Clause 257: Award of costs

535     This clause remedies a gap in existing legislation by means of an amendment to the Prosecution of Offences Act 1985. It provides that the Court of Appeal may award defence costs from central funds or award costs against the defendant following an appeal from a preparatory hearing in a non-fraud case under the Criminal Procedure and Investigations Act 1996. The amendment will bring appeals under the 1996 Act in line with equivalent appeals under the Criminal Justice Act 1987

     Clause 258 : Jury service

536.     This clause introduces Schedule 22.

Clause 259: Individual support orders

537.     Section 1 of the Crime and Disorder Act 1998 permits the police, the British Transport police, local authorities and registered social landlords to apply for anti-social behaviour orders (ASBOs) in the Magistrates' court. Orders can be issued to persons over 10 years who have acted in an anti-social manner and where the order is necessary to protect the public from further anti-social acts. Section 1 defines an anti-social manner as that which causes or is likely to cause harassment, alarm and distress to one or more persons not of the same household. Anti-social behaviour includes harassment, noise nuisance, writing graffiti and verbal abuse. An ASBO prohibits the person under the order from doing anything described in the order. Clause 259 inserts sections 1AA (Individual support orders) and 1AB (explanation, breach, amendment etc.) after section 1A of the Crime and Disorder Act 1998. These sections allow for a new order aimed at preventing further anti-social behaviour to be available where an anti-social behaviour order has already been granted against a person under 18.

538.     Subsection (1) of section 1AA (Individual support orders) obliges the court to consider the question of making an ISO after an anti-social behaviour order is made against a child or young person (that is a person aged 10-17). Subsection (2) states that the court must make an ISO if it is satisfied that the ISO conditions in subsection (3) are satisfied. Subsection (2)(a) ensures that requirements under the order cannot exceed a period of 6 months. Subsection (2)(b) allows the order to require the defendant to comply with directions given by a 'responsible officer' who can be one of the persons set out in subsection (10).

539.     All three conditions set out in subsection (3) have to be satisfied for an ISO to be made. If the conditions are not met and an ISO is not made, subsection (4) requires the court to state in open court why it considers that the conditions are not met.

540.     Subsection (5) sets out the nature of the requirements which a court can make in an ISO, namely any requirement that the court considers desirable in the interests of preventing a repetition of the anti-social behaviour which led to the ASBO.

541.     Subsection (6) sets out certain things which an ISO may require the defendant to do or which a responsible officer may direct the defendant to do. Subsection (7) ensures that the person subject to the order cannot be required to attend any place (or different places) under the order on more than two occasions in any given week. Subsection (8) obliges the court, when imposing requirements, to avoid conflict with religious beliefs and avoid interference with other educational attendance requirements as far as this is practicable.

542.     Subsection (9) allows the court to obtain whatever information it considers necessary in order to determine whether the individual support conditions set out in subsection (3) are fulfilled and in order to determine the requirements that should be included in an order. The court is empowered to obtain this information from a social worker of a local authority social services department or a member of youth offending team.

543.     Subsection (1) of section 1AB (Individual Support Orders: explanation, breach, amendment etc) sets out the court's obligation to explain to the defendant in open court the effect of the order, the consequences of breach and the power to review the order on application.

544.     Subsection (2) allows for the Secretary of State to prescribe cases: where the requirement to explain to the defendant in open court will not apply; where the explanation can be made in writing; and where the explanation can be given in the absence of the defendant.

545.     Subsection (5) requires an ISO to cease if the ASBO to which it is linked ceases. Subsection (6) allows the person who is subject to the order or the responsible officer to apply to the court for the order to be varied or discharged. Subsection (7) allows a court to vary or discharge an ISO if it is varying the ASBO to which the ISO is linked.

Clause 260: Individual support orders: consequential amendments

546.     Clause 260 makes changes consequential to the introduction of the ISO to sections 4, 18 and 38 of the Crime and Disorder Act 1998 and to section 143 of the Magistrates Courts Act 1980.

547.     Subsection (2) amends section 4 of the Crime and Disorder Act 1998, which sets out the provision for appeals against orders. This subsection allows for section 4 to apply to ISOs and allows for any ISO amended or made by the Crown Court to be treated as if it were an order of the magistrates' court.

