Clause 101: Annual Report

526.     At the end of each financial year the Council will report on the exercise of its functions to the Lord Chancellor who will lay that report before Parliament.

Clause 102: Sentencing guidelines

527.     The Sentencing Council is given the power to prepare sentencing guidelines. Guidelines may be general in nature or specific to an offence or category of offence. The Council must prepare guidelines on the reduction of sentence for a guilty plea, and on the application of the totality principle. The Council may prepare sentencing guidelines about any other matter.

528.     When it draws up guidelines, the Council must have regard to current sentencing practice, the need to promote consistency in sentencing, the need to promote public confidence in the criminal justice system, the cost of different sentences, their effectiveness in reducing re-offending and the Council’s monitoring of the application of its guidelines.

529.     Guidelines must be published first in draft. The Council must consult on the draft with the Lord Chancellor, with anyone whom the Lord Chancellor directs the Council to consult and anyone else the Council considers appropriate. After this consultation, the Council may amend its draft and issue definitive guidelines.

530.     The Council has the power to review and revise its guidelines as it considers necessary. If it does so, it must undertake the same consultation process.

Clause 103: Sentencing guidelines: sentence ranges

531.     Sentencing guidelines which relate to a particular offence must divide the offence to which they relate into levels of seriousness based on the offender’s culpability and/or the harm caused. The guidelines must provide a range of sentences appropriate for each of these categories of case. Within each range, the guideline should set out a starting point in the range. The starting point is the sentence the Council considers to be appropriate in a case where the offender has pleaded not guilty and before aggravating or mitigating factors are taken into account.

532.     The guidelines must set out relevant aggravating and mitigating factors that are likely to apply to an offence and the relevant mitigating factors personal to an offender. The guidelines must also include criteria and guidance on the weight to be given to an offender’s previous convictions and other aggravating and mitigating circumstances where these are significant to the offence being sentenced.

533.     The requirement to list mitigating circumstances personal to the offender does not apply to the requirements to take into account in sentencing an early guilty plea or the reduction in sentence for providing assistance (Queen’s evidence) or any rule of law as to reducing sentences under the totality principle. Clause 102(3) already requires the Council to produce sentencing guidelines dealing with the first and last of these matters.

534.     The provision made in accordance with this clause for offenders under 18 years of age may differ from that made for offenders who are 18 years or over. If the penalty for an offence changes, sentencing guidelines may make provision for cases where the new penalty applies which differs from that made for cases where the old penalty still applies (for example, offences committed before a certain date).

Clause 104: Allocation guidelines

535.     The Council may prepare guidelines for magistrates’ courts on how to allocate cases either to a magistrates’ court for summary trial or the Crown Court for trial on indictment. In framing or revising allocation guidelines the Council must have regard to the need to promote consistency in allocation decisions and the results of the Council’s monitoring.

Clause 105: Preparation or revision of sentencing or allocation guidelines in urgent cases

536.     In a case of urgency, the Council will not be required to go through the normal procedures set out for issuing guidelines if it is impractical to do so. However, the Council must always consult with the Lord Chancellor before issuing definitive guidelines. If the Council does adopt this abbreviated process the Council must state that it is doing so and give its reasons.

Clause 106: Guidelines: proposals by Lord Chancellor etc

537.     The Lord Chancellor can propose to the Council that it prepare or revise its guidelines. If the Court of Appeal is considering an appeal against sentence or an Attorney General’s reference case, it may propose to the Council that it prepare or revise sentencing guidelines for an offence relevant to the case it is considering.

538.     The Council must consider a proposal from either the Lord Chancellor or the Court of Appeal. If it decides not to agree to the proposal to prepare or revise guidelines, it must publish its reasons.

Clause: 107: Sentencing Guidelines: duty of court

539.     Every court must, in sentencing an offender, follow any relevant guidelines, unless it is satisfied that it would be contrary to the interests of justice to do so. Where there is an offence-specific guideline relevant to the offender’s case (that is guidelines to which clause 103 applies), a court must decide which category of case set out in the guidelines is most appropriate. The court has a duty to impose a sentence within the identified range.

