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These notes refer to the Criminal Justice and Immigration Bill as introduced in the House of Commons on 7th November 2007 [Bill 1]
CRIMINAL JUSTICE AND IMMIGRATION BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Criminal Justice and Immigration Bill as introduced in the House of Commons on 7th November 2007. They have been prepared by the Ministry of Justice in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. The Criminal Justice and Immigration Bill was initially introduced in the House of Commons on 26th June 2007 and has been carried over from the previous Parliamentary session under Standing Order No. 80A. In the previous session the Bill completed 8 out of 16 scheduled Public Bill Committee sittings. The Bill and these explanatory notes contain amendments to clauses and Schedules in Part 1 of the Bill as agreed by the Public Bill Committee.
4. A glossary of abbreviations and terms used in these explanatory notes is contained in Annex A to the notes.
SUMMARY
Part 1: Youth Rehabilitation Orders
5. Part 1 (clauses 1 to 8 and Schedules 1 to 4) introduces youth rehabilitation orders (YROs), a new generic community sentence for children and young people. It sets out the requirements that may be attached to a YRO, makes provision for their enforcement, revocation, amendment and transfer to Northern Ireland, and abolishes certain existing community sentences which are to be replaced by the YRO.
Part 2: Sentencing
6. Clause 9 sets out the purposes of sentencing in relation to young offenders.
Bill 1—EN 54/3
7. Clause 10 restricts the use of suspended sentence orders to indictable and either way offences.
8. Clause 11 clarifies courts' sentencing powers to make it clear that a court is not required to impose a community sentence in cases where the offence is serious enough to justify such a sentence.
9. Clause 12 makes some changes to the method by which courts determine the tariff (that is, the minimum time that a person must spend in custody) when they are imposing an indeterminate sentence.
10. Clause 13 ensures that courts can pass two or more consecutive intermittent custody or custody plus sentences.
11. Clause 14 makes technical amendments to the provisions in the Criminal Justice Act 2003 (the 2003 Act) governing the period of time an offender must spend in custody before becoming eligible for the home detention curfew scheme.
12. Clause 15 provides for the parole arrangements for foreign national prisoners liable to deportation sentenced under the Criminal Justice Act 1991 to be brought into line with those applicable to other prisoners.
13. Clause 16 provides for non-dangerous offenders who breach the terms of their licence or who re-offend to be recalled to prison for a fixed period of 28 days. The role of the Parole Board is changed in such cases so that it acts as an appellant authority rather than routinely reviewing all recalls. It provides for other offenders (except those serving extended sentences) to be released by the Secretary of State without referral to the Parole Board, if he considers that it is safe to do so. Prisoners serving extended sentences will, as now, be released only after a recommendation by the Parole Board.
14. Clause 17 removes the requirement for the Parole Board, at each hearing, to fix a date for the next one. Instead, the Secretary of State will refer cases to the Parole Board. He must refer each case at least every twelve months, and may do so before then if he sees fit. The Board may make a recommendation to the Secretary of State that a person's case be referred to it.
15. Clause 18 removes the rule that the Secretary of State may recall a life prisoner only on the recommendation of the Parole Board (except in certain circumstances). Instead, the Secretary of State may recall such a person when he sees fit. This brings the arrangements for lifers into line with those for other prisoners released on licence.
16. Clauses 19 and 20 amend the criteria for the availability of the early removal scheme, under which offenders liable to be deported may be released from custody early. The clauses also extend the scheme to other offenders if they show a settled intention of residing permanently outside the UK.
17. Clause 21 extends the circumstances in which a court may make a referral order in respect of a young offender.
18. Clause 22 reduces from 40 to 20 hours the minimum period of unpaid work that may be imposed for breach of a community order.
19. Clause 23 and Schedule 5 introduce youth default orders which will enable a court to impose an unpaid work requirement, curfew requirement or attendance centre requirement on a young offender in lieu of an unpaid fine.
