|Criminal Justice And Immigration Bill - continued||House of Commons|
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62. The Government published its consultation paper "Strengthening powers to tackle anti-social behaviour" in November 2006 (available at http://www.homeoffice.gov.uk/documents/cons-asb-powers/). A summary of the responses to this consultation together with the Government's response was published on 29 May 2007 and is available at http://www.homeoffice.gov.uk/documents/response-asb-powers?version=1 Clause 104 gives effect to the proposals to introduce premises closure orders.
63. The Department of Health published a consultation paper "Tackling nuisance or disturbance behaviour on NHS healthcare premises in June 2006 (available at http://www.dh.gov.uk/Consultations/ClosedConsultations/ClosedConsultationsArticle/fs/en?CONTENT_ID=4138711&chk=mE2N5d). The consultation document proposed new powers for NHS health bodies to deal with individuals causing a nuisance or disturbance on NHS premises (these are contained in clauses 105-108). A summary of the responses to this consultation together with the Government's response was published in November 2006 (available at http://www.dh.gov.uk/Consultations/ResponsesToConsultations/ResponsesToConsultationsDocumentSummary/fs/en?CONTENT_ID=4140248&chk=Z%2B9but)
64. A fundamental review of the police officer disciplinary arrangements was published in January 2005. The report is available at http://press.homeoffice.gov.uk/documents/police-disciplinary-arrangements/ Clauses 111-112 give effect to those recommendations which require primary legislation.
65. Part 11 gives effect to the Home Secretary's commitment to legislate to deny leave to enter or remain to certain foreign nationals who can not be removed from the UK compatibly with the United Kingdom's obligations under the ECHR. The commitment was made following the judgment of the Court of Appeal in S and others vs Secretary of State for the Home Department in August 2006.
66. In the main the Bill's provisions extend to England and Wales only, but certain provisions also extend to Scotland or Northern Ireland, or both. In relation to Wales and Northern Ireland, the Bill addresses both devolved and non-devolved matters.
67. The provisions of the Bill relating to the following reserved matters also extend to Scotland:
68. Because the Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
69. The provisions of the Bill relating to the following excepted or reserved matters also extend to Northern Ireland:
70. In addition, the Bill contains provisions relating to one transferred matter, namely the new offence of causing nuisance or disturbance on HSS premises (clause 107 and Schedule 18). These provisions extend to Northern Ireland only.
71. In relation to Wales, the subject matter of the Bill has not been transferred except for:
COMMENTARY ON CLAUSES
Part 1: Youth Rehabilitation Orders
Clause 1 and Schedule 1: Youth Rehabilitation Orders
72. Clause 1 and Schedule 1 provide for YROs. This is the new community sentence for offenders aged under 18. It combines several existing community sentences into one new generic community sentence. When imposing a YRO, the court will be able to choose from a 'menu' of different requirements that the offender must comply with.
73. Subsection (1) provides that a YRO may impose on the offender one or more of the following requirements:
74. Subsection (2) provides that a YRO may also impose an electronic monitoring requirement as described in paragraph 25 of Schedule 1. An electronic monitoring requirement must be imposed where a YRO imposes a curfew or exclusion requirement (paragraph 2 of Schedule 1) unless in the particular circumstances of the case, the court is satisfied it would be inappropriate to do so or it is not practicable for the reasons set out in paragraph 25(3) or (6).
75. Subsections (3) and (4) and paragraphs 3 and 4 of Schedule 1 provide for the YRO with intensive supervision and surveillance and the YRO with fostering.
76. Subsection (4) provides that a court may not impose a YRO with intensive supervision and surveillance or a YRO with fostering unless the offence is punishable with imprisonment and the court is satisfied that the offence (on its own or with others) is so serious that but for the availability of these orders, a custodial sentence would be appropriate (or where the offender is under 12, would be appropriate if the offender had been 12). For offenders under the age of 15, the court must be satisfied that they are persistent offenders.
77. Paragraph 3 of Schedule 1 provides that if the conditions in subsection (4) are met the order may impose an "extended activity requirement" (for a number of days between 90 and 180). An order containing such a requirement is "a YRO with intensive supervision and surveillance". Such an order must also impose a supervision requirement, a curfew requirement and an electronic monitoring requirement (unless inappropriate or impracticable) and may also impose other requirements.
