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Clause 14: Minimum conditions for early release under section 246(1) of the Criminal Justice Act 2003
163. This clause amends the statutory formula set out in section 246(2) of the 2003 Act that determines the period of time a prisoner must spend in custody before becoming eligible for early release under the Home Detention Curfew scheme. The amendment will ensure that prisoners will spend one half of the custodial period, subject to a minimum of 4 weeks of that custodial period, in custody before they can be released on Home Detention Curfew.
Clause 15: Application of section 35(1) of the Criminal Justice Act 1991 to prisoners liable to removal from the UK
164. Clause 15(1) provides that section 46(1) and part of section 50(2) of the Criminal Justice Act 1991 are to cease to have effect. The practical effect of that provision is that foreign national prisoners liable to removal from the United Kingdom and sentenced under the provisions of the Criminal Justice Act 1991 to sentences of 4 years and over will no longer be ineligible, at the halfway point of sentence, to have their cases considered by the Parole Board for early release on licence under section 35(1) of the same Act. Under the existing provisions of the 1991 Act such prisoners' applications for early release can only be determined by the Secretary of State. This provision is made to address the fact that existing provisions were the subject of a declaration of incompatibility as regards Article 5(4) of the ECHR in the case of R (Hindawi and Headley) v Secretary of State for the Home Department [2006] UKHL 54.
165. Clause 15(2) ensures that the definition of "liable to removal from the United Kingdom" which is used in the 1991 Act applies equally here.
Clause 16: Release of prisoners after recall
166. This clause retains the power in s.254 of the Criminal Justice Act 2003 for the Secretary of State to recall determinate sentence prisoners while on licence. Such prisoners will continue to have the right to be informed of the reason for their recall and to make representations against the decision to recall. However, the requirement to refer a recalled prisoner's case to the Parole Board and, following such a reference, the power of the Board to recommend re-release are removed (as to these, see clause 17).
167. This clause inserts three new sections into the Criminal Justice Act 2003, which provide a new re-release procedure for prisoners recalled under section 254.
Section 254A Re-release after recall: offences other than specified offences
168. This new section 254A sets out a re-release procedure for those prisoners eligible for consideration for recall for a fixed term of up to 28 days. Subsection (1) excludes from eligibility under this section prisoners serving a sentence for a serious sexual or violent offence as specified in Schedule 15 of the Criminal Justice Act 2003 and those prisoners serving an extended sentence under the provisions of the Criminal Justice Act 2003, the Crime and Disorder Act 1998 and the Powers of Criminal Courts (Sentencing) Act 2000.
169. Subsections (2) to (4) require the Secretary of State to re-release an eligible prisoner 28 days after being returned to prison (if the prisoner has not been released earlier under subsection (5)), provided that he is satisfied at the time of recall that the prisoner will not present a risk of serious harm on release, unless the prisoner has been released previously under these provisions. A prisoner who is entitled to be re-release under this provision must be informed that he will be released after 28 days.
170. Whether or not the prisoner is eligible for re-release under subsection (4), the Secretary of State also has a power in subsection (5) to re-release any eligible recalled prisoner at any point during the period of the recall if he is satisfied that it is not necessary for the protection of the public for that prisoner to remain in prison (subsection (6)).
171. Subsection (7) requires the Secretary of State to refer to the Parole Board the case of any recalled prisoner who within 28 days of recall exercises the right under s.254(2) to make representations against the decision of the Secretary of State to recall him. The Secretary of State is also required to refer to the Board at the end of 28 days the case of any prisoner recalled under this section and who has not made representations and has not been re-released by that time.
172. Subsection (8) provides that if the Parole Board recommends immediate re-release, the Secretary of State must give effect to that recommendation.
173. Subsection (9) refers to prisoners serving a sentence of intermittent custody. Should such a prisoner be recalled from licence before the expiry of the custodial element of the sentence and subsequently be re-released they will be on licence until the end of one of the licence periods specified in the intermittent custody order.
174. Subsection (10) provides an order-making power to amend the number of days of the fixed-term recall (subject to the affirmative resolution procedure) should the Secretary of State choose to do so.
