Chapter 3 : Miscellaneous and Supplemental

     Clauses 121: Evidence by video recording

368.     This clause permits a video recording of an interview with a witness (other than the defendant), or a part of such a recording, to be admitted as evidence in chief of the witness in a wider range of circumstances than is presently the case. Subsection (1) provides that the court can authorise such a video recording to replace the evidence-in-chief of a witness provided that:

-     the person claims to be an eye-witness to the offence (or part of it) or to events closely connected to the offence;

-     the video recording of the statement was taken at a time when events were fresh in the witness's memory; and

-     the alleged offence can only be tried in the Crown Court or is an either-way offence prescribed by Order of the Secretary of State.

369.     If the recording satisfies these requirements, the court may admit the recording provided that:

-     the witness's recollection of events is likely to be significantly better at the time he gave the recorded account than by the time of the trial; and

-     it is in the interests of justice to admit the recording, having regard to whether the recording is an early and reliable account from the witness, the quality is adequate, and any views which the witness may have about using the recording for this purpose.

370.     Under subsection (2) evidence given by a video recording shall be treated as if it was given orally in court in the usual way, providing the witness asserts the truth of it.

     Clause 122 : Video evidence : further provisions

371.     Where a video recording (or part of one) is admitted under Clause 121, Clause 122 (1) states that the recording should be the final statement of any matters dealt with adequately within the recording for the purpose of the witness's evidence-in-chief.

372.     Subsection (2) allows video recordings to be edited if the interests of justice so require. In determining whether to allow only an edited recording to be used, the court will have to consider whether the parts sought to be excluded are so prejudicial as to outweigh the desirability of using the whole recording.

Clause 123 : Use of documents to refresh memory

     373.     This clause creates a presumption that a witness in criminal proceedings may refresh his memory from a document whilst giving evidence providing that he:

• indicates that the document represents his recollection at the time he made it; and

• his recollection was likely to be significantly better at the time the document was made (or verified).

The fact that the witness has read the statement before coming into the witness box will not affect this presumption.

     374     In view of the practical difficulties associated with memory refreshing in the witness box from an audio or video recording, subsection (2) limits the application of this provision to written documents.

     PART 12 - SENTENCING

Chapter 1: General Provisions about sentencing

     Clause 126: Purposes of sentencing

375.     For the first time, the purposes of adult sentencing will be set out in statute. Subsection (1) sets out what these are: punishment, crime reduction, public protection and reparation. There are exceptions where these purposes will not be applicable, specified in subsection (2). These exceptions are where an offender is under 18 (there are separate purposes for the aims of the youth justice system which can be found in the Crime and Disorder Act 1998), where the sentence is fixed by law (i.e. life imprisonment), where offences require certain custodial sentences (clauses 205 to 208 and sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act 2000), and where various provisions under the Mental Health Act 1983 apply.

     Clause 127: Determining the seriousness of an offence

376.     This clause sets out certain principles the court must follow when determining the seriousness of an offence. The court must consider the offender's culpability in committing the offence and the harm (or risk of harm) caused by the offence (or intended to be caused by the offence). Any previous convictions, where they are recent and relevant, should be regarded as an aggravating factor which should increase the severity of the sentence. This is a strengthening of the existing principle in section 151(1) of the Powers of Criminal Courts (Sentencing) Act 2000. Subsection (3) re-enacts section 151(2) of that Act and provides that the fact that an offence was committed while the offender was on bail should also be regarded as an aggravating factor.

     Clause 128: Reduction in sentence for guilty pleas

377.     This clause re-enacts section 152(1) and (3) of the Powers of Criminal Courts (Sentencing) Act 2000 and makes provision for the reduction of sentences for early guilty pleas, in order to encourage those offenders who are guilty not to take up valuable court time and trouble victims and witnesses unnecessarily. Subsection 1 requires the court to take into account exactly when in the course of proceedings the guilty plea was made and the circumstances in which it was given. The latter is designed to ensure the plea is honest and free. For those sentences falling to be imposed under sections 110(2) or 111(2) of Powers of Criminal Courts (Sentencing) Act the court can reduce the sentence by up to 20 per cent.

     Clause 129: Increase in sentence for racial or religious aggravation

378.     This clause re-enacts section 153 of the Powers of Criminal Courts (Sentencing) Act 2000 and provides that, except in the case of offences under sections 29 to 32 of the Crime and Disorder Act 1998, the court must treat the fact that the offence was religiously or racially aggravated as increasing the seriousness of the offence, and must say so in court. The definition of racially or religiously aggravated can be found in s.28 of the 1998 Act.

