Criminal Justice and Courts Bill (HL Bill 43)

(f) for subsection (5) substitute—

“(5) The Secretary of State must give effect to any direction under
subsection (4)(a) or (b).

(6) In subsection (1B)(b)—

• 5“life sentence” means a sentence mentioned in section 34(2)
  of the Crime (Sentences) Act 1997, and

• “the minimum term” means the part of the sentence
  specified in the minimum term order (as defined by
  section 28 of that Act).”

(7) 10In Schedule 20A (application of Chapter 6 of Part 12 to pre 4 April 2005 cases),
omit paragraph 6(5) (certain determinations to be treated as determinations
under section 256(1) of the Criminal Justice Act 2003).

(8) The amendments made by this section apply to a person recalled before the
day on which they come into force as well as to a person recalled on or after
15that day.

9 Power to change test for release after recall: determinate sentences

(1) In Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release etc of fixed-term
prisoners), after section 256A insert—

“256AZA Power to change test for release following recall

(1) 20The Secretary of State may by order change—

(a) the test to be applied by the Secretary of State in deciding under
section 255A whether a person is suitable for automatic release;

(b) the tests to be applied by the Secretary of State in deciding
whether to release a person under section 255B(2) or 255C(2);

(c) 25the tests to be applied by the Board in deciding how to
determine a reference under section 255B(4), 255C(4) or 256A(1)
or (2).

(2) An order under subsection (1) may, in particular—

(a) apply to people recalled before the day on which it comes into
30force as well as to people recalled on or after that day;

(b) amend this Chapter.”

(2) In section 330(5)(a) of that Act (orders subject to affirmative procedure) at the
appropriate place insert—

• “section 256AZA,”.

10 35Initial release and release after recall: life sentences

(1) In section 28(7)(c) of the Crime (Sentences) Act 1997 (duty to release certain life
prisoners), for “one-half of that sentence” substitute “the requisite custodial
period (as defined in section 268 of the Criminal Justice Act 2003)”.

(2) In section 32 of the Crime (Sentences) Act 1997 (recall of life prisoners while on
40licence), after subsection (5) insert—

“(5A) The Board must not give a direction unless satisfied that it is no longer
necessary for the protection of the public that the life prisoner should
remain in prison.”

(3) In section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act
2012 (power to change test for release on licence of certain prisoners), in
subsection (3), after paragraph (a) insert—

“(aa) amend section 32 of the Crime (Sentences) Act 1997 (recall of
5IPP prisoners and others while on licence and further release),”.

(4) The amendment made by subsection (1) applies to a person sentenced before
the day on which it comes into force as well as to a person sentenced on or after
that day.

(5) The amendment made by subsection (2) applies in relation to a person recalled
10before the day on which it comes into force as well as in relation to a person
recalled on or after that day.

11 Offence of remaining unlawfully at large after recall

(1) After section 32 of the Crime (Sentences) Act 1997 (recall of life prisoners)
insert—

“32ZA 15 Offence of remaining unlawfully at large after recall

(1) A person recalled to prison under section 32 commits an offence if the
person—

(a) has been notified of the recall orally or in writing, and

(b) while unlawfully at large fails, without reasonable excuse, to
20take all necessary steps to return to prison as soon as possible.

(2) A person is to be treated for the purposes of subsection (1)(a) as having
been notified of the recall if—

(a) written notice of the recall has been delivered to an appropriate
address, and

(b) 25a period specified in the notice has elapsed.

(3) In subsection (2) “an appropriate address” means—

(a) an address at which, under the person’s licence, the person is
permitted to reside or stay, or

(b) an address nominated, in accordance with the person’s licence,
30for the purposes of this section.

(4) A person is also to be treated for the purposes of subsection (1)(a) as
having been notified of the recall if—

(a) the person’s licence requires the person to keep in touch in
accordance with any instructions given by an officer of a
35provider of probation services,

(b) the person has failed to comply with such an instruction, and

(c) the person has not complied with such an instruction for at least
6 months.

(5) A person who is guilty of an offence under this section is liable—

(a) 40on conviction on indictment to imprisonment for a term not
exceeding 2 years or a fine (or both);

(b) on summary conviction to imprisonment for a term not
exceeding 12 months or a fine (or both).

(6) In relation to an offence committed before section 154(1) of the Criminal
Justice Act 2003 comes into force, the reference in subsection (5)(b) to 12
months is to be read as a reference to 6 months.

