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
Schedule 16 — Amendments of the Criminal Justice Act 2003: transitional and consequential provision
Part 1 — Transitional provision
244

Schedule 16
Section 122

Amendments of the Criminal Justice Act 2003: transitional and consequential
provision
Part 1
Transitional provision
5
1
The Criminal Justice Act 2003 is amended as follows.
2
After section 267 insert—
“267A
Application of Chapter 6 to pre-4 April 2005 cases

Schedule 20A (which modifies certain provisions of this Chapter as
they apply to persons serving a sentence for an offence committed
10
before 4 April 2005) has effect.”
3
After Schedule 20 insert—
“Schedule 20A
Section 267A

Application of Chapter 6 of Part 12 to pre-4 April 2005 cases
1
In this Schedule—
15
“the 1991 Act” means the Criminal Justice Act 1991;
“the commencement date” means the date on which section
122 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 comes into force.
2
Paragraphs 3 to 9 apply in relation to any person serving a
20
sentence for an offence committed before 4 April 2005, whenever
that sentence was imposed (see section 122(1) of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012).
3     (1)
Any relevant period is to be treated, for the purposes of section
240ZA, as if it were a period for which the offender was remanded
25
in custody in connection with the offence.
      (2)
“Relevant period” means any period which would (but for the
repeal of section 67 of the Criminal Justice Act 1967) be a relevant
period within the meaning of that section (reduction of sentences
by period spent in custody etc).
30
4
Section 246 applies as if, in subsection (4)—
(a)
the reference in paragraph (a) to section 227 or 228 were a
reference to section 85 of the Sentencing Act;
(b)
the reference in paragraph (d) to paragraph 9(1)(b) or (c) or
10(1)(b) or (c) of Schedule 8 were a reference to paragraph
35
4(1)(d) or 5(1)(d) of Schedule 3 to the Sentencing Act;
(c)
in paragraph (g)—
(i)
the reference to section 246 included a reference to
section 34A of the 1991 Act,
(ii)
the reference to section 255(1)(a) included a
40
reference to section 38A(1)(a) or 39(1) or (2) of the
1991 Act, and

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 16 — Amendments of the Criminal Justice Act 2003: transitional and consequential provision
Part 1 — Transitional provision
245

(iii)
the reference to section 255(3) included a reference
to section 38A(3) of the 1991 Act;
(d)
the references in paragraph (h) to sections 248 and 254
included references to, respectively, sections 36 and 39(1)
or (2) of the 1991 Act; and
5
(e)
in paragraph (i), the words from “in the case of” to “relates”
were omitted.
5     (1)
Where the person has been released on licence under Part 2 of the
1991 Act or under section 60 of the Criminal Justice Act 1967 before
the commencement date, the person is to be treated as if the release
10
had been under this Chapter.
      (2)
In particular, the following provisions apply.
      (3)
A licence under section 34A of the 1991 Act is to be treated as if it
were a licence under section 246.
      (4)
A licence under section 36 of the 1991 Act is to be treated as if it
15
were a licence under section 248.
      (5)
Any condition of a licence specified under section 37 of the 1991
Act is to have effect as if it were included under section 250
(whether or not the condition is of a kind which could otherwise
be included under that section).
20
      (6)
Where the licence is, on the commencement date, subject to a
suspension under section 38(2) of the 1991 Act, the suspension
continues to have effect for the period specified by the court
despite the repeal of that section.
      (7)
A licence under section 40A of the 1991 Act is to be treated as if it
25
were a licence under this Chapter, except that in respect of any
failure (before or after the commencement date) to comply with
the conditions of the licence, the person is liable to be dealt with in
accordance with section 40A(4) to (6) (despite the repeal of that
section) and is not liable to be dealt with in any other way.
30
      (8)
Sub-paragraph (1) does not affect the duration of the licence.
6     (1)
Where a person has been recalled under Part 2 of the 1991 Act
before the commencement date, the person is to be treated as if the
recall had been under section 254.
      (2)
In particular, the following provisions apply.
35
      (3)
If the Secretary of State has not referred the person’s case to the
Board under section 39(4) or 44A of the 1991 Act, the Secretary of
State must refer the case under section 255C(4).
      (4)
If the Secretary of State has referred the person’s case to the Board
under section 39(4) or 44A of the 1991 Act, that reference is to be
40
treated as if it had been made under section 255C(4).
      (5)
A determination of a reference under section 39(4) or 44A of the
1991 Act is to be treated as a determination under section 256(1).

