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Lords Amendment 86

52.     Amendment 86 relates to clause 110(3), which permits the appeal court when acting judicially to propose that the Sentencing Council should consider preparing a new or revised guideline. The amendment would confirm that this new process is not to affect any continuing power that the criminal division of the Court of Appeal has to set out its guidance in relation to the sentencing of offenders in its judgments.

Lords Amendment 87

53.     Amendment 87 relates to clause 111 (sentencing guidelines: duty of court). It would reflect the amendments made by amendments 70, 71, 73 to 75, 77, 79, 81, 82 and 84 to the way in which clause 107(2) to (5) describes how offence specific guidelines are to be structured.

Lords Amendment 88

54.     Amendment 88 also relates to clause 111. The substituted subsections (3) and (4) would address four points relevant to the court’s duty to follow the guidelines subject to the interests of justice exception. If an offence is covered by an offence specific guideline (whether subdivided or not) the court must impose a sentence within the “offence range” as defined in clause 107. If the offence specific guideline is one that is subdivided, the court must decide which category of case most closely describes the case before the court and this determines “the starting point” for calculating the sentence. But a court is not obliged to impose a sentence within the “category range” identified as closest to the offender’s case (as also defined in clause 107). And if the court considers that none of the categories of case sufficiently resembles the case it is dealing with, then the requirement to identify a category, and hence the starting point in the category range, does not apply.

Lords Amendments 89, 90 and 91

55.     These amendments would change the references to the “demand for” prison places in clauses 113, 116 and 118 to “the resources required for the provision of” prison places.

Lords Amendments 93, 94, 116 and 229

56.     Amendment 93 would insert a new clause which would amend section 11 of the Criminal Appeal Act 1968 (“the 1968 Act”) in relation to defence appeals against the making of confiscation orders. If the Court of Appeal allows an appeal and quashes a confiscation order, the amended section would enable the Court to direct the Crown Court to consider whether a new order should be made, and if so what the order should be, instead of the Court of Appeal having to consider the matter itself. Amendment 94 would insert a second new clause which would amend section 10 of the Criminal Appeal (Northern Ireland) Act 1980 to like effect.

57.     The effect of the amendment to section 11 of the 1968 Act would be to give the Court of Appeal the power to remit cases to the Crown Court where a confiscation order made under certain enactments is quashed as a result of a successful appeal by the defence; the relevant enactments are listed in new subsection (3D) inserted into section 11. The Crown Court must comply with any directions given by the Court of Appeal (subsection (3B)) and must ensure that any new order is not more severe than the one that it replaces (subsection (3C)). Amendment 93 would also insert new section 11A into the 1968 Act, which would provide that in making a new order the Crown Court would enable sums already confiscated (and paid over) under the terms of the original order to be set against any sums required to be paid under any replacement order.

58.     The effect of the amendment to section 10 of the Criminal Appeals (Northern Ireland) Act 1980 is similar. However, there is no provision stating that the Court of Appeal must ensure that any new order is not more severe than the one that it replaces. This is because the existing Northern Ireland provision relating to appeals differs from that in England and Wales and does not include such a restriction.

59.     Amendments 116 and 229 would provide that the new arrangements will apply to appeals that are still pending when the Bill is passed.

Lords Amendment 95

60.     This amendment would provide for the affirmative resolution procedure to apply in the event that the order-making power in clause 127 is used to introduce regulations that create new criminal offences with penalties in excess of the limitations set out in the European Communities Act 1972. The amendment arises from a recommendation by the Delegated Powers and Regulatory Reform Committee in their report on the Coroners and Justice Bill (7th Report, session 2008-09).

Lords Amendments 96 and 97

61.     These amendments would ensure that regulations made under paragraph 5A(5) of Schedule 3 to the Justice (Northern Ireland) Act 2004, as inserted by clause 131, are subject to the negative resolution procedure.

Lords Amendments 98, 120 and 244

62.     These amendments would provide for the regulation of damages-based agreements in respect of claims relating to employment matters. A “damages-based agreement" is an agreement under which a person provided with legal services in relation to a claim agrees to pay an amount for those services which is calculated by reference to the amount the person recovers as a result of the claim. Damages-based agreements cannot be used in court proceedings but are commonly used by solicitors and claims managers in cases before an employment tribunal. Amendment 98 inserts a new clause which would provide that agreements relating to employment matters which satisfy certain conditions prescribed by the Lord Chancellor are not unenforceable. Those damages-based agreements relating to employment matters which do not satisfy the prescribed conditions would be unenforceable. Amendment 120 would provide for the new clause to come into force on Royal Assent. Amendment 245 would make a necessary change to the Bill’s long title.

