House of Commons - Explanatory Note
Criminal Justice And Court Services Bill - continued          House of Commons

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Chapter III : General

Clause 19: Property Transfers

58. This clause provides the power for either the Secretary of State or the Lord Chancellor to set up a scheme to transfer to the Crown property and liabilities from probation committees, the Receiver for the Metropolitan Police District, who owns property on behalf of the Inner London Probation Service, local authorities and the Official Solicitor. The property may then be transferred from the Crown to a new organisation. This provision will make possible the central ownership and management, by the Secretary of State, of the current probation service estate which amounts to approximately 1100 buildings and will allow the Secretary of State to transfer the elements of the estate related to Family Court Welfare Officers to CAFCASS. It will also enable the transfer to CAFCASS of property currently owned by local authorities, probation committees and the Official Solicitor.

Clauses 20 and 21: Transfer of staff and effect of transfer

59. Clauses 20 and 21 allow the Secretary of State and Lord Chancellor to make schemes for transferring staff into the new Services. These schemes would cover the transfer of staff from a probation committee to a local board or to CAFCASS, and the transfer of relevant local authority staff and staff of the official solicitor's office to CAFCASS. The clauses contain provision which gives staff the right to maintain their terms and conditions of service when they transfer to their new employers.

Clause 22: Effect of transfer of chief probation officers

60. Clause 22 makes provision for the effect of the transfer of people currently employed as chief probation officers into post-holders appointed as chief officers in area boards. It gives those who are appointed the right to include their previous service as a chief probation officer as a period of continuous employment and to transfer their terms and conditions of employment, so far as they are appropriate to the new post. Paragraph 3(5) of Schedule 1 gives the chief officer the same employment rights as he would have under the Employment Rights Act 1996 as if he were in Crown Employment, for instance rights against unfair dismissal. Under clause 22(7), chief probation officers who are not appointed as chief officers are deemed to have been made redundant.

Part II: Protection of Children

Clauses 24 and 25: Meaning of "offence against a child"

61. Clause 24 establishes the circumstances under which an individual will be deemed to have committed an offence against a child. Subsection (1) sets out those circumstances, according to the list of offences and circumstances in Schedule 4. Subsection (2) allows the Secretary of State to alter Schedule 4, subject to the agreement of Parliament by affirmative resolution order. The Secretary of State can thereby ensure that the legislation remains comprehensive in scope, covering all (and potentially new) circumstances in which an individual commits a serious offence against a child.

62. Clause 25 ensures that an individual charged with or convicted of an armed forces offence equivalent to an offence against a child is treated as an individual under clause 24, and that members of the armed forces serving overseas are also caught by the legislation.

Clauses 26, 27 and 28: Disqualification from working with children

63. Clause 26 sets out the conditions under which a court is required to make an order disqualifying an adult from working with children. Subsections (5) and (6) state the circumstances when a court might not make such an order, and require a record of the reasons why no such order was made. Such disqualification orders are not available in a Magistrates' Court.

64. Clause 27 makes similar provisions to those in clause 26, but for juveniles (those aged under 18 at the time when they commit the offence). However, subsection (6) of clause 26 allows the court not to make an order for an adult only when it is satisfied that further offences against children are unlikely. In contrast, in the case of a juvenile - subsection (4) of clause 27 - the court may make an order only if they deem it likely that the juvenile will re-offend against children. An adult must therefore be disqualified unless the court is satisfied that he is unlikely to re-offend, whereas a court must assume that a juvenile will not re-offend, unless they are satisfied that there is sufficient evidence to the contrary, in which case it is required to disqualify the juvenile.

65. Clause 28 establishes the meaning of 'the court', a 'qualifying sentence', and a 'relevant order', and other key phrases used in clauses 26 and 27. Subsection (4) also clarifies the issue of the determination of an offender's age.

Clause 29: Appeals

66. Clause 29 provides for appeal against the disqualification order.

Clause 30: Review of disqualification

67. Clause 30 entitles an individual to a review of the disqualification order by a Tribunal set up under Section 9 of, and the Schedule to, the Protection of Children Act 1999, as set out in Schedule 6. The provisions will also apply to those banned by the Secretary of State.

