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Criminal Justice and Courts Bill (HL Bill 43)

Criminal Justice and Courts BillPage 20

(5) For the purposes of this section, there is to be disregarded any rule of the
common law that has the effect of—

(a) preventing a duty of care from being owed by one person to another by
reason of the fact that they are jointly engaged in unlawful conduct, or

(b) 5preventing a duty of care being owed to a person by reason of that
person’s acceptance of a risk of harm.

(6) A breach of a duty of care by a care provider is a “gross” breach if the conduct
alleged to amount to the breach falls far below what can reasonably be
expected of the care provider in the circumstances.

(7) 10In this section—

(a) references 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, and

(b) references to a person arranging for the provision of such care do not
15include a person who makes arrangements under which the provision
of such care is merely incidental to the carrying out of other activities.

(8) References in this section to providing or arranging for the provision of health
care or social care do not include making payments under—

(a) regulations under section 57 of the Health and Social Care Act 2001
20(direct payments for community services and carers);

(b) section 12A of the National Health Act 2006 (direct payments for health
care);

(c) section 31 or 32 of the Care Act 2014 (direct payments for care and
support);

(d) 25regulations under section 50 of the Social Services and Well-being
(Wales) Act 2014 (anaw 4) (direct payments to meet an adult’s needs).

(9) In this section—

  • “Act” includes an Act or Measure of the National Assembly for Wales;

  • “adult”, “child”, “excluded health care”, “health care” and “social care”
    30have the same meaning as in section 19.

21 Care provider offence: excluded care providers

(1) A local authority in England is not a care provider for the purposes of section
20 to the extent that it carries out functions to which Chapter 4 of Part 8 of the
Education and Inspections Act 2006 applies.

(2) 35Where a body corporate has entered into arrangements with a local authority
in England under Part 1 of the Children and Young Persons Act 2008 (social
work services for children and young persons), the body is not a care provider
for the purposes of section 20 to the extent that it carries out relevant care
functions of that authority (as defined in that Part of that Act) under those
40arrangements.

(3) A local authority in Wales is not a care provider for the purposes of section 20
to the extent that it—

(a) carries out functions under Part 2 of the Childcare Act 2006;

(b) carries out the education functions of the authority (as defined in
45section 579(1) of the Education Act 1996);

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(c) carries out the social services functions of the authority (as defined in
the Local Authority Social Services Act 1970), so far as relating to a
child.

(4) In this section, “local authority” means—

(a) 5in England, a county council, a metropolitan district council, a non-
metropolitan district council for an area for which there is no county
council, a London borough council, the Council of the Isles of Scilly and
(in its capacity as a local authority) the Common Council of the City of
London, and

(b) 10in Wales, a county council or a county borough council.

(5) In this section, “child” has the same meaning as in section 19.

22 Care provider offence: penalties

(1) A person guilty of an offence under section 20 is liable, on conviction on
indictment or summary conviction, to a fine.

(2) 15A court before which a person is convicted of an offence under section 20 may
make either or both of the following orders—

(a) a remedial order;

(b) a publicity order;

(whether instead of or as well as imposing a fine).

(3) 20A “remedial order” is an order requiring the person to take specified steps to
remedy one or more of the following—

(a) the breach mentioned in section 20(1)(b) (“the relevant breach”);

(b) any matter that appears to the court to have resulted from the relevant
breach and to be connected with the ill-treatment or neglect;

(c) 25any deficiency in the person’s policies, systems or practices of which
the relevant breach appears to the court to be an indication.

(4) A “publicity order” is an order requiring the person to publicise in a specified
manner—

(a) the fact that the person has been convicted of the offence;

(b) 30specified particulars of the offence;

(c) the amount of any fine imposed;

(d) the terms of any remedial order made.

(5) A remedial order—

(a) may be made only on an application by the prosecution which specifies
35the terms of the proposed order,

(b) must be made on such terms as the court considers appropriate having
regard to any representations made, and any evidence adduced, in
relation to its terms by the prosecution or by or on behalf of the person
convicted, and

(c) 40must specify a period within which the steps specified in the order
must be taken.

