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
Part 2 — Litigation funding and costs
44

59
Regulation by the FSA
(1)
The Treasury may make regulations to enable the Financial Services Authority,
where it is the relevant regulator, to take action for monitoring and enforcing
compliance with the restrictions imposed on regulated persons by section 57.
(2)
The regulations may apply, or make provision corresponding to, any of the
5
provisions of the Financial Services and Markets Act 2000 with or without
modification.
(3)
Those provisions include in particular—
(a)
provisions as to investigations, including powers of entry and search
and criminal offences;
10
(b)
provisions for the grant of an injunction in relation to a contravention
or anticipated contravention.
(c)
provisions giving Ministers or the Financial Services Authority powers
to make subordinate legislation;
(d)
provisions for the Financial Services Authority to charge fees.
15
(4)
The regulations may make provision corresponding to the provision that may
be made by virtue of section 58(7) to (9) (but as if the reference to the Lord
Chancellor were a reference to the Treasury).
(5)
The power to make regulations under this section is subject to section 58(5) and
(6).
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60
Regulators and regulated persons
(1)
In relation to a referral of business within section 57(4)(a)—
(a)
a regulator is any person listed in column 1 below;
(b)
a regulated person is any person listed in column 2;
(c)
a regulator in column 1 is the relevant regulator in relation to the
25
corresponding person in column 2.

1. Regulator
2. Regulated person

the Financial Services
an authorised person (within the

Authority
meaning of the Financial Services and

Markets Act 2000) of a description

30

specified in regulations made by the

Treasury

the Claims Management
a person authorised by the Regulator

Regulator
under section 5(1)(a) of the

Compensation Act 2006 to provide

35

regulated claims management services

the General Council of the
a person authorised by the Council to

Bar
carry on a reserved legal activity within

the meaning of the Legal Services Act

2007

40

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 2 — Litigation funding and costs
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1. Regulator
2. Regulated person

the Law Society
a person authorised by the Society to

carry on a reserved legal activity within

the meaning of the Legal Services Act

2007

5

a regulatory body specified
a person of a description specified in the

for the purposes of this
regulations in relation to the body

subsection in regulations

made by the Lord

Chancellor

10

(2)
In relation to a referral of prescribed legal business of any other kind—
(a)
a regulator is any person listed in column 1 below and specified in
relation to business of that kind in regulations made by the Lord
Chancellor;
(b)
a regulated person is any person specified in accordance with column
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2 in relation to business of that kind;
(c)
a person specified under paragraph (a) in relation to business of that
kind is the relevant regulator in relation to a person specified in
accordance with the corresponding entry in column 2 in relation to
business of that kind.
20

1. Regulator
2. Regulated person

the Financial Services
an authorised person (within the

Authority
meaning of the Financial Services and

Markets Act 2000) of a description

specified in regulations made by the

25

Treasury

the Claims Management
a person who is authorised by the

Regulator
Regulator under section 5(1)(a) of the

Compensation Act 2006 to provide

regulated claims management services

30

and is of a description specified in

regulations made by the Lord

Chancellor

an approved regulator for
a person who is authorised by the

the purposes of Part 3 of
regulator to carry on a reserved legal

35

the Legal Services Act 2007
activity and is of a description specified

(approved legal activities);
in regulations made by the Lord

Chancellor

a licensing authority for
a person who is licensed by the

the purposes of Part 5 of
authority to carry on a reserved legal

40

that Act (alternative
activity and is of a description specified

business structures)
in regulations made by the Lord

Chancellor

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 2 — Litigation funding and costs
46

61
Referral fees: regulations
(1)
This section applies to any regulations under sections 57 to 60.
(2)
The regulations are to be made by statutory instrument.
(3)
The power to make the regulations includes power to make consequential,
supplementary, incidental, transitional, transitory or saving provision.
5
(4)
A statutory instrument containing the regulations may not be made unless a
draft of the instrument has been laid before, and approved by a resolution of,
each House of Parliament.
Pro bono representation
62
Payments in respect of pro bono representation before the Supreme Court
10
(1)
In section 194 of the Legal Services Act 2007 (power for certain courts to order
losing party to make payment to charity where other party is represented pro
bono) in subsection (10) for the definition of “civil court” substitute—
““civil court” means—
(a)
the Supreme Court when it is dealing with a relevant
15
civil appeal,
(b)
the civil division of the Court of Appeal,
(c)
the High Court, or
(d)
any county court;
“relevant civil appeal” means an appeal to the Supreme Court—
20
(a)
from the High Court in England and Wales under Part 2
of the Administration of Justice Act 1969,
(b)
from the Court of Appeal under section 40(2) of the
Constitutional Reform Act 2005, or
(c)
under section 13 of the Administration of Justice Act
25
1960 (appeal in cases of contempt of court) other than an
appeal from an order or decision made in the exercise of
jurisdiction to punish for criminal contempt of court;”.
(2)
This section applies in relation to appeals to the Supreme Court only where the
decision, order or judgement that is the subject of the appeal is made or given
30
on or after the day on which this section comes into force.
Costs in criminal cases
63
Costs in criminal cases
(1)
Schedule 7 (costs in criminal cases) has effect.
(2)
Schedule 8 (costs in criminal cases: service courts) has effect.
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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
47

