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Purposes etc of sentencing: offenders aged under 18

767.     Clause 9 inserts section 142A into the 2003 Act 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).

768.     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.

769.     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 or her 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.

Early removal of prisoners from the United Kingdom

770.     Clauses 19 and 20 amend the existing early removal scheme (ERS) in two principal ways. The ERS in its current guise appears in substantially the same form in the Criminal Justice Acts of 1991 and 2003 (sections 46A and 46B and section 260 and 261 respectively). In both cases, the ERS provides the Secretary of State with a discretion so as to enable him to remove from prison a prisoner who is "liable to removal from the United Kingdom" (as defined identically in each Act). Eligibility for removal begins at a set point before the date on which he would otherwise be required to be released from custody. A prisoner removed under the ERS may only be removed for the purpose of removal from the UK. If he or she returns to the UK prior to the expiry of the sentence from which he or she has been removed, he or she is liable to imprisonment for a period equivalent to that which he or she did not serve by virtue of his or her early removal.

771.     The first amendment which the Bill proposes seeks to add a new category of prisoner who is eligible for the ERS i.e. those who are "eligible for removal" from the UK. Clauses 19 and 20 define these prisoners as those who have a settled intention of residing permanently abroad following removal. Consequently, the ERS so far as this category is concerned is capable of applying both to British and foreign nationals, in contrast with the current scheme which applies only to those who may be removed from the UK (i.e. foreign nationals who may be removed under immigration legislation).

772.     Taken as a whole, the Government does not consider that the first proposed amendment gives rise to any concern as to its compatibility with the ECHR. The proposal expands the ERS on the basis of an objectively discernable criterion which does not discriminate on the basis of nationality or any other category-focused basis. Consequently, although the construction of an early release scheme (a species of which the ERS might be said to be) may fall within the ambit of Article 5 for the purposes of Article 14 (see Clift v SSHD [2006] UKHL 54), there is no discriminatory treatment so as to engage Article 14. Even if there could be said to be such treatment the Government does not consider that any discrimination rests upon one of the subsets of "status" listed in Article 14.

773.     The second proposed substantive amendment seeks to remove from both Acts the list of those who are excluded from eligibility for the ERS. That list appears in section 46A(3) of the 1991 Act and section 260(3) of the 2003 Act. This might be said to engage Article 14, taken with Article 5. That is because, from a certain angle, the ERS is the mirror of the home detention curfew scheme (HDC) which is a discretionary release power primarily applied to domestic national prisoners and any foreign national prisoners who are not liable to removal from the UK (usually EEA nationals). HDC enables the early release into the community, rather than removal from the UK, of certain prisoners at a time prior to their mandatory release date. Other than the important difference between release (for HDC) and removal (for the ERS), the two schemes are broadly equivalent in terms of eligibility periods and, until now, those who are eligible for them and those who are statutorily ineligible.

774.     There is no current proposal to remove the exclusions in respect of the HDC. Accordingly, removing the statutory exclusions for ERS will create a disparity in the two schemes as to who is eligible. That raises a potential argument that the disparity in treatment between the two schemes is contrary to Article 14, taken with Article 5.

775.     The Government rejects such an argument. First, it is far from clear that there is any discriminatory treatment at all, for reasons very close to those already set out in paragraph 772, given that the amendment applies to the new form of ERS, which also applies to certain British nationals. However, the Government recognises that there may remain a counter argument from domestic nationals to the effect that the ERS will still apply for the most part to foreign nationals and is therefore discriminatory in their favour.

776.     If the above argument is sufficient to engage Article 14, the Government would argue that any discrimination which might be said to engage Article 14 is justified in the pursuit of a legitimate aim and is a proportionate means of pursing that aim, with the effect that the proposal is compatible with that Article.

777.     The Government takes the view that the proposed measure would be justified in pursuit of a legitimate aim in light of the difficult choices which the Secretary of State faces as how best to use limited prison and probation resources in the management, supervision and rehabilitation of offenders. The alleged discriminatory treatment in deleting the ERS exclusions ensures that the Secretary of State will enjoy an increased ability to remove from prison those who, in general, will not pose a continuing risk to the public in the UK. Such individuals will pose no such risk because, on release, they will no longer be resident in the UK. Increased removal of such prisoners will make more widely available resources for ensuring the effective management and supervision in prison and the community of those who cannot be so removed and who pose a direct risk to the protection of the public in the UK. It is perfectly proper that the Secretary of State be able to focus limited resources for use in the supervision and rehabilitation of those who pose a direct risk to the public in the UK.