(6) A publicity order must specify a period within which the requirements
specified in the order must be complied with.

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(7) A person who fails to comply with a remedial order or a publicity order
commits an offence and is liable, on conviction on indictment or summary
conviction, to a fine.

(8) In relation to an offence committed before section 85 of the Legal Aid,
5Sentencing and Punishment of Offenders Act 2012 comes into force,
subsections (1) and (7) have effect as if they provided for a fine on summary
conviction not exceeding the statutory maximum.

23 Care provider offence: application to unincorporated associations

(1) For the purposes of sections 20 and 22, an unincorporated association is to be
10treated as owing whatever duties of care it would owe if it were a body
corporate.

(2) Proceedings for an offence under those sections alleged to have been
committed by an unincorporated association must be brought in the name of
the association (and not in that of any of its members).

(3) 15In relation to such proceedings, rules of court relating to the service of
documents have effect as if the unincorporated association were a body
corporate.

(4) In proceedings under section 20 or 22 brought against an unincorporated
association, the following apply as they apply in relation to a body corporate—

(a) 20section 33 of the Criminal Justice Act 1925 (procedure on charge of
offence against corporation);

(b) Schedule 3 to the Magistrates’ Courts Act 1980 (provision about
corporation charged with offence before a magistrates’ court).

(5) A fine imposed on an unincorporated association on its conviction of an
25offence under section 20 or 22 is to be paid out of the funds of the association.

24 Care provider offence: liability for ancillary and other offences

(1) An individual cannot be guilty of—

(a) aiding, abetting, counselling or procuring the commission of an offence
under section 20, or

(b) 30an offence under Part 2 of the Serious Crime Act 2007 (encouraging or
assisting crime) by reference to an offence under section 20.

(2) Where, in the same proceedings, there is—

(a) a charge under section 20 arising out of a particular set of
circumstances, and

(b) 35a charge against the same defendant of a relevant offence arising out of
some or all of those circumstances,

the defendant may, if the interests of justice so require, be convicted of both
offences.

(3) A person convicted of an offence under section 20 arising out of a particular set
40of circumstances may, if the interests of justice so require, be charged with a
relevant offence arising out of some or all of those circumstances.

(4) “Relevant offence” means an offence under an Act, or an instrument made
under an Act, dealing with—

(a) health and safety matters, or

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(b) the provision of health care or social care.

(5) In this section—

  • “Act” includes an Act or Measure of the National Assembly for Wales;

  • “health care” and “social care” have the same meaning as in section 19.

5Other offences and sentences

25 Corrupt or other improper exercise of police powers and privileges

(1) A police constable commits an offence if he or she—

(a) exercises the powers and privileges of a constable improperly, and

(b) knows or ought to know that the exercise is improper.

(2) 10A police constable guilty of an offence under this section is liable, on conviction
on indictment, to imprisonment for a term not exceeding 14 years or a fine (or
both).

(3) “Police constable” means—

(a) a constable of a police force;

(b) 15a special constable for a police area;

(c) a constable or special constable of the British Transport Police Force;

(d) a constable of the Civil Nuclear Constabulary;

(e) a constable of the Ministry of Defence Police;

(f) a National Crime Agency officer designated by the Director General of
20the National Crime Agency as having the powers and privileges of a
constable.

(4) For the purposes of this section, a police constable exercises the powers and
privileges of a constable improperly if—

(a) he or she exercises a power or privilege of a constable for the purpose
25of achieving—

(i) a benefit for himself or herself, or

(ii) a benefit or a detriment for another person, and

(b) a reasonable person would not expect the power or privilege to be
exercised for the purpose of achieving that benefit or detriment.

(5) 30For the purposes of this section, a police constable is to be treated as exercising
the powers and privileges of a constable improperly in the cases described in
subsections (6) and (7).

