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Criminal Justice Bill


Criminal Justice Bill
Schedule 2 — Charging or release of persons in police detention

    155

 

       37B            Consultation with the Director of Public Prosecutions

              (1)             Where a person is released on bail under section 37(7)(a) above, an

officer involved in the investigation of the offence shall, as soon as is

practicable, send to the Director of Public Prosecutions such

information as may from time to time be specified in written

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guidance issued by the Director of Public Prosecutions.

              (2)             The Director of Public Prosecutions shall decide whether there is

sufficient evidence to charge the person with an offence.

              (3)             If he decides that there is sufficient evidence to charge the person

with an offence, he shall decide—

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                    (a)                   whether or not the person should be charged and, if so, the

offence with which he should be charged, and

                    (b)                   whether or not the person should be given a caution and, if

so, the offence in respect of which he should be given a

caution.

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              (4)             The Director of Public Prosecutions shall give written notice of his

decision to an officer involved in the investigation of the offence.

              (5)             If his decision is—

                    (a)                   that there is not sufficient evidence to charge the person with

an offence, or

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                    (b)                   that there is sufficient evidence to charge the person with an

offence but that the person should not be charged with an

offence or given a caution in respect of an offence,

                              a custody officer shall give the person notice in writing that he is not

to be prosecuted.

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              (6)             If the decision of the Director of Public Prosecutions is that the

person should be charged with an offence, or given a caution in

respect of an offence, the person shall be charged or cautioned

accordingly.

              (7)             But if his decision is that the person should be given a caution in

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respect of the offence and it proves not to be possible to give the

person such a caution, he shall instead be charged with the offence.

              (8)             For the purposes of this section, a caution is to be given to a person

when he is in police detention after returning to a police station to

answer bail or is otherwise in police detention at a police station.

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              (9)             For the purposes of this section, a person is to be charged with an

offence either—

                    (a)                   when he is in police detention after returning to a police

station to answer bail or is otherwise in police detention at a

police station, or

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                    (b)                   in accordance with section 24 of the Criminal Justice Act 2003.

              (10)            In this section “caution” includes—

                    (a)                   a conditional caution within the meaning of Part 3 of the

Criminal Justice Act 2003, and

                    (b)                   a warning or reprimand under section 65 of the Crime and

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Disorder Act 1998 (c. 37).

 

 

Criminal Justice Bill
Schedule 2 — Charging or release of persons in police detention

    156

 

       37C            Breach of bail following release under section 37(7)(a)

              (1)             This section applies where—

                    (a)                   a person released on bail under section 37(7)(a) above or

subsection (2)(b) below is arrested under section 46A below,

and

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                    (b)                   at the time of his detention following that arrest at the police

station mentioned in section 46A(2) below, notice under

section 37B(4) above has not been given.

              (2)             The person arrested—

                    (a)                   shall be charged with the offence for which he is treated as

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arrested under section 34(7) above, or

                    (b)                   shall be released without charge, either on bail or without

bail.

              (3)             A person arrested under section 46A(1) below shall not be charged

under subsection (2)(a) above unless a custody officer at the police

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station mentioned in section 46A(2) below—

                    (a)                   determines that he has before him sufficient evidence to

charge the person with the offence in question, and

                    (b)                   is of the opinion that the person had no reasonable cause for

failing to attend at the police station at the time appointed for

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him to do so.

              (4)             A person arrested under section 46A(1A) below shall not be charged

under subsection (2)(a) above unless a custody officer at the police

station mentioned in section 46A(2) below—

                    (a)                   determines that he has before him sufficient evidence to

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charge the person with the offence in question, and

                    (b)                   is of the opinion that the person has broken any of the

conditions of bail and had no reasonable cause for doing so.

              (5)             Before a person is charged under subsection (2)(a) above, reasonable

steps shall be taken to consult the Director of Public Prosecutions.

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              (6)             A person released on bail under subsection (2)(b) above shall be

released on bail subject to the same conditions (if any) which applied

immediately before his arrest.

