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Part 8: Violent Offender Orders
716. There will be costs for CPS, LSC and HMCS for the clauses relating to Violent Offender Orders. We do not expect to implement these until the financial year 2009-2010. For the CPS these costs are estimated at £53K for the financial year 2009-2010 and £64K for the financial year 2010-2011. For the LSC these costs are estimated at £630K for the financial year 2009-2010 and £750K for the financial year 2010-2011. For HMCS these costs are estimated at £228K for the financial year 2009-2010 and £280K for the financial year 2010-2011. Police costs are estimated at £1.5M per annum over this period.
Part 9: Anti-social Behaviour
717. Premises Closure Orders will give rise to costs to the police of £135K and to local authorities of £250K in each of the financial years 2008-2009, 2009-2010 and 2010-2011. The costs to HMCS for each of the same years are £49K and the costs to the LSC for the same years are £292K.
718. The provisions on the offence of causing nuisance or disturbance on NHS premises will result in estimated costs of £174K for the CPS, for each of the financial years 2008-2009, 2009-2010 and 2010-2011. Police costs are estimated at £360K, costs to HMCS at £701K and costs to LSC at £75K for each of these years. One off training costs for NHS Trusts are estimated at £270K.
719. Costs for HMCS arising from the requirement to conduct an annual review of ASBOs issued to under 17s are estimated at £41K for each of the financial years 2008-2009, 2009-2010 and 2010-2011. Costs to the LSC are estimated at £72K for each of the same financial years.
Part 10: Policing
720. The new framework for dealing with police misconduct and performance issues is expected to lead to savings to police authority budgets of £10M for each of the financial years 2008-2009, 2009-2010 and 2010-2011.
Part 11: Special immigration status
721. Costs of the provision relating to restricted immigration status are estimated at up £1.1M for the Borders and Immigration Agency for each of the financial years 2008-2009, 2009-2010 and 2010-2011
722. The other provisions of the Bill are largely cost neutral, or will result in minor savings.
723. The overall net impact of the provisions in the Bill in the financial years 2008-2009, 2009-2010 and 2010-2011 on the following will be respectively:
- HMCS will be estimated additional savings of £114K/£143K/£156K
- CPS will be estimated additional savings of £4.8M/£4.7M/£4.7M.
- LSC will be estimated additional costs of £738K/£11K/£63K]
- Police authorities will be additional savings of £9.6M/£8.1M/£8.1M
- Local authorities will be additional costs of £250K/£250K/£250K.
EFFECTS OF THE BILL OF PUBLIC SECTOR MANPOWER
724. The current number of staff in the office of the PPO is around 85. We expect staffing numbers to remain the same when the role of the Ombudsman is placed on a statutory footing.
SUMMARY OF REGULATORY IMPACT ASSESSMENTS
725. 17 regulatory impact assessments and one overarching regulatory impact assessment have been published alongside the Bill. They are available from the Vote Office. The individual RIAs deal with the following provisions.
- Modification of power to make Referral Order
- Access by Her Majesty's Court Service (HMCS) to Department of Work and Pensions (DWP) records
- Prison and Probation Ombudsman
- Youth Conditional Caution
- Extension of powers of CPS designated caseworkers
- Miscarriages of Justice compensation
- Extreme pornographic material
- Increase in penalties for misuse of personal data
- Statutory one year review of juvenile Anti Social Behaviour Orders (ASBOs)
- Offence of creating nuisance or disturbance on NHS premises
- New police misconduct procedures
- Special Immigration Status
- Sentencing and Appeals Provisions
726. The Bill impacts mainly on the public sector (primarily the police, courts and other agencies within the criminal justice system). Where the private and voluntary sectors will be engaged, the business sectors affected are: providers of offender management services, including custodial establishments; internet service providers and others who may unknowingly distribute extreme pornographic material; holders of personal data; and commercial owners or occupiers of premises that may be subject to a premises closure order.
