Criminal Justice and Immigration Bill

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions
37

Proceedings in magistrates’ courts
56
Allocation of offences triable either way etc.
Schedule 13 amends Schedule 3 to the Criminal Justice Act 2003 (c. 44) (which
makes provision in relation to the allocation and other treatment of offences
triable either way, and the sending of cases to the Crown Court).
5
57
Trial or sentencing in absence of accused in magistrates’ courts
(1)
Section 11 of the Magistrates’ Courts Act 1980 (c. 43) (non-appearance of
accused) is amended as follows.
(2)
In subsection (1), for “the court may proceed in his absence” substitute “—
(a)
if the accused is under 18 years of age, the court may proceed in
10
his absence; and
(b)
if the accused has attained the age of 18 years, the court shall
proceed in his absence unless it appears to the court to be
contrary to the interests of justice to do so.

This is subject to subsections (2), (2A), (3) and (4).”
15
(3)
After subsection (2) insert—
“(2A)
The court shall not proceed in the absence of the accused if it considers
that there is an acceptable reason for his failure to appear.”
(4)
After subsection (3) insert—
“(3A)
But where a sentence or order of a kind mentioned in subsection (3) is
20
imposed or given in the absence of the offender, the offender must be
brought before the court before being taken to a prison or other
institution to begin serving his sentence (and the sentence or order is
not to be regarded as taking effect until he is brought before the court).”
(5)
After subsection (4) insert—
25
“(5)
Nothing in this section requires the court to enquire into the reasons for
the accused’s failure to appear before deciding whether to proceed in
his absence.
(6)
The court shall state in open court its reasons for not proceeding under
this section in the absence of an accused who has attained the age of 18
30
years; and the court shall cause those reasons to be entered in its
register of proceedings.”
(6)
Section 13(5) of that Act (non-appearance of accused: issue of warrant) ceases
to have effect.
58
Extension of powers of non-legal staff
35
(1)
Section 7A of the Prosecution of Offences Act 1985 (c. 23) (powers of non-legal
staff) is amended as follows.
(2)
In subsection (2)(a) (powers of designated non-legal staff)—
(a)
in sub-paragraph (ii), omit “other than trials”;

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions
38

(b)
after sub-paragraph (ii) insert—
“(iii)
the conduct of applications or other proceedings
relating to preventative civil orders;
(iv)
the conduct of proceedings (other than criminal
proceedings) in, or in connection with, the
5
discharge of functions assigned to the Director
under section 3(2)(g) above.”
(3)
For subsection (5) (interpretation) substitute—
“(5)
In this section—
“bail in criminal proceedings” has the same meaning as in the Bail
10
Act 1976 (see section 1 of that Act);
“preventative civil orders” means—
(a)
orders within section 3(2)(fa) to (fe) above;
(b)
orders under section 5 or 5A of the Protection from
Harassment Act 1997 (restraining orders);
15
(c)
orders under section 8 of the Crime and Disorder Act
1998 (parenting orders); or
(d)
other orders that may be made by a magistrates’ court in
proceedings in respect of a person who has been
convicted of an offence where the proceedings—
20
(i)
are not criminal proceedings, but
(ii)
are referable to that conviction.”
(4)
Omit subsection (6) (powers not applicable to offences triable only on
indictment etc.).
(5)
In section 15 of that Act (interpretation of Part 1) in subsection (4) (provisions
25
for the purposes of which binding over proceedings are to be taken to be
criminal proceedings) for “and 7(1)” substitute “, 7(1) and 7A”.
Criminal legal aid
59
Provisional grant of right to representation
(1)
Part 1 of the Access to Justice Act 1999 (c. 22) is amended as follows.
30
(2)
In section 14(1) (representation)—
(a)
after “criminal proceedings” insert “and about the provisional grant of
a right to representation in prescribed circumstances”;
(b)
after “granted” insert “, or provisionally granted,”.
(3)
In section 15(1) (selection of representative) after “granted” insert “, or
35
provisionally granted,”.
(4)
In section 25(9) (orders, regulations and directions subject to affirmative
resolution procedure) for “paragraph 2A” substitute “paragraph 1A, 2A,”.
(5)
In section 26 (interpretation) after the definition of “representation” insert—

“and, for the purposes of the definition of “representation”,
40
“proceedings” includes, in the context of a provisional grant of a right
to representation, proceedings that may result from the investigation
concerned.”

