House of Commons - Explanatory Note

Criminal Justice And Immigration Bill - continued	House of Commons

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Clause 116: "Foreign criminal"

650. This clause defines the term "foreign criminal" as it is used in clause 115.

651. Subsection (1) provides that a "foreign criminal" is a person who is not a British citizen, and who satisfies one or more of the conditions set out in subsections (2) and (4).

652. The condition in subsection (2) (Condition 1) is that section 72(2)(a) and (b) or (3)(a) to (c) of the Nationality, Immigration and Asylum Act 2002 (2002 Act) applies to the person. This applies where a person has been convicted of an offence, either in the United Kingdom or abroad, and has been sentenced to a period of imprisonment of at least two years. If the conviction was outside the United Kingdom, there is a further requirement that the person could have been sentenced to a period of imprisonment of at least two years had his conviction been in the United Kingdom for a similar offence.

653. The condition in subsection (3) (Condition 2) is satisfied where section 72(4)(a) or (b) of the 2002 Act applies to a person and the person has been sentenced to a term of imprisonment of any length. Section 72(4)(a) applies where a person is convicted of an offence specified by order of the Secretary of State, and section 72(4)(b) where he is convicted outside the United Kingdom of an offence and the Secretary of State certifies that in his opinion the offence is similar to an offence specified by order under section 72(4)(a).

654. Subsection (4) specifies that Condition 3 applies where Article 1F of the Refugee Convention applies to a person. Where Article 1F applies, the person concerned cannot be a refugee.

655. Subsections (5) and (6) make clear that provision for the rebuttal and non-application of the presumption that a person constitutes a danger to the community is irrelevant to the question of whether a person is a foreign criminal.

Clause 117: Effect of designation

656. Clause 117 sets out the effect of designation.

657. Subsection (1) specifies that a designated person does not have leave to enter or remain in the United Kingdom.

658. Subsection (2) ensures that, for the purposes of a provision of the Immigration Acts and any other enactment concerning or referring to immigration or nationality, a designated person is a person subject to immigration control, is not to be treated as an asylum-seeker or former asylum-seeker regardless of his status, and is not in the United Kingdom in breach of the immigration laws. Subsection (3) provides that time spent as a designated person may not be relied on by a person for the purpose of an enactment about nationality.

659. Subsection (4) specifies that a designated person shall not be deemed to have been given leave in accordance with paragraph 6 of Schedule 2 to the Immigration Act 1971 and may not be granted temporary admission to the United Kingdom under paragraph 21 of that Schedule. A person is deemed to have leave under paragraph 6 in certain circumstances which include, for example, where notice giving or refusing leave is not given before the end of twenty four hours after the examination of the person by an immigration officer under paragraph 2 of Schedule 2 to the Act. This provision has been disapplied as a designated person does not have leave to enter or remain in the United Kingdom (subsection (1)).

660. Subsection (5) notes that clauses 119 and 120 make provision about support for designated persons and their dependants.

Clause 118: Conditions

661. This clause allows the Secretary of State or an immigration officer to impose conditions on a designated person, it specifies the nature of the conditions, and makes failure to comply with a condition an offence.

662. Subsection (1) allows the Secretary of State or an immigration officer to impose conditions on a designated person. These may relate to residence, employment or occupation, or reporting to the police, the Secretary of State or an immigration officer, as set out in subsection (2).

663. Subsection (3) provides that the powers for electronic monitoring shall apply in relation to the conditions imposed under subsection (1) in the same way as they do when someone is granted temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971. This means that where a residence restriction is imposed on an adult, or where a reporting restriction could be imposed, he may be required to cooperate with electronic monitoring.

664. Subsection (4) permits the Secretary of State to make payments to a person in respect of travelling expenses which the person has incurred or will incur in complying with a reporting condition.

665. Subsection (5) creates an offence of failing to comply with a condition under this clause without reasonable excuse. The maximum penalties for this offence are set out in Subsection (6). Further, under subsection (7) the ancillary provisions in the Immigration Act 1971 which apply in relation to an offence under any provision of section 24(1) (e.g. the power of arrest) will also apply in relation to an offence committed under subsection (5).

666. Subsection (8) specifies that the reference in subsection (6)(b) to 51 weeks, being the maximum period of imprisonment for an offence under subsection (5), shall be treated as a reference to six months in the application of the clause to Scotland and Northern Ireland.

Clause 119: Support

667. This clause sets out provisions for the support of individuals designated under clause 115 and their dependants.

668. Subsections (1) and (2) specify that Part VI of the Immigration and Asylum Act 1999, which makes provision for support for asylum-seekers, will apply - subject to certain modifications - to designated persons and their dependants as it applies to asylum-seekers and their dependants. This allows the Secretary of State to provide, or arrange the provision of, support for designated persons and their dependants who appear to be destitute (or to be likely to become destitute within a prescribed period).

