”, and
(c)
in paragraph (a)—
5
(i)
omit “of a young person”, and
(ii)
omit “young” in the second place it appears.
4     (1)
Section 3AA (conditions for the imposition of electronic monitoring
requirements: children and young persons) is amended as follows.
      (2)
In the heading after “young persons” insert “released on bail other than in
10
extradition proceedings”.
      (3)
In subsection (1) (conditions for the imposition of electronic monitoring
conditions: children and young persons) after “young person” insert
“released on bail in criminal proceedings of the kind mentioned in section
1(1)(a) or (b)”.
15
5
After section 3AA insert—
“3AAA
Conditions for the imposition of electronic monitoring
requirements: children and young persons released on bail in
extradition proceedings
(1)
A court may not impose electronic monitoring requirements on a
20
child or young person released on bail in connection with extradition
proceedings unless each of the following conditions is met.
(2)
The first condition is that the child or young person has attained the
age of twelve years.
(3)
The second condition is that—
25
(a)
the conduct constituting the offence to which the extradition
proceedings relate, or one or more of those offences, would,
if committed in England and Wales, constitute a violent or
sexual offence or an offence punishable in the case of an adult
with imprisonment for a term of fourteen years or more, or
30
(b)
the offence or offences to which the extradition proceedings
relate, together with any other imprisonable offences of
which the child or young person has been convicted in any
proceedings—
(i)
amount, or
35
(ii)
would, if the child or young person were convicted of
that offence or those offences, amount,

to a recent history of committing imprisonable offences while
on bail or subject to a custodial remand.
(4)
The third condition is that the court is satisfied that the necessary
40
provision for dealing with the child or young person concerned can
be made under arrangements for the electronic monitoring of
persons released on bail that are currently available in each local
justice area which is a relevant area.
(5)
The fourth condition is that a youth offending team has informed the
45
court that in its opinion the imposition of electronic monitoring
requirements will be suitable in the case of the child or young person.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 11 — Amendment of enactments relating to bail
226

(6)
The references in subsection (3)(b) to an imprisonable offence
include a reference to an offence—
(a)
of which the child or young person has been accused or
convicted outside England and Wales, and
(b)
which is equivalent to an offence that is punishable with
5
imprisonment in England and Wales.
(7)
The reference in subsection (3)(b) to a child or young person being
subject to a custodial remand is to the child or young person being—
(a)
remanded to local authority accommodation or youth
detention accommodation under section 92 of the Legal Aid,
10
Sentencing and Punishment of Offenders Act 2012,
(b)
remanded to local authority accommodation under section
23 of the Children and Young Persons Act 1969 or to prison
under that section as modified by section 98 of the Crime and
Disorder Act 1998 or under section 27 of the Criminal Justice
15
Act 1948, or
(c)
subject to a form of custodial detention in a country or
territory outside England and Wales while awaiting trial or
sentence in that country or territory or during a trial in that
country or territory.”
20
6     (1)
Section 3AB (conditions for the imposition of electronic monitoring
requirements: other persons) is amended as follows.
      (2)
In subsection (1) for “seventeen” substitute “eighteen”.
      (3)
Omit subsection (4).
7
In section 3AC (electronic monitoring: general provisions) in each of
25
subsections (7) and (8) after “3AA” insert “, 3AAA”.
8     (1)
Section 7 (liability to arrest for absconding or breaking conditions of bail) is
amended as follows.
      (2)
In subsection (5) for “subsection (6)” substitute “subsections (5A) and (6)”.
      (3)
After subsection (5) insert—
30
“(5A)
A justice of the peace may not remand a person in, or commit a
person to, custody under subsection (5) if—
(a)
the person has attained the age of eighteen,
(b)
the person was released on bail in non-extradition
proceedings,
35
(c)
the person has not been convicted of an offence in those
proceedings, and
(d)
it appears to the justice of the peace that there is no real
prospect that the person will be sentenced to a custodial
sentence in the proceedings.”
40
      (4)
In subsection (6) for “the person so brought before the justice” substitute “a
person brought before a justice under subsection (4) or (4B)”.
9     (1)
Section 9A (bail decisions relating to persons aged under 18 who are accused
of offences mentioned in Schedule 2 to the Magistrates’ Courts Act 1980) is
amended as follows.
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 11 — Amendment of enactments relating to bail
227

      (2)
In the heading for “persons aged under 18” substitute “children or young
persons”.
      (3)
In subsection (1)(a) for “person aged under 18” substitute “child or young
person”.
      (4)
In subsections (2) and (3)(b) after “accused” insert “child or young”.
5
10
Part 1 of Schedule 1 (bail for defendants accused or convicted of certain
imprisonable offences) is amended in accordance with paragraphs 11 to 21.
11
For the heading immediately before paragraph 1 (defendants to whom Part
1 applies) substitute “Application of Part 1”.
12
In paragraph 1 (defendants to whom Part 1 applies) in sub-paragraph (1)
10
after “sub-paragraph (2)” insert “and paragraph 1A”.
13
After paragraph 1 insert—
“1A   (1)
The paragraphs of this Part of this Schedule mentioned in sub-
paragraph (2) do not apply in relation to bail in non-extradition
proceedings where—
15
(a)
the defendant has attained the age of 18,
(b)
the defendant has not been convicted of an offence in those
proceedings, and
(c)
it appears to the court that there is no real prospect that the
defendant will be sentenced to a custodial sentence in the
20
proceedings.
      (2)
The paragraphs are—
(a)
paragraph 2 (refusal of bail where defendant may fail to
surrender to custody, commit offences on bail or interfere
with witnesses),
25
(b)
paragraph 2A (refusal of bail where defendant appears to
have committed indictable or either way offence while on
bail), and
(c)
paragraph 6 (refusal of bail where defendant has been
arrested under section 7).”
30
14
In paragraph 2 (exceptions to bail where defendant may fail to surrender to
custody, commit offences on bail or interfere with witnesses) for sub-
paragraph (2) substitute—
    “(2)
Where the defendant falls within paragraph 6B, this paragraph
does not apply unless—
35
(a)
the court is of the opinion mentioned in paragraph 6A, or
(b)
paragraph 6A does not apply by virtue of paragraph 6C.”
15
After paragraph 2 insert—
“2ZA  (1)
The defendant need not be granted bail if the court is satisfied that
there are substantial grounds for believing that the defendant, if
40
released on bail (whether subject to conditions or not), would
commit an offence while on bail by engaging in conduct that
would, or would be likely to, cause—
(a)
physical or mental injury to an associated person; or
(b)
an associated person to fear physical or mental injury.
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 11 — Amendment of enactments relating to bail
228

