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Criminal Justice and Immigration Bill


Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions

36

 

55      

Criminal conviction certificates and criminal record certificates

(1)   

Part 5 of the Police Act 1997 (c. 50) (certificates of criminal records) is amended

as follows.

(2)   

In section 112 (criminal conviction certificates)—

(a)   

in the definition of “central records”, after “convictions” insert “and

5

conditional cautions”;

(b)   

after that definition insert—

““conditional caution” means a caution given under

section 22 of the Criminal Justice Act 2003 (c. 44) or

section 66A of the Crime and Disorder Act 1998 (c. 37),

10

other than one that is spent for the purposes of Schedule

2 to the Rehabilitation of Offenders Act 1974 (c. 53).”

(3)   

In section 113A(6) (criminal record certificates)—

(a)   

in the definition of “exempted question”, after “a question” insert

“which—

15

“(a)   

so far as it applies to convictions, is a question”;

(b)   

in that definition, at the end insert “; and—

“(b)   

so far as it applies to cautions, is a question to which

paragraph 3(3) or (4) of Schedule 2 to that Act has been

excluded by an order of the Secretary of State under

20

paragraph 4 of that Schedule;”;

(c)   

in the definition of “relevant matter”, after “caution” insert “, including

a caution that is spent for the purposes of Schedule 2 to that Act”.

(4)   

This section extends to England and Wales only.

Proceedings in magistrates’ courts

25

56      

Allocation of offences triable either way etc.

Schedule 13 amends Schedule 3 to the Criminal Justice Act 2003 (which makes

provision in relation to the allocation and other treatment of offences triable

either way, and the sending of cases to the Crown Court).

57      

Trial or sentencing in absence of accused in magistrates’ courts

30

(1)   

Section 11 of the Magistrates’ Courts Act 1980 (c. 43) (non-appearance of

accused) is amended as follows.

(2)   

In subsection (1), for “the court may proceed in his absence” substitute “—

(a)   

if the accused is under 18 years of age, the court may proceed in

his absence; and

35

(b)   

if the accused has attained the age of 18 years, the court shall

proceed in his absence unless it appears to the court to be

contrary to the interests of justice to do so.

   

This is subject to subsections (2), (2A), (3) and (4).”

(3)   

After subsection (2) insert—

40

“(2A)   

The court shall not proceed in the absence of the accused if it considers

that there is an acceptable reason for his failure to appear.”

 
 

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions

37

 

(4)   

After subsection (3) insert—

“(3A)   

But where a sentence or order of a kind mentioned in subsection (3) is

imposed or given in the absence of the offender, the offender must be

brought before the court before being taken to a prison or other

institution to begin serving his sentence (and the sentence or order is

5

not to be regarded as taking effect until he is brought before the court).”

(5)   

After subsection (4) insert—

“(5)   

Nothing in this section requires the court to enquire into the reasons for

the accused’s failure to appear before deciding whether to proceed in

his absence.

10

(6)   

The court shall state in open court its reasons for not proceeding under

this section in the absence of an accused who has attained the age of 18

years; and the court shall cause those reasons to be entered in its

register of proceedings.”

(6)   

Section 13(5) of that Act (non-appearance of accused: issue of warrant) ceases

15

to have effect.

58      

Extension of powers of non-legal staff

(1)   

Section 7A of the Prosecution of Offences Act 1985 (c. 23) (powers of non-legal

staff) is amended as follows.

(2)   

In subsection (2)(a) (powers of designated non-legal staff)—

20

(a)   

in sub-paragraph (ii), omit “other than trials”;

(b)   

after sub-paragraph (ii) insert—

“(iii)   

the conduct of applications or other proceedings

relating to preventative civil orders;

(iv)   

the conduct of proceedings (other than criminal

25

proceedings) in, or in connection with, the

discharge of functions assigned to the Director

under section 3(2)(g) above.”

