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 3 — Remands of children otherwise than on bail
84

(9)
The second legal representation condition is that the child is not legally
represented before the court and—
(a)
representation was provided to the child under Part 1 of this Act for the
purposes of the proceedings, but was withdrawn—
(i)
because of the child’s conduct, or
5
(ii)
because it appeared that the child’s financial resources were
such that the child was not eligible for such representation,
(b)
the child applied for such representation and the application was
refused because it appeared that the child’s financial resources were
such that the child was not eligible for such representation, or
10
(c)
having been informed of the right to apply for such representation and
having had the opportunity to do so, the child refused or failed to
apply.
103
Remands to youth detention accommodation
(1)
A remand to youth detention accommodation is a remand to such
15
accommodation of a kind listed in subsection (2) as the Secretary of State
directs in the child’s case.
(2)
Those kinds of accommodation are—
(a)
a secure children’s home,
(b)
a secure training centre,
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(c)
a young offender institution, and
(d)
accommodation, or accommodation of a description, for the time being
specified by order under section 107(1)(e) of the Powers of Criminal
Courts (Sentencing) Act 2000 (youth detention accommodation for
purposes of detention and training order provisions).
25
(3)
A child’s detention in one of those kinds of accommodation pursuant to a
remand to youth detention accommodation is lawful.
(4)
Where a court remands a child to youth detention accommodation, the court
must—
(a)
state in open court that it is of the opinion mentioned in section 99(4),
30
100(7), 101(4) or 102(7) (as the case may be), and
(b)
explain to the child in open court and in ordinary language why it is of
that opinion.
(5)
A magistrates’ court must ensure a reason that it gives under subsection
(4)(b)—
35
(a)
is specified in the warrant of commitment, and
(b)
is entered in the register.
(6)
Where a court remands a child to youth detention accommodation, the court
must designate a local authority as the designated authority for the child for
the purposes of—
40
(a)
subsection (8),
(b)
regulations under section 104 (arrangements for remands), and
(c)
section 105 (looked after child status).
(7)
That authority must be—
(a)
in the case of a child who is being looked after by a local authority, that
45
authority, and

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 3 — Remands of children otherwise than on bail
85

(b)
in any other case, the local authority in whose area it appears to the
court that the child habitually resides or the offence or one of the
offences was committed.
(8)
Before giving a direction under subsection (1), the Secretary of State must
consult the designated authority.
5
(9)
A function of the Secretary of State under this section (other than the function
of making regulations) is exercisable by the Youth Justice Board for England
and Wales concurrently with the Secretary of State.
(10)
The Secretary of State may by regulations provide that subsection (9) is not to
apply, either generally or in relation to a particular description of case.
10
(11)
In this Chapter “secure children’s home” means accommodation which is
provided in a children’s home, within the meaning of the Care Standards Act
2000—
(a)
which provides accommodation for the purposes of restricting liberty,
and
15
(b)
in respect of which a person is registered under Part 2 of that Act.
(12)
Before the coming into force in relation to England of section 107(2) of the
Health and Social Care (Community Health and Standards) Act 2003,
subsection (11) has effect as if it defined “secure children’s home” in relation to
England as accommodation which—
20
(a)
is provided in a children’s home, within the meaning of the Care
Standards Act 2000, in respect of which a person is registered under
Part 2 of that Act, and
(b)
is approved by the Secretary of State for the purpose of restricting the
liberty of children.
25
Supplementary
104
Arrangements for remands
(1)
The Secretary of State may make arrangements for or in connection with the
accommodation in secure children’s homes, or accommodation within section
103(2)(d), of children remanded to youth detention accommodation.
30
(2)
The Secretary of State may by regulations make provision about the recovery
from the designated authority by a person mentioned in subsection (3) of the
costs of—
(a)
a child being subject to a remand to youth detention accommodation;
(b)
the exercise of functions of the kind mentioned in—
35
(i)
section 80(1)(a) to (e) of the Criminal Justice Act 1991 (escort
functions) read with section 92(3) of that Act, or
(ii)
paragraph 1(1)(a) to (d) of Schedule 1 to the Criminal Justice
and Public Order Act 1994 (escort functions),

in relation to a child subject to such a remand.
40
(3)
Those persons are—
(a)
the Secretary of State;
(b)
a person other than the Secretary of State by whom the accommodation
pursuant to the remand to youth detention accommodation is provided
or the functions are exercised (as the case may be).
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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 3 — Remands of children otherwise than on bail
86