778.     Turning to proportionality the Government would stress that the effect of this amendment is not to guarantee the removal of those now eligible for the ERS but who were ineligible under the existing exclusions. Rather, this proposal simply expands ERS eligibility. An absolute discretion to remove (or not to remove) remains and the existence of such a discretion means that where concerns raised in respect of a prisoner who would previously have been excluded from the ERS, those concerns can fully be taken into account and may, in appropriate case, inform a decision to refuse removal under the ERS. On that basis, the Government takes the firm view that the impact of any difference in treatment that might be said to engage Article 14 is not so significant that it can be said to be disproportionate measure for the purposes of Article 14.

Fixed Term Recalls

779.     Clause 17 seeks to replace the existing recall and re-release procedure, which applies in respect of determinate sentence prisoners, with a more nuanced approach. The new approach is designed to take account of the degrees of seriousness of risk of re-offending and to public protection that may be presented by recalls of certain types of offenders and by the behaviour underlying a particular recall.

780.     At present, a determinate sentence prisoner serving a sentence of 12 months or more will be released on licence into the community for a specified portion of her/his sentence. Conditions are imposed upon the licence the effect of which is to require the offender to do or refrain from doing certain things. If he breaches those conditions he may be recalled, meaning that the licence is revoked and he or she may be returned to prison. Upon return to prison the Parole Board will consider whether he or she should be re-released and will make a ruling in respect of that. The relevant re-release and recall provisions governing the operation of recall and re-release are contained in sections 254 and 256 of the 2003 Act. At present, the same provisions apply to all determinate sentence prisoners and there is no fixed period beyond which a recalled prisoner cannot be detained, although the Criminal Justice Act 1991 does require a recalled prisoner to be mandatorily re-released at the three-quarter point of sentence if the Parole Board has not already directed that he or she be released before that point.

781.     By contrast, the new recall and re-release scheme will consist of two procedural strata. The first procedure will require a recalled prisoner to be re-released a maximum of 28 days after the date on which he or she was returned to prison following the recall and licence revocation. Her or his case will not be referred to the Parole Board but if the prisoner wishes to challenge the decision to recall her or him, she or he will have an absolute right to request that the Secretary of State refer the case to the Parole Board at any time. The Secretary of State will have to comply with that request. The second procedure will not involve an obligation to re-release a prisoner after 28 days have lapsed. Instead, during the first 28 days the Secretary of State will have a power to re-release a prisoner if he is satisfied that an acceptable release plan is in place that will satisfy any public protection concerns. If no such re-release takes place after 28 days, the Secretary of State will be obliged to refer the case to the Parole Board for its consideration.

782.     The two procedures will apply to different types of recalled prisoner. The first procedure will apply to any determinate sentence prisoner not convicted of an offence listed in Schedule 15 to the 2003 Act. Those offences are generally of a sexual or violent nature. The second procedure will automatically apply to any offender convicted of a Schedule 15 offence and may apply, at the Secretary of State's discretion, to any other prisoner. So it is possible in respect of a non-Schedule 15 offender that she or he may be subject to either of the strata depending on the circumstances of the recall.

783.     The Government considers that the proposals enshrined in clause 16 may raises two potential ECHR issues. First, it is clear that the recall of a determinate sentence prisoner to custody following release on a standard licence (rather than under some other early release scheme such as HDC) engages Article 5(4) (see Smith and West v Parole Board [2005] UKHL 1). Thus, following recall, a prisoner must be able to take proceedings before a court-like body (which requirement the Parole Board satisfies) to determine whether it remains lawful to detain him or her. In accordance with Smith and West, the proceedings in question must allow for the possibility of an oral hearing. In the Government's view both of the new procedures are compatible with Article 5(4). Although there will be no routine referral of cases to the Parole Board under the first procedure, clause 16 ensures that there exists an ability to require the Secretary of State to refer a case to the Parole Board at all times. Once a reference is made the Parole Board will be able to decide whether an oral hearing is warranted, according to the criteria identified in Smith and West.

784.     The second issue arises from the question as to whether Article 6 is engaged. The current view about whether a decision to recall a prisoner amounts to the imposition of a criminal charge or the determination of a civil right is reflected in Smith and West in which there formed a consensus that such a decision does not engage Article 6. That consensus was reached because of the preventative nature of the recall decision, which seeks to protect the community into which an offender has been released from further harm rather than to punish him or her.

