Police, Crime, Sentencing and Courts Bill (HL Bill 40)

Part 5 continued    

(i)omit “, and” at the end of paragraph (a);

(ii)omit paragraph (b);

(b)omit subsections (4), (5), (5A), (5B), (6), (7) and (9).

(4)In section 69 (payment of penalties)—

(a)5in subsection (2), after “method” insert “and subject to subsection (2A)”;

(b)after that subsection, insert—

“(2A)Where a person has been given a fixed penalty notice under
section 54 in respect of an offence involving obligatory
endorsement, payment of the penalty may be made as
10mentioned in subsection (2) only if the letter also contains
identification information.”;

(c)after subsection (3), insert—

“(3A)Subsection (3B) applies where—

(a)a person has been given a fixed penalty notice under
15section 54 in respect of an offence involving obligatory
endorsement, and

(b)a method of payment other than that mentioned in
subsection (2) is used.

(3B)The penalty is treated as having been paid to the fixed penalty
20clerk or the Secretary of State in accordance with this Part only
if the person—

(a)fulfils the identification requirements, and

(b)makes payment of the penalty to the clerk or the
Secretary of State.

(3C)25A person fulfils the identification requirements if—

(a)the person provides the clerk or the Secretary of State
with identification information, or

(b)the clerk or the Secretary of State is otherwise satisfied
of the person’s identity.

(3D)30In this section “identification information” means—

(a)the person’s name and date of birth, and

(b)if the person is the holder of a licence, the licence
number.”

73 Removal of requirement to deliver up licence where conditional offer

(1)35The Road Traffic Offenders Act 1988 is amended as follows.

(2)In section 75 (issue of conditional offer)—

(a)in subsection (7), after paragraph (b) (but before the “and” immediately
after it) insert—

“(ba)give details of the identification information that may be
40required where the conditional offer relates to an
offence involving obligatory endorsement,”;

(b)in subsection (8A)(a), for sub-paragraph (ii) substitute—

“(ii)where the conditional offer relates to an offence
involving obligatory endorsement, fulfils the
45identification requirements,”;

(c)after subsection (8A) insert—

“(8B)For the purposes of subsection (8A)(a)(ii), an alleged offender
fulfils the identification requirements if—

(a)the alleged offender provides the appropriate person
5with identification information, or

(b)the appropriate person is otherwise satisfied of the
alleged offender’s identity.

(8C)In this section “identification information” means—

(a)the alleged offender’s name and date of birth, and

(b)10if the alleged offender is the holder of a licence, the
licence number.”

(3)In section 76 (effect of offer and payment of penalty)—

(a)in subsection (2), for “makes payment of the fixed penalty in
accordance with the conditional offer” substitute “has fulfilled the
15conditions specified in the conditional offer under section 75(8A)(a)”;

(b)in subsection (3)(b), omit the words from “together” to “his licence”;

(c)in subsection (4), for the words from “requirements” to “fulfilled”
substitute “alleged offender has not fulfilled the conditions specified in
the conditional offer under section 75(8A)(a)”.

(4)20In section 77A (endorsement of driving records where penalty paid)—

(a)for subsection (1)(a) substitute—

“(a)a conditional offer has been issued to a person (“the
alleged offender”) under section 75(1), (2) or (3),”;

(b)in subsection (1)(b), for “76” substitute “76(2)”;

(c)25in subsection (1), in the words after paragraph (b), omit “together with
any licence delivered under paragraph (a) above”;

(d)in subsection (2), in the words before paragraph (a), omit “and return
any licence delivered to him under this section to the alleged offender”;

(e)for subsection (2)(b) substitute—

“(b)30in a case where—

(i)a conditional offer is issued to a person (“the
alleged offender”) under section 75(1A) or (3B),
and

(ii)proceedings against the alleged offender are
35excluded by section 76(2).”

74 Surrender of licences and test certificates by new drivers

Schedule 8 contains amendments to the Road Traffic (New Drivers) Act 1995
which make provision about the surrender of driving licences and test
certificates in the case of new drivers.