     Clause 130: Meaning of "community sentence" etc.

379.     This clause defines "community sentence" for the purposes of Part 12 of the Bill and also defines "young offender order" for the purposes of Chapter 1 of the Part.

     Clause 131: Restrictions on imposing a community sentence

380.     Subsection (1) re-enacts section 35(1) of the Powers of Criminal Courts (Sentencing) Act 2000. Subsection (2) re-enacts with a few minor changes section 35(3) of that Act. Subsection (3) sets out the same principles for young offender orders which remain in the Powers of Criminal Courts (Sentencing) Act. The clause makes provision as to when it is appropriate to impose a community sentence. If an offence/offending history is not serious enough for a community sentence, a fine, conditional discharge or absolute discharge would be appropriate. For a community sentence to be passed, an offence should be serious enough to warrant one. Further, the requirements which will form part of the (new) community sentence should be the most suitable ones for the offender and the restrictions on the liberty of the offender (such as a curfew requirement) must be in line with the seriousness of the offence. There is an exception, where an offence itself does not warrant a community sentence but where the offender has committed several similar offences in the past. This case is dealt with in clause 134.

Clause 132: Passing of community sentence on offender remanded in custody

381.     If an offender has been remanded in custody, and then receives a custodial sentence, his time on remand counts towards his sentence. This is covered in clause 220. This clause creates a new addition to the existing remand time provisions and enables the court to have regard to any time spent on remand when putting together the requirements of a community sentence, and deciding upon what restrictions on liberty to be imposed.

     Clause 133: Community sentence not available where sentence fixed by law, etc.

382.     This clause re-enacts section 34 of the Powers of Criminal Courts (Sentencing) Act, but now refers to the new sentences for dangerous offenders. A community sentence is not available in respect of offences for which the sentence is fixed by law, or where the scheme for sentencing of dangerous offenders (in clauses 205 to 208) or under sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act 2000 applies.

     Clause 134: Community sentence for persistent offender previously fined

383.     This clause replaces existing provisions in section 59 of the Powers of Criminal Courts (Sentencing) Act 2000. In addition to the general principle set out in clause 127 for dealing with persistent offenders, this clause provides the court with an additional discretionary power for dealing with persistent petty offenders. Where an offender aged 16 or over has been sentenced to a fine on at least three previous occasions, the Court may impose a community sentence even if the current offence is one which would on its own warrant a fine. Subsection (3) directs the court to consider the nature of the previous offences, and how recent and relevant they are to the current offence. Subsection (4) provides that, for the purposes of determining whether the criteria are met, it does not matter whether the offender has on previous sentencing occasions received community or custodial sentences. Subsection (5) makes it clear that this clause does not interfere with the court's wider power to treat previous convictions as increasing the seriousness of the offence (specified in clause 127).

     Clause 135: General restrictions on imposing discretionary custodial sentences

384.     As with community sentences, a court cannot impose a custodial sentence except where the offence, taken in combination with any past offences, merits it. This clause, which largely re-enacts section 79 Powers of Criminal Courts (Sentencing) Act, sets out this principle. Subsection (1) excludes from this consideration those offences which fall to be punished under the scheme for sentencing dangerous offenders (clauses 205 to 208) and those which are provided for in sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act. Subsection (2), which is based on section 79(2)(a) of the Powers of Criminal Courts (Sentencing) Act, states that a custodial sentence must only be imposed if the offence(s) is so serious that neither a fine nor a community sentence would be adequate punishment for it. Subsection (3) which re-enacts section 79(3) of the Powers of Criminal Courts (Sentencing) Act. It provides that subsection (2) does not prevent a court from passing a custodial sentence on an offender who fails to consent to requirements imposed as part of a community sentence, where such consent is required, or if he refuses to provide samples for the purposes of drug testing.

Clause 136: Length of discretionary custodial sentences: general provision

385.     This clause re-enacts section 80 of the Powers of Criminal Courts (Sentencing) Act but modifies that provision to direct the court to impose the shortest term that is commensurate with the seriousness of the offence(s). Subsection (1) provides an exception to the rule for the case where the sentence is fixed by law (i.e. as a mandatory life sentence), and for the case of the new sentences for dangerous offenders (clauses 205 to 206).