(7) In relation to an offence committed before section 85 of the Legal Aid,
5Sentencing and Punishment of Offenders Act 2012 comes into force, the
reference in subsection (5)(b) to a fine is to be read as a reference to a
fine not exceeding the statutory maximum.”

(2) After section 255 of the Criminal Justice Act 2003 (recall of prisoners) insert—

“255ZA Offence of remaining unlawfully at large after recall

(1) 10A person recalled to prison under section 254 or 255 commits an offence
if the person—

(a) has been notified of the recall orally or in writing, and

(b) while unlawfully at large fails, without reasonable excuse, to
take all necessary steps to return to prison as soon as possible.

(2) 15A person is to be treated for the purposes of subsection (1)(a) as having
been notified of the recall if—

(a) written notice of the recall has been delivered to an appropriate
address, and

(b) a period specified in the notice has elapsed.

(3) 20In subsection (2) “an appropriate address” means—

(a) an address at which, under the person’s licence, the person is
permitted to reside or stay, or

(b) an address nominated, in accordance with the person’s licence,
for the purposes of this section.

(4) 25A person is also to be treated for the purposes of subsection (1)(a) as
having been notified of the recall if—

(a) the person’s licence requires the person to keep in touch in
accordance with any instructions given by an officer of a
provider of probation services,

(b) 30the person has failed to comply with such an instruction, and

(c) the person has not complied with such an instruction for at least
6 months.

(5) A person who is guilty of an offence under this section is liable—

(a) on conviction on indictment to imprisonment for a term not
35exceeding 2 years or a fine (or both);

(b) on summary conviction to imprisonment for a term not
exceeding 12 months or a fine (or both).

(6) In relation to an offence committed before section 154(1) comes into
force, the reference in subsection (5)(b) to 12 months is to be read as a
40reference to 6 months.

(7) In relation to an offence committed before section 85 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 comes into force, the
reference in subsection (5)(b) to a fine is to be read as a reference to a
fine not exceeding the statutory maximum.”

(3) Section 32ZA of the Crime (Sentences) Act 1997 and section 255ZA of the
Criminal Justice Act 2003 apply in relation to a person recalled to prison before
or after this section comes into force.

12 Offence of remaining unlawfully at large after temporary release

(1) 5Section 1 of the Prisoners (Return to Custody) Act 1995 (remaining at large
after temporary release) is amended as follows.

(2) For subsection (3) substitute—

“(3) A person guilty of an offence under this section is liable—

(a) on conviction on indictment to imprisonment for a term not
10exceeding 2 years or a fine (or both), and

(b) on summary conviction to imprisonment for a term not
exceeding 12 months or a fine (or both).”

(3) At the end insert—

“(7) In relation to an offence committed before section 154(1) of the Criminal
15Justice Act 2003 comes into force, the reference in subsection (3)(b) to 12
months is to be read as a reference to 6 months.

(8) In relation to an offence committed before section 85 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 comes into force, the
reference in subsection (3)(b) to a fine is to be read as a reference to a
20fine not exceeding the statutory maximum.”

(4) The amendment made by subsection (2) does not apply where the period of
temporary release expired, or the order of recall was made, before this section
comes into force.

13 Definition of “requisite custodial period”

(1) 25Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release etc of fixed-term
prisoners) is amended as follows.

(2) In section 268 (interpretation of Chapter), after subsection (1) insert—

“(1A) In this Chapter, “the requisite custodial period” means—

(a) in relation to a person serving an extended sentence imposed
30under section 226A or 226B, the requisite custodial period for
the purposes of section 246A;

(b) in relation to a person serving an extended sentence imposed
under section 227 or 228, the requisite custodial period for the
purposes of section 247;

(c) 35in relation to a person serving a sentence imposed under section
236A, the requisite custodial period for the purposes of section
244A;

(d) in relation to any other fixed-term prisoner, the requisite
custodial period for the purposes of section 243A or section 244
40(as appropriate).”

