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Criminal Justice and Immigration Bill


Criminal Justice and Immigration Bill
Schedule 16 — Alternatives to prosecution for persons under 18

216

 

66G     

Code of practice on youth conditional cautions

(1)   

The Secretary of State must prepare a code of practice in relation to

youth conditional cautions.

(2)   

The code may, in particular, make provision as to—

(a)   

the circumstances in which youth conditional cautions may

5

be given,

(b)   

the procedure to be followed in connection with the giving of

such cautions,

(c)   

the conditions which may be attached to such cautions and

the time for which they may have effect,

10

(d)   

the category of constable or investigating officer by whom

such cautions may be given,

(e)   

the persons who may be authorised by a relevant prosecutor

for the purposes of section 66A,

(f)   

the form which such cautions are to take and the manner in

15

which they are to be given and recorded,

(g)   

the places where such cautions may be given,

(h)   

the provision which may be made by a relevant prosecutor

under section 66C(5)(b),

(i)   

the monitoring of compliance with conditions attached to

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such cautions,

(j)   

the exercise of the power of arrest conferred by section 24A(1)

of the Criminal Justice Act 2003 (c. 44) as it applies by virtue

of section 66E(4),

(k)   

who is to decide how a person should be dealt with under

25

section 24A(2) of that Act as it applies by virtue of section

66E(5).

(3)   

After preparing a draft of the code the Secretary of State—

(a)   

must publish the draft,

(b)   

must consider any representations made to him about the

30

draft, and

(c)   

may amend the draft accordingly,

   

but he may not publish or amend the draft without the consent of the

Attorney General.

(4)   

After the Secretary of State has proceeded under subsection (3) he

35

must lay the code before each House of Parliament.

(5)   

When he has done so he may bring the code into force by order.

(6)   

The Secretary of State may from time to time revise a code of practice

brought into force under this section.

(7)   

Subsections (3) to (6) are to apply (with appropriate modifications) to

40

a revised code as they apply to an original code.

Interpretation of Chapter 1

66H     

Interpretation

In this Chapter—

(a)   

“appropriate adult” has the meaning given by section 65(7);

45

 
 

Criminal Justice and Immigration Bill
Schedule 17 — Protection for spent cautions under the Rehabilitation of Offenders Act 1974

217

 

(b)   

“authorised person” has the meaning given by section

66A(7);

(c)   

“investigating officer” means an officer of Revenue and

Customs, appointed in accordance with section 2(1) of the

Commissioners for Revenue and Customs Act 2005, or a

5

person designated as an investigating officer under section 38

of the Police Reform Act 2002 (c. 30);

(d)   

“the offender” has the meaning given by section 66A(1);

(e)   

“relevant prosecutor” means—

(i)   

the Attorney General,

10

(ii)   

the Director of the Serious Fraud Office,

(iii)   

the Director of Revenue and Customs Prosecutions,

(iv)   

the Director of Public Prosecutions,

(v)   

a Secretary of State, or

(vi)   

a person who is specified in an order made by the

15

Secretary State as being a relevant prosecutor for the

purposes of this Chapter;

(f)   

“youth conditional caution” has the meaning given by section

66A(2).”

4     (1)  

Section 114 (orders and regulations) is amended as follows.

20

      (2)  

In subsection (2) (which specifies orders that are subject to annulment in

pursuance of a resolution of either House of Parliament), for “or 10(6)”

substitute “10(6), 66C(1), 66G(5) or 66H(e)(vi)”.

      (3)  

After subsection (2) insert—

“(2A)   

Subsection (2) also applies to a statutory instrument containing an

25

order under section 66C(4) unless the order makes provision of the

kind mentioned in subsection (3A) below.”

      (4)  

In subsection (3) (which specifies orders that may not be made unless a draft

has been approved by a resolution of each House of Parliament) after “41(6)”

insert “, 66A(6)”.

30

      (5)  

After subsection (3) insert—

“(3A)   

Subsection (3) also applies to an order under section 66C(4) which

makes provision increasing the figure in section 66C(3) by more than

is necessary to reflect changes in the value of money.”

