Clause 34: Application for variation or discharge of injunction

117.     This clause amends section 42 of the 2009 Act by inserting a provision which prevents a further application to vary or discharge an injunction being made without the consent of the court if a previous application to vary or discharge has been dismissed. This amendment has effect for injunctions granted against adults or against 14-17 year olds.

Clause 35: Powers of court to remand

118.     This clause amends Schedule 5 to the 2009 Act (power of remand) and prevents respondents aged under 18 from being remanded in custody by the courts. This means that they would only be eligible for remand on bail.

Clause 36: Powers of court on breach of injunction by respondent under 18

119.     Clause 36 inserts a new section 46A and a new Schedule 5A into the 2009 Act to enable the courts to make further orders when a person under the age of 18 breaches an injunction. Currently a breach of such an injunction would be dealt with as a contempt of court, but this is often not considered appropriate where the respondent is under 18. Therefore new Schedule 5A provides the court with two new powers for dealing with a breach of an injunction in respect of an individual aged under 18 at the time of breach. These are the power to make a supervision order and the power to make a detention order.

New Schedule 5A: Part 1

120.     Paragraph 1 of new Schedule 5A sets out the circumstances in which the court may make a supervision order or detention order.

121.     Sub-paragraph (1) states that the injunction must have been granted in respect of a person under 18 and that the court must be satisfied beyond reasonable doubt that the respondent is in breach of the injunction. Once the court is so satisfied, it has the power to make a supervision order (see Part 2 of the Schedule) or a detention order (see Part 3).

122.     Sub-paragraph (3) states that these orders are available in addition to the court’s other powers for dealing with a breach of the injunction. For persons under the age of 18, this means a fine could also be imposed as a penalty for contempt of court.

123.     Sub-paragraph (4) sets out that the youth offending team consulted in relation to the grant of the injunction (see clause 33), must be consulted by the applicant before a supervision order or detention order can be made.

124.     Sub-paragraph (6) provides that a detention or supervision order cannot be made where an injunction was granted in respect of a person under the age of 18, but the respondent is aged 18 or over at the time when the court comes to deal with the respondent for breach of the injunction.

125.     Sub-paragraph (7) states that a detention order cannot be made unless the court is of the view that the injunction breach is so severe or so extensive that no other power of the court is appropriate. This includes the court’s powers to impose a fine for contempt of court.

New Schedule 5A: Part 2

126.     Paragraph 2 of new Schedule 5A describes the contents of supervision orders and sets out the issues the court must consider in the making of a supervision order.

127.     Sub-paragraph (1) provides that a supervision order can include supervision, activity, and/or curfew requirements.

128.     Sub-paragraphs (2) to (4) require the court to give consideration to the practicality of the supervision order’s components and to the impact it may have on the defaulter’s family circumstances, religious beliefs, education or work life and any other court order to which the defaulter may be subject.

129.     Sub-paragraphs (5) and (6) require the supervision order to state a maximum period of time for which it can be in operation which must not exceed 6 months.

130.     Sub-paragraphs (7) and (8) make provision for a youth offending team to be specified in the supervision order. This youth offending team will be responsible for administration of the supervision order.

131.     Paragraph 3 of new Schedule 5A sets out what is meant by a supervision requirement. The defaulter may be required to attend appointments with the responsible officer (a position set out in paragraph 7) or another person instructed by the responsible officer.

132.     Paragraph 4 makes provision about activity requirements. Activity requirements can require the defaulter to participate in non-residential activities or in a residential exercise. The defaulter must comply with instructions given by the responsible officer or the person in charge of any specified place or activities.

133.     Sub-paragraph (2) provides that if an activity requirement is specified in the supervision order, it must be for between 12 and 24 days.

134.     Sub-paragraphs (8) and (9) provide that a residential exercise (which will not constitute the totality of an activity requirement) may not be for a period of more than 7 days and cannot be given without the consent of the defaulter’s parent or guardian.