     Clause 137: General limits on magistrates' court's power to impose imprisonment

386.     This clause re-enacts section 78 Powers of Criminal Courts (Sentencing) Act but with a significant amendment. This is an increase in magistrates' sentencing powers so as to enable them to impose custodial sentences of up to and including 12 months in respect of any one offence. This is without prejudice to any term of imprisonment which may be imposed for non-payment of a fine.

     Clause 138: Consecutive terms of imprisonment

387.     This clause amends the Magistrates Courts Act 1980, adding to the powers in clause 137, by giving magistrates the power to impose custodial term of 15 months in respect of two or more offences to be served consecutively.

     Clause 139: Power to increase limits

388.     This clause enables the Secretary of State to increase the limits in clauses 137 and 138 by order. The increase would be up to 18 months custody in respect of any one offence, and 24 months custody in respect of two or more offences to be served consecutively. The order would be subject to affirmative resolution procedure (see clause 165(5)(a).

     Clause 140: Pre-sentence reports and other requirements

389.     This clause re-enacts with amendments the existing provisions in sections 36 and 81 of the Powers of Criminal Courts (Sentencing) Act which cover pre-sentence reports for community and custodial sentences. When a court is considering whether to impose a discretionary custodial sentence and how long it should be, or whether to impose a community sentence and what restrictions to put on the offender's liberty as part of that sentence (clauses 131, 135 and 136) the court must take into account all the information available to it, including information about the offence and about the offender.

390.     In order to do so, the Court must obtain a pre-sentence report. Pre-sentence reports are written in the case of adults by the probation service based on an interview and analysis of the offender and his offending history and needs. The PSR contains advice about what punishment might be appropriate and what rehabilitative work would be likely to prove effective with the offender in terms of reducing the risk that he will re-offend.

391.     However, subsection (4) provides that the court need not obtain a pre-sentence report if it considers it unnecessary to do so in any individual case. Subsection (5) provides further protection for young offenders. For offenders under the age of 18, and where the offence is not triable only on indictment (that is, it is a summary only offence or one that is triable either summarily or on indictment), the court must not decide a pre-sentence report is unnecessary unless there already is one that relates to the offender and the court has access to it. By subsection (6), no sentence is invalidated by the failure of a court to obtain and consider a pre-sentence report, even if a pre-sentence report is required under subsection (3).

392.     If the offender appeals, a pre-sentence report must be obtained and considered unless the appellate court believes the original court was justified in not obtaining a PSR or if the current circumstances are such that a pre-sentence report is not necessary. The situation in relation to appeals is slightly different for offenders under 18 in that the court is not able to decide the original court was justified in not requiring a pre-sentence report or deciding that current circumstances are such that a pre-sentence report is not necessary, unless there is a previous pre-sentence report on the offender and the court has access to it (subsection (8)).

     Clause 141: Additional requirements in the case of mentally disordered offender

393.     This clause re-enacts section 82 of the Powers of Criminal Courts (Sentencing) Act. Special provision is made for mentally disordered offenders: qualified medical practitioners must be consulted before a custodial sentence is imposed (unless the sentence is one that is fixed by law). The court can also decide not to request a medical report if it considers it unnecessary in a particular case. The court must consider any information before it relating to the offender's mental condition and the likely effect of a custodial sentence on the offender and on any treatment which might be available to him. If the court does not obtain a medical report this does not invalidate any sentence passed, but on appeal the court must obtain and consider a medical report. Subsection (6) defines a medical report, which is different from a pre-sentence report, and subsection (7) says that provisions under this clause do not limit the provisions for pre-sentence reports in clause 140.

     Clause 142: Meaning of "pre-sentence reports"

394.     This clause re-enacts section 162 of the Powers of Criminal Courts (Sentencing) Act and provides a definition for a pre-sentence report described in the preceeding clauses. Such a report must be prepared by an "appropriate officer", defined in subsection (2) as an officer of the local probation board where the offender is over 18, or where the offender is under 18 a probation officer, social worker or member of a youth offending team.

     Clause 143: Disclosure of pre-sentence reports

395.     This clause re-enacts section 156 of the Powers of Criminal Courts (Sentencing) Act. Where the court does obtain a pre-sentence report, copies of it must be provided to those persons specified in this clause. Normally this should be the offender or his legal representative, and the prosecutor except if the court considers it inappropriate for the prosecutor to be given a copy (subsection 4). Subsection 5 provides that the prosecutor is only able to use the information in the pre-sentence report either for determining whether to make representations to the court or for making representations to the court about the content of the report. Where the offender is under 17 and not legally represented, the court is not obliged to give a copy to the offender but instead to his parent or guardian if present in court (subsection (3)).