   

35

Schedule 17

Section 82

 

Protection for spent cautions under the Rehabilitation of Offenders Act 1974

1          

The Rehabilitation of Offenders Act 1974 (c. 53) is amended as follows.

2          

In section 6(6) for “the Schedule” substitute “Schedule 1”.

 
 

Criminal Justice and Immigration Bill
Schedule 17 — Protection for spent cautions under the Rehabilitation of Offenders Act 1974

218

 

3          

After section 8 (defamation actions) there is inserted—

“8A     

Protection afforded to spent cautions

(1)   

Schedule 2 to this Act (protection for spent cautions) shall have

effect.

(2)   

In this Act “caution” means—

5

(a)   

a conditional caution, that is to say, a caution given under

section 22 of the Criminal Justice Act 2003 (c. 44) (conditional

cautions for adults) or under section 66A of the Crime and

Disorder Act 1998 (c. 37) (conditional cautions for persons

aged 16 or 17);

10

(b)   

any other caution given to a person in England and Wales in

respect of an offence which, at the time the caution is given,

that person has admitted;

(c)   

a reprimand or warning given under section 65 of the Crime

and Disorder Act 1998 (reprimands and warnings for persons

15

aged under 18);

(d)   

anything corresponding to a caution, reprimand or warning

falling within paragraphs (a) to (c) (however described)

which is given to a person in respect of an offence under the

law of a country outside England and Wales.”

20

4          

After section 9 (unauthorised disclosure of spent convictions) insert—

“9A     

Unauthorised disclosure of spent cautions

(1)   

In this section—

(a)   

“official record” means a record which—

(i)   

contains information about persons given a caution

25

for any offence or offences; and

(ii)   

is kept for the purposes of its functions by any court,

police force, Government department or other public

authority in England and Wales;

(b)   

“caution information” means information imputing that a

30

named or otherwise identifiable living person (“the named

person”) has committed, been charged with or prosecuted or

cautioned for any offence which is the subject of a spent

caution; and

(c)   

“relevant person” means any person who, in the course of his

35

official duties (anywhere in the United Kingdom), has or at

any time has had custody of or access to any official record or

the information contained in it.

(2)   

Subject to the terms of any order made under subsection (5), a

relevant person shall be guilty of an offence if, knowing or having

40

reasonable cause to suspect that any caution information he has

obtained in the course of his official duties is caution information, he

discloses it, otherwise than in the course of those duties, to another

person.

(3)   

In any proceedings for an offence under subsection (2) it shall be a

45

defence for the defendant to show that the disclosure was made—

(a)   

to the named person or to another person at the express

request of the named person;

 
 

Criminal Justice and Immigration Bill
Schedule 17 — Protection for spent cautions under the Rehabilitation of Offenders Act 1974

219

 

(b)   

to a person whom he reasonably believed to be the named

person or to another person at the express request of a person

whom he reasonably believed to be the named person.

(4)   

Any person who obtains any caution information from any official

record by means of any fraud, dishonesty or bribe shall be guilty of

5

an offence.

(5)   

The Secretary of State may by order make such provision as appears

to him to be appropriate for excepting the disclosure of caution

information derived from an official record from the provisions of

subsection (2) in such cases or classes of case as may be specified in

10

the order.

(6)   

A person guilty of an offence under subsection (2) is liable on

summary conviction to a fine not exceeding level 4 on the standard

scale.

(7)   

A person guilty of an offence under subsection (4) is liable on

15

summary conviction to a fine not exceeding level 5 on the standard

scale, or to imprisonment for a term not exceeding 51 weeks, or to

both.

(8)   

Proceedings for an offence under subsection (2) shall not be

instituted except by or on behalf of the Director of Public

20

Prosecutions.”

5          

The Schedule (service disciplinary proceedings) is re-numbered as Schedule

1.

