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Clause 51: Power to modify certain provisions of Part 4

300.     This clause enables the Secretary of State by order (subject to the affirmative resolution procedure) to add, amend or repeal certain matters included in the Commissioner's complaints remit (Schedule 7), certain descriptions of deaths included in the Commissioner's deaths remit (Schedule 8), and descriptions of events covered by the Commissioner's function to conduct investigations at the request of the Secretary of State (clause 37 (3)). Provision is also made to enable the Secretary of State by order (subject to the negative resolution procedure) to make certain modifications to clause 44 ('Disclosure of information etc.').

Clause 52: Power to confer new functions on the Commissioner

301.     This clause enables the Secretary of State by order (subject to the affirmative resolution procedure) to confer additional functions on the Commissioner.

Part 5: Other Criminal Justice Provisions

Clause 53: Alternatives to prosecution for offenders under 18

302.     Clause 53 gives effect to Schedule 11 which makes provision for Youth Conditional Cautions. Similar provision for adult conditional cautions is made in Part 3 of the 2003 Act, as amended by sections 17 and 18 of the Police and Justice Act 2006. The Schedule also amends section 65 of the 1998 Act which relates to reprimands and final warnings.

Schedule 11: Alternatives to prosecution for offenders under 18

303.     Paragraph 2 amends section 65 of the 1998 Act. That section provides for the giving of reprimands and final warnings to children and young offenders. Paragraph 2(2) amends section 65(1) of the 1998 Act which sets out the conditions that must be satisfied before a reprimand or warning may be given. Paragraph 2(2)(a) amends section 65(1)(b) - which requires a constable to be satisfied that, on the evidence, there would be a realistic prospect of the offender being convicted - so as to bring it into line with the equivalent test for adult conditional cautions (which is replicated for youth conditional cautions), namely that there is sufficient evidence to charge the offender with the offence. No practical difference is intended between the existing and revised test. Paragraph 2(2)(b) amends the test in section 65(1)(d) so that no young person may be given a reprimand or warning where he or she has previously been given a youth conditional caution. Paragraph 2(3) amends section 65(3) so as to require a constable, when considering whether to warn a young person (who has previously received a warning), to be satisfied that the offence is not so serious as to require either (as now) the person to be charged or a youth conditional caution to be given. Paragraph 2(4) amends section 65(6), which places a duty on the Secretary of State to issue guidance in respect of reprimands and warnings. As a result of the amendment, such guidance will need to set out the criteria for determining whether an offence is not so serious as to require the offender to be charged (as now), or given a youth conditional caution.

304.     Section 65(8) of the 1998 Act prohibits the giving of any caution to a child or young person other than a reprimand or warning. Paragraph 2(6) amends this provision so as to exclude youth conditional cautions from the prohibition (children and young persons will, as now, be ineligible to receive a 'simple' police caution).

305.     Paragraph 3 inserts new sections 66A to 66H into the 1998 Act.

New section 66A of the 1998 Act: Youth conditional cautions for offenders aged 16 and 17

306.     New section 66A of the 1998 Act defines a youth conditional caution and provides that it may be given to a young person aged 16 or 17 if the offender has not previously been convicted of an offence and five other requirements, listed in new section 66B, are met. The conditions which may be imposed are restricted to those aimed at the rehabilitation of the offender, ensuring that the offender makes reparation for the offence or punishing the offender.

307.     New section 66A(4) provides that the conditions that may be included in a youth conditional caution may include the imposition of a financial penalty and/or a requirement for attendance at a specified place at a specified time (which might include completion of a specified activity). The provision for a financial condition is subject to new section 66C. New section 66A(5) provides that where a condition involves an attendance requirement, the maximum number of hours is restricted to no more than 20 hours in total. This 20 hour limit does not apply to an attendance requirement imposed for the purpose of facilitating the offender's rehabilitation. This is to permit rehabilitative conditions involving, for example, drug or alcohol treatment programmes that may take longer than 20 hours in total. By virtue of new section 66A(6) this figure of 20 hours may be amended by order (subject to the affirmative resolution procedure). A youth conditional caution may be given by an authorised person as defined in new section 66A(7).