20. Clause 24 amends the provisions in the 2003 Act in relation to adult fine defaulters to restrict those provisions to those over 18 years and provide for an attendance centre requirement to be imposed on young adult (those aged under 25) fine defaulters, with the duration of the requirement being linked to the amount of the unpaid fine.
21. Clause 25 affords the staff of Her Majesty's Court Service (HMCS) access to benefit records held by the Department for Work and Pensions (DWP) for the purpose of fine enforcement.
Part 3: Appeals
22. Clause 26 alters the test applied by the Court of Appeal when considering appeals against conviction. The amendment to section 2 of the Criminal Appeal Act 1968 (the 1968 Act) provides that a conviction is not unsafe if the Court of Appeal is satisfied that the appellant is guilty of the offence. The Court of Appeal is given an express power to refer a case to the Attorney General if they consider that there has been serious misconduct by any person involved in the investigation or prosecution of the case subject to appeal.
23. Clause 27 alters the test for ordering a retrial (or that the trial should resume) where the Court of Appeal allow a prosecution appeal against a terminating ruling.
24. Clause 28 provides that where a discretionary life sentence or indeterminate sentence is referred to the Court of Appeal by the Attorney General on the grounds that it is unduly lenient, the Court may not, on re-sentencing, give the offender any discount in the new sentence to reflect any anxiety and distress arising from being sentenced for a second time. This is an extension of the prohibition which already applies to mandatory life sentences for murder.
Part 4: Her Majesty's Commissioner for Offender Management and Prisons
25. Part 4 (clauses 29 to 52 and Schedules 6 to 10) establishes HM Commissioner for Offender Management and Prisons. The Commissioner will be a statutory office holder legally independent of the Secretary of State, equipped with statutory powers of investigation. The role of the Commissioner will be to provide independent adjudication of complaints from offenders and immigration detainees (in relation to treatment whilst in detention) and to investigate deaths of prisoners, young people detained in Secure Training Centres, residents of Approved Premises (formerly known as Bail and Probation Hostels) and those detained in certain types of immigration detention accommodation. The Commissioner will also be able to investigate other incidents of concern on request of the Secretary of State. These functions are for the most part currently performed by the Prisons and Probation Ombudsman (PPO) on a non-statutory basis and transitional provision is made in respect of the investigation of complaints residing with the PPO on commencement of this Part.
Part 5: Other criminal justice provisions
26. Clause 53 and Schedule 11 extend the adult conditional caution scheme, provided for in Part 3 of the 2003 Act, to young offenders aged 16 and 17 years. The provisions allow for a caution with specific conditions attached to it to be given where there is sufficient evidence to charge a suspect with an offence which he or she admits, and the suspect agrees to the caution. It would be for the prosecutor to decide whether a conditional caution was appropriate, and in most cases for the police to administer it. If the suspect failed to comply with the conditions, he or she would be liable to be prosecuted for the offence. The Bill provides for the publication of a Code of Practice for youth conditional cautions.
27. Clause 54 and Schedule 12 amend the Rehabilitation of Offenders Act 1974 (the 1974 Act) to bring warnings, reprimands, simple cautions and conditional cautions within the ambit of that Act. Once such warnings and cautions become "spent" an ex-offender is not obliged to declare them, for example, when applying for a job (save in excepted circumstances). Clause 55 makes consequential amendments to Part 5 of the Police Act 1997 (the 1997 Act) which provides the statutory framework for the Criminal Records Bureau (CRB).
28. Clause 56 and Schedule 13 amend Schedule 3 to the 2003 Act which revised the procedure to be followed by magistrates' courts in determining whether cases triable either way should be tried summarily or on indictment, and provides for the sending to the Crown Court of those cases which need to go there. The new procedures were designed to enable cases to be dealt with in the level of court which is appropriate to their seriousness, and to ensure that they reach that court as quickly as possible. The amendments to Schedule 3 restore the power of magistrates' courts to commit cases tried summarily to the Crown Court for sentence.