Clause 31: Conditions for application for review

68. Clause 31 sets out the circumstances and conditions under which a disqualified individual might apply to the Tribunal to have the disqualification lifted. Subsections (3), (4) and (6) set out how long either an adult or a juvenile who is disqualified must wait (ten and five years respectively) before he can apply to the Tribunal for the disqualification to be lifted. Subsections (3)(b) and (4)(b) require that the same period must pass after an unsuccessful application for review, before a further application can be made.

69. Subsection (5) of clause 31 requires that the individual first prove to the Tribunal that his circumstances have changed sufficiently to warrant a review of the disqualification order. Thus someone who has successfully reared his own children, or once committed an act of violence towards a child when an alcoholic but can now demonstrate he is free of this addiction, might be entitled to a review. The individual must then demonstrate to the Tribunal that this change of circumstances is such that he is no longer a risk to children, and therefore need no longer be subject to disqualification from working with children, before the Tribunal can lift the disqualification.

Clauses 32-35: Work in regulated positions

70. Clause 32 provides for the offence of seeking, offering, accepting, or continuing to, work with children while under a disqualification order. An individual commits an offence if he knowingly seeks etc. to work with children in a regulated position while disqualified:

  • by inclusion (other than provisionally) on the list held by the Department of Health, of those considered unsuitable to work with children, under the Protection of Children Act 1999;

  • by inclusion on 'List 99', on the grounds of not being a fit person to be employed as a teacher or in certain other areas of education under the Education Reform Act 1988, as amended by the Protection of Children Act 1999;

  • by inclusion on any list kept by the Secretary of State or National Assembly of Wales of persons disqualified under section 470 or 471 of the Education Act 1996 (as being amended by the Care Standards Bill presently before Parliament) on grounds that they are unsuitable to work with children;

  • by a disqualification order made under this part.

71. An individual also commits an offence if he knowingly offers work in a regulated position to a disqualified person. . This is intended to cover the individual who knows someone is disqualified, but nevertheless offers him work in a regulated position.

72. Subsection (3) provides the defence for an individual who seeks to work with children that he neither knew, nor could be reasonably expected to know, that he was himself disqualified from such work. The provision 'be reasonably expected to know' is intended to ensure that an individual cannot escape liability by, for example, moving house to prevent the notification of a disqualification by the Secretary of State being served on him.

73. Subsection (6) sets out the penalty that will follow if an individual is convicted of either offence.

74. Clause 33 provides a definition of 'working with children' that encompasses all the positions and roles from which those subject to disqualification will be excluded. The definition is deliberately wide-ranging, in order to provide protection for children across as broad an area as possible. However it seeks to ensure that casual contact with children which does not form part of the normal duties of the position or where there is no element of care involved (for example, the supermarket assistant) is excluded, except in some particular areas identified in the Bill. Under clause 35 a child is defined as a person under 18. The only exception to this is in subsection (1)(e) of clause 33 in relation to children in work where the age limit is under 16. This is intended to ensure that those who, for example, supervise children who have left school and are in regular work, are not covered by the definition. Subsection (1) of clause 33 identifies the eight main areas of 'regulated positions' to be covered by the disqualification. Subsections (2) to (12) of clause 33 go on to clarify some of these areas:

  • subsection (2) clarifies subsection (1)(a) by defining the nature of the establishment in which the regulated position is held; these are the areas of work in which it is considered right that all members of staff, whether carers or ancillary staff, should be included;

  • subsection (3) clarifies subsection (1)(b) by ensuring that it does not apply to any parts of the premises where children are not looked after, or at time when children are not present. This prevents, for example, the need to check workers in another part of a building in which a holiday crSche is held, or the cleaners who clean the premises when the children are not present;

  • subsections (4) and (5) clarify subsections (1)(c) and (1)(d) by ensuring that they do not apply where the contact is made in the course of a child's employment;

  • subsection (6 defines subsection (1)(g, listing positions or roles not otherwise caught by the definition, such as members of a school's governing body and charitable trustees; these positions are ones which may provide privileged access to children and imply that the individual concerned is a person who can be properly trusted with children, and are therefore included even if contact with children is not a regular part of the position. Subsection (7) further qualifies subsection (6) for the purposes of applying these measures to Northern Ireland;

  • subsection (8) clarifies subsection (1)(h) by explaining what is meant by the supervision or management of an individual; and,

  • subsections (9) to (12) provide further definition and clarification where necessary.

