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Criminal Justice and Immigration Bill


Criminal Justice and Immigration Bill
Part 2 — Sentencing

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(c)   

the court exercises the power conferred by subsection (1) in

relation to at least one sentence passed for an indictable offence,

   

the power conferred by subsection (1) may be exercised in relation to

the sentence passed for the summary offence or offences (or any of

them) being dealt with at that time.”

5

11      

Restriction on imposing community sentences

In section 148 of the Criminal Justice Act 2003 (c. 44) (restrictions on imposing

community sentences) after subsection (4) insert—

“(5)   

The fact that by virtue of any provision of this section—

(a)   

a community sentence may be passed in relation to an offence;

10

or

(b)   

particular restrictions on liberty may be imposed by a

community order or youth community order,

   

does not require a court to pass such a sentence or to impose those

restrictions.”

15

Custodial sentences and release

12      

Indeterminate sentences: determination of tariffs

(1)   

Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

(determination of tariffs in cases where the sentence is not fixed by law) is

amended as follows.

20

(2)   

In subsection (3) (determination of the appropriate part of the sentence) at the

end insert—

   

“In Case A or Case B below, this subsection has effect subject to, and in

accordance with, subsection (3C) below.”

(3)   

After subsection (3) insert—

25

“(3A)   

Case A is where the court is of the opinion that the seriousness of the

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

offences associated with it,—

(a)   

is exceptional (but not such that the court proposes to make an

order under subsection (4) below), and

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(b)   

would not be adequately reflected by the period which the court

would otherwise specify under subsection (2) above.

(3B)   

Case B is where the court is of the opinion that the period which it

would otherwise specify under subsection (2) above would have little

or no effect on time spent in custody, taking into account all the

35

circumstances of the particular offender.

(3C)   

In Case A or Case B above, in deciding the effect which the comparison

required by subsection (3)(c) above is to have on reducing the period

which the court determines for the purposes of subsection (3)(a) (and

before giving effect to subsection (3)(b) above), the court may, instead

40

of reducing that period by one-half,—

(a)   

in Case A above, reduce it by such lesser amount (including nil)

as the court may consider appropriate according to the

seriousness of the offence, or

 
 

Criminal Justice and Immigration Bill
Part 2 — Sentencing

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(b)   

in Case B above, reduce it by such lesser amount (but not by less

than one-third) as the court may consider appropriate in the

circumstances.”

(4)   

In subsection (4A) (no order to be made under subsection (4) in the case of

certain sentences) after “No order under subsection (4) above may be made”

5

insert “, and Case A above does not apply,”.

13      

Consecutive terms of imprisonment

(1)   

Part 12 of the Criminal Justice Act 2003 (c. 44) (sentencing) is amended as

follows.

(2)   

In section 181 (consecutive terms of imprisonment complying with section 181)

10

after subsection (7) insert—

“(7A)   

For the purposes of subsection (7)(a) the aggregate length of the terms

of imprisonment is not to be regarded as being more than 65 weeks if

the aggregate of all the custodial periods and the longest of the licence

periods in relation to those terms is not more than 65 weeks.”

15

(3)   

In section 264A (consecutive terms: intermittent custody)—

(a)   

in subsection (3), omit the words from “and none” to the end;

(b)   

in subsection (4)(b), for “the longest of the total” substitute “all the”; and

(c)   

in subsection (5), for the definition of “total licence period” substitute—

““licence period” has the same meaning as in section

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183(3);”.

(4)   

In section 265 (restriction on consecutive sentences for released prisoners)—

(a)   

in subsection (1), for “early under this Chapter” substitute “—

“(a)   

under this Chapter; or

(b)   

under Part 2 of the Criminal Justice Act 1991.”; and

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(b)   

after that subsection insert—

“(1A)   

Subsection (1) applies to a court sentencing a person to a term

of imprisonment for offences committed before 4 April 2005 as

well as for offences committed on or after that date.