29. Clause 57 create a presumption that, if defendants fail to attend for trial without good cause, magistrates will use their powers to try them in their absence and sentence them if convicted.
30. Clause 58 extends the range of proceedings in magistrates' courts where the Crown Prosecution Service (CPS) may be represented by a designated caseworker rather than a Crown Prosecutor.
31. Clauses 59 to 61 amend the legal aid provisions in the Access to Justice Act 1999 to: allow rights to representation to be applied for and granted provisionally before the point of charge; allow HMCS staff processing means tested applications to access Her Majesty's Revenue and Customs (HMRC) and DWP records for the purposes of assessing financial eligibility; and widen the powers to pilot schemes relating to the grant of legal aid.
32. Clause 62 alters the scheme, provided for in section 133 of the Criminal Justice Act 1988, for the award of compensation for miscarriages of justice. The changes impose a time limit for making applications for compensation, place an upper limit on the amount of compensation that may be awarded, restrict the compensation that may be paid for loss of earnings, and enable the Assessor to make deductions from the total level of compensation in the light of any contributory conduct or any previous convictions held by the applicant.
33. Clause 63 repeals section 8 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 which requires the Secretary of State to lay before Parliament an annual report on the workings of that Act.
Part 6: Criminal Law
34. Clauses 64 to 66 make it an offence to possess extreme pornographic images, including those depicting acts which threaten or appear to threaten a person's life, acts which result in or appear to result in serious injury, bestiality or necrophilia; they also provide for the exclusion of classified films etc. and set out defences and the penalties for the offence.
35. Clauses 68 and 69 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.
36. Clause 70 increases the maximum penalty for publication of obscene material and for the possession of such material for gain under the Obscene Publications Act 1959.
37. Clauses 71 to 73 and Schedule 14 make changes to the offence of loitering or soliciting for the purposes of prostitution under section 1 of the Street Offences Act 1959 so that it no longer uses the term "common prostitute" and create a new sentence, as an alternative to a fine, for persons convicted of loitering or soliciting. The new disposal will involve referring the offender to a supervisor to help the offender to address the causes of their offending.
38. Clause 74 and Schedule 15 amend the Nuclear Material (Offences) Act 1983 (the 1983 Act) and the Customs and Excise Management Act 1979 in order to give effect to amendments made in 2005 to the Convention on the Physical Protection of Nuclear Material. The amendments made to the 1983 Act create a number of new criminal offences, including offences relating to damage to the environment and to the importation and exportation of nuclear material.
39. Clause 75 increases the penalty for an offence under section 55 of the Data Protection Act 1998, including the offence of unlawfully obtaining or disclosing personal data. In addition to the current fine, the offences are made punishable by imprisonment up to a maximum of 2 years following conviction on indictment.
Part 7: International co-operation in relation to criminal justice matters
40. Clauses 76 to 81 and Schedule 16 give effect to the European Council Framework Decision on the mutual recognition of financial penalties. Clause 77 provides for the submission by the Lord Chancellor to another member State of a certificate requesting enforcement of a financial penalty incurred by an offender in England and Wales who is normally resident in that other member State. Clause 78 provides for the receipt, by the Lord Chancellor, from another member State of like certificates requesting the enforcement of a financial penalty incurred by an offender in that other State who is normally resident in England and Wales and for the transmission of such a certificate to a designated officer in the relevant local justice area. Clauses 79-80 and Schedule 16 set out the procedure for a magistrates' court to validate such incoming requests and the grounds for refusal of such requests.
41. Clause 82 amends the Crime (International Co-operation) Act 2003 so that the Treasury may provide for functions conferred on the Secretary of State in relation to requests mutual legal assistance from overseas authorities may be exercisable instead by HMRC in relation to direct tax matters.
