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Power to amend Schedules 3 and 5 | |
130 Power to amend Schedules 3 and 5 | |
(1) The Secretary of State may by order amend Schedule 3 or 5. | |
(2) Subject to subsection (3), an amendment within subsection (4) does not apply | |
to convictions, findings and cautions before the amendment takes effect. | 5 |
(3) For the purposes of sections 106 and 116, an amendment within subsection (4) | |
applies to convictions, findings and cautions before as well as after the | |
amendment takes effect. | |
(4) An amendment is within this subsection if it— | |
(a) adds an offence, | 10 |
(b) removes a threshold relating to an offence, or | |
(c) changes a threshold in such a way as to cause an offence committed by | |
or against a person of a particular age or in certain circumstances, or | |
resulting in a particular disposal, to be within a Schedule when it | |
would not otherwise be. | 15 |
General | |
131 Young offenders: application | |
This Part applies to— | |
(a) a period of detention which a person is liable to serve under a detention | |
and training order, or a secure training order, | 20 |
(b) a period for which a person is ordered to be detained in residential | |
accommodation under section 44(1) of the Criminal Procedure | |
(Scotland) Act 1995 (c. 46), | |
(c) a period of training in a training school, or of custody in a remand | |
centre, which a person is liable to undergo or serve by virtue of an order | 25 |
under section 74(1)(a) or (e) of the Children and Young Persons Act | |
(Northern Ireland) 1968 (c. 34 (N.I.)), | |
(d) a period for which a person is ordered to be detained in a juvenile | |
justice centre under Article 39 of the Criminal Justice (Children) | |
(Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)), | 30 |
(e) a period for which a person is ordered to be kept in secure | |
accommodation under Article 44A of the Order referred to in | |
paragraph (d), | |
(f) a sentence of detention in a young offender institution, a young | |
offenders institution or a young offenders centre, | 35 |
(g) a sentence under a custodial order within the meaning of section 71AA | |
of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 | |
(3 & 4 Eliz. 2 c. 19) or section 43AA of the Naval Discipline Act 1957 | |
(c. 53), | |
(h) a sentence of detention under section 90 or 91 of the Powers of Criminal | 40 |
Courts (Sentencing) Act 2000 (c. 6), section 208 of the Criminal | |
Procedure (Scotland) Act 1995 or Article 45 of the Criminal Justice | |
(Children) (Northern Ireland) Order 1998, | |
(i) a sentence of custody for life under section 93 or 94 of the Powers of | |
Criminal Courts (Sentencing) Act 2000, | 45 |
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(j) a sentence of detention, or custody for life, under section 71A of the | |
Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 | |
(3 & 4 Eliz. 2 c. 19) or section 43A of the Naval Discipline Act 1957 | |
(c. 53), | |
as it applies to an equivalent sentence of imprisonment; and references in this | 5 |
Part to prison or imprisonment are to be interpreted accordingly. | |
132 Offences with thresholds | |
(1) This section applies to an offence which in Schedule 3 is listed subject to a | |
condition relating to the way in which the defendant is dealt with in respect of | |
the offence or (where a relevant finding has been made in respect of him) in | 10 |
respect of the finding (a “sentencing condition”). | |
(2) Where an offence is listed if either a sentencing condition or a condition of | |
another description is met, this section applies only to the offence as listed | |
subject to the sentencing condition. | |
(3) For the purposes of this Part (including in particular section 82(6))— | 15 |
(a) a person is to be regarded as convicted of an offence to which this | |
section applies, or | |
(b) (as the case may be) a relevant finding in relation to such an offence is | |
to be regarded as made, | |
at the time when the sentencing condition is met. | 20 |
(4) In the following subsections, references to a foreign offence are references to an | |
act which— | |
(a) constituted an offence under the law in force in a country outside the | |
United Kingdom (“the relevant foreign law”), and | |
(b) would have constituted an offence to which this section applies (but not | 25 |
an offence, listed in Schedule 3, to which this section does not apply) if | |
it had been done in any part of the United Kingdom. | |
(5) In relation to a foreign offence, references to the corresponding UK offence are | |
references to the offence (or any offence) to which subsection (3)(b) applies in | |
the case of that foreign offence. | 30 |
(6) For the purposes of this Part, a person is to be regarded as convicted under the | |
relevant foreign law of a foreign offence at the time when he is, in respect of the | |
offence, dealt with under that law in a way equivalent to that mentioned in | |
Schedule 3 as it applies to the corresponding UK offence. | |
(7) Where in the case of any person a court exercising jurisdiction under the | 35 |
