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These notes refer to Lords Amendments to the Criminal Justice and Immigration Bill as brought from the House of Lords on 30th April 2008 [Bill 104]
CRIMINAL JUSTICE AND IMMIGRATION BILL
EXPLANATORY NOTES ON LORDS AMENDMENTS
1. These explanatory notes relate to the Lords Amendments to the Criminal Justice and Immigration Bill as brought from the House of Lords on 30th April 2008. They have been prepared by the Ministry of Justice in order to assist the reader of the Bill and the Lords Amendments and to help inform debate on the Lords Amendments. They do not form part of the Bill and have not been endorsed by Parliament.
2. These notes, like the Lords Amendments themselves, refer to HL Bill 16, the Bill as first printed for the Lords.
3. These notes need to be read in conjunction with the Lords Amendments and the text of the Bill. They are not, and are not meant to be, a comprehensive description of the effect of the Lords Amendments.
4. All the Lords amendments were in the name of the Minister, except for amendments 9, 301, 327, 86, 88, 89 (in part) 90, 115, 117, 127, 173, 285, 24, 28, which were opposed by the Government. (In the following Commentary, an asterisk appears in the heading of each of the paragraphs dealing with a non-Government amendment which was opposed by the Government).
Lords Amendments 1, 198 to 206, 218 to 226 and 231 to 235
5. These amendments would ensure that the duties and responsibilities that are to be placed on officers of local probation boards under Part 1 of the Bill are also placed be on officers of other providers of probation services. They would reflect the new probation arrangements in Part 1 of the Offender Management Act 2007, which are to come into force in phases from 1 April 2008.
Lords Amendments 2 and 3
6. These amendments would remove from this interpretation clause the entry which provides that a "court" does not include a service court; this would be unnecessary given that in the context of the provisions of Part 1 it is already sufficiently clear that references to a "court" are not intended to include a service court. Such an approach is commonly adopted in other criminal justice legislation.
7. These amendments would remove the requirement that a court dealing with an offender aged under 18 must have regard primarily to the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18). These amendments would secure that a court must instead have equal regard to each of the following factors:
8. These amendments would remove Clause 10 which abolishes suspended sentences for summary offences, an associated transitional provision in paragraph 8 of Schedule 37 and a parallel provision in respect of the amendment in respect of the armed forces in paragraph 8 of Schedule 35.
9. Amendments 10 to 12 would tidy up and simplify the drafting of that part of clause 12 which amends section 151 of the Criminal Justice Act 2003 (community order or youth community order for persistent offender previously fined). The amendments to section 151 which are already in the Bill are necessary only to make it consistent with the main purpose of clause 12 which is to restrict the availability of the community order to imprisonable offences. The tidying up would conveniently also remove an inconsistency in the drafting. Amendment 227 would be consequential upon amendments 10 to 12.
10. This amendment would provide for a requirement that a pre-sentence report for a young person aged under 18 be made in writing where the court is considering custody as an appropriate sentence for the offence or offences.
11. Amendment 263 would add to the new Schedule 15A to the Criminal Justice Act 2003 (as inserted by Schedule 6 to the Bill) offences under service law which correspond to the offences listed in Part 1 of that Schedule. Amendments 14 and 16 would be consequential on the fact that the Schedule would now cover service offences (for which a person could be convicted in any part of the world). Amendments 323, 339 and 341 would make consequential repeals.
12. One of the new conditions for the making of a public protection sentence is that the offender had previously been convicted of an offence specified in the new Schedule 15A to the Criminal Justice Act 2003 (as inserted by Schedule 6 to the Bill). Several of the offences listed in the new Schedule 15A refer to offences under the Sexual Offences Act 2003 where those offences were committed in circumstances which made the offender liable to imprisonment for life. Amendment 263 would also make clear that "imprisonment for life" includes 'detention' for life or 'custody' for life so as to put beyond doubt that the new condition could be satisfied where an offender had committed one of the offences when he was under 21 (and was therefore liable to custody for life or detention for life instead of imprisonment for life).
13. This amendment to clause 15 would remove the redundant word, "previously".
Lords Amendment 17
14. This amendment would put beyond doubt that foreign convictions may be considered when assessing dangerousness for the purposes of a public protection sentence.