     Clause 144: Other reports of local probation boards and members of youth offending teams

     396.     This clause re-enacts section 157 of the Powers of Criminal Courts (Sentencing) Act and makes provision for giving copies of reports, other than pre-sentence reports, to the offender and his legal representative (under subsection (2)). Such a report is defined in subsection (1) as one that is written by the probation service or a youth offending team to help the court determine the appropriate sentence to pass. If an offender is under 17 and not represented legally, then a copy goes to the offender's parent or guardian, under subsection (3).

     Clause 145: Pre-sentence drug testing

397.     Pre-sentence drug testing is available to assist the court when it is considering imposing a community sentence. This clause enables the court to make an order, in the case of convicted offenders who are at least 14 years old, to be tested for any specified class A drug. Where the offender is under the age of 16 years, provision must be made for an appropriate adult (as defined in subsection (8)) to be present when the sample is taken. Failure to provide a sample without a reasonable excuse is punishable by a fine. This power is only exercisable in the areas where the court has been notified by the Secretary of State that the power to make such orders is exercisable by the court.

     Clause 146: Powers to order statement as to offender's financial circumstances

398.     This clause re-enacts section 126 of the Powers of Criminal Courts (Sentencing) Act. In some cases the court might wish to know the financial circumstances of the offender. The court can make a "financial circumstances order" in respect of an offender on conviction before sentencing him or if he pleads guilty without appearing before the court. The offender must report his financial circumstances to the court. If the offender fails to comply the court can impose a fine. If the offender falsifies or omits relevant information from a statement of his financial circumstances he commits an offence and is liable to imprisonment or a fine. Subsection (6) enables proceedings for such an offence to be begun within two years from the date of the offence or within 6 months from its discovery.

     Clause 147: General power of the Crown Court to fine offender convicted on indictment

399.     This clause re-enacts section 127 of the Powers of Criminal Courts (Sentencing) Act. In general, the Crown Court can impose a fine on the offender either instead of, or in addition to, dealing with the offender in any other way. This clause does not apply in relation to an offence for which the sentence is fixed by law or which falls to be imposed under sections 110 and 111 of the Powers of Criminal Courts (Sentencing) Act or the provisions for dangerous offenders in clauses 205 to 208 of the Bill.

     Clause 148: Fixing of fines

400.     This clause re-enacts section 128 of the Powers of Criminal Courts (Sentencing) Act. The Court must inquire into the financial circumstances of an offender before fixing the amount of a fine on an offender (subsection (1)). When determining the amount of a fine, the court must take the financial circumstances of the offender, the seriousness of the offence and the circumstances of the case into account. In certain cases where the offender is not available, such as where the offender has not appeared before the court when he was supposed to, the court may fix a fine without regard to his financial circumstances (subsection (5)).

     Clause 149: Remission of fines

401.     This clause re-enacts section 129 of the Powers of Criminal Courts (Sentencing) Act. If an offender's financial circumstances are made clear to the court after it has fixed a fine, it can reduce the fine or withdraw it completely. If the offender is in prison for failing to pay the fine when such a decision is made, his term is to be reduced accordingly.

     Clause 150: Savings for powers to mitigate sentences and deal appropriately with mentally disordered offenders.

402.     This clause re-enacts section 158 of the Powers of Criminal Courts (Sentencing) Act and allows the court to take into account any relevant matters in mitigation of the sentence, irrespective of the obligations imposed by clause 131 in respect of community sentences, clauses 135, 136 and 141 in respect of custodial sentences, clause 140 in respect of pre-sentence reports and other requirements and clause 148 in respect of fines. Those clauses should not prevent the court from passing any sentence it considers appropriate (subsection (3)). The court can reduce the sentence by considering other penalties given to the offender at the same time and where an offender is convicted of two or more offences by applying the totality principle, which is that the total punitive weight of the sentence must be commensurate with the offences committed (subsection (2)).

     Clause 151: The Sentencing Guidelines Council

403.     Subsection (1) provides for the creation of a Sentencing Guidelines Council, which is to be constituted in accordance with an order made by the Lord Chancellor. The Council exists to promulgate guidelines to enable all courts dealing with criminal cases to approach the sentencing of offenders from a common starting point.

