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

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Clause 185: Exclusion requirement

454.     This clause re-enacts, with some modification, section 40A of the Powers of Criminal Courts (Sentencing) Act 2000 (inserted by section 46 of the Criminal Justice and Court Services Act 2000). That provision has not yet commenced. Subsection (1) defines an exclusion requirement as a requirement prohibiting the offender from entering a place during a period specified in the order. Subsection (3) makes it clear that the order may stipulate that the prohibition operates only for certain periods of time and may specify different places for different periods. By subsection (2) an exclusion requirement cannot last longer than two years. Under subsection (4) the order can specify an area rather than a specific place. For example, an offender might be required to stay away from a specified town centre at night.

Clause 186: Residence requirement

455.     The residence requirement is based on the existing requirements as to residence that can be included in a community rehabilitation order (see paragraph 1 of Schedule 2 to the Powers of Criminal Courts (Sentencing) Act 2000). Subsection (1) defines residence requirement as a requirement that the offender must reside at a place specified in the order for a specified period. Under subsection (2) the court can allow the offender to live at an alternative address, with the approval of his responsible officer. Under subsection (3), before making a residence requirement the court must consider the situation at the offender's accommodation. Subsection (4) provides that the court must only place the offender in a hostel or similar accommodation with the recommendation of an officer of the local probation board.

Clause 187: Mental health treatment requirement

456.     The mental health treatment requirement is based on the requirements as to treatment as part of a community rehabilitation order (paragraph 5 of Schedule 2 of the Powers of Criminal Courts (Sentencing) Act 2000). Subsection (1) provides for the court to direct an offender to undergo mental health treatment for certain period(s) as part of a community sentence or suspended sentence order, under the treatment of registered medical practitioner or chartered psychologist. Subsection (2) provides that treatment may be provided in an independent hospital or care home (within the meaning of the Care Standards Act 2000) or a hospital (within the meaning of the Mental Health Act 1983), or as a non-resident patient at a place specified in the order, or as treatment under the direction of such registered medical practitioner or chartered psychologist as specified in the order. Under subsection (3), before including a mental health treatment requirement, the court must be satisfied that the mental condition of the offender requires treatment and may be helped by treatment, but is not such that it warrants making a hospital or guardianship order (within the meaning of the Mental Health Act 1983). The court must also be satisfied that arrangements can be made for the offender to receive treatment as specified in the order, and the offender's consent must be obtained before imposing the requirement.

457.     Under subsection (4), the offender's responsible officer will supervise him only to the extent necessary for revoking or amending the order. Subsection (5) applies section 54(2) and (3) of the Mental Health Act 1983 for the purposes of the clause. Subsection (6) defines "chartered psychologist".

Clause 188: Mental health treatment at place other than that specified in order

458.     Subsection (1) provides for the medical practitioner or chartered psychologist to decide that treatment would be better or more convenient in a different place from that specified in the order and make arrangements to change the place of treatment. The change cannot be made without the consent of the offender. Under subsection (2) the offender can be placed in residential treatment, even if the institution was not one that could have been specified for that purpose in the original order. Arrangements for informing appropriate people are set out in subsection (3).

Clause 189: Drug rehabilitation requirement

459     As part of a community sentence or suspended sentence the court may impose a drug rehabilitation requirement, which includes drug treatment and testing. In order to impose such a requirement, the court must be satisfied that the offender is dependent on or has a propensity to misuse any controlled drug and as such requires and would benefit from treatment. In addition, the court must be satisfied that the necessary arrangements are or can be made for the treatment and that the offender has expressed a willingness to comply with the drug rehabilitation requirement. The treatment provided may not be for a period of less than six months. A suitably qualified or experienced individual supervises the treatment. It is for the court to decide whether treatment should be residential or non-residential. The Secretary of State may provide guidance as to the arrangements for testing.

Clause 190: Drug rehabilitation requirement: provision for review by court

460.     Subsection (1) provides that the court may provide for the review of any drug treatment and testing requirement, and it must provide for the review of any drug treatment and testing requirement lasting more than 12 months. The reviews cannot take place more frequently than once a month. The review occurs at a "review hearing", at which the offender is present. The responsible officer is to provide a written report on the offender's progress before each hearing, which is to include the results of the offender's drug tests. A review hearing takes place before the court responsible for the order. Subsections (2) to (3) provide that the court responsible for a drug treatment and testing requirement is that court which made the order, unless it specifies a different court in the case where an offender does not live in the area of the court which convicts him. Where the drug treatment and testing requirement was made on appeal from the Crown Court, under subsection (4) the Crown Court will be the responsible court.