      (2)
In sub-paragraph (1) “associated person” means a person who is
associated with the defendant within the meaning of section 62 of
the Family Law Act 1996.”
16
For paragraph 2A (refusal of bail where defendant appears to have
committed offence while on bail) substitute—
5
“2A
The defendant need not be granted bail if—
(a)
the offence is an indictable offence or an offence triable
either way, and
(b)
it appears to the court that the defendant was on bail in
criminal proceedings on the date of the offence.”
10
17
For paragraph 6 (refusal of bail where defendant fails to surrender to
custody or has been arrested under section 7) substitute—
“6
The defendant need not be granted bail if, having previously been
released on bail in, or in connection with, the proceedings, the
defendant has been arrested in pursuance of section 7.”
15
18
In paragraph 6A (certain drug users to be refused bail unless no significant
risk of offending while on bail) for “is satisfied” substitute “is of the
opinion”.
19
In paragraph 9 (considerations to which the court must have regard)—
(a)
for “2A(1), 6(1) or 6A” substitute “2ZA(1)”, and
20
(b)
after “paragraph 6ZA” insert “or 6A”.
20
In paragraph 9AA (court to give particular weight to the fact that an under
18 defendant was on bail when the offence was committed) in sub-
paragraph (1)(a) for “under the age of 18” substitute “a child or young
person”.
25
21
In paragraph 9AB (factors to be given particular weight by the court when
making a decision for the purposes of section 2(1)(a), in the case of an under
18 defendant who has failed to surrender) in sub-paragraph (1)(a) for “under
the age of 18” substitute “a child or young person”.
22
Part 1A of Schedule 1 (bail for defendants accused or convicted of
30
imprisonable offences to which Part 1 of that Schedule does not apply) is
amended in accordance with paragraphs 23 to 26.
23
For the heading immediately before paragraph 1 (defendants to whom Part
1A applies) substitute “Application of Part 1A”.
24
In paragraph 1 (defendants to whom Part 1A applies) for “The” substitute
35
“Subject to paragraph 1A, the”.
25
After paragraph 1 insert—
“1A   (1)
The paragraphs of this Part of this Schedule mentioned in sub-
paragraph (2) do not apply in relation to bail in, or in connection
with, proceedings where—
40
(a)
the defendant has attained the age of 18,
(b)
the defendant has not been convicted of an offence in those
proceedings, and

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 11 — Amendment of enactments relating to bail
229

(c)
it appears to the court that there is no real prospect that the
defendant will be sentenced to a custodial sentence in the
proceedings.
      (2)
The paragraphs are—
(a)
paragraph 2 (refusal of bail for failure to surrender to
5
custody),
(b)
paragraph 3 (refusal of bail where defendant would
commit further offences on bail), and
(c)
paragraph 7 (refusal of bail in certain circumstances when
arrested under section 7).”
10
26    (1)
Paragraph 4 (refusal of bail to defendants who are likely to cause injury or
fear of injury) is amended as follows.
      (2)
The existing words become sub-paragraph (1).
      (3)
In paragraphs (a) and (b) of that sub-paragraph for “any person other than
the defendant”, in both places those words appear, substitute “an associated
15
person”.
      (4)
After that sub-paragraph insert—
    “(2)
In sub-paragraph (1) “associated person” means a person who is
associated with the defendant within the meaning of section 62 of
the Family Law Act 1996.”
20
27
Part 2 of Schedule 1 (bail for defendants accused or convicted of non-
imprisonable offences) is amended in accordance with paragraphs 28 to 30.
28
In paragraph 2 (refusal of bail for failure to surrender to custody) after “bail
if—” insert—
“(za)
the defendant—
25
(i)
is a child or young person, or
(ii)
has been convicted in the proceedings of an offence;”.
29
In paragraph 5 (refusal of bail in certain circumstances when arrested under
section 7) after “bail if—” insert—
“(za)
the defendant—
30
(i)
is a child or young person, or
(ii)
has been convicted in the proceedings of an offence;”.
30
After paragraph 5 insert—
“6    (1)
The defendant need not be granted bail if—
(a)
having been released on bail in, or in connection with, the
35
proceedings for the offence, the defendant has been
arrested in pursuance of section 7, and
(b)
the court is satisfied that there are substantial grounds for
believing that the defendant, if released on bail (whether
subject to conditions or not), would commit an offence
40
while on bail by engaging in conduct that would, or would
be likely to, cause—
(i)
physical or mental injury to an associated person,
or
(ii)
an associated person to fear physical or mental
45
injury.