Part 3
Sentencing and Punishment of Offenders
Chapter 1
Sentencing
General
5
64
Court’s duty to consider compensation order
(1)
In section 130 of the Powers of Criminal Courts (Sentencing) Act 2000
(compensation orders against convicted persons), after subsection (2) insert—
“(2A)
A court must consider making a compensation order in any case where
this section empowers it to do so.”
10
(2)
In section 175 of the Armed Forces Act 2006 (service compensation orders),
after subsection (7) insert—
“(7A)
The court must consider making a service compensation order in any
case where it has power to do so.”
65
Duty to give reasons for and to explain effect of sentence
15
(1)
The Criminal Justice Act 2003 is amended as follows.
(2)
For section 174 substitute—
“174
Duty to give reasons for and to explain effect of sentence
(1)
A court passing sentence on an offender has the duties in subsections
(2) and (3).
20
(2)
The court must state in open court, in ordinary language and in general
terms, the court’s reasons for deciding on the sentence.
(3)
The court must explain to the offender in ordinary language—
(a)
the effect of the sentence,
(b)
the effects of non-compliance with any order that the offender
25
is required to comply with and that forms part of the sentence,
(c)
any power of the court to vary or review any order that forms
part of the sentence, and
(d)
the effects of failure to pay a fine, if the sentence consists of or
includes a fine.
30
(4)
Criminal Procedure Rules may—
(a)
prescribe cases in which either duty does not apply, and
(b)
make provision about how an explanation under subsection (3)
is to be given.
(5)
Subsections (6) to (8) are particular duties of the court in complying
35
with the duty in subsection (2).
(6)
The court must identify any definitive sentencing guidelines relevant to
the offender’s case and—

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
48

(a)
explain how the court discharged any duty imposed on it by
section 125 of the Coroners and Justice Act 2009 (duty to follow
guidelines unless satisfied it would be contrary to the interests
of justice to do so);
(b)
where the court was satisfied it would be contrary to the
5
interests of justice to follow the guidelines, state why.
(7)
Where, as a result of taking into account any matter referred to in
section 144(1) (guilty pleas), the court imposes a punishment on the
offender which is less severe than the punishment it would otherwise
have imposed, the court must state that fact.
10
(8)
Where the offender is under 18 and the court imposes a sentence that
may only be imposed in the offender’s case if the court is of the opinion
mentioned in—
(a)
section 1(4)(a) to (c) of the Criminal Justice and Immigration Act
2008 and section 148(1) of this Act (youth rehabilitation order
15
with intensive supervision and surveillance or with fostering),
or
(b)
section 152(2) of this Act (discretionary custodial sentence),

the court must state why it is of that opinion.
(9)
In this section “definitive sentencing guidelines” means sentencing
20
guidelines issued by the Sentencing Council for England and Wales
under section 120 of the Coroners and Justice Act 2009 as definitive
guidelines, as revised by any subsequent guidelines so issued.”
(3)
In section 270 (duty to give reasons)—
(a)
for subsection (1) substitute—
25
“(1)
Subsection (2) applies where a court makes an order under
section 269(2) or (4).”, and
(b)
in subsection (2) for “In stating its reasons” substitute “In complying
with the duty under section 174(2) to state its reasons for deciding on
the order made,”.
30
(4)
In the Armed Forces Act 2006—
(a)
in section 252 (duty to give reasons and explain sentence), omit
subsection (2);
(b)
in section 253 (duties in complying with section 252), omit subsections
(1)(a), (c) and (d) and (2)(b) and (d) to (h).
35
(5)
In consequence of the amendments made by this section omit—
(a)
paragraph 9(6) of Schedule 1 to the Violent Crime Reduction Act 2006;
(b)
paragraph 80 of Schedule 4 to the Criminal Justice and Immigration Act
2008;
(c)
paragraph 24 of Schedule 25 to that Act;
40
(d)
paragraph 84 of Schedule 21 to the Coroners and Justice Act 2009.
66
Sentencing where there is aggravation related to transgender identity
(1)
The Criminal Justice Act 2003 is amended as follows.
(2)
Section 146 (increase in sentence for aggravation related to disability or sexual
orientation) is amended as follows.
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
49