15. This amendment would include service offences in those to be taken into account when assessing dangerousness.
16. This amendment would ensure that the reference to Schedule 15 (sexual and violent offences) for the purpose of dis-applying the new provision requiring the Secretary of State to release Criminal Justice Act 1991 prisoners automatically at the halfway point of their sentences includes a reference to the relevant service offences.
17. Amendment 20 would insert a further category of prisoner (section 255A(2)(aa) of the Criminal Justice Act 2003) who would not be eligible to be considered for automatic release, namely those prisoners who are released early on compassionate grounds or on Home Detention Curfew and are recalled under section 254 of the 2003 Act before their "normal entitlement date", ie their automatic release date.
18. Amendment 21 would reflect the fact that a prisoner would not fall into more than one exclusion category in respect of eligibility for fixed term recall. A prisoner who would not be eligible for fixed term recall would be processed under the standard recall procedure or the extended sentence recall procedure.
19. Amendment 22 would provide that those prisoners who would be ineligible for fixed term recall because they have been released early onto the Home Detention Curfew scheme or for compassionate reasons and have been recalled under section 254 before their automatic release date would be dealt with in accordance with the standard recall procedure.
20. Amendment 23 would add offences under service law to the specified offences to which the provisions on release on recall apply.
21. These amendments would remove the power to vary by order the fixed period of 28 days which certain offenders would spend in custody under the new recall provisions before being automatically re-released and the number of days an offender would spend in custody (not serving a fixed term recall) before the Secretary of State must refer his case to the Parole Board.
22. Amendment 25 would define the "normal entitlement date" for the purpose of the new exclusion from eligibility for fixed term recall and sets out when multiple sentences would be treated as a single term of imprisonment for the purpose of that exclusion.
23. Amendment 26 would make clear that the new provisions for further release after recall in clause 29 apply equally to juveniles serving determinate terms under s.91 of the Powers of Criminal Courts (Sentencing) Act 2000 or section 228 of the Criminal Justice Act 2003.
24. Amendment 27 would provide that prisoners ineligible for fixed term recall by virtue of the new exclusion are subject to the standard recall procedure in 255C.
25. Amendment 29 would provide that the new recall and further release arrangements as set out in the amendments to clause 29 would apply to prisoners who are released under Part 2 of the 1991 Act then recalled under section 254(1) of the 2003 Act subject to the modifications listed.
26. Amendment 30 would list those modifications, namely: (i) and (ii) cross-referencing the Criminal Justice Act 2003 release provisions in the amendment to the equivalent release provisions in the Criminal Justice Act 1991; (iii) omitting section 255A(10A) of the Criminal Justice Act 2003 as the same effect is already produced for 91 Act prisoners by section 51(2) of the 91 Act, which applies by virtue of section 50A(8); and (iv) cross-referencing the provision concerning juvenile detention to the equivalent provisions in the Criminal Justice Act 1991.
27. This amendment would enable a second referral order to be imposed on a person aged under 18 where the offender pleads guilty to one or more offences and the court, on a recommendation made by a youth offending team or other appropriate officer, considers that there are exceptional circumstances which justify the offender being subject to such an order. This would allow a second referral order to be made where, for example, there has been a significant period between the first referral and the subsequent offence.
28. These amendments would remove clause 42 (Amendment of test for allowing appeals: England and Wales) and clause 43 (Amendment of test for allowing appeals: Northern Ireland) from the Bill. Amendments 264 to 266, 298 and 340 would amend Schedules 8, 35 and 37 consequential on the removal of these two clauses.
29. Amendment 34 would replace the existing clause 44 with a new clause which inserts a new section 16C into the Criminal Appeal Act 1968. New section 16C would apply only in cases where the Court of Appeal is determining an appeal referred to it by the Criminal Cases Review Commission and the only ground for allowing the appeal is that there has been a development in the law since the date of conviction. In such cases, it would be open to the Court to dismiss the appeal if they would have refused an extension of time within which to seek leave to appeal (had the Court been considering an out of time application by the appellant rather than a reference by the CCRC). Amendment 35 makes equivalent provision for Northern Ireland, and amendment 297 for armed forces legislation. Amendments 330 and 331 are transitional provisions.