78. Paragraph 4 of Schedule 1 sets out additional conditions to those in subsection (4) of Clause 1 which must be met before a court can impose a YRO with fostering. The court has to be satisfied that the behaviour which constituted the offence was due to a significant extent to the circumstances in which the offender was living and that the imposition of such a requirement would assist in the offender's rehabilitation. The court must also consult the local authority and (where practicable) the parents or guardians of the offender prior to imposing this requirement. A YRO with fostering must also impose a supervision requirement. The offender must be given the opportunity of legal representation (paragraph 19).
79. Subsection (6) of Clause 1applies the restrictions which apply to other community sentences under sections 148 and 150 of the 2003 Act to the YRO. The effect is that a YRO must not be imposed on an offender unless the court considers the offence or offences serious enough to warrant it; that the requirements forming part of the YRO must be the most suitable for the offender and the restrictions on liberty imposed by the order must be commensurate with the seriousness of the offence. A YRO will not be available in a case where the penalty is fixed by law, such as murder, or where there is a mandatory custodial sentence.
80. Paragraph 5 of Schedule 1 provides that a YRO with intensive supervision and surveillance may not impose a fostering requirement. Paragraph 5 also provides that if the offender fails to comply with a pre-sentence drug testing order the court may impose a YRO with intensive supervision and surveillance. There is already existing provision in section 152(3)(b) of the 2003 Act which provides that if a juvenile or adult offender fails to comply with a pre-sentence drug testing order under section 161(2) of that Act, the court may pass a custodial sentence.
81. Part 2 of Schedule 1 makes detailed provision about the requirements which may be imposed in a YRO. They are largely self explanatory and not all details are repeated here. Paragraphs 6 to 8 deal with the activity requirement. An offender may be required to participate in specified activities including residential exercises. Other than where intensive supervision and surveillance is imposed, an activity requirement cannot be for more than a total of 90 days .
82. Paragraph 8(3) provides that the court may not include an activity requirement unless it has consulted a member of the youth offending team or an officer of a local probation board and it is satisfied that it is feasible to secure compliance with the requirement. Paragraph 8(4) states that an activity requirement, which requires co-operation with anybody other than the responsible officer (defined in clause 6 below) may only be included with that other person's consent.
83. Paragraph 9 of Schedule 1 provides for a supervision requirement and reflects, with modifications, paragraph 2 of Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act). The offender may be required to attend appointments arranged by the responsible officer.
84. Paragraph 10 of Schedule 1 provides for an unpaid work requirement and is modelled on section 199 of the 2003 Act. An unpaid work requirement may be for between 40 and 240 hours and could include, for example, graffiti cleaning, community artwork or work to repair or improve community facilities. Unpaid work is currently available, for 16 and 17 year olds, as part of the community punishment order.
85. Paragraph 11 of Schedule 1 provides for a programme requirement. A programme requirement is a new requirement for juveniles and is designed to allow juvenile offenders to engage in programmes that will address their offending behaviour, teach life skills or other positive interventions. It is modelled on section 202 of the 2003 Act. Paragraph 11(1) defines a "programme requirement" as a requirement that the offender participates in a specified systematic set of activities which may include a residential programme.
86. Paragraph 12 provides for an attendance centre requirement which enables the court to require an offender to attend an attendance centre for up to 18 hours for an offender aged under 14, and between 12 and 36 hours for an offender aged 14 or over.
87. Paragraph 13 provides for a prohibited activity requirement. It is modelled on section 203 of the 2003 Act. It allows the court to require an offender to refrain from participating in certain activities at specified times. Paragraph 13(3) makes it clear that the court can make a prohibited activity requirement which prohibits a defendant from possessing, using or carrying a firearm.
88. Paragraph 14 provides for a curfew requirement. This paragraph re-enacts, with some modification, section 37 of the Powers of Criminal Courts (Sentencing) Act 2000. A curfew requirement may require the offender to remain at a place specified by the court for between two hours and twelve hours in any given day. The order might, for example, require the offender to stay at home during the evening and night hours. Paragraph 14(3) limits the curfew period to a maximum of six months. Under paragraph 14(4) the court must obtain and consider information about the place specified in the order and the attitude of the person likely to be affected by the presence of the offender.