727. The costs of the Bill are outlined in paragraphs 678-700 of these Explanatory Notes. In general, the benefits of the Bill fall into the following categories.
- building public confidence in the sentencing framework by imprisoning serious and dangerous offenders while others receive tough and effective community sentences;
- ensuring that prison and probation resources are targeted at serious and violent offenders;
- strengthening the pre-court and community penalties available for young offenders so that, wherever possible, offending by children and young persons is effectively addressed without the need to resort to custody;
- ensuring that the police and their community safety partners have appropriate powers to tackle anti-social behaviour at its roots and thereby reinforce a culture of respect;
- ensuring that the UK does not provide a safe haven for foreign criminals and terrorists and send a clear signal that such people cannot expect to secure a settled status in this country.
EUROPEAN CONVENTION ON HUMAN RIGHTS
728. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before the Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Rt. Hon David Hanson MP, Minister of State, Ministry of Justice, has made the following statement:
"In my view the provisions of the Criminal Justice and Immigration Bill are compatible with the Convention rights."
Part 1: Youth Rehabilitation Orders
729. Part 1 introduces the youth rehabilitation order (YRO). This is the new community sentence for juvenile offenders. In essence, it combines a number of existing sentences into one new generic sentence. When imposing a YRO, the court will be able to choose from a 'menu' of different requirements that the offender must comply with depending on the individual circumstances of the offender. The YRO must be complied with within three years of taking effect.
730. The Government is of the view that Article 8 of the ECHR is engaged both in relation to the rights of the juvenile and the rights of the parent or guardian. 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. The Government considers that any interference with private and family life will be potentially justifiable as proportionate and necessary in the interests of public safety, the prevention of disorder or crime or for the protection of the rights and freedoms of others.
731. Leaving aside the YRO with intensive supervision and surveillance and a YRO with fostering, a YRO may impose any of the following combination of requirements: an activity requirement, a supervision requirement; an unpaid work requirement (if the offender is aged 16 or 17); a programme requirement; an attendance centre requirement; a prohibited activity requirement; a curfew requirement; an exclusion requirement; a residence requirement; a local authority residence requirement; a mental health treatment requirement; a drug treatment requirement; a drug testing requirement; or an education requirement. Providing the statutory conditions are met, it will be up to the court to decide which requirements are justified and proportionate in each individual case. A court cannot impose requirements which are incompatible with each other. The court is also required to ensure that the requirements are the most suitable for the individual offender and that any restraints on liberty are commensurate with the seriousness of the offences. Both the court and the responsible officer are also required to ensure as far as practicable that any requirement avoids conflict with the offender's religious beliefs or the times at which he attends work or school.
732. Non-statutory guidance, which has proved to work well in the past in the context of existing orders for juveniles and for the adult generic community order, will provide a description of places or activities which may be specified in a YRO and will also cover the arrangements to be made with regard to the attendance of offenders subject to activity, supervision, programme or attendance centre requirements, to ensure that the requirements are suitable, reasonable and proportionate to the circumstances of each offender.
The activity requirement
733. The activity requirement is defined in paragraphs 6 to 8 of Schedule 1. The court specifies the number of days within the maximum number and has to authorise any delegation to the responsible officer. The court or the responsible officer may also impose a residential exercise as part of an activity requirement or a programme requirement. The Government is of the view that this is a proportionate interference with the right to family life on the grounds set out in Article 8.2. A residential exercise authorised by a responsible officer can only be for a maximum of seven days and the consent of the parent or guardian must be obtained if practicable. The Government is of the view that, having regard to its obligations under section 6 of the Human Rights Act, a court would not impose a residential programme unless it was proportionate or necessary in the circumstances of the individual case in accordance with Article 8(2).