New section 66B of the 1998 Act: The five requirements

308.     New section 66B of the 1998 Act sets out the requirements which need to be met for a youth conditional caution to be given. The requirements are that there is evidence against the offender; that a 'relevant prosecutor' (as defined in new section 66H) considers that the evidence would be sufficient to charge him or her and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of what the caution (and failure to comply with it) would mean; and that he or she signs a document containing details of the offence, the admission, the offender's consent to the caution, and the conditions imposed. Where the offender is aged 16 the explanation about the effect of a youth conditional cautions must be made in the presence of an appropriate adult.

New section 66C of the 1998 Act: Financial penalties

309.     This new section makes provision in relation to a condition that the offender pay a financial penalty, called a "financial penalty condition". New section 66C(1) specifies that a financial penalty condition may not be attached to a youth conditional caution given in respect of an offence unless the offence in question is one prescribed, or of a description prescribed, in an order made by the Secretary of State (subject to the negative resolution procedure). New section 66C(2) requires that an order under new section 66C(1) must also specify the maximum amount of the financial penalty that may be specified for each offence or description of offence.

310.     New section 66C(3) provides that the maximum financial penalty prescribed for an offence must not exceed £100. New section 66C(4) provides that this limit may be amended by order (subject to the affirmative resolution procedure save where the £100 limit is being updated only to account for inflation in which case the negative procedure applies).

311.     The financial penalty condition is intended to be a requirement to pay money that is imposed for the purposes of punishing an offender. It does not preclude an offender also being required to pay compensation to victims for the purpose of making reparation for the offence, or to pay a sum of money to a charity by way of indirect reparation to the community.

New section 66D of the 1998 Act: Variation of conditions

312.     New section 66D makes express provision for the conditions attached to a youth conditional caution to be varied with the consent of the offender. Such variation may include the addition or omission of any condition.

New section 66E of the 1998 Act: Failure to comply with the conditions

313.     This clause also extends the possibility of removal under the early removal scheme to the 14 day period immediately prior to the halfway point of the sentence.

314.     Subsection (8) makes the early removal scheme available to prisoners serving a sentence of less than three months.

315.      Subsections (7) and (9) make consequential amendments arising from the inclusion of the new category of prisoners who are to be eligible for removal under the early removal scheme.

New section 66F of the 1998 Act: Restriction on sentencing powers where youth conditional caution given

316.     New section 66F provides that, save in exceptional circumstances, a court may not, when sentencing an offender who has been given a youth conditional caution in the period of two years preceding the commission of the offence for which he is being sentenced, sentence that person to a conditional discharge. Where the court is satisfied that exceptional circumstances are present, the sentencer must state in open court why he or she is so satisfied.

New section 66G of the 1998 Act: Code of practice

317.     This new section makes provision for the Secretary of State, with the consent of the Attorney General, to publish a Code of Practice setting out, amongst other things, the circumstances in which youth conditional cautions may be given, how they are to be given and who may give them, the conditions which may be imposed and for what period, and arrangements for monitoring compliance.

318.     The Secretary of State is required to publish the Code in draft and to consider any representations regarding it. The completed Code must then be laid before Parliament. The Code is then brought into force by an order subject to the negative resolution procedure.

New section 66H of the 1998 Act: Interpretation

319.     New section 66H defines various terms used in Chapter 1 of Part 4 of the 1998 Act, as amended.

320.     Paragraph 4 of Schedule 11 amends section 114 of the 1998 Act to specify the appropriate parliamentary procedure for each of the new order-making powers conferred by new sections 66A, 66C, 66G and 66H.

Clause 54 and Schedule 12: Protection for spent cautions under the Rehabilitation of Offenders Act 1974

321.     Clause 54 introduces Schedule 12 which amends the 1974 Act so as to provide protection of spent cautions.

322.     The 1974 Act supports the rehabilitation into society of reformed offenders. Under the Act, following a certain period of time (which varies according to the severity of the sentence passed), all convictions (except those resulting in prison sentences of over 30 months) are regarded as "spent". As a result the offender is regarded as rehabilitated. For most purposes the Act treats a rehabilitated person as if he or she had never committed an offence and, as such, they are not obliged to declare them, for example, when applying for a job. There are certain exceptions, including where an ex-offender is applying for certain positions or jobs, such as those involving work with vulnerable adults or children.