75. Subsection (13) gives the Secretary of State power to amend the definition of a 'regulated position' by affirmative resolution order, should it become apparent that - perhaps because new positions are created or developed - there are positions or roles not covered by this legislation that should be caught.

76. Clause 34 provides a power for the Secretary of State to ensure that individuals who, under the law of Scotland or Northern Ireland are subject to a prohibition or disqualification which corresponds to the means of disqualification provided for by clause 32, are subject to this part i.e. disqualified from working with children in England and Wales. Statutory provisions are not yet in place in Scotland or Northern Ireland. This clause is intended to allow the protections provided by the integrated system to be available on a UK basis in due course.

77. Clause 35 provides definitions of terms.

Part III: Dealing with Offenders

Chapter I: Renaming certain community orders, new community orders, breach of community order, miscellaneous

Clauses 36, 37 and 38: Renaming certain community orders

78. Clauses 33-35 rename probation orders, community service orders and combination orders as community rehabilitation orders, community punishment orders and community punishment and rehabilitation orders respectively.

Clause 39: Exclusion orders

79. Clause 39 amends the Powers of Criminal Court (Sentencing) Act to make provision for 'exclusion orders'. An exclusion order is similar in many respects to a 'curfew order'. However, whereas a curfew order requires an offender to remain at a specified place, an exclusion order prohibits an offender from entering a specified place or area for a specified period of not more than a year (three months for a juvenile). Different areas or places can be specified for different periods. An exclusion order must take account of the offender's religious beliefs, times of employment or education, and of any other community orders to which the offender is subject.

80. When making the exclusion order, the effect and possible consequences of the order, together with the court's power to review the order, must be explained to the offender in ordinary language.

81. Express provision is made for the offender's compliance with the exclusion order to be monitored electronically. Breach, revocation, and amendment of the exclusion order is provided for in the same way as for curfew orders (see also Schedule 6 below). The Secretary of State is empowered to make rules for the regulation of the monitoring regime of offenders subject to exclusion orders, and of the functions of the persons responsible for monitoring them. The Secretary of State may also make an order directing that the period of exclusion orders be changed, or may add to the list of activities with which the requirements of an order must not conflict.

Clause 40: Drug Abstinence Orders

82. Clause 40 defines a Drug Abstinence Order as requiring the offender to abstain from misusing specified Class A drugs and to undertake a drug test on instruction.

83. It gives the power to the courts to make a drugs abstinence order where the offender is convicted of a trigger offence (see note on schedule 5), or the court feels that Class A drug misuse caused or contributed to the offence. The offender must be aged 18 years and over and be dependent on, or have a propensity to misuse, specified Class A drugs.

84. The clause allows for the court to decide the length of the order, between a minimum of 6 months and a maximum of three years.

85. In addition to setting out the provisions as to the supervision of orders, the clause also sets out provisions for dealing with failures to comply with the requirements of such orders, under Schedule 3 of the Powers of Criminal Courts (Sentencing) Act 2000.

86. The clause also provides the Secretary of State with an order making power to amend the minimum and maximum period of the drug abstinence order.

Clause 41: Pre-sentence drug testing

87. When the court is considering passing a community sentence, clause 41 provides powers to require a convicted offender, aged 18 and over, to undertake a drug test.

Clause 42: Community Sentences: drug abstinence requirements

88. Clause 42 sets out drug abstinence requirements of community sentences. It amends section 42 of the Powers of Criminal Courts (Sentencing) Act 2000 in order to require the courts to include a drugs abstinence requirement where the offender:

  • is aged 18 or over;

  • is dependent on, or has a propensity to misuse specified Class A drugs; and

  • has committed a trigger offence (see note on schedule 5)

89. If the offender has been charged with a non-trigger offence, the courts may include an abstinence requirement if the offender:

  • is aged 18 or over;

  • is dependent on, or has a propensity to misuse specified Class A drugs; and

  • the misuse by the offender of any specified class A drug caused or contributed to the offence.

90. Drug abstinence requirements may not be included where a community sentence already includes an abstinence requirement, or where a community order includes a Drug Treatment and Testing Order (DTTO) or a Drug Abstinence Order (DAO).