Unpaid work requirement
734. A YRO may also impose an unpaid work requirement on an offender who is aged 16 or 17 at the time of conviction. The requirement is defined in paragraph 10 of Schedule 1. Unpaid work must not be for more than 240 hours. An unpaid work requirement was also available for this age group as a requirement of the community order under section 199 of the Criminal Justice Act 2003. Article 4 is engaged. In the Government's view the requirement for a child to carry out unpaid work does not constitute forced or compulsory labour within the meaning of Article 4 as explained in Van der Mussele v Belgium [1983] 6 EHRR 163. It is work that will be justified and proportionate and required in the general interest and will be for the purpose of making reparation for wrongdoing that might directly assist the victim or the wider community.
Residence requirement
735. Paragraph 16 of Schedule 1 defines the residence requirement and paragraph 17 defines a local authority residence requirement. The former is a requirement that an offender live with a specified individual (with that person's consent) or at a specified place. Where a "place of residence requirement" is imposed the offender must be 16 or over at the time of conviction. For such a requirement the court is required to consider the home surroundings of the offender. The "local authority residence requirement" is a requirement that the offender live in local authority accommodation for up to a maximum of six months. Prior to imposing such a requirement, the court must consult the parent or guardian of the offender if practicable and the offender must be afforded the opportunity of legal representation. The Government does not consider that the requirement would amount to a deprivation of liberty under Article 5 of the Convention. The Government notes that a local authority residence requirement is already available as a requirement of a supervision order. To the extent that Article 8 is engaged, an interference will be justifiable in accordance with Article 8.2.
Mental health and drug treatment and testing requirements
736. Paragraphs 20 and 21 of Schedule 1 define a mental health treatment requirement, paragraph 22 a drug treatment requirement and paragraph 23 a drug testing requirement. In the Government's view, these requirements are justified under Article 8(2) as being in accordance with the law and necessary in the interests of public safety, the prevention of disorder or crime or for the protection of the rights and freedoms of others. In relation to these measures, it will be for the court to decide when to impose these requirements and to consider whether it is justified and proportionate in each case. Drug testing may only be ordered in conjunction with a drug treatment requirement. If the offender is aged 14 or over, such a requirement may not be imposed unless the offender expresses a willingness to comply with that requirement. The Government notes that the drug treatment and testing requirements were made available to juveniles of all ages subject to an action plan order and supervision order, in the Criminal Justice Act 2003. The Government also notes that a mental health treatment requirement is available as a requirement of a supervision order.
737. The Secretary of State intends to issue non-statutory guidance, to which a mental health treatment provider or a drug treatment or testing provider would have regard when exercising their functions pursuant to a requirement under a YRO. Guidance will provide that, when administering any treatment under a YRO, a treatment provider should maintain and have regard to a care plan for the offender, which will set out the nature of the offender's treatment from time to time, including the number and frequency of appointments. Treatment providers will maintain maximum flexibility in their treatment of the offenders, and be able to provide treatment as is appropriate and necessary according to their clinical and professional judgment, but the guidance will be aimed at ensuring that treatment is reasonable and proportionate in the particular circumstance of each offender.
Other requirements
738. A YRO may also impose a programme requirement, attendance centre requirement, prohibited activity requirement, exclusion requirement or an education requirement, defined by paragraphs 11, 12, 13, 15 and 24 of Schedule 1 respectively. These requirements will be tailored to the particular needs and circumstances of the offender. A programme requirement is a new requirement 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 may also include a residential requirement. The Government believe this to be justifiable on the same basis as in relation to a residential activity requirement. The Government also notes that, other than the programme requirement, these requirements are all available as part of existing youth community orders.
Intensive supervision and surveillance
739. Clause 1(3)(a) provides that a court may impose a YRO with intensive supervision and surveillance (YRO with ISS). This puts the existing Intensive Supervision and Surveillance Programme, administered by the Youth Justice Board, on a statutory footing. The YRO with intensive supervision and surveillance is designed as an alternative to custody for serious juvenile offenders. Accordingly, clause 1(4) provides that a court may not impose this order unless the offence is punishable with imprisonment and the court is satisfied that the offence(s) was so serious that the custodial threshold has been met. For offenders under the age of 15, the court must also be satisfied that they are a persistent offender. This threshold is designed to ensure that a court should not make this kind of YRO unless a detention and training order would also be available for that young offender. The YRO with ISS provides an alternative to custody which is a less significant restriction on liberty. Without this alternative, custody may be the only option for these serious young offenders.