relevant foreign law makes in respect of a foreign offence a finding equivalent | |
to a relevant finding, the court’s finding is, for the purposes of this Part, to be | |
regarded as made at the time when the person is, in respect of the finding, dealt | |
with under that law in a way equivalent to that mentioned in Schedule 3 as it | |
applies to the corresponding UK offence. | 40 |
(8) Where (by virtue of an order under section 130 or otherwise) an offence is listed | |
in Schedule 5 subject to a sentencing condition, this section applies to that | |
offence as if references to Schedule 3 were references to Schedule 5. | |
(9) In this section, “relevant finding”, in relation to an offence, means— | |
(a) a finding that a person is not guilty of the offence by reason of insanity, | 45 |
or | |
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(b) a finding that a person is under a disability and did the act charged | |
against him in respect of the offence. | |
133 Part 2: general interpretation | |
In this Part— | |
“admitted to a hospital” means admitted to a hospital under— | 5 |
(a) section 37 of the Mental Health Act 1983 (c. 20), section 57(2)(a) | |
or 58 of the Criminal Procedure (Scotland) Act 1995 (c. 46) or | |
Article 44 or 50A(2) of the Mental Health (Northern Ireland) | |
Order 1986 (S.I. 1986/595 (N.I. 4)); | |
(b) Schedule 1 to the Criminal Procedure (Insanity and Unfitness to | 10 |
Plead) Act 1991 (c. 25); or | |
(c) regulations under subsection (3) of section 116B of the Army | |
Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 | |
(3 & 4 Eliz. 2 c. 19) or section 63B of the Naval Discipline Act | |
1957 (c. 53); | 15 |
“cautioned” means— | |
(a) cautioned by a police officer after the person concerned has | |
admitted the offence, or | |
(b) reprimanded or warned within the meaning given by section 65 | |
of the Crime and Disorder Act 1998 (c. 37), | 20 |
and “caution” is to be interpreted accordingly; | |
“community order” means— | |
(a) a community order within the meaning of the Powers of | |
Criminal Courts (Sentencing) Act 2000 (c. 6); | |
(b) a probation order or community service order under the | 25 |
Criminal Procedure (Scotland) Act 1995 or a supervised | |
attendance order made in pursuance of section 235 of that Act; | |
(c) a community order within the meaning of the Criminal Justice | |
(Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)), a | |
probation order under section 1 of the Probation Act (Northern | 30 |
Ireland) 1950 (c. 7 (N.I.)) or a community service order under | |
Article 7 of the Treatment of Offenders (Northern Ireland) | |
Order 1976 (S.I. 1976/226 (N.I. 40)); or | |
(d) a community supervision order under paragraph 4 of Schedule | |
5A to the Army Act 1955 or the Air Force Act 1955 or Schedule | 35 |
4A to the Naval Discipline Act 1957; | |
“country” includes territory; | |
“detained in a hospital” means detained in a hospital under— | |
(a) Part 3 of the Mental Health Act 1983, section 71 of the Mental | |
Health (Scotland) Act 1984 (c. 36), Part 6 of the Criminal | 40 |
Procedure (Scotland) Act 1995 or Part III of the Mental Health | |
(Northern Ireland) Order 1986; | |
(b) Schedule 1 to the Criminal Procedure (Insanity and Unfitness to | |
Plead) Act 1991; or | |
(c) regulations under subsection (3) of section 116B of the Army | 45 |
Act 1955 or the Air Force Act 1955 or section 63B of the Naval | |
Discipline Act 1957; | |
“guardianship order” means a guardianship order under section 37 of the | |
Mental Health Act 1983, section 58 of the Criminal Procedure | |
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(Scotland) Act 1995 or Article 44 of the Mental Health (Northern | |
Ireland) Order 1986; | |
“home address” has the meaning given by section 83(7); | |
“interim notification order” has the meaning given by section 100(2); | |
“interim risk of sexual harm order” has the meaning given by section | 5 |
126(2); | |
“interim sexual offences prevention order” has the meaning given by | |
section 109(2); | |
“local police area” has the meaning given by section 88(3); | |
“local probation board” has the same meaning as in the Criminal Justice | 10 |
and Court Services Act 2000 (c. 43); | |
“notification order” has the meaning given by section 97(1); | |
“notification period” has the meaning given by section 80(1); | |
“order for conditional discharge” has the meaning given by each of the | |
following— | 15 |
(a) section 12(3) of the Powers of Criminal Courts (Sentencing) Act | |
2000 (c. 6); | |
(b) Article 2(2) of the Criminal Justice (Northern Ireland) Order | |
1996 (S.I. 1996/3160 (N.I. 24)); | |
(c) paragraph 2(1) of Schedule 5A to the Army Act 1955 | 20 |
(3 & 4 Eliz. 2 c. 18); | |
(d) paragraph 2(1) of Schedule 5A to the Air Force Act 1955 | |
(3 & 4 Eliz. 2 c. 19); | |
(e) paragraph 2(1) of Schedule 4A to the Naval Discipline Act 1957 | |
(c. 53); | 25 |
“parental responsibility” has the same meaning as in the Children Act | |
1989 (c. 41) or the Children (Northern Ireland) Order 1995 (S.I. 1995/ | |
755 (N.I. 2)), and “parental responsibilities” has the same meaning as in | |