(1B)   

Where an intermittent custody order applies to the other

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sentence, the reference in subsection (1) to release under this

Chapter does not include release by virtue of section 183(1)(b)(i)

(periods of temporary release on licence before the custodial

days specified under section 183(1)(a) have been served).”

14      

Minimum conditions for early release under section 246(1) of the Criminal

35

Justice Act 2003

In section 246(2) of the Criminal Justice Act 2003 (minimum conditions for

early release of fixed-term prisoner other than intermittent custody prisoner)

for paragraph (b) substitute “and

(b)   

he has served—

40

(i)   

at least 4 weeks of that period, and

(ii)   

at least one-half of that period.”

 
 

Criminal Justice and Immigration Bill
Part 2 — Sentencing

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15      

Application of section 35(1) of the Criminal Justice Act 1991 to prisoners liable

to removal from the UK

(1)   

The following provisions of Part 2 of the Criminal Justice Act 1991 (c. 53)

(which apply to persons sentenced for offences committed before 4th April

2005) cease to have effect—

5

(a)   

section 46(1) (which makes the early release power under section 35(1)

exercisable in relation to long term prisoners liable to removal without

a Parole Board recommendation), and

(b)   

in section 50(2), the words from “but nothing” to the end (which

exclude prisoners liable to removal from the cases in which prisoners

10

must be released if recommended for release by the Parole Board);

   

and, accordingly, the Parole Board (Transfer of Functions) Order 1998 (S.I.

1998/3218) applies to prisoners liable to removal as it applies to other

prisoners.

(2)   

In this section “prisoners liable to removal” means prisoners liable to removal

15

from the United Kingdom (within the meaning of section 46(3) of the Criminal

Justice Act 1991).

16      

Release of prisoners after recall

(1)   

In section 254 of the Criminal Justice Act 2003 (c. 44) (recall of prisoners while

on licence)—

20

(a)   

subsections (3) to (5) cease to have effect;

(b)   

in subsection (7) for “subsections (2) to (6)” substitute “this section”.

(2)   

After that section insert—

“254A   

Re-release after recall: offences other than specified offences

(1)   

This section applies to any person recalled under section 254, unless he

25

is serving—

(a)   

a sentence imposed for a specified offence, or

(b)   

an extended sentence imposed under section 227 or 228, section

58 of the Crime and Disorder Act 1998 or section 85 of the

Powers of Criminal Courts (Sentencing) Act 2000.

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(2)   

If the Secretary of State is satisfied, on recalling a person to whom this

section applies, that the person will not present a risk of serious harm

to the public if he is released at the end of the period of 28 days

beginning with the date on which he is returned to prison, then

subsection (4) applies.

35

(3)   

But subsection (4) does not apply to a person who has previously been

released under paragraph (b) of that subsection.

(4)   

The person must—

(a)   

on his return to prison, be informed that he will be released

under this subsection, and

40

(b)   

at the end of the period mentioned in subsection (2), be released

by the Secretary of State on licence under this Chapter (unless

he has already been released under subsection (5)).

 
 

Criminal Justice and Immigration Bill
Part 2 — Sentencing

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(5)   

The Secretary of State may, at any time after a person to whom this

section applies is returned to prison, release him again on licence under

this Chapter.

(6)   

The Secretary of State must not release a person under subsection (5)

unless the Secretary of State is satisfied that it is not necessary for the

5

protection of the public that he should remain in prison.

(7)   

The Secretary of State must refer to the Board the case of any person to

whom this section applies—

(a)   

if the person makes representations under section 254(2) before

the end of the period of 28 days beginning with the date on

10

which he is returned to prison, on the making of those

representations;

(b)   

if, at the end of that period, the person has not been released

under subsection (4)(b) or (5) and has not made such

representations, at that time.

15

(8)   

Where on a reference under subsection (7) relating to any person the

Board recommends his immediate release on licence under this

Chapter, the Secretary of State must give effect to the recommendation.