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions
39

(6)
After paragraph 1 of Schedule 3 (individuals to whom right may be granted)
insert—
“Individuals to whom right may be provisionally granted
1A    (1)
Regulations may provide that, in prescribed circumstances, and
subject to any prescribed conditions, a right to representation may be
5
provisionally granted to an individual where—
(a)
the individual is involved in an investigation which may
result in criminal proceedings, and
(b)
the right is so granted for the purposes of criminal
proceedings that may result from the investigation.
10
      (2)
Regulations under sub-paragraph (1) may, in particular, make
provision about—
(a)
the stage in an investigation at which a right to representation
may be provisionally granted;
(b)
the circumstances in which a right which has been so
15
granted—
(i)
is to become, or be treated as if it were, a right to
representation under paragraph 1, or
(ii)
is to be, or may be, withdrawn.”
(7)
In paragraph 2A of Schedule 3 (grant of right by Commission) at the end of
20
sub-paragraph (1)(b) insert—
“(c)
provide that any provisional grant of a right to
representation, or any withdrawal of a right so granted, in
accordance with regulations under paragraph 1A is to be
made by the Commission.”
25
(8)
In paragraph 3A(1) of Schedule 3 (form of the grant of a right to representation)
after “grant” insert “, or provisional grant,”.
(9)
In paragraph 3B of Schedule 3 (financial eligibility)—
(a)
in sub-paragraph (1)—
(i)
after “grant” insert “, or provisionally grant,”,
30
(ii)
after “granted” insert “, or provisionally granted,”;
(b)
in sub-paragraph (2)(a), after “granted” insert “, or provisionally
granted,”.
(10)
In paragraph 4 of Schedule 3 (appeals) at the end insert—

“This paragraph does not apply in relation to any right to
35
representation granted in accordance with paragraph 1A.”
(11)
In paragraph 5 of Schedule 3 (criteria for grant of right)—
(a)
in sub-paragraph (1), after “grant” insert “, or provisionally grant,”;
(b)
after sub-paragraph (2) insert—
   “(2A)
For the purposes of sub-paragraph (2), “proceedings”
40
includes, in the context of a provisional grant of a right to
representation, proceedings that may result from the
investigation in which the individual is involved.”;
(c)
in sub-paragraph (4), after “grant” insert “, or provisional grant,”.

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions
40

60
Disclosure of information to enable assessment of financial eligibility
(1)
The Access to Justice Act 1999 (c. 22) is amended as follows.
(2)
In section 25(9) (orders, regulations and directions subject to affirmative
resolution procedure), for “or 4” substitute “4 or 6”.
(3)
In Schedule 3 (criminal defence service: right to representation), after
5
paragraph 5 insert—
“Information requests
6     (1)
The relevant authority may make an information request to—
(a)
the Secretary of State, or
(b)
the Commissioners,
10

for the purpose of facilitating the making of a decision by the
authority about the application of paragraph 3B(1) or (2), or
regulations under paragraph 3B(3), in relation to an individual.
      (2)
An information request made to the Secretary of State is a request for
the disclosure of some or all of the following information—
15
(a)
the individual’s full name;
(b)
the individual’s address;
(c)
the individual’s date of birth;
(d)
the individual’s national insurance number;
(e)
the individual’s benefit status;
20
(f)
information of any description specified in regulations.
      (3)
An information request made to the Commissioners is a request for
the disclosure of some or all of the following information—
(a)
whether or not the individual is employed;
(b)
the name and address of the employer (if the individual is
25
employed);
(c)
the individual’s national insurance number;
(d)
information of any description specified in regulations made
with the agreement of the Commissioners.
      (4)
The information that may be specified under subsection (3)(d)
30
includes, in particular, information relating to the individual’s
income (as defined in the regulations) for a period so specified.
      (5)
On receiving an information request, the Secretary of State or (as the
case may be) the Commissioners may disclose the information
requested to the relevant authority.
35
Restrictions on disclosure
7     (1)
A person to whom information is disclosed under paragraph 6(5), or
this sub-paragraph, may disclose the information to any person to
whom its disclosure is necessary or expedient in connection with
facilitating the making of a decision by the relevant authority about
40
the application of paragraph 3B(1) or (2), or regulations under
paragraph 3B(3), in relation to an individual.
      (2)
A person to whom such information is disclosed commits an offence
if the person—

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions
41

(a)
discloses or uses the information, and
(b)
the disclosure is not authorised by sub-paragraph (1) or (as
the case may be) the use is not for the purpose of facilitating
the making of such a decision as is mentioned in that sub-
paragraph.
5
      (3)
But it is not an offence under sub-paragraph (2)—
(a)
to disclose any information in accordance with any
enactment or order of a court or for the purposes of any
proceedings before a court; or
(b)
to disclose any information which has previously been
10
lawfully disclosed to the public.
      (4)
It is a defence for a person charged with an offence under sub-
paragraph (2) to prove that the person reasonably believed that the
disclosure or use was lawful.
      (5)
A person guilty of an offence under sub-paragraph (2) is liable—
15
(a)
on conviction on indictment, to imprisonment for a term not
exceeding 2 years or a fine or both;
(b)
on summary conviction, to imprisonment for a term not
exceeding 12 months or a fine not exceeding the statutory
maximum or both.
20
      (6)
In sub-paragraph (5)(b) the reference to 12 months is to be read as a
reference to 6 months in relation to an offence committed before the
commencement of section 154(1) of the Criminal Justice Act 2003.
      (7)
Nothing in section 20 applies in relation to the disclosure of
information to which sub-paragraph (1) applies.
25
Paragraphs 6 and 7: supplementary
8     (1)
This paragraph applies for the purposes of paragraphs 6 and 7.
      (2)
“Benefit status”, in relation to an individual, means whether or not
the individual is in direct or indirect receipt of any prescribed benefit
or benefits and, if so (in the case of each benefit)—
30
(a)
which benefit the individual is so receiving, and
(b)
(in prescribed cases) the amount the individual is so
receiving by way of the benefit.
      (3)
“The Commissioners” means the Commissioners for Her Majesty’s
Revenue and Customs.
35
      (4)
“Information” means information held in any form.
      (5)
Nothing in paragraph 6 or 7 authorises the making of a disclosure
which contravenes the Data Protection Act 1998.”
61
Pilot schemes
(1)
The Access to Justice Act 1999 (c. 22) is amended as follows.
40
(2)
In section 17A (contribution orders) omit subsection (5) (piloting of
regulations).

