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These notes refer to the Criminal Justice and Court Services Bill Criminal Justice And Court Services Bill——————————
EXPLANATORY NOTESINTRODUCTION1. These explanatory notes relate to the Criminal Justice and Court Services Bill as introduced in the House of Commons on 15 March 2000. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY3. The Bill is in four parts.
THE BILLExplanatory Notes for the Criminal Justice and Court Services Bill4. The Explanatory Notes are divided into parts reflecting the structure of the Bill. The background and summary of each subject area are detailed, followed by the commentary on clauses in number order.
Powers of Criminal Courts (Sentencing) Bill5. The Bill refers to the Powers of Criminal Courts (Sentencing) Bill as if it were an Act even though it had not received a Second Reading when this Bill was introduced in the Commons. This was because of the large number of consequential amendments to sentencing provisions which are now contained in the Sentencing Bill. However, it is done on the understanding that the Sentencing Bill makes appropriate progress. If it does not then the references to it in this Bill will of course be removed in due course.
BACKGROUND AND SUMMARYPart I: The New ServicesChapter I : National Probation Service for England and Wales6. The consultation paper, "Joining Forces to Protect the Public" was issued in August 1998, and proposed various ways in which the prison and probation services could work together to improve the protection of the public and reduce reoffending. As a result of the consultation process, the Home Secretary decided that the two services should not combine, but should retain their separate identities while using complementary methods to achieve these common goals.
7. In the case of the probation service, the aim should be to protect the public and to reduce reoffending through the effective enforcement of community sentences. It was, however, concluded that the existing arrangements under the Probation Service Act 1993, which provides for 54 separate probation services, were not conducive to the efficient and successful achievement of this aim. Neither did that Act allow the Secretary of State to take steps to improve the performance of services. In addition, the Probation Service's responsibility for Family Court work did not fit well with its core aim.
8. Chapter I of the Bill restructures the Probation Service and creates a unified service for England and Wales which will be renamed the National Probation Service for England and Wales which will be directly accountable to the Home Secretary. It will have a structure based on 42 local areas, each with a board composed of representatives of the local community who understand local needs. The boundaries of these areas will match those of the police forces, a step towards the government's aim of improving efficiency by creating common boundaries across all the agencies in the criminal justice system. The boards will employ staff or make other contractual arrangements for the delivery of the services for which they are responsible. The Children And Family Court Advisory and Support Service, created in Chapter II of this Bill, will take over Family Court work, leaving the National Probation Service for England and Wales to concentrate on working with offenders.
9. The provisions will allow the Home Secretary to appoint the members of local boards, and to appoint the chief officer of each area. He will be able to give directions to boards, and through them to chief officers, as to how they fulfil their statutory responsibilities.
Chapter II : Children and Family Court Advisory and Support Service10. Following recommendations in the consultation paper "Support Services in Family Proceedings - Future Organisation of Court Welfare Services", issued in July 1998, Chapter II of the Bill sets up the new Children and Family Court Advisory and Support Service (CAFCASS) for England and Wales. CAFCASS assumes the functions currently carried out by the Family Court Welfare Service (currently the responsibility of the Probation Service), the Guardian Ad Litem and Reporting Officer service (GALROs - who act in adoption and public law cases regarding the care of children - currently the responsibility of the Department of Health) and part of the Official Solicitor's Office (Lord Chancellor's Department).
11. CAFCASS will serve the Family Division of the High Court, county courts (including care centres) and family proceedings courts. The service will safeguard and promote the welfare of the children before courts dealing with family proceedings; give advice to any court about any application made to it in such proceedings; make provision for the children to be represented in such proceedings; provide information, advice and other support for the children and their families.
12. The provisions in Chapter II of Part 1 and Schedule 2 establish the Children and Family Court Advisory and Support Service as a non departmental public body, which will be accountable to the Lord Chancellor. The new service will also be subject to independent inspection in order to monitor and report on its activities.
Part II: Protection of Children13. Part II of the Bill introduces measures which will complete the establishment of an integrated system for the protection of children. Under this system those who 'come to notice', either when working with children or by commission of a serious criminal offence against a child, as posing a risk to children may, after a proper process, be made subject to a statutory ban on 'working with children'. This builds on the provisions of the Education Reform Act 1988, the Education Act 1996 and the Protection of Children Act 1999.
14. Part V of the Police Act 1997 provided for a new criminal record system to be established which would provide three different levels of certification according to the authority of the individual requesting the information and the purpose of requirement. This will be managed by a new Criminal Records Bureau. The Protection of Children Act 1999 provides for the Criminal Records Bureau to include information from the lists of those banned by the Secretary of State in the two higher level certificates. It also provides for the further positions prescribed by the Secretary of State to be added to those areas where information on those banned by the Secretary of State may be requested. This will permit the full scope of the new definition of working with children contained in this part of this Bill to be covered.