Lords Amendments 99 to 102 and 104

63.     These amendments relate to the criminal memoirs provisions in Part 7 of the Bill. Amendment 99 would narrow the definition of a “relevant offence” in clause 142 so that the scheme in Part 7 only applies to respondents who exploit material relating to the most serious offences, namely offences that can be tried only on indictment and equivalent foreign offences. Amendments 100 and 101 would make equivalent changes to the definition of “relevant offence” in respect of UK service offences and foreign service offences. Amendment 102 would amend the list of factors in clause 145(3) which a court must take into account when determining whether to make an exploitation proceeds order and the amount of the order. It would remove the reference to the extent to which the general public is offended by the respondent obtaining exploitation proceeds from the relevant offence. Amendment 104 would amend clause 149 (effect of conviction being quashed etc) and would be consequent to the amendments to the definition of “relevant offence” in amendments 99 to 101.

Lords Amendment 103

64.     Amendment 103 would add forfeiture orders under section 23A of the Terrorism Act 2000 (the 2000 Act) to the list of orders and notices at clause 147(3). The clause explains when property is “free” for the purpose of determining the value of the respondent’s assets. The value of a respondent’s assets is the total value of all the free property held by the respondent minus any amount he or she already owes in pursuance of other legal obligations that have priority. Under clause 147(3) property is “free” unless certain types of orders or notices are in force in respect of the property. As initially drafted, clause 147(3) includes forfeiture orders made under sections 23 and 111 of the Terrorism Act 2000 within the list of orders and notices. However, the Counter-Terrorism Act 2008 amended the 2000 Act to include a new section 23A in respect of forfeiture orders. Amendment 103 would therefore ensure that the change introduced by the 2008 Act is reflected in the list in clause 147(3). The practical effect is that, when calculating the value of a respondent’s assets, the court will not take into account any of the offender’s assets that are already subject to a forfeiture order under section 23A of the 2000 Act.

Lords Amendments 105, 106 and 180

65.     These amendments would add a new order-making power to new section 41A(2) of the Data Protection Act 1998 to allow the Secretary of State to designate any description of data controller as liable for an assessment notice and amend section 67 of that Act to provide that the order-making power would be subject to the affirmative resolution procedure.

Lords Amendments 107 to 110 and 179

66.     Amendment 108 would make four substantive changes to the assessment notice regime provided for in clause 156. First, it would oblige the Secretary of State to consider, at least every five years, whether it is still appropriate for a public authority, and necessary for a description of data controller, to be subject to assessment notices. Second, the amendment would provide that the Secretary of State must not designate a description of data controller as liable for assessment notices without a recommendation from the Information Commissioner. Third, it would provide that before making an order to designate a description of data controller the Secretary of State must consult such persons as appear to him to represent the interests of persons of that description and such other persons as he or she considers appropriate. Finally, the amendment would set out the test that must be applied by the Information Commissioner when deciding whether to make a recommendation, and the Secretary of State when deciding whether to make an order to designate a description of data controller. They must be satisfied that designation is necessary having regard to the nature and quantity of data under the control of such persons, and the damage or distress which may be caused by a contravention by such persons of the data protection principles.

67.     Amendments 107, 109, 110 and 179 are consequential upon amendment 108. Amendment 179 would be consequential on the creation of new section 41AB by amendment 110. Amendment 110 would also introduce an exemption from liability for assessment notices for judges.

Lords Amendments 112 and 127 to 129

68.     Amendments 127, 128 and 129 would amend paragraph 3 of Schedule 1, which requires a senior coroner to suspend an investigation into a person’s death if requested to do so by the Lord Chancellor on the ground that the death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005. The amendment would require the inquiry under the Inquiries Act 2005 to be chaired by a High Court judge or more senior judge. The amendment would also require that where a coroner’s investigation is suspended for an inquiry, the terms of reference of the inquiry must include the matters set out in section 5(1) read with section 5(2) where applicable (i.e. who the deceased was, and how, where, when they came by their death, and, where relevant, in what circumstances they came by their death). Amendment 112 is a consequential amendment to the extent clause.