785.     However, it might be argued that the idea that, under the first procedure, recall is effected for a fixed term of 28 days without automatic reference to the Parole Board undermines the idea of recall as a purely preventative measure. The argument would then run that the 28 day period is more properly described as being punitive in nature and is imposed across the range of cases without any consideration of the circumstances of each case. According to this analysis, recall becomes effectively a re-sentencing exercise resulting in a fresh imposition of a period of imprisonment and for this reason should be characterised for ECHR purposes as the determination of a criminal charge so as to engage Article 6.

786.     The Government rejects that analysis. The fact that mandatory re-release will occur after 28 days does not alter the fundamental purpose of licence supervision and recall from licence, which is to protect the public from the risk of further harm where behaviour on licence suggests that such a risk has increased. Thus, recall remains genuinely preventative in nature. The fact that a fixed period of detention may result in a number of cases cannot change that fact. Any attempt to compare that period with a further custodial sentence so as to engage Article 6 is undercut by the fact that a prisoner may apply to the Parole Board for independent consideration of his or her case at any time following return to prison. A review of the case will assess a particular recall's preventative utility and not whether it has achieved some sort of punitive effect.

Youth Default Orders

787.     Clause 23 introduces youth default orders. At present where a magistrates' court would, but for section 89 of the 2000 Act, have power to commit to prison a person under the age of 18 for a default consisting in failure to pay a sum adjudged to be paid by a conviction, for instance a fine, the court may take enforcement proceedings against the parent or guardian under section 81 of the Magistrates' Courts Act 1981. A youth default order would enable the court to order the young offender to comply with an unpaid work requirement (if aged 16 or 17); an attendance centre requirement or a curfew requirement. The amount of time that a young person could be subject to any of these requirements would depend on the amount in default. The unpaid work requirement could be for 20 to 100 hours; an attendance centre requirement could be from between 8 and 24 hours and a curfew requirement for 20 to 120 days. These requirements may be electronically monitored. The provisions in Schedule 5 (breach, revocation or amendment of youth rehabilitation orders) apply to youth default orders with modifications.

788.     Neither the unpaid work requirement for 16 and 17 year olds, nor the requirement to attend an attendance centre is new. Section 300 of the 2003 Act extended the unpaid work requirement to 16 and 17 year olds, and section 60(1)(b) of the 2000 Act made attendance centre orders applicable to any age group up to 25 years old. The imposition of a curfew requirement to juvenile offenders to those under 16 is a new burden however. The Bill does not provide for a right of appeal from a youth default order.

789.     The Government does not consider that Article 6 or 13 require an available right of appeal from a default order or a youth rehabilitation order or from any subsequent order made on breach of a default order or youth default order. Magistrates would have to take into account an individual's Convention Rights before imposing such an order and judicial review would be available as a remedy where any error of law was identified.

790.     The Government considers that a youth default order with a curfew requirement imposed on a defaulter under 16 was a justifiable and proportionate interference with a child's family and private life in accordance with Article 8(2).

Disclosure of information for enforcing fines

791.     Clause 25 engages the rights of fined people to respect for private life (Article 8). The effective recovery of fines is necessary to prevent crime and disorder, and any interference with the fined person's rights will be limited to that which is necessary in pursuit of that aim. The information will only be sought in respect of those who have been fined by a court and can only be sought and used for the specific purpose of enforcing the fine.

Part 3: Appeals

Appeals against convictions

792.     Clause 26 amends the test in section 2 of the Criminal Appeal Act 1968 so that a conviction is not to be regarded as "unsafe" (and therefore quashed on appeal) if the Court of Appeal is satisfied that the appellant is guilty of the offence of which he or she was convicted. The clause provides an exception where dismissing the appeal would be incompatible with the appellant's Convention rights.

793.     The purpose of the amendment is to give effect to the government's policy set out in the Consultation Paper on Quashing Convictions published by the Home Secretary, the Lord Chancellor and the Attorney General in September 2006. The intention is that where the Court of Appeal is itself satisfied that the appellant committed the offence of which he or she has been convicted, the conviction should not be quashed as unsafe because of an irregularity before or during the trial process.

794.     Article 6 entitles every defendant to a criminal charge to a fair trial. It is clear that Article 6 does not require that a trial be by jury. The division in English law between the functions of judge and jury is not mandated by the Convention and there is no Convention reason why the Court of Appeal cannot, if it feels able to on the evidence before it, make a judgement on guilt as part of looking at the question of safety of the conviction.