(3) In section 247 (release on licence of prisoner serving extended sentence under
section 227 or 228)—

(a) in subsection (2)(a), for “one-half of the appropriate custodial term”
substitute “the requisite custodial period”, and

(b) for subsection (7) substitute—

“(7) In this section—

• “the appropriate custodial term” means the period
  determined by the court as the appropriate custodial
  5term under section 227 or 228;

• “the requisite custodial period” means—

  (a)

  in relation to a person serving one sentence, one-
  half of the appropriate custodial term, and

  (b)

  in relation to a person serving two or more
  10concurrent or consecutive sentences, the period
  determined under sections 263(2) and 264(2).”

(4) In section 260 (early removal of prisoners liable to removal from United
Kingdom), omit subsection (7).

(5) In section 261 (re-entry into United Kingdom of offender removed from prison
15early)—

(a) in subsection (5), omit paragraph (a),

(b) in subsection (5)(b)—

(i) omit “in any other case,” and

(ii) for “or 246A” substitute “, 246A or 247”, and

(c) 20in subsection (6), omit the definition of “requisite custodial period”.

(6) In Schedule 20A (application of Chapter 6 of Part 12 to pre-4 April 2005
cases)—

(a) omit paragraph 8(2) (modification of section 260), and

(b) after paragraph 8 insert—

“8A 25Section 268(1A) (definition of “the requisite custodial
period”) has effect as if it provided that, in relation to a
person serving an extended sentence under section 85 of the
Sentencing Act, the requisite custodial period means one-half
of the custodial term determined under that section (subject
30to sections 263 and 264).”

(7) The amendments made by this section apply in relation to a person sentenced
before the day on which they come into force as well as in relation to a person
sentenced on or after that day.

14 Minor amendments and transitional cases

(1) 35In section 82A(3) of the Powers of Criminal Courts (Sentencing) Act 2000
(determination of tariffs for life sentences), for paragraph (b) substitute—

“(b) the effect that the following would have if the court had
sentenced the offender to a term of imprisonment—

(i) section 240ZA of the Criminal Justice Act 2003 (crediting
40periods of remand in custody);

(ii) section 246 of the Armed Forces Act 2006 (equivalent
provision for service courts);

(iii) any direction which the court would have given under
section 240A of the Criminal Justice Act 2003 (crediting
45periods of remand on bail subject to certain types of
condition);”.

(2) In section 97 of the Powers of Criminal Courts (Sentencing) Act 2000 (term of
detention in a young offender institution)—

(a) in subsection (2), omit “Subject to subsection (3) below,” and

(b) omit subsection (3) (power to pass sentence of less than 21 days for
5offence under section 65(6) of the Criminal Justice Act 1991).

(3) In section 106(4) of the Powers of Criminal Courts (Sentencing) Act 2000
(persons subject concurrently to detention and training order and sentence of
detention in young offender institution), for “Part II of the Criminal Justice Act
1991 (early release)” substitute “Chapter 6 of Part 12 of the Criminal Justice Act
102003 (release, licences, supervision and recall)”.

(4) In section 246(4) of the Criminal Justice Act 2003 (cases in which power to
release before required to do so is not available), after paragraph (g) insert—

“(ga) the prisoner has at any time been released on licence under
section 34A of the Criminal Justice Act 1991 and has been
15recalled to prison under section 38A(1)(a) of that Act (and the
revocation of the licence has not been cancelled under section
38A(3) of that Act);”.

(5) In Schedule 20A to the Criminal Justice Act 2003 (application of Chapter 6 of
Part 12 to pre-4 April 2005 cases), in paragraph 4 (modification of section 246:
20power to release before required to do so)—

(a) number the existing text as sub-paragraph (1),

(b) in that sub-paragraph, for “Section 246 applies as if, in subsection (4)”
substitute “Section 246(4) applies as if—”,

(c) in that sub-paragraph, omit paragraph (c), and

(d) 25after that sub-paragraph insert—

“(2) Section 246(6) applies as if, in the definition of “term of
imprisonment”, the reference to section 227 or 228 included a
reference to section 85 of the Sentencing Act.”

(6) In Schedule 20B to the Criminal Justice Act 2003 (modifications of Chapter 6 of
30Part 12 in certain transitional cases), omit paragraph 3(2)(a) (application of Part
2 of the Schedule to an extended sentence under section 85 of the Powers of
Criminal Courts (Sentencing) Act 2000).

