Criminal Justice and Courts Bill (HL Bill 49)

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

and “excluded health care” has the meaning given in Schedule 4.

(6) “Social care” includes all forms of personal care and other practical assistance
5provided for individuals who are in need of such care or assistance by reason
of age, illness, disability, pregnancy, childbirth, dependence on alcohol or
drugs 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
10carrying out of other activities by the person.

(8) In this section—

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

• “child” means an individual aged under 18;

• “foster parent” means—

  (a)

  15a local authority foster parent within the meaning of the
  Children Act 1989,

  (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
  20Safeguarding Vulnerable Groups Act 2006.

(9) In 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,
25Sentencing and Punishment of Offenders Act 2012 comes into force, the
reference in subsection (2)(b) to a fine is to be read as a reference to a fine not
exceeding the statutory maximum.

21 Ill-treatment or wilful neglect: care provider offence

(1) A care provider commits an offence if—

(a) 30an individual who has the care of another individual by virtue of being
part 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
35provider to the individual who is ill-treated or neglected, and

(c) in 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
40arranges for the provision of—

(i) health 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
45made arrangements with, other persons to assist him or her in
providing such care,

subject to section 22.

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

(a) is not the care provider, but

(b) 5provides 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
10provides 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,
15under 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.

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

(a) 20preventing 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) preventing 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
25alleged to amount to the breach falls far below what can reasonably be
expected of the care provider in the circumstances.

(7) In 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
30the carrying out of other activities by the person, and

(b) references to a person arranging for the provision of such care do not
include 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
35care or social care do not include making payments under—

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

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

(c) 40section 31 or 32 of the Care Act 2014 (direct payments for care and
support);

(d) regulations 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—

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

• “adult”, “child”, “excluded health care”, “health care” and “social care”
  have the same meaning as in section 20.

22 Care provider offence: excluded care providers

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

(2) 5A person is not a care provider for the purposes of section 21 to the extent that
the person carries out a function of a local authority in England mentioned in
subsection (1) in respect of which either of the following has effect—

(a) a direction under section 15(6)(a) of the Local Government Act 1999
(power of Secretary of State to direct functions of a best value authority
10to be carried out by another person);

(b) a direction under section 497A(4) or (4A) of the Education Act 1996
(power of Secretary of State to direct certain functions to be carried out
by another person).

(3) Where a body corporate has entered into arrangements with a local authority
15in 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 21 to the extent that it carries out relevant care
functions of that authority (as defined in that Part of that Act) under those
arrangements.

(4) 20A local authority in Wales is not a care provider for the purposes of section 21
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
section 579(1) of the Education Act 1996);

(c) 25carries 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.

(5) A person is not a care provider for the purposes of section 21 to the extent that
the person carries out a function of a local authority in Wales mentioned in
30subsection (4) in respect of which any of the following has effect—

(a) a direction under section 29(6)(a) of the Local Government (Wales)
Measure 2009 (nawm 2) (power of Welsh Ministers to direct certain
functions of a Welsh improvement authority to be carried out by
another person);

(b) 35a direction under section 25 or 26 of the School Standards and
Organisation (Wales) Act 2013 (anaw 1) (powers of Welsh Ministers to
direct education functions to be carried out by another person);

(c) a direction under section 154 or 155 of the Social Services and Well-
Being (Wales) Act 2014 (anaw 4) (powers of Welsh Ministers to direct
40social services functions to be carried out by another person).

(6) A registered adoption society or registered adoption support agency is not a
care provider for the purposes of section 21 to the extent that it provides
adoption support services (as defined in section 2(6) of the Adoption and
Children Act 2002).

(7) 45In this section, “local authority” means—

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

(8) In this section—

• 5“child” has the same meaning as in section 20;

• “registered adoption society” means an adoption society (as defined in
  section 2 of the Adoption and Children Act 2002) which is a voluntary
  organisation (as defined in that section) and in respect of which a
  person is registered under Part 2 of the Care Standards Act 2000;

• 10“registered adoption support agency” means an adoption support agency
  (as defined in section 8 of the Adoption and Children Act 2002) in
  respect of which a person is registered under Part 2 of the Care
  Standards Act 2000.

23 Care provider offence: penalties

(1) 15A person guilty of an offence under section 21 is liable, on conviction on
indictment or summary conviction, to a fine.

(2) A court before which a person is convicted of an offence under section 21 may
make either or both of the following orders—

(a) a remedial order;

(b) 20a publicity order;

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

(3) A “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 21(1)(b) (“the relevant breach”);

(b) 25any matter that appears to the court to have resulted from the relevant
breach and to be connected with the ill-treatment or neglect;

(c) any 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
30manner—

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

(b) specified particulars of the offence;

(c) the amount of any fine imposed;

(d) the terms of any remedial order made.

(5) 35A remedial order—

(a) may be made only on an application by the prosecution which specifies
the 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
40relation to its terms by the prosecution or by or on behalf of the person
convicted, and

(c) must 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
45specified in the order must be complied with.

(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.

24 Care provider offence: application to unincorporated associations

(1) For the purposes of sections 21 and 23, 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 21 or 23 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 21 or 23 is to be paid out of the funds of the association.

25 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 21, or

(b) 30an offence under Part 2 of the Serious Crime Act 2007 (encouraging or
assisting crime) by reference to an offence under section 21.

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

(a) a charge under section 21 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 21 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

(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 20.