795.     It is accepted by the ECtHR that unfairnesses in the trial process can be cured by the Court of Appeal in appropriate circumstances - Edwards v UK [1993] EHRR 417. The Court of Appeal already has discretion to consider new evidence in considering appeals. It is not proposed significantly to alter or extend those powers or to require the Court of Appeal to form a view as to guilt. If the court is satisfied in the light of all the evidence it considers it appropriate to take into account that the appellant is guilty of the offence, the amendment will prevent the conviction being quashed for other reasons e.g. a misdirection to the jury by the trial judge or improper behaviour by the prosecution.

796.     Where gross prosecutorial or police malpractice is evident, this may clearly have an effect on the fairness of proceedings and may go to guilt or innocence. But a trial featuring prosecutorial misconduct will not necessarily be in breach of the Convention if it results in the conviction of the guilty. If there is nonetheless sufficient evidence on which the Court of Appeal can be clear of the guilt of the accused, e.g. because of admissions, unequivocal guilty pleas, or new evidence, it may well be that the proceedings regarded as a whole can still be fair. If the Court is satisfied as to guilt but nevertheless feels that dismissing the appeal would breach the appellant's Convention rights, for example in a case of entrapment where the appellant would not have committed the offence at all but for prosecution misconduct, the clause preserves the Court's power to dismiss the appeal.

797.     The Government do not believe that acquittal of a guilty defendant is the appropriate remedy for mistakes or misconduct in the prosecution process. Rather they should lead to disciplinary or criminal sanctions against those who have behaved improperly. The clause therefore makes express provision for the Court of Appeal to refer cases of misconduct to the Attorney General.

Part 4: Her Majesty's Commissioner for Offender Management and Prisons

798.     Part 4 provides for the appointment of a Commissioner for Offender Management and Prisons with the function of investigating complaints and deaths at certain premises such as prisons and probation hostels.

799.     Until now the Prisons and Probation Ombudsman has operated without any statutory basis. There has therefore been a question about the extent to which his investigations into deaths in prison custody have been able to contribute, together with other inquiries such as a coroner's inquest, to the United Kingdom's compliance with the Article 2 obligation to conduct an effective investigation. In particular, there has been an issue as to whether the Ombudsman is sufficiently independent of the Secretary of State to comply with the requirement that the person carrying out the investigation should be independent of those who may be implicated in the death.

800.     Clause 29 puts the Ombudsman on a statutory footing (to be known as the "Commissioner for Offender Management and Prisons") which will ensure that the ECHR requirement of independence is satisfied. The Strasbourg case-law also imposes other requirements on investigations under Article 2 such as the need for the investigation to be prompt, effective and involve the family of the deceased. The Commissioner's investigations will comply with all these requirements. His or her investigations will usually take place immediately after the death has occurred and while the evidence is still fresh. The Commissioner will also have expertise in matters relating to prisons and so will be well placed to evaluate, draw conclusions and make recommendations. In addition, he or she will normally disclose his or her report to the family of the deceased.

801.     The Commissioner's report will be available to the Coroner in preparing for the inquest. Strasbourg case law makes it clear that the investigative obligation does not have to be discharged by a single procedure but can be discharged by different investigations when taken together. The inquest will remain the primary means of satisfying the Article 2 investigative obligation in the prisons deaths context, especially since an inquest, in addition to satisfying the other requirements mentioned above, always takes place in public and enables the family of the deceased to participate fully by questioning witnesses. But the new statutory Commissioner will considerably enhance the extent to which compliance with Article 2 is achieved.

802.     Amongst the powers given to the Commissioner, clause 44 contains a prohibition on the disclosure of protected information (as defined in clause 44(1)) except in specified circumstances (given in clause 44(3)). If one of these sets of circumstances is present the clause provides only a power, rather than a duty, to disclose information and it will be a matter for the Commissioner to consider whether an individual exercise of the power is compatible with his or her obligations under Article 8. This being the case it is considered that this clause is compatible with that Article.

Part 5: Other criminal justice provisions

Alternatives to prosecutions for offenders under 18 - youth conditional cautions

803.     Clause 53 and Schedule 11 make provision for the giving of youth conditional cautions to offenders aged 16 and 17. The youth conditional caution is modelled upon the conditional cautions for adults in the 2003 Act with appropriate changes for young offenders. It will only be available where the offender has not previously been convicted of an offence and five requirements are satisfied.