(3)   

For subsection (5) (interpretation) substitute—

“(5)   

In this section—

30

“bail in criminal proceedings” has the same meaning as in the Bail

Act 1976 (see section 1 of that Act);

“preventative civil orders” means—

(a)   

orders within section 3(2)(fa) to (fe) above;

(b)   

orders under section 5 or 5A of the Protection from

35

Harassment Act 1997 (restraining orders);

(c)   

orders under section 8 of the Crime and Disorder Act

1998 (parenting orders); or

(d)   

other orders that may be made by a magistrates’ court in

proceedings in respect of a person who has been

40

convicted of an offence where the proceedings—

(i)   

are not criminal proceedings, but

(ii)   

are referable to that conviction.”

(4)   

Omit subsection (6) (powers not applicable to offences triable only on

indictment etc.).

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Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions

38

 

(5)   

In section 15 of that Act (interpretation of Part 1) in subsection (4) (provisions

for the purposes of which binding over proceedings are to be taken to be

criminal proceedings) for “and 7(1)” substitute “, 7(1) and 7A”.

Criminal legal aid

59      

Provisional grant of right to representation

5

(1)   

Part 1 of the Access to Justice Act 1999 (c. 22) is amended as follows.

(2)   

In section 14(1) (representation)—

(a)   

after “criminal proceedings” insert “and about the provisional grant of

a right to representation in prescribed circumstances”;

(b)   

after “granted” insert “, or provisionally granted,”.

10

(3)   

In section 15(1) (selection of representative) after “granted” insert “, or

provisionally granted,”.

(4)   

In section 25(9) (orders, regulations and directions subject to affirmative

resolution procedure) for “paragraph 2A” substitute “paragraph 1A, 2A,”.

(5)   

In section 26 (interpretation) after the definition of “representation” insert—

15

   

“and, for the purposes of the definition of “representation”,

“proceedings” includes, in the context of a provisional grant of a right

to representation, proceedings that may result from the investigation

concerned.”

(6)   

After paragraph 1 of Schedule 3 (individuals to whom right may be granted)

20

insert—

“Individuals to whom right may be provisionally granted

1A    (1)  

Regulations may provide that, in prescribed circumstances, and

subject to any prescribed conditions, a right to representation may be

provisionally granted to an individual where—

25

(a)   

the individual is involved in an investigation which may

result in criminal proceedings, and

(b)   

the right is so granted for the purposes of criminal

proceedings that may result from the investigation.

      (2)  

Regulations under sub-paragraph (1) may, in particular, make

30

provision about—

(a)   

the stage in an investigation at which a right to representation

may be provisionally granted;

(b)   

the circumstances in which a right which has been so

granted—

35

(i)   

is to become, or be treated as if it were, a right to

representation under paragraph 1, or

(ii)   

is to be, or may be, withdrawn.”

(7)   

In paragraph 2A of Schedule 3 (grant of right by Commission) at the end of

sub-paragraph (1)(b) insert—

40

“(c)   

provide that any provisional grant of a right to

representation, or any withdrawal of a right so granted, in

 
 

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions

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accordance with regulations under paragraph 1A is to be

made by the Commission.”

(8)   

In paragraph 3A(1) of Schedule 3 (form of the grant of a right to representation)

after “grant” insert “, or provisional grant,”.

(9)   

In paragraph 3B of Schedule 3 (financial eligibility)—

5

(a)   

in sub-paragraph (1)—

(i)   

after “grant” insert “, or provisionally grant,”,

(ii)   

after “granted” insert “, or provisionally granted,”;

(b)   

in sub-paragraph (2)(a), after “granted” insert “, or provisionally

granted,”.

10

(10)   

In paragraph 4 of Schedule 3 (appeals) at the end insert—

           

“This paragraph does not apply in relation to any right to

representation granted in accordance with paragraph 1A.”