323.     The 1974 Act currently applies only to convictions. Schedule 12 amends the 1974 Act so as to apply its provisions, with appropriate modifications, to adult and youth conditional cautions, other cautions (for example, 'simple' cautions issued by the police), reprimands and warnings given to children and young people, and cautions given in a jurisdiction outside England and Wales (see the definition of a caution in new section 8A(2) of the 1974 Act inserted by paragraph 3 of Schedule 12).

324.     Paragraph 4 of Schedule 12 inserts new section 9A into the 1974 Act; this makes provision in respect of the unauthorised disclosure of spent cautions (mirroring the provisions in section 9 of the 1974 Act relating to the unauthorised disclosure of spent convictions). New section 9A makes it an offence for a relevant person (that is, someone who in the course of his official duties has access to caution information) to disclose caution information otherwise than in the cause of his or her duties or for any person to obtain caution information through fraud, dishonesty or bribery. New section 9A(5) enables the Secretary of State, by order (subject to the affirmative resolution procedure), to except specified classes of disclosure from the ambit of the offence. A similar order-making power is contained in section 9(5) of the 1974 Act, although the power has not been exercised.

325.     Paragraph 6 of Schedule 12 inserts a new Schedule 2 into the 1974 Act. Paragraph 1 of new Schedule 2 sets out the rehabilitation period for spent cautions. In the case of 'simple' police cautions, reprimands and warnings, and cautions given in a jurisdiction outside England and Wales, the caution becomes spent at the time it is given. In the case of adult and youth conditional cautions the caution becomes spent after three months. This rehabilitation period for a conditional caution is extended where the offender is subsequently prosecuted and convicted for the offence in respect of which the conditional caution was given. In such cases the rehabilitation period for the caution is extended so that it is the same as the rehabilitation period for the offence.

326.     Paragraph 3 of new Schedule 2 sets out the protection afforded to persons relating to their spent cautions and the ancillary circumstances in relation to such cautions (this term is defined in paragraph 2 of new Schedule 2 and includes the offence in respect of which the caution was given and any proceedings in relation to that offence). As a result of the protections afforded, no one may ask a question in civil proceedings that might lead to the disclosure of a spent caution and any person with a spent caution applying for a job can truthfully answer "no" if asked if he or she has ever been cautioned. Failure to disclose a spent caution may not be taken as grounds for dismissing a person from employment. Under new paragraph 4 of Schedule 2 the Secretary of State may, by order (subject to the affirmative resolution procedure), specify exceptions to the protections afforded under paragraph 3. It is expected that such exceptions will be similar to those specified in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023), as amended, which, amongst other things, sets out kinds of employment, such as working with children and vulnerable adults, where spent cautions must still be disclosed.

327.     Paragraph 5 of new Schedule 2 ensures that the protections afforded by paragraph 3 do not affect the operation of the caution itself (for example, if the conditions attached to a conditional cautions apply for a period longer than 3 months) or the operation of any enactment, for example section 65 of the Crime and Disorder Act 1998 which prevents the police from giving a child or young person more than 2 warnings and/or reprimands.

328.     Paragraph 6 of new Schedule 2 applies, with modifications, section 7 of the 1974 Act which places limitations on the effect of rehabilitation under the Act.

Clause 55: Criminal conviction certificates and criminal record certificates

329.     Clause 55 makes amendments to Part 5 of the Police Act 1997 (the 1997 Act) consequential upon bringing cautions within the ambit of the 1974 Act. Part 5 of the 1997 Act provides the statutory framework for the disclosure of criminal records (under the aegis (in England and Wales) of the Criminal Records Bureau (CRB)) for employment and other purposes. Subsection (2) amends section 112 of the 1997 Act so that details of any unspent conditional caution would appear on a criminal conviction certificate (known as a CRB 'Basic Disclosure'). Subsection (3) amends section 113A(6) of the 1997 Act so that details of spent cautions are included on criminal record certificates (CRB 'Standard Disclosures') and enhanced criminal record certificates (CRB 'Enhanced Disclosures').