75 40Minor and consequential amendments

Schedule 9 contains minor and consequential amendments.

Fixed penalty notices in Scotland

76 Power to issue fixed penalty notices on-the-spot in Scotland

(1)In section 54(1) of the Road Traffic Offenders Act 1988 (notices on-the-spot
etc.), omit “in England and Wales”.

(2)5In section 75(4) of that Act (issue of conditional offer: restrictions), after
“notice” insert “in respect of the offence has been given under section 54 of this
Act or”.

(3)Paragraph 103(2) of Schedule 4 to the Road Traffic Act 1991 (amendment to
section 54 of the Road Traffic Offenders Act 1988 which is superseded by
10provision made by this section) is omitted.

Part 6 Cautions

Introductory

77 Diversionary and community cautions

(1)15This Part makes provision for cautions known as—

(a)diversionary cautions, and

(b)community cautions.

A diversionary caution may, in accordance with this Part, be given by an
authorised person to a person aged 18 or over in respect of an offence.

(3)20A community caution may, in accordance with this Part, be given by an
authorised person to a person aged 18 or over in respect of an offence other
than an excluded offence.

(4)Diversionary and community cautions must have one or more conditions
attached to them.

(5)25Breach of a condition may, in accordance with this Part, result in—

(a)prosecution for the offence, in the case of a diversionary caution, or

(b)a financial penalty, in the case of a community caution.

(6)In this Part “excluded offence” means—

(a)an indictable-only offence;

(b)30an offence triable either way which is prescribed in regulations, or

(c)a summary offence which is prescribed in regulations.

(7)In this Part “authorised person”, in relation to a diversionary or community
caution, means—

(a)a constable,

(b)35an investigating officer, or

(c)a person authorised by a prosecution authority for purposes relating to
cautions of that kind.

Diversionary cautions

78 Giving a diversionary caution

(1)An authorised person may give a diversionary caution to a person aged 18 or
over (“the offender”) in respect of an offence if the following requirements are
5met.

(2)The requirements are that—

(a)an authorised person or a prosecution authority decides—

(i)that there is sufficient evidence to charge the offender with the
offence, and

(ii)10that a diversionary caution should be given to the offender in
respect of the offence;

(b)the offender admits having committed the offence;

(c)the offender consents to being given the caution;

(d)an authorised person—

(i)15explains the effect of the caution to the offender, and

(ii)in particular, warns the offender that failure to comply with any
of the conditions attached to the caution may result in
prosecution for the offence;

(e)the offender signs a document which contains—

(i)20details of the offence,

(ii)the offender’s admission to having committed the offence,

(iii)the offender’s consent to being given the caution, and

(iv)the conditions attached to the caution.

(3)But if the offence is an indictable-only offence, the authorised person may not
25give a diversionary caution to the offender except—

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

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

(4)A diversionary caution may not be given in respect of an offence committed
before the coming into force of this section.

(5)30The power to give a diversionary caution under subsection (1) is also subject to
regulations under section 96 (restrictions on multiple use of cautions).

79 Deciding on the conditions

(1)The conditions attached to a diversionary caution are to be decided upon by—

(a)an authorised person, or

(b)35in a case where a prosecution authority has taken the decision that the
caution should be given, the prosecution authority.

(2)The conditions which may be attached to a diversionary caution are those
authorised by—

(a)section 80 (rehabilitation and reparation conditions),

(b)40section 81 (financial penalty conditions), and

(c)section 82 (conditions relating to certain foreign offenders).

(3)When deciding what conditions to attach to a diversionary caution the
authorised person or prosecution authority must—

(a)make reasonable efforts, or ensure that reasonable efforts are or have
been made, to obtain the views of any victim or victims of the offence,
and

(b)take those views into account.

(4)5The views referred to in subsection (3) include in particular views as to
whether the offender should carry out any of the actions listed in the
community remedy document.

(5)Where it is the view of the victim or all the victims that the offender should
carry out a particular action listed in the community remedy document, the
10authorised person or prosecution authority must attach that as a condition
unless it seems to the authorised person or prosecution authority—

(a)the action is not one that can be attached as a condition to a
diversionary caution, or

(b)it would be inappropriate to do so.