548.     Subsection (4) amends s18(4) of the Crime and Disorder Act to ensure that the correct responsible officer is identified for the ISO.

549.     Subsection (5) by inserting provision of responsible officers into the definition of local provision of youth services ensures that there are obligations on the local authority to provide, and the bodies set out in 38(2) of the Crime and Disorder Act 1998 to co-operate in the provision of, responsible officers for ISOs.

550.     Subsection (6) inserts ISOs into section 143(2) of the Magistrates' Courts Act 1980 and allows the Secretary of State to amend the level of fines for ISOs if there has been a substantial change in the value of money.

     Clause 261: Parenting orders and referral orders

551.     Clause 261 introduces Schedule 23, which makes provision about the interaction of parenting orders, made under sections 8 to 10 Crime and Disorder Act 1998, and referral orders made under Part 3 of the Powers of Criminal Courts (Sentencing) Act 2000.

552.     Paragraph 1: Removal of restriction in Crime and Disorder Act 1998. This together with the amendment made in paragraph 3 of the Schedule removes from section 8 of the Crime and Disorder Act 1998 the restriction currently on a court for the making of a Parenting Order alongside a Referral Order.

553.     Paragraph 2: Supplemental provisions relating to Parenting Orders. This amends section 9 of the Crime and Disorder Act 1998 (which makes supplemental provision relating to Parenting Orders).

554     Subparagraph (2) substitutes a new subsection (1A) into section 9. The old subsection was one of the provisions ensuring that a parenting order and a referral order could not be made in respect of the same offence. The new subsection provides that the normal duty on the court to make a parenting order (or explain why it would not help to prevent the offender from committing another offence) where a person under the age of 16 is convicted of an offence does not apply where the court makes a referral order in respect of the offence.

555.     Subparagraph (3) inserts a new subsection (2A) and (3B) into section 9. This provides that where the court does decide to make a Parenting Order with a Referral Order, the court must obtain and consider a report by a probation officer, a local authority social worker, or a member of a youth offending team. The report should indicate what the requirements of the Parenting Order might include, the reasons why it would be desirable, and also, if the offender is under age 16 years, information about the family's circumstances and the likely effect of the Order on those circumstances.

556.     Subparagraph (4) inserts a new subsection (7A) which defines a Referral Order as an order imposed under section 16(2) or (3) of the Powers of Criminal Courts (Sentencing) Act 2000.

557.     Paragraph 3: Removal of Restriction in Powers of Criminal Courts (Sentencing) Act 2000. This removes the restriction in section 19(5) of the Powers of Criminal Courts (Sentencing) Act 2000 preventing the court from imposing a parenting order and a referral order in respect of the same offence.

558.     Paragraph 4: Panel to refer case back to Youth Court where parent or guardian fails to comply. This inserts a new subsection (2A) into section 22 of the Powers of Criminal Courts (Sentencing) Act 2000. A court making a referral order may require a parent or guardian to attend the meetings of the youth offender panel under section 20 of the Powers of Criminal Courts (Sentencing) Act 2000. Where the parent or guardian fails to comply with such an order, the new subsection provides the power to the panel to refer the case back to the offender's youth court. This would then allow the court the opportunity to decide whether it should impose a Parenting Order.

559.     Paragraphs 5 and 6: Arrangements when a panel refers a parent or guardian to the youth court. These insert new provisions into section 28 of and Schedule 1 to the Powers of Criminal Courts (Sentencing) Act 2000. These provisions set out the arrangements when a youth offender panel refers a parent or guardian to the appropriate youth court using the power set out in the new section 22(2A). The panel must make a report to the court explaining why the parent is being referred to it and the court can require the parent to appear before it by means of the issue of a summons, or a warrant for arrest. Where the parent then appears before the youth court, the court may make a Parenting Order if both of two conditions are satisfied. The first is that the court is satisfied that the parent has failed without reasonable excuse to comply with an order made by the court under section 20 to attend the youth offender panel. The second is that the court believes that it is desirable in the interests of preventing further offences being committed by the offender. The provisions also state which of the provisions of the Crime and Disorder Act relating to parenting orders apply to a parenting order made in these circumstances and provide for a right of appeal to the Crown Court against the making of a parenting order in these circumstances.

