Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
Internet Publications
Other Bills before Parliament

Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
58

(13)
In this section—
“alcohol” includes anything containing alcohol;
“specified”, in relation to a relevant order, means specified in the
order.”
(2)
In section 177 of that Act (community orders), in subsection (1), after
5
paragraph (j) insert—
“(ja)
an alcohol abstinence and monitoring requirement (as defined
by section 212A),”.
(3)
In subsection (2) of that section (limitations on power to impose community
order)—
10
(a)
omit the “and” at the end of paragraph (f), and
(b)
at the end of paragraph (g) insert “, and
(h)
section 212A(8) to (12) (alcohol abstinence and
monitoring requirement).”
(4)
In section 190 of that Act (imposition of requirements by suspended sentence
15
order), in subsection (1), after paragraph (j) insert—
“(ja)
an alcohol abstinence and monitoring requirement (as defined
by section 212A),”.
(5)
In subsection (2) of that section (limitations on power to impose requirements
by suspended sentence order)—
20
(a)
omit the “and” at the end of paragraph (f), and
(b)
at the end of paragraph (g) insert “, and
(h)
section 212A(8) to (12) (alcohol abstinence and
monitoring requirement).”
(6)
In section 215 of that Act (electronic monitoring requirement), after subsection
25
(4) insert—
“(5)
An electronic monitoring requirement may not be included in a
relevant order for the purposes of securing the electronic monitoring of
the offender’s compliance with an alcohol abstinence and monitoring
requirement.
30
(6)
Subsection (5) does not prevent the inclusion of an electronic
monitoring requirement in a relevant order which includes an alcohol
abstinence and monitoring requirement where this is for the purpose of
securing the electronic monitoring of an offender’s compliance with a
requirement other than the alcohol abstinence and monitoring
35
requirement.”
(7)
In section 223(3) of that Act (provisions to which powers to amend periods of
time apply), after paragraph (b) insert—
“(ba)
section 212A(2) (alcohol abstinence and monitoring
requirement)”.
40
(8)
In section 305(1) of that Act (interpretation of Part 12), at the appropriate place
insert—
““alcohol abstinence and monitoring requirement”, in relation to a
community order or suspended sentence order, has the
meaning given by section 212A;”.
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
59

78
Piloting of alcohol abstinence and monitoring requirements
(1)
The Secretary of State may by order provide for the coming into force of section
77.
(2)
The Secretary of State may not make an order under subsection (1) with the
effect that section 77 is in force for the whole of England and Wales (a “general
5
commencement order”) without having previously made a piloting order.
(3)
Subsection (2) does not prevent an order under subsection (1) from bringing
section 77 into force for the purpose only of making orders under section 212A
or 223 of the Criminal Justice Act 2003 or rules under section 222 of that Act
(and such an order is not a general commencement order for the purposes of
10
this section).
(4)
A “piloting order” is an order under subsection (1) with the effect that section
77 is force only—
(a)
in relation to the area or areas specified in the order, and
(b)
for the period specified in the order,
15

but otherwise for all purposes, or for all purposes other than application by the
Armed Forces Act 2006.
(5)
If, having made one or more piloting orders, the Secretary of State decides to
make a general commencement order, the Secretary of State may by order—
(a)
amend section 77 so as to enable the general commencement order to
20
bring it into force with those amendments;
(b)
amend or repeal any provision of this Act in consequence of provision
made under paragraph (a).
(6)
Amendments under subsection (5)(a) may confer power on the Secretary of
State to make an order or rules.
25
(7)
If, having made one or more piloting orders, the Secretary of State decides not
to make a general commencement order, the Secretary of State may by order—
(a)
repeal section 77;
(b)
amend the Criminal Justice Act 2003 so as to reverse the effect of that
section on that Act;
30
(c)
make other consequential amendments or repeals.
(8)
An order under this section may make transitional, transitory or saving
provision (including, in the case of a piloting order, provision relating to
section 77 ceasing to be in force at the end of the period specified in the order).
(9)
An order under this section is to be made by statutory instrument.
35
(10)
A statutory instrument containing—
(a)
a general commencement order, or
(b)
an order under subsection (5) or (7),

may not be made unless a draft of the instrument has been laid before, and
approved by a resolution of, each House of Parliament.
40