Clause 56: Allocation of offences triable either way etc.

330.     Clause 56 introduces Schedule 13, which amends Schedule 3 to the 2003 Act.

331.     Schedule 3 to the 2003 Act amends a number of Acts so as to provide a new scheme for determining the appropriate venue for either way cases together with a common mechanism, based on section 51 of the 1998 Act, for moving appropriate cases from the magistrates' court to the Crown Court.

332.     The amendments made by Schedule 3 achieve this through, firstly, a revised procedure (called allocation) for deciding whether a case that is triable either way should be heard in the magistrates' court or in the Crown Court; secondly, abolition of committal and transfer proceedings and the substitution of a sending procedure like that already used to get indictable-only cases to the Crown Court; and, thirdly, abolition of the general power, contained in section 3 of the 2000 Act, to commit for sentence, except on a guilty plea 'before venue' or where an indefinite or extended sentence is required. Under the scheme, the general power of committal for sentence is abolished for cases that magistrates decide to hear.

333.     Most of the provisions of Schedule 3 to the 2003 Act is not yet in force.

334.     The principal amendment in Schedule 13, which is made by paragraph 7, is to preserve the general power of a magistrates' court to commit to the Crown Court for sentence an offender whom it has convicted after a summary trial, if it considers that a Crown Court sentence should be available. Paragraph 22 of Schedule 3 to the 2003 Act provided for this general power under section 3 of the 2000 Act to be replaced with a more limited power. As set out above, this limited the power to commit for sentence to cases where a defendant enters a guilty plea 'before venue' (that is, before the court has made an allocation decision) to a serious either way offence which is beyond the magistrates' powers of punishment. Paragraph 22 has not been brought into force and paragraph 7 of Schedule 13 to the Bill removes it from Schedule 3 (so that the general power in section 3 of the 2000 Act will be preserved).

335.     Although the general power to commit for sentence is preserved, paragraph 8 of Schedule 13 amends Schedule 3 to the 2003 Act to make amendments of section 3 of the 2000 Act. The most important of these is the repeal of subsection (2)(b). This subsection refers to the longer than commensurate sentence for violent and sexual offences in section 80 of the 2000 Act. As that section has now been repealed and the longer than commensurate sentence no longer exists (and has been replaced by the dangerousness provisions in Chapter 5 of the 2003 Act to which the new section 3A power refers) section 3(2) is redundant.

336.     Paragraph 3 modifies the warning about the possibility of committal for sentence that is to be given to a defendant offered summary trial under section 20(2) of the Magistrates' Courts Act 1980. Under that section, as substituted by paragraph 6 of Schedule 3 to the 2003 Act, the court must explain to the defendant that the case appears suitable for summary trial, that he can consent to be tried summarily or choose to be tried on indictment; and, in the case of a specified offence, if he consents to be tried summarily and is convicted, he may be committed to the Crown Court for sentence if he qualifies for a sentence of imprisonment for public protection or an extended sentence. The modified warning makes clear that the possibility of committal to the Crown Court for sentence also exists if the magistrates' court considers that a Crown Court sentence should be available (because the magistrates' sentencing powers are inadequate). The amendment made by paragraph 3 is in consequence of the restoration of the general power to commit for sentence (as discussed in the preceding paragraphs).

337.     The remaining paragraphs make minor amendments to Schedule 3 to the 2003 Act.

Clause 57: Trial or sentencing in absence of accused in magistrates' courts

338.     Clause 57 amends section 11 of the Magistrates' Courts Act 1980, which makes provision for the circumstances in which a magistrates' court may proceed in the absence of the defendant.

339.     Subsection (2) amends subsection (1) of section 11. The present subsection (1) provides that, where at the time and place appointed for trial or adjourned trial the prosecutor appears but the accused does not, the court has a discretion to proceed in the accused's absence. New subsection (1)(b) provides that in those circumstances, where the accused is 18 or over, the court must proceed with a trial in the absence of the accused unless it would be contrary to the interests of justice. Where the accused is under 18, the court's discretion to proceed in absence is unchanged (new subsection (1)(a)).