(9)   

In the case of an intermittent custody prisoner who has not yet served

in prison the number of custodial days specified in the intermittent

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custody order, any recommendation by the Board as to immediate

release on licence is to be a recommendation as to his release on licence

until the end of one of the licence periods specified by virtue of section

183(1)(b) in the intermittent custody order.

(10)   

The Secretary of State may by order amend the number of days for the

25

time being specified in subsection (2) or (7)(a).

(11)   

In subsection (1) “specified offence” has the meaning given by section

224.

254B    

Re-release after recall: specified offences

(1)   

This section applies to any person recalled under section 254 who is

30

serving a sentence imposed for a specified offence, unless he is serving

an extended sentence imposed under section 227 or 228, section 58 of

the Crime and Disorder Act 1998 or section 85 of the Powers of

Criminal Courts (Sentencing) Act 2000.

(2)   

The Secretary of State may, at any time after the person is returned to

35

prison, release him again on licence under this Chapter.

(3)   

The Secretary of State must not release a person under subsection (2)

unless the Secretary of State is satisfied that it is not necessary for the

protection of the public that he should remain in prison.

(4)   

The Secretary of State must refer to the Board the case of any person to

40

whom this section applies—

(a)   

if the person makes representations under section 254(2) before

the end of the period of 28 days beginning with the date on

which he is returned to prison, on the making of those

representations, or

45

 
 

Criminal Justice and Immigration Bill
Part 2 — Sentencing

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(b)   

if, at the end of that period, the person has not been released

under subsection (2) and has not made such representations, at

that time.

(5)   

Where on a reference under subsection (4) relating to any person the

Board recommends his immediate release on licence under this

5

Chapter, the Secretary of State must give effect to the recommendation.

(6)   

In the case of an intermittent custody prisoner who has not yet served

in prison the number of custodial days specified in the intermittent

custody order, any recommendation by the Board as to immediate

release on licence is to be a recommendation as to his release on licence

10

until the end of one of the licence periods specified by virtue of section

183(1)(b) in the intermittent custody order.

(7)   

The Secretary of State may by order amend the number of days for the

time being specified in subsection (4)(a).

(8)   

In subsection (1) “specified offence” has the meaning given by section

15

224.

254C    

Re-release after recall: extended sentences

(1)   

This section applies to any person recalled under section 254 who is

serving an extended sentence imposed under section 227 or 228, or

section 58 of the Crime and Disorder Act 1998 or section 85 of the

20

Powers of Criminal Courts (Sentencing) Act 2000.

(2)   

The Secretary of State must refer to the Board the case of any person to

whom this section applies.

(3)   

Where on a reference under subsection (2) relating to any person the

Board recommends his immediate release on licence under this

25

Chapter, the Secretary of State must give effect to the

recommendation.”

(3)   

In section 256 of that Act (further release after recall) in subsection (1) (powers

of Board on a reference) for “section 254(3)” substitute “section 254A(7),

254B(4) or 254C(2)”.

30

(4)   

In section 330 of that Act (orders and rules) in subsection (5)(a) (statutory

instruments subject to the affirmative resolution procedure) at the appropriate

place insert—

   

“section 254A(10),

   

  section 254B(7),”.

35

17      

Further review and release of prisoners after recall

(1)   

Section 256 of the Criminal Justice Act 2003 (c. 44) (further release after recall)

is amended as follows.

(2)   

In subsection (1) for paragraph (b) substitute—

“(b)   

determine the reference by making no recommendation as to

40

his release.”

(3)   

In subsection (2) omit “or (b)”.

(4)   

Subsections (3) and (5) cease to have effect.

 
 

Criminal Justice and Immigration Bill
Part 2 — Sentencing

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(5)   

After section 256 insert—

“256A   

Further review

(1)   

The Secretary of State must, not later than the first anniversary of a

determination by the Board under section 256(1) or subsection (4)

below, refer the person’s case to the Board.

5

(2)   

The Secretary of State may, at any time before that anniversary, refer

the person’s case to the Board.