(7) In paragraph 34 of that Schedule (licence conditions in certain transitional
cases)—

(a) 35in sub-paragraph (1), at the end insert “and which was granted to a
person serving—

“(a) a 1967 Act sentence,

(b) a 1991 Act sentence, or

(c) a 2003 Act sentence which is an extended sentence
40imposed under section 227 or 228 before 14 July
2008.”, and

(b) in sub-paragraph (6)(a), after “condition” insert “referred to in section
250(4)(b)(ii)”.

(8) The amendments made by subsections (1), (3) and (4) apply in relation to a
45person sentenced before the day on which they come into force as well as in
relation to a person sentenced on or after that day.

Prisons

15 Drugs for which prisoners etc may be tested

(1) The Prison Act 1952 is amended as follows.

(2) In section 16A (testing prisoners for drugs), in subsection (3)—

(a) 5at the end of the definition of “drug” insert “or specified drug”,

(b) omit the “and” that follows the definition of “prison officer”, and

(c) at the appropriate place insert—

• ““specified drug” means any substance or product
  specified in prison rules for the purposes of this section.”

(3) 10In section 47 (rules for the management of prisons etc), after subsection (3)
insert—

“(3A) Rules made under this section may specify any substance or product
(which is not a controlled drug for the purposes of the Misuse of Drugs
Act 1971) in relation to which a person may be required to provide a
15sample for the purposes of section 16A of this Act.”

Cautions etc

16 Restrictions on use of cautions

(1) This section applies where, in England and Wales, a person aged 18 or over
admits that he or she has committed an offence.

(2) 20If the offence is an indictable-only offence, a constable may not give the person
a caution except—

(a) in exceptional circumstances relating to the person or the offence, and

(b) with the consent of the Director of Public Prosecutions.

(3) If the offence is an either-way offence specified by order made by the Secretary
25of State, a constable may not give the person a caution except in exceptional
circumstances relating to the person or the offence.

(4) If—

(a) the offence is a summary offence or an either-way offence not specified
under subsection (3), and

(b) 30in the two years before the commission of the offence the person has
been convicted of, or cautioned for, a similar offence,

a constable may not give the person a caution except in exceptional
circumstances relating to the person, the offence admitted or the previous
offence.

(5) 35It is for a police officer not below a rank specified by order made by the
Secretary of State to determine—

(a) whether there are exceptional circumstances for the purposes of
subsection (2), (3) or (4), and

(b) whether a previous offence is similar to the offence admitted for the
40purposes of subsection (4)(b).

(6) A determination under subsection (5) must be made in accordance with
guidance issued by the Secretary of State.

(7) The Secretary of State may by order amend this section so as to provide for a
different period for the purposes of subsection (4)(b).

(8) For the purposes of this section—

(a) “caution” does not include a conditional caution under Part 3 of the
5Criminal Justice Act 2003, but

(b) a person has been “cautioned for” an offence if he or she has been given
a caution, a conditional caution or a youth caution or youth conditional
caution under Chapter 1 of Part 4 of the Crime and Disorder Act 1998.

(9) In this section—

• 10“either-way offence” means an offence triable either way;

• “indictable-only offence” means an offence which, if committed by an
  adult, is triable only on indictment.

(10) This section applies whether the offence admitted was committed before or
after the time when this section comes into force.

17 15Section 16: supplementary

(1) An order under section 16 may make different provision for different
purposes.

(2) An order under section 16 must be made by statutory instrument.

(3) A statutory instrument containing an order under section 16(3) (specification
20of either-way offences) is subject to annulment in pursuance of a resolution of
either House of Parliament.

(4) An order under section 16(7) (change to period in section 16(4)(b)) may not be
made unless a draft of the instrument containing the order has been laid before,
and approved by a resolution of, each House of Parliament.

(5) 25In section 37B of the Police and Criminal Evidence Act 1984 (consultation with
the Director of Public Prosecutions), in subsection (7), after “such a caution”
insert “(whether because of section 16 of the Criminal Justice and Courts Act
2014 or for any other reason)”.

18 Alternatives to prosecution: rehabilitation of offenders in Scotland

30In Schedule 3 to the Rehabilitation of Offenders Act 1974 (protection for spent
alternatives to prosecution: Scotland), at the end insert—

“9 (1) The powers conferred on the Scottish Ministers by—

(a) paragraph 6, and

(b) section 7(4), as applied by paragraph 8,

35may be exercised to make provision relating to reserved matters and
are not subject to the restrictions imposed by section 29(2)(b) or (c) of,
or Schedule 4 to, the Scotland Act 1998.

