House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

38

“(2)
Section 225(2) to (4) of the 2003 Act apply in relation to the

offender.

(3)
In section 225(2) and (3A) of the 2003 Act (as applied by

subsection (2)), references to “the offence” are to be read as

references to the offence under section 42 of this Act.”

      (4)
For the italic cross-heading before section 219 substitute “Required or

discretionary sentences for particular offences”.

8C  (1)
Section 220 (certain violent or sexual offences: offenders aged 18 or over)

is amended as follows.

      (2)
In subsection (1) for the words from “a person” to the end substitute “—

(a)
a person aged 18 or over is convicted by the Court Martial

of an offence under section 42 (criminal conduct),

(b)
the corresponding offence under the law of England and

Wales is a specified offence,

(c)
the court is of the required opinion (defined by section

223), and

(d)
where the corresponding offence under the law of

England and Wales is a serious offence, the case is not one

in which the court is required by section 225(2) of the 2003

Act (as applied by section 219(2) of this Act) to impose a

sentence of imprisonment for life.”

      (3)
For subsection (2) substitute—

“(2)
Section 227(2) to (5) of the 2003 Act apply in relation to the

offender.”

      (4)
In subsection (3)—

(a)
for “section 227” substitute “section 227(2) to (5)”,

(b)
before paragraph (a) insert—

“(za)
the reference in section 227(2A) to “the offence” is

to be read as a reference to the offence under

section 42 of this Act;”, and

(c)
in paragraph (a) for “subsection (2)(b)” substitute “subsection

(2C)(b)”.

      (5)
After subsection (3) insert—

“(3A)
The power conferred by section 227(6) of the 2003 Act includes

power to amend section 227(2B) as applied by this section.”

8D  (1)
Section 221 (dangerous offenders aged under 18) is amended as follows.

      (2)
In subsection (1) for the words from “a person” to the end substitute “—

(a)
a person aged under 18 is convicted by the Court Martial

of an offence under section 42 (criminal conduct),

(b)
the corresponding offence under the law of England and

Wales is a serious offence, and

(c)
the court is of the required opinion (defined by section

223).”

      (3)
For subsection (2) substitute—

“(2)
Section 226(2) to (4) of the 2003 Act apply in relation to the

offender.”

39

      (4)
In subsection (3)—

(a)
for the words from the beginning to “is” substitute “In section

226(2) of the 2003 Act (as applied subsection (2))”, and

(b)
in paragraphs (a) and (b) the words “in section 226(2)” are

omitted.

      (5)
Subsection (4) is omitted.

8E  (1)
Section 222 (offenders aged under 18: certain violent or sexual offences)

is amended as follows.

      (2)
In subsection (1), in paragraph (d) for the words from “section 221” to the

end substitute “section 226(2) of the 2003 Act (as applied by section

221(2) of this Act) to impose a sentence of detention for life.”.

      (3)
For subsection (2) substitute—

“(2)
Section 228(2) to (5) of the 2003 Act apply in relation to the

offender.”

      (4)
In subsection (3)—

(a)
for “section 228” substitute “section 228(2) to (5)”, and

(b)
in paragraph (a) for “subsection (2)(b)” substitute “subsection

(2B)(b)”.

      (5)
After subsection (3) insert—

“(3A)
The power conferred by section 228(7) of the 2003 Act includes

power to amend section 228(2A) as applied by this section.”

8F  (1)
Section 223 (the required opinion for the purposes of sections 219 to 222)

is amended as follows.

      (2)
In subsection (1) for “219(2), 220(2), 221(2)” substitute “219(1), 220(1),

221(1)”.

      (3)
In subsection (2) for “section 229(2) to (4)” substitute “section 229(2) and

(2A)”.

      (4)
In subsection (3) the words “to (4)” are omitted.

8G  (1)
Section 228 (appeals where previous convictions set aside) is amended as

follows.

      (2)
For subsection (1) substitute—

“(1)
Subsection (3) applies where—

(a)
a sentence has been imposed on any person under section

225(3) or 227(2) of the 2003 Act (as applied by section

219(2) or 220(2) of this Act),

(b)
the condition in section 225(3A) or (as the case may be)

227(2A) of the 2003 Act was met but the condition in

section 225(3B) or (as the case may be) 227(2B) of that Act

was not, and

(c)
any previous conviction of his without which the

condition in section 225(3A) or (as the case may be)

227(2A) would not have been met has been subsequently

set aside on appeal.”

8H
In section 237 (purposes of sentencing), in subsection (3)(b)—

40

(a)
for “to 222” substitute “, 221”, and

(b)
for “any of sections 225 to 228” substitute “section 225(2) or

226(2)”.

8I
In section 256 (pre-sentence reports), in subsection (1)(c) for the words

from “section” to the end substitute “section 219(1), 220(1), 221(1) or

222(1) (sentences for dangerous offenders).”

8J
In section 260 (discretionary custodial sentences: general restrictions), in

subsection (1)(b) for the words from “as a result” to the end substitute

“under section 225(2) or 226(2) of the 2003 Act (as applied by section

219(2) or 221(2) of this Act) or as a result of any of sections 225 to 227 of

this Act.”