(6) The first case is where—

(a) the police constable fails to exercise a power or privilege of a constable,

(b) 35the purpose of the failure is to achieve a benefit or detriment described
in subsection (4)(a), and

(c) a reasonable person would not expect a constable to fail to exercise the
power or privilege for the purpose of achieving that benefit or
detriment.

(7) 40The second case is where—

(a) the police constable threatens to exercise, or not to exercise, a power or
privilege of a constable,

(b) the threat is made for the purpose of achieving a benefit or detriment
described in subsection (4)(a), and

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(c) a reasonable person would not expect a constable to threaten to
exercise, or not to exercise, the power or privilege for the purpose of
achieving that benefit or detriment.

(8) An offence is committed under this section if the act or omission in question
5takes place in England and Wales or in the adjacent United Kingdom waters.

(9) In this section—

  • “benefit” and “detriment” mean any benefit or detriment, whether or not
    in money or other property and whether temporary or permanent;

  • “United Kingdom waters” means the sea and other waters within the
    10seaward limits of the United Kingdom’s territorial sea.

(10) References in this section to exercising, or not exercising, the powers and
privileges of a constable include performing, or not performing, the duties of a
constable.

(11) Nothing in this section affects what constitutes the offence of misconduct in
15public office at common law.

26 Term of imprisonment for murder of police or prison officer

(1) Schedule 21 to the Criminal Justice Act 2003 (determination of minimum term
in relation to mandatory life sentence) is amended as follows.

(2) In paragraph 4(2) (cases for which a whole life order is the appropriate starting
20point), after paragraph (b) insert—

(ba) the murder of a police officer or prison officer in the course of
his or her duty,.

(3) In paragraph 5(2) (cases for which 30 years is the appropriate starting point),
omit paragraph (a).

(4) 25The amendments made by this section apply only in relation to an offence
committed on or after the day on which they come into force.

27 Possessing an offensive weapon or bladed article in public or on school
premises: sentencing for second offences for those aged 16 or over

(1) The Prevention of Crime Act 1953 is amended as follows.

(2) 30In section 1 (Prohibition of the carrying of offensive weapons without lawful
authority or reasonable excuse) after subsection (2) insert—

(2A) Section (2B) applies where—

(a) a person is convicted of an offence under subsection (1)
committed after this subsection is commenced;

(b) 35at the time when the offence was committed, he was 16 or over
and had one other conviction under—

(i) subsection (1),

(ii) section (1A); or

(iii) section 139 of the Criminal Justice Act 1988;

(iv) 40section 139A of the Criminal Justice Act 1988; or

(v) section 139AA of the Criminal Justice Act 1988;

(c) the offence was committed after he had been convicted of the
other.

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(2B) Where a person aged 16 or over is convicted of an offence under this
section, the court must impose an appropriate custodial sentence (with
or without a fine) unless the court is of the opinion that there are
particular circumstances which—

(a) 5relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(2C) In this section “appropriate custodial sentence” means—

(a) in the case of a person who is aged 18 or over when convicted,
a sentence of imprisonment for a term of at least six months;

(b) 10in the case of a person who is aged at least 16 but under 18 when
convicted, a detention and training order of at least 4 months.

(2D) 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
shall be taken for the purposes of this section to have been committed
15on the last of those days.

(2E) In relation to times before the coming into force of paragraph 180 of
Schedule 7 to the Criminal Justice and Court Services Act 2000, the
reference in subsection (2B)(a) to a sentence of imprisonment, in
relation to an offender aged under 21 at the time of conviction, is to be
20read as a reference to a sentence of detention in a young offender
institution.

(3) The Criminal Justice Act 1988 is amended as follows.

(4) In section 139 (Offence of having article with blade or point in public place)
after subsection (6) insert—

(6A) 25Section (6B) applies where—

(a) a person is convicted of an offence under subsection (1)
committed after this subsection is commenced;

(b) at the time when the offence was committed, he was 16 or over
and had one other conviction under—

(i) 30subsection (1);

(ii) section 139A;

(iii) section 139AA; or

(iv) sections (1) or (1A) of the Prevention of Crime Act 1953;

(c) the offence was committed after he had been convicted of the
35other.

