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Criminal Justice and Immigration Bill


Criminal Justice and Immigration Bill
Part 2 — Sentencing

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10      

Abolition of suspended sentences for summary offences

In section 189 of the Criminal Justice Act 2003 (c. 44) (suspended sentences)

after subsection (1) insert—

“(1A)   

Subject to subsection (1B), the power conferred by subsection (1) is not

exercisable in relation to a sentence of imprisonment imposed for a

5

summary offence.

(1B)   

Where—

(a)   

the court proposes to pass two or more sentences of

imprisonment on the same occasion;

(b)   

the offences for which those sentences are to be passed include

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at least one summary offence and one indictable offence, and

(c)   

the court exercises the power conferred by subsection (1) in

relation to at least one sentence passed for an indictable offence,

   

the power conferred by subsection (1) may be exercised in relation to

the sentence passed for the summary offence or offences (or any of

15

them) being dealt with at that time.”

11      

Restriction on imposing community sentences

In section 148 of the Criminal Justice Act 2003 (restrictions on imposing

community sentences) after subsection (4) insert—

“(5)   

The fact that by virtue of any provision of this section—

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(a)   

a community sentence may be passed in relation to an offence;

or

(b)   

particular restrictions on liberty may be imposed by a

community order or youth rehabilitation order,

   

does not require a court to pass such a sentence or to impose those

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restrictions.”

Custodial sentences and release

12      

Indeterminate sentences: determination of tariffs

(1)   

Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

(determination of tariffs in cases where the sentence is not fixed by law) is

30

amended as follows.

(2)   

In subsection (3) (determination of the appropriate part of the sentence) at the

end insert—

   

“In Case A or Case B below, this subsection has effect subject to, and in

accordance with, subsection (3C) below.”

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(3)   

After subsection (3) insert—

“(3A)   

Case A is where the court is of the opinion that the seriousness of the

offence, or of the combination of the offence and one or more other

offences associated with it,—

(a)   

is exceptional (but not such that the court proposes to make an

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order under subsection (4) below), and

(b)   

would not be adequately reflected by the period which the court

would otherwise specify under subsection (2) above.

 
 

Criminal Justice and Immigration Bill
Part 2 — Sentencing

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(3B)   

Case B is where the court is of the opinion that the period which it

would otherwise specify under subsection (2) above would have little

or no effect on time spent in custody, taking into account all the

circumstances of the particular offender.

(3C)   

In Case A or Case B above, in deciding the effect which the comparison

5

required by subsection (3)(c) above is to have on reducing the period

which the court determines for the purposes of subsection (3)(a) (and

before giving effect to subsection (3)(b) above), the court may, instead

of reducing that period by one-half,—

(a)   

in Case A above, reduce it by such lesser amount (including nil)

10

as the court may consider appropriate according to the

seriousness of the offence, or

(b)   

in Case B above, reduce it by such lesser amount (but not by less

than one-third) as the court may consider appropriate in the

circumstances.”

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(4)   

In subsection (4A) (no order to be made under subsection (4) in the case of

certain sentences) after “No order under subsection (4) above may be made”

insert “, and Case A above does not apply,”.

13      

Consecutive terms of imprisonment

(1)   

Part 12 of the Criminal Justice Act 2003 (c. 44) (sentencing) is amended as

20

follows.

(2)   

In section 181 (consecutive terms of imprisonment complying with section 181)

after subsection (7) insert—

“(7A)   

For the purposes of subsection (7)(a) the aggregate length of the terms

of imprisonment is not to be regarded as being more than 65 weeks if

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the aggregate of all the custodial periods and the longest of the licence

periods in relation to those terms is not more than 65 weeks.”

(3)   

In section 264A (consecutive terms: intermittent custody)—

(a)   

in subsection (3), omit the words from “and none” to the end;

(b)   

in subsection (4)(b), for “the longest of the total” substitute “all the”; and

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(c)   

in subsection (5), for the definition of “total licence period” substitute—

““licence period” has the same meaning as in section

183(3);”.