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
60

Overseas community orders and service community orders
79
Overseas community orders and service community orders
(1)
Section 182 of the Armed Forces Act 2006 (general provisions about overseas
community orders) is amended as follows.
(2)
In subsection (1)(a) (requirements that may be imposed by overseas
5
community orders), after “Act)” insert “(but see subsection (1A) below)”.
(3)
After subsection (1) insert—
“(1A)
The order may not include a requirement mentioned in section
177(1)(ga) (a foreign travel prohibition requirement) or (ja) (an alcohol
abstinence and monitoring requirement).”
10
(4)
In subsection (4) (application of section 177(5) and (6) of the Criminal Justice
Act 2003 to overseas community orders), after “(5)” insert “, (5A), (5B)”.
(5)
In section 322 of that Act (financial penalty enforcement orders), in the
definition of “financial penalty” in subsection (4), after “including” insert “a
fine imposed by the Court Martial or the Service Civilian Court under
15
paragraph 10(1)(aa) of Schedule 8 to the 2003 Act by virtue of section 184 and
Part 2 of Schedule 5 (breach etc of overseas community order) or”.
(6)
In Part 1 of Schedule 5 to that Act (breach, revocation and amendment of
service community orders), in paragraph 1(2) (provisions of Schedule 8 to the
Criminal Justice Act 2003 that do not apply to such orders), after “18(4),” insert
20
“19A(5),”.
(7)
Part 2 of Schedule 5 to that Act (breach, revocation and amendment of overseas
community orders) is amended as follows.
(8)
In paragraph 10(2)(b) (provisions of Schedule 8 to the Criminal Justice Act 2003
that do not apply to such orders), after “19,” insert “19A(5),”.
25
(9)
After paragraph 14 insert—
“14A  (1)
The following provisions apply where the Court Martial or the
Service Civilian Court imposes a fine under paragraph 10(1)(aa) of
that Schedule as applied by this Part of this Schedule.
      (2)
Section 251 of this Act (power to order payment of fine by
30
instalments) applies in relation to the fine as it applies in relation to
a fine imposed by a court for a service offence.
      (3)
Where the offender is aged under 18 when the fine is imposed and
has a service parent or service guardian (within the meaning of
section 268 of this Act), subsections (2) to (4) of that section (payment
35
of fine by service parent or service guardian) apply in relation to the
fine as they apply in relation to a fine imposed in the circumstances
mentioned in subsection (1) of that section.
      (4)
In the application of subsection (2) of section 268 by virtue of sub-
paragraph (3) of this paragraph, the reference in that subsection to
40
the time of conviction is to be read as a reference to the time the fine
is imposed.
      (5)
Section 269(2) of this Act (power of court to make financial statement
order before making order under section 268) does not apply in