Part 1 of the Children (Scotland) Act 1995 (c. 36); | |
“the period of conditional discharge” has the meaning given by each of | 30 |
the following— | |
(a) section 12(3) of the Powers of Criminal Courts (Sentencing) Act | |
2000; | |
(b) Article 2(2) of the Criminal Justice (Northern Ireland) Order | |
1996; | 35 |
(c) paragraph 2(1) of Schedule 5A to the Army Act 1955; | |
(d) paragraph 2(1) of Schedule 5A to the Air Force Act 1955; | |
(e) paragraph 2(1) of Schedule 4A to the Naval Discipline Act 1957; | |
“probation order” has the meaning given by section 228(1) of the Criminal | |
Procedure (Scotland) Act 1995 (c. 46); | 40 |
“probation period” has the meaning given by section 307(1) of the | |
Criminal Procedure (Scotland) Act 1995; | |
“qualifying period” has the meaning given by section 84(6); | |
“relevant date” has the meaning given by section 82(6) (save in the | |
circumstances mentioned in sections 98, 100, 107, 109 and 129); | 45 |
“relevant offender” has the meaning given by section 80(2); | |
“restriction order” means— | |
(a) an order under section 41 of the Mental Health Act 1983 (c. 20), | |
section 57(2)(b) or 59 of the Criminal Procedure (Scotland) Act | |
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1995 or Article 47(1) of the Mental Health (Northern Ireland) | |
Order 1986 (S.I. 1986/595 (N.I. 4)); | |
(b) a direction under paragraph 2(1)(b) of Schedule 1 to the | |
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 | |
(c. 25) or Article 50A(3)(b) of the Mental Health (Northern | 5 |
Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)); or | |
(c) a direction under subsection (2) of section 116B of the Army Act | |
1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 | |
c. 19) or section 63B of the Naval Discipline Act 1957 (c. 53); | |
“risk of sexual harm order” has the meaning given by section 123(1); | 10 |
“sexual offences prevention order” has the meaning given by section | |
106(1); | |
“supervision” means supervision in pursuance of an order made for the | |
purpose or, in the case of a person released from prison on licence, in | |
pursuance of a condition contained in his licence; | 15 |
“term of service detention” means a term of detention awarded under | |
section 71(1)(e) of the Army Act 1955 or the Air Force Act 1955 or | |
section 43(1)(e) of the Naval Discipline Act 1957. | |
134 Conditional discharges and probation orders | |
(1) The following provisions do not apply for the purposes of this Part to a | 20 |
conviction for an offence in respect of which an order for conditional discharge | |
or, in Scotland, a probation order is made— | |
(a) section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 | |
(c. 6) (conviction with absolute or conditional discharge deemed not to | |
be a conviction); | 25 |
(b) Article 6(1) of the Criminal Justice (Northern Ireland) Order 1996 (S.I. | |
1996/3160 (N.I. 24)) (conviction with absolute or conditional discharge | |
deemed not to be a conviction); | |
(c) section 247(1) of the Criminal Procedure (Scotland) Act 1995 (c. 46) | |
(conviction with probation order or absolute discharge deemed not to | 30 |
be a conviction); | |
(d) paragraph 5(1) of Schedule 5A to the Army Act 1955 or the Air Force | |
Act 1955 or Schedule 4A to the Naval Discipline Act 1957 (conviction | |
with absolute or conditional discharge deemed not to be a conviction). | |
(2) This section applies only to convictions after the commencement of this Part. | 35 |
135 Interpretation: mentally disordered offenders | |
(1) In this Part, a reference to a conviction includes a reference to a finding of a | |
court in summary proceedings, where the court makes an order under an | |
enactment within subsection (2), that the accused did the act charged; and | |
similar references are to be interpreted accordingly. | 40 |
(2) The enactments are— | |
(a) section 37(3) of the Mental Health Act 1983 (c. 20); | |
(b) section 58(3) of the Criminal Procedure (Scotland) Act 1995; | |
(c) Article 44(4) of the Mental Health (Northern Ireland) Order 1986. | |
(3) In this Part, a reference to a person being or having been found to be under a | 45 |
disability and to have done the act charged against him in respect of an offence | |
includes a reference to his being or having been found— | |
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(a) unfit to be tried for the offence; | |
(b) to be insane so that his trial for the offence cannot or could not proceed; | |
or | |
(c) unfit to be tried and to have done the act charged against him in respect | |
of the offence. | 5 |
(4) In section 133— | |
(a) a reference to admission or detention under Schedule 1 to the Criminal | |
Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25), and the | |
reference to a direction under paragraph 2(1)(b) of that Schedule, | |
include respectively— | 10 |
(i) a reference to admission or detention under Schedule 1 to the | |
Criminal Procedure (Insanity) Act 1964 (c. 84); and | |
(ii) a reference to a restriction order treated as made by paragraph | |