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 16 — Amendments of the Criminal Justice Act 2003: transitional and consequential provision
Part 2 — Consequential amendments
246

      (6)
If the person is released on licence, the duration of that licence is
determined in accordance with section 249 (subject to paragraphs
17, 19 and 26 of Schedule 20B).
7
Rules made by virtue of section 42 of the 1991 Act have effect as if
made by virtue of section 257.
5
8     (1)
A person removed from prison under section 46A of the 1991 Act
before the commencement date is to be treated as having been
removed from prison under section 260.
      (2)
Section 260 applies as if, in subsection (7)—
(a)
the reference to an extended sentence imposed under
10
section 227 or 228 were a reference to an extended sentence
imposed under section 85 of the Sentencing Act, and
(b)
the reference to the appropriate custodial term determined
under section 227 or 228 were a reference to the custodial
term determined under section 85.
15
9
An order made under section 47 of the 1991 Act is to have effect as
if it were an order made under section 243.
10
Section 264 applies as if the definition of “custodial period” in
subsection (6) included, in relation to an extended sentence
imposed under section 85 of the Sentencing Act, one-half of the
20
custodial term determined under that section.”
Part 2
Consequential amendments
Repatriation of Prisoners Act 1984 (c. 47)
4
In section 2(4)(b)(i) of the Repatriation of Prisoners Act 1984 (power to
25
provide for prisoner to be treated as having been released) for “section 244
or 246” substitute “Chapter 6 of Part 12”.
Criminal Justice Act 1991 (c. 53)
5
In Schedule 12 to the Criminal Justice Act 1991, omit paragraphs 8 to 13
(transitional provisions relating to the coming into force of Part 2 of that
30
Act).
Crime (Sentences) Act 1997 (c. 43)
6
Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within
the British Islands) is amended as follows.
7
In paragraph 8 (transfers to Scotland)—
35
(a)
in sub-paragraph (2)(a), after “246 to 264A” insert “, 267A and 267B”;
(b)
in sub-paragraph (4)(a), for “and 249 to 264A” substitute “, 249 to
264A, 267A and 267B”.
8
In paragraph 9(2)(a) and (4)(a) (transfers to Northern Ireland), for “and 254
to 264A” substitute “, 254 to 264A, 267A and 267B”.
40

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 16 — Amendments of the Criminal Justice Act 2003: transitional and consequential provision
Part 2 — Consequential amendments
247

