House of Commons - Explanatory Note
Criminal Justice Bill - continued          House of Commons

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86.     The Bill's effect in Wales is the same as in England. It contains no provisions which relate exclusively to Wales, or affect the National Assembly for Wales.



     Clause 1: Extension of powers to stop and search

87.     This clause extends the definition of prohibited articles under section 1 of the Police and Criminal Evidence Act 1984 (PACE) so that it includes articles made, adapted or intended for use in causing criminal damage. It does this by amending the list of offences in section 1(8) of PACE to include offences under section 1 of the Criminal Damage Act 1971. The effect is to give police officers power to stop and search where they have reasonable suspicion that a person is carrying, for example, a paint spray can which they intend to use in causing graffiti.

88.     Section 1(1) of the Criminal Damage Act 1971 makes it a criminal offence for a person to destroy or damage any property belonging to another without lawful excuse if he intends to destroy or damage that property or is reckless as to whether that property would be destroyed or damaged. Section 1(2) of that Act creates a related offence of destroying or damaging property with intent to endanger life.

     Clause 2: Warrants to enter and search

89.     This clause enhances the powers of persons authorised to accompany constables executing search warrants. Section 16(2) of PACE allows a search warrant to authorise persons to accompany any constable who is executing it.

90.     New subsection (2A) provides that any such person has the same powers as the constable whom he is accompanying in relation to executing the warrant and seizing anything to which the warrant relates. Subsection (2B) ensures that the person can only exercise these powers when he is accompanied by a constable and under that constable's supervision.

91.     This addition to PACE will ensure that persons who accompany police officers in the execution of warrants can play an effective role in searching and seizure. For example, it will often be necessary for someone who is expert in computing or financial matters to assist a constable in searching premises where particular types of records are likely to be found. This provision enables such experts to take an active role in carrying out searches and in seizing material, rather than being present in a merely advisory capacity.

     Clause 3: Bail elsewhere than at a police station

92.     This clause amends section 30 of PACE to enable police officers to grant bail to persons following their arrest without the need to take them to a police station. It provides the police with additional flexibility following arrest and the scope to remain on patrol where there is no immediate need to deal with the person concerned at the station. It is intended to allow the police to plan their work more effectively by giving them new discretion to decide exactly when and where an arrested person should attend at a police station for interview.

93.     Subsections (2) to (6) amend section 30 to take account of the new power to grant bail. The basic principle remains that a person arrested by a constable or taken into custody by a constable after being arrested by someone else must be taken by a constable to a police station as soon as practicable. However, this is subject to the provisions dealing with release either on bail or without bail.

94.     Subsection (4) expands existing section 30(7) of PACE so that an arresting constable must release the person concerned without bail if, before reaching the police station, the constable is satisfied that there are no grounds for keeping him under arrest or releasing him on bail under the new provisions.

95.     Subsection (5) replaces existing sections 30(10) and (11) of PACE to make it clear that a constable may delay taking an arrested person to a police station or releasing him on bail if that person's presence elsewhere is necessary for immediate investigative purposes. The reason for such delay must be recorded either on arrival at the police station or when the person is released on bail.

96.     Subsection (6) adapts some existing exclusions in section 30(12) of PACE to take account of the new arrangements for granting bail.

97.     Subsection (7) inserts a series of new sections into PACE which provide police officers with the framework of powers to bail following arrest. Section 30A provides that a constable has power to release a person on bail at any time prior to arrival at a police station. It specifies that the person released on bail must be required to attend a police station and that any police station may be specified for that purpose. No other requirement may be imposed on the person as a condition of bail.

98.     Section 30B requires that the constable must give the person bailed a written notice, prior to release, setting out the offence for which he was arrested and the ground on which that arrest was made. It must tell him that he is required to attend a police station and may specify the relevant station and time. If these details are not specified in that initial notice, they must be set out in a further notice provided to the person at a later stage. Police have the capacity to change the specified station or time if necessary and the person concerned must be given written notice of any such change.

99.     Section 30C contains various supplemental provisions. Section 30C(1) allows for the police to remove a requirement to attend a police station to answer bail, provided they give the person a written notice to that effect.

100.     Section 30C (2) makes it clear that where someone attends a non-designated police station to answer bail following arrest he must be released or taken to a designated police station within 6 hours of his arrival. Designated stations are those nominated by chief officers as suitable for detention purposes and are generally those stations with appropriate facilities to cater for extended periods of custody.

101.     Section 30C(3) specifies that nothing in the Bail Act 1976 applies in relation to bail under these new arrangements. The law which applies to this form of bail is set out in PACE as amended by the Bill.

102.     Section 30C(4) clarifies that a person who has been released under the new bail provisions may be rearrested if new evidence justifying that has come to light since their release.