(11)   

In paragraph 5 of Schedule 3 (criteria for grant of right)—

(a)   

in sub-paragraph (1), after “grant” insert “, or provisionally grant,”;

15

(b)   

after sub-paragraph (2) insert—

   “(2A)  

For the purposes of sub-paragraph (2), “proceedings”

includes, in the context of a provisional grant of a right to

representation, proceedings that may result from the

investigation in which the individual is involved.”;

20

(c)   

in sub-paragraph (4), after “grant” insert “, or provisional grant,”.

60      

Disclosure of information to enable assessment of financial eligibility

(1)   

The Access to Justice Act 1999 (c. 22) is amended as follows.

(2)   

In section 25(9) (orders, regulations and directions subject to affirmative

resolution procedure), for “or 4” substitute “4 or 6”.

25

(3)   

In Schedule 3 (criminal defence service: right to representation), after

paragraph 5 insert—

“Information requests

6     (1)  

The relevant authority may make an information request to—

(a)   

the Secretary of State, or

30

(b)   

the Commissioners,

           

for the purpose of facilitating the making of a decision by the

authority about the application of paragraph 3B(1) or (2), or

regulations under paragraph 3B(3), in relation to an individual.

      (2)  

An information request made to the Secretary of State is a request for

35

the disclosure of some or all of the following information—

(a)   

the individual’s full name;

(b)   

the individual’s address;

(c)   

the individual’s date of birth;

(d)   

the individual’s national insurance number;

40

(e)   

the individual’s benefit status;

(f)   

information of any description specified in regulations.

 
 

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions

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      (3)  

An information request made to the Commissioners is a request for

the disclosure of some or all of the following information—

(a)   

whether or not the individual is employed;

(b)   

the name and address of the employer (if the individual is

employed);

5

(c)   

the individual’s national insurance number;

(d)   

information of any description specified in regulations made

with the agreement of the Commissioners.

      (4)  

The information that may be specified under subsection (3)(d)

includes, in particular, information relating to the individual’s

10

income (as defined in the regulations) for a period so specified.

      (5)  

On receiving an information request, the Secretary of State or (as the

case may be) the Commissioners may disclose the information

requested to the relevant authority.

Restrictions on disclosure

15

7     (1)  

A person to whom information is disclosed under paragraph 6(5), or

this sub-paragraph, may disclose the information to any person to

whom its disclosure is necessary or expedient in connection with

facilitating the making of a decision by the relevant authority about

the application of paragraph 3B(1) or (2), or regulations under

20

paragraph 3B(3), in relation to an individual.

      (2)  

A person to whom such information is disclosed commits an offence

if the person—

(a)   

discloses or uses the information, and

(b)   

the disclosure is not authorised by sub-paragraph (1) or (as

25

the case may be) the use is not for the purpose of facilitating

the making of such a decision as is mentioned in that sub-

paragraph.

      (3)  

But it is not an offence under sub-paragraph (2)—

(a)   

to disclose any information in accordance with any

30

enactment or order of a court or for the purposes of any

proceedings before a court; or

(b)   

to disclose any information which has previously been

lawfully disclosed to the public.

      (4)  

It is a defence for a person charged with an offence under sub-

35

paragraph (2) to prove that the person reasonably believed that the

disclosure or use was lawful.

      (5)  

A person guilty of an offence under sub-paragraph (2) is liable—

(a)   

on conviction on indictment, to imprisonment for a term not

exceeding 2 years or a fine or both;

40

(b)   

on summary conviction, to imprisonment for a term not

exceeding 12 months or a fine not exceeding the statutory

maximum or both.

      (6)  

In sub-paragraph (5)(b) the reference to 12 months is to be read as a

reference to 6 months in relation to an offence committed before the

45

commencement of section 154(1) of the Criminal Justice Act 2003.

 
 

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions

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      (7)  

Nothing in section 20 applies in relation to the disclosure of

information to which sub-paragraph (1) applies.

Paragraphs 6 and 7: supplementary

8     (1)  

This paragraph applies for the purposes of paragraphs 6 and 7.