669. Subsection (3) specifies the ways in which this support may be provided under section 95 of the 1999 Act. The Secretary of State may provide accommodation, essential living needs, and in other ways where necessary to reflect exceptional circumstances of a particular case.

670. Subsection (4) provides that, unless the Secretary of State thinks it appropriate because of exceptional circumstances, the support provided under section 95 of the 1999 Act must not be wholly or mainly in cash.

671. Subsection (5) provides that section 4 of the 1999 Act shall not apply to designated persons.

672. Subsection (6) disapplies certain alternative statutory provisions relating to the provision of assistance under the homelessness provisions which would otherwise apply to a person who has been designated.

Clause 120: Support: supplemental

673. This clause lays out supplementary provisions relating to the support that may be provided under clause 119, and it ensures the correct operation of Part VI in relation to designated persons.

674. Subsection (1) ensures that any references to Part VI of the 1999 Act or to a provision of that Part in other enactments includes a reference to that Part or provision as applied by clause 119. Section 96 of the 1999 Act lays out the ways in which support may be provided to asylum seekers, but clause 119(3) makes equivalent provision for designated persons. References to section 96 or a provision thereof will be treated as including a reference to clause 119(3) or the corresponding provision. All references to asylum seekers will be treated as including a reference to designated persons.

675. Subsection (2) provides that any provision of Part VI of the 1999 Act requiring or permitting the Secretary of State to have regard to the temporary nature of support for asylum-seekers shall require him instead to have regard to the nature and circumstances of support for designated persons.

676. Subsection (3) provides that the rules governing the procedure for bringing and hearing appeals made under section 104 of the 1999 Act apply.

677. Subsection (4) provides that any instrument made under Part VI of the 1999 Act may make provision in respect of that Part as it applies by virtue of clause 119, otherwise than by virtue of that section, or both, and may make different provision for that Part as it applies by virtue of clause 119 and otherwise than by virtue of clause 119.

678. Subsection (5) modifies the provisions which apply to the notice to be given to a designated person required to quit accommodation provided under Part VI of the 1999 Act.

679. Subsection (6) allows the Secretary of State to repeal, modify or disapply (to any extent) the provision that support by virtue of clause 119(3) may not be provided wholly or mainly by way of cash unless the Secretary of State thinks it appropriate because of exceptional circumstances.

680. Subsection (7) provides that an order under section 10 of the Human Rights Act 1998 (by which a Minister of the Crown may by order make amendments to legislation which has been declared to be incompatible with a Convention right) which amends a provision mentioned in clause 119(6) may amend or repeal that subsection.

Clause 121: End of designation

681. This clause explains when designation comes to an end and the impact this has on support.

682. Subsection (1) lists the events which cause designation to lapse. These include where a person: (a) is granted leave to enter or remain in the United Kingdom, (b) is notified by the Secretary of State or an immigration officer of a right of residence in the United Kingdom by virtue of the Community treaties, (c) leaves the United Kingdom or (d) is made the subject of a deportation order under section 5 of the Immigration Act 1971.

683. Subsection (2) makes clear that support may not be provided by virtue of clause 119 after designation lapses, subject to the exceptions of subsections (3) and (4). Subsection (3)(Exception 1) allows that if designation lapses under subsection (1)(a) or (b), support may be provided in respect of a period which begins when the designation lapses and ends on a date determined in accordance with an order of the Secretary of State. Subsection (4)(Exception 2) specifies that if designation lapses under subsection (1)(d), support may be provided in respect of any period during which an appeal against the deportation order may be brought, any period during which an appeal against the deportation order is pending, and after an appeal ceases to be pending, such period as the Secretary of State may specify by order.

Clause 122: Interpretation: general

684. This clause defines other terms as they are used in this Part of the Bill, in particular, "family" and "right of abode in the United Kingdom". It also provides that a reference in an enactment to the Immigration Acts includes a reference to clauses 115 to 121.

Part 12: General

Clause 123: Orders and regulations

685. This clause makes provision in connection with the various powers under the Bill to make orders or regulations. The affirmative resolution procedure applies to instruments made under the powers listed in subsection (3). The effect of subsection (4) is that all other powers are subject to the negative resolution procedure, except for powers listed in that subsection (namely the powers to make commencement orders under clause 128, to make an order under paragraph 25(5) of Schedule 1 (power to specify the description of a person responsible for monitoring an electronic monitoring requirement attached to a YRO), and to make an Order in Council under paragraph 9 of Part 2 of Schedule 15 (power to extend certain provisions of the Customs and Excise Management Act 1979 to the Channel Islands, the Isle of Man or any British overseas territory)) where no parliamentary procedure applies. Subsection (2) provides that any power under the Bill to make orders or regulations includes a power to make provision generally or only for specified cases or circumstance and to make different provision for different cases, circumstances or areas. This subsection also enables orders and regulations to make incidental, supplemental, consequential, transitional, transitory or saving provisions.