89. Paragraph 15 of Schedule 1 provides for an exclusion requirement. This paragraph re-enacts, with modification, section 40A of the Powers of Criminal Courts (Sentencing) Act 2000. An exclusion requirement may prohibit the offender from entering a place or area for up to 3 months. Paragraph 15(3) makes it clear that the order may stipulate that the prohibition may operate only for certain periods of time and may specify different places for different periods.
90. Paragraph 16 of Schedule 1 provides for a residence requirement. A residence requirement may require that an offender live with a specified individual (who must consent to the requirement by virtue of paragraph 16(2)) or, if the offender is 16 or over, at a specified place and is modelled on current powers available as part of the supervision order. Under paragraph 16(6), before making a residence requirement specifying a place, the court must consider the home surroundings of the offender. Paragraph 16(7) provides that the court must only specify a hostel or other institution as a place of residence on the recommendation of a member of a youth offending team, an officer of a local probation board, or a local authority social worker.
91. Paragraph 17 of Schedule 1 provides for a local authority residence requirement and is modelled on paragraph 5 of Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000. The order may require the offender to live in accommodation provided by or on behalf of a specified local authority for up to 6 months and may also stipulate that the offender may not live with a specified person. The court may not impose a local authority residence requirement unless it is satisfied that the behaviour leading to the offence was due to a significant extent to the offender's living circumstances and that the requirement will assist in his rehabilitation. The court must consult the offender's parent or guardian (if practicable) and the local authority which is to receive the offender.
92. Paragraph 18 of Schedule 1 provides for a fostering requirement and is modelled on current powers that are available as part of supervision order in paragraph 5A of Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000. An offender may be required to live with a local authority foster parent for a specified period, generally subject to a maximum of 12 months. Paragraph 18(6) makes it clear that this paragraph does not affect the power of a local authority to place an offender subject to a local authority residence requirement with a local authority foster parent.
93. Paragraph 19 of Schedule 1 makes it a precondition for imposing a local authority residence requirement or fostering requirement that the offender has had the opportunity to be legally represented
94. Paragraphs 20 and 21 of Schedule 1 provide for a mental health treatment requirement. Mental health treatment is currently available as part of the supervision order and is provided for in paragraph 6 of schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000. The court may direct the offender to submit to mental health treatment under the treatment of either or both a registered medical practitioner or chartered psychologist. Treatment may be provided in a hospital or care home (but not a hospital where high security psychiatric services are provided), or as a non-resident patient. Under paragraph 20(3), before including a mental health treatment requirement, the court must be satisfied that the offender's mental condition requires treatment and is treatable, but is not such that it warrants making a hospital or guardianship order under the Mental Health Act 1983. The offender must be willing to comply with treatment is aged 14 or over.
95. Paragraph 21 of Schedule 1 deals with mental health treatment at a place other than that specified in the order. Paragraph 21(1) allows the medical practitioner or chartered psychologist to vary the arrangements in a mental health treatment requirement with the offender's consent (unless the offender is under 14).
96. Paragraph 22 of Schedule 1 provides for a drug treatment requirement and paragraph 23 for a drug testing requirement. These are modelled upon those available to juveniles of all ages subject to an action plan order and supervision order in section 70 of and Schedule 6 to the Powers of Criminal Courts Sentencing Act 2000. The offender may be required to undergo drug treatment by or under the direction of a specified person with the necessary qualifications. The court must be satisfied that the offender is dependent on or has a propensity to misuse any drug and requires and may be susceptible to treatment. The treatment can be residential or non-residential, but the type of treatment cannot be specified. If the offender is aged 14 or over, he or she must be willing to comply with the requirement.
97. Paragraph 23(1) of Schedule 1 provides for a drug testing requirement which may require the offender to provide samples in accordance with instructions given by his responsible officer for drug testing purposes. A drug testing requirement may only be imposed with a drug treatment requirement and only for an offender aged 14 or over who is willing to comply with that requirement.
98. Paragraph 24 of Schedule 1 provides for an education requirement. An education requirement is currently available as part of a supervision order and action plan order under section 63 (read with paragraph 7 of Schedule 6) and 70(1)(e) respectively of the Powers of Criminal Courts (Sentencing) Act 2000. The order may require the offender to comply with approved education arrangements i.e. made by the offender's parent or guardian and approved by the local authority. The court must be satisfied that suitable arrangements exist for the offender's appropriate full-time education needs and that such a requirement is necessary for the offender's future good conduct or prevention of further offending.