Part 8: Violent offender orders
42. Part 8 of the Bill (clauses 83 to 102) makes provision for a new civil preventative order - the violent offender order (VOO). It sets out the qualifying offences which may trigger an application for a VOO; the procedure in respect of applications for and the making, variation, renewal or discharge of a VOO; makes provision for interim orders and appeals; provides for breach of an order or interim order to be a criminal offence; sets out requirements on persons subject to a VOO to notify the police of certain personal information and of changes to such information; provides for a failure to comply with the notification requirements to be a criminal offence; and provides for the police and others to provide information to the Secretary of State for the purposes of verifying the information supplied in pursuance of the notification requirements.
Part 9: Anti-social behaviour
43. Clause 103 and Schedule 17 introduce powers for the courts to close, on a temporary basis, premises associated with significant and persistent disorder or persistent serious nuisance to members of the public. They set out the procedure for the issue of closure notices by the police and local authorities and for the making of applications for closure orders; and make provision for the enforcement (including by making breach of an order a criminal offence), extension and discharge of closure orders and for appeals against the grant or refusal of an order.
44. Clauses 104 to 107 and Schedule 18 create a new offence of causing nuisance or disturbance on NHS premises (and HSS premises in Northern Ireland) and confer powers on a constable or an authorised member of NHS staff to remove a person reasonably suspected of committing the offence from the premises concerned. Provision is made for the Secretary of State to issue guidance on the exercise, by NHS staff, of the removal powers.
45. Clause 108 provides for the annual review of Anti-Social Behaviour Orders, including orders made under section 1B or 1C of the Crime and Disorder Act 1998 (ASBOs) made against a child or young person under the age of 17. Clause 109 equires a court to consider making an individual support order in all cases where an ASBO is made in respect of a child or young person.
46. Clause 110 extends the list of local authorities in England which may enter into a parenting contract or apply for a parenting order.
Part 10: Policing
47. Clauses 111 and 112 and Schedules 19 and 20 amend the procedures for dealing with matters in respect of the conduct and performance of police officers and special constables and in respect of the investigation of complaints and incidents of police misconduct.
48. Clause 113 amends section 57 of the Police Act 1996 to amplify the powers of the Secretary of State to provide financial assistance to organisations which promote the efficiency or effectiveness of the police.
49. Clause 114 extends the functions of Her Majesty's Inspectorate of Constabulary (HMIC) so that it may inspect the full range of police authority functions or any particular function.
Part 11: Special Immigration Status
50. Part 11 (clauses 115 to 122) makes provision for a new immigration status for designated foreign nationals who have committed terrorism or other serious criminal offences and who cannot currently be removed from the UK because of the operation of section 6 of the Human Rights Act 1998. Provision is made as to the effect of a designation on a person's immigration status, the conditions that may be imposed on a person so designated, appeals and support.
Part 12: General
51. Part 12 (clauses 123 to129 and Schedules 21-23) deals with the making of orders and regulations under the Bill, contains consequential amendments and repeals of existing legislation, and provides for the commencement and extent of the Bill.
BACKGROUND
Part 1 - Youth Rehabilitation Orders
52. In September 2003, the Government published "Youth Justice - the next steps" (available at http://www.homeoffice.gov.uk/documents/cons-youth-justice-next-steps/) a companion document to the Green Paper "Every Child Matters". This paper set out possible reforms to the Youth Justice System. A summary of the responses to this consultation together with the Government's response was published
in March 2004 (available at http://www.homeoffice.gov.uk/documents/cons-youth-jus-next-steps-summ/). Part 1 of the Bill gives effect to the proposals to create a YRO.
Part 2 - Sentencing
53. Clause 9 gives effect to the proposal to set out the purpose of juvenile sentencing which was set out in "Youth Justice - the next steps."
54. In May 2007 the Government published "Penal Policy - a background paper" (available at http://www.justice.gov.uk/penalpolicy.htm). The paper set out the Government's commitment to use prison and probation resources to best effect to protect the public, punish the offender and reduce re-offending. The paper set out two specific legislative measures to achieve this namely, new arrangements for the recall of non-dangerous offenders who breach the terms of their licence and limiting the use of Suspended Sentence Orders (SSOs) to more serious offences. Clauses 10, 16 and 17 give effect to these provisions.