Clause 43: Community Sentences: curfew requirements

91. Subparagraph (1) (of the new paragraph 7) makes provision for community rehabilitation to include a curfew requirement. Subparagraph (2) provides for a requirement that the offender remain at a particular place for between two and twelve hours a day, for a maximum period of six months. The order may specify different curfew addresses or different periods of curfew on different days.

92. Subparagraph (4) provides that, as with the curfew order, account must be taken of the offender's religious beliefs, times of employment or education and of any other community orders to which the offender is subject.

93. Subparagraph (5) states that a community rehabilitation that includes a curfew requirement must include provision for a responsible officer who will monitor whether or not the offender complies with the curfew requirements. The responsible officer must be a person as described in an order made by the Secretary of State.

94. Subparagraph (6) prevents a court from adding a curfew requirement to a community rehabilitation order or a community punishment and rehabilitation order, unless the Secretary of State has notified it that the power to impose the requirement is currently available in the area where the curfew address is situated. This will enable these provisions to be piloted.

95. Subparagraph (8) requires courts to obtain and consider information about the curfew address - which must include information about the attitude of other people likely to be affected by the offender's enforced presence there - before they impose a curfew requirement. (In the case of offenders under 16, subparagraph (9) requires the court to obtain and consider details of the offender's family circumstances, and the likely effect of the curfew on them).

96. Subparagraphs (10) and (11) permit the Secretary of State to make rules/orders regulating the functions of the responsible officer, and to add to the list of restrictions that must - so far as is practicable - apply to a curfew requirement (such as not conflicting with the offender's working hours).

Clause 44: Community Sentences: exclusion requirements

97. Clause 44 is similar to clause 43, except that it allows a court to include an exclusion requirement in a community rehabilitation order or a community punishment and rehabilitation order. It differs from clause 43 in that:

  • under subparagraphs (1) and (2), an exclusion requirement may last for no more than one year and may operate continuously, or for periods specified in the order, and may specify different places from which the offender is to be excluded for different periods;

  • because electronic monitoring equipment must currently be installed at the place from which an offender is excluded before monitoring can be practicable, consent must be obtained before the monitoring requirement may be imposed, from anyone without whose consent that monitoring would not be practicable. For example, the consent of a victim from whose home the offender had been excluded would be required; and,

  • it is made clear that offenders may be excluded from an area as well as a particular place.

Clause 45: Monitoring of requirements in community rehabilitation orders

98. Clause 45 makes provision for a requirement for the electronic monitoring of any requirement of a community rehabilitation order. This provision might be used to require an offender to register his attendance at a particular place by means of a swipe card, for example. Subparagraphs (2) and (3) indicate and explain when a court might use these provisions.

99. It further provides an additional restriction on the electronic monitoring of an exclusion requirement, as at clause 44 above, regarding the need for consent of a victim to install monitoring equipment.

Clause 46: Breach of community orders: warning and punishment

100. Subsection (2) specifies the community orders to which the warning scheme will apply.

101. Subsection (3) places a duty on staff employed by local boards to issue a warning to an offender who has unacceptably failed to comply with the requirements of his order if the offender has not already been referred back to court for the failure. Where there is a second unacceptable failure to comply within 12 months, or six months in the case of a curfew order, the offender must be referred back to court for breach proceedings. The warning must be recorded. If two or more orders were imposed for the same offence, they will be considered as one order to which the warning scheme applies, i.e. that only one warning in total will be given in any 12 month period.

102. Subsection (4) requires a magistrates' court, unless there are exceptional circumstances, to impose a custodial sentence on an offender aged 18 or above if he is found to be in breach of a specified order. The maximum sentence will be three months unless the court takes the view that were it re-sentencing for the original offence it would impose a longer period of imprisonment. If so, the longer period will apply. Where the court finds the circumstances of the case to be exceptional, or where the breach involves an offender under the age of eighteen, then the existing discretionary sanctions available to the court will apply without the new presumption of imprisonment.

103. Subsection (5) places the same duty on the Crown Court.

104. Subsection (6) disapplies the warning and punishment measures to any failure to abstain from misusing specified drugs.

