Police, Crime, Sentencing and Courts Bill (HL Bill 72)

Part 6 continued    

(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 86 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 86(6) above.

The following provisions of the 1984 Act apply to a person released on bail
25under section 86(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 86(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 86 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

88 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 97 (restrictions on multiple use of cautions).

89 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 90 (rehabilitation and reparation conditions), and

(b)30section 91 (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

(b)it would be inappropriate to do so.

90 Rehabilitation and reparation conditions

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

(2)5The objects are—

(a)facilitating the rehabilitation of the offender;

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

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

(a)10restrictive conditions,

(b)unpaid work conditions, and

(c)attendance conditions.

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

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

(b)15not to be in or go to specified addresses, places or areas in the United
Kingdom;

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

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

(5)20An 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
may not exceed 10.

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

(a)25for a specified purpose, and

(b)for a specified number of hours, which may not exceed 10 where the
condition 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
30other 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
offender.

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

(9)35A condition authorised by this section may—

(a)contain further details as to how it must be complied with (including
the 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)40A 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)In this section “specified” means specified in the caution.

91 Financial penalty conditions

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

(2)The condition must specify—

(a)5the amount of the financial penalty,

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

(c)how it must or may be paid,

(d)the date on or before which the penalty must be paid, and

(e)the consequences of non-payment.

(3)10The amount specified under subsection (2)(a) must not exceed an amount
prescribed 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)15The date specified under subsection (2)(d) must be the last day of the period of
28 days beginning with the day on which the caution is given.

(6)If the financial penalty is not paid on or before the date specified under
subsection (2)(d), the amount of the penalty required to be paid by the
condition is increased by 50%.

(7)20Where subsection (6) applies, if the increased penalty is not paid within the
period of 21 days beginning with the day after the date specified under
subsection (2)(d), the amount of the increased penalty may be registered under
section 92 for enforcement against the offender as a fine.

92 Enforcement of financial penalties: registration

(1)25The chief officer of police may, in respect of any amount registrable under
section 91(7), issue a certificate (“a registration certificate”)—

(a)giving particulars of the financial penalty,

(b)stating that the amount is registrable for enforcement against the
offender as a fine, and

(c)30stating the name and last known address of the offender.

(2)The chief officer of police issuing a registration certificate must cause it to be
sent to the designated officer for the local justice area in which the offender
appears to the chief officer to reside.

(3)The designated officer for a local justice area in receipt of a registration
35certificate must—

(a)register the amount for enforcement as a fine in that area by entering it
in the register of a magistrates’ court acting for that area, or

(b)if it appears to the designated officer that the offender does not reside
in that area, cause the certificate to be sent to the person appearing to
40the officer to be the designated officer for the local justice area in which
the offender resides.

(4)A designated officer registering an amount under this section for enforcement
as a fine must give the offender notice of the registration which—

(a)specifies the amount registered, and

(b)gives the information with respect to the financial penalty, and the
authority for registration, that was included in the registration
certificate.

(5)If an amount is registered in a magistrates’ court as a result of this section, any
5enactment referring (in whatever terms) to a fine imposed, or other sum
adjudged to be paid, on conviction by such a court applies as if the registered
amount were a fine imposed by that court on the conviction of the offender on
the date on which the amount was registered.

93 Enforcement of financial penalties: court proceedings

(1)10This section applies where, in any proceedings for the enforcement of an
amount registered under this section, the person against whom the
proceedings are taken claims—

(a)not to be the person to whom the community caution was given,

(b)to have paid the amount that was required to be paid, or

(c)15to have a reasonable excuse for not paying.

(2)The court may adjourn the proceedings, on one or more occasions, for the
purpose of allowing the claim to be investigated, but must not adjourn for
more than 28 days in total.

(3)The court must accept a claim under subsection (1)(a) or (b) unless it is shown,
20on the balance of probabilities, that the claim is unfounded.

(4)Where a court accepts a claim under subsection (1)(b), the condition of the
caution by virtue of which the amount is required to be paid ceases to have
effect.

(5)In the case of a claim under subsection (1)(c), the court must accept the claim
25so far as relating to the facts claimed (leaving aside any question as to the
reasonableness of the excuse), unless it is shown, on the balance of
probabilities, that the claim so far as relating to those facts is unfounded.

(6)Where a court accepts a claim under subsection (1)(c), the court may order that
the condition of the caution by virtue of which the amount is required to be
30paid—

(a)ceases to have effect, or

(b)is varied so as to reduce the amount payable or to extend the time for
payment (or both).

94 Variation of conditions

(1)35An authorised person or prosecution authority may, with the consent of the
offender, vary the conditions attached to a community caution by—

(a)varying or omitting any of the conditions;

(b)adding a condition.

(2)See also section 95(2) (addition of financial penalty).

95 40Effect of community caution

(1)Where a community caution is given, criminal proceedings may not be
instituted against the offender for the offence in respect of which the caution
was given.