(4)
The Secretary of State may make payments to a local authority for the purpose
of enabling the authority—
(a)
to exercise functions under section 93(4) (duty to receive and
accommodate child remanded to local authority accommodation);
(b)
to make payments pursuant to regulations under this section.
5
(5)
A function of the Secretary of State under this section (other than the function
of making regulations) is exercisable by the Youth Justice Board for England
and Wales concurrently with the Secretary of State.
(6)
The power to make regulations under subsection (2) includes power to make
provision about the recovery of costs by the Youth Justice Board for England
10
and Wales.
(7)
The Secretary of State may by regulations provide that subsection (5), or
provision made by virtue of subsection (6), is not to apply, either generally or
in relation to a particular description of case.
105
Looked after child status
15
(1)
A child who is remanded to youth detention accommodation is to be treated as
a child who is looked after by the designated authority.
(2)
The Secretary of State may by regulations provide for any Act or instrument
made under an Act that applies to a child looked after by a local authority to
apply with modifications, or not to apply, in relation to a child who is to be
20
treated as looked after by a designated authority by virtue of this Chapter.
(3)
In this section “Act” includes an Act or Measure of the National Assembly for
Wales.
106
Minor and consequential amendments
Schedule 12 (remands of children otherwise than on bail: minor and
25
consequential amendments) has effect.
107
Regulations under this Chapter
(1)
Regulations under this Chapter are to be made by statutory instrument.
(2)
Regulations under this Chapter may—
(a)
make different provision for different cases;
30
(b)
include supplementary, incidental, transitional, transitory or saving
provision.
(3)
A statutory instrument containing regulations under this Chapter is subject to
annulment in pursuance of a resolution of either House of Parliament, subject
to subsection (4).
35
(4)
A statutory instrument containing regulations under section 103(10) or 104(7)
(whether alone or with any other provision) may not be made unless a draft of
the instrument has been laid before, and approved by a resolution of, each
House of Parliament.

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 3 — Remands of children otherwise than on bail
87

108
Interpretation of Chapter
(1)
In this Chapter—
“child” has the meaning given by section 92(6);
“court” and “magistrates’ court” include a justice of the peace;
“custodial sentence” has the meaning given by section 100(10);
5
“the designated authority”—
(a)
in relation to a child remanded to local authority
accommodation, means the local authority that is designated by
the court under section 93(2) to receive the child;
(b)
in relation to a child remanded to youth detention
10
accommodation, means the local authority that is designated by
the court under section 103(6) as the designated authority for
the child;
“electronic monitoring condition” has the meaning given by section 95(8);
“extradition proceedings” means proceedings under the Extradition Act
15
2003;
“imprisonable offence” has the meaning given by section 95(8);
“local authority” means—
(a)
a county council;
(b)
a county borough council;
20
(c)
a district council for an area for which there is no county
council;
(d)
a London borough council;
(e)
the Common Council of the City of London;
(f)
the Council of the Isles of Scilly;
25
“secure children’s home” has the meaning given by section 103(11);
“sexual offence” has the meaning given by section 95(8);
“violent offence” has the meaning given by section 95(8);
“youth offending team” has the meaning given by section 95(8).
(2)
In this Chapter, references to the remand of a child, and related expressions,
30
are to be construed in accordance with section 92(7) and (8).
(3)
In this Chapter, references to a remand to local authority accommodation, and
related expressions, are to be construed in accordance with section 93(1).
(4)
In this Chapter, references to a child being subject to a custodial remand are to
be construed in accordance with section 95(9).
35
(5)
In this Chapter, references to a remand to youth detention accommodation,
and related expressions, are to be construed in accordance with section 103(1).
(6)
In this Chapter, references to a child who is looked after by a local authority are
to be construed in accordance with section 22 of the Children Act 1989.
(7)
Subsections (3) and (5) are subject to sections 95(10) and 100(11) (references to
40
remand to local authority accommodation or youth detention accommodation
to include such a remand under section 23 of the Children and Young Persons
Act 1969 or a remand to prison).

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc
88

Chapter 4
Release on licence etc
Calculation of days to be served
109
Crediting of periods of remand in custody
(1)
Omit section 240 of the Criminal Justice Act 2003 (court to direct that remand
5
time be credited towards time served).
(2)
Before section 240A of that Act insert—
“240ZA
Time remanded in custody to count as time served: terms of
imprisonment and detention
(1)
This section applies where—
10
(a)
an offender is serving a term of imprisonment in respect of an
offence, and
(b)
the offender has been remanded in custody (within the
meaning given by section 242) in connection with the offence or
a related offence.
15
(2)
It is immaterial for that purpose whether, for all or part of the period
during which the offender was remanded in custody, the offender was
also remanded in custody in connection with other offences (but see
subsection (5)).
(3)
The number of days for which the offender was remanded in custody
20
in connection with the offence or a related offence is to count as time
served by the offender as part of the sentence.