      (2)  

“Benefit status”, in relation to an individual, means whether or not

5

the individual is in direct or indirect receipt of any prescribed benefit

or benefits and, if so (in the case of each benefit)—

(a)   

which benefit the individual is so receiving, and

(b)   

(in prescribed cases) the amount the individual is so

receiving by way of the benefit.

10

      (3)  

“The Commissioners” means the Commissioners for Her Majesty’s

Revenue and Customs.

      (4)  

“Information” means information held in any form.

      (5)  

Nothing in paragraph 6 or 7 authorises the making of a disclosure

which contravenes the Data Protection Act 1998.”

15

61      

Pilot schemes

(1)   

The Access to Justice Act 1999 (c. 22) is amended as follows.

(2)   

In section 17A (contribution orders) omit subsection (5) (piloting of

regulations).

(3)   

After section 18 insert—

20

“18A    

Pilot schemes

(1)   

This section applies to the following instruments—

(a)   

any order under section 14 or paragraph 5 of Schedule 3,

(b)   

any regulations under section 12, 13, 15, 17 or 17A or any of

paragraphs 1A to 5 of Schedule 3, and

25

(c)   

any regulations under section 22(5) having effect in relation to

the Criminal Defence Service.

(2)   

Any instrument to which this section applies may be made so as to have

effect for a specified period not exceeding 12 months.

(3)   

But if the Lord Chancellor thinks that it is necessary or expedient for

30

either of the purposes in subsection (4), the period specified in the

instrument—

(a)   

may in the first instance be a period not exceeding 18 months;

(b)   

may be varied so as to become a period not exceeding 18

months.

35

(4)   

The purposes are—

(a)   

ensuring the effective operation of the instrument;

(b)   

co-ordinating the operation of the instrument with the

operation of any other provision made under an enactment

relating to any aspect of the criminal justice system.

40

 
 

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions

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(5)   

The period for the time being specified in an instrument to which this

section applies may also be varied so that the instrument has effect for

such further period as the Lord Chancellor thinks necessary for the

purpose of securing that it remains in operation until the coming into

force of any order or regulations made under the same provision of this

5

Act that will have effect—

(a)   

generally, or

(b)   

for purposes wider than those for which the instrument has

effect.

(6)   

In the following provisions of this section “pilot scheme” means any

10

instrument which, in accordance with subsections (2) to (5), is to have

effect for a limited period.

(7)   

A pilot scheme may provide that its provisions are to apply only in

relation to—

(a)   

one or more specified areas or localities;

15

(b)   

one or more specified descriptions of court;

(c)   

one or more specified offences or descriptions of offence;

(d)   

one or more specified classes of person;

(e)   

persons selected—

(i)   

by reference to specified criteria; or

20

(ii)   

on a sampling basis.

(8)   

A pilot scheme may make consequential or transitional provision with

respect to the cessation of the scheme on the expiry of the specified

period (or that period as varied under subsection (3)(b) or (5)).

(9)   

A pilot scheme may be replaced by a further pilot scheme making the

25

same or similar provision.”

(4)   

In section 25 (regulations, orders and directions) after subsection (9A) insert—

“(9B)   

No order or regulations which, by virtue of section 18A, is or are to

have effect for a limited period shall be made unless a draft of the order

or regulations has been laid before, and approved by a resolution of,

30

each House of Parliament.”

Miscellaneous

62      

Compensation for miscarriages of justice

(1)   

The Criminal Justice Act 1988 (c. 33) has effect subject to the following

amendments.

35

(2)   

Section 133 (compensation for miscarriages of justice) is amended as follows.

(3)   

At the end of subsection (2) (compensation only payable if application for

compensation is made) insert “before the end of the period of 2 years beginning

with the date on which the conviction of the person concerned is reversed or

he is pardoned.

40

(2A)   

But the Secretary of State may direct that an application for

compensation made after the end of that period is to be treated as if it

had been made within that period if the Secretary of State considers

that there are exceptional circumstances which justify doing so.”

 
 

 
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