       37D            Release under section 37(7)(a): further provision

              (1)             Where a person is released on bail under section 37(7)(a) or section

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37C(2)(b) above, a custody officer may appoint a different time, or a

an additional time, at which the person is attend at the police station

to answer bail.

              (2)             The custody officer shall give the person notice in writing of the

exercise of the power under subsection (1).

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              (3)             Such a notice may be given either—

                    (a)                   by post, or

                    (b)                   when the person returns to the police station to answer bail.

 

 

Criminal Justice Bill
Schedule 2 — Charging or release of persons in police detention

    157

 

              (4)             The exercise of the power under subsection (1) shall not affect the

conditions (if any) to which bail is subject.

              (5)             Where a person released on bail under section 37(7)(a) or 37C(2)(b)

above returns to the police station to answer bail or is in police

detention at that station following his arrest under section 46A

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below, he may be kept in police detention to enable him to be dealt

with in accordance with section 37B or 37C above or to enable the

power under subsection (1) above to be exercised.

              (6)             If the person is not in a fit state to enable him to be so dealt with or to

enable that power to be exercised, he may be kept in police detention

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until he is.”

  4        In section 46A (power of arrest for failure to answer police bail) after

subsection (1) insert—

              “(1A)                A person who has been released on bail under section 37(7)(a) or

37C(2)(b) above may be arrested without warrant by a constable if

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the constable has reasonable grounds for suspecting that the person

has broken any of the conditions of bail.”

  5       (1)      Section 47 (bail after arrest) is amended as follows.

          (2)      In subsection (1) (release on bail under Part 4 shall be release on bail granted

in accordance with certain provisions of the Bail Act 1976) for “Subject to

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subsection (2) below” there is substituted “Subject to the following

provisions of this section”.

          (3)      In subsection (1A) (bail conditions may be imposed when a person is

released under section 38(1)) after “section” there is inserted “37(7)(a) or

section”.

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          (4)      After that subsection there is inserted—

              “(1B)                No application may be made under section 5B of the Bail Act 1976 if

a person is released on bail under section 37(7)(a) or 37C(2)(b) above.

              (1C)                Subsections (1D) to (1G) below apply where a person released on bail

under section 37(7)(a) or 37C(2)(b) above is on bail subject to

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conditions.

              (1D)                The person shall not be entitled to make a request under section 3(8)

of the Bail Act 1976 or an application under section 43B of the

Magistrates’ Courts Act 1980.

              (1E)                 A magistrates’ court may, on an application by or on behalf of the

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person, vary the conditions of bail; and in this subsection “vary” has

the same meaning as in the Bail Act 1976.

              (1F)                Where a magistrates’s court varies the conditions of bail under

subsection (1E) above, that bail shall not lapse but shall continue

subject to the conditions as so varied.”

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Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc

    158

 

Schedule 3

Section 35

 

Allocation of cases triable either way, and sending cases to the Crown Court

etc

The Magistrates’ Courts Act 1980

  1        The Magistrates’ Courts Act 1980 (c. 43) is amended as follows.

5

  2       (1)      Section 17A (initial indication as to plea) is amended as follows.

          (2)      For paragraph (b) of subsection (4) there is substituted—

                    “(b)                      he may (unless section 17D(2) below were to apply) be

committed to the Crown Court under section 3 or (if

applicable) 3A of the Powers of Criminal Courts (Sentencing)

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Act 2000 if the court is of such opinion as is mentioned in

subsection (2) of the applicable section.”

          (3)      After subsection (9) there is inserted—

              “(10)                If in respect of the offence—

                    (a)                   the court receives a notice under section 51B or 51C of the

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Crime and Disorder Act 1998 (which relate to serious or

complex fraud cases and to certain cases involving children

respectively); or

                    (b)                   the court sends the accused to the Crown Court for trial

under section 51(3) or 51A(6) of that Act,

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                              the preceding provisions of this section and the provisions of section

17B below shall not apply, and the court shall proceed in relation to

the offence in accordance with section 51 or, as the case may be,

section 51A of that Act.”