Lords Amendment 137

69.     Paragraph 6 of Schedule 4 provides that where a senior coroner who has been conducting an investigation into a death believes that there is a risk of other deaths occurring, and that action should be taken to prevent the occurrence or continuation of the circumstances that led to the death in question, the coroner may report the matter to a person who he or she believes may have power to take such action.

70.     Amendment 137 would strengthen this power by amending paragraph 6(1) of Schedule 4, so that, if a coroner believes a person or organisation should take action to prevent a future death, the coroner must (rather than may) report the matter to that person or organisation.

Lords Amendments 145 and 149

71.     Paragraph 9 of Schedule 6 provides for regulations on reimbursing or meeting expenses. These amendments would clarify that regulations under paragraph 9 can include provision to indemnify all coroners, including the Chief Coroner and the Coroner for Treasure, in relation to legal proceedings. When judges, or former judges, or former coroners are appointed to lead particular investigations, they too would be similarly indemnified under these amendments.

Lords Amendments 153 and 157

72.     Amendment 153 relates to Schedule 13 (The Sentencing Council for England and Wales). It is consequential upon amendment 157 which would provide that the Lord Chief Justice is to have the title of President of the Sentencing Council for England and Wales albeit not a member of the Council. Amendment 153 makes it clear that that references to “the Council” in the Bill do not include the President.

Lords Amendments 154 and 158

73.     Amendment 154 would amend paragraph 2 of Schedule 13 to provide that the person to be appointed to chair the Sentencing Council in the absence of the chairing member is also to be one of the judicial members. Amendment 158 would amend paragraph 8 of the Schedule to reflect the amendment made by Amendment 154.

Lords Amendment 155

74.     Amendment 155 would alter the requirements in Schedule 13 as to the judicial membership of the Sentencing Council. Whilst still referring to members being drawn from the Court of Appeal, High Court, Circuit bench, District Judge (Magistrates’ Court) and lay justices, the Schedule as amended would only specify that there should be at least one Circuit judge, one District Judge (Magistrates’ Courts) and one lay justice.

Lords Amendment 156

75.     Amendment 156 to paragraph 4 of Schedule 13 would add the rehabilitation of offenders to the areas of experience relevant to eligibility for appointment as a non-judicial member of the Sentencing Council.

Lords Amendments 159 to 174 and 203 to 213

76.     Schedule 14 to the Bill covers cases in which an offender gets both a driving disqualification and a custodial sentence for the same offence (e.g. causing death by dangerous driving). The Schedule as amended would also deal with offenders who are disqualified at the same time as they are imprisoned for another offence or at a time when they are already serving a custodial sentence.

77.     In respect of these offenders, the court would be required to have regard to the diminished effect of disqualification as a distinct punishment where the person who is disqualified is also imprisoned. It would have to have regard to that consideration if, and to the extent that, it is appropriate to do so. So, for example, the more that the beginning of a driving ban overlaps with the end of a period of detention under an earlier sentence, the more a court might extend the ban to compensate for the diminished effect during the overlap.

78.     Each of amendments 159, 161, 165, 168, 170, 172 and 174 would insert provision in similar terms alongside the sentencing powers applicable to courts in different parts of the United Kingdom to impose driving disqualifications.

79.     Amendment 159 would include provision providing for an appropriate extension period to be added to a period of disqualification imposed under Article 8 of the Criminal Justice (Northern Ireland) Order 1980. This would correct an inadvertent omission from the current Schedule 14.

80.     Amendments 160, 162 to 164, 166 to 167, 169, 171, 173, 203 to 213 would make consequential amendments resulting from the above amendments and would make other changes to ensure the provisions work as intended.

Lords Amendments 178 and 241

81.     These amendments would insert an amendment to section 20 of the Data Protection Act 1998 to allow regulations to be made requiring data controllers to notify the Information Commissioner of any changes to their registrable particulars for the purpose of ensuring that the correct annual notification fee is paid.