404.     Subsection (2) provides for the Lord Chief Justice to be the Chairman of the Council. This reflects the importance of the role of the Council and the need to ensure proper judicial independence. Other members of the Council are to be appointed by the Lord Chancellor after consultation with the Secretary of State and the Lord Chief Justice (subsection (3)).

405.     Subsection (4) stipulates that the members of the Council will be members of the judiciary who may be drawn from any of the tiers of Court regularly dealing with criminal cases. The Lord Chief Justice, as Chairman of the Council, must appoint a Deputy Chairman from amongst those appointed to the Council by the Lord Chancellor, by subsection (5).

406.     Subsection (6) specifies that the order constituting the Council may include particular provision for: the number of members of the Council and the number from any of the categories in subsection (4); the term of office of members; the circumstances in which a member may be removed from the Council other than at the expiry of their term of office.

407.     Lay justices (as defined by subsection (8)) can be remunerated under subsection (7) for the time given to membership of the Council. All other members will be salaried, full time members of the Judiciary and no further remuneration is necessary. However, provision is made for appropriate expenses to be reimbursed, as determined by the Lord Chancellor.

     Clause 152: The Sentencing Advisory Panel

408.     This clause provides for the continuation of the Sentencing Advisory Panel, constituted, as at present, by the Lord Chancellor after consultation with the Secretary of State and the Lord Chief Justice. Subsection (2) contains the requirement that the Lord Chancellor must appoint a Chairman of the Panel after consultation with the Home Secretary and the Lord Chief Justice. Subsection (3) re-enacts provision authorising the Lord Chancellor to remunerate members of the Panel.

     Clause 153: Guidelines relating to sentencing and allocation

409.     This clause sets out the responsibility to issue guidelines and matters to be taken into account in the process of creating them.

410.     Subsection (1) defines "guidelines" as meaning guidelines relating to the se0tencing of offenders and guidelines as to the allocation of cases between courts.

411.     Subsection (2) allows the Secretary of State to ask the Council to frame or revise guidelines relating to allocation, a general matter affecting sentencing (for example, relating to the credit to be given for a guilty plea), to a particular category of offender (such as those with previous convictions), or relating to a particular offence. The Council itself can decide to frame guidelines, under subsection (3), and must consider whether to do so where it receives a proposal from the Sentencing Advisory Panel or the Secretary of State (as described above). Subsection (4) obliges the Council to keep its guidelines under review (where they have been formally issued) and revise them if appropriate.

412.     Subsection (5) sets out the factors to be taken into account by the Sentencing Guidelines Council when creating or revising sentencing Guidelines. The list (which reproduces the existing list in section 80(3) of the Crime and Disorder Act 1998) is not intended to be exhaustive.

413.     Subsection (6) sets out certain factors to be taken into account by the Sentencing Guidelines Council when creating or revising allocation guidelines. These are the importance of promoting consistency in decisions under section 19 of the Magistrates' Courts Act 1980 (which relates to determining mode of trial) and the views of the Sentencing Advisory Panel.

414.     Subsection (7) requires the Council to include in its guidelines criteria to determine the seriousness of the offence being dealt with. Those criteria need to include criteria for determining the significance of any previous convictions of the offender.

415.     Subsection (8) requires the Council to publish proposed guidelines in draft for consultation with the Secretary of State, any other person the Lord Chancellor after consultation with the Secretary of State directs and any other person the Council considers to be appropriate. This consultation will follow that undertaken by the Sentencing Advisory Panel (see clause 154(3)) and will reflect the need to avoid duplication of effort. It will enable formal provision to be made for consultation with Parliament where appropriate.

416.     Subsection (9) provides for the Council, after making such amendments as it considers appropriate, to issue the guidelines as definitive guidelines.

     Clause 154: Functions of Sentencing Advisory Panel in relation to guidelines

417.     This clause makes provision for the functions of the Sentencing Advisory Panel. The Council is obliged to notify the Sentencing Advisory Panel when it decides to frame new guidelines or to revise existing guidelines. This will enable the Panel to prepare advice to assist the Council. However, under subsection (2) the Panel is also able to propose to the Council that guidelines are framed or revised by the Council.

418.     Subsection (3) provides that where guidelines are under consideration (either as a result of the Panel's own initiative or that of the Council), the Council must consult with those that the Council stipulates. The Council will make that decision after consultation with the Secretary of State and Lord Chancellor. The panel must prepare advice where guidelines are proposed and submit it to the Council. Subsection (4) allows the Panel to dispense with the consultation required under subsection (3) if the urgency of a case makes this impractical.