  3        After section 17C there is inserted—

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       “17D            Maximum penalty under section 17A(6) or 17B(2)(c) for certain

offences

              (1)             If—

                    (a)                   the offence is a scheduled offence (as defined in section 22(1)

below);

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                    (b)                   the court proceeds in relation to the offence in accordance

with section 17A(6) or 17B(2)(c) above; and

                    (c)                   the court convicts the accused of the offence,

                              the court shall consider whether, having regard to any

representations made by the prosecutor or the accused, the value

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involved (as defined in section 22(10) below) appears to the court to

exceed the relevant sum (as specified for the purposes of section 22

below).

              (2)             If it appears to the court clear that the value involved does not exceed

the relevant sum—

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                    (a)                   subject to subsection (5) below, the court shall not have

power to impose on the accused in respect of the offence

imprisonment for more than 3 months or a fine greater than

level 4 on the standard scale; and

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc

    159

 

                    (b)                   section 3 of the Powers of Criminal Courts (Sentencing) Act

2000 shall not apply as regards that offence.

              (3)             Subsections (9) to (12) of section 22 below shall apply for the

purposes of this section as they apply for the purposes of that section

(reading the reference to subsection (1) in section 22(9) as a reference

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to subsection (1) of this section).

              (4)             In subsection (2) above “fine” includes a pecuniary penalty but does

not include a pecuniary forfeiture or pecuniary compensation.

              (5)             Subsection (2)(a) above does not apply to an offence under section

12A of the Theft Act 1968 (aggravated vehicle-taking).

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       17E            Functions under sections 17A to 17D capable of exercise by single

justice

              (1)             The functions of a magistrates’ court under sections 17A to 17D

above may be discharged by a single justice.

              (2)             Subsection (1) above shall not be taken as authorising—

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                    (a)                   the summary trial of an information (otherwise than in

accordance with section 17A(6) or 17B(2)(c) above); or

                    (b)                   the imposition of a sentence,

                              by a magistrates’ court composed of fewer than two justices.”

  4        In section 18 (initial procedure on information against adult for offence

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triable either way), for subsection (5) there is substituted—

              “(5)                The functions of a magistrates’ court under sections 19 to 23 below

may be discharged by a single justice, but this subsection shall not be

taken as authorising—

                    (a)                   the summary trial of an information (otherwise than in

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accordance with section 20(7) below); or

                    (b)                   the imposition of a sentence,

                              by a magistrates’ court composed of fewer than two justices.”

  5        For section 19 (court to begin by considering which mode of trial appears

more suitable) there is substituted—

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       “19            Decision as to allocation

              (1)             The court shall decide whether the offence appears to it more

suitable for summary trial or for trial on indictment.

              (2)             Before making a decision under this section, the court—

                    (a)                   shall give the prosecution an opportunity to inform the court

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of the accused’s previous convictions (if any); and

                    (b)                   shall give the prosecution and the accused an opportunity to

make representations as to whether summary trial or trial on

indictment would be more suitable.

              (3)             In making a decision under this section, the court shall consider—

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                    (a)                   whether the sentence which a magistrates’ court would have

power to impose for the offence would be adequate; and

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc

    160

 

                    (b)                   any representations made by the prosecution or the accused

under subsection (2)(b) above,

                              and shall have regard to any allocation guidelines (or revised

allocation guidelines) issued as definitive guidelines under section

153 of the Criminal Justice Act 2003.

5

              (4)             Where—

                    (a)                   the accused is charged on the same occasion with two or

more offences; and

                    (b)                   it appears to the court that they constitute or form part of a

series of two or more offences of the same or a similar

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character,

                              subsection (3)(a) above shall have effect as if references to the

sentence which a magistrates’ court would have power to impose for

the offence were a reference to the maximum aggregate sentence

which a magistrates’ court would have power to impose for all of the

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offences taken together.