Lords Amendments 181, 182, 183 and 184

82.     These amendments would give a judge the power to grant a warrant to the Information Commissioner on the grounds that a data controller has failed to comply with the requirements of an assessment notice. The test for granting a warrant would not be dependent on the Information Commissioner satisfying the judge that evidence is to be found on the premises which are to be searched.

Lords Amendment 185

83.     This amendment would make provision for the Registrar General, with the approval of the Minister, to prescribe short death certificates. The certificate would need to be compiled from the records held by the Registrar General or by a local registrar or superintendent registrar and could be issued on payment of the prescribed fee. This would allow bereaved relatives to obtain a short death certificate which omits the cause of death.

Lords Amendments 198 and 238

84.     Amendments 198 and 238 would amend Schedule 21 to the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence) consequential upon abolishing the partial defence to murder of provocation and its replacement by the loss of control partial defence as provided for in clauses 44 and 46.

Lords Amendments 200, 201 and 202

85.     These amendments would refine the provision made for cases where a single judge of an appeal court makes, varies or discharges a witness anonymity order. Amendments 200 to 202 would change the position affecting the Court of Appeal in England and Wales, the Court of Appeal in Northern Ireland and the Court Martial Appeal Court. Amendment 202 would also ensure that a judge in Northern Ireland would not deal with such an application where he or she had been the judge in the proceedings appealed from.

Lords Amendments 214 and 242

86.     These amendments would make minor amendments to the Criminal Justice and Immigration Act 2008 to change the date that a Youth Rehabilitation Order comes into effect to the day that it is made, unless the court specifies a later date.

Lords Amendment 215

87.     This amendment would make transitional provision in respect of the appointment of senior and assistant coroners when an order made under paragraph 2 of Schedule 2 creates a new coroner area which consists of or includes some or all of an existing coroner area. Schedule 2 provides for the Lord Chancellor to alter coroner areas, including combining one area with another, by order. The aim is over time to move towards larger coroner areas that will support full time coroners; the Government would envisage this happening when a coroner steps down from office. In such cases it is possible that the remaining coroner for one of the areas affected would want to become coroner for the new area.

88.     Schedule 3 provides that senior, area or assistant coroners must be under 70 and have been suitably legally qualified for at least 5 years. This amendment would provide that even if a person does not meet these eligibility criteria they may still become a senior coroner or assistant coroner for the new area provided they were deemed appointed as such for the old area and they held that office immediately before the new area came into being.

89.     In practice, the effect of these amendments would be to enable around 4 coroners, plus a small number of deputy and assistant deputy coroners, who are medically rather than legally qualified and/or over 70, and who will be treated as appointed on implementation of Part 1 of the Bill, to become senior coroners or assistant coroners if their areas are altered by an order under Schedule 2.

Lords Amendments 220, 223 and 224

90.     Amendments 220 and 224 would enable investigation anonymity orders and witness anonymity orders to be available in cases involving infractions of old service offences. The Armed Forces Act 2006 replaces the previous service offences with a new range of such offences but a number of the old offences will continue to be investigated and prosecuted after the Bill comes into force. Amendment 223 would ensure that where a witness anonymity order is made by an old style service court under the Criminal Evidence (Witness Anonymity) Act 2008, the new service courts provided for by the Armed Forces Act 2006 will be able to discharge or vary it.

Lords Amendments 221, 222, 225 to 228, 230 to 232

91.     These amendments would make minor changes to the transitional, transistory and saving provisions in Schedule 20.

Lords Amendment 243

92.     Clauses 14 and 15 of the Bill allow the deaths abroad of service personnel to be investigated in Scotland. Amendment 243 would make a necessary change to the Bill’s long title.

FINANCIAL EFFECTS OF THE LORDS AMENDMENTS

93.     The National Medical Examiner (amendment 12) would result in annual running costs of around £200,000.

94.     The Coroner for Treasure (amendment 14) and his or her office would result in annual running costs of around £324,000.

95.     The establishment of an Independent Commissioner for Terrorist Suspects (amendment 66) would result in costs of around £250,000 per annum.

96.     The extension of the circumstances in which legal aid may be provided for inquests (amendment 54) would result in annual costs of around £1.5 million.

97.     Amendment 185 would enable the fee for a short death certificate to be prescribed by regulations. Any such fee would be set at the level necessary to recover the costs of such a certificate.

 
 
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Prepared: 6 November 2009