Memorandum submitted by the Ministry of Justice (CJ&I 396)

 

 

CRIMINAL JUSTICE & IMMIGRATION BILL: COMMITTEE STAGE AMENDMENTS

 

I am writing to let you have details of the further Government amendments (copy attached for ease of reference) to the Bill which I have tabled today for Committee Stage. You will recall that I gave the Committee notice of many of these amendments in my letter to you of 13 October.

 

The amendments address the following matters:

 

Part 3: Appeals against convictions (clause 26) (amendments at Annex A)

 

At Second Reading, the Justice Secretary indicated (Hansard 8 October 2007, col. 66)  that in the light of the responses to the consultation 'Quashing Convictions' the Government was reviewing clause 26 of the Bill and intended to bring forward replacement provisions. He was concerned that the Court of Appeal should retain discretion to quash a conviction, regardless of the appellant's guilt, in serious cases of prosecution misconduct. That objective is achieved by amendment 1 in Annex A which replaces the new subsections (1A) and (1B) of section 2 of the Criminal Appeal Act 1968 that are inserted by clause 26(2).

The revised new subsection (1A) is also designed to clarify that the Court of Appeal is a court of review and is not required to decide whether it is satisfied of the appellant's guilt.  It replaces the test that the Court are satisfied that the appellant is guilty with one that the Court think that there is no reasonable doubt about the appellant's guilt

This amendment also replaces the "Convention exception" in new subsection (1B) with one that enables the Court of Appeal to allow an appeal, notwithstanding subsection (1A), if they think that it would seriously undermine the proper administration of justice to allow the conviction to stand. This will ensure that the Court has a discretion to quash a conviction in cases involving serious procedural irregularities by the investigating or prosecuting authorities, or other agencies of the State, as in the Mullen case. In our view, all the circumstances that would be caught by the existing Convention exception would also be covered by the revised subsection (1B).

Amendments 2 and 3 are consequential amendments to apply the changes effected by clause 26 to two other provisions (sections13 and 16 of the Criminal Appeal Act 1968) which make use of the test of unsafety. 

The new clause (Power of Court of Appeal to disregard developments in the law) replaces Government amendment 78 previously tabled (which applied only to section 2 of the 1968 Act) and applies it also to sections 13 and 16.

 

New clauses (Meaning of unsafe: Northern Ireland, Power of Court of Appeal to disregard developments in the law: Northern Ireland and Determination of prosecution appeals: Northern Ireland) make provision in respect of Northern Ireland equivalent to that in clauses 26 (as revised) and 27 and the new clause referred to in the preceding paragraph.

 

 

Part 4: Her Majesty's Commissioner for Offender Management and Prisons (amendments to be tabled 15 November)

 

The amendments to this Part:

 

· Clarify the extent of the provisions in Part 4;

· Exclude complaints about health care matters from the remit of the Commissioner (such complaints will, as now, be dealt with by the Parliamentary and Health Service Ombudsman);

· Make changes to the various order-making powers in Part 4 to confer on the Secretary of State the power to make consequential modifications to primary legislation; and

· Clarifies how the Commissioner is to handle complaints that are partly eligible complaints (as defined by clause 30) and partly outside his remit and therefore ineligible.

 

Part 5: Trial or sentencing in the absence of accused in magistrates' courts (clause 57) (amendments 1 and 2 in Annex B)

 

The purpose of these two amendments is to preserve the existing prohibition, in subsection (3) of section 11 of the Magistrates' Courts Act 1980, on imposing a custodial sentence in the offender's absence, but to limit it to proceedings that have been initiated by means of an information and summons (or written charge and requisition).  The power to sentence to custody in absence will thus be available only in cases where the defendant has been bailed to appear and may therefore be presumed to have known the date of the hearing.

 

 

 

 

Part 6

 

Extreme pornography (clauses 64-67) (amendments 1, 8, 33, 48 and 57 in Annex C)

 

The new clause and schedule (Special rules relating to providers of information society services) will ensure that the new offence - which will cover material downloaded from the internet - complies with the requirements of the e-Commerce Directive (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)).

 

The amendment to Schedule 21 replaces the provisions in clause 67(5) and (6) (amendments 1 and 33). These subsections provide that in cases where the sentence given for an offence under clause 64 is for a term of imprisonment of at least 2 years, and where the offender was 18 or over at the time of the offence, he or she will also be subject to the registration requirements under Part 2 of the Sexual Offences Act 2003. In transferring the substance of these subsections to Schedule 21 the amendments also add the possession of extreme pornography offence to the Northern Ireland part of the list of relevant offences in Schedule 3 to the Sexual Offences Act.