Extradition Act 2003 (c. 41)
9
The Extradition Act 2003 is amended as follows.
10
In section 59 (return of person to serve remainder of sentence), in subsection
(11)—
(a)
omit paragraph (a);
5
(b)
in paragraph (b), for “section 244” substitute “Chapter 6 of Part 12”.
11
In section 132 (return of person to serve remainder of sentence), in
subsection (11)—
(a)
omit paragraph (a);
(b)
in paragraph (b), for “section 244” substitute “Chapter 6 of Part 12”.
10
12
In section 153B (return of person in pursuance of undertaking), in subsection
(10)(a)—
(a)
omit sub-paragraph (i);
(b)
in sub-paragraph (ii), for “section 244” substitute “Chapter 6 of Part
12”.
15
Criminal Justice Act 2003 (c. 44)
13
The Criminal Justice Act 2003 is amended as follows.
14
In section 240A(1)(a) (crediting of periods of remand on bail), omit the
words “committed on or after 4th April 2005”.
15    (1)
The repeal by section 25 of the Criminal Justice and Immigration Act 2008 of
20
provisions in section 247 of the Criminal Justice Act 2003 comes fully into
force.
      (2)
Accordingly, in paragraph 2 of Schedule 2 to the Criminal Justice and
Immigration Act 2008 (Commencement No.2 and Transitional and Savings
Provisions) Order 2008 (S.I. 2008/1586), omit “and 25”.
25
16
Omit section 262 and Schedule 20 (prisoners liable to removal from United
Kingdom).
17
Omit section 265(1A) (restriction on consecutive sentences for released
prisoners).
Domestic Violence, Crime and Victims Act 2004 (c. 28)
30
18
Omit paragraph 46 of Schedule 10 to the Domestic Violence, Crime and
Victims Act 2004.
Police and Justice Act 2006 (c. 48)
19
Omit paragraph 33 of Schedule 13 to the Police and Justice Act 2006.
Criminal Justice and Immigration Act 2008 (c. 4)
35
20
In the Criminal Justice and Immigration Act 2008, omit—
(a)
sections 20(4)(b), 26 to 28, 32 and 33(1), (3), (5) and (6);
(b)
paragraph 29(2) to (5) of Schedule 26;
(c)
paragraphs 8 and 9 of Schedule 27.

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 17 — Criminal Justice Act 2003: restatement of transitional provision
248

Coroners and Justice Act 2009 (c. 25)
21
In the Coroners and Justice Act 2009, omit—
(a)
section 145;
(b)
paragraph 43 of Schedule 22.
Criminal Justice and Immigration Act 2008 (Commencement No.1 and Transitional
5
Provisions) Order 2008 (S.I. 2008/1466)
22
Article 3 of the Criminal Justice and Immigration Act 2008 (Commencement
No.1 and Transitional Provisions) Order 2008 (S.I. 2008/1466) is revoked.
Schedule 17
Section 122

Criminal Justice Act 2003: restatement of transitional provision
10
1
The Criminal Justice Act 2003 is amended as follows.
2
In section 244 (duty to release prisoners on licence), after subsection (3)
insert—
“(4)
This section is subject to paragraphs 5, 6, 8, 25 and 28 of Schedule 20B
(transitional cases).”
15
3
In section 247 (release on licence of prisoner serving extended sentence),
after subsection (7) insert—
“(8)
In its application to a person serving a sentence imposed before 14
July 2008, this section is subject to the modifications set out in
paragraph 15 of Schedule 20B (transitional cases).”
20
4
In section 249 (duration of licence), at the end insert—
“(5)
This section is subject to paragraphs 17, 19 and 26 of Schedule 20B
(transitional cases).”
5     (1)
Section 258 (early release of fine defaulters and contemnors) is amended as
follows.
25
      (2)
After subsection (2) insert—
“(2A)
Subsection (2) is subject to paragraph 35 of Schedule 20B (transitional
cases).”
      (3)
In subsection (3) after “in this section” insert “or in paragraph 35 of Schedule
20B”.
30
6
In section 260 (early removal of prisoners liable to removal from UK), after
subsection (7) insert—
“(8)
Paragraphs 36 and 37 of Schedule 20B (transitional cases) make
further provision about early removal of certain prisoners.”
7
In section 263 (concurrent terms), after subsection (4) insert—
35
“(5)
This section is subject to paragraphs 21, 31 and 32 of Schedule 20B
(transitional cases).”