8K
In section 261 (length of discretionary custodial sentences: general

provision)—

(a)
in subsection (1) for “falling to be imposed as a result of section

219(2) or 221(2)” substitute “imposed under section 225 or 226 of

the 2003 Act (as applied by section 219(2) or 221(2) of this Act)”,

and

(b)
in subsection (3) for “required minimum sentences” substitute

“sentences that may or must be imposed”.

8L
In section 273 (review of unduly lenient sentences by Court Martial

Appeal Court), in subsection (6)(b) for “section 219, 220, 221, 222, 225, 226

or 227” substitute “section 225(2) or 226(2) of the 2003 Act (as applied by

section 219(2) or 221(2) of this Act) or by section 225, 226 or 227 of this

Act”.”
303
Page 317, line 43, at end insert—

“Restrictions on imposing community punishment

8M
In section 253(2)(h) (duties in complying with section 252) for “section

151(2) of the 2003 Act as applied by section 270 of this Act” substitute

“section 270B(4)”.

8N
In section 254(1) (savings for powers to mitigate sentence etc.) for “and

270” substitute “, 270 and 270B”.

8O  (1)
Section 270 (community punishments: general restrictions etc.) is

amended as follows.

      (2)
After subsection (6) insert—

“(6A)
The fact that by virtue of any provision of this section—

(a)
a community punishment may be awarded in respect of

an offence, or

(b)
particular restrictions on liberty may be imposed by a

community punishment,


does not require a court to award such a punishment or to

impose those restrictions.”

      (3)
Subsection (7) is omitted.

      (4)
In subsection (8)—

(a)
the word “Accordingly” is omitted; and

41

(b)
for “151(2) of the 2003 Act as applied by this section” substitute

“270B(4)”.

8P
After section 270 insert—

“270A
Community punishment available only for offences punishable

with imprisonment or for offenders previously fined

The power to award a community punishment is only

exercisable in respect of an offence if—

(a)
a person who is guilty of such an offence is liable to

imprisonment; or

(b)
in any other case, section 270B(4) confers power to award

such a punishment.

270B
Community punishment for offender previously fined

(1)
This section provides for the award of a community punishment

by a court in respect of an offence (“the current offence”)

committed by a person to whom subsection (2) or (3) applies.

(2)
This subsection applies to the offender if—

(a)
a person guilty of the current offence is liable to

imprisonment,

(b)
the offender was aged 16 or over when he was convicted;

(c)
on three or more previous occasions the offender has, on

conviction by a court for an offence committed by him

after attaining the age of 16, had passed on him a sentence

consisting only of a fine; and

(d)
despite the effect of section 238(1)(b), the court would not

(apart from this section) regard the current offence, or the

combination of the current offence and one or more

offences associated with it, as being serious enough to

warrant a community punishment.

(3)
This subsection applies to the offender if—

(a)
a person guilty of the current offence is not liable to

imprisonment;

(b)
the offender was aged 16 or over when he was convicted;

and

(c)
on three or more previous occasions the offender has, on

conviction by a court for an offence committed by him

after attaining the age of 16, had passed on him a sentence

consisting only of a fine.

(4)
The court may award a community punishment in respect of the

current offence if it considers that, having regard to all the

circumstances including the matters referred to in subsection (5),

it would be in the interests of justice to award such a punishment.

(5)
Those matters are—

(a)
the nature of the offences to which the previous

convictions mentioned in subsection (2)(c) or (3)(c) (as the

case may be) relate and their relevance to the current

offence; and

(b)
the time that has elapsed since the offender’s conviction

of each of those offences

42

(6)
In subsections (2)(c) and (3)(c) “conviction by a court” means—

(a)
a conviction by a civilian court in any part of the United

Kingdom for a service offence or for an offence

punishable by the law of that part of the United Kingdom;

or

(b)
a conviction in service disciplinary proceedings.

(7)
For the purposes of subsections (2)(c) and (3)(c) a compensation

order or a service compensation order awarded in service

disciplinary proceedings does not form part of an offender’s

sentence.

(8)
It is immaterial for the purposes of subsections (2)(c) and (3)(c)

whether on previous occasions a court has passed on the

offender a sentence not consisting only of a fine.

(9)
This section does not limit the extent to which a court may, in

accordance with section 238(1)(b) and (2), treat any previous

convictions of the offender as increasing the seriousness of an

offence.

(10)
In this section—

(a)
“service disciplinary proceedings” means proceedings

(whether or not before a court) in respect of a service

offence; and

(b)
any reference to a conviction or sentence, in the context of

such proceedings, includes anything that under section

376(1) to (3) is to be treated as a conviction or sentence.””
304
Page 319, line 26, leave out “£500,000” and insert—

“(a)
£1 million in a case to which section 276B applies, and

(b)
£500,000 in any other case.”
305
Page 319, line 34, leave out first “the” and insert “any”
306
Page 319, line 35, at end insert—

“276B
  Cases where person has been detained for at least 10 years

(1)
For the purposes of section 276A(5) this section applies to any

case where the person concerned (“P”) has been in qualifying

detention for a period (or total period) of at least 10 years by the

time when—

(a)
the conviction is reversed, or

(b)
the pardon is given,


as mentioned in section 276(1).