540.     The duty to follow sentencing guidelines is subject to various statutory provisions, for example, those which place restrictions on imposing community sentences and imposing discretionary custodial sentences; the requirement that custodial sentences should be for the shortest term commensurate with the seriousness of an offence and the requirements for minimum sentences in certain cases. The duty to impose a sentence within the identified range is subject to the requirements to take into account an early guilty plea, the reduction in sentence for providing assistance (Queen’s evidence) and any rule of law as to reducing sentences under the totality principle.

Clause 108: Determination of tariffs etc

541.     The section applies where a court is imposing an indeterminate sentence such as a mandatory life sentence, discretionary life sentence, imprisonment for public protection sentence or an extended sentence for certain violent and sexual offences. In these cases the court must follow sentencing guidelines - unless it is in the interests of justice not to - but the duty does not extend to requiring the court to sentence within a sentence range provided under clause 107. In these cases, the court is required to follow the guidelines specifying a sentence range when determining the notional determinate term for the purpose of setting a tariff for the indeterminate sentence.

Clause 109: Resource implications of guidelines

542.     When the Council issues draft or definitive guidelines it must publish an accompanying resource assessment of the impact of the guidelines, setting out the impact on prison places and on probation and youth justice services.

543.     In the case of guidelines issued in the case of urgency, the resource assessment should be published as soon as possible after the guidelines have been issued.

544.     The Council must keep its resource assessments under review, and revise them if they become materially inaccurate.

Clause 110: Monitoring

545.     The Council must monitor the operation and effect of its guidelines, and consider the conclusions which can be drawn from the information obtained by its monitoring. The Council must, in particular, discharge this duty with a view to drawing conclusions about the level of compliance with guidelines, the factors which influence sentences imposed by courts, the effect of guidelines on consistency in sentencing and the effect of guidelines on the promotion of public confidence in the criminal justice system. The Council’s annual report must include a summary of its monitoring information and a report of any conclusions it has drawn.

Clause 111: Promoting awareness and dialogue

546.     The Council must publish, in relation to each local justice, information on sentencing practice of the magistrates’ courts in that area and, in relation to each location at which the Crown Court sits, information on the sentencing practice of the Crown Court sitting in that location.

547.     The Council may promote awareness of matters relating to sentencing in England and Wales, including the manner of sentencing, its cost effectiveness and the operation and effect of the guidelines. In particular, it can promote this awareness by publishing data on sentencing.

Clause 112: Resources: effect of sentencing practice

548.     The Council’s annual report must include a sentencing factors report. This report is an assessment by the Council of the effect which any changes to sentencing practice are having or are likely to have on the demand for prisons places and the resources required for probation and youth justice services.

Clause 113: Resources: effect of factors not related to sentencing

549.     The Council’s annual report must discuss any non-sentencing factors which are having, or are likely to have, a significant effect on the resources needed or available for giving effect to the sentences imposed by courts. These factors include recalls to prison, breaches of court orders, patterns of re-offending, actions by the Parole Board, early release and levels of remands in custody. The Council may also report to the Lord Chancellor at any time on the impact of such factors.

Clause 114: Duty to assess impact of policy and legislative proposals

550.     The Lord Chancellor may refer to the Council any government policy proposal or proposal for legislation which the Lord Chancellor considers may have a significant effect on the demand for prison places, or the resources required for probation provision and the provision of youth justice services. The Council must assess any likely effect of the policy or legislation and publish its assessment.

551.     For this purpose a government policy proposal or proposal for legislation includes a proposal of the Welsh Ministers, and proposals for primary or subordinate legislation are relevant if, or to the extent that, the legislation extends to England and Wales.

Clause 115: Assistance by Lord Chancellor

552.     The Lord Chancellor may facilitate the work of the Council in carrying out any of its functions, for example, by sharing data or other information with the Council.

Clause 116: Entrenchment of Lord Chancellor’s functions

553.     This clause amends Schedule 7 to the Constitutional Reform Act 2005 so as to provide that all of the functions of the Lord Chancellor in relation to the Council are protected functions of the office. Protected functions can only be transferred to another Minister by Act of Parliament.