135.     Sub-paragraph (12) provides that the court cannot include an activity requirement within a supervision order unless it is satisfied that the youth offending team specified, or to be specified, in the order has been consulted. It must also be satisfied that it is feasible to secure compliance with the requirement, that the activities are available within the youth offending team area, and that any other persons needed for delivery of the requirement consent to the requirement’s inclusion in the order.

136.     The activity requirement may be amended by the court on application (see sub-paragraphs (11) and (12)).

137.     Paragraph 5 makes provision for the making of curfew requirements. Curfew requirements may specify different places or periods for different days. A curfew may not be for less than two hours or more than eight hours in any day. The curfew requirement may be amended by the court on application (see subparagraph (5)).

138.     Paragraph 6 makes provision for an electronic monitoring requirement which may be made as part of a curfew requirement. An electronic monitoring requirement may be imposed for a period specified in the supervision order, or determined by the responsible officer in accordance with that order.

139.     The court may amend the electronic monitoring requirement on application (see sub-paragraph (7)).

140.     Paragraph 7 defines the “responsible officer” and the duties of that role.

141.     Sub-paragraph (1) provides that in the case of a supervision order which only contains a curfew requirement with an electronic monitoring requirement, the responsible officer will be the person who is responsible for the electronic monitoring; this person will be specified in the supervision order.

142.     In any other case, the responsible officer will be a member of the youth offending team specified in the order.

143.     Sub-paragraph (2) states the two duties of the responsible officer, namely to make any arrangements necessary in connection with the requirements of the order, and to promote the defaulter’s compliance with the order.

144.     Sub-paragraph (4) provides that the defaulter must keep in touch with the responsible officer and notify the responsible officer of any change of address.

145.     Paragraph 8 provides for the amendment of the period for which a supervision order operates.

146.     Paragraph 9 sets out the court’s powers where the defaulter changes their area of residence.

147.     Paragraph 10 provides that either the injunction applicant or the defaulter may apply to the court to have the supervision order revoked or amended to remove a requirement from it. The court may grant the application if it is considered to be in the interests of justice, having had regard to the circumstances which have arisen since the order was made. These circumstances may include the conduct of the defaulter.

148.     Sub-paragraph (4) provides that if an application to revoke, or remove part of, a suspension order is dismissed, no further such application may be made without the consent of the appropriate court.

149.     Paragraph 11 states that when the responsible officer considers that the young person has complied with all the requirements of the supervision order, he must notify the injunction applicant.

150.     Paragraph 12 makes provision about non-compliance with a supervision order.

151.     Sub-paragraphs (1) and (2) place a requirement on the responsible officer to inform the injunction applicant when the young person does not comply with the conditions of the supervision order. Once the applicant authority has been informed they can apply to the appropriate court after consulting as specified in sub-paragraph (3).

152.     Sub-paragraph (4) states that once the court is satisfied beyond reasonable doubt that the defaulter has, without reasonable excuse, failed to comply with any requirement of the supervision order, it can either revoke the supervision order and grant a new one with different requirements or it can revoke the order and make a detention order.

153.     Sub-paragraph (5) and (6) provide that where the person has breached a supervision order after the age of 18, then the court cannot revoke the supervision order and make a new one, nor can it revoke the supervision order and make a detention order. Instead it will treat the person as a person over the age of 18 who is in breach of their injunction. The consequence of this is that the person is liable to be sentenced for contempt of court as an adult; this currently carries a maximum penalty of an unlimited fine and/or two years’ imprisonment (for those aged 21 and over) or two years’ detention (for those aged between 18 and 20).