(3)
In the heading, for “or sexual orientation” substitute “, sexual orientation or
transgender identity”.
(4)
In subsection (2)(a)—
(a)
after sub-paragraph (i) omit “or”;
(b)
at the end insert—
5
“(iii)
the victim being (or being presumed to be)
transgender, or”.
(5)
In subsection (2)(b)—
(a)
after sub-paragraph (i) omit “or”;
(b)
at the end insert “, or
10
(iii)
by hostility towards persons who are
transgender.”
(6)
After subsection (5) insert—
“(6)
In this section references to being transgender include references to
being transsexual, or undergoing, proposing to undergo or having
15
undergone a process or part of a process of gender reassignment.”
(7)
Schedule 21 (determination of minimum term in relation to mandatory life
sentence) is amended as follows.
(8)
For paragraph 3 substitute—
“3
For the purposes of this Schedule—
20
(a)
an offence is aggravated by sexual orientation if it is
committed in circumstances mentioned in section 146(2)(a)(i)
or (b)(i);
(b)
an offence is aggravated by disability if it is committed in
circumstances mentioned in section 146(2)(a)(ii) or (b)(ii);
25
(c)
an offence is aggravated by transgender identity if it is
committed in circumstances mentioned in section
146(2)(a)(iii) or (b)(iii).”
(9)
In paragraph 5(2)(g) (30 year starting point), after “aggravated by sexual
orientation” insert “, disability or transgender identity”.
30
(10)
Section 241 of the Armed Forces Act 2006 (increase in sentence for aggravation
related to disability or sexual orientation) is amended as follows.
(11)
In the heading, for “or sexual orientation” substitute “, sexual orientation or
transgender identity”.
(12)
In subsection (2)(a)—
35
(a)
after sub-paragraph (i) omit “or”;
(b)
at the end insert—
“(iii)
the victim being (or being presumed to be)
transgender, or”.
(13)
In subsection (2)(b)—
40
(a)
after sub-paragraph (i) omit “or”;
(b)
at the end insert “, or
(iii)
by hostility towards persons who are
transgender.”

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
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(14)
After subsection (5) insert—
“(6)
In this section references to being transgender include references to
being transsexual, or undergoing, proposing to undergo or having
undergone a process or part of a process of gender reassignment.”
Community orders
5
67
Duration of community order
(1)
In section 177 of the Criminal Justice Act 2003 (general provisions about
community orders), in subsection (5) (requirement for order to specify date on
which requirements must have been complied with)—
(a)
after the first “date” insert “(“the end date”)”, and
10
(b)
omit the words from “; and” to the end of the subsection.
(2)
After that subsection insert—
“(5A)
If a community order imposes two or more different requirements
falling within subsection (1), the order may also specify a date by which
each of those requirements must have been complied with; and the last
15
of those dates must be the same as the end date.
(5B)
Subject to section 200(3) (duration of community order imposing
unpaid work requirement), a community order ceases to be in force on
the end date.”
(3)
In Schedule 8 to that Act (breach, revocation or amendment of community
20
order), in paragraph 9 (powers of magistrates’ court in case of breach)—
(a)
in sub-paragraph (3), for the words from “but may” to the end of the
sub-paragraph substitute “but may only amend the order to substitute
a later date for that specified under section 177(5) in accordance with
sub-paragraphs (3ZA) and (3ZB)”, and
25
(b)
after that sub-paragraph insert—
  “(3ZA)
A date substituted under sub-paragraph (3)—
(a)
may not fall outside the period of six months
beginning with the date previously specified under
section 177(5);
30
(b)
subject to that, may fall more than three years after the
date of the order.
    (3ZB)
The power under sub-paragraph (3) to substitute a date may
not be exercised in relation to an order if that power or the
power in paragraph 10(3) to substitute a date has previously
35
been exercised in relation to that order.
    (3ZC)
A date substituted under sub-paragraph (3) is to be treated as
having been specified in relation to the order under section
177(5).”
(4)
In that Schedule, in paragraph 10 (powers of Crown Court in case of breach)—
40
(a)
in sub-paragraph (3), for the words from “but may” to the end of the
sub-paragraph substitute “but may only amend the order to substitute
a later date for that specified under section 177(5) in accordance with
sub-paragraphs (3ZA) and (3ZB)”, and