(6B) Where a person aged 16 or over is convicted of an offence under this
section, the court must impose an appropriate custodial sentence (with
or without a fine) unless the court is of the opinion that there are
particular circumstances which—

(a) 40relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(6C) In this section “appropriate custodial sentence” means—

(a) in the case of a person who is aged 18 or over when convicted,
a sentence of imprisonment for a term of at least 6 months;

(b) 45in the case of a person who is aged at least 16 but under 18 when
convicted, a detention and training order of at least four
months.

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(6D) 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
shall be taken for the purposes of this section to have been committed
on the last of those days.

(6E) 5In relation to times before the coming into force of paragraph 180 of
Schedule 7 to the Criminal Justice and Court Services Act 2000, the
reference in subsection (6B) to a sentence of imprisonment, in relation
to an offender aged under 21 at the time of conviction, is to be read as a
reference to a sentence of detention in a young offender institution.

(5) 10In section 139A (Offence of having article with blade or point (or offensive
weapon)) on school premises after subsection (5) insert—

(5A) Section (5B) applies where—

(a) a person is convicted of an offence under subsection (1)
committed after this subsection is commenced;

(b) 15at the time when the offence was committed, he was 16 or over
and had one other conviction under—

(i) subsection (1);

(ii) section 139;

(iii) section 139AA; or

(iv) 20sections (1) or (1A) of the Prevention of Crime Act 1953;

(c) the offence was committed after he had been convicted of the
other.

(5B) Where a person aged 16 or over is convicted of an offence under this
section, the court must impose an appropriate custodial sentence (with
25or without a fine) unless the court is of the opinion that there are
particular circumstances which—

(a) relate to the offence or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(5C) In this section “appropriate custodial sentence” means—

(a) 30in the case of a person who is aged 18 or over when convicted,
a sentence of imprisonment for a term of at least 6 months;

(b) in the case of a person who is aged at least 16 but under 18 when
convicted, a detention and training order of at least four
months.

(5D) 35Where 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
shall be taken for the purposes of this section to have been committed
on the last of those days.

(5E) In relation to times before the coming into force of paragraph 180 of
40Schedule 7 to the Criminal Justice and Court Services Act 2000, the
reference in subsection (5B) to a sentence of imprisonment, in relation
to an offender aged under 21 at the time of conviction, is to be read as a
reference to a sentence of detention in a young offender institution.

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28 Offences committed by disqualified drivers

(1) After section 3ZB of the Road Traffic Act 1988 insert—

3ZC Causing death by driving: disqualified drivers

A person is guilty of an offence under this section if he or she—

(a) 5causes the death of another person by driving a motor vehicle
on a road, and

(b) at that time, is committing an offence under section 103(1)(b) of
this Act (driving while disqualified).

3ZD Causing serious injury by driving: disqualified drivers

(1) 10A person is guilty of an offence under this section if he or she—

(a) causes serious injury to another person by driving a motor
vehicle on a road, and

(b) at that time, is committing an offence under section 103(1)(b) of
this Act (driving while disqualified).

(2) 15In this section “serious injury” means—

(a) in England and Wales, physical harm which amounts to
grievous bodily harm for the purposes of the Offences against
the Person Act 1861, and

(b) in Scotland, severe physical injury.

(2) 20In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and
punishment of offences under the Traffic Acts) at the appropriate place
insert—

RTA
section
3ZC
Causing
death by
driving:
disqualified
drivers
On
indictment
10 years or
a fine or
both
Obligatory Obligatory 3-11

25

RTA
section
3ZD
Causing
serious
injury by
driving:
disqualified
drivers
(a) Summarily (a) On
conviction
in
England
and
Wales: 12
months or
a fine or
both. On
conviction
in
Scotland:
12 months
or the
statutory
maximum
or both.
Obligatory Obligatory 3-11”.

