CRIME AND DISORDER
BILL [HL]
Memorandum by the
Home Office
Introduction
This Memorandum, which is provided
by the Home Office in consultation with the Northern Ireland Office
and the Scottish Office, sets out the delegated powers conferred
by the Crime and Disorder Bill and indicates in each case the
Parliamentary procedure, if any, which is considered appropriate.
Clause 3
Clause 3(1)(d) provides that
a sex offender for the purposes of clauses 2 and 3 includes a
person who has been punished outside the United Kingdom for an
act which would have constituted a sexual offence had it been
done in any part of the United Kingdom, provided that the act
in question constituted an offence under the law in force in the
country or territory where he was so punished.
Clause 3(6) states that the above
proviso shall be taken to be satisfied unless the defendant serves
on the prosecution a notice requiring it to prove the matter not
later than a date to be prescribed by rules of court.
The proceedings in question will
be in the magistrates' court: see clause 2(2). The power to
make rules of court for magistrates' courts in England and Wales
is set out in section 144 of the Magistrates' Courts Act 1980.
Rules are made by the Magistrates' Courts Rules Committee described
in that section. The power to make the rules is exercisable by
statutory instrument and subject to the negative resolution
procedure, see section 144(4) of the 1980 Act.
Clause 5
Subsection (2) imposes a duty
on specified persons and bodies to co-operate with the responsible
authorities under clause 5 in exercising the functions conferred
by clause 6.
Paragraph (c) of that subsection
requires every person or body of a description specified by the
Secretary of State by order to co-operate as set out above.
By clause 90 the order-making
power under clause 5(2)(c) is exercisable by statutory instrument
and subject to the negative resolution procedure. There
is power to make transitional provisions.
Subsection (3) provides that
the responsible authorities shall invite the participation in
their exercise of the functions conferred by clause 6 of at least
one person or body of each description prescribed by the Secretary
of State by order.
By clause 90 the order-making
power under clause 5(3) is exercisable by statutory instrument
and subject to the negative resolution procedure. There
is power to make transitional provisions.
Clause 10
Clause 10 provides for appeals
against the making of parenting orders. Subsection (6) enables
the Lord Chancellor by order to make provision as to the circumstances
in which appeals to the High Court against the making of a parenting
order under clause 8(1)(a) (where a child safety order is made
in respect of a child) may be made against decisions taken in
connection with the transfer of proceedings under Schedule 11
to the Children Act 1989.
By clause 90 the order making
power in clause 10(6) (which is applied by clause 13(3) for the
purposes of appeals to the High Court against the making of a
child safety order) is exercisable by statutory instrument and
subject to the negative resolution procedure. There is
power to make transitional provisions.
The provision in clause 10(6)
replicates that in section 94(10) of the Children Act 1989, which
enables the Lord Chancellor to make similar provision by order
made by statutory instrument, subject to negative resolution
procedure, in relation to appeals against transfer decisions
in other family proceedings under the 1989 Act. Without such
provision there is no right of appeal against an order transferring
family proceedings from one court to another under Schedule 11
to the 1989 Act.
Clause 29
Clause 29 imposes a duty on local
authorities, in co-operation with other bodies, to provide youth
justice services. Subsection (4) enables the Secretary of State
by order to amend subsection (3) so as to extend, restrict or
otherwise alter the definition of "youth justice services"
for the time being specified in that subsection.
By clause 90, the order making
power under clause 29(4) is exercisable by statutory instrument
and subject to the affirmative resolution procedure. There
is power to make transitional provisions.
The definition of "youth
justice services" applies for the purposes of clauses 29
to 32. Currently it includes a range of services relating to children
and young persons involved in criminal investigations and proceedings
and subject to community orders or supervision after release from
a custodial sentence. In the light of experience, it may be necessary
to add other services, or remove or alter the references to services
specified in the definition. As this would amend primary legislation,
and potentially increase the burden on local authorities and other
bodies, the affirmative resolution procedure is considered
appropriate.
Clause 32
Clause 32 establishes the Youth
Justice Board for England and Wales. Subsection (5) confers certain
functions on the Board. Subsection (6) enables the Secretary
of State by order to amend subsection (5) so as to extend, restrict
or otherwise alter any of the functions for the time being specified
in that subsection or provide that any function of his in relation
to the youth justice system is exercisable concurrently with the
Board.
By clause 90, the order-making
power in clause 32(6) is exercisable by statutory instrument and
subject to the affirmative resolution procedure. There
is power to make transitional provisions.
The functions specified in clause
32(5) cover monitoring and advising the Secretary of State on
the operation of the youth justice system, obtaining and publishing
information for that purpose and promoting good practice. In
the light of experience it may prove necessary to amend the functions
or to assign to the Board a role in relation to an existing function
of the Secretary of State. As this would involve amendment of
primary legislation and might increase the expenses of the Board
or the burden on local authorities and other bodies, the affirmative
resolution procedure is considered appropriate.
Clause 34
Subsection (1) amends section
22(2) of the Prosecution of Offences Act 1985 so as to enable
regulations as to time limits in criminal proceedings made by
the Secretary of State under that section to apply only in relation
to proceedings of or against persons of specified classes or descriptions,
and to make different provision with respect to such proceedings,
as well as to apply only, or to make different provision in respect
of, proceedings instituted in specified areas.
By section 29 of the 1985 Act,
the power to make such regulations is exercisable by statutory
instrument and subject to the negative resolution procedure.
Clause 35
Clause 35 inserts a new section
22A in the Prosecution of Offences Act 1985. Subsection (1) of
section 22A enables the Secretary of State to make regulations
providing for additional time limits for persons under 18, in
respect of