Clause 262: Arrangements for assessing etc. risks posed by certain offenders

560.     This clause re-enacts with amendments section 67 of the Criminal Justice and Courts Services Act 2000. It places a duty on the "responsible authority" (the chief officer of police, the local probation board for each area and the Prison Service) to establish and keep under review arrangements for assessing and managing the risks posed by "relevant sexual and violent offenders" or other offenders who may cause serious harm to the public (see subsection (2)). The arrangements which have been established at area level to undertake this duty take the form of "multi-agency public protection panels".

561.     Under subsection (3), the responsible authority and those bodies listed in subsection (6) must co-operate with each other, so as to enable the responsible authority to perform its duty. Subsection (5) states that a memorandum outlining this process must be produced. The Secretary of State is given the power in subsection (7) to amend the list of specified bodies who must co-operate with the responsible authority, so as to add or remove an entry.

Clause 263 Review of arrangements

562.     This clause requires the responsible authority to keep the effectiveness of the arrangements it has established under review and to change them where necessary. This review must be conducted in consultation with two lay advisers to be appointed for each area by the Secretary of State. This clause also requires the responsible authority to publish an annual report detailing how it has discharged its functions.

Clause 264: Clause 262 - interpretation

563.     This clause defines "relevant sexual or violent offender" for the purposes of clause 262.

Clause 265: Orders and rules

564.     This clause provides that where the Bill confers power on a Minister to make an order or rules, the power is exercisable by statutory instrument. The only exception is the case of rules under clause 219(5) about the proceedings of the Parole Board.

     565.     Subsection (5) lists statutory instruments that are to be subject to affirmative resolution procedure. All other instruments made under powers to which the clause applies, apart from those excluded by subsection (7), are subject to negative resolution procedure. An instrument made under any of the provisions mentioned in subsection (7) is not subject to any parliamentary procedure.

Clause 268: supplementary and consequential provision etc.

566.     This clause enables the Secretary of State to make supplementary, incidental or consequential provision, and transitory, transitional or saving provision. An order made under this power will be subject to negative resolution procedure (see clause 265(6)).

     567.     Where one provision of the Bill is brought into force before another, the power includes power to modify the provision brought into force so as to take account of the fact that the other provision is not yet in force. The power also includes a general power to make consequential amendment of other Acts.

Clause 269: provisions for Northern Ireland

568.     This clause provides that an Order in Council under section 85 of the Northern Ireland Act 1998 (or during direct rule, paragraph 1 of the Schedule to the Northern Ireland Act 2000), is to be subject to negative resolution rather than affirmative procedure if it contains a statement that it is made only for purposes corresponding to those in Part 11 of the Bill (evidence).

PART 14 : GENERAL

     Clause 272: Extent

569.     This clause provides that in general the Bill extends to England and Wales only, subject to the exceptions mentioned.

SCHEDULES

Schedule 1: Amendments related to Part 1

570.     Paragraphs 1 to 10 make various amendments which are consequential on the specific modifications and extensions to powers set out in Part 1.

571.     Paragraph 11 amends section 2 of the Criminal Justice Act 1987 to allow "appropriate persons" to exercise the powers of a constable executing a warrant under that section. "Appropriate persons" are either members of the Serious Fraud Office or authorised by the Director of that Office to accompany a constable executing a warrant under that section. This amendment is similar to that made by clause 2 of the Bill. "Appropriate persons" may exercise those powers only in the company and under the supervision of a constable. Paragraphs 12 and 13 make related amendments of section 2.

572.     Paragraph 14 extends the meaning of property seized by a constable, for the purposes of section 56(1) of the Criminal Justice and Police Act 2001, to include property seized by persons accompanying constables executing warrants as allowed for by clause 2 of and paragraph 11 of Schedule 1 to the Bill. This amendment is required for those cases in which a person accompanying a constable executing a warrant has (because of the changes made by the Bill) a power of seizure to which section 50, 53, 54, or 55 of the Criminal Justice and Police Act 2001 applies. Section 50 confers extended powers of seizure and sections 53 to 55 impose obligations to return certain seized items. Section 56 is relevant in determining whether items must be returned under sections 53 to 55 or whether they may be retained. Its effect is to authorise the retention of certain items.

573.     Paragraph 15 extends stop and search powers under section 2 of the Armed Forces Act 2001 to articles made, adapted or intended for use in causing criminal damage. This amendment is similar to that made by clause 1 of the Bill.