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 17 — Criminal Justice Act 2003: restatement of transitional provision
249

8
In section 264 (consecutive terms), after subsection (7) insert—
“(8)
This section is subject to paragraphs 21, 22, 31, 32 and 33 of Schedule
20B (transitional cases).”
9
After section 267A (inserted by Schedule 16) insert—
“267B
Modification of Chapter 6 in certain transitional cases
5

Schedule 20B (which modifies this Chapter so as to restate, with
minor amendments, the effect of transitional provisions relating to
the coming into force of this Chapter) has effect.”
10
After Schedule 20A (inserted by Schedule 16) insert—
“Schedule 20B
10
Section 267B

Modifications of Chapter 6 of Part 12 in certain transitional cases
Part 1
Introductory
Interpretation
1     (1)
The following provisions apply for the purposes of this Schedule.
15
      (2)
“The commencement date” means the date on which section 122 of
the Legal Aid, Sentencing and Punishment of Offenders Act 2012
comes into force.
      (3)
“The 1967 Act” means the Criminal Justice Act 1967.
      (4)
“The 1991 Act” means the Criminal Justice Act 1991.
20
      (5)
A “section 85 extended sentence” means an extended sentence
under section 85 of the Sentencing Act and includes (in accordance
with paragraph 1(3) of Schedule 11 to that Act) a sentence under
section 58 of the Crime and Disorder Act 1998.
      (6)
In relation to a section 85 extended sentence, “the custodial term”
25
and “the extension period” have the meaning given by that
section.
      (7)
References to section 86 of the Sentencing Act include (in
accordance with paragraph 1(3) of Schedule 11 to that Act) section
44 of the 1991 Act as originally enacted.
30
      (8)
A “1967 Act sentence” is a sentence imposed before 1 October
1992.
      (9)
A “1991 Act sentence” is a sentence which is—
(a)
imposed on or after 1 October 1992 but before 4 April 2005,
or
35
(b)
imposed on or after 4 April 2005 but before the
commencement date and is either—
(i)
imposed in respect of an offence committed before
4 April 2005, or
(ii)
for a term of less than 12 months.
40

Legal Aid, Sentencing and Punishment of Offenders Bill
Schedule 17 — Criminal Justice Act 2003: restatement of transitional provision
250

     (10)
A “2003 Act sentence” is a sentence which is—
(a)
imposed on or after the commencement date, or
(b)
imposed on or after 4 April 2005 but before the
commencement date and is both—
(i)
imposed in respect of an offence committed on or
5
after 4 April 2005, and
(ii)
for a term of 12 months or more.
     (11)
Where an offence is found to have been committed over a period
of two or more days, or at some time during a period of two or
more days, it is to be taken for the purposes of this Schedule to
10
have been committed on the last of those days.
Explanation of dates
2
The following dates (which are mentioned in this Schedule) are
dates on which changes to the law relating to the release and recall
of prisoners came into force—
15
1 October 1992 is the date on which Part 2 of the Criminal
Justice Act 1991 came into force;
30 September 1998 is the date on which certain provisions of
the Crime and Disorder Act 1998 came into force;
4 April 2005 is the date on which this Chapter came into force;
20
9 June 2008 is the date on which section 26 of the Criminal
Justice and Immigration Act 2008 came into force;
14 July 2008 is the date on which certain other provisions of
that Act came into force;
2 August 2010 is the date on which section 145 of the
25
Coroners and Justice Act 2009 came into force.
Part 2
Prisoners serving 1991 Act sentences etc
3     (1)
This Part applies to certain persons serving a 1991 Act sentence.
      (2)
This Part also applies to a person serving a 2003 Act sentence
30
which is—
(a)
a section 85 extended sentence, or
(b)
an extended sentence imposed under section 227 or 228
before 14 July 2008.
      (3)
But this Part does not apply to a person who—
35
(a)
has been released on licence under Part 2 of the 1991 Act,
(b)
has been recalled to prison, and
(c)
(whether or not having returned to custody in
consequence of that recall) is unlawfully at large on the
commencement date.
40
Duty to release on licence at two-thirds of sentence
4     (1)
This paragraph applies to a person in relation to whom—
(a)
all the conditions in sub-paragraph (2) are met, and