 

Rehabilitation of Offenders: orders under section 1(2A) of the Street Offences Act 1959 (clause 73) (amendment 3 in Annex B)

 

The Scottish Executive have now agreed that the amendments made by this clause to the Rehabilitation of Offenders Act 1974 (which is a GB statute, but relates to devolved matters in Scotland) may extend to Scotland. The amendment would remove subsection (4) which currently limits the extent of the amendments made to the 1974 Act to England and Wales.

 

Part 7: Mutual recognition of financial penalties (clauses 76-81) (Annex D)

 

These amendments make equivalent provision for Northern Ireland and clarify the arrangements for assigning requests from other EU Member States for the enforcement of financial penalties to the appropriate legal jurisdiction in the UK.

 

Part 8: Violent Offender Orders (amendments 2-6, 29 and 52 in Annex C)

 

The amendments to Part 8 provide for the annual review of a Violent Offender Order in respect of an individual under the age of 18; introduce a requirement on the police to consult with a Youth Offending Team before applying for an Order in respect of a person under 18; confer a requirement on Youth Offending Teams to coordinate support for persons under 18 who are subject to an Order; and enable the Secretary of State to make regulations specifying additional information that a person subject to an Order must provide to the police.

 

Part 10: Police misconduct and performance procedures (Schedule 19) (amendments 17-25, 30, 37, 45 and 46 in Annex C)

 

These amendments make minor and technical amendments to Schedule 19 (and associated amendments to Schedules 21 and 22). Amongst other things, they update the terminology used in the substituted section 84 of the Police Act 1996 to take account of the provisions of the Legal Services Act 2007.

 

Miscellaneous minor, technical, consequential and transitional amendments (amendment 5 in Annex B and amendments 7, 9, 10, 13-16, 28, 35, 44 in Annex C)

 

These amendments are minor and technical in nature. Amongst other things they:

 

i. Make transitional provisions in respect of cautions given prior to the commencement of clause 54 (which brings cautions within the ambit of the Rehabilitation of Offenders Act 1974) (amendment 5 in Annex B);

ii. Remove a redundant reference to the Central Police Training and Development Authority from section 54 of the Police Act 1996 (amendment 44 in Annex C);

iii. Amend the Nuclear Materials (Offences) Act 1983 to include specific reference to incitement of offences to which that legislation relates. The amendments also include transitional arrangements to cover the law in Scotland and the amendments to the law on incitement which will take effect with the Serious Crime Act 2007 (amendments 14-16 and 35 in Annex C).

 

 

New Provisions

 

Incitement to homophobic hatred (amendments 11, 27, 36, 42, 49 and 58 in Annex C)

 

The new clause and Schedule (Hatred on grounds of sexual orientation) amend the Public Order Act 1986 to extend the existing offences of inciting racial or religious hatred to cover hatred on grounds of sexual orientation. While we need to do more to tackle hate crime against gays and lesbians, it is not our purpose to prevent free speech or debate. The new offence will not prevent jokes or religious organisations explaining that they believe homosexual behaviour is morally wrong. We recognise that there are some concerns about the new offence and, in response to this, the Justice Secretary indicated at Second Reading that in framing the offence our starting point would be the religious hatred model.

Under the Public Order Act there is not, in fact, a single offence of inciting hatred but six separate offences. These offences involve the use of words or behaviour or display of written material; publishing or distributing written material; the public performance of a play; distributing, showing or playing a recording; broadcasting or including a programme in a programme service; and possession of inflammatory material.

In relation to each extended offence the amendments provide that the words, behaviour, written material or recordings or programme must be threatening, and intended to stir up hatred on the grounds of sexual orientation.

The offences will differ from the offences of stirring up racial hatred (in Part 3 of the 1986 Act) in two respects. First, the offences apply only to "threatening" words or behaviour, rather than "threatening, abusive or insulting" words or behaviour. Second, the offences apply only to words or behaviour if the accused "intends" to stir up hatred on grounds of sexual orientation, rather than if hatred is either intentional or "likely" to be stirred up.

No equivalent provision is made to section 29J of the 1986 Act which provides that the offences of stirring up religious hatred do not limit or restrict discussion, criticism or expressions of antipathy, dislike, ridicule or insult or abuse of particular religions or belief systems or lack of religion or the beliefs and practices of those who hold such beliefs or apply to proselytisation, evangelism or the seeking to convert people to a particular belief or to cease holding a belief. We remain to be persuaded that such a provision is needed given that the offences would only apply to threatening language or behaviour that is intended to stir up hatred, not to abusive or insulting language in itself.