15. This part of the Bill sets out that, where an individual is identified as being unsuitable to work with children, that individual should, after due process, be banned from such work. The Education Reform Act 1988, the Education Act 1996 and the Protection of Children Act 1999 provide for lists to be kept by the Secretary of State or National Assembly for Wales of individuals banned from working with children in organisations in the areas of healthcare, social services and education. The new measures will provide a further way to ban unsuitable people from working with children. They provide that those who commit a serious offence against a child can be banned by a disqualification order by a judge from all such work as part of their sentence or the disposal of their case. The measures also provide a proposed review process for those subject to a ban, whether imposed by the Secretary of State or a judge.
16. This part of the Bill further provides that those identified as unsuitable to work with children and banned from working with children under any of the specified methods, should be subject to criminal sanctions if they breach the ban. It will also be an offence for someone to offer the opportunity to work with children to an individual whom they know is subject to disqualification from such work.
17. The provisions include a new and comprehensive definition of working with children to enable all such areas of work to be covered by the ban. This will apply to work with children in all sectors, including voluntary work, and irrespective of whether the work is paid or unpaid. Those banned by the Secretary of State will also be banned from all areas covered by the new definition.
18. Under the Police Act 1997, as amended by the Protection of Children Act 1999, access to information about those banned by whichever means will be available as part of criminal and enhanced criminal records certificates when certificates are sought in respect of working with children, once the Criminal Records Bureau is in operation (paragraph 14 above).
Part III: Dealing with Offenders19. This part of the Bill deals with Community Sentences. It provides for the re-naming of some existing orders, for the creation of two new orders, for new warning and punishment measures for breach of orders and for new conditions to be attached to community sentences, and to prisoners on release from custody. It also provides for new police powers in relation to drug testing, and amends the Bail Act 1976.
Re-naming certain community orders: Clauses 36, 37 and 3820. In order to reflect better the nature of certain community orders, and to make them more easily understood, probation orders, community service orders and combination orders will be renamed community rehabilitation orders, community punishment orders and community punishment and rehabilitation orders respectively.
Electronic Monitoring: Clauses 39, 43, 44, 45, 50 and 5121. The Criminal Justice Act 1991 made provision for court ordered curfews that could be monitored electronically. The Criminal Justice and Public Order Act 1994 amended the 1991 Act to enable this provision to be piloted in selected areas before being implemented nationally. From 1995, electronic monitoring of curfew orders was piloted in various areas of the country. The Crime (Sentences) Act 1997 amended the 1991 Act so that the offender's consent was not required for electronic monitoring to be carried out. On the basis of these successful trials, the arrangements were made available nationally from 1st December 1999.
22. In addition, the 1997 Act enabled trials to begin in 1998 for the electronic monitoring of curfew orders imposed on persistent petty offenders, fine defaulters, and offenders aged 10 to 15 years old. Electronic monitoring of curfews imposed as a condition of bail was also the subject of a pilot scheme in 1998 and 1999. No decision has been taken on the future of these uses.
23. The Crime and Disorder Act 1998 amended the Criminal Justice Act 1991 so as to provide for certain categories of prisoner to be released on Home Detention Curfew subject to a risk assessment. The provisions came into operation in January 1999 and compliance is also being monitored electronically.
24. Electronic Monitoring is delivered by the private sector. Following successful trials of curfew orders, new five-year contracts were issued to the private sector in 1999. In the first year of the contract (28 January 1999 to 31 January 2000), electronic monitoring was used in 19,642 cases. Of these, 84.5% (16,589) were prisoners released on Home Detention Curfew, and 13.1% (2,568) were curfew orders made under the Criminal Justice Act 1991 (others account for the remaining 2.4% (471)). As at February 2000 the successful compliance rate of the Home Detention Curfew scheme was 95% and is estimated at 88% for all other forms of electronic monitoring.
25. This part of the Bill provides for the extension of electronic monitoring. It creates a new disposal - an exclusion order - which can be used as a free-standing sentence or in combination with a fine or community penalty. This order will require an offender to stay away from a certain place or places at all or certain times. It will have special value in relation to an offender who presents a particular danger or nuisance to a particular victim or victims.
26. It provides for electronic monitoring as a condition of a Community Rehabilitation Order or Community Punishment and Rehabilitation Order, and will allow for curfew and/or exclusion requirements to be a condition of a community penalty. In addition, it makes provisions for the electronic monitoring of these exclusion/curfew conditions as well as allowing for the electronic monitoring of any other condition of a community penalty.