Part 3 - Appeals
55. In September 2006 the Government published "Quashing convictions - report of a Review by the Home Secretary, Lord Chancellor and Attorney General" (available at http://www.cjsonline.gov.uk/downloads/application/pdf/quashing_convictions_consult.pdf) This paper addresses the Government's view that the Court of Appeal should not be able to overturn 'safe' convictions on the grounds of deficiencies in the trial or pre-trial process. The purpose of this consultation paper was to consider how best to achieve that outcome. The Government's response was published in October 2007 (available at. http://www.cjsonline.gov.uk/downloads/application/pdf/Quashing%20Convictions%20Consultation%20Response.pdf).
Part 4 - HM Commissioner for Offender Management and Prisons
56. The Prison and Probation Ombudsman (PPO) was established in 1994 on the recommendation of the Woolf inquiry into the riots at Strangeways and other prisons in 1990. In 2004 he was given responsibility for investigating deaths in prison custody, in order to help fulfil the State's obligation to provide swift and effective investigation of such deaths. There has been a commitment on the part of the Home Office since 1998 to put the PPO on a statutory footing. This was confirmed in the 2002 Criminal Justice White Paper Justice for All (CM 5563). A measure to put the PPO on a statutory footing was included in the January 2005 Management of Offenders and Sentencing Bill, but the Bill did not progress due to the calling of the General Election.
Part 5 - Other Criminal Justice Provisions
57. The Home Office issued a consultation on extending the ambit of the Rehabilitation of Offenders Act 1974 to cautions in 1999 (available at http://www.homeoffice.gov.uk/documents/cons-1999-rehab-offenders). Clause 54 amends the 1974 Act to this end.
Part 6 - Criminal Law
58. A joint Home Office/Scottish Executive consultation on extreme pornographic material was published in August 2005. A summary of the responses to this consultation together with the Government's response was published in August 2006 (http://www.homeoffice.gov.uk/documents/cons-extreme-porn-3008051/). Clauses 64-70 give effect to these proposals.
59. "Paying the Price" a public consultation paper on prostitution was published in July 2004 (available at
http://www.homeoffice.gov.uk/documents/paying_the_price.pdf). A Co-ordinated Prostitution Strategy and a summary of responses to Paying the Price was published in (available at http://www.homeoffice.gov.uk/documents/cons-paying-the-price/). The strategy included proposals to reform the offence of loitering or soliciting; clauses 71 to 73 give effect to these proposals.
60. The offences introduced by clause 74 and Schedule 15 are needed in order to facilitate UK ratification of amendments made in 2005 to the Convention on the Physical Protection of Nuclear Material (CPPNM). The original CPPNM was concluded under the auspices of the International Atomic Energy Agency in 1980. It entered into force in 1987, and there are currently 127 Parties. The UK is a Party, having signed the Convention in 1980 and ratified it in 1991.
61. The proposals (in clause 75) to amend the Data Protection Act 1998 to allow for custodial sanctions for those convicted of offences under section 55 of that Act were set out in a consultation paper in July 2006 "Increasing penalties for deliberate and wilful misuse of personal data". The Government's response was published in February 2007. Both documents are available at http://www.dca.gov.uk/consult/misuse_data/cp0906.htm.
Part 7 -International Co-operation in relation to Criminal Justice Matters
62. Clauses 76 to 81 implement the Council Framework Decision on the application of the principle of mutual recognition to financial penalties (2005/214/JHA), which was adopted in 2005. The Framework Decision allows a financial penalty imposed on an offender in one European Union Member State to be transferred to another Member State for enforcement. Responsibility for the enforcement of financial penalties received from another Member State will rest with the magistrates' court where the offender is located and its designated Fines Officer, in line with their responsibilities for enforcement of fines imposed domestically.
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