99. Paragraph 25 of Schedule 1 provides for the electronic monitoring requirement. Electronic monitoring is currently available as a requirement of youth community orders under section 36B of the Powers of Criminal Courts (Sentencing) Act 2000. Paragraph 25(3) provides that where it is proposed to include an electronic monitoring requirement as part of a YRO, this may only be done with the consent of any person (other than the offender) whose compliance would be required. For example this person might be the offender's parent or guardian. Paragraph 25(4) provides that this requirement must include provision for making a person responsible for monitoring and paragraph 25(5) provides that the person must be of a description specified in an order made by the Secretary of State subject to the negative resolution procedure.
100. Under paragraph 26 the Secretary of State may by order amend the maximum number of hours which may be specified in an unpaid work or curfew requirement. The Secretary of State may also by order amend the time periods specified in relation to the curfew requirement, exclusion requirement, local authority residence requirement and fostering requirement. An order under this power is subject to the affirmative resolution procedure.
101. Part 3 of the Schedule makes further provision for the procedure for making YROs. Under paragraph 27 prior to imposing a YRO, the court must obtain and consider information about the offender's family circumstances and the likely effect of such an order on those circumstances.
102. Paragraph 28 of Schedule 1 requires a court to consider whether requirements are incompatible with each other. As far as practicable, the court must ensure that any requirement imposed is such as to avoid any conflict with the offender's religious beliefs and any interference with the times at which the offender works or attends school. The offender's responsible officer must also take steps to ensure that any instructions or directions given avoid any such conflict. Under paragraph 28(4) the Secretary of State has the power to add further restrictions by order subject to the negative resolution procedure.
103. Paragraph 29 of Schedule 1 provides for the operative date of YROs. Where a YRO is imposed on an offender who is already serving a detention and training order, the court may order that the YRO will commence either with the commencement of the period of supervision of the detention and training order, or on the expiry of the detention or training order or on the day after the order is made. In all other cases the YRO will commence the day after the day on which the order was made. A court may not make a YRO if the offender is already serving a similar order or a reparation order unless the existing order is revoked.
104. Paragraph 30 of Schedule 1 makes provision for concurrent and consecutive orders. Where the court is dealing with an offender for two or more offences, it may impose more than one YRO but it may not impose YROs of different kinds(for example, it may not impose a YRO with intensive supervision and surveillance and any other YRO). If the court imposes more than one YRO with intensive supervision and surveillance or with fostering, under paragraph 30(3) they must begin at the same time. Under paragraph 30(4) the court must direct whether similar requirements in different orders are to be served concurrently or consecutively. Where they are to be served consecutively, the aggragate of the periods imposed for requirements of a particular kind must not exceed the maximum period for a single such requirement (see paragraph 30(6)). Under paragraph 30(5) two or more fostering requirements cannot be served consecutively.
105. Part 4 of Schedule 1 makes further general provision for where the court makes a YRO. Paragraph 31 provides that the order must specify a date not more than 3 years after it is made by which the requirements must have been complied with. The order may also specify different dates for two or more requirements within the order. In relation to a YRO with intensive supervision and surveillance, the specified date must not be earlier than 12 months after the order takes effect.
106. Paragraph 33: makes provision for copies of orders to be provided by the court to the offender and to other relevant persons depending on the circumstances. The court has to provide copies of the order it makes to certain people who are relevant to the carrying out of the order: to the offender, if the offender is under 14, to his parent or guardian (or, if the offender is in local authority care, that authority), and the youth offending team member or an officer of a local probation board assigned to the court. Under paragraph 33(5) if the order is made by any Crown Court or a magistrates' court outside the area in which the offender will be carrying out the order, the court must send a copy of the order, and any other documents and information relating to the case that the sentencing court thinks the second court would find of assistance, to the magistrates court and provide a copy of the order to the local probation board in that area.
107. Paragraph 34 of Schedule 1 enables the Secretary of State by order subject to the affirmative resolution procedure to make provision allowing or requiring YROS to be reviewed by the courts. It is intended that the decision to extend reviews to YROs would be based on consultation with the courts. An order under this paragraph may repeal or amend any provision of this Part 1 of the Bill or Chapter 1 of Part 12 of the 2003 Act dealing with the general provisions about sentencing.
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