(4)   

In section 265 (restriction on consecutive sentences for released prisoners)—

(a)   

in subsection (1), for “early under this Chapter” substitute “—

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(a)   

under this Chapter; or

(b)   

under Part 2 of the Criminal Justice Act 1991.”; and

(b)   

after that subsection insert—

“(1A)   

Subsection (1) applies to a court sentencing a person to—

(a)   

a term of imprisonment for an offence committed before

40

4 April 2005, or

(b)   

a term of imprisonment of less than 12 months for an

offence committed on or after that date,

   

as it applies to the imposition of any other term of

imprisonment.

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Criminal Justice and Immigration Bill
Part 2 — Sentencing

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(1B)   

Where an intermittent custody order applies to the other

sentence, the reference in subsection (1) to release under this

Chapter does not include release by virtue of section 183(1)(b)(i)

(periods of temporary release on licence before the custodial

days specified under section 183(1)(a) have been served).”

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(5)   

Any saving by virtue of which section 84 of the Powers of Criminal Courts

(Sentencing) Act 2000 (c. 6) (restrictions on consecutive sentences for released

prisoners) continues to apply in certain cases (despite the repeal of that section

by the Criminal Justice Act 2003) shall cease to have effect.

14      

Minimum conditions for early release under section 246(1) of the Criminal

10

Justice Act 2003

In section 246(2) of the Criminal Justice Act 2003 (c. 44) (minimum conditions

for early release of fixed-term prisoner other than intermittent custody

prisoner) for paragraph (b) substitute “and

(b)   

he has served—

15

(i)   

at least 4 weeks of that period, and

(ii)   

at least one-half of that period.”

15      

Application of section 35(1) of the Criminal Justice Act 1991 to prisoners liable

to removal from the UK

(1)   

The following provisions of Part 2 of the Criminal Justice Act 1991 (c. 53)

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(which apply to persons sentenced for offences committed before 4th April

2005) cease to have effect—

(a)   

section 46(1) (which makes the early release power under section 35(1)

exercisable in relation to long term prisoners liable to removal without

a Parole Board recommendation), and

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(b)   

in section 50(2), the words from “but nothing” to the end (which

exclude prisoners liable to removal from the cases in which prisoners

must be released if recommended for release by the Parole Board);

   

and, accordingly, the Parole Board (Transfer of Functions) Order 1998 (S.I.

1998/3218) applies to prisoners liable to removal as it applies to other

30

prisoners.

(2)   

In this section “prisoners liable to removal” means prisoners liable to removal

from the United Kingdom (within the meaning of section 46(3) of the Criminal

Justice Act 1991).

16      

Release of prisoners after recall

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(1)   

In section 254 of the Criminal Justice Act 2003 (recall of prisoners while on

licence)—

(a)   

subsections (3) to (5) cease to have effect;

(b)   

in subsection (7) for “subsections (2) to (6)” substitute “this section”.

(2)   

After section 255 of that Act (recall of prisoners released early under section

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Criminal Justice and Immigration Bill
Part 2 — Sentencing

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246) insert—

“255A   

 Further release after recall: introductory

(1)   

This section applies for the purpose of identifying which of sections

255B to 255D governs the further release of a person who has been

recalled under section 254 (“the prisoner”).

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(2)   

The prisoner is eligible to be considered for automatic release unless—

(a)   

he is an extended sentence prisoner or a specified offence

prisoner; or

(b)   

he has, during the same term of imprisonment, already been

released under section 255B(1)(b) or (2) or section 255C(2).

10

(3)   

If the prisoner is eligible to be considered for automatic release the

Secretary of State must, on recalling him, consider whether he is

suitable for automatic release.

(4)   

For this purpose “automatic release” means release at the end of the

period of 28 days beginning with the date on which the prisoner is

15

returned to prison.