175. Subsection (11) defines "specified offence" for the purpose of assessing a prisoner's eligibility for fixed-term recall by reference to section 224 of the Criminal Justice Act 2003, that is, as an offence specified in Schedule 15 to the Criminal Justice Act 2003.
254B Re-release after recall: specified offences
176. Subsection (1) defines those eligible for re-release in accordance with section 254B as prisoners serving a sentence imposed for an offence specified in Schedule 15 to the Criminal Justice Act 2003 other than an extended sentence.
177. The Secretary of State has the power under subsection (2) to re-release any recalled prisoner falling within this section at any point during the period of the recall, provided that he is satisfied that it is not necessary for the protection of the public for that prisoner to remain in prison (subsection (3)).
178. Subsection (4) requires the Secretary of State to refer to the Parole Board the case of any recalled prisoner who within 28 days of recall exercises the right under s.254(2) to make representations against the decision of the Secretary of State to recall
him. The Secretary if State is also required to refer to the Board at the end of 28 days the case of any prisoner recalled under this section and who has not made representations and has not been re-released by that time.
179. Subsection (5) provides that if the Parole Board recommends immediate re-release, the Secretary of State must give effect to that recommendation.
180. Subsection (6) refers to prisoners serving a sentence of intermittent custody. Should such a prisoner be recalled from licence before the expiry of the custodial element of the sentence and subsequently be re-released they will be on licence until the end of one of the licence periods specified in the intermittent custody order.
181. Subsection (7) provides an order-making power to amend the number of days of the fixed-term recall (subject to the affirmative resolution procedure) should the Secretary of State choose to do so.
182. Subsection (8) defines "specified offence" for the purpose of assessing a prisoner's eligibility for fixed-term recall with reference to section 224 of the Criminal Justice Act 2003, that is, as an offence specified in Schedule 15 to the Criminal Justice Act 2003.
254C Re-release after recall: extended sentences
183. This new section 254C applies to those prisoners recalled under s.254(1) who are serving an extended sentence imposed under the provisions of either the Crime and Disorder Act 1998, Powers of Criminal Courts (Sentencing) Act 2000 or Criminal Justice Act 2003.
184. The Secretary of State is required to refer all such cases to the Parole Board and must give effect to any subsequent recommendation by the Parole Board to re-release a prisoner immediately.
Clause 17: Further review and release of prisoners after recall
185. Subsections (1) to (4) amend section 256 of the Criminal Justice Act 2003 to remove the requirement for the Parole Board to fix the date of the next review of a prisoner recalled under s.254(1) and for whom the Board has declined to recommend immediate release or to fix a future re-release date under s.256(1)(b). Instead, the Parole Board may determine a reference by making no recommendation as to a prisoner's release.
186. Subsection (5) inserts a new section 256A, dealing with further review, into the Criminal Justice Act 2003. This requires the Secretary of State to refer recalled prisoners to the Parole Board at least every 12 months after the prisoner's last review by the Board, with discretion to refer the case earlier. The Parole Board also has the power to recommend referral at any time before the expiry of 12 months from the prisoner's last Parole Board review.
187. When determining a referral by the Secretary of State, the Parole Board may recommend immediate release, fix a date for future release or make no recommendation as to release.
Clause 18: Recall of life prisoners: abolition of requirement for recommendation by Parole Board
188. This clause amends section 32 of the Crime (Sentences) Act 1997 to remove the requirement for a Parole Board recommendation before the Secretary of State may decide whether to recall a life sentence prisoner or a prisoner serving an indeterminate sentence for public protection.
Clause 19: Removal under Criminal Justice Act 1991 (offences before 4th April 2005 etc)
189. This Clause amends the early removal scheme in sections 46A and 46B of the Criminal Justice Act 1991 under which prisoners who are liable to deportation may be released from prison for the purpose of removing them from the UK.
190. Subsection (2) inserts a new section 46ZA, which defines a new category of prisoners who are not liable to removal from the UK at the end of their sentence but who have demonstrated a settled intention to reside permanently outside the UK upon release.
191. Subsection (4) extends the early removal scheme to those prisoners.
192. Subsection (5) provides that removal under the early removal scheme is not available once the prisoner has reached the halfway point of the sentence.