Clause 124 and Schedules 21 and 22: Consequential etc. amendments and transitional and saving provision

686. This clause enables the Secretary of State by order to make supplementary, incidental, consequential, transitory, transitional or saving provision for the purposes of the Bill. It is a power to make consequential provisions for those purposes at any time, including amendments to primary and secondary legislation. The affirmative resolution procedure will apply to any order which amends or repeals primary legislation. The clause also introduces Schedules 21 (minor and consequential amendments) and 22 (transitory provisions).

Schedule 21: Minor and consequential amendments

687. Paragraph 2 ensures that section 19XA(1) of the Wildlife and Countryside Act 1981 (constables' powers in connection with samples) correctly refers to constables' powers of entry in section 19.

688. Paragraph 3 makes a consequential amendment to section 37B of PACE so that where a young offender aged 16 or 17 is referred by the police to a prosecutor for a decision on charging, the prosecutor may decide whether or not that person should be given a youth conditional caution.

689. Paragraph 7 amends section 38 of the 1998 Act to extend the youth justice services provided by Youth Offending Teams to include the provision of assistance to relevant prosecutors for the purpose of determining whether a youth conditional caution should be given to an offender, and the supervision and rehabilitation of offenders who have been given a youth conditional caution.

690. Paragraph 12 amends Schedule 31 to the 2003 Act, which operates in conjunction with section 300 of that Act, as amended by Clause 23. Section 300 as amended gives a court with the power to commit an offender to prison for fine default the alternative of imposing a default order with an unpaid work requirement, a curfew requirement or an attendance centre requirement. Schedule 31 modifies the provisions governing the length of the unpaid work and curfew requirements of community orders set out in sections 199 and 204 of the 2003 Act, respectively. It sets out in tabular form the maximum periods of unpaid work or curfew which may be imposed corresponding to the amount of the sum in default.

691. Paragraph 12(3) amends Schedule 31 to make similar provision for default orders with attendance centre requirements. The attendance centre requirement of a community order is governed by section 214 of the 2003 Act. That provision is modified by paragraph 4(2) so that the minimum number of hours at an attendance centre to which an offender may be made subject under a default order remains at 12, but a table sets the maximum number of hours corresponding to the sum in default.

692. Paragraph 13 ensures that where enforcement powers for wildlife inspectors contained in the Wildlife and Countryside Act 1981 are extended to other wildlife legislation, including penalties for offences in relation to those powers, the offences themselves are also extended.

Clause 125 and Schedule 23: Repeals and revocations

693. This clause introduces Schedule 23 (repeals and revocations).

Clause 126: Financial provisions

694. This clause authorises out of money provided by Parliament any expenditure incurred by a Minister of the Crown under the Bill. It also authorises any additional expenditure incurred under any other Acts, where that additional expenditure results from the Bill.

Clause 127: Extent

695. This clause sets out the extent of the provisions of the Bill. This is detailed in paragraphs 66 to 71 above.

Clause 128: Commencement

696. This clause provides for commencement. The provisions mentioned in paragraph 675 and 676 below will come into force either on Royal Assent or 2 months after Royal Assent. The other provisions of the Bill are, with one exception, to be brought into force by means of orders made by the Secretary of State or the Lord Chancellor. The exception is clause 107 and Schedule 18 (nuisance or disturbance on HSS premises) which will be brought into force by order made by statutory rule by the Northern Ireland Department of Health, Social Services and Public Safety (subsection (4) read with clause 123(5)).

Clause 129: Short title

697. This clause sets out the short title of the Bill.

COMMENCEMENT

698. The following provisions of the Bill will come into force on Royal Assent:

Clause 56 and Schedule 13 which amend Schedule 3 to the 2003 Act, which makes provision in relation to the allocation of offences triable either way and the sending of cases to the Crown Court. Commencement of the amendments to Schedule 3 to the 2003 Act will not have any material effect until Schedule 3, as amended, is itself commenced;

Clause 113 which amends section 57 of the Police Act 1996 which makes provision for the Secretary of State to provide and maintain organisations which promote the efficiency and effectiveness of the police; and

Part 12, save for the provisions introducing Schedules 21, 22 and 23 (minor and consequential amendments, transitory, transitional and saving provisions and repeals and revocations) and those Schedules themselves.

699. The following provisions of the Bill will come into force two months after Royal Assent:

Clause 63, which repeals the requirement to publish an annual report on the workings of the Criminal Justice (Terrorism and Conspiracy) Act 1998; and

Clauses 68 and 69 which extend the definition of an indecent photograph in the Protection of Children Act 1978 (and the equivalent Northern Ireland legislation) to include a tracing or other image derived from a photograph.