(5)   

The person is suitable for automatic release only if the Secretary of State

is satisfied that he will not present a risk of serious harm to members of

the public if he is released at the end of that period.

(6)   

The prisoner must be dealt with—

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(a)   

in accordance with section 255B if he is suitable for automatic

release;

(b)   

in accordance with section 255C if he is eligible to be considered

for automatic release but was not considered to be suitable for

it;

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(c)   

in accordance with section 255C if he is a specified offence

prisoner;

(d)   

in accordance with section 255D if he is an extended sentence

prisoner.

(7)   

The prisoner is an “extended sentence prisoner” if he is serving an

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extended sentence imposed under section 227 or 228 of this Act, section

58 of the Crime and Disorder Act 1998 or section 85 of the Powers of

Criminal Courts (Sentencing) Act 2000.

(8)   

The prisoner is a “specified offence prisoner” if (not being an extended

sentence prisoner) he is serving a sentence imposed for a specified

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offence within the meaning of section 224.

(9)   

The Secretary of State may by order amend the number of days for the

time being specified in subsection (4).

(10)   

In subsection (2) “term of imprisonment” means—

(a)   

in relation to a prisoner who is, or is to be treated as, serving a

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single term of imprisonment, that term;

(b)   

in relation to a prisoner serving two or more sentences of

imprisonment (whether concurrently or consecutively), the

aggregrate of the periods that the prisoner is required—

(i)   

to serve in prison, or

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(ii)   

to be on licence.

 
 

Criminal Justice and Immigration Bill
Part 2 — Sentencing

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(11)   

In subsection (5) “serious harm” means death or serious personal

injury, whether physical or psychological.

255B    

Automatic release

(1)   

A prisoner who is suitable for automatic release must—

(a)   

on his return to prison, be informed that he will be released

5

under this subsection, and

(b)   

at the end of the 28 day period mentioned in section 255A(4) (or

such other period as is specified for the purposes of that

subsection), be released by the Secretary of State on licence

under this Chapter (unless he has already been released under

10

subsection (2)).

(2)   

The Secretary of State may, at any time after a prisoner who is suitable

for automatic release is returned to prison, release him again on licence

under this Chapter.

(3)   

The Secretary of State must not release a person under subsection (2)

15

unless the Secretary of State is satisfied that it is not necessary for the

protection of the public that he should remain in prison until the end of

the period mentioned in subsection (1)(b).

(4)   

If a prisoner who is suitable for automatic release makes

representations under section 254(2) before the end of that period, the

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Secretary of State must refer his case to the Board on the making of

those representations.

(5)   

Where on a reference under subsection (4) relating to any person the

Board recommends his immediate release on licence under this

Chapter, the Secretary of State must give effect to the recommendation.

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(6)   

In the case of an intermittent custody prisoner who has not yet served

in prison the number of custodial days specified in the intermittent

custody order, any recommendation by the Board as to immediate

release on licence is to be a recommendation as to his release on licence

until the end of one of the licence periods specified by virtue of section

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183(1)(b) in the intermittent custody order.

255C    

Specified offence prisoners and those not suitable for automatic

release

(1)   

This section applies to a prisoner who—

(a)   

is a specified offence prisoner, or

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(b)   

was eligible to be considered for automatic release but was not

considered to be suitable for it.

(2)   

The Secretary of State may, at any time after the person is returned to

prison, release him again on licence under this Chapter.

(3)   

The Secretary of State must not release a person under subsection (2)

40

unless the Secretary of State is satisfied that it is not necessary for the

protection of the public that he should remain in prison.

(4)   

The Secretary of State must refer to the Board the case of any person to

whom this section applies—

(a)   

if the person makes representations under section 254(2) before

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the end of the period of 28 days beginning with the date on

 
 

Criminal Justice and Immigration Bill
Part 2 — Sentencing

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which he is returned to prison, on the making of those

representations, or

(b)   

if, at the end of that period, the person has not been released

under subsection (2) and has not made such representations, at

that time.