80 15Rehabilitation and reparation conditions

(1)Conditions with one or both of the objects in subsection (2) may be attached to
a diversionary caution.

(2)The objects are—

(a)facilitating the rehabilitation of the offender;

(b)20ensuring that the offender makes reparation for the offence.

(3)The conditions which may be attached to a diversionary caution for the objects
referred to in subsection (2) include—

(a)restrictive conditions,

(b)unpaid work conditions, and

(c)25attendance conditions.

(4)A restrictive condition is a condition requiring the offender—

(a)not to meet or communicate with specified individuals;

(b)not to be in, or go to, specified addresses, places or areas in the United
Kingdom;

(c)30not to carry out or participate in specified activities;

(d)not to engage in specified conduct (which may include conduct
constituting a criminal offence).

(5)An unpaid work condition is a condition requiring the offender to carry out
unpaid work of a specified description for a specified number of hours, which
35may not exceed 20.

(6)An attendance condition is a condition requiring the offender to attend a
specified place—

(a)for a specified purpose, and

(b)for a specified number of hours, which may not exceed 20 where the
40condition only has the object referred to in subsection (2)(b).

(7)Where an attendance condition requires the offender to attend somewhere for
the purpose of participating in any education or training, or receiving any
other service, the attendance condition may also require the offender to pay for
the reasonable cost of the provision of the education, training or service to the
45offender.

(8)Regulations may amend subsection (5) or (6)(b) (or both) so as to substitute a
different number of hours.

(9)A condition authorised by this section may—

(a)contain further details as to how it must be complied with (including
5the times at or between which something must or must not be done);

(b)provide for those details to be supplied, after the giving of the caution,
by a specified person or a person of a specified description.

(10)A condition authorised by this section may not require a person to remain at
their own or anyone else’s residence for any period of time.

(11)10In this section “specified” means specified in the caution.

81 Financial penalty conditions

(1)A condition requiring the offender to pay a financial penalty may be attached
to a diversionary caution with the object of punishing the offender.

(2)The condition must specify—

(a)15the amount of the financial penalty,

(b)the person to whom the financial penalty must be paid,

(c)how it must or may be paid, and

(d)the date on or before which it must be paid.

(3)The amount specified under subsection (2)(a) must not exceed an amount
20prescribed in regulations.

(4)Where the person specified under subsection (2)(b) is not the designated officer
for a magistrates’ court, once the penalty is paid to that person they must give
it to such an officer.

(5)The date specified under subsection (2)(d) must be the last day of the period of
2528 days beginning with the day on which the caution is given.

82 Foreign offenders’ conditions

(1)Where a diversionary caution is given to a relevant foreign offender, a
condition with one or both of the objects in subsection (2) may be attached to it.

(2)The objects are—

(a)30bringing about the departure of the relevant foreign offender from the
United Kingdom;

(b)ensuring that the relevant foreign offender does not return to the
United Kingdom for a period of time.

(3)If a diversionary caution has a condition with the object referred to in
35subsection (2)(b), the expiry of the period does not of itself give rise to any right
on the part of the offender to return to the United Kingdom.

(4)In this section “relevant foreign offender” means—

(a)an offender directions for whose removal from the United Kingdom
have been, or may be, given under Schedule 2 to the Immigration Act
401971 or section 10 of the Immigration and Asylum Act 1999, or

(b)an offender against whom a deportation order under section 5 of the
Immigration Act 1971 is in force.

83 Variation of conditions

An authorised person or prosecution authority may, with the consent of the
offender, vary the conditions attached to a diversionary caution by—

(a)varying or omitting any of the conditions;

(b)5adding a condition.

84 Effect of diversionary caution

(1)Where a diversionary caution is given, criminal proceedings may be instituted
against the offender for the offence in respect of which the caution was given
if, but only if, the offender fails without reasonable excuse to comply with any
10of the conditions attached to the caution.