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions
42

(3)
After section 18 insert—
“18A
Pilot schemes
(1)
This section applies to the following instruments—
(a)
any order under section 14 or paragraph 5 of Schedule 3,
(b)
any regulations under section 12, 13, 15, 17 or 17A or any of
5
paragraphs 1A to 5 of Schedule 3, and
(c)
any regulations under section 22(5) having effect in relation to
the Criminal Defence Service.
(2)
Any instrument to which this section applies may be made so as to have
effect for a specified period not exceeding 12 months.
10
(3)
But if the Lord Chancellor thinks that it is necessary or expedient for
either of the purposes in subsection (4), the period specified in the
instrument—
(a)
may in the first instance be a period not exceeding 18 months;
(b)
may be varied so as to become a period not exceeding 18
15
months.
(4)
The purposes are—
(a)
ensuring the effective operation of the instrument;
(b)
co-ordinating the operation of the instrument with the
operation of any other provision made under an enactment
20
relating to any aspect of the criminal justice system.
(5)
The period for the time being specified in an instrument to which this
section applies may also be varied so that the instrument has effect for
such further period as the Lord Chancellor thinks necessary for the
purpose of securing that it remains in operation until the coming into
25
force of any order or regulations made under the same provision of this
Act that will have effect—
(a)
generally, or
(b)
for purposes wider than those for which the instrument has
effect.
30
(6)
In the following provisions of this section “pilot scheme” means any
instrument which, in accordance with subsections (2) to (5), is to have
effect for a limited period.
(7)
A pilot scheme may provide that its provisions are to apply only in
relation to—
35
(a)
one or more specified areas or localities;
(b)
one or more specified descriptions of court;
(c)
one or more specified offences or descriptions of offence;
(d)
one or more specified classes of person;
(e)
persons selected—
40
(i)
by reference to specified criteria; or
(ii)
on a sampling basis.
(8)
A pilot scheme may make consequential or transitional provision with
respect to the cessation of the scheme on the expiry of the specified
period (or that period as varied under subsection (3)(b) or (5)).
45

Criminal Justice and Immigration Bill
Part 5 — Other criminal justice provisions
43

(9)
A pilot scheme may be replaced by a further pilot scheme making the
same or similar provision.”
(4)
In section 25 (regulations, orders and directions) after subsection (9A) insert—
“(9B)
No order or regulations which, by virtue of section 18A, is or are to
have effect for a limited period shall be made unless a draft of the order
5
or regulations has been laid before, and approved by a resolution of,
each House of Parliament.”
Miscellaneous
62
Compensation for miscarriages of justice
(1)
The Criminal Justice Act 1988 (c. 33) has effect subject to the following
10
amendments.
(2)
Section 133 (compensation for miscarriages of justice) is amended as follows.
(3)
At the end of subsection (2) (compensation only payable if application for
compensation is made) insert “before the end of the period of 2 years beginning
with the date on which the conviction of the person concerned is reversed or
15
he is pardoned.
(2A)
But the Secretary of State may direct that an application for
compensation made after the end of that period is to be treated as if it
had been made within that period if the Secretary of State considers
that there are exceptional circumstances which justify doing so.”
20
(4)
For subsection (4A) substitute—
“(4A)
Section 133A applies in relation to the assessment of the amount of the
compensation.”
(5)
After subsection (5) (meaning of “reversed” in relation to a conviction) insert—
“(5A)
But in a case where—
25
(a)
a person’s conviction for an offence is quashed on an appeal out
of time, and
(b)
the person is to be subject to a retrial,

the conviction is not to be treated for the purposes of this section as
“reversed” unless and until the person is acquitted of all offences at the
30
retrial or the prosecution indicates that it has decided not to proceed
with the retrial.
(5B)
In subsection (5A) above any reference to a retrial includes a reference
to proceedings held following the remission of a matter to a
magistrates’ court by the Crown Court under section 48(2)(b) of the
35
Supreme Court Act 1981.”
(6)
In subsection (6) (meaning of suffering punishment as a result of conviction)
after “this section” insert “and section 133A”.