103.     Section 30D deals with failure to answer to bail under the new arrangements. Section 30D(1) allows a constable to arrest without a warrant a person who fails to attend the police station at the specified time. Section 30D(2) states that a person arrested in such circumstances must be taken to a police station as soon as practicable after the arrest. Section 30D(3) defines the station relevant for the purposes of subsection (1) as whichever station is defined in the latest notice provided to the person concerned. Section 30D(4) clarifies that such an arrest for failure to answer to bail is to be treated as an arrest for an offence for certain PACE purposes.

Clause 4: Use of telephones for review of police detention

104.     This provision enables reviews of the continuing need for detention without charge carried out under section 40 of PACE to be conducted over the telephone rather than in person at the police station. Such reviews have to be carried out by an officer at least inspector rank and PACE currently only allows telephone reviews where it is not reasonably practicable for the reviewing officer to be present at the police station.

105.     New section 40A(1) allows a review to be carried out by means of a discussion over the telephone with one or more persons at the police station where the arrested person is held. In practice, the reviewing officer would normally speak to the custody officer at the police station, as well as to the detained person or their legal representative if they wanted to exercise their right to make representations about the continuing need for detention.

106.     New section 40A(2) specifies that telephone reviews are not applicable where it is reasonably practicable to carry out the review using video conferencing facilities in accordance with regulations under section 45A of PACE. Where such video conferencing facilities are readily available, it is appropriate that they should be used.

Clause 5: Limits on periods of detention without charge

107.     This provision extends the scope for an officer of at least superintendent rank to authorise detention without charge up to a maximum of 36 hours. As the law currently stands an officer of superintendent rank or above can extend detention without charge up to an overall period of 36 hours if satisfied that detention is necessary to secure, preserve or obtain evidence, that the investigation is being conducted diligently and expeditiously and that the relevant offence is a serious arrestable offence. Serious arrestable offences are defined in section 116 of PACE and are either offences which are specified to be "always serious" (e.g. murder) or offences which give rise to serious consequences.

108.     The amendment will allow detention to be extended for up to an overall period of 36 hours where the relevant offence is an arrestable offence, provided the other conditions are satisfied. Section 24 of PACE defines an arrestable offence as (a) any offence for which the sentence is fixed by law, (b) any offence for which a sentence of imprisonment of 5 years or more may be imposed or (c) any offence specifically listed in Schedule 1A to PACE.

109.     This broadened capacity for extended detention without charge will assist the police in dealing effectively with a range of offences, for example robbery, where it will sometimes be extremely difficult or impossible to complete the necessary investigatory processes within 24 hours.

     Clause 6: Property of detained persons

110.     This provision removes the requirement on the custody officer, currently in section 54(1) of PACE, to record or cause to be recorded everything a detained person has with him on entering custody. The custody officer will still be under a duty to ascertain what the person has with him, but the nature and detail of any recording will be at the custody officer's discretion. This seeks to reduce the serious burden on officers which can arise from recording large volumes of property. Clearly, it will still be necessary to make records, not least to ensure against claims that property has been mishandled or removed. However, it will now be open to the police to make judgements about how to balance the need for recording against the amount of administrative work involved.

     Clause 7: Codes of practice

111.     This clause makes fundamental changes to the process for establishing and amending codes of practice under PACE. At present there are codes covering stop and search, searching of premises, detention, identification, and the recording of interviews. Currently issuing a new code or revising an existing code requires extensive public consultation and an active process of parliamentary consideration. The amendments provide a more limited consultation process and a simple requirement to lay a new code or a revised code before Parliament.

112.     New section 67(1) defines "code" by means of reference to various sections of PACE. Subsection (2) allows the Secretary of State to revise the whole or any part of a code at any time. Subsection (3) allows the effect of a code or any revision to be limited to specific areas, periods, offences or descriptions of offender. Subsection (4) requires the Secretary of State, before issuing a code or any revision of a code, to consult persons representing the interests of police authorities, persons representing the interests of chief officers of police and such other persons as he thinks fit. Subsection (5) places the Secretary of State under a duty to lay any code or revision before Parliament.

113.     Subsections (2) to (4) amend section 113 of PACE so that the regime for making or amending codes of practice applicable to the military police will be similar to the revised arrangements described above.

     Clause 8: Amendments related to Part 1

114.     This clause gives effect to Schedule 1 which deals with amendments related to this Part of the Act.

Clause 9: Power of arrest for possession of Class C drugs

     115.     This clause makes the possession of a Class C drug an arrestable offence under the Police and Criminal Evidence Act 1984 (PACE). In July 2002, the Home Secretary announced his intention to bring forward proposals to Parliament to reclassify cannabis from a Class B to a Class C drug under the Misuse of Drugs Act 1971. In conjunction with this, he also announced that the police would continue to be able to arrest persons for offences of possession of cannabis.