193. Subsection (6) removes existing exclusions which bar certain categories of prisoner from removal under the early removal scheme. Consequently, removal of these exclusions will ensure that a prisoner who falls into one or more of the following categories may be removed early under the scheme:
- a prisoner serving an extended sentence;
- a prisoner serving a sentence under the Prisoners (Return to Custody Act) 1995;
- a prisoner subject to registration under the Sexual Offenders Act 2003.
194. This clause also extends the possibility of removal under the early removal scheme to the 14 day period immediately prior to the halfway point of the sentence.
195. Subsection (8) makes the early removal scheme available to prisoners serving a sentence of less than three months.
196. Subsections (7) and (9) make consequential amendments arising from the inclusion of the new category of prisoners who are to be eligible for removal under the early removal scheme.
Clause 20 Removal under Criminal Justice Act 2003
197. This clause makes broadly similar provision to that made by clause 19, but in relation to the equivalent provisions of the 2003 Act. The amendments make similar extensions to the availability of removal from the UK under the early removal scheme as set out in Chapter 6 of Part 12 of that Act.
198. Subsection (4), as read with the new definition inserted by subsection (2), extends the availability of the early removal scheme to prisoners who are not liable for removal from the UK at the end of their sentence but who have demonstrated a settled intention to reside permanently outside the UK upon removal.
199. Subsection (5)(b) removes a number of exclusions which bar certain categories of prisoner from removal under the early removal scheme. Those exclusions mirror the exclusions removed by clause 19(6). Subsection (5)(a) removes a time restriction which is found only in the 2003 Act early removal scheme provisions. The result will allow the removal under the scheme of -
- those a serving custodial period of less than 6 weeks, and
- those who have not served at least 4 weeks of their sentence and one-half of the custodial element of that sentence.
200. Subsections (6), (7) and (8) make consequential amendments arising from the inclusion of the new category of prisoners who are to be eligible for removal under the early removal scheme.
Clause 21: Referral orders: referral conditions
201. This clause amends section 17 of the Powers of Criminal Courts (Sentencing) Act 2000 (the "2000 Act") which sets out the circumstances in which a magistrates' court must or may impose a referral order when sentencing a child or young person. When a child or young person is given a referral order, he or she is required to attend a youth offender panel, which is made up of two volunteers from the local community and panel adviser from a youth offending team (YOT). The panel, with the young person, their parents/carers and the victim (where appropriate), agree a contract lasting between three and 12 months. The aim of the contract is the prevention of reoffending by the offender.
202. Subject to certain exceptions, under the 2000 Act a referral order must be given to a child or young person where the following conditions are met, namely:
- the offence is punishable with imprisonment,
- the offender pleads guilty to the offence and any connected offence,
- the offender has not previously been convicted of an offence, and
- the offender has never been bound over to keep the peace.
203. The only exceptions are where the offence is one where the sentence: is fixed by law; is so serious that the court decides a custodial sentence is absolutely necessary; or the offence is relatively minor and the court proposes to give an absolute discharge.
204. Subsection (2) amends section 17(1) of the 2000 Act so as remove the last of the conditions listed in paragraph 182 above. As a result the fact that the offender has previously been bound over to keep the peace would not be a bar on the making of a mandatory referral order.
205. A referral order may be given to a child or young person where the following conditions are met, namely:
- the offence is one that is not punishable with imprisonment,
- the offender pleads guilty to the offence and any connected offence,
- the offender has not previously been convicted of an offence, and
- the offender has never been bound over to keep the peace.
206. A referral order may also be given to a child or young person where the offender is being dealt with for two or more connected offences and the following conditions are met, namely:
- the offender pleads guilty to at least one of those offences and not guilty to at least one,
- the offender has not previously been convicted of an offence, and
- the offender has never been bound over to keep the peace.
207. Subsection (3) inserts a new subsection (2) into section 17 of the 2000 Act, the effect of which is modify the conditions that must be met before a discretionary referral order may be made. As with mandatory referral orders, the fact that the offender has previously been bound over to keep the peace would no longer be a bar to making a discretionary order. In addition, it would now be possible to make a discretionary order where the offender had one previous conviction and where, in respect of that previous conviction, a referral order had not been made.