(2)If the offender fails without reasonable excuse to comply with any condition
imposed under section 90, an authorised person or prosecution authority
may—

(a)rescind the condition, and

(b)5attach a condition imposing a financial penalty (or further such
condition) under section 91.

General

96 Code of practice

(1)The Secretary of State must prepare a code of practice in relation to
10diversionary and community cautions.
The code may, in particular, include provision as to—

(a)the circumstances in which diversionary and community cautions may
be given;

(b)the procedure to be followed in connection with the giving of
15diversionary and community cautions;

(c)the conditions which may be attached to diversionary and community
cautions and the time for which they may have effect;

(d)the category of constable or investigating officer by whom diversionary
and community cautions may be given;

(e)20the persons whom a prosecution authority may authorise as authorised
persons for the purposes of this Part;

(f)the form which diversionary and community cautions are to take and
the manner in which they are to be given and recorded;

(g)the places where diversionary and community cautions may be given;

(h)25the provision which may be made in a condition under section 82(2)(b)
or 91(2)(b);

(i)the monitoring of compliance with conditions attached to diversionary
and community cautions;

(j)the exercise of the power of arrest conferred by section 86(1);

(k)30who is to decide how a person should be dealt with under section 86(2)
and (3).

(3)After preparing a draft of the code the Secretary of State—

(a)must publish the draft,

(b)must consider any representations made to the Secretary of State about
35the draft, and

(c)may amend the draft accordingly,

but may not publish or amend the draft without the consent of the Attorney
General.

(4)After complying with subsection (3) the Secretary of State must lay the code
40before each House of Parliament.

(5)After complying with subsection (4) the Secretary of State may bring the code
into force by regulations.

(6)The Secretary of State may from time to time revise a code of practice brought
into force under this section.

(7)Subsections (3) to (6) apply (with appropriate modifications) to a revised code
as they apply to the original code.

97 Restriction on multiple cautions

(1)Regulations may prohibit the giving of a diversionary or community caution
5to a person in respect of an offence where the person has already been given
one or more cautions.

(2)A prohibition under subsection (1) may in particular be framed by reference
to—

(a)the kinds of caution previously given to the person;

(b)10the number of times any kind of caution has been given to the person;

(c)the period preceding the commission of the offence within which any
kind of caution has been given to the person;

(d)the offence or description of offences in respect of which any kind of
caution has been given to the person.

(3)15For the purposes of this section “caution” means—

(a)a diversionary or community caution;

(b)a conditional caution under Part 3 of the Criminal Justice Act 2003
given before the coming into force of section 98;

(c)any other caution given to the person before the coming into force of
20that section in respect of an offence where—

(i)the person admitted having committed the offence,

(ii)the person was aged 18 or over when the caution was given, and

(iii)the caution was given by a constable or other person authorised
to give the caution.

98 25Abolition of other cautions and out-of-court disposals

(1)No caution other than a diversionary or community caution may be given to a
person aged 18 or over who admits to having committed an offence.

(2)In the Criminal Justice Act 2003, omit Part 3 (conditional cautions).

(3)In the Criminal Justice and Police Act 2001, omit Chapter 1 of Part 1 (on-the-
30spot penalties for disorderly behaviour).

(4)Subsections (2) and (3) do not affect the continuing operation of the provisions
repealed by those subsections in relation to offences committed before the day
on which this section comes into force.

Supplementary

99 35Consequential amendments relating to Part 6

Schedule 10 contains consequential amendments.

100 Regulations under Part 6

(1)Regulations under this Part are to be made by the Secretary of State by
statutory instrument.

(2)Regulations under this Part may make—

(a)different provision for different purposes;

(b)consequential, supplementary, incidental, transitional and transitory
provision and savings.

(3)5A statutory instrument containing the regulations specified in subsection (4)
(with or without other provision) may not be made unless a draft of the
instrument has been laid before, and approved by resolution of, each House of
Parliament.

(4)The regulations referred to in subsection (3) are—

(a)10regulations under section 78(6)(b) or (c) (excluded offences);

(b)regulations under section 81(8) or 90(8) which increase the number of
hours specified in section 81(5) or (6)(b) or 90(5) or (6)(b);

(c)the first regulations under section 82(3) or 91(3) (maximum amount of
financial penalty);

(d)15any other regulations under section 82(3) or 91(3) which increase the
maximum amount of a financial penalty by more than is necessary to
reflect changes in the value of money;

(e)regulations under section 96(5) (commencement of code);

(f)regulations under section 97 (restriction on multiple cautions).

(5)20A statutory instrument containing regulations under this Part to which
subsection (3) does not apply is subject to annulment in pursuance of a
resolution of either House of Parliament.

