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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 | 5 |
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— | 10 |
(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. | 15 |
(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 | 20 |
(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. | 25 |
(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 | 30 |
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. | 35 |
(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 | 40 |
(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 | 45 |
Disorder Act 1998 (c. 37). | |
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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 | 5 |
(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 | 10 |
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 | 15 |
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 | 20 |
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 | 25 |
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. | 30 |
(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 | 35 |
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). | 40 |
(3) Such a notice may be given either— | |
(a) by post, or | |
(b) when the person returns to the police station to answer bail. | |
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(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 | 5 |
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 | 10 |
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 | 15 |
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 | 20 |
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”. | 25 |
(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 | 30 |
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 | 35 |
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.” | 40 |
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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) | 10 |
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 | 15 |
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, | 20 |
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— | 25 |
“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); | 30 |
(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 | 35 |
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— | 40 |
(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 | |
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(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 | 5 |
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). | 10 |
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— | 15 |
(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 | 20 |
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 | 25 |
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— | 30 |
“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 | 35 |
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— | 40 |
(a) whether the sentence which a magistrates’ court would have | |
power to impose for the offence would be adequate; and | |
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(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 | 10 |
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 | 15 |
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 | 20 |
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 | 25 |
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. | 30 |
(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 | 35 |
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 | 40 |
(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 | 45 |
summarily for the offence; | |
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(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 | 10 |
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. | 15 |
(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 | 20 |
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— | 25 |
(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— | 30 |
(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) | 35 |
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 | 40 |
(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 | 45 |
summary trial of the information; and | |
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