              (5)             In this section—

                    (a)                   any reference to a previous conviction is to be read as a

reference to a previous conviction by a court in Great Britain;

                    (b)                   a conviction in respect of which a probation order was made

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before 1st October 1992 (which by virtue of section 13 of the

Powers of Criminal Courts Act 1973 would otherwise not be

a conviction for the purposes of this section) is to be treated

as a conviction for those purposes; and

                    (c)                   a conviction in respect of which an order discharging the

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offender absolutely or conditionally was made at any date

(which by virtue of section 14 of the Powers of Criminal

Courts (Sentencing) Act 2000 would otherwise not be a

conviction for the purposes of this section) is to be treated as

a conviction for those purposes.

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              (6)             If, in respect of the offence, the court receives a notice under section

51B or 51C of the Crime and Disorder Act 1998 (which relate to

serious or complex fraud cases and to certain cases involving

children respectively), the preceding provisions of this section and

sections 20, 20A and 21 below shall not apply, and the court shall

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proceed in relation to the offence in accordance with section 51(1) of

that Act.”

  6        For section 20 (procedure where summary trial appears more suitable) there

is substituted—

       “20            Procedure where summary trial appears more suitable

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              (1)             If the court decides under section 19 above that the offence appears

to it more suitable for summary trial, the following provisions of this

section shall apply (unless they are excluded by section 23 below).

              (2)             The court shall explain to the accused in ordinary language—

                    (a)                   that it appears to the court more suitable for him to be tried

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summarily for the offence;

 

 

Criminal Justice Bill
Schedule 3 — Allocation of cases triable either way, and sending cases to the Crown Court etc

    161

 

                    (b)                   that he can either consent to be so tried or, if he wishes, be

tried on indictment; and

                    (c)                   in the case of a specified offence (within the meaning of

section 204 of the Criminal Justice Act 2003), that if he is tried

summarily and is convicted by the court, he may be

5

committed for sentence to the Crown Court under section 3A

of the Powers of Criminal Courts (Sentencing) Act 2000 if the

committing court is of such opinion as is mentioned in

subsection (2) of that section.

              (3)             The accused may then request an indication (“an indication of

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sentence”) of whether a custodial sentence or non-custodial sentence

would be more likely to be imposed if he were to be tried summarily

for the offence and to plead guilty.

              (4)             If the accused requests an indication of sentence, the court may, but

need not, give such an indication.

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              (5)             If the accused requests and the court gives an indication of sentence,

the court shall ask the accused whether he wishes, on the basis of the

indication, to reconsider the indication of plea which was given, or is

taken to have been given, under section 17A or 17B above.

              (6)             If the accused indicates that he wishes to reconsider the indication

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under section 17A or 17B above, the court shall ask the accused

whether (if the offence were to proceed to trial) he would plead

guilty or not guilty.

              (7)             If the accused indicates that he would plead guilty the court shall

proceed as if—

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                    (a)                   the proceedings constituted from that time the summary trial

of the information; and

                    (b)                   section 9(1) above were complied with and he pleaded guilty

under it.

              (8)             Subsection (9) below applies where—

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                    (a)                   the court does not give an indication of sentence (whether

because the accused does not request one or because the court

does not agree to give one);

                    (b)                   the accused either—

                           (i)                          does not indicate, in accordance with subsection (5)

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above, that he wishes; or

                           (ii)                         indicates, in accordance with subsection (5) above,

that he does not wish,

                                          to reconsider the indication of plea under section 17A or 17B

above; or

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                    (c)                   the accused does not indicate, in accordance with subsection

(6) above, that he would plead guilty.

              (9)             The court shall ask the accused whether he consents to be tried

summarily or wishes to be tried on indictment and—

                    (a)                   if he consents to be tried summarily, shall proceed to the

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summary trial of the information; and

 

 

 
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