804.     The conditions imposed must have the object of facilitating the rehabilitation of the offender; and/ or ensuring the offender makes reparation for the offence; and/or punishing the offender. The conditions may include that the offender attend a specified place at specified times which cannot be for more than 20 hours in total. The conditions could alternatively or also include a financial penalty but only if the youth conditional caution is in respect of an offence prescribed or of a description prescribed by the Secretary of State - which must prescribe the maximum penalty which cannot be more than £100 (though this figure can be changed by Order). The Secretary of State must prepare a Code of Practice in relation to youth conditional cautions. Provision is made for breach of the conditions (which could result in the young offender being prosecuted for the original offence) and a constable will have a power of arrest where he or she has reasonable grounds for believing that a young person has failed, without reasonable excuse, to comply with any of the conditions attached to a youth conditional caution.

805.     The Convention issues in relation to a youth conditional cautions are similar to those relating to conditional cautions for adults. As far as the unpaid work condition is concerned it may engage Article 4. The decision to accept a youth conditional caution involving activities might be considered to be work. However, the young offender must agree in writing to the terms of the youth conditional caution after its consequences have been explained to them and they are entitled to legal advice in reaching that decision. Such activities will be undertaken voluntarily. If the offender does not wish to accept a youth conditional caution they can choose to face prosecution in the normal way. There is no additional sanction for breach - failure to comply with a condition does not lead to the imposition of any additional penalty; rather the consequence is simply potential prosecution for the original offence. In the Government's view, compliance with a youth conditional caution is therefore not subject to the menace of a penalty as required by Van der Mussele.

806.     The youth conditional caution should benefit society by diverting certain low level young offenders out of the criminal justice system, but it also gives clear and immediate benefits to the offender who by accepting a youth conditional caution will have liability for their offending discharged swiftly and will not face prosecution for their offence or risk a criminal conviction. Accordingly, even if it could be said that carrying out work under a youth conditional caution is carried out subject to the menace of a penalty, the Government considers that the obligations involved are not excessive or disproportionate in light of the benefits to both society as a whole and to the offender.

807.     Turning to the power of arrest for failure to comply, the provisions include a power to detain the offender whilst a decision is made on how to deal with the young offender. Such detention will be justified under Article 5(1)(c) of the Convention. The fact that the person was given a youth conditional caution in respect of the offence indicates that it is unlikely he or she will receive a custodial sentence if prosecuted. Nevertheless, the youth conditional caution scheme as a whole is not limited to offences with non custodial penalties and the person's circumstances may have altered since he was given the youth conditional caution. In addition, there may be practical reasons why a short period of detention is necessary to ensure the defendant is present at the police station whilst the police ascertain if the defendant has in fact breached his or her youth conditional caution and for a decision on charging to be taken, though this period of detention will normally be quite limited. Guidance on this will be given in the Code of Practice on youth conditional cautions that the Secretary of State will issue.

808.     More generally a youth conditional caution will engage Article 6. However, in agreeing to a youth conditional caution the offender is choosing to waive his Article 6 rights to a trial by a court. The European Court of Human Rights held in the case of Deweer v Belgium [1980] 2 EHRR 439 that such a waiver in the context of adults "has undeniable advantages for the individual concerned as well as for the administration of justice, [and] does not in principle offend against the Convention". However, it has also held that any such waiver "must not run counter to any important public interest, must be established in an unequivocal manner and requires minimum guarantees commensurate to the waiver's importance" (Thompson v UK, Judgement of 15th June 2004 (Application no. 36256/97)). The youth conditional caution scheme ensures this by providing that a conditional caution may only be issued if the five criteria are met and by providing for a Code of Practice to be issued. This will be similar to the revised Code of Practice for conditional cautions for adults and will provide, among other things that:

  • offenders will be advised of their right to seek legal advice to ensure they give informed consent to accepting both the caution and the conditions;

  • a youth conditional caution will only be given where the prosecutor considers that it is appropriate to do so;

  • the admission by the offender that he or she committed the offence may be made at any time prior to the giving of the youth conditional caution by the authorised person, so long as the offender admits to the authorised person that they committed the offence. To avoid any suggestion that an admission has been obtained by offering an inducement, the decision on whether a youth conditional caution should be given can only be made by a relevant prosecutor;

  • the prosecutor may not authorise the offer of a youth conditional caution in order to secure an admission that could then provide sufficient evidence for a realistic prospect of conviction;

  • conditions, which are decided on by the prosecutor, will have to be proportionate to the offence, clearly defined and appropriate.

809.     The CPS will publish guidance to prosecutors on the approach to be taken in deciding whether to officer a youth conditional caution for an offence. The DPP will issue guidance under section 37A of the Police and Criminal Evidence Act 1984. The requirements set out in statute, together with the Code of Practice and guidance to be issued, in the Government's view means that the youth conditional caution provisions will meet the requirements of the Convention.

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Prepared: 8 November 2007