But this is subject to subsections (4) to (6).
(4)
If, on any day on which the offender was remanded in custody, the
offender was also detained in connection with any other matter, that
25
day is not to count as time served.
(5)
A day counts as time served—
(a)
in relation to only one sentence, and
(b)
only once in relation to that sentence.
(6)
A day is not to count as time served as part of any period of 28 days
30
served by the offender before automatic release (see section 255B(1)).
(7)
For the purposes of this section a suspended sentence—
(a)
is to be treated as a sentence of imprisonment when it takes
effect under paragraph 8(2)(a) or (b) of Schedule 12, and
(b)
is to be treated as being imposed by the order under which it
35
takes effect.
(8)
In this section “related offence” means an offence, other than the
offence for which the sentence is imposed (“offence A”), with which the
offender was charged and the charge for which was founded on the
same facts or evidence as offence A.
40
(9)
For the purposes of the references in subsections (3) and (5) to the term
of imprisonment to which a person has been sentenced (that is to say,

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc
89

the reference to the offender’s “sentence”), consecutive terms and terms
which are wholly or partly concurrent are to be treated as a single term
if—
(a)
the sentences were passed on the same occasion, or
(b)
where they were passed on different occasions, the person has
5
not been released at any time during the period beginning with
the first and ending with the last of those occasions.
(10)
The reference in subsection (4) to detention in connection with any
other matter does not include remand in custody in connection with
another offence but includes—
10
(a)
detention pursuant to any custodial sentence;
(b)
committal in default of payment of any sum of money;
(c)
committal for want of sufficient distress to satisfy any sum of
money;
(d)
committal for failure to do or abstain from doing anything
15
required to be done or left undone.
(11)
This section applies to a determinate sentence of detention under
section 91 or 96 of the Sentencing Act or section 227 or 228 of this Act as
it applies to an equivalent sentence of imprisonment.”
110
Crediting of periods of remand on bail
20
(1)
Section 240A of the Criminal Justice Act 2003 (crediting periods of remand on
bail: terms of imprisonment and detention) is amended as follows.
(2)
In subsection (2), for “subsection (4)” substitute “subsections (3A) and (3B)”.
(3)
For subsections (3) to (7) substitute—
“(3)
The credit period is calculated by taking the following steps.
25

Step 1

Add—
(a)
the day on which the offender’s bail was first subject to the
relevant conditions (and for this purpose a condition is not
prevented from being a relevant condition by the fact that it
30
does not apply for the whole of the day in question), and
(b)
the number of other days on which the offender’s bail was
subject to those conditions (but exclude the last of those days if
the offender spends the last part of it in custody).

Step 2
35

Deduct the number of days on which the offender, whilst on bail
subject to the relevant conditions, was also—
(a)
subject to any requirement imposed for the purpose of securing
the electronic monitoring of the offender’s compliance with a
curfew requirement, or
40
(b)
on temporary release under rules made under section 47 of the
Prison Act 1952.

Step 3

From the remainder, deduct the number of days during that remainder
on which the offender has broken either or both of the relevant
45
conditions.

Step 4

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 4 — Release on licence etc
90


Divide the result by 2.

Step 5

If necessary, round up to the nearest whole number.
(3A)
A day of the credit period counts as time served—
(a)
in relation to only one sentence, and
5
(b)
only once in relation to that sentence.
(3B)
A day of the credit period is not to count as time served as part of any
period of 28 days served by the offender before automatic release (see
section 255B(1)).”
(4)
In subsection (8)—
10
(a)
omit “or (5)”;
(b)
for paragraph (b) substitute—
“(b)
the number of days (if any) which it deducted under
each of steps 2 and 3.”
(5)
Omit subsections (9) and (10).
15
(6)
In subsection (11)—
(a)
for “Subsections (7) to (10) of section 240” substitute “Subsections (7) to
(9) and (11) of section 240ZA”;
(b)
in paragraph (b), for “in subsection (8) the reference to subsection (3) of
section 240 is” substitute “in subsection (9) the references to subsections
20
(3) and (5) of section 240ZA are”.
(7)
In subsection (12)—
(a)
before the definition of “electronic monitoring condition” insert—
““curfew requirement” means a requirement (however
described) to remain at one or more specified places for
25
a specified number of hours in any given day, provided
that the requirement is imposed by a court or the
Secretary of State and arises as a result of a conviction;”;
(b)
omit the definition of “related offence” and the “and” preceding it.
(8)
In the heading of the section, for “Crediting periods of remand on bail”
30
substitute “Time remanded on bail to count towards time served”.
111
Amendments consequential on sections 109 and 110
(1)
The Criminal Justice Act 2003 is amended as follows.
(2)
In section 237(1C) (meaning of “fixed-term prisoner”)—
(a)
for “section 240” substitute “section 240ZA”;
35
(b)
after “Armed Forces Act 2006)” insert “or section 240A”.
(3)
Section 241 (effect of direction under section 240 or 240A) is amended as
follows.
(4)
In subsection (1)—
(a)
for “to whom a direction under section 240 or 240A relates” substitute
40
“to whom section 240ZA applies or a direction under section 240A
relates”;
(b)
for “specified in the direction” substitute “specified in section 240ZA or
in the direction under section 240A”.