27. It also makes provision for electronic monitoring as a licence condition. It explicitly provides for the electronic monitoring of exclusion or curfew requirements as conditions of release from prison on licence. It also establishes the power of the Secretary of State to monitor electronically the movements of those released from prison on licence.
Drug Testing: Clauses 40, 41, 42, 48, 49, 51 and 5228. There is clear evidence to link drug misuse, particularly heroin and cocaine/crack, with crime, particularly acquisitive crime. Research evidence indicates that getting drug misusers into treatment can considerably reduce both their illegal use of drugs and their offending behaviour. Identifying drug misusing offenders at every stage in the criminal justice system is now a prime objective of the crime reduction strategy and will make an important contribution to the overall drugs strategy.
29. The powers provided for in the Bill will build upon drug testing already being carried out through the Drug Treatment and Testing Order, provided for under sections 61-64 of the Crime and Disorder Act 1998, and drug testing in prison, carried out under section 16A of the Prison Act 1952.
30. The Bill provides for the compulsory drug testing of offenders and alleged offenders at various points of the criminal justice system. The new powers will allow for drug testing:
31. In addition, courts are to be given a new free-standing community sentence - the Drug Abstinence Order - and will be placed under an express duty to have regard to a laboratory-confirmed drug test when considering the exercise of their bail discretion.
32. The provisions apply to offenders and alleged offenders aged 18 and over.
Breach of community orders: Clause 4633. The revised National Standards for the supervision of offenders in the community, which will come into force on 1 April 2000, set the standards to which offenders are supervised in the community and the action that will be taken if they fail to comply with their sentence. The purpose of these Bill measures is to enhance compliance with community sentences by creating a statutory warning to reinforce the new National Standards. Offenders will be issued with a maximum of one warning for an unacceptable failure to comply with a community sentence in any 12 month period, rather than the current two warnings. A presumption of imprisonment is then introduced, unless there are exceptional circumstances, where the offender fails to heed the warning and is returned to court and found to be in breach of his order.
Part IV: General and SupplementalAccess to driver licensing records: Clause 5434. The Vehicle Crime Reduction Action Team established by the Home Secretary in September 1998 recommended that the police should have full access to the driver records via the Police National Computer. The measure in the Bill would enable police officers to have full and immediate access to those records.
School attendance: Clause 5535. The Social Exclusion Unit's report of May 1998 Truancy and Social Exclusion noted the important role that parents play in ensuring their children attend school and it stressed that the more serious the problems, the greater the need for more serious sanctions. In Autumn 1999, the Department for Education and Employment undertook a consultancy exercise entitled Tackling Truancy Together which included the proposal to raise the level of penalties for parents convicted of school attendance offences.
36. Section 444 of the Education Act 1996 provides that if a registered child of compulsory school age fails to attend school regularly, his parent is guilty of an offence. Currently a parent convicted under this section is liable to level 3 on the standard scale - a fine of up to £1000. Even when prosecuted, 80% of parents currently fail to attend court. The new provisions increase the maximum fine to level 4 - a fine of up to £2,500 - and introduce the possibility of a custodial sentence. The use of a custodial sentence is at the discretion of magistrates and is intended to ensure parents attend court.
COMMENTARY ON CLAUSESPart I: The New ServicesChapter I: National Probation Service for England and WalesClauses 1 and 2: The New Service37. Clause 1 makes general provision for the existence of the service and defines its purpose in terms of assisting courts in sentencing decisions and providing for the supervision and rehabilitation of offenders. Clause 2 sets out the overriding aims of the service, which are to protect the public, to reduce reoffending and provide for the proper punishment of offenders.
Clause 3: Functions of the Secretary of State38. This clause sets out the role of the Secretary of State who will have overarching responsibility for the National Probation Service for England and Wales and its funding.
Clauses 4 and 5: Local administration of the service39. At present there are 54 separate and independent probation services, each governed by a probation committee. The new service will operate as a single unified service for England and Wales.
40. The unified service will be administered on a local basis by local boards. This is to allow national priorities to be interpreted in the light of local circumstances and local needs. There will be 42 areas in all; 41 will match the police areas and a London service will cover the Metropolitan Police District and the City of London Police Area. This will reduce the current number of 54 probation areas, with 20 of the existing services amalgamating to form 8 new local areas. This is designed to improve the management of the criminal justice system by creating common boundaries, based on police areas, for the different criminal justice agencies. Clause 4 (6) allows the Secretary of State to alter the probation areas.
41. Clause 5 describes the functions of the local boards. These will include the employment of staff, and may also include contracting with partner organisations (other boards, private sector companies, voluntary organisations or individuals) for the provision of services. They will be able to provide hostel accommodation for people who are on bail, people under supervision, people released on licence from prison and people who accept the need to live in a hostel on a voluntary basis because of the nature of their offending.