Electronic monitoring
740. Electronic monitoring in the context of the YRO is monitoring to ensure compliance with other requirements imposed by the order. It is defined in paragraph 25 of Schedule 1. A YRO with a curfew or exclusion requirement must impose this requirement, unless it would be inappropriate in the particular circumstances or impracticable to do so. The court will retain discretion in all cases as to whether to impose this requirement and will have to consider whether it is justified and proportionate in each individual case. As regards Article 3, it is not considered that the level of surveillance involved in the electronic monitoring of a person's whereabouts is intrusive enough to breach that Article. Those cases where Article 3 has been found to have been breached have involved treatment of a different order of severity. It is considered that where monitoring of whereabouts is imposed as part of a sentence, there is a qualitative difference to the type of treatment considered in other cases to have breached Article 3. The court will have weighed up the alternative sanctions and determined that it is an appropriate response to the offence and the continuing risk posed by the offender. It is recognised that for some particularly vulnerable people, monitoring could be distressing. However, the assessment of the youth offending team for the court will serve to identify any psychiatric vulnerability that would render the person unsuitable for electronic monitoring. In the context of juvenile offenders, the Government considers that this is a proportionate response to serious offending. The Government notes that electronic monitoring of this kind is not a new requirement and is available as a requirement of all youth community orders under section 36B of the Powers of Criminal Courts (Sentencing) Act 2000.
Fostering requirement
741. Clause 1(3)(b) introduces the YRO with fostering. A fostering requirement (defined in paragraph 18 of Schedule 1) is a requirement that the offender live for the specified period (which at the outset is no more than 12 months but may be extended by the court to 18 months in certain circumstances) with one or more named local authority foster parents. A supervision requirement must also be imposed. Clause 1(4) sets out safeguards. A court may not impose a YRO with fostering unless the offence is punishable with imprisonment and the court is satisfied that the custodial threshold has been met. For offenders under the age of 15, the court must be satisfied that they are a persistent offender. This threshold is designed to ensure that a court should not make a YRO with fostering unless a detention and training order would also be available for that young offender. In addition, under paragraph 4 of Schedule 1 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 not impose a YRO with fostering unless it has first consulted the offender's parents or guardians (if practicable) and the local authority and the offender has had the opportunity to be legally represented.
742. Given that the alternative is a custodial sentence and the offending behaviour is due to a significant extent to the offender's living arrangements, the Government's view is that this requirement would be a proportionate response to the risks posed by the offender in order to deter a repetition of offending behaviour. The child will receive a stable home life from specially trained foster parents and undertake structured activities in the daytime to tackle the causes of their behaviour The intervention is designed to benefit the young person, the family and the wider community and is justifiable for the prevention of disorder or crime, the protection of health or morals and the protection of the rights and freedoms of others. .
743. As regards Article 5, the Government does not consider that this requirement would be a deprivation of liberty within the meaning of that Article. The Government is of the view that the extent to which an offender's liberty will be curtailed is not sufficient to justify a conclusion that liberty has been deprived and not merely restricted (Guzzardi v Italy [1981] 3 EHRR 333). Foster parents will have no specific powers to enforce the residence requirement or to override the wishes of the parents. A fostering requirement will not be available under a YRO with ISS. The Government notes that a fostering requirement is also available as a requirement of a supervision order (introduced by Schedule 2 to the Anti-social Behaviour Act 2003).