5Other offences and sentences

26 Corrupt or other improper exercise of police powers and privileges

(1) A police constable listed in subsection (3) 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) The police constables referred to in subsection (1) are—

(a) a constable of a police force in England and Wales;

(b) 15a special constable for a police area in England and Wales;

(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 under section 9 or 10 of the
20Crime and Courts Act 2013 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

(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 the United Kingdom or in 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 in England and Wales or Northern Ireland.

27 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.

28 Minimum sentence for repeat offences involving offensive weapons etc

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

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

“(2A) Subsection (2B) applies where—

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

(b) when the offence was committed, he was aged 16 or over and
35had at least one relevant conviction (see section 1ZA).

(2B) Where this subsection applies, 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) relate to the offence, to the previous offence or to the offender,
40and

(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 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 4 months.

(2D) 5In considering whether it is of the opinion mentioned in subsection (2B)
in the case of a person aged 16 or 17, the court must have regard to its
duty under section 44 of the Children and Young Persons Act 1933
(general considerations).

(2E) Where—

(a) 10an appropriate custodial sentence has been imposed on a
person under subsection (2B), and

(b) a relevant conviction without which subsection (2B) would not
have applied has been subsequently set aside on appeal,

notice of appeal against the sentence may be given at any time within
1528 days from the date on which the conviction was set aside (despite
anything in section 18 of the Criminal Appeal Act 1968 (initiating
procedure)).

(2F) 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
20shall be taken for the purposes of this section to have been committed
on the last of those days.

(2G) 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 (2C)(a) to a sentence of imprisonment, in
25relation 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.”

(3) After section 1 insert—

“1ZA Offence under section 1: previous relevant convictions

(1) 30For the purposes of section 1, “relevant conviction” means—

(a) a conviction for an offence under—

(i) section 1 or 1A of this Act, or

(ii) section 139, 139A or 139AA of the Criminal Justice Act
1988,

35(a “relevant offence”), whenever committed,

(b) a conviction in Scotland, Northern Ireland or a member State
other than the United Kingdom for a civilian offence, whenever
committed, which would have constituted a relevant offence if
committed in England and Wales at the time of that conviction,

(c) 40a conviction for an offence under section 42 of the Armed Forces
Act 2006, whenever committed, in respect of which the
corresponding offence under the law of England and Wales
(within the meaning of that section) is a relevant offence,

(d) a conviction for an offence under section 70 of the Army Act
451955, section 70 of the Air Force Act 1955 or section 42 of the
Naval Discipline Act 1957, whenever committed, in respect of
which the corresponding civil offence (within the meaning of
the Act in question) is a relevant offence, and

(e) a conviction for a member State service offence, whenever
committed, which would have constituted a relevant offence if
committed in England and Wales at the time of conviction.

(2) In this section—

• 5“civilian offence” means an offence other than—

  (a)

  an offence under an enactment mentioned in subsection
  (1)(c) or (d), or

  (b)

  a member State service offence;

• “conviction” includes—

  (a)

  10in relation to an offence under section 42 of the Armed
  Forces Act 2006, anything which by virtue of section
  376(1) and (2) of that Act is to be treated as a conviction
  and

  (b)

  in relation to an offence under section 42 of the Naval
  15Discipline Act 1957 and a member State service offence,
  a finding of guilt in respect of the person;

• “member State service offence” means an offence which was the
  subject of proceedings under the law of a member State, other
  than the United Kingdom, governing all or any of the naval,
  20military or air forces of that State.

(3) For the purposes of subsection (1)(c) and (d), where the offence was
committed by aiding, abetting, counselling or procuring, it must be
assumed that the act aided, abetted, counselled or procured was done
in England and Wales.”

(4) 25The Criminal Justice Act 1988 is amended as follows.

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

“(6A) Subsection (6B) applies where—

(a) a person is convicted of an offence under subsection (1) by a
30court in England and Wales,

(b) the offence was committed after this subsection is commenced,
and

(c) when the offence was committed, he was aged 16 or over and
had at least one relevant conviction (see section 139AZA).

(6B) 35Where this subsection applies, 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) relate to the offence, to the previous offence or to the offender,
and

(b) 40would 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) in the case of a person who is aged at least 16 but under 18 when
45convicted, a detention and training order of at least 4 months.

(6D) In considering whether it is of the opinion mentioned in subsection (6B)
in the case of a person aged 16 or 17, the court must have regard to its

duty under section 44 of the Children and Young Persons Act 1933
(general considerations).

(6E) Where—

(a) an appropriate custodial sentence has been imposed on a
5person under subsection (6B), and

(b) a relevant conviction without which subsection (6B) would not
have applied has been subsequently set aside on appeal,

notice of appeal against the sentence may be given at any time within
28 days from the date on which the conviction was set aside (despite
10anything in section 18 of the Criminal Appeal Act 1968 (initiating
procedure)).

(6F) 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.

(6G) 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 (6C)(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.”

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

“(5A) Subsection (5B) applies where—

(a) 25a person is convicted of an offence under subsection (1) or (2) by
a court in England and Wales,

(b) the offence was committed after this subsection is commenced,
and

(c) when the offence was committed, he was aged 16 or over and
30had at least one relevant conviction (see section 139AZA).

(5B) Where this subsection applies, 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) relate to the offence, to the previous offence or to the offender,
35and

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

(5C) 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) 40in 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.

(5D) In considering whether it is of the opinion mentioned in subsection (5B)
in the case of a person aged 16 or 17, the court must have regard to its
duty under section 44 of the Children and Young Persons Act 1933
45(general considerations).

(5E) Where—