1 Draft Criminal Justice and Police
Act 2001 (Amendment) and Police Reform Act 2002 (Modification)
Order 2004: elucidation
Draft Criminal Justice and Police Act 2001 (Amendment)
and Police Reform Act 2002 (Modification) Order 2004
1.1 The Committee draws the special attention
of both Houses to this draft order on the grounds that its purport
requires elucidation.
1.2 Article 2 of the draft order amends the Table
set out in section 1(1) of the Criminal Justice and Police Act
2001. That Table lists a number of statutory provisions creating
criminal offences. The penalty provisions of Chapter 1 of Part
1 of the 2001 Act apply to an offence under any of those provisions,
i.e. a person is offered the opportunity of paying a penalty instead
of being liable to prosecution and conviction for the offence.
1.3 Chapter 1 of Part 1 of the 2001 Act is headed
"On the Spot Penalties for Disorderly Behaviour". Section
1(1) currently lists offences which are triable only summarily
and most of which seemed to the Committee to relate to specific
conduct that might be termed "disorderly behaviour".
Article 2(5) of the draft order adds to the Table section 1 of
the Theft Act 1968 and section 1(1) of the Criminal Damage Act
1971. Offences under section 1 of the 1968 Act may be tried on
indictment (as well as summarily) and there is a maximum penalty
of 7 years' imprisonment. Offences under section 1(1) of the 1971
Act may also be tried on indictment (as well as summarily) and
there is a maximum penalty of 10 years' imprisonment or, if the
offence is committed by destroying or damaging property by fire,
life imprisonment.
1.4 It was far from clear to the Committee that the
inclusion of such offences was, in the light of the Table as originally
enacted, an expected use of the power conferred by section 1(2)
of the 2001 Act to add entries to the Table. So the Home Office
was asked to provide an explanation of whether the offences were
considered to relate to disorderly behaviour and an explanation
of what indication was given to Parliament, when the Criminal
Justice and Police Bill was before it, that the power might be
used to add offences which could be tried on indictment.
1.5 In its memorandum, printed at the Appendix, the
Home Office explain (paragraph 1) their view that the offences
relate to disorderly behaviour where they fall at the lower end
of the severity scale. Nothing in the order limits (or could have
limited) the offences to those at the lower end of the severity
scale. But the Committee accepts that a provision may properly
be added to the list even though not all instances of an offence
under the provision will necessarily involve disorderly behaviour.
The intention is that guidance under section 6 of the 2001 Act
will set out in detail how the offences should be handled and
it appears that particular offences at the lower end of the severity
scale will be those which will be caught.
1.6 The Home Office mentions in its memorandum that
the offence of criminal damage was listed in the Table of penalty
offences when the Criminal Justice and Police Bill was introduced,
but was later removed; and that the question of using the powers
conferred by section 1(2) to reinstate the entry was expressly
mentioned at Commons consideration of Lords amendments. In those
circumstances, the Committee accepts that the current use of the
powers for the purpose of adding offences which could be tried
on indictment is not unexpected. (An amendment made by Article
3 of the draft order ensures that the amount of the penalty is
to be fixed by reference to the maximum fine payable on summary
conviction.) The Committee, nevertheless, reports Article 2(5)
as requiring elucidation, provided by the Home Office in its memorandum.
1.7 The Committee has dealt with this draft order
as a matter of urgency at the request of the relevant Minister
of State at the Home Office. The draft order was laid before Parliament
on Monday 19th July 2004 and the Committee agreed to consider
it at its meeting on 20th July 2004. Though no explanation was
given as to why work on the draft order, or on its associated
regulations, could not have begun sooner, the Home Office wished
to have article 2(7) (which relates to fireworks) in force as
soon as possible. But the consequences of the Government not having
laid a separate draft order for the fireworks provision was to
require the Committee to chose between looking urgently either
at none of the draft, or at all of it, when urgency was pleaded
only for a small part of it. The Committee did not consider this
was satisfactory and a copy of correspondence between the chairman
and the Minister is at Appendix 1.