574.     Paragraphs 16 to 19 amend Schedule 4 to the Police Reform Act 2002 which allows certain police powers to be exercised by designated civilian members of staff. The amendments are necessary to ensure that those provisions are consistent with the amendments to PACE powers set out in the Bill.

Schedule 7 - Breach, revocation and amendment of community order

575.     This Schedule largely reproduces with some amendments the provisions of Schedule 3 of the Powers of Criminal Courts (Sentencing) Act 2000 (which will continue to apply to certain orders for young offenders). Part 1 deals with interpretation and other matters. Part 2 deals with breaches of requirements of a community order.

576.     Under paragraph 5, if an offender's responsible officer is of the view that he has failed to comply with any of the requirements of a community order without reasonable excuse, he either must give the offender a written warning or start enforcement proceedings. Under paragraph 6, if the offender fails again to comply, within a 12 month period and without reasonable excuse, the responsible officer must start enforcement proceedings. The responsible officer institutes proceedings by laying an information before a magistrate or Crown Court.

577.     Under paragraph 7, the magistrates' court may issue a summons requiring the attendance of the offender (or a warrant for his arrest) if it appears that he has failed to comply with any of the requirements of either of the following: a community order made by a magistrates' court; a community order made by the Crown Court which includes a drug rehabilitation requirement which is subject to review or a direction that breach of a requirement of the order is to be dealt with by the Crown Court. In the case of a community order which includes a drug rehabilitation requirement which is subject to review, the summons or warrant must direct the offender to appear or be brought before the magistrates' court responsible for that order.

578.     Paragraph 8 confers similar powers on the Crown Court where it has made a community order which includes either a direction that a failure to comply with the requirements be dealt with by the Crown Court or a drug rehabilitation requirement which is subject to review.

579.     Paragraph 9 provides that if a magistrates' court is satisfied that the offender has failed to comply with the community order it must deal with him in one of the ways specified. It can amend the order to make the requirements more onerous on the offender (for example by extending the duration of a particular requirement, but not beyond the limits that apply to that certain requirement nor beyond the three year limit of a community order). It can revoke the order and re-sentence the offender as if he had just been convicted. If the offender has wilfully and persistently failed to comply with the order the court can revoke the order and sentence him to a custodial sentence of not exceeding 51 weeks, even if the original offence was not punishable by imprisonment. When choosing any of these options the court must take into account the extent to which the offender has complied with the order. If the court takes the second or third option, it must revoke the community order if it is still in force. If the offender is re-sentenced, he can appeal against the new sentence. Where the order was made by the Crown Court (but that court did not direct that failures to comply should be dealt with by the Crown Court and it did not include a drug rehabilitation requirement which is subject to review) the magistrates' court dealing with the breach can remand the offender in custody or release him on bail to appear before the Crown Court. In this instance, it must send various details to the Crown Court regarding the breach.

580.     Paragraph 10 sets out how the Crown Court must deal with failure to comply with a community order whether dealt with directly under paragraph 8 or on committal from a magistrates' court under paragraph 9. The Crown Court's powers are similar to the magistrates' courts', except that the Crown Court will be able to exercise its own wider sentencing powers when re-sentencing. The court determines whether a breach has occurred, not a jury.

581.     Under paragraph 11, if an offender has refused to comply with a mental health, drug or alcohol treatment requirement, and the refusal is believed by the court to be reasonable under the circumstances, it is not to count as a breach of the order.

582.     Paragraph 12 deals with 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 18 by the time the court deals with the enforcement proceedings.

583.     Part 3 of the Schedule deals with the revocation of community orders. Under paragraph 13 either the offender or the responsible officer can apply to have the order revoked, due to circumstances that have arisen since the order was made. An example might be if the offender has become very ill and is unable to complete the requirements. The court can also revoke the order and re-sentence the offender as if he had just been convicted. This might occur if the offender or his responsible officer wanted to apply for a community order with different requirements, for example due to the good progress of the offender. If the court re-sentences, it must take into account the extent to which the offender complied with the original order. The offender can appeal against the second sentence. If the offender has not made the application to revoke, the court must summon him to appear in order to revoke or revoke and re-sentence. An offender cannot apply to revoke the order if an appeal against it is pending.

584.     Paragraph 14 gives similar powers to the Crown Court in the case of orders it has made which either contain a drug rehabilitation requirement with review or where the Crown Court has directed that failure to comply is to be dealt with by the Crown Court.

585.     Under paragraph 15, if the offender was under 18 when the community order was made, and the offence was triable only on indictment had it been committed by an adult, as part of revocation and re-sentencing after he attains 18 the court can impose a fine up to £5000 or re-sentence him as if he had just been convicted of an offence punishable with imprisonment of less than 12 months.

586.     Part 4 of the Schedule deals with amendment of community orders. Paragraph 16 deals with amendments by reason of the offender changing residence. A change of residence may necessitate amendment of the order to refer to an alternative petty sessions area. In this case, the change may be made on application by either the offender or his responsible officer. The appropriate court may (and if the application was made by the responsible officer, must) cancel or change any requirements of the order that are not available in the area to which the offender wishes to move. This is especially important in the case of a programme requirement. The appropriate court is the court responsible for an order to which a drug rehabilitation requirement with review is attached, the Crown Court where the order was made by the Crown Court and it directed that any failure to comply should be dealt with by the Crown Court, or in any other case, a magistrates' court in the petty sessions area concerned.

587.     Under paragraph 17 an offender or his responsible officer can also apply to have the requirements of an order amended, even if he is not planning to move. The court cannot add a wholly new requirement or substitute a different requirement for one that was originally specified in the order. The appropriate court can cancel a requirement or adjust it, for example to alter the hours of a curfew or substitute one activity for another. Any amendment is subject to the same restrictions as would be in place if the order were being made at that point. The court cannot amend a drug rehabilitation, alcohol treatment or mental health treatment requirement without the offender's consent. If the offender fails to consent, the court can revoke the order and re-sentence him. If it re-sentences him it must take into account the extent to which the offender has complied with the requirements of the community order. It can impose a custodial sentence if the original offence was punishable with imprisonment. If the offender was under 18 when the community order was made, and the offence would have been triable only on indictment had it been committed by an adult, as part of re-sentencing the court can impose a fine up to £5000 or re-sentence him as if he had just been convicted of an offence punishable with imprisonment of less than 12 months.

588.     Paragraph 18 provides that, where a community order includes a drug rehabilitation, alcohol treatment or mental health treatment requirement, and the medical practitioner or other person responsible for the treatment is of the opinion that the treatment should be extended beyond the period specified in the order, that the offender should receive different treatment, that the offender is not susceptible to treatment or that the offender does not require further treatment he must make a report to the responsible officer. He can also report that he is unwilling to continue to treat (or direct the treatment) of the offender for any reason. The responsible officer must then apply to the court to have the requirement amended or cancelled.

589.     Under paragraph 19, where a community order includes a drug rehabilitation requirement with provision for review, the responsible officer can apply to the court to amend the order to provide for future reviews to take place with or without hearings.

590.     Paragraph 20 provides that, on the application of the offender or the responsible officer, the court may extend an unpaid work requirement beyond the 12 months limit specified in clause 182, if it believes it to be in the interests of justice to do so having regard to circumstances which have arisen since the order was made.

591     Part 5 deals with the powers of the court in relation to a community order where the offender is subsequently convicted for another offence. Paragraph 21 sets out what the magistrates' court can do in this situation. It may, if it appears to the court to be in the interests of justice, revoke the order, or revoke the order and re-sentence the offender for the original offence as if he had just been convicted of it. If it re-sentences him, the court must take into account the extent to which the offender complied with the order. If it re-sentences, the offender has the right of appeal. If the magistrates' court is dealing with the new offence but the community order was made in the Crown Court it can commit the offender to custody or release him on bail to appear at the Crown Court.

592.     Paragraph 23 makes similar provision in relation to the powers of a Crown Court following conviction of a subsequent offence.

593.     Part 6 of the Schedule contains supplementary provisions. The court cannot amend an order while an appeal against the order is pending. Where a court is amending an order or dealing with a breach, and the application is not by the offender, the court must summon the offender to appear before the court and may issue a warrant if he does not appear. This does not apply if the court is cancelling a requirement, reducing the period of a requirement or substituting a new petty sessions area or place in the order. When amending a requirement any restrictions on the requirement still apply. The rest of this Part sets out procedural arrangements for sending copies of the order to relevant parties.