(3)   

The Board may at any time recommend to the Secretary of State that a

person’s case be referred under subsection (2).

(4)   

On a referral under subsection (1) or (2), the Board must determine the

10

reference by—

(a)   

recommending the person’s immediate release on licence under

this Chapter,

(b)   

fixing a date for his release on licence, or

(c)   

making no recommendation as to his release.”

15

18      

Recall of life prisoners: abolition of requirement for recommendation by

Parole Board

(1)   

Section 32 of the Crime (Sentences) Act 1997 (c. 43) (recall of life prisoners

while on licence) is amended as follows.

(2)   

For subsections (1) and (2) (power of Secretary of State to revoke licence)

20

substitute—

“(1)   

The Secretary of State may, in the case of any life prisoner who has been

released on licence under this Chapter, revoke his licence and recall

him to prison.”

(3)   

In subsection (3) (representations by prisoner) for “subsection (1) or (2) above”

25

substitute “this section”.

(4)   

In subsection (4) (reference to Parole Board by Secretary of State) for

paragraphs (a) and (b) substitute “the case of a life prisoner recalled under this

section”.

Early removal of prisoners from the United Kingdom

30

19      

Removal under Criminal Justice Act 1991 (offences before 4th April 2005 etc.)

(1)   

Part 2 of the Criminal Justice Act 1991 (c. 53) (early release of prisoners) is

amended as follows.

(2)   

After section 46 insert—

“46ZA   

  Persons eligible for removal from the United Kingdom

35

(1)   

For the purposes of section 46A below, to be “eligible for removal from

the United Kingdom” a person must show, to the satisfaction of the

Secretary of State, that the condition in subsection (2) is met.

 
 

Criminal Justice and Immigration Bill
Part 2 — Sentencing

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(2)   

The condition is that the person has the settled intention of residing

permanently outside the United Kingdom if removed from prison

under section 46A below.

(3)   

The person must not be one who is liable to removal from the United

Kingdom.”

5

(3)   

Section 46A (early removal of persons liable to removal from the United

Kingdom) is amended as follows.

(4)   

In subsection (1) (the power of removal) after “is liable to” insert “, or eligible

for,”.

(5)   

Also in subsection (1), for “at any time after he has served the requisite period”

10

substitute “at any time in the period—

(a)   

beginning when the person has served the requisite period (see

subsection (5)), and

(b)   

ending when the person has served one-half of the term.”

(6)   

Subsection (2) (cases where subsection (1) does not apply) ceases to have effect.

15

(7)   

In subsection (3) (purpose of removal from prison etc.)—

(a)   

at the beginning of paragraph (a) insert “if liable to removal from the

United Kingdom,”;

(b)   

for “and” at the end of that paragraph substitute—

“(aa)   

if eligible for removal from the United Kingdom, is so

20

removed only for the purpose of enabling the prisoner

to leave the United Kingdom in order to reside

permanently outside the United Kingdom, and”;

(c)   

at the beginning of paragraph (b) insert “in either case,”.

(8)   

In subsection (5) (the requisite period) in paragraph (a) omit “three months or

25

more but”.

(9)   

In consequence of the amendments made by this section, the heading to section

46A becomes “Early removal of persons liable to, or eligible for, removal from

United Kingdom”.

20      

Removal under Criminal Justice Act 2003

30

(1)   

In Part 12 of the Criminal Justice Act 2003 (c. 44) (sentencing) Chapter 6 (release

on licence) is amended as follows.

(2)   

After section 259 (persons liable to removal from the United Kingdom) insert—

“259A   

  Persons eligible for removal from the United Kingdom

(1)   

For the purposes of this Chapter, to be “eligible for removal from the

35

United Kingdom” a person must show, to the satisfaction of the

Secretary of State, that the condition in subsection (2) is met.

(2)   

The condition is that the person has the settled intention of residing

permanently outside the United Kingdom if removed from prison

under section 260.

40

(3)   

The person must not be one who is liable to removal from the United

Kingdom.”

 
 

 
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