6          

After that Schedule insert—

“Schedule 2

25

Protection for spent cautions

Preliminary

1     (1)  

For the purposes of this Schedule a caution shall be regarded as a

spent caution—

(a)   

in the case of a conditional caution (as defined in section

30

8A(2)(a)), at the end of the relevant period for the caution;

(b)   

in any other case, at the time the caution is given.

      (2)  

In sub-paragraph (1)(a) “the relevant period for the caution”

means (subject to sub-paragraph (3)) the period of three months

from the date on which the conditional caution was given.

35

      (3)  

If the person concerned is subsequently prosecuted and convicted

of the offence in respect of which a conditional caution was

given—

(a)   

the relevant period for the caution shall end at the same

time as the rehabilitation period for the offence; and

40

(b)   

if the conviction occurs after the end of the period

mentioned in sub-paragraph (1)(a), the caution shall be

treated for the purposes of this Schedule as not having

become spent in relation to any period before the end of

the rehabilitation period for the offence.

45

 
 

Criminal Justice and Immigration Bill
Schedule 17 — Protection for spent cautions under the Rehabilitation of Offenders Act 1974

220

 

2     (1)  

In this Schedule “ancillary circumstances”, in relation to a caution,

means any circumstances of the following—

(a)   

the offence which was the subject of the caution or the

conduct constituting that offence;

(b)   

any process preliminary to the caution (including

5

consideration by any person of how to deal with that

offence and the procedure for giving the caution);

(c)   

any proceedings for that offence which take place before

the caution is given (including anything which happens

after that time for the purpose of bringing the proceedings

10

to an end);

(d)   

any judicial review proceedings relating to the caution;

(e)   

in the case of a warning under section 65 of the Crime and

Disorder Act 1998 (c. 37), anything done in pursuance of or

undergone in compliance with a requirement to

15

participate in a rehabilitation programme under section

66(2) of that Act;

(f)   

in the case of a conditional caution, any conditions

attached to the caution or anything done in pursuance of or

undergone in compliance with those conditions.

20

      (2)  

Where the caution relates to two or more offences, references in

sub-paragraph (1) to the offence which was the subject of the

caution include a reference to each of the offences concerned.

      (3)  

In this Schedule “proceedings before a judicial authority” has the

same meaning as in section 4.

25

Protection relating to spent cautions and ancillary circumstances

3     (1)  

A person who is given a caution for an offence shall, from the time

the caution is spent, be treated for all purposes in law as a person

who has not committed, been charged with or prosecuted for, or

been given a caution for the offence; and notwithstanding the

30

provisions of any other enactment or rule of law to the contrary—

(a)   

no evidence shall be admissible in any proceedings before

a judicial authority exercising its jurisdiction or functions

in England and Wales to prove that any such person has

committed, been charged with or prosecuted for, or been

35

given a caution for the offence; and

(b)   

a person shall not, in any such proceedings, be asked and,

if asked, shall not be required to answer, any question

relating to his past which cannot be answered without

acknowledging or referring to a spent caution or any

40

ancillary circumstances.

      (2)  

Nothing in sub-paragraph (1) applies in relation to any

proceedings for the offence which are not part of the ancillary

circumstances relating to the caution.

      (3)  

Where a question seeking information with respect to a person’s

45

previous cautions, offences, conduct or circumstances is put to

him or to any other person otherwise than in proceedings before a

judicial authority—

 
 

Criminal Justice and Immigration Bill
Schedule 17 — Protection for spent cautions under the Rehabilitation of Offenders Act 1974

221

 

(a)   

the question shall be treated as not relating to spent

cautions or to any ancillary circumstances, and the answer

may be framed accordingly; and

(b)   

the person questioned shall not be subjected to any liability

or otherwise prejudiced in law by reason of any failure to

5

acknowledge or disclose a spent caution or any ancillary

circumstances in his answer to the question.

      (4)  

Any obligation imposed on any person by any rule of law or by the

provisions of any agreement or arrangement to disclose any

matters to any other person shall not extend to requiring him to

10

disclose a spent caution or any ancillary circumstances (whether

the caution is his own or another’s).