208. Subsection (4) repeals section 17(5) of the 2000 Act. As a result a conditional discharge would no long be treated as a conviction for the purposes of section 17.
Clause 22: Imposition of unpaid work requirement for breach of community order
209. This clause amends paragraphs 9 and 10 of Schedule 8 to the 2003 Act, which governs the way in which the courts deal with offenders who breach their community orders. One of the three ways in which a court must deal with such an offender is by amending the terms of the community order so as to impose more onerous requirements under paragraphs 9(1)(a) and 10(1)(a). Where the court deals with an offender in this way, this clause reduces the minimum period of unpaid work that may be imposed for breach of a community order from 40 to 20 hours, where the community order does not already contain an unpaid work requirement. Subsection (2) gives this effect in the magistrates' courts and subsection (3) in the Crown Court.
210. The clause does nothing to alter the position regarding breach of a community order that already contains an unpaid work requirement; in such a case there is no minimum amount by which the period of unpaid work may be increased. In addition, this clause affects neither the 40 hour minimum period of unpaid work that may be imposed as a requirement of a community order at the point of sentence, nor the existing maximum of 300 hours that applies to unpaid work, imposed as a sentence or for breach.
Clause 23: Youth Default Orders
211. At present where a magistrates' court would, but for section 89 of the Powers of Criminal Courts (Sentencing) Act 2000, have power to commit to prison a person under the age of 18 for a default consisting in failure to pay a sum adjudged to be paid by a conviction, for instance a fine, the court may take enforcement proceedings against the parent or guardian under section 81 of the Magistrates' Courts Act 1981. This clause makes provision in subsections (1 and (2)) for a magistrates' court to impose a youth default order if a person aged under 18 defaults on a fine imposed following a conviction, instead of taking proceedings against the parent or guardian. A youth default order may require the court to order the young person in default to undertake unpaid work (if they are aged 16 or 17), attend an attendance centre or be subject to a curfew.
212. Subsection (4) provides for a power to impose electronic monitoring of a curfew requirement imposed under subsection (2).
213. Subsection (5) allows a court to postpone making a youth default order if expedient.
214. Subsection (6) provides that certain provisions relating to YROs have effect in relation to youth default orders with the modifications set out in Schedule 5.
215. Subsections (7) and (8) provide for the youth default order to cease to have effect if the sum owed is paid in full and for the total number of hours or days specified in the default order to be reduced by a proportion if part payment is made.
Schedule 5: Youth Default Orders: Modification of provisions applying to youth rehabilitation orders
216. Paragraph 2 modifies paragraph 10 of Schedule 1 to amend the number of hours of unpaid work that can be specified in the youth default order. It sets out in a table the maximum number of hours of unpaid work which may be required. This differs according to the amount which the offender has failed to pay.
217. Paragraph 3 modifies paragraph 12 of Schedule 1. It sets out in a table the number of hours which the offender may be required to attend an attendance centre. This differs according to the amount which he has failed to pay.
218. Paragraph 4 modifies paragraph 14 of Schedule 1. It sets out in a table the maximum number of days of curfew which may be imposed, which differs according to the amount owed by the offender.
219. Paragraph 5 modifies Schedule 2 to apply the provisions for breach, revocation or amendment to youth default orders.
220. Paragraph 6 provides the Secretary of State with the power to amend by order the amounts of money or number of hours or days set out in the tables in paragraphs 2, 3 and 4.
221. Paragraph 7 modifies Schedule 3 (transfer of orders to Northern Ireland) as it applies to youth default orders.
Clause 24: Power to impose attendance centre requirement on fine defaulter
222. This clause re-enacts, with appropriate modifications to make them applicable to the new sentencing framework, one of the fine default provisions in section 60 of the 2000 Act. That provision gives a court with the power to commit a fine defaulter aged under 25 to prison a power to send him or her to an attendance centre instead. Clause 24 achieves the re-enactment by amending section 300 of the 2003 Act, which provides similar powers to impose unpaid work requirements or curfew requirements on fine defaulters as an alternative to committal to prison. Under section 300, an order imposing an unpaid work requirement or a curfew requirement is called a "default order".