340.     Subsection (3) inserts a new subsection (2A). This provides that the court may not proceed if it considers that there is an acceptable reason for his absence. Subsection (4) inserts a new subsection (3A) which provides that, where a court does impose a custodial sentence inn the offender's absence, the person must be brought before the court before being taken to prison to start serving the sentence.

341.     Subsection (5) inserts two new subsections (5) and (6). New subsection (5) makes clear that the court is not required to enquire into the reason for an accused's absence before deciding whether to proceed in his absence, although it is intended that the court should take account of facts known to it (eg about the effect of severe weather on public transport) in deciding whether an acceptable reason for the accused's absence exists. New subsection (7) requires the court to state in open court its reasons for not proceeding in absence where the accused is 18 or over.

Clause 58: Extension of powers of non-legal staff

342.     This clause amends section 7A of the Prosecution of Offences Act 1985, which sets out the powers and rights of audience of a Crown Prosecutor which a member of staff of the CPS who is not a Crown Prosecutor may have if he or she is designated under that section by the Director of Public Prosecutions.

343.     The effect of the amendments made by subsections (2) and (4) is that members of staff designated under section 7A will, in addition to their existing powers, be able to: (a) conduct trials in magistrates' courts, (b) conduct proceedings in magistrates' courts in relation to certain offences previously excluded from their remit (for example, an offence triable only on indictment or one for which the accused has elected to be tried by jury, or the court has found that it should be so tried), (c) conduct applications or other proceedings relating to "preventative civil orders", and (d) conduct certain proceedings assigned to the Director of Public Prosecutions by the Attorney General under section 3(2)(g) of the Prosecution of Offences Act 1985 (these include proceedings on an application under section 2 of the Dogs Act 1871).

344.     Subsection (3) amends subsection (5) of Section 7A to make a consequential change to the definition of bail in criminal proceedings and to define preventative civil orders. These include restraining orders, parenting orders and other civil orders which follow criminal proceedings (such as ASBOs, drinking banning orders and football banning orders).

345.     Subsection (5) amends section 15 of the Prosecution of Offences Act 1985 to enable designated members of staff to undertake binding over proceedings in the magistrates' court.

Criminal Legal Aid

346.     Sections 12 to 18 of, and Schedule 3 to, the Access to Justice Act 1999 (the 1999 Act, as amended by the Criminal Defence Service Act 2006, deal with the Criminal Defence Service. Under section 12 of the Access to Justice Act, the Legal Services Commission (the LSC) is required to set up the Criminal Defence Service to secure that people involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require. Broadly speaking, advice and assistance is available for the investigation stage and representation for proceedings.

347.     Section 14 and Schedule 3 deal with representation in criminal proceedings. "Representation" is defined in section 26. It covers the preparation of a case and advocacy at any hearing. Paragraph 1(1) of Schedule 3 says that a right to representation for the purposes of any kind of criminal proceedings before a court may be granted to an individual such as is mentioned in relation to that kind of proceedings in section 12(2). The grant of a right to representation is subject to a test of the interests of justice (paragraph 5(1) of Schedule 3). Paragraph 5(2) sets out factors to be considered in deciding what the interests of justice consist of.

348.     Schedule 3 was amended by the Criminal Defence Service Act 2006 to add regulation-making powers to provide for the transfer of the responsibility for granting rights to representation from the courts to the LSC and the re-introduction of a test of financial eligibility (paragraphs 2A and 3B of Schedule 3). These powers were exercised, in relation to criminal proceedings in magistrates' courts, in the Criminal Defence Service (Representation Orders and Consequential Amendments) Regulations 2006 (S.I. 2006/2493) and the Criminal Defence Service (Financial Eligibility) Regulations 2006 (S.I. 2006/2492). Applications for representation orders are handled by Her Majesty's Court Service on behalf of the LSC.

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Prepared: 8 November 2007