(2) In this paragraph, “reserved matters” has the same meaning as in the
Scotland Act 1998.”

Offences involving ill-treatment or wilful neglect

19 Ill-treatment or wilful neglect: care worker offence

(1) It is an offence for an individual who has the care of another individual by
virtue of being a care worker to ill-treat or wilfully to neglect that individual.

(2) 5An individual guilty of an offence under this section is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding
5 years or a fine (or both);

(b) on summary conviction, to imprisonment for a term not exceeding 12
months or a fine (or both).

(3) 10“Care worker” means an individual who, as paid work, provides—

(a) health care for an adult or child, other than excluded health care, or

(b) social care for an adult,

including an individual who, as paid work, supervises or manages individuals
providing such care or is a director or similar officer of an organisation which
15provides such care.

(4) An individual does something as “paid work” if he or she receives or is entitled
to payment for doing it other than—

(a) payment in respect of the individual’s reasonable expenses,

(b) payment to which the individual is entitled as a foster parent,

(c) 20a benefit under social security legislation, or

(d) a payment made under arrangements under section 2 of the
Employment and Training Act 1973 (arrangements to assist people to
select, train for, obtain and retain employment).

(5) “Health care” includes—

(a) 25all forms of health care provided for individuals, including health care
relating to physical health or mental health and health care provided
for or in connection with the protection or improvement of public
health, and

(b) procedures that are similar to forms of medical or surgical care but are
30not provided in connection with a medical condition,

and “excluded health care” has the meaning given in Schedule 3.

(6) “Social care” includes all forms of personal care and other practical assistance
provided for individuals who are in need of such care or assistance by reason
of age, illness, disability, pregnancy, childbirth, dependence on alcohol or
35drugs or any other similar circumstances.

(7) References in this section to a person providing health care or social care do not
include a person whose provision of such care is merely incidental to the
carrying out of other activities by the person.

(8) In this section—

• 40“adult” means an individual aged 18 or over;

• “child” means an individual aged under 18;

• “foster parent” means—

  (a)

  a local authority foster parent within the meaning of the
  Children Act 1989,

  Criminal Justice and Courts BillPage 19

  (b)

  a person with whom a child has been placed by a voluntary
  organisation under section 59(1)(a) of that Act, or

  (c)

  a private foster parent within the meaning of section 53 of the
  Safeguarding Vulnerable Groups Act 2006.

(9) 5In relation to an offence committed before section 154(1) of the Criminal Justice
Act 2003 comes into force, the reference in subsection (2)(b) to 12 months is to
be read as a reference to 6 months.

(10) In relation to an offence committed before section 85 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 comes into force, the
10reference in subsection (2)(b) to a fine is to be read as a reference to a fine not
exceeding the statutory maximum.

20 Ill-treatment or wilful neglect: care provider offence

(1) A care provider commits an offence if—

(a) an individual who has the care of another individual by virtue of being
15part of the care provider’s arrangements ill-treats or wilfully neglects
that individual,

(b) the care provider’s activities are managed or organised in a way which
amounts to a gross breach of a relevant duty of care owed by the care
provider to the individual who is ill-treated or neglected, and

(c) 20in the absence of the breach, the ill-treatment or wilful neglect would
not have occurred or would have been less likely to occur.

(2) “Care provider” means—

(a) a body corporate or unincorporated association which provides or
arranges for the provision of—

(i) 25health care for an adult or child, other than excluded health
care, or

(ii) social care for an adult, or

(b) an individual who provides such care and employs, or has otherwise
made arrangements with, other persons to assist him or her in
30providing such care,

subject to section 21.

(3) An individual is “part of a care provider’s arrangements” where the
individual—

(a) is not the care provider, but

(b) 35provides health care or social care as part of health care or social care
provided or arranged for by the care provider,

including where the individual is not the care provider but supervises or
manages individuals providing health care or social care as described in
paragraph (b) or is a director or similar officer of an organisation which
40provides health care or social care as described there.

(4) A “relevant duty of care” means—

(a) a duty owed under the law of negligence, or

(b) a duty that would be owed under the law of negligence but for a
provision contained in an Act, or an instrument made under an Act,
45under which liability is imposed in place of liability under that law,

but only to the extent that the duty is owed in connection with providing, or
arranging for the provision of, health care or social care.