30. These amendments would remove Part 4 (Her Majesty's Commissioner for Offender Management and Prisons) and Part 5 (The Northern Ireland Commissioner for Prison Complaints, and Schedules 9 to 17. Amendments 180, 187, 188, 190 191 and 347 would make other changes to the Bill consequential upon the removal of Parts 4 and 5.
31. Amendments 84 and 276 to 278 would remove the restriction on the age range for youth conditional cautions. This means that the youth conditional caution would be available for 10-17 year olds inclusive, rather than just 16-17 year olds. The Government has made it clear, however, that the introduction of the youth conditional caution will be staged and initially introduced only for those aged 16 and 17 years old. Amendment 283 is consequential and would change the amendment to the Rehabilitation of Offenders Act 1974 so that it would now refer to youth conditional cautions for 10-17 year olds rather than just 16-17 year olds.
32. These amendments would provide the Secretary of State with the power (subsequent to affirmative resolution) to amend the provisions in new sections 66A-66H of the Crime and Disorder Act 1998 in respect of youth conditional cautions for those aged 15 and under. This would be necessary because the needs and specific requirements of those aged 10-15 are likely to be different from those aged 16 and 17. Subsequent to consultation on the younger age range, it may be necessary to amend the provisions on youth conditional cautions for this age group.
33. These amendments would make three changes to the provisions of clause 105 which extend the powers of the Crown Prosecution Service designated caseworkers. These changes would provide for designated caseworkers to be subject to statutory regulation under the Legal Services Act; restrict the trials remit of designated caseworkers so that they can only conduct proceedings in respect of non-imprisonable summary only offences; and limit the type of preventative civil orders in respect of which designated caseworkers could conduct proceedings.
34. These amendments would limit the trial element of the new powers conferred by clause 105 by restricting CPS designated caseworkers statutory powers to undertaking trials of summary only offences in the magistrates' courts.
35. Amendment 89 is intended to provide clarity as to the purpose and intention of 7A(2)(b) of the Prosecution of Offences Act 1985. This paragraph relates to the subsidiary powers of a designated caseworker. The amendment would widen the scope of the current paragraph to include certain civil proceedings.
36. Amendment 91 would explain the meaning of a trial in connection with restricting the trial element of the clause to summary only offences.
37. The effect of amendment 92 would be to set the maximum compensation following a miscarriage of justice at £1,000,000 when the applicant had spent 10 years or more in detention and at £500,000 in any other case. Amendment 93 is a technical amendment which would enable both the £500,000 and £1,000,000 limits to be amended by affirmative resolution of both Houses. Amendment 94 would introduce a new section 133B into the Criminal Justice Act 1988 to describe in some detail the periods of detention which would count toward the 10-year threshold. Amendment 95 would extend the effect of the new section 133B to Northern Ireland. Amendments 304 to 306 would make similar amendments for the armed forces.
38. Amendments 96 to 102 have been introduced in light of the commitment given during the debate in Commons Committee to look at the provisions relating to extreme pornographic material and the drafting of clause 113 to put it beyond doubt that the type of material found in the mainstream films mentioned in Committee would not be caught. Amendments 96 to 99 would clarify the definition of pornography (the first element of the offence) to make it clear that the question whether or not material is pornographic would be a matter which a jury can take a view on by reference to the nature of the material before them, without having regard to the intentions of those who produced it. This change is carried through to clause 114 by Amendments 101 and 102. Amendment 100 would introduce an additional (third) element to the offence, so that an extreme image would be one which falls within the list of extreme acts and is "grossly offensive, disgusting or otherwise of an obscene character". This is intended to give greater certainty in respect of the kinds of the acts covered by the offence, in view of the Government's policy intention to cover only material which it would be illegal to publish here.
39. Amendment 99 would also refine the formulation of what was the second element of the offence, namely the listed extreme acts. The amendment removes all occurrences of the words "appears to" and provides that the acts portrayed must be portrayed in an "explicit and realistic way", and that the persons and animals portrayed must be such that a reasonable person looking at the image would think that they were real. This is intended to ensure that only graphic and convincing scenes are caught.