154.     Paragraph 13 makes provision for copies of orders to be provided to persons affected by them.

New Schedule 5A: Part 3

155.     Paragraph 14 describes a detention order which may be made following breach of an injunction.

156.     Sub-paragraph (1) states that the young person can be detained in youth detention accommodation determined by the Secretary of State. This may be a secure training centre, a young offender institution or local authority secure accommodation (see sub-paragraph (3)). Decisions as to which youth detention accommodation is appropriate in a particular case will be taken jointly by the Secretary of State and by the Youth Justice Board, based upon a range of considerations (see sub-paragraph (4)).

157.     Sub-paragraph (2) states that the period of detention specified in a detention order cannot exceed three months.

158.     Paragraph 15 provides for the revocation of a detention order.

159.     Sub-paragraph (1) states that the injunction applicant or the young person subject to the order can apply to the appropriate court for the revocation of the detention order.

160.     Sub-paragraphs (2) and (3) allow a court to revoke a detention order if subsequent circumstances (including the young person’s conduct) mean it is in the interests of justice to do so.

161.     Sub-paragraph (4) prevents a further application to revoke a detention order being made without the consent of the court if a person’s application to revoke has been dismissed.

162.     Sub-paragraph (5) imposes consultation requirements.

163.     The amendment made by subsection (4) confers an additional function on the Youth Justice Board, namely that of entering into agreements for the provision of accommodation referred to in paragraph 13(3) of the new Schedule 5A.

Anti-social behaviour orders

Clause 37: Report on family circumstances

164.     Anti-social behaviour orders (ASBOs) are designed to prevent individuals from engaging in specific anti-social acts. This clause amends the Crime and Disorder Act 1998 (“the 1998 Act”) under which ASBOs are made.

165.     Subsection (2) inserts new subsection (1C) into section 1 of the 1998 Act. This requires anyone who makes an application for an ASBO to the magistrates’ court under section 1, in relation to a young person under the age of 16, to prepare a report on the young person’s family circumstances in accordance with regulations made by the Secretary of State. It is intended that the regulations will specify certain topics or issues that the report should address, for example levels of family support for the young person.

166.     Subsections (3) and (4) of the clause make consequential amendments as a result of new subsection 1(1C). This includes a requirement that the court must take into account this report when considering whether to make a parenting order under section 9 of the 1998 Act.

Clause 38: Parenting orders on breach

167.     This clause amends the 1998 Act in relation to parenting orders by strengthening the assumption that a parenting order will be made when a young person under the age of 16 is convicted of an offence of breaching an ASBO.

168.     Subsection (3) inserts a new section 8A into the 1998 Act. New section 8A provides that when a young person under the age of 16 is convicted of an offence of breaching an ASBO, the court must make a parenting order unless there are exceptional circumstances.

169.     Section 8A(3) provides that the parenting order must specify the requirements it considers would be desirable in the interests of preventing any repetition of the behaviour that led to the ASBO being made, or the commission of any further offence by the person convicted.

170.     Section 8A(4) provides that if a court does not make a parenting order in reliance on the exceptional circumstances proviso, it must state in open court that it is of that opinion and what the exceptional circumstances are.

171.     Section 8A(5) applies provisions of section 8 of the 1998 Act to parenting orders made under new section 8A. The provisions of section 8 which are applied are:

• Subsection (3) (court not to make parenting order unless arrangements available in local area);

• Subsection (4) (definition of parenting order);

• Subsection (5) (counselling or guidance programme not necessary if there has been a previous parenting order);

• Subsection (7A) (counselling or guidance programme may require parent to attend a residential course).

172.     Section 8A(6) ensures that section 9(3) to section 9(7) of the 1998 Act also apply to parenting orders made under new section 8A. These sections:

• require the court to explain to the parent the effect of the order and the consequences of breaching it;

• specify that, as far as practical, the requirements in the order and directions given under it should not conflict with a parent’s religious beliefs or interfere with a parent’s work or education;

• enable the court to discharge or vary the order;

• make parents convicted of failing to comply with requirements in the parenting order or directions given under the parenting order liable to a fine.