101 Interpretation of Part 6

In this Part—

• 25“the 1984 Act” means the Police and Criminal Evidence Act 1984;

• “authorised person” has the meaning given by section 78(7);

• “community remedy document” means the community remedy
  document (as revised from time to time) published under section 101 of
  the Anti-social Behaviour, Crime and Policing Act 2014 for the police
  30area where the offence in question was committed;

• “excluded offence” has the meaning given by section 78(6);

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

• “investigating officer” means—

  (a)

  35an officer of Revenue and Customs appointed in accordance
  with section 2(1) of the Commissioners for Revenue and
  Customs Act 2005, or

  (b)

  a person designated as a policing support officer or a policing
  support volunteer under section 38 of the Police Reform Act
  402002;

• “police detention” has the same meaning as in the 1984 Act (see section
  118(2) of that Act);

• “prosecution authority” means—

  (a)

  the Attorney General;

  (b)

  45the Director of Public Prosecutions;

  (c)

  the Director of the Serious Fraud Office;

  (d)

  the Secretary of State;

  Police, Crime, Sentencing and Courts BillPage 88

  (e)

  a person prescribed in regulations;

• “victim”, in relation to an offence, means the particular person who
  appears to have been affected, or principally affected, by the offence.

Part 7 5Sentencing and release

Chapter 1 Custodial sentences

Minimum sentences for particular offences

102 Minimum sentences for particular offences

(1)10The Sentencing Code is amended in accordance with subsections (2) to (8).

(2)In section 312 (minimum sentence for offences of threatening with weapon or
bladed article)—

(a)in subsection (2), for “The court” substitute “If the offence was
committed before the day on which section 102 of the Police, Crime,
15Sentencing and Courts Act 2021 came into force, the court”, and

(b)after subsection (2) insert—

“(2A)If the offence was committed on or after the day on which
section 102 of the Police, Crime, Sentencing and Courts Act 2021
came into force, the court must impose an appropriate custodial
20sentence unless the court is of the opinion that there are
exceptional circumstances which—

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

(b)justify not doing so.”

(3)In section 313 (minimum sentence of 7 years for third class A drug trafficking
25offence)—

(a)in subsection (2), for “The court” substitute “If the index offence was
committed before the day on which section 102 of the Police, Crime,
Sentencing and Courts Act 2021 came into force, the court”,

(b)after subsection (2) insert—

“(2A)30If the index offence was committed on or after the day on which
section 102 of the Police, Crime, Sentencing and Courts Act 2021
came into force, the court must impose an appropriate custodial
sentence for a term of at least 7 years unless the court is of the
opinion that there are exceptional circumstances which—

(a)35relate to any of the offences or to the offender, and

(b)justify not doing so.”, and

(c)in subsection (4)(b), after “subsection (2)” insert “or (2A)”.

(4)In section 314 (minimum sentence of 3 years for third domestic burglary)—

(a)in subsection (2), for “The court” substitute “If the index offence was
40committed before the day on which section 102 of the Police, Crime,
Sentencing and Courts Act 2021 came into force, the court”,

(b)after subsection (2) insert—

“(2A)If the index offence was committed on or after the day on which
section 102 of the Police, Crime, Sentencing and Courts Act 2021
came into force, the court must impose an appropriate custodial
5sentence for a term of at least 3 years unless the court is of the
opinion that there are exceptional circumstances which—

(a)relate to any of the offences or to the offender, and

(b)justify not doing so.”, and

(c)in subsection (4)(b), after “subsection (2)” insert “or (2A)”.

(5)10In section 315 (minimum sentence for repeat offence involving weapon or
bladed article)—

(a)in subsection (2), for “The court” substitute “If the index offence was
committed before the day on which section 102 of the Police, Crime,
Sentencing and Courts Act 2021 came into force, the court”,

(b)15after subsection (2) insert—

“(2A)If the index offence was committed on or after the day on which
section 102 of the Police, Crime, Sentencing and Courts Act 2021
came into force, the court must impose an appropriate custodial
sentence unless the court is of the opinion that there are
20exceptional circumstances which—

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

(b)justify not doing so.”, and

(c)in subsection (3), for “subsection (2)” substitute “subsections (2) and
25(2A)”.

(6)In section 316(1)(a) (appeals where previous conviction set aside), after
“subsection (2)” insert “or (2A)”.

(7)In section 320 (determination of day when offence committed), after “311,”
insert “312,”.

(8)30In section 399(c) (mandatory sentence requirements)—

(a)in sub-paragraph (ii), after “312(2)” insert “or (2A)”,

(b)in sub-paragraph (iii), after “313(2)” insert “or (2A)”,

(c)in sub-paragraph (iv), after “314(2)” insert “or (2A)”, and

(d)in sub-paragraph (v), after “315(2)” insert “or (2A)”.

(9)35In Schedule 22 to the Sentencing Act 2020—

(a)in paragraph 66 (amendments of section 313 of the Code), after
paragraph (a) insert—

“(aa)in subsection (2A), for “an appropriate custodial
sentence” substitute “a sentence of imprisonment;””,
40and

(b)in paragraph 67 (amendments of section 314 of the Code), after
paragraph (a) insert—

“(aa)in subsection (2A), for “an appropriate custodial
sentence” substitute “a sentence of imprisonment;””.

(10)45Schedule 11 contains amendments which are consequential on this section.

(11)An amendment made by Schedule 11, so far as it has effect—