(2)
P was “in qualifying detention” at any time when P was detained

in a prison, a hospital or at any other place, if P was so detained—

(a)
by virtue of a sentence passed in respect of the relevant

offence,

(b)
under mental health legislation by reason of P’s

conviction of that offence (disregarding any conditions

other than the fact of the conviction that had to be fulfilled

in order for P to be so detained), or

(c)
as a result of P’s having been ordered to be kept in service

custody, or remanded for mental health purposes, in

43

connection with the relevant offence or with any other

offence the charge for which was founded on the same

facts or evidence as that for the relevant offence.

(3)
In calculating the period (or total period) during which P has

been in qualifying detention as mentioned in subsection (1), no

account is to be taken of any period of time during which P was

both—

(a)
in qualifying detention, and

(b)
in excluded concurrent detention.

(4)
P was “in excluded concurrent detention” at any time when P

was detained in a prison, a hospital or at any other place, if P was

so detained—

(a)
during the term of a sentence passed in respect of an

offence other than the relevant offence,

(b)
under mental health legislation by reason of P’s

conviction of any such other offence (disregarding any

conditions other than the fact of the conviction that had to

be fulfilled in order for P to be so detained), or

(c)
as a result of P’s having been ordered to be kept in service

custody, or remanded for mental health purposes, in

connection with an offence for which P was subsequently

convicted other than—

(i)
the relevant offence, or

(ii)
any other offence the charge for which was

founded on the same facts or evidence as that for

the relevant offence.

(5)
But P was not “in excluded concurrent detention” at any time by

virtue of subsection (4)(a), (b) or (c) if P’s conviction of the other

offence mentioned in that provision was quashed on appeal, or a

pardon was given in respect of it.

(6)
In this section—

“kept in custody” means—

(a)
kept in service custody under section 105(2) of the

Armed Forces Act 2006, or

(b)
kept in military, air-force or naval custody under

section 75A(2) of the Army Act 1955 (3 & 4 Eliz. 2

c. 18) or of the Air Force Act 1955 (3 & 4 Eliz. 2

c. 19) or section 47G(2) of the Naval Discipline Act

1957 (c. 53) (as the case may be);

“mental health legislation” means—

(a)
Part 3 of the Mental Health Act 1983, or

(b)
the provisions of any earlier enactment

corresponding to Part 3 of that Act;

“the relevant offence” means the offence in respect of which

the conviction is quashed or the pardon is given (but see

subsection (7));

“remanded for mental health purposes” means remanded

or admitted to hospital under section 35, 36 or 38 of the

Mental Health Act 1983 or under any corresponding

provision of any earlier enactment;

44

“reversed” has the same meaning as in section 276 of this

Act.

(7)
If, as a result of the miscarriage of justice—

(a)
two or more convictions are reversed, or

(b)
a pardon is given in respect of two or more offences,


“the relevant offence” means any of the offences concerned.””
307
Page 319, line 37, at end insert—

“Imposition of unpaid work requirement for breach of service community order or overseas

service community order

12A
In paragraph 14(b) of Schedule 5 (modifications of Schedule 8 to the

Criminal Justice Act 2003 as it applies to overseas community orders),

for “(3)” substitute “(3A)”.”
308
Page 319, line 37, at end insert—

“Suspended prison sentences: further conviction or breach of requirement

12B
In paragraph 9(1)(b) of Schedule 7 (which provides for paragraph 9 of

Schedule 12 to the Criminal Justice Act 2003, as it applies to an order

under paragraph 8 of that Schedule made by a service court, to have

effect with substituted sub-paragraphs (2) and (3))—

(a)
in the substituted text of sub-paragraph (2), after “Part 12” insert

“of this Act or under Part 2 of the Criminal Justice Act 1991”; and

(b)
in the substituted text of sub-paragraph (3), after “287” insert “of

the Armed Forces Act 2006”.”
Schedule 36
309
Page 322, leave out lines 22 to 26
310
Page 323, line 41, after “(b)(i)” insert “(as it continues to have effect in relation to

prisoners sentenced for offences committed before 4th April 2005)”
311
Page 326, line 26, at end insert “; and

(c)
after “; and in” insert “this Part of”.”
312
Page 326, line 26, at end insert—

  “(3A)
In paragraph 2 (as it applies in England and Wales in relation to offences

committed before 4 April 2005)—

(a)
in sub-paragraph (1A)(a) (which defines the enactments relating

to release on licence) after “33(1)(b) insert “, (1A)”; and

(b)
after sub-paragraph (2) insert—

“(2A)
If the warrant specifies that the offence or any of the

offences in relation to which a determinate sentence is

to be served corresponds to murder or an offence

specified in Schedule 15 to the Criminal Justice Act

2003 (specified violent or sexual offences), any

reference (however expressed) in Part 2 of the Criminal

Justice Act 1991 to a person sentenced for an offence

specified in that Schedule is to be read as including a

reference to the prisoner.”