Clause 47: Regulation of community orders

105. Clause 47 provides for regulations relating to community sentences (community rehabilitation orders, community punishment orders and community punishment and rehabilitation orders). This will allow the Secretary of State to set standards for the delivery of these orders.

Chapter II: Miscellaneous

Clause 48: Testing persons in police detention

106. Clause 48 sets out the procedure for taking urine and non-intimate samples (e.g. oral saliva swabs) for the purposes of testing those charged with certain acquisitive and drugs offences for the presence of specified Class A drugs. The procedures are set out through insertions of new sections in the Police and Criminal Evidence Act 1984. Only those aged over 18 can be tested under these provisions.

107. The procedure for testing states that:

  • A test may be taken if a person has been charged with a "trigger offence" or;

  • a police officer of at least the rank of Inspector has reasonable grounds to suspect a link between the offence and the misuse of a specified Class A drug, and authorises the taking of the sample.

108. As well as setting out the procedure for testing, the clause provides for asking for consent to testing, and creates a new offence, with a penalty of up to three months in prison or a fine (not exceeding level 4 on the standard scale - currently £2,500), or both for failing without good cause to give a sample.

109. The Secretary of State may authorise people other than police officers to take samples, but only by affirmative resolution order approved by Parliament.

110. The clause also provides powers for a custody officer to detain someone for up to six hours, following charge, for the purposes of testing.

Clause 49: Right to bail: relevance of drug misuse

111. Clause 49 amends section 4 of the Bail Act 1976 in order to require courts to have regard to any evidence of drugs misuse when considering the granting of bail and/or any conditions of bail.

Clauses 50, 51 and 52: Conditions or requirements of release of prisoners - electronic monitoring and drug testing

112. Clause 50 will provide powers to include, in the licence of a prisoner being released from a custodial sentence, a requirement to submit to electronic monitoring. The Secretary of State currently has the power under section 37(4) of the Criminal Justice Act 1991 and section 31(2) of the Crime (Sentences) Act 1997 to attach conditions to a release licence. It is therefore already possible to impose curfew conditions, non-contact or exclusion conditions, and such conditions are used where appropriate. This clause will enable these types of condition to have the additional requirement of electronic monitoring attached to them. The new powers provided for in subsection 1(a) may therefore be used:

  • in relation to a licence requirement for the released person to observe a curfew or otherwise remain at a specified place, to use electronic monitoring to determine whether the curfew is observed;

  • in relation to a licence requirement for the released person not to enter a specified place or places, to use electronic monitoring to determine whether that person has entered the restricted area.

113. In addition, subsection 1(b) of Clause 50 introduces new powers enabling the "tracking" of those offenders released from prison on licence, by electronically monitoring their whereabouts, on a continuous basis, until the expiry of the licence or the removal of the condition, whichever happens first. Suitable technology to support "tracking" is not currently available, but is under development. These powers will therefore provide the basis for making use of "tracking" technology as and when it becomes available. Subsection (3) of Clause 50 establishes that these new powers should not be used to achieve the electronic monitoring of curfew conditions imposed on prisoners who are subject to the Home Detention Curfew scheme. Those powers are provided for separately in the Criminal Justice Act 1991, as amended by the Crime and Disorder Act 1998.

114. Clause 51 makes similar provision to those in clause 50 and clause 52 but applies to those released on a Notice of Supervision under section 65 of the Criminal Justice Act 1991, rather than a licence. This covers some young offenders under 22 years of age who are released from a young offender institution and those released under section 53 of the Children and Young Persons Act 1933. Clause 51 also stipulates that any electronic monitoring condition included in a Notice of Supervision must cease at the sentence expiry date - the date on which the person would (but for release) have served the custodial sentence in full.

115. The enforcement mechanism for breaches of electronically monitored conditions or drug testing requirements will be the same as that applying in respect of any other type of condition. The arrangements will be those already in place for, and determined by, the particular type of licence.

116. Clause 52 provides powers to impose drug testing conditions on those who are convicted of a trigger offence and are subsequently released from prison on licence.

Chapter III: Supplementary

Clause 53: Interpretation

117. Clause 53 provides the Secretary of State with an order making power to amend the list of "trigger offences" in Schedule 5. It also allows for the Secretary of State to specify, by order, which Class A drugs are to be tested for.

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Prepared: 16 March 2000