700. All other provisions will be brought into force by means of commencement orders.

FINANCIAL EFFECTS OF THE BILL

701. The net effect of the Bill for the public sector (principally Her Majesty's Courts Service (HMCS), the Legal Services Commission (LSC), the National Offender Management Service (NOMS), the Crown Prosecution Service and police and local authorities) is estimated to be savings of some £14.3M/£13.6M/£13.5M in the financial years 2008-2009, 2009-2010 and 2010-2011 respectively. These figures are based on a number of assumptions about implementation which are subject to review.

702. In addition to the net savings identified above, the provisions in the Bill once fully implemented will result in a net reduction of up to 1383 in the requirement for prison places. The estimated impact on the prison population on individual provisions in the Bill is:

The abolition of the use of suspended sentence for summary offences (clause 10) - a saving of 400 prison places;

Greater discretion for courts to make offenders serving indeterminate sentences serve a higher proportion of tariff (clause 12) - an increase of 25 places;

The new arrangements so that in appropriate cases non-dangerous prisoners can be given a fixed term, punitive recall to prison for 28 days (clauses 16- 18) - a saving of 1,000 places;

The changes to the provisions for the early release prisoners liable for deportation and to the early removal scheme (clauses 19 and 20) - a saving of 60 places;

Amendment to the test applied by the Court of Appeal for quashing convictions (clauses 26) - an increase of 20 places;

The abolition of discount for unduly lenient sentence (clause 28) - an increase of 4 places;

The new offence of possession of extreme pornography (clauses 64-67) - an increase of 7 places;

The increase in the penalty for the misuse of personal data (clause 75) - an increase of 1 place; and

Violent Offender Orders (clauses 83-102) - an increase of 20 places

703. The main financial implications of the Bill for the public sector lie in the following areas.

Part 1: Youth Rehabilitation Orders.

704. The YRO is designed to combine existing community sentences for children and young people into one generic sentence. There will be an estimated one off training cost of £669K in 2008/09.

Part 2: Sentencing

705. Extending the use of referral orders is expected to lead to a saving for the Youth Justice Board of £194K for each of the financial years 2008-2009, 2009-2010 and 2010-2011.

Part 4: Her Majesty's Commissioner for Offender Management and Prisons

706. Placing the PPO on a statutory basis will be cost neutral. The Ombudsman's budget in 2005/06 was £5.7M.

Part 5: Other Criminal Justice Provisions

707. The introduction of Youth Conditional Cautions is estimated to result in savings of £98K for HMCS, £68K for the Police and £323K for Youth Offending Teams for the financial years 2008-2009, 2009-2010 and 2010-2011. The impact on the LSC and the CPS is expected to be broadly neutral.

708. The amendment to allocating either-way cases between magistrates' courts and the Crown Court, and sending cases from the former to the latter will allow these provisions, originally set out in the 2003 Act, to be implemented. This in turn will lead to saving of up to £1.6M for magistrates' courts and of up to £0.8M for the LSC in each of the financial years 2008-2009, 2009-2010 and 2010-2011.

709. The extension of powers of the CPS designated caseworkers will lead to savings for the CPS estimated at £5M for each of the financial years 2008-2009, 2000-2010 and 2010-2011.

710. It is estimated that the cost to the LSC of establishing a statutory gateway to make it easier to obtain information from government departments for the purposes of granting criminal legal aid will be £1M in 2008/09.

711. The provision on compensation for miscarriages of justice is expected to result in savings for the Ministry of Justice of £2.5M for each of the financial years 2008-2009, 2009-2010 and 2010-2011.

Part 6: Criminal Law

712. The provisions on extreme pornographic material will result in estimated costs to HMCS of £200K, the CPS of £65K and to LSC of £128K for each of the financial years 2008-2009, 2009-2010 and 2010-2011. Police and NOMS costs are estimated at £11K and £20K respectively over the same period.

713. There will be estimated savings for the police arising from the creation of orders to promote rehabilitation of persons involved in prostitution estimated at £34K in the financial year 2008-2009, £44k in the financial year 2009-2010 and £46K in the financial year 2010-2011. Savings to HMCS are estimated at £167K/£253K/£278K over the same period.

714. LSC costs arising from the increase in the penalty for the misuse of personal data are estimated at £16K for each of the financial years 2008-2009, 2009-2010 and 2010-2011.

Part 7: International Co-operation in relation to Criminal Justice Matters

715. Costs for HMCS of the provisions relating to the mutual recognition of financial penalties are estimated at £760K in the financial year 2008-2009 and £500K in the financial years 2009-2010 and 2010-2011. These are likely to be offset by the income from fines imposed by other Member States but enforced in England and Wales.

Prepared: 26 June 2007