5

(5)   

Where on a reference under subsection (4) relating to any person the

Board recommends his immediate release on licence under this

Chapter, the Secretary of State must give effect to the recommendation.

(6)   

In the case of an intermittent custody prisoner who has not yet served

in prison the number of custodial days specified in the intermittent

10

custody order, any recommendation by the Board as to immediate

release on licence is to be a recommendation as to his release on licence

until the end of one of the licence periods specified by virtue of section

183(1)(b) in the intermittent custody order.

(7)   

The Secretary of State may by order amend the number of days for the

15

time being specified in subsection (4)(a).

255D    

Extended sentence prisoners

(1)   

The Secretary of State must refer to the Board the case of any extended

sentence prisoner.

(2)   

Where on a reference under subsection (1) relating to any person the

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Board recommends his immediate release on licence under this

Chapter, the Secretary of State must give effect to the

recommendation.”

(3)   

In section 256 of that Act (further release after recall) in subsection (1) (powers

of Board on a reference) for “section 254(3)” substitute “section 255B(4), 255C(4)

25

or 255D(1)”.

(4)   

In section 330 of that Act (orders and rules) in subsection (5)(a) (statutory

instruments subject to the affirmative resolution procedure) at the appropriate

place insert—

   

“section 255A(9),

30

   

section 255C(7),”.

17      

Further review and release of prisoners after recall

(1)   

Section 256 of the Criminal Justice Act 2003 (c. 44) (further release after recall)

is amended as follows.

(2)   

In subsection (1) for paragraph (b) substitute—

35

“(b)   

determine the reference by making no recommendation as to

his release.”

(3)   

In subsection (2) omit “or (b)”.

(4)   

Subsections (3) and (5) cease to have effect.

(5)   

In consequence of the amendments made by section 16 and this section, the

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heading to section 256 becomes “Review by the Board”.

 
 

Criminal Justice and Immigration Bill
Part 2 — Sentencing

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(6)   

After section 256 insert—

“256A   

Further review

(1)   

The Secretary of State must, not later than the first anniversary of a

determination by the Board under section 256(1) or subsection (4)

below, refer the person’s case to the Board.

5

(2)   

The Secretary of State may, at any time before that anniversary, refer

the person’s case to the Board.

(3)   

The Board may at any time recommend to the Secretary of State that a

person’s case be referred under subsection (2).

(4)   

On a referral under subsection (1) or (2), the Board must determine the

10

reference by—

(a)   

recommending the person’s immediate release on licence under

this Chapter,

(b)   

fixing a date for his release on licence, or

(c)   

making no recommendation as to his release.”

15

18      

Recall of life prisoners: abolition of requirement for recommendation by

Parole Board

(1)   

Section 32 of the Crime (Sentences) Act 1997 (c. 43) (recall of life prisoners

while on licence) is amended as follows.

(2)   

For subsections (1) and (2) (power of Secretary of State to revoke licence)

20

substitute—

“(1)   

The Secretary of State may, in the case of any life prisoner who has been

released on licence under this Chapter, revoke his licence and recall

him to prison.”

(3)   

In subsection (3) (representations by prisoner) for “subsection (1) or (2) above”

25

substitute “this section”.

(4)   

In subsection (4) (reference to Parole Board by Secretary of State) for

paragraphs (a) and (b) substitute “the case of a life prisoner recalled under this

section”.

Early removal of prisoners from the United Kingdom

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19      

Removal under Criminal Justice Act 1991 (offences before 4th April 2005 etc.)

(1)   

Part 2 of the Criminal Justice Act 1991 (c. 53) (early release of prisoners) is

amended as follows.

(2)   

After section 46 insert—

“46ZA   

  Persons eligible for removal from the United Kingdom

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(1)   

For the purposes of section 46A below, to be “eligible for removal from

the United Kingdom” a person must show, to the satisfaction of the

Secretary of State, that the condition in subsection (2) is met.

 
 

 
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