Clause 191: Periodic review of drug rehabilitation requirement

461.     This clause provides for what occurs at a review of a drug rehabilitation requirement. Subsection (1) provides for the court to amend the order as respects that requirement after considering the responsible officer's report. Subsection (2) prevents the court from amending the requirement unless the offender consents. It cannot amend reduce the term of treatment and testing below the minimum specified in clause 189(3). Unless the offender's consent is obtained the court cannot amend a requirement while an appeal against the order is outstanding. Under subsection (3), if the offender does not consent to amending the order, the court may revoke the order and re-sentence the offender as if he had just been convicted. If it does so, under subsection (4) it must take into account the extent to which the offender has complied with the requirements of the order. If the court wishes, it may sentence the offender to a custodial sentence, providing the offence was punishable with imprisonment. Subsection (5) relates to the powers of a magistrates' court in a case where the offender was under 18 when the order was made, the offence would have been triable only on indictment had it been committed by an adult and the offender has attained the age of 18 by the time of the review hearing. In these circumstances, subsection (5) extends the court's powers where a person has failed to consent to an amendment proposed by the court.

462.     If the offender's progress is satisfactory, under subsection (6) the court can state that for future reviews the offender need not be present. Subsection (7) provides that, if an offender's progress is unsatisfactory and he is not present, the court can require the offender to attend a future hearing. Under subsection (8) at that hearing the court may exercise the powers that it has in the case of a review hearing. It may also amend the order to provide for future review hearings. Subsection (9) explains what is meant by "court" in this clause.

Clause 192: Alcohol treatment requirement

463.     Alcohol treatment is currently available as part of a community rehabilitation order, under paragraph 6 of Schedule 2 of the Powers of Criminal Courts (Sentencing) Act 2000. Under subsection (1) the court can require the offender to undergo alcohol treatment. The treatment must be by or under the direction of a person who is qualified or experienced to reduce or eliminate the offender's dependency on alcohol. This person is to be identified in the order. Subsection (2) requires that the court be satisfied that the offender is dependent on alcohol and that this dependency requires and is susceptible to treatment. Subsection (3) requires the court to obtain the offender's consent before imposing an alcohol treatment requirement. Subsection (4) states that an alcohol treatment requirement must last at least six months. Under subsection (5) the treatment itself must consist of either residential or non-residential treatment in a place the court decides, or by or under a qualified or experienced person whom the court identifies in the order.

Clause 193: Supervision requirement

464.     Supervision is a central part of community rehabilitation orders imposed under section 41 of the Powers of Criminal Courts (Sentencing) Act 2000. The responsible officer might review with the offender his supervision plan, challenge his offending behaviour, hold him to account on the requirements, monitor his progress, and assist him with various problems, such as accommodation, employment, or finance. Subsection (1) provides that the court can oblige the offender to meet with his responsible officer, or someone else specified by the responsible officer, or attend a community rehabilitation centre as required. Subsection (2) states that a supervision requirement is for the purpose of rehabilitation. Subsection (3) sets the length of the supervision requirement for the different orders.

Clause 194: Attendance centre requirement

465.     Attendance centre orders are currently free standing orders for certain young offenders, under Chapter 4 of the Powers of Criminal Courts (Sentencing) Act 2000. At an attendance centre, practical activities, including sport, can be run to occupy offenders for a certain number of hours to keep them out of trouble. This is often on Saturdays as attendance centres were originally set up for football related offenders. Subsection (1) enables the court to require an offender to attend an attendance centre for a specified number of hours. Subsection (2) requires the total number of hours an order may specify to be between 12 and 36. Under subsection (3) the court must be satisfied that the offender can get to the centre and must consider the circumstances of the offender when making the appointments. Subsection (4) provides that the first appointment is to be set by the responsible officer, and under subsection (5) any subsequent appointments are to be made by the person in charge of the centre. Subsection (6) provides that the offender cannot be required to attend more than once a day or for more than three hours on any one day.

Clause 195: Electronic monitoring requirement

466.     The court can order the electronic monitoring of the compliance of an offender with any of the other requirements set out in the order. Electronic monitoring has been available throughout England and Wales since 1999, following a series of pilot projects which operated in selected areas during the previous ten years.

467.     In almost all cases of electronic monitoring, the technical equipment uses radio frequency transmissions. It consists of a transmitter (the "tag"), which is usually worn round the ankle, and a receiver unit which is either connected to a landline telephone or which incorporates mobile phone technology. The receiver unit communicates with a central computer system at a monitoring centre. The transmitter sends signals to the receiver at regular intervals and these are sent on to the central computer. The signal strength of the transmitter is calibrated to the receiver so that if the subject goes out of range (generally this means outside the building where the receiver is located), there is a break in signal and this is also registered by the central computer which generates follow-up action. The transmitter can be removed only by breaking its strap. This interferes with the fibre-optic circuitry inside the strap and is immediately registered as a tamper, also generating follow-up action.