40. Amendment 104 would be consequential on amendment 100. It ensures consistency of language and does not change the substance of clause 116.
41. Amendment 103 would seek to address the anomaly that it would be possible for a person to commit an offence under clause 113 by possessing an image of an act which he or she undertook lawfully. The defence would apply where a defendant proves that: he or she directly participated in the act and no harm was caused to any participant, or insofar as any harm was caused it was harm which was and could be lawfully consented to. The defence would not apply in respect of bestiality images, or necrophilia images which involve a real corpse, as it is not possible for consent to be given in these cases.
42. These Amendments would remove clauses 123 to 125 and Schedule 25 (Street Offences).
43. Amendments 309, 319, 333, 345 and 346 would make consequential amendments arising from the removal of clauses 123 to 125 and Schedule 25.
Lords Amendments 108 to 113
44. These amendments would address the question whether a court or jury can pay any regard to the reasonableness of a mistaken belief relied on by a defendant who has used force in self defence or for the prevention of crime. The amendments would provide the clarification that the reasonableness or otherwise of the professed belief of such a defendant would be relevant to the question of whether that belief was genuinely held in the first place. A defendant may then use an objectively reasonable degree of force in the circumstances as he believed them to be, even if that belief was mistaken or unreasonable.
45. Amendment 113 would confer on the Secretary of State the power to make an order altering the maximum penalty for an offence under section 55 of the Data Protection Act 1998. The maximum penalty of imprisonment specified in such an order could be two years' imprisonment for a conviction on indictment.
46. Amendment 114 would provide an additional defence for offences under section 55 of the Data Protection Act where offenders acted with a view to journalistic, literary or artistic purposes and in the reasonable belief that their actions were justified as being in the public interest.
47. Amendments 182, 189, 194, 334 and 335 are consequential amendments.
48. Amendment 115 would provide a new offence for data controllers who intentionally, knowingly or recklessly lose or disclose personal data. The amendments will also have the effect of removing the exemption from prosecution for Government Departments and certain other Crown officials (s.63(5) of the Data Protection Act).
49. Amendment 116 would abolish the common law offences of blasphemy and blasphemous libel. Amendments 196 and 344 would make consequential amendments to the repeals schedule and the commencement clause.
50. These amendments would provide an exhaustive list of the prohibitions, restrictions or conditions that could be imposed as part of a violent offender order.
51. These amendments would introduce a maximum length of time for which a violent offender order can be imposed without renewal. The maximum duration would be five years.
52. This amendment would make clear that a violent offender order could only be used to protect the public from a current risk of serious physical or psychological violent harm.
53. These amendments would enable violent offender orders, and linked notification requirements, to operate in relation to people who are or have been in the armed forces.
54. These amendments would ensure that anyone subject to a violent offender order (and consequently anyone subject to notification requirements) is eighteen or over.
55. These amendments are minor technical amendments which would ensure that all individuals who are given either a custodial sentence of at least 12 months or a hospital order on conviction for one or more of the specified qualifying offences are eligible for a violent offender order. These amendments would also ensure that hospital orders, restriction orders and supervision orders made by the courts under all relevant legislation are included within the definitions of these terms.
56. This amendment would ensure that the individual in respect of whom an application for a violent offender order is being made has the right to be heard at the point of the application being considered (not just at the point of renewal or variation).
57. This amendment would in effect ensure that the court could not make an interim violent offender order unless satisfied that there was clear evidence to support the application for the main violent offender order.
58. This amendment would ensure that an interim violent offender order could be made for a fixed period (of any duration) but could not be renewed after the end of this period.
59. This amendment would ensure that neither violent offender orders nor interim orders are made unless the court is satisfied that the individual in respect of whom the application has been made has been given reasonable notice of the application and the time and place of the hearing.
60. These amendments would extend the provisions to NHS hospital premises in Wales. Welsh Ministers would issue the clause 172 guidance in respect of the exercise of the removal powers in Wales and, by virtue of amendment 197 to clause 201, commence the provisions so far as they relate to Welsh NHS premises.
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