Private security industry

Clause 39: Extension of licensing scheme

173.     Clause 39 amends the Private Security Industry Act 2001 (“the 2001 Act”).

174.     At present the 2001 Act makes provision for the licensing of individuals carrying out security industry activities. The licensing is the responsibility of the Security Industry Authority (“the SIA”) It is an offence under the 2001 Act for an unlicensed individual to engage in any activity for which a licence is required, or to supply an unlicensed individual to engage in such activities. In the case of vehicle immobilisers it is an offence for an occupier of premises to permit an unlicensed individual to engage in vehicle immobilisation on the premises.

175.     The new clause provides for businesses to be licensed by the SIA. At the outset, businesses carrying out vehicle immobilisation activities will require a licence. The purpose is to regulate the activities of such businesses (and particularly, in relation to vehicle immobilisation, such matters as release fees and warning signs).

176.     Clause 39 inserts new sections 4A and 4B into the 2001 Act.

177.     The new section 4A of the 2001 Act introduces a licence requirement in relation to businesses carrying vehicle immobilisation or restriction and removal of vehicles (see subsection (2)(a) and (b)). The Secretary of State may designate other security activities in the future which will require business licensing if they are activities listed in Schedule 2 to the 2001 Act (see subsection (2)(c)). New section 4A creates an offence of engaging in an activity licensable under the section without a licence (see subsection (1)).

178.     Subsection (3) deals with the application of the section to Scotland and requires Scottish Ministers exercising functions of the Secretary of State under new section 4A to consult the Secretary of State.

179.     Subsections (4) to (7) limit the business licence requirement to those responsible for control of, or decisions of, businesses carrying out the licensable activity. This includes sub-contractors, except where the sub-contractor is an individual. Individuals acting as sub-contractors or under the employment or direction of another would not require a business licence (but they would continue to require an individual’s licence).

180.     Subsection (8) provides penalties for the offences in new section 4A, of up to 12 months’ imprisonment or a fine not exceeding the statutory maximum, or both, on summary conviction; and on indictment of imprisonment up to five years or an unlimited fine, or both.

181.     New section 4B sets out exemptions to the requirement for businesses to be licensed under new section 4A. Subsections (1) and (2) enable the Secretary of State to prescribe in regulations the circumstances in which a person need not be licensed where suitable alternative arrangements apply.

182.     Subsection (3) of clause 39 amends section 6 of the 2001 Act (offence of using unlicensed wheel-clampers) to make it an offence for a land-owner to allow an unlicensed business to carry out wheel-clamping on his land. Section 6 of the Act provides the same penalties for offences under that section as those set out in new subsection 4A(8).

183.     Subsection (4) amends section 9 of the 2001 Act, which makes provision about the conditions that may be included in a licence under the Act. The amendments will mean that the new business licences may include a condition that the licensee is a member of a body or scheme nominated by the SIA.

184.     Subsection (5) amends section 19 of the 2001 Act, which sets out the powers of entry and inspection which enable the SIA to inspect premises and documents for the purposes of checking compliance with the Act. These amendments extend these powers to premises on which it appears that activities requiring a business licence are being carried out.

185.     Subsections (6) and (7) insert a new subsection into section 23 of the 2001 Act to deal with the prosecution and punishment of offences committed by unincorporated associations. As explained above, new criminal offences are being created in respect of business licences, and it is anticipated that many licensees will be unincorporated associations.

186.     Subsection (8) introduces the Schedule to the Bill which makes amendments to the 2001 Act which are consequential upon new sections 4A and 4B. In particular, paragraph 15 of the Schedule inserts a new section 23A into the 2001 Act making procedural provision in relation to offences by unincorporated associations.

Clause 40: Extension of approval scheme

187.     Clause 40 amends the 2001 Act to extend the SIA’s Approved Contractor Scheme (to be known as the “Approval Scheme”), provided under section 15 of the Act, to enable in-house private security services to apply for approved status.