(2)The document mentioned in section 78(2)(e) is admissible in such proceedings.

(3)Where such proceedings are instituted, the diversionary caution ceases to have
effect.

85 Arrest for failure to comply

(1)15If a constable has reasonable grounds for believing that the offender has failed
without reasonable excuse to comply with any of the conditions attached to a
diversionary caution, the constable may arrest the offender without warrant.

(2)A person arrested under this section must be—

(a)charged with the offence in question, or

(b)20released without charge.

(3)A person released without charge under subsection (2)(b) must be—

(a)released on bail if—

(i)the release is to enable a decision to be made as to whether the
offender should be charged with the offence, and

(ii)25the pre-conditions for bail are satisfied, or

(b)in any other case, released without bail (with or without any variation
in the conditions attached to the caution).

(4)Subsection (2) also applies in the case of—

(a)a person who, having been released on bail under subsection (3)(a),
30returns to a police station to answer bail or is otherwise in police
detention at a police station;

(b)a person who, having been released on bail under section 30A of the
1984 Act (bail elsewhere than at police station) as applied by section 86
below, attends at a police station to answer bail or is otherwise in police
35detention at a police station;

(c)a person who is arrested under section 30D or 46A of the 1984 Act
(power of arrest for failure to answer to police bail) as applied by
section 86 below.

(5)Where a person is released on bail under subsection (3)(a), the custody officer
40must inform the person that the release is to enable a decision to be made as to
whether the person should be charged with the offence in question.

(6)A person arrested under this section, or any other person in whose case
subsection (2) applies, may be kept in police detention—

(a)to enable the person to be dealt with in accordance with that subsection,
or

(b)where applicable, to enable the power under section 47(4A) of the 1984
Act (power of custody officer to appoint a different or additional time
5for answering to police bail), as applied by section 86 below, to be
exercised.

If the person is not in a fit state to be dealt with in that way, or to enable that
power to be exercised, they may be kept in police detention until they are.

(7)The power under subsection (6)(a) includes power to keep the person in police
10detention if it is necessary to do so for the purpose of investigating whether the
person has failed, without reasonable excuse, to comply with any of the
conditions attached to the diversionary caution.

(8)Subsections (2) and (3) must be complied with as soon as practicable after the
person arrested arrives at the police station or, in the case of a person arrested
15at the police station, as soon as practicable after the arrest.

(9)Subsection (2) does not require a person who—

(a)falls within subsection (4)(a) or (b), and

(b)is in police detention in relation to a matter other than the diversionary
caution,

20to be released if the person is liable to be kept in detention in relation to that
other matter.

(10)In subsection (3)(a)(ii), the reference to the pre-conditions for bail is to be read
in accordance with section 50A of the 1984 Act.

86 Application of Police and Criminal Evidence Act 1984

(1)25In the case of a person arrested under section 85, the provisions of the 1984 Act
specified in subsection (2) apply, with the modifications specified in subsection
(3) and with such further modifications as are necessary, as they apply in the
case of a person arrested for an offence.

(2)The provisions are—

(a)30section 30 (arrest elsewhere than at police station);

(b)sections 30A to 30D (bail elsewhere than at police station);

(c)section 31 (arrest for further offence);

(d)section 34(1) to (5E) (limitations on police detention);

(e)section 36 (custody officers at police stations);

(f)35section 37(4) to (6C) (record of grounds for detention);

(g)section 38 (duties of custody officer after charge);

(h)section 39 (responsibilities in relation to persons detained);

(i)section 55A (x-rays and ultrasound scans).