Breach proceedings
744. Schedule 2 deals with breaches, revocation and amendment of YROs and largely replicates Schedule 8 to the Criminal Justice Act 2003 Act with modifications for juveniles. If an offender breaches a requirement under the YRO he or she may be issued with a statutory warning. Unlike the adult provisions, an offender may receive two warnings in a twelve month period before breach proceedings in a court must be instituted. In other cases, for example, if the breach is serious, however, a warning is not necessary and breach proceedings may be instituted. In the event of breach, unlike in the case of adults, a fine may be imposed. If Article 14 is engaged, the government is of the view that this would be a justified difference in treatment on breach of a community order. The Government is of the view that fines are an effective means of dealing with breach of juvenile community sentences. This is due to the fact that the court has a power (and a duty in relation to those under the age of 16) to order that the parent or guardian pay the fine. This disposal, where imposed, may engage the parent in the criminal process and encourage better parenting.
745. The court's power to re-sentence is limited to a power to impose any sentence that the court which sentenced the offender could have imposed on that offender for the offence. The consequence of this is that a juvenile could not receive an adult sentence even if that juvenile was aged 18 or over at the time of breach. This is consistent with the approach taken in relation to referral orders and it is the Government's view that this it is compatible with Articles 6 and 7 of the Convention.
746. In the case of a wilful and persistent breach of a YRO, the court may impose a YRO with ISS notwithstanding the original offence was not such as to attract a sentence of imprisonment and the offence was not so serious as to justify such a sentence. In the case of a wilful and persistent breach of a YRO with ISS, the court may impose a custodial sentence even if the original offence was not so serious as to justify such a sentence. If an offender wilfully and persistently breaches a YRO for a non-imprisonable offence, and then receives a YRO with ISS which he or she also wilfully and persistently breaches, the court will be able to give that offender a detention and training order for a term not exceeding 4 months. The Government is of the view that this is lawful and proportionate penalty for an offender who wilfully and persistently breaches two community orders. The Government also notes that custody may be imposed on an adult offender under Schedule 8 to the 2003 Act for a non-imprisonable offence, where that offender wilfully and persistently fails to comply with a community order.
747. There is a right of appeal available if the court revokes the existing order and re-sentences the offender. There is no right of appeal available from a fine or variation of the Order. The Government considers that neither Article 6 nor Article 13 require there to be an available right of appeal from a "secondary order" made on breach of a YRO.
Part 2: Sentencing
Purposes etc of sentencing: offenders aged under 18
748. Clause 9 inserts section 142A into the Criminal Justice Act 2003 and sets out purposes of sentencing for offenders aged under 18 at the time of sentencing. Under this clause, the court must have regard primarily to the principal aim of the youth justice system which is to prevent offending by children and other persons aged under 18 (as set out in section 37 of the Crime and Disorder Act 1998).
749. The court must also have regard to other purposes of sentencing which are the punishment of offenders; the reform and rehabilitation of offenders; the protection of the public and the making of reparation by offenders to persons affected by their offences. In addition, the court must have regard to the welfare of the child or young person before them, as set out in section 44 of the Children and Young Persons Act 1933. Section 44 is being amended, however, to make it clear that where a court is sentencing a juvenile offender this duty is subject to the principal aim of the youth justice system.
750. The Government is of the view that this clause does not raise any significant issues in relation to the Convention but it does note that Article 3 of the Convention on the Rights of the Child provides that in all actions concerning children their bests interests are to be a primary consideration. The duty under section 44 of the Children and Young Persons Act 1933, to have regard to the welfare of the particular child or young person before the court, will continue to apply. Indeed, there are numerous safeguards in the youth justice system in order to benefit the welfare of juvenile offenders. The guiding principle of the Practice Direction (Crown Court: Young Defendants) [2000] 1 WLR 659 is that a trial should not expose a young defendant to avoidable intimidation or humiliation and should be conducted with regard to his welfare. This clause clarifies, however, that where the court is sentencing a juvenile offender it must primarily have regard to the principal aim of the youth justice system.
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