116.     Currently, possession of cannabis is an arrestable offence by virtue of the fact that it carries a sentence of up to 5 years imprisonment (section 24(1) PACE). However, after reclassification, possession of cannabis will carry a maximum penalty of 2 years imprisonment and, therefore, will no longer be an arrestable offence under section 24(1). In order to preserve the power of arrest it is necessary to make specific legislative provision to add possession of a Class C drug to the list of specific arrestable offences contained in Schedule 1A to PACE (this list was formerly contained in section 24(2) of PACE). The change will also apply to offences of possession of all drugs currently classified as Class C drugs under the Misuse of Drugs Act (e.g. anabolic steroids and the benzodiazepines), although in practice there are relatively few offences involving these drugs.

Clause 10: Drug Testing for under eighteens

117.     Section 57 of the Criminal Justice and Court Services Act 2000 inserted new provisions in the Police and Criminal Evidence Act 1984 (PACE), enabling custody officers after charge, to detain a person to enable a sample to be taken to test for the presence of any specified class A drug, subject to the conditions detailed in section 63B of PACE. This applies only in the areas in which the section has been brought into force. The provisions applied only to persons aged 18 and above

118.     This clause amends part of the inserted provisions in PACE (in respect of section 63B and section 38) to enable persons under the age of 18, to be tested for specified class A drugs and for custody officers to detain the person to enable a sample to be taken for that purpose. The person concerned must have attained the age of 14. The clause also makes provision for an appropriate adult to be present during the testing procedure in the case of a person who is under 17 years old.


     Clause 11: Grant and conditions of bail

119.     Subsection (1) makes a number of changes to section 3(6) of the Bail Act 1976 to enable bail conditions to be imposed for a defendant's own protection or welfare, in the same circumstances that he or she might have been remanded in custody for that purpose.

120.     Subsection (2) makes similar changes to section 3A(5), and subsection (4) to paragraph 8(1) of Part 1 of Schedule 1 to the 1976 Act.

121.     Subsection (3) repeals paragraph 6 of Part 1 of Schedule 1 in order to make it clear that the arrest under section 7 (liability to arrest for absconding or breaking conditions of bail) of a defendant charged with an imprisonable offence is not in itself grounds for refusal of bail.

122.     Subsection (5) amends the corresponding provision (paragraph 5) of Part 2 of Schedule 1 to the Bail Act 1976 in respect of defendants charged with non-imprisonable offences. Where such a defendant is arrested under section 7, bail may be refused only if the court is satisfied that there are substantial grounds for believing that if released on bail (whether subject to conditions or not) he or she would fail to surrender to custody, commit an offence whilst on bail, or interfere with witnesses or otherwise obstruct the course of justice.

Clause 12: Offences committed on bail

123.     Subsection (1) repeals paragraph 2A of Part 1 of Schedule 1 to the Bail Act 1970, which makes the fact that a defendant was on bail at the time of the alleged offence an independent ground for the refusal of bail.

124.     Schedule 1 to the Bail Act 1976 sets out considerations in determining exceptions to the right to bail. Subsection (2) adds a new paragraph 9AA to Part 1 of that Schedule. This provides that where a defendant is on bail in criminal proceedings on the date an offence was committed particular weight can be given to this fact when the court is deciding whether he or she would be likely to re-offend if released on bail. This provision applies where the present offence, the offence for which the defendant was already on bail, or both, are imprisonable.

Clause 13: Appeal to Crown Court

125.     Clause 13 creates a new right of appeal to the Crown Court against the imposition by magistrates of certain conditions of bail. The conditions which may be challenged in this way are requirements relating to residence, provision of a surety or giving a security, curfew or electronic monitoring. This complements the removal by clause 14 of the existing High Court power to entertain such appeals.

Clause 14: Appeals to the High Court

126.     Clause 14 abolishes the jurisdiction of the High Court in respect of bail where it duplicates that of the Crown Court.

Clause 15: Appeal by prosecution

127.     Clause 15 amends section 1 of the Bail (Amendment) Act 1993 so that the prosecution's right of appeal to the Crown Court against a decision by magistrates to grant bail is extended to cover all imprisonable offences.

     Clause 16: Drug users: restriction on bail

128.     Evidence suggests that there is a link between drug addiction and offending. In addition, it is widely accepted that many abusers of drugs fund their misuse through acquisitive crime. There is thus a real concern that if such offenders who have been charged with an imprisonable offence are placed on bail, they will merely re-offend in order to fund their drug use.