(3)The modifications are—

(a)40in section 30CA, omit subsections (4A) to (4D);

(b)in section 30CA, in subsection (5), in paragraph (a) of the definition of
“relevant officer”, for the reference to being involved in the
investigation of the relevant offence substitute a reference to being
involved—

(i)45in the investigation of the offence in respect of which the person
was given the diversionary caution, or

(ii)in investigating whether the person has failed, without
reasonable excuse, to comply with any of the conditions
attached to the diversionary caution;

(c)in section 36(5) and (7), for the references to being involved in the
5investigation of an offence for which the person is in police detention
substitute references to being involved—

(i)in the investigation of the offence in respect of which the person
was given the diversionary caution, or

(ii)in investigating whether the person has failed, without
10reasonable excuse, to comply with any of the conditions
attached to the diversionary caution;

(d)in section 38(1)(a)(iii) and (iv), for “arrested for” substitute “charged
with”;

(e)in section 39(2) and (3), for the references to an offence substitute
15references to a failure to comply with conditions attached to the
diversionary caution.

(4)Section 40 of the 1984 Act (review of police detention) applies to a person in
police detention by virtue of section 85 above as it applies to a person in police
detention in connection with the investigation of an offence, but with the
20following modifications—

(a)omit subsections (8) and (8A);

(b)in subsection (9), for the reference to section 37(9) or 37D(5) substitute
a reference to the second sentence of section 85(6) above.

The following provisions of the 1984 Act apply to a person released on bail
25under section 85(3)(a) above as they apply to a person released on bail under
section 37 of that Act—

(a)section 46A (power of arrest for failure to answer to police bail);

(b)section 47 (bail after arrest), except subsections (4D) and (4E).

Section 54 of the 1984 Act (searches of detained persons) applies in the case of
30a person who falls within section 85(4) above and is detained in a police station
under that section as it applies in the case of a person who falls within section
34(7) of that Act and is detained at a police station under section 37.
Section 54A of the 1984 Act (searches and examination to ascertain identity)
applies with the following modifications in the case of a person who is
35detained in a police station under section 85 above—

(a)in subsections (1)(a) and (12), after “as a person involved in the
commission of an offence” insert “or as having failed to comply with
any of the conditions attached to the person’s diversionary caution”;

(b)in subsection (9)(a), after “the investigation of an offence” insert “, the
40investigation of whether the person in question has failed to comply
with any of the conditions attached to the person’s diversionary
caution”.

Community cautions

87 Giving a community caution

(1)45An authorised person may give a community caution to a person aged 18 or
over (“the offender”) in respect of an offence, other than an excluded offence,
if the following requirements are met.

(2)The requirements are that—

(a)an authorised person or a prosecution authority decides that—

(i)there is sufficient evidence to charge the offender with the
offence, and

(ii)5a community caution should be given to the offender in respect
of the offence;

(b)the offender admits to having committed the offence;

(c)the offender consents to being given the caution;

(d)an authorised person—

(i)10explains the effect of the caution to the offender, and

(ii)in particular, warns the offender of the effect of failure to
comply with any of the conditions attached to the caution;

(e)the offender signs a document which contains—

(i)details of the offence,

(ii)15the offender’s admission to having committed the offence,

(iii)the offender’s consent to being given the caution, and

(iv)the conditions attached to the caution.

(3)A community caution may not be given in respect of an offence committed
before the coming into force of this section.

(4)20The power to give a community caution under subsection (1) is also subject to
regulations under section 96 (restrictions on multiple use of cautions).

88 Deciding on the conditions

(1)The conditions attached to a community caution are to be decided upon by—

(a)an authorised person, or

(b)25in a case where a prosecution authority has taken the decision that the
caution should be given, the prosecution authority.

(2)The conditions which may be attached to a community caution are those
authorised by—

(a)section 89 (rehabilitation and reparation conditions), and

(b)30section 90 (financial penalty conditions).

(3)When deciding what conditions to attach to a community caution the
authorised person or prosecution authority must—

(a)make reasonable efforts, or ensure that reasonable efforts are or have
been made, to obtain the views of any victim or victims of the offence,
35and

(b)take those views into account.

(4)The views referred to in subsection (3) include in particular views as to
whether the offender should carry out any of the actions listed in the
community remedy document.

(5)40Where it is the view of the victim or all the victims that the offender should
carry out a particular action listed in the community remedy document, the
authorised person or prosecution authority must attach that as a condition
unless it seems to the authorised person or prosecution authority—

(a)the action is not one that can be attached as a condition to a community
45caution, or