30




35




40



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(b) On
indictment
(b) 4 years
or a fine or
both

(3) In the entries in Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988
relating to an offence under section 3ZD of the Road Traffic Act 1988—

(a) in relation to an offence committed before section 154(1) of the Criminal
Justice Act 2003 comes into force, the reference in column 4 to 12
5months on summary conviction in England and Wales is to be read as
a reference to 6 months, and

(b) 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 column 4 to a fine on summary conviction in England and
10Wales is to be read as a reference to the statutory maximum.

(4) Schedule 4 contains further amendments relating to the offences under
sections 3ZC and 3ZD of the Road Traffic Act 1988.

(5) The amendments made by this section and Schedule 4 have effect only in
relation to driving which occurs after they come into force.

29 15Sending letters etc with intent to cause distress or anxiety

(1) In section 1 of the Malicious Communications Act 1988 (offence of sending
letters etc with intent to cause distress or anxiety), for subsection (4)
substitute—

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

(a) 20on conviction on indictment to imprisonment for a term not
exceeding two years or a fine (or both);

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

(5) In relation to an offence committed before section 154(1) of the Criminal
25Justice Act 2003 comes into force, the reference in subsection (4)(b) to 12
months is to be read as reference to six months.

(6) 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 (4)(b) to a fine is to be read as a reference to a
30fine not exceeding the statutory maximum.

(2) The amendment made by this section applies only in relation to an offence
committed on or after the day on which it comes into force.

30 Meeting a child following sexual grooming etc

(1) In section 15(1)(a) of the Sexual Offences Act 2003 (meeting a child following
35sexual grooming etc), for “on at least two occasions” substitute “on one or more
occasions”.

(2) In a case in which person A met or communicated with person B only once
before the event mentioned in section 15(1)(a)(i) to (iii) of the Sexual Offences
Act 2003, an offence under that section is committed only if the meeting or
40communication took place after this section comes into force.

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31 Possession of pornographic images of rape and assault by penetration

(1) Part 5 of the Criminal Justice and Immigration Act 2008 is amended as follows.

(2) In section 63 (possession of extreme pornographic images)—

(a) after subsection (5) insert—

(5A) 5In relation to possession of an image in England and Wales, an
“extreme image” is an image which—

(a) falls within subsection (7) or (7A), and

(b) is grossly offensive, disgusting or otherwise of an
obscene character.,

(b) 10in subsection (6), for “An” substitute “In relation to possession of an
image in Northern Ireland, an”, and

(c) after subsection (7) insert—

(7A) An image falls within this subsection if it portrays, in an explicit
and realistic way, either of the following—

(a) 15an act which involves the non-consensual penetration of
a person’s vagina, anus or mouth by another with the
other person’s penis, or

(b) an act which involves the non-consensual sexual
penetration of a person’s vagina or anus by another with
20a part of the other person’s body or anything else,

and a reasonable person looking at the image would think that
the persons were real.

(7B) For the purposes of subsection (7A)—

(a) penetration is a continuing act from entry to
25withdrawal;

(b) “vagina” includes vulva.

(3) In section 66 (defence: participation in consensual acts)—

(a) before subsection (1) insert—

(A1) Subsection (A2) applies where in England and Wales—

(a) 30a person (“D”) is charged with an offence under section
63, and

(b) the offence relates to an image that portrays an act or
acts within subsection (7)(a) to (c) or (7A) of that section
(but does not portray an act within subsection (7)(d) of
35that section).

(A2) It is a defence for D to prove—

(a) that D directly participated in the act or any of the acts
portrayed, and

(b) that the act or acts did not involve the infliction of any
40non-consensual harm on any person, and

(c) if the image portrays an act within section 63(7)(c), that
what is portrayed as a human corpse was not in fact a
corpse, and

(d) if the image portrays an act within section 63(7A), that
45what is portrayed as non-consensual penetration was in
fact consensual., and

(b) in subsection (1)—