42. Clause 5(4) allows the staff employed by boards to work with other agencies in their local area on crime reduction, crime prevention and assisting victims of crime. This will include work on local crime reduction strategies undertaken under the provisions of the Crime and Disorder Act 1998 which will require the Boards of the new Service to contribute to the development and implementation of a crime reduction strategy for the local area.
43. Clause 5(8) gives the Secretary of State the responsibility for determining whether a local board has made sufficient provision to meet its responsibilities.
Clauses 6 and 7: The Inspectorate44. Clause 6 maintains the current arrangements under which Her Majesty's Chief Inspector of Probation and other members of the inspectorate of probation hold office, but changes their title. Clause 7 describes the functions of the inspectorate who will be required to inspect the work of each local board against criteria determined by the Secretary of State and to report to the Secretary of State on each inspection, within a given timescale and on a consistent basis with an agreed format. The Secretary of State will be able to add other functions relating to the supervision, punishment and rehabilitation of offenders in the community. The Chief Inspector will continue to advise the Home Secretary on particular problems that arise, and on personnel matters. The Secretary of State will be able to give additional functions to the Chief Inspector which will enable him to inspect partner organisations, for example, the Venture Trust, Langley House, National Association for Care and Resettlement of Offenders. It will also enable the Home Secretary to call for reports where he has concerns about the performance of a service or the people he has appointed to manage the service.
Clause 8: Support Services - Powers to contract out45. This clause gives the Home Secretary the power to make an order to contract out work undertaken by a local board. This power may be exercised in relation to one or more parts of a board's responsibilities. In contrast to the contracting out power in clause 5, this clause is designed to enable the contracting out of support services which are common to all boards such as the provision of information technology and the administration of the payroll.
46. This power would be available for use where greater efficiency or better value for money could be achieved; for instance if a particular activity could be managed more cost effectively by organising it on a national or regional basis. Arrangements for contracting out all the functions of a board are dealt with under clause 10.
Clause 9: Approved hostels47. This clause gives the Secretary of State the power to approve the suitability and building of hostels and other premises for the accommodation of the groups of people described in clause 5 (3), to make regulations for the management and inspection of those premises, and to make payments for the maintenance or improvement of such premises.
Clause 10: Default powers48. Clause 10 gives the Secretary of State the power to make a management order which can modify the composition of a local board by:-
49. Although the composition of the board would change in such circumstances, the board as a legal entity would remain the same with all its duties and responsibilities under the Bill.
50. It is intended that this power would only be used as a last resort where the Secretary of State concluded that a board is failing to perform its functions to a satisfactory standard, or where the board had made arrangements which did not offer good value for money, and the normal processes of performance management had been unable to achieve the required improvement.
Chapter II : Children and Family Court Advisory and Support Service (CAFCASS)Clause 11: Establishment of CAFCASS51. Clause 11 makes a general provision for the creation of the new Children and Family Court Advisory and Support Service (CAFCASS), as a body corporate.
Clause 12: The principal functions of CAFCASS52. Clause 12 describes the functions of CAFCASS, as described in paragraph 25 of these notes. Subsection (3) provides for regulations for grants to be paid for the furthering of the performance of any functions of CAFCASS.
Clause 13: Other powers of CAFCASS53. Clause 13 sets out the other powers that CAFCASS may use to perform its functions, such as to commission or assist the conduct of research. Sub-section (1) will allow CAFCASS to enter into arrangements with voluntary and other organisations to contract out some of its work, provided that it is satisfied that the work will be done efficiently, to the required standard and cost-effectively. Subsection (4) also provides that CAFCASS will enter into arrangements with individuals including self-employed people.
Clause 14: Provision of staff or services to other organisations54. Clause 14 gives CAFCASS the power to provide services to other organisations.
Clause 15: Right to conduct litigation and right of audience55. Clause 15 changes the position on litigation and cross-examination. It grants CAFCASS officers power to conduct litigation on the part of the child. This would be used for example to permit officers to conduct litigation in circumstances where the Official Solicitor would do so now. It also grants officers, authorised by the service, rights of audience in the magistrates' courts and county courts.
Clause 16: Cross-examination of officers of the Service56. Clause 16 sets out that all CAFCASS officers may be subject to cross-examination, except when exercising the rights given in clause 15.
Clause 17: Inspection57. Clause 17 amends Section 62 of the Justices of the Peace Act 1997 by inserting a new clause 3A in order to extend the remit of the Magistrates' Court Inspectorate to include inspecting of CAFCASS to monitor and report on its activities. A new subsection (2A) of section 63 of the 1997 Act sets out a general right of inspection. It will consist of a right of entry to any premises occupied by the Service and also a right to inspect and take copies of any records kept by the Service relating to the performance of its function.
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