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
61

relation to an order under section 268 which is made by virtue of sub-
paragraph (3) of this paragraph.”
(10)
In Schedule 6 to that Act (overseas community orders imposed on young
offenders), in paragraph 5 (modification of drug rehabilitation requirement in
relation to such offenders), omit sub-paragraph (4) (which disapplies section
5
209(3) of the Criminal Justice Act 2003).
Youth sentences
80
Referral orders for young offenders
(1)
In section 16(1)(c) of the Powers of Criminal Courts (Sentencing) Act 2000 (duty
or power to refer a young offender to a youth offender panel not to apply if
10
court proposes to discharge the offender absolutely) for “absolutely” substitute
“, whether absolutely or conditionally,”.
(2)
In section 17 of that Act (the referral conditions)—
(a)
in subsection (2) at the end of paragraph (a) insert “and”,
(b)
in that subsection omit paragraph (c) and the word “and” immediately
15
before it, and
(c)
omit subsections (2A) to (2D).
(3)
In consequence of the amendment made by subsection (2)(c) omit paragraph
12(3), (4) and (5) of Schedule 17 to the Coroners and Justice Act 2009.
(4)
The amendments made by this section do not apply in relation to any sentence
20
passed in relation to an offence committed before the coming into force of this
section.
81
Breach of detention and training order
(1)
The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
(2)
In section 104 (breach of detention and training order), in subsection (3)
25
(penalties for breach), for paragraph (a) and the “or” at the end of that
paragraph substitute—
“(a)
order the offender to be detained, in such youth detention
accommodation as the Secretary of State may determine, for
such period, not exceeding the maximum period found under
30
subsection (3A) below, as the court may specify;
(aa)
order the offender to be subject to such period of supervision,
not exceeding the maximum period found under subsection
(3A) below, as the court may specify; or”.
(3)
After subsection (3) of that section insert—
35
“(3A)
The maximum period referred to in subsection (3)(a) and (aa) above is
the shorter of—
(a)
three months, and
(b)
the period beginning with the date of the offender’s failure and
ending with the last day of the term of the detention and
40
training order.

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
62

(3B)
For the purposes of subsection (3A) above a failure that is found to have
occurred over two or more days is to be taken to have occurred on the
first of those days.
(3C)
A court may order a period of detention or supervision, or impose a
fine, under subsection (3) above before or after the end of the term of
5
the detention and training order.
(3D)
A period of detention or supervision ordered under subsection (3)
above—
(a)
begins on the date the order is made, and
(b)
may overlap to any extent with the period of supervision under
10
the detention and training order.”
(4)
After subsection (4) of that section insert—
“(4A)
Where an order under subsection (3)(a) above is made in the case of a
person who has attained the age of 18, the order has effect to require the
person to be detained in prison for the period specified by the court.”
15
(5)
After subsection (5) of that section insert—
“(5A)
Sections 104A and 104B below make further provision about the
operation of orders under subsection (3) above.”
(6)
In subsection (6) of that section, after “(a)” insert “, (aa)”.
(7)
After that section insert—
20
“104A
  Application of sections 103 to 105 in relation to orders under section
104(3)(aa)
(1)
Subsections (3) to (7) of section 103 above apply in relation to a period
of supervision to which an offender is subject by virtue of an order
under section 104(3)(aa) above as they apply to the period of
25
supervision under a detention and training order.
(2)
In the application of section 103 above by virtue of subsection (1) above,
subsection (7)(a) of that section is to be read as requiring a notice to be
given to the offender as soon as is reasonably practicable after the order
under section 104(3)(aa) above is made.
30
(3)
Section 104 above and section 105 below apply where an offender is
subject to a period of supervision under section 104(3)(aa) above as they
apply where a detention and training order is in force in respect of an
offender.
(4)
In the application of section 104 above by virtue of subsection (3)
35
above—
(a)
the references in that section to section 103(6)(b) above are to be
read as references to that provision as applied by subsection (1)
above,
(b)
the references in subsections (3A)(b) and (3C) of that section to
40
the term of the detention and training order are to be read as
references to the term of the period of supervision under section
104(3)(aa) above, and
(c)
the reference in subsection (3D)(b) of that section to the period
of supervision under the detention and training order is to be
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
63