Clause 117: Abolition of existing sentencing bodies

554.     This clause abolishes the Sentencing Guidelines Council and Sentencing Advisory Panel.

Clause 118: Interpretation of this Chapter

555.     This clause sets out the definitions of terms used in the clauses in this Chapter.

Clause 119 and Schedule 14: Extension of driving disqualification

556.     Clause 119 introduces Schedule 14. Paragraph 1(2) of Schedule 14 inserts a new section, section 35A into the Road Traffic Offenders Act 1988. Section 35A provides for an extension in the length of the period of a driving disqualification imposed under sections 34 and 35 of that Act where a custodial sentence is also imposed for the offence. The court must determine the appropriate discretionary period of disqualification and then add on the appropriate extension period. This section applies where the offender is convicted in England and Wales.

557.     New section 35A(4) defines the appropriate extension period, which takes account of that part of the sentence which the offender will serve in prison. Where a life sentence or an indeterminate sentence for public protection sentence is imposed the extension period is the period of the minimum tariff set by the court. Where an extended sentence is imposed the extension period is half the custodial term, that is, the period of the sentence to be served in prison. Where a detention and training order is imposed, the extension period is half the term of the order. Once the provisions in section 181 of the 2003 Act are commenced, if custody plus is imposed the extension period is the custodial period specified by the court and if intermittent custody is imposed the extension period is equal to the number of custodial days specified by the court. In all other cases, the extension period is equal to one half of the custodial sentence (at which point the offender is subject to automatic release or, for sentences of 12 months or more, released on licence in the community until the end of sentence).

558.     New section 35A(4) and (5) ensure that the appropriate extension period is reduced to reflect any reduction in the custodial sentence as a result of the court taking into account time already served on remand, or credits periods of remand on bail in a case where the offender was subject to a curfew condition which was electronically monitored.

559.     Under new section 35A(6) the extension of disqualification does not apply where the court imposes a suspended sentence or where a life sentence to which no early release provisions apply (cases where the offender must spend the rest of his life in prison).

560.     New sections 35A(7) and (8) provide for an order-making power to amend the extension period where an amending order is made under section 267 of the 2003 Act to change the proportion of time to be served in custody in relation to a standard determinate sentence, or the appropriate custodial term of an extended sentence.

561.     Paragraph 1(3) of Schedule 14 inserts a new section 35B into the Road Traffic Offenders Act 1988, which making provision equivalent to that made by paragraph 1 for cases where the person is convicted in Scotland.

562.     Paragraph 2 inserts a new section 248D into the Criminal Procedure (Scotland) Act 1995 to the same effect as paragraph 1(3) but this time in relation to a person disqualified under section 248 (driving disqualification where vehicle used to commit an offence) or section 248A (general power to disqualify offenders) of that Act in circumstances where a custodial sentence is also imposed.

563.     Paragraph 3 of Schedule 14 inserts new provisions in the Road Traffic Offenders (Northern Ireland) Order 1996 to the same effect as paragraph 1(2).

564.     Paragraph 4 of Schedule 14 inserts a new section, section 147A, into the Powers of Criminal Courts (Sentencing) Act 2000. This section makes similar provision to the new section inserted by paragraph 1(2), but this time for an extension of the period of the driving disqualification imposed under sections 146 (driving disqualification for any offence) and or 147 (driving disqualification where vehicle used for the purposes of crime) of that Act in cases where a custodial sentence is also imposed for the offence.

Clause 120: Dangerous offenders: terrorism offences (England and Wales)

565.     Schedule 15 to the 2003 Act lists specified violent or sexual offences which may attract a sentence of imprisonment for public protection under section 225 of the 2003 Act or an extended sentence under section 227 of the 2003 Act. Clause 120 amends Part 1 to Schedule 15 of the 2003 Act (specified violent offences) by inserting certain terrorist offences. All the offences inserted carry a maximum penalty of ten years or more. The changes take effect as provided in clause 161 (commencement 2 months after Act is passed) and Schedule 20 (transitional, transitory and saving provisions).