188.     The SIA is required under section 14 of the 2001 Act to establish and maintain a register of approved providers of security industry services. The register has to contain particulars of every person who is approved under arrangements which the SIA has to make under section 15 of the 2001 Act. Section 15 provides that approvals must be subject to certain conditions.

189.     The SIA currently carries out its obligations under sections 14 and 15 of the 2001 Act by way of its Approved Contractor Scheme. This is a voluntary scheme, which has been developed in consultation with representatives from the private security industry, under which security providers who satisfactorily meet the agreed standards can obtain approved status. Approved status carries benefits for those contractors who hold it. The amendments made to sections 14 and 15 by clause 40 will enable approved status to be available to businesses which have in-house security arrangements and wish, for example, to establish their quality. As the scheme will no longer apply only to contractors, it is to be renamed the ‘Approval Scheme’

Prison security

Clause 41: Offence of possessing mobile telephone in prison

190.     Clause 41 creates a new criminal offence under the Prison Act 1952 for the possession of a mobile phone (or a component part, or article designed or adapted for use with a mobile phone device), within a prison without authorisation. The punishment for committing this offence is up to two years’ imprisonment (on indictment) or up to 12 months’ imprisonment or a fine (on summary conviction).

Air weapons

Clause 42: Offence of allowing minors access to air weapons

191.     Clause 42 inserts a new section 24ZA into the Firearms Act 1968 (“the 1968 Act”) which makes it an offence for a person in possession of an air weapon to fail to take reasonable precautions to prevent it coming into the hands of a person under 18. The offence does not apply where the person under 18 is permitted by the Act to have the weapon with him, and these circumstances are set out in section 23 of the 1968 Act. For this new offence, it is a defence to show that the person charged believed that the other person was 18 or over and had reasonable grounds for that belief. For a defendant to show these matters, the defendant must adduce sufficient evidence of them and the contrary must not be proved beyond reasonable doubt.

192.     Subsection (3) adds the new offence to the list in section 57(3) of the Firearms Act 1968 which sets out various offences which relate specifically to air weapons.

193.     Subsection (4) makes the offence punishable on summary conviction only with a maximum penalty of a fine at level 3 on the standard scale (currently £1,000).

194.     Subsection (5) amends paragraphs 7 and 8 of Part 2 of Schedule 6 to the 1968 Act, so that these provisions apply in respect of the new offence. Under paragraph 7, the court can order the forfeiture or disposal of the air weapon in respect of which the offence was committed. Under paragraph 8, the court can order the forfeiture or disposal of any firearm found in the possession of the person convicted.

FINANCIAL EFFECTS OF THE BILL

195.     The total costs of the Bill to the public sector (excluding one-off costs) are estimated by the Home Office to be £6.3 million in each of the financial years 2010-2011, 2011-2012 and 2012-2013. The total one-off costs of the Bill to the public sector are estimated by the Home Office to be between £53.2 million and £55.5 million. All the estimated costs, including consequential costs to other departments, will be subject to a number of variables, including take up and use of the provisions; timing of implementation; efficiency savings; and the behaviour of the criminal justice agencies and courts.

196.     Based on the same assumptions, the Home Office has identified that the Bill will result in some consequential financial costs for the Criminal Justice departments and their agencies. The Criminal Justice departments and agencies involved are the Ministry of Justice, Her Majesty’s Court Services (HMCS), Her Majesty’s Prison Service (HMPS) and the National Offenders Management System. The consequential costs are currently estimated by the Home Office and affected departments at £600,000 for each of the financial years 2010-11, 2011-2012 and 2012-2013.

197.     These estimated costs, including consequential costs, will be met from within the existing Home Office and Criminal Justice Departments’ Comprehensive Spending Review 2007 settlements, or existing police authority budgets. The Secretary of State also expects there will be potential efficiency and cost savings and benefits for the Home Office, the police, and local authorities which have not been quantified.

198.     The main financial implications for the Bill for the public sector lie in the following areas: