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House of Commons
Session 2002 - 03
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Criminal Justice Bill


Criminal Justice Bill
Part 11 — Evidence
Chapter 3 — Miscellaneous and supplemental

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 124   Use of documents to refresh memory

     (1)    A person giving oral evidence in criminal proceedings about any matter may,

at any stage in the course of doing so, refresh his memory of it from a document

made or verified by him at an earlier time if—

           (a)           he states in his oral evidence that the document records his recollection

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of the matter at that earlier time, and

           (b)           his recollection of the matter is likely to have been significantly better

at that time than it is at the time of his oral evidence.

     (2)    Where—

           (a)           a person giving oral evidence in criminal proceedings about any matter

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has previously given an oral account, of which a sound recording was

made, and he states in that evidence that the account represented his

recollection of the matter at that time,

           (b)           his recollection of the matter is likely to have been significantly better

at the time of the previous account than it is at the time of his oral

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evidence, and

           (c)           a transcript has been made of the sound recording,

            he may, at any stage in the course of giving his evidence, refresh his memory

of the matter from that transcript.

 125   Interpretation of Chapter 3

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In this Chapter—

                      “criminal proceedings” means criminal proceedings in relation to which

the strict rules of evidence apply;

                      “defendant”, in relation to criminal proceedings, means a person charged

with an offence in those proceedings;

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                      “document” means anything in which information of any description is

recorded, but not including any recording of sounds or moving images;

                      “oral evidence” includes evidence which, by reason of a defect of speech

or hearing, a person called as a witness gives in writing or by signs;

                      “video recording” means any recording, on any medium, from which a

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moving image may by any means be produced, and includes the

accompanying sound-track.

 126   Saving

No provision of this Part has effect in relation to criminal proceedings begun

before the commencement of that provision.

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Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

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Part 12

Sentencing

Chapter 1

General provisions about sentencing

Matters to be taken into account in sentencing

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 127   Purposes of sentencing

     (1)    Any court dealing with an offender in respect of his offence must have regard

to the following purposes of sentencing—

           (a)           the punishment of offenders,

           (b)           the reduction of crime (including its reduction by deterrence and its

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reduction by the reform and rehabilitation of offenders),

           (c)           the protection of the public, and

           (d)           the making of reparation by offenders to persons affected by their

offences.

     (2)    Subsection (1) does not apply—

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           (a)           in relation to an offender who is aged under 18 at the time of conviction,

           (b)           to an offence the sentence for which is fixed by law,

           (c)           to an offence the sentence for which falls to be imposed under

subsection (2) of section 110 or 111 of the Sentencing Act (required

custodial sentences) or under any of sections 207 to 210 of this Act

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(dangerous offenders), or

           (d)           in relation to the making under Part 3 of the Mental Health Act 1983

(c. 20) of a hospital order (with or without a restriction order), an

interim hospital order, a hospital direction or a limitation direction.

     (3)    In this Chapter “sentence”, in relation to an offence, includes any order made

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by a court when dealing with the offender in respect of his offence; and

“sentencing” is to be construed accordingly.

 128   Determining the seriousness of an offence

     (1)    In considering the seriousness of any offence, the court must consider the

offender’s culpability in committing the offence and the harm, or risk of harm,

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which the offence caused or was intended to cause.

     (2)    In considering the seriousness of an offence (“the current offence”) committed

by an offender who has one or more previous convictions, the court must treat

each previous conviction as an aggravating factor if (in the case of that

conviction) the court considers that it can reasonably be so treated having

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regard, in particular, to—

           (a)           the nature of the offence to which the conviction relates and its

relevance to the current offence, and

           (b)           the time that has elapsed since the conviction.

     (3)    In considering the seriousness of any offence committed while the offender

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was on bail, the court must treat the fact that it was committed in those

circumstances as an aggravating factor.

 

 

Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

    77

 

     (4)    Any reference in subsection (2) to a previous conviction is to be read as a

reference to —

           (a)           a previous conviction by a court in the United Kingdom, or

           (b)           a previous finding of guilt in service disciplinary proceedings.

     (5)    A conviction in respect of which a probation order was made before 1st

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October 1992 (which by virtue of section 13 of the Powers of Criminal Courts

Act 1973 (c. 62) would otherwise not be a conviction for the purposes of this

section) is to be treated as a conviction for those purposes.

     (6)    A conviction in respect of which an order discharging the offender absolutely

or conditionally was made at any date (which by virtue of section 14 of the

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Sentencing Act would otherwise not be a conviction for the purposes of this

section) is to be treated as a conviction for those purposes.

     (7)    Subsections (2) and (4) do not prevent the court from treating a previous

conviction by a court outside the United Kingdom as an aggravating factor in

any case where the court considers it appropriate to do so.

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 129   Reduction in sentences for guilty pleas

     (1)    In determining what sentence to pass on an offender who has pleaded guilty

to an offence in proceedings before that or another court, a court must take into

account—

           (a)           the stage in the proceedings for the offence at which the offender

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indicated his intention to plead guilty, and

           (b)           the circumstances in which this indication was given.

     (2)    In the case of an offence the sentence for which falls to be imposed under

subsection (2) of section 110 or 111 of the Sentencing Act, nothing in that

subsection prevents the court, after taking into account any matter referred to

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in subsection (1) of this section, from imposing any sentence which is not less

than 80 per cent of that specified in that subsection.

 130   Increase in sentences for racial or religious aggravation

     (1)    This section applies where a court is considering the seriousness of an offence

other than one under sections 29 to 32 of the Crime and Disorder Act 1998

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(c. 37) (racially or religiously aggravated assaults, criminal damage, public

order offences and harassment etc).

     (2)    If the offence was racially or religiously aggravated, the court—

           (a)           must treat that fact as an aggravating factor, and

           (b)           must state in open court that the offence was so aggravated.

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     (3)    Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or

religiously aggravated”) applies for the purposes of this section as it applies for

the purposes of sections 29 to 32 of that Act.

General restrictions on community sentences

 131   Meaning of “community sentence” etc.

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     (1)    In this Part “community sentence” means a sentence which consists of or

includes—

 

 

Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

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           (a)           a community order (as defined by section 161), or

           (b)           one or more youth community orders.

     (2)    In this Chapter “youth community order” means—

           (a)           a curfew order as defined by section 163 of the Sentencing Act,

           (b)           an exclusion order under section 40A(1) of that Act,

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           (c)           an attendance centre order as defined by section 163 of that Act,

           (d)           a supervision order under section 63(1) of that Act, or

           (e)           an action plan order under section 69(1) of that Act.

 132   Restrictions on imposing community sentences

     (1)    A court must not pass a community sentence on an offender unless it is of the

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opinion that the offence, or the combination of the offence and one or more

offences associated with it, was serious enough to warrant such a sentence.

     (2)    Where a court passes a community sentence which consists of or includes a

community order—

           (a)           the particular requirement or requirements forming part of the

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community order must be such as, in the opinion of the court, is, or

taken together are, the most suitable for the offender, and

           (b)           the restrictions on liberty imposed by the order must be such as in the

opinion of the court are commensurate with the seriousness of the

offence, or the combination of the offence and one or more offences

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associated with it.

     (3)    Where a court passes a community sentence which consists of or includes one

or more youth community orders—

           (a)           the particular order or orders forming part of the sentence must be such

as, in the opinion of the court, is, or taken together are, the most suitable

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for the offender, and

           (b)           the restrictions on liberty imposed by the order or orders must be such

as in the opinion of the court are commensurate with the seriousness of

the offence, or the combination of the offence and one or more offences

associated with it.

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     (4)    Subsections (1) and (2)(b) have effect subject to section 135(2).

 133   Passing of community sentence on offender remanded in custody

     (1)    In determining the restrictions on liberty to be imposed by a community order

or youth community order in respect of an offence, the court may have regard

to any period for which the offender has been remanded in custody in

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connection with the offence or any other offence the charge for which was

founded on the same facts or evidence.

     (2)    In subsection (1) “remanded in custody” has the meaning given by section

224(2).

 134   Community sentence not available where sentence fixed by law etc.

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The power to make a community order or youth community order is not

exercisable in respect of an offence for which the sentence—

           (a)           is fixed by law,

 

 

Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

    79

 

           (b)           falls to be imposed under section 110(2) or 111(2) of the Sentencing Act

(requirement to impose custodial sentences for certain repeated

offences committed by offenders aged 18 or over), or

           (c)           falls to be imposed under any of sections 207 to 210 of this Act

(requirement to impose custodial sentences for certain offences

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committed by offenders posing risk to public).

 135   Community order for persistent offender previously fined

     (1)    Subsection (2) applies where—

           (a)           a person aged 16 or over is convicted of an offence (“the current

offence”),

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           (b)           on three or more previous occasions he has, on conviction by a court in

the United Kingdom of any offence committed by him after attaining

the age of 16, had passed on him a sentence consisting only of a fine,

and

           (c)           despite the effect of section 128(2), the court would not (apart from this

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section) regard the current offence, or the combination of the current

offence and one or more offences associated with it, as being serious

enough to warrant a community sentence.

     (2)    The court may make a community order in respect of the current offence

instead of imposing a fine if it considers that, having regard to all the

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circumstances including the matters mentioned in subsection (3), it would be

in the interests of justice to make such an order.

     (3)    The matters referred to in subsection (2) are—

           (a)           the nature of the offences to which the previous convictions mentioned

in subsection (1)(b) relate and their relevance to the current offence, and

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           (b)           the time that has elapsed since the offender’s conviction of each of those

offences.

     (4)    In subsection (1)(b), the reference to conviction by a court in the United

Kingdom includes a reference to the finding of guilt in service disciplinary

proceedings; and, in relation to any such finding of guilt, the reference to the

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sentence passed is a reference to the punishment awarded.

     (5)    For the purposes of subsection (1)(b), a compensation order does not form part

of an offender’s sentence.

     (6)    For the purposes of subsection (1)(b), it is immaterial whether on other

previous occasions a court has passed on the offender a sentence not consisting

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only of a fine.

     (7)    This section does not limit the extent to which a court may, in accordance with

section 128(2), treat any previous convictions of the offender as increasing the

seriousness of an offence.

General restrictions on discretionary custodial sentences

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 136   General restrictions on imposing discretionary custodial sentences

     (1)    This section applies where a person is convicted of an offence punishable with

a custodial sentence other than one—

           (a)           fixed by law, or

 

 

Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

    80

 

           (b)           falling to be imposed under 110(2) or 111(2) of the Sentencing Act or

under any of sections 207 to 210 of this Act.

     (2)    The court must not pass a custodial sentence unless it is of the opinion that the

offence, or the combination of the offence and one or more offences associated

with it, was so serious that neither a fine alone nor a community sentence can

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be justified for the offence.

     (3)    Nothing in subsection (2) prevents the court from passing a custodial sentence

on the offender if—

           (a)            he fails to express his willingness to comply with a requirement which

is proposed by the court to be included in a community order and

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which requires an expression of such willingness, or

           (b)           he fails to comply with an order under section 146(2) (pre-sentence

drug testing).

 137   Length of discretionary custodial sentences: general provision

     (1)    This section applies where a court passes a custodial sentence other than one

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fixed by law or falling to be imposed under section 207 or 208.

     (2)    Subject to sections 110(2) and 111(2) of the Sentencing Act and sections 209(2)

and 210(2) of this Act, the custodial sentence must be for the shortest term (not

exceeding the permitted maximum) that in the opinion of the court is

commensurate with the seriousness of the offence, or the combination of the

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offence and one or more offences associated with it.

General limit on magistrates’ court’s power to impose imprisonment

 138   General limit on magistrates’ court’s power to impose imprisonment

     (1)    A magistrates’ court does not have power to impose imprisonment for more

than 12 months in respect of any one offence.

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     (2)    Unless expressly excluded, subsection (1) applies even if the offence in        

question is one for which a person would otherwise be liable on summary

conviction to imprisonment for more than 12 months.

     (3)    Subsection (1) is without prejudice to section 133 of the Magistrates’ Courts Act

1980 (c. 43) (consecutive terms of imprisonment).

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     (4)    Any power of a magistrates’ court to impose a term of imprisonment for non-

payment of a fine, or for want of sufficient distress to satisfy a fine, is not

limited by virtue of subsection (1).

     (5)    In subsection (4) “fine” includes a pecuniary penalty but does not include a

pecuniary forfeiture or pecuniary compensation.

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     (6)    In this section “impose imprisonment” means pass a sentence of imprisonment

or fix a term of imprisonment for failure to pay any sum of money, or for want

of sufficient distress to satisfy any sum of money, or for failure to do or abstain

from doing anything required to be done or left undone.

     (7)    Section 132 of the Magistrates’ Courts Act 1980 contains provisions about the

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minimum term of imprisonment which may be imposed by a magistrates’

court.

 

 

 
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