129.     Under this clause, an alleged offender aged 18 or over who has been charged with an imprisonable offence will not be granted bail (unless he demonstrates that there is no significant risk of his committing an offence while on bail), where the three conditions below exist:

(i)     there is drug test evidence that the person has a specified Class A drug in his body (by way of a lawful test obtained under section 63B of the Police and Criminal Evidence Act 1984 or clause 145 of the Bill);

(ii)     the court is satisfied that there are substantial grounds for believing that the misuse of a specified Class A drug caused or contributed to that offence or provided its motivation; and

(iii)     the person does not agree to undergo an assessment as to his dependency upon or propensity to misuse specified Class A drugs or, has undergone such an assessment but does not agree to participate in any follow-up offered.

130.     The assessment will be carried out by a suitably qualified person, who will have received training in the assessment of drug problems. The person will normally be an employee of a recognised drug service provider. If an assessment or follow-up is proposed, it will be a condition of bail that they be accepted. The provision can only apply in areas where appropriate assessment and treatment facilities are in place.


     Clause 18: Conditional cautions

131.     Clause 18 defines a conditional caution and provides that it may be given to an adult offender if the requirements in clause 19 are met. The conditions which may be imposed are restricted to those aimed at reparation for the offence, or at the rehabilitation of the offender. A conditional caution may be given by an authorised person as defined in subsection (4).

Clause 19: The five requirements

132.     Clause 19 sets out the requirements which need to be met for a conditional caution to be given. The requirements are that there is evidence against the offender; that the Crown Prosecution Service consider that the evidence would be sufficient to charge him or her and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of what the caution (and failure to comply with it) would mean; and that he or she signs a document containing details of the offence, the admission, the offender's consent to the caution, and the conditions imposed.

Clause 20: Failure to comply with the conditions

133     Clause 20 provides that if the offender fails without reasonable excuse to satisfy the conditions attached to the conditional caution he or she may be prosecuted for the offence. If proceedings are commenced the document referred to in clause 19 is admissible in evidence, and the conditional caution ceases to have effect.

Clause 21: Code of practice

134.     This clause makes provision for the Home Secretary, with the consent of the Attorney General, to publish a Code of Practice setting out the criteria for giving conditional cautions, how they are to be given and who may give them, the conditions which may be imposed and for what period, and arrangements for monitoring compliance.

135.     The Home Secretary is required to publish the Code in draft and to consider any representations regarding it. The completed Code must then be laid before Parliament.


Clause 23: Charging or release of persons in police detention

136.     Clause 23 introduces Schedule 2 which makes additional provision for the charging or release of people in police detention. It amends section 37 of the Police and Criminal Evidence Act 1984 and inserts new sections 37A-37D. New section 37A enables the Director of Public Prosecutions to issue guidance to which custody officers are to have regard in deciding whether, in cases where they consider that there is sufficient evidence to charge a suspect, they should release the suspect without charge but on bail, release him or her without charge and without bail, or charge him.

137.     It is envisaged that the DPP's guidance will set out the circumstances in which it will be appropriate for the police to charge or otherwise deal with a suspect without reference to the Crown Prosecution Service; this is likely to include minor cases (such as the majority of road traffic offences), cases where there is an admission by the suspect and which could be disposed of by the magistrates' court, and cases where there is a need to bring the suspect before a court with a view to seeking a remand in custody. In other cases it will be appropriate for the police to release the suspect without charge but on bail while (as required by section 37B) the case is referred to the CPS.

138.     New section 37B provides that, if a suspect is released without charge but on bail, it is then for the CPS to determine, if they agree that the evidence is sufficient, whether the suspect should be charged, and if so with what offence; or whether he should be given a caution (and if so in respect of what offence). The suspect is then to be charged, cautioned, or informed in writing that he is not to be prosecuted.

139.     Section 37C makes provision for dealing with breach of any conditions attached to police bail granted pending the CPS decision as to charge. Paragraph 4 of Schedule 2 amends section 46A of the Police and Criminal Evidence Act 1984 to confer a power of arrest on reasonable suspicion that bail conditions have been broken. Paragraph 5(3) of that Schedule amends section 47(1A) of that Act to enable conditions to be imposed where a person is released on bail pending consultation with the CPS.

Clause 24: New method of instituting proceedings

140.     This clause provides for a new method of instituting criminal proceedings which is available to a public prosecutor as defined in subsection (5). It consists in the issue to the person to be prosecuted of a written charge, together with a written requirement ('a requisition') for him or her to appear before a magistrates' court to answer to the charge.

141.     Subsection (3) requires the written charge and the requisition to be served on the person named and to be copied to the court.

142.     Subsection (4) prohibits public prosecutors from laying an information for the purpose of obtaining the issue of a summons under section 1 of the Magistrates' Courts Act 1980. They may still do so, however, for the purpose of obtaining the issue of a warrant (clause 25(3)).

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Prepared: 29 November 2002