      (5)  

A caution which has become spent or any ancillary circumstances,

or any failure to disclose such a caution or any such circumstances,

shall not be a proper ground for dismissing or excluding a person

15

from any office, profession, occupation or employment, or for

prejudicing him in any way in any occupation or employment.

      (6)  

This paragraph has effect subject to paragraphs 4 to 6.

4          

The Secretary of State may by order—

(a)   

make provision for excluding or modifying the application

20

of either or both of paragraphs (a) or (b) of paragraph 3(2)

in relation to questions put in such circumstances as may

be specified in the order;

(b)   

provide for exceptions from the provisions of sub-

paragraphs (4) and (5) of paragraph 3, in such cases or

25

classes of case, and in relation to cautions of such a

description, as may be specified in the order.

5          

Nothing in paragraph 3 affects—

(a)   

the operation of the caution in question; or

(b)   

the operation of any enactment by virtue of which, in

30

consequence of any caution, a person is subject to any

disqualification, disability, prohibition or other restriction

or effect, the period of which extends beyond the

rehabilitation period applicable to the caution.

6     (1)  

Section 7(2), (3) and (4) apply for the purposes of this Schedule as

35

follows.

      (2)  

Subsection (2) (apart from paragraphs (b) and (d)) applies to the

determination of any issue, and the admission or requirement of

any evidence, relating to a person’s previous cautions or to

ancillary circumstances as it applies to matters relating to a

40

person’s previous convictions and circumstances ancillary

thereto.

      (3)  

Subsection (3) applies to evidence of a person’s previous cautions

and ancillary circumstances as it applies to evidence of a person’s

convictions and the circumstances ancillary thereto; and for this

45

purpose subsection (3) shall have effect as if—

(a)   

any reference to subsection (2) or (4) of section 7 were a

reference to that subsection as applied by this paragraph;

and

 
 

Criminal Justice and Immigration Bill
Schedule 18 — Allocation of cases triable either way etc.

222

 

(b)   

the words “or proceedings to which section 8 below

applies” were omitted.

      (4)  

Subsection (4) applies for the purpose of excluding the application

of paragraph 3(1); and for that purpose subsection (4) shall have

effect as if the words “(other than proceedings to which section 8

5

below applies)” were omitted.

      (5)  

References in the provisions applied by this paragraph to section

4(1) are to be read as references to paragraph 3(1).”

Schedule 18

Section 84

 

Allocation of cases triable either way etc.

10

1          

Schedule 3 to the Criminal Justice Act 2003 (c. 44) (allocation of cases triable

either way, and sending cases to the Crown Court etc.) has effect subject to

the following amendments.

2          

In paragraph 2, in the paragraph set out in sub-paragraph (2), after

“committed” insert “for sentence”.

15

3          

In paragraph 6, for subsection (2)(c) of the section set out in that paragraph

substitute—

“(c)   

that if he is tried summarily and is convicted by the

court, he may be committed for sentence to the Crown

Court under section 3 or (if applicable) section 3A of

20

the Powers of Criminal Courts (Sentencing) Act 2000

if the court is of such opinion as is mentioned in

subsection (2) of the applicable section.”

4          

In paragraph 8, in sub-paragraph (2)(a) for “trial on indictment” substitute

“summary trial”.

25

5     (1)  

Paragraph 9 is amended as follows.

      (2)  

In sub-paragraph (3) after “(1A)” insert “, (1B)”.

      (3)  

After sub-paragraph (3) insert—

    “(4)  

In subsection (3) for “the said Act of 2000” substitute “the Powers

of Criminal Courts (Sentencing) Act 2000”.”

30

6          

Paragraph 13 is omitted.

7          

Paragraph 22 is omitted.

8          

Before paragraph 23 insert—

“22A  (1)  

Section 3 (committal for sentence on summary trial of offence

triable either way) is amended as follows.

35

      (2)  

In subsection (2)—

(a)   

in paragraph (a) for the words from “greater punishment”

to the end of the paragraph substitute “the Crown Court

should, in the court’s opinion, have the power to deal with

 
 

 
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