read as including a reference to the period of supervision under
section 104(3)(aa) above.
(5)
In the application of section 105 below by virtue of subsection (3)
above—
(a)
paragraph (a) of subsection (1) of that section is to be read as if
5
the words “after his release and” were omitted, and
(b)
the reference in that paragraph to the date on which the term of
the detention and training order ends is to be read as a reference
to the date on which the period of supervision under section
104(3)(aa) ends.
10
104B
Interaction of orders under section 104(3)(a) with other sentences
(1)
Where a court makes a detention and training order in the case of an
offender who is subject to a period of detention under section 104(3)(a)
above, the detention and training order takes effect—
(a)
at the beginning of the day on which it is made, or
15
(b)
if the court so orders, at the time when the period of detention
under section 104(3)(a) above ends.
(2)
Where a court orders an offender who is subject to a detention and
training order to be subject to a period of detention under section
104(3)(a) above for a failure to comply with requirements under a
20
different detention and training order, the period of detention takes
effect as follows—
(a)
if the offender has been released by virtue of subsection (2), (3),
(4) or (5) of section 102 above, at the beginning of the day on
which the order for the period of detention is made, and
25
(b)
if not, either as mentioned in paragraph (a) above or, if the court
so orders, at the time when the offender would otherwise be
released by virtue of subsection (2), (3), (4) or (5) of section 102
above.
(3)
Subject to subsection (4) below, where at any time an offender is subject
30
concurrently—
(a)
to a detention and training order, and
(b)
to a period of detention under section 104(3)(a) above,

the offender is to be treated for the purposes of sections 102 to 105 of
this Act as if the offender were subject only to the detention and
35
training order.
(4)
Nothing in subsection (3) above requires the offender to be released in
respect of either the order or the period of detention unless and until
the offender is required to be released in respect of each of them.
(5)
The Secretary of State may by regulations make provision about the
40
interaction between a period of detention under section 104(3)(a) above
and a custodial sentence in a case where—
(a)
an offender who is subject to such a period of detention
becomes subject to a custodial sentence, or
(b)
an offender who is subject to a custodial sentence becomes
45
subject to such a period of detention.
(6)
The provision that may be made by regulations under subsection (5)
above includes—

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 1 — Sentencing
64

(a)
provision as to the time at which the period of detention under
section 104(3)(a) above or the custodial sentence is to take effect;
(b)
provision for the offender to be treated, for the purposes of the
enactments specified in the regulations, as subject only to the
period of detention or the custodial sentence;
5
(c)
provision about the effect of enactments relating to the person’s
release from detention or imprisonment in a case where that
release is not to take effect immediately by virtue of provision
in the regulations.
(7)
The power of the Secretary of State to make regulations under
10
subsection (5) above—
(a)
is exercisable by statutory instrument;
(b)
includes power to make supplementary, incidental,
transitional, transitory or saving provision.
(8)
A statutory instrument containing regulations under subsection (5)
15
above is subject to annulment in pursuance of a resolution of either
House of Parliament.”
(8)
Before the coming into force of section 61 of the Criminal Justice and Court
Services Act 2000 (abolition of sentence of detention in a young offender
institution) section 104(4A) of the Powers of Criminal Courts (Sentencing) Act
20
2000 has effect as if it referred to a person who has attained the age of 21.
(9)
In section 213 of the Armed Forces Act 2006 (application of provisions relating
to civilian detention and training orders to orders under section 211 of that
Act)—
(a)
in subsection (2), after “(13)” insert “, 104B(1)”, and
25
(b)
after subsection (3) insert—
“(4)
Subsection (5) applies where an order under section 104(3)
(further period of detention or supervision) of the Sentencing
Act is made against an offender for breach of supervision
requirements—
30
(a)
during a period of supervision under an order under
section 211 of this Act,
(b)
during a further period of supervision imposed for
breach of supervision requirements during a period
within paragraph (a), or
35
(c)
during one of a series of further periods of
supervision—
(i)
each of which apart from the first was imposed
for breach of supervision requirements during
the previous further period of supervision, and
40
(ii)
the first of which was imposed for breach of
supervision requirements during a period
within paragraph (a).
(5)
In the application of sections 104A and 104B of the Sentencing
Act in relation to the offender, references to section 105 of that
45
Act include section 214 of this Act.
(6)
In subsection (4)—