2(1) of that Schedule; | |
(b) a reference to admission or detention under any provision of Part 6 of | 15 |
the Criminal Procedure (Scotland) Act 1995 (c. 46), and the reference to | |
an order under section 57(2)(b) or 59 of that Act, include respectively— | |
(i) a reference to admission or detention under section 174(3) or | |
376(2) of the Criminal Procedure (Scotland) Act 1975 (c. 21); and | |
(ii) a reference to a restriction order made under section 178(1) or | 20 |
379(1) of that Act; | |
(c) a reference to admission or detention under regulations made under | |
subsection (3), and the reference to a direction under subsection (2), of | |
section 116B of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force | |
Act 1955 (3 & 4 Eliz. 2 c. 19) or section 63B of the Naval Discipline Act | 25 |
1957 (c. 53) include respectively— | |
(i) a reference to admission or detention, and | |
(ii) a reference to a direction, | |
under section 46 of the Mental Health Act 1983 (c. 20), section 69 of the | |
Mental Health (Scotland) Act 1984 (c. 36) or Article 52 of the Mental | 30 |
Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)). | |
136 Part 2: Northern Ireland | |
(1) This Part applies to Northern Ireland with the following modifications. | |
(2) References to a chief officer of police are to be read as references to the Chief | |
Constable of the Police Service of Northern Ireland. | 35 |
(3) References to police areas are to be read as references to Northern Ireland. | |
(4) References to a complaint are to be read as references to a complaint under Part | |
VIII of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 | |
(N.I. 26)) to a court of summary jurisdiction. | |
(5) Subject to subsection (6), references to a magistrates’ court are to be read as | 40 |
references to a court of summary jurisdiction. | |
(6) References to a magistrates’ court for the area in which the defendant resides | |
are to be read as references to a court of summary jurisdiction for the petty | |
sessions district which includes the area where the defendant resides. | |
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(7) References to a youth court for the area in which the defendant resides are to | |
be read as references to a youth court for the petty sessions district which | |
includes the area where the defendant resides. | |
(8) References in sections 101, 110(1), (2), (3)(b), (4) and (5), 119 and 127 to the | |
Crown Court are to be read as references to a county court. | 5 |
(9) Any direction of the county court made under section 89(1) on an appeal under | |
Article 143 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/ | |
1675 (N.I. 26)) (appeals in other cases) (other than one directing that an | |
application be re-heard by a court of summary jurisdiction) is, for the purposes | |
of section 90, to be treated as if it were made by the court from which the appeal | 10 |
was brought and not by the county court. | |
(10) Any order of the county court made on an appeal under Article 143 of the | |
Magistrates’ Courts (Northern Ireland) Order 1981 (other than one directing | |
that an application be re-heard by a court of summary jurisdiction) is, for the | |
purposes of section 108, to be treated as if it were an order of the court from | 15 |
which the appeal was brought and not an order of the county court. | |
(11) An Order in Council under section 85 of the Northern Ireland Act 1998 (c. 47) | |
(provision dealing with certain reserved matters) which contains a statement | |
that it is made only for purposes corresponding to those of Schedule 4 to this | |
Act— | 20 |
(a) shall not be subject to subsections (3) to (9) of that section (affirmative | |
resolution of both Houses of Parliament), but | |
(b) shall be subject to annulment in pursuance of a resolution of either | |
House of Parliament. | |
(12) In relation to any time when section 1 of the Northern Ireland Act 2000 (c. 1) is | 25 |
in force (suspension of devolved government in Northern Ireland)— | |
(a) the reference in subsection (11) above to section 85 of the Northern | |
Ireland Act 1998 shall be read as a reference to paragraph 1 of the | |
Schedule to the Northern Ireland Act 2000 (legislation by Order in | |
Council during suspension), and | 30 |
(b) the reference in subsection (11)(a) above to subsections (3) to (9) of that | |
section shall be read as a reference to paragraph 2 of that Schedule. | |
Part 3 | |
General | |
137 Orders and regulations | 35 |
(1) Any power to make orders or regulations conferred by this Act on the | |
Secretary of State is exercisable by statutory instrument. | |
(2) A statutory instrument containing an order or regulations under section 22, 86 | |
or 130 may not be made unless a draft of the instrument has been laid before, | |
and approved by resolution of, each House of Parliament. | 40 |
(3) Any other statutory instrument, except one containing an order under section | |
140, is to be subject to annulment in pursuance of a resolution of either House | |
of Parliament. | |
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