223. Paragraph 7 modifies Schedule 3 (transfer of orders to Northern Ireland) as it applies to youth default orders
Clause 25: Disclosure of information for enforcing fines
224. Clause 25 inserts new paragraphs 9A, 9B and 9C into Part 3 of Schedule 5 to the Courts Act 2003.
New paragraph 9A of Part 3 of Schedule 5 to the Courts Act 2003.
225. Paragraph 9A empowers a designated officer in a magistrates' court to ask for information about a person's benefit status from the Secretary of State, in order to assist a court in deciding whether to make an application for benefits deductions. A person's benefit status consists of the particular benefit of which he is in receipt, which deductions apply and how much money is finally received after those deductions have been made (paragraph 9C). It also allows certain other information, such as name and address, to be obtained. This enables the person in respect of whom the request is made to be identified.
New paragraph 9B of Part 3 of Schedule 5 to the Courts Act 2003.
226. Paragraph 9B places restrictions on the way in which this information can be used once it has been obtained and creates an offence to ensure that it is not used or disclosed in an unauthorised manner or otherwise than in accordance with the purposes intended.
Part 3: Appeals
Clause 26: Appeals against conviction
227. Clause 26 amends the Criminal Appeal Act 1968 ('the 1968 Act'). Section 2 of the 1968 Act sets out the 'test' which the Court of Appeal must apply when deciding whether to allow an appeal, and provides that the Court of Appeal 'shall allow an appeal against conviction if they think that the conviction is unsafe'.
228. Subsection (2) inserts new subsections (1A) and (1B) into section 2. New subsection (1A) provides that a conviction is not unsafe if the Court of Appeal are satisfied that the appellant is guilty of the offence. It would be for the Court to form their own view as to guilt on the evidence available to them; where they were in any doubt the Court would be under no obligation to seek to resolve it by calling for further evidence. New subsection (1B) makes it clear that even if the Court of Appeal are satisfied the offender is guilty of the offence, they can still allow the appeal if maintaining the conviction would be incompatible with the appellant's rights under the European Convention on Human Rights
229. Subsection (3) makes two minor amendments to section 23 of the 1968 Act. Section 23 gives the Court of Appeal a discretion to receive evidence (including evidence not adduced at the trial) if they think it necessary or expedient in the interests of justice to do so. In considering whether to receive any evidence the Court must under section 23(2) have regard in particular to -
"(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings"
230. The effect of the new section 2(1A) is that the Court may not quash a conviction if they are satisfied of the appellant's guilt (subject to subsection (1B)). The amendments to section 23 are related to this change. Section 23(2)(b) and (c) are amended to require the Court of Appeal to have regard in particular to whether the evidence may afford grounds either to allow or to dismiss the appeal and whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue relevant to the determination of the appeal (whether or not raised by the appellant). The amendments do not confer new powers on the Court of Appeal as it is already possible for the Court to admit fresh evidence at the request of the prosecution (see, for example, R v Craven [2001] 2 Cr App R 12). Further, the amendments do not require the Court to consider new evidence or to reconsider the evidence at trial in order to determine guilt. Only if the Court are satisfied on the evidence before them (including any they may choose to receive under section 23 if they consider it in the interests of justice to do so) does new subsection (1A) come into play.
231. In R v Smith [1999] 2 Cr App R 238, the Court of Appeal quashed a conviction because the evidence establishing the appellant's guilt was adduced under cross-examination after his application that there was no case to answer had been wrongly rejected by the judge. Subsection (4) inserts new section 30A to the 1968 Act. This provides that, in determining the appeal (including determining whether they are satisfied of guilt) the Court may not disregard evidence solely on the ground that it was given after the wrongful rejection of a submission of no case
232. Subsection (5) makes express statutory provision for the Court of Appeal to refer to the Attorney General serious misconduct in the investigation or prosecution. This is considered appropriate in the light of the changes to section 2 of the 1968 Act, in case preventing convictions from being quashed in those cases where the Court is satisfied as to guilt is seen as removing a deterrent to misconduct.
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