468.     Under the existing law electronic monitoring can be used as part of home detention curfew (see clause 225), curfew orders (which will be replaced for adults by community orders with curfew requirements), bail (12-16 year olds throughout England and Wales, and 17 year olds in specified areas), and detention and training orders (under 18s).

469.     Subsection (1) enables the court to set an electronic monitoring requirement to ensure an offender's compliance with other requirements in the order. The period(s) of electronic monitoring can be set by the court or the responsible officer. Under subsection (2), if another person's compliance is needed to effect the electronic monitoring, that person's consent must be obtained before the order is made. This person might include a landlord. Subsections (3) and (4) set out administrative arrangements surrounding electronic monitoring, and in particular deal with the notification of the requirement by the responsible officer to the relevant parties.

     Clause 196: Petty sessions area to be specified in relevant order

470.     This clause provides that a petty sessions area in which the offender will live must be specified in the case of community orders and suspended sentence orders, and for the supervision periods of short custodial sentences and intermittent custody. This means that where an offender is sentenced in an area in which he does not reside, his home area will have to be specified in the order.

Clause 197: Requirement to avoid conflict with religious beliefs, etc.

471.     Subsection (1) requires the court to try to avoid, as far as practicable, making any order which clashes with an offender's religious beliefs, or with the times of his education or employment. Subsection (2) applies the same requirement to any instructions the responsible officer is to give during the course of the order. Under subsection (3) the Secretary of State has the power to add further restrictions by order.

Clause 198: Availability of arrangements in local area

473.     This clause obliges the court to ensure that certain requirements are available in the local area before imposing them. Under subsection (1) unpaid work is one such requirement. Subsection (2) applies the obligation to an activity requirement, and subsection (3) to an attendance centre requirement. Subsections (4) to (8) prevent a court from imposing an electronic monitoring requirement unless the Secretary of State has notified the court that electronic monitoring is available and can be provided in the relevant areas.

Clause 199: Provision of copies of relevant orders

474.     The court has to provide copies of the order it makes to certain people who are relevant to the carrying out of the order. Subsection (1) requires the court to provide copies to the offender, an officer of a local probation board assigned to the court (if an offender is over 18) or an officer of a local probation board assigned to the court or a Youth Offending Team member if the offender is 16 or 17. Where the order specifies another petty sessions area the court must send a copy to the local probation board in that area. Subsection (2) introduces Schedule 10, which contains a list of persons to whom copies of the order must be given depending on what requirements are included in the order. Under subsection (3) if an offender will be carrying out the order in a different area, the court will have to send a copy of the order to the magistrates' court in that area as well as to the local probation board in that area. Any other documents and information relating to the case that the court thinks the second court would find necessary it must send to that court.

Clause 200: Duty of offender to keep in touch with responsible officer

475.     An offender must keep in touch with his responsible officer, in accordance with any instructions in that regard from the responsible officer. The offender must also notify the responsible officer of any change of residence. Under subsection (2), if the offender does not keep in touch as required, or if he changes his residence without notifying the responsible officer, he is liable to breach proceedings.

Clause 201: Provision of attendance centres

476.     This clause re-enacts section 62 of the Powers of Criminal Courts (Sentencing) Act 2000, which enables the Secretary of State to provide attendance centres and make arrangements with local authorities and police authorities regarding premises to be used. Subsection (2) defines attendance centres.

Clause 202: Rules

477.     This clause gives the Secretary of State the power to regulate a number of aspects of the different requirements. These are: monitoring the whereabouts of offenders under curfew or exclusion requirements; the duties of responsible officers in relation to offenders under curfew or exclusion requirements; providing and managing attendance centres and community rehabilitation centres; the attendance of offenders (including attendance records) at activity requirements, attendance centre requirements or supervision requirements; electronic monitoring; the duties of the people responsible for delivering electronic monitoring.

Clause 203: Power to amend limits

478.     Various of the requirements described in the previous paragraphs have limits attached to them. A person cannot be required to do more than 300 hours of unpaid work, for example. This clause gives the Secretary of State the power to amend certain limits by order. These include the unpaid work maximum limit and the lower limits of the curfew requirement, the exclusion requirement, the drug rehabilitation requirement, and the alcohol treatment requirement.

Chapter 5: Dangerous Offenders

Clause 204: Meaning of "specified offence"

479.     This clause defines 'specified offence' and 'serious offence' for the purposes of this Chapter. Specified offences are those sexual or violent offences listed in Schedule 11 (all of which carry a maximum sentence of 2 years or more). A serious offence is defined as a specified sexual or violent offence which carries a maximum penalty of ten years or more (including life). This clause also defines various other terms for the purposes of this Chapter.