Clause 121: Dangerous offenders: terrorism offences (Northern Ireland)

566.     This clause makes amendments to Schedules 1 and 2 to the Criminal Justice (Northern Ireland) Order 2008 to similar effect

Part 5 - Miscellaneous Criminal Justice Provisions

Clause 122: Commissioner for Victims and Witnesses

567.     A Commissioner for Victims and Witnesses was legislated for in the Domestic Violence, Crime and Victims Act 2004 (sections 48 to 53 and Schedules 8 and 9), but a Commissioner was never appointed and the legislation has not yet been commenced. This clause amends sections 48 to 53 of that Act so as to modify the status and functions of the Commissioner. Subsections (2) and (6) repeal the provisions in section 48 of, and Schedule 8 to, that Act that establish the Commissioner as a corporation sole, and make new provision in respect of funding.

568.     The core functions of the Commissioner are set out in section 49(1) of the Domestic Violence, Crime and Victims Act 2004. These functions are that the Commissioner must promote the interests of victims and witnesses; take such steps as he or she considers appropriate with a view to encouraging good practice in the treatment of victims and witnesses; and (c) keep under review the operation of the code of practice issued under section 32 of the Domestic Violence, Crime and Victims Act 2004. These core functions remain unchanged.

569.     In addition, under section 49(2) of that Act the Commissioner, for any purpose connected with the performance of his or her duties, may (a) make proposals to the Secretary of State for amending the code (at the request of the Secretary of State or on his own initiative); (b) make a report to the Secretary of State; (c) make recommendations to an authority within his remit; (d) undertake or arrange for or support (financially or otherwise) the carrying out of research; and (e) consult any person he thinks appropriate. Subsection (3)(a) repeals section 49(2)(d). In future, any such research would be arranged and funded by the Department.

570.     In addition to reports made under section 49(2)(b), new subsections (4) to (7) require the Commissioner to prepare an annual report. Copies of all reports are to be sent to the Justice Secretary, the Attorney General and the Home Secretary. The Commissioner is responsible for publishing all reports.

571.     Subsection (4) amends section 50 of the Domestic Violence, Crime and Victims Act 2004 which sets out when the Commissioner can be required to give advice and to whom. Section 50(2) is repealed so the Commissioner is not required to give advice on the request of “an authority within his or her remit”. The Government envisages that such requests can be made through a Minister of the Crown under section 50(1).

572.     Section 55 of the Domestic Violence, Crime and Victims Act 2004 created a Victims Advisory Panel which was set up in October 2006. The terms of reference for the Panel are to advise the Home Secretary, the Lord Chancellor and the Attorney General of the views of victims of crime with particular reference to their interaction with the Criminal Justice System and its agencies. The Panel’s remit also includes offering views and advice on the prevention of crime from a victim’s perspective and generally contributing to developing and safeguarding the rights of victims. Subsection (5) inserts new sections (1A) and (1B) into section 55 which provide for the Commissioner to be a member of the Victims Advisory Panel and to chair the panel.

Clause 123: Implementation of E-Commerce and Services directives: penalties

573.     The clause will allow the Government to implement fully Article 30(2) of the Services Directive and Article 3(1) of the E-Commerce Directive.

574.     In both cases the UK is required to extend the powers of its regulatory agencies (competent authorities) so that they are able, if so required, to take action in relation to offences committed by UK-based service providers in other European Union member States.

575.     Both Articles will be implemented by secondary legislation through the powers in section 2(2) of the European Communities Act 1972. However there are limitations in paragraph 1(1)(d) of Schedule 2 to that Act on the penalties that can be imposed by secondary legislation under section 2(2). This clause disapplies these limitations for the purposes of the implementation of the Services and E-Commerce Directives. This is so that penalties can be imposed in relation to offences committed by UK-based service providers, whether in the UK or elsewhere in the European Union.

Clause 124 and Schedule 15: Treatment of convictions in other member States etc

576.     Clause 124 introduces Schedule 15. Clause 124 and Schedule 15 implement the Council of the European Union Framework Decision 2008/675/JHA to ensure that previous convictions in other European Union member States are taken into account in criminal proceedings in England, Wales and Northern Ireland, to the extent that previous United Kingdom convictions are taken into account in criminal proceedings. The Schedule also makes a number of associated changes.