I enclose with this letter a more detailed explanatory note on the effect of these amendments, together with a 'Keeling Schedule' which shows how Part 3A of the Public Order Act would appear in its amended form.

Protection of children from sex offenders (amendments 12, 31, 32, 34, 39-41, 50, 51, 53, 54, 55, 59 and 60 in Annex C)

 

These amendments address 5 separate issues. The first two implement actions identified by the Home Office review, published in June 2007. The amendments:

 

· introduce a legal duty on MAPPA authorities to consider the disclosure of information about convicted child sex offenders to members of the public in all cases. Where the MAAPA authorities believe that a child sex offender poses a risk of causing harm to children and the disclosure of information is necessary for the purposes of child protection, there will be a presumption in favour of disclosure;

· enable the Secretary of State to make regulations specifying additional information or changes in circumstances that a person subject to the notification requirements under the Sexual Offences Act 2003 must notify to the police;

· confer on courts the discretion to impose a Sexual Offences Prevention Order on an offender convicted of a sexual offence listed in Schedule 3 to the Sexual Offences Act 2003 Order where a relevant threshold (eg. minimum sentence length) has not been met, provided there is evidence of risk of serious sexual harm;

· Close a loophole in the offence of meeting a child following sexual grooming so that it captures circumstances where an offender entices a child to travel to meet him, but where the meeting does not take place because of police intervention; and

· Remove the dual criminality requirement in respect of serious sexual offences against children under 18 committed abroad but prosecuted in this country (this will support ratification of the Council of Europe Convention on the Protection of Children against Sexual Exploitation).

 

Adoption and sexual history (amendment 59 in Annex C)

 

These amendments will:

 

· make it an offence for an adoptive parent to have a sexual relationship with their adoptive child when he/she is aged 18 or over; and

· correct discrepancies in the treatment of sexual relationships between adopted people and their birth and adoptive families depending on whether a person was adopted before, or after, commencement of the Adoption and Children Act 2002.

 

Investigatory powers of the Serious Fraud Office (amendment 47 in Annex C)

 

This amendment will extend the Serious Fraud Office's investigatory powers (under section 2 of the Criminal Justice Act 1987) to the vetting stage in any cases involving allegations of bribery or corruption of overseas officials. They implement a proposal to this effect in the Home Office consultation paper 'Reform of the Prevention of Corruption Acts and SFO Powers in Cases of Bribery of Foreign Officials' published in December 2005.

 

 

 

 

Increase in sanctions against shops selling tobacco to under aged persons (amendments 38 and 56 in Annex C)

 

These amendments aim to strengthen the sanctions against retailers who repeatedly flout the law by selling cigarettes to persons under the minimum age (which was raised to 18 on 1 October 2001). The amendments will confer powers on magistrates' courts to impose prohibition orders on retailers who have been found to have repeatedly sold tobacco to under-aged children and young people. Retailers subject to such an order would be barred from selling tobacco products for up to one year. Violation of an order would make the retailer liable to a fine of up to £20,000.

 

Retrial bail hearings (amendment 4 in Annex B)

 

This is a technical amendment to the provisions in the Criminal Justice Act 2003 governing the retrials (following acquittal) for serious offences. The Act sets strict time limits for bringing a person charged with an offence before a Court to consider whether he or she should be bailed or remanded in custody. For the purpose of calculating the time limit, the Act excludes Sundays and bank holidays; the amendment would also exclude Saturdays given that Crown Courts do not open on such days.

 

Definition of a young offender institution (amendment 26 in Annex C)

 

This is a technical amendment to the definition of a young offender institution (YOI) (contained in section 43 of the Prisons Act 1952). The change in definition will enable the Secretary of State subsequently to exercise an order making power under section 41(6) of the Crime and Disorder Act 1998 which would allow the Youth Justice Board to exercise, concurrently with the Secretary of State, power to enter into contracts for the provision and running of YOIs.

 

I expect to table further amendments in the coming days, including the amendments to the Criminal Appeals Acts, the Repatriation of Prisoners Act and the Youth Justice and Criminal Evidence Act which I referred to in my letter of 13 October.

 

To assist the Committee's scrutiny of the Bill I also attach a number of 'Keeling Schedules' showing how existing statutory provisions that are to be amended by provisions in the Bill would appear in their amended form.

 

I am copying this letter and enclosure to members of the Committee, Nick Herbert, Evan Harris, Alan Beith (Justice Select Committee), Keith Vaz (Home Affairs Select Committee), Kevin Barron (Health Select Committee), Lord Kingsland, Lord Thomas of Gresford and the Scrutiny Unit. I am also placing a copy in the Library and on the Ministry of Justice website.

 

October 2007