Clause 205: Life sentence or imprisonment for public protection for serious offences

480.     Clause 205 provides for a new sentence of imprisonment for public protection, which is an indeterminate sentence. This sentence may only be passed by a court if the offender is convicted of a specified sexual or violent offence (listed in Schedule 11) carrying a maximum sentence of ten years or more and the court considers that the offender poses a significant risk of serious harm as defined in subsection (1)(b). Where the offence carries a maximum sentence of life imprisonment, the court must pass a life sentence if the seriousness of the offence justifies it. In other cases, subsection (3) requires the court to impose a sentence of imprisonment for public protection if it considers that no other sentencing options are adequate for the purposes of public protection.

Clause 206: Detention for life or detention for public protection for serious offences committed by those under 18

481     Clause 206 applies the sentence of public protection to those aged under 18 in very much the same way as the previous clause applies it to adults, except that the sentence is one of detention rather than imprisonment

Clause 207: Extended sentence for certain violent and sexual offences: persons 18 or over

482.     This clause replaces the current provisions for extended sentences for sexual and violent offenders contained in section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. The clause makes provision for the extended sentence for certain violent and sexual offences and sets out the conditions which must be met in order for this sentence to be passed. These conditions require that the offender is over 18, has committed a specified sexual or violent offence (listed in Schedule 11) carrying a maximum sentence of less than ten years and is judged by the court to pose a significant risk of serious harm to the public as defined in subsection (1)(b). Subsection (2) provides that the extended sentence is made up of the "appropriate custodial term" and an "extension period". The appropriate custodial term is defined in subsection (3) as the period which the court considers to reflect the seriousness of the offence committed (subject to a minimum of 12 months). During the second half of the appropriate custodial term the offender may be released on the recommendation of the Parole Board (see clause 226). The Court must also specify an extended period of supervision on licence to be added to the sentence for the purpose of public protection. The court may add an extension period of up to five years for violent offenders and nine years for sexual offenders (see subsection (4)). The total term of the extended sentence must not be more than the maximum sentence for the offence in question.

     Clause 208: Extended sentence for certain violent or sexual offenders: persons under 18

483     Clause 208 applies the extended sentence to those aged under 18. It operates in the same way as for adults, except that subsection (3) limits appropriate custodial term to 24 months.

Clause 209: The assessment of dangerousness

484.     This clause outlines the assessment of dangerousness required for the court to establish whether the offender poses a significant risk of serious harm to the public. The risk criteria are based on the existing provisions at section 161(4) of the Powers of Criminal Courts (Sentencing) Act 2000. When making this assessment the court must take into account all the information available to it about the nature and circumstances of the offence and it may also take into account any information about the pattern of behaviour of which the offence forms a part. Subsection (3) states that in cases where an offender has a previous conviction for a serious offence (as defined by Clause 204) there is an automatic assumption that they pose a significant risk to the public, unless the court considers on the basis of the evidence before it this assumption to be unreasonable. For the purposes of the provision in subsection (3), subsection (4) enables equivalent serious sexual or violent offences committed in Scotland or Northern Ireland (listed in Schedules 12 and 13) to be taken into account.

Clause 210: Imprisonment or detention for public protection: release on licence

485.     This clause introduces Schedule 14 which sets out the release provisions for the sentences for public protection.

Clause 211: Appeals where previous convictions set aside

486.     This clause applies to cases where an offender has been sentenced under the provisions relating to the commission of a second serious sexual or violent offence (contained within clause 209(3)). If subsequently, the first conviction is overturned on appeal, clause 211 enables notice of appeal against the new sentence to be given at any time within 28 days from the date which the previous conviction was set aside.

Clause 212: Certificates of convictions for the purposes of section 209

487.     This clause provides for a court in England and Wales to certify that it has convicted a person of a relevant offence.

Clause 213: Offences under service law

488.     For the purposes of the automatic assumption of a risk of serious harm in clause 209(3), this clause provides for certain convictions under service law to be counted as the previous conviction of a relevant offence.

Clause 214: Determination of day when offence committed

489.     Where an offence has been committed over several days, this clause treats it as having been committed on the last of those days for the purposes of determining whether it was committed after a conviction for another relevant offence.

Clause 215: Detention under clauses 206 and 208

490     This clause provides that a juvenile sentenced to a sentence of detention for public protection or an extended sentence may be detained in such place as may be determined by the Secretary of State or by such other person as may be authorised by him.

Clause 216: Conversion of sentences of detention into sentences of imprisonment

491     This clause amends section 99 of the Powers of Criminal Courts (Sentencing) Act 2000. This enables the Secretary of State to direct that an offender sentenced to a sentence of detention may be treated as if he had been sentenced to a term of imprisonment if he has reached the age of 21 or, if he has reached the age of 18, if he has been reported by the board of visitors as exercising a detrimental influence on the other inmates. This clause extends this power to the new sentence of detention for public protection and the new extended sentence.

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Prepared: 29 November 2002