Admission of evidence as to bad character of a defendant

577.     Section 103 of the 2003 Act (which extends to England and Wales only) concerns evidence of a defendant’s bad character that is admissible because it is relevant to an important matter in issue between the defendant and the prosecution. Evidence which demonstrates that a defendant has a propensity to commit offences of the kind with which he is charge can be admitted under section 103(1)(a). This includes evidence of previous convictions.

578.     Paragraph 1(2) of Schedule 15 amends section 103 of the 2003 Act, by inserting new subsections (7) and (8), so that previous convictions of an offence under the law of any country outside England and Wales can be admitted as evidence to the same extent as previous convictions in England and Wales, provided that the offence would also be an offence in England and Wales if it were done there at the time of the trial for the offence with which the defendant is now charged. As well as giving effect to the Council Framework Decision (2008/675/JHA) to make it clear that offences committed anywhere in the European Union can be admitted in these circumstances, this amendment puts beyond doubt that previous convictions in any other country can be admitted to the same extent as previous convictions of offences committed in England and Wales.

579.     Section 108 of the 2003 Act (which extends to England and Wales only) deals with the admissibility of certain juvenile convictions. It provides that certain of those convictions (those relating to offences committed under the age of 14 in any trial for an offence committed over the age of 21) fall under the general scheme for admitting evidence in this Part of the Act, and can only be admitted if, firstly, the offence for which the defendant is being tried and the offence for which the defendant was previously convicted are triable only on indictment, and, secondly, the court is satisfied that the interests of justice require the admission of the evidence.

580.     Paragraph 1(3) of Schedule 15 amends section 108 by inserting new subsections (2A) and (2B) which extend this section convictions of offences under the law of a country outside England and Wales, provided that the offence would also have been an offence in England and Wales if it were done there at the time of the proceedings for the offence with which the defendant is now charged. Again, this amendment is to give effect to the Council Framework Decision (2008/675/JHA) to make it clear that offences committed anywhere in the European Union can be admitted, and also to put beyond doubt that previous convictions in other countries can be admitted to the same extent as previous convictions of offences committed in England and Wales.

581.     Paragraph 2 amends the Criminal Justice (Evidence) (Northern Ireland) Order 2004 (which makes equivalent provision to sections 103 and 108 of the 2003 Act in respect of Northern Ireland) to the same effect in respect of convictions of offences under the law of a country outside Northern Ireland.

Bail

582.     Paragraph 3 amends section 25 of the Criminal Justice and Public Order Act 1994, (which extends to England and Wales only), which provides that a person charged with homicide or rape who has a previous conviction obtained in the United Kingdom of any such offence or of culpable homicide shall only be granted bail if there are exceptional circumstances which justify it.

583.     The application of section 25 is amended. New subsection (3A) amends the current wording of section 25 to make it clear that the section applies to a person convicted in any part of the UK of an offence specified in subsection (2) (which includes homicide, rape and other sexual offences) or of culpable homicide, and, if that previous conviction was one of manslaughter or culpable homicide, only if that person was then a child or young person and was sentenced to long-term detention under the enactments specified as relevant, or if the person was not then a child or young person, they were sentenced to imprisonment or detention. Under the relevant enactments, only those aged over 21 years of age can be sentenced to imprisonment. Those aged under 21 years can only be sentenced to detention. A child or young person is a person under the age of 18 years.

584.     New subsection (3B) provides that a previous conviction of an offence in another European Union member State which corresponds to a UK offence which would trigger the application of section 25 will cause section 25 to apply. An offence corresponds to a UK offence if it would have constituted that offence if it had been done in the United Kingdom at the time when the offence was committed in the EU member State. As the relevant enactments cannot apply to European Union offences as they only concern domestic situations, the new subsection (3B) uses the term “detention” to cover both what is known in the United Kingdom as “imprisonment” (for offenders aged 21 years and over) and “detention” (for offenders aged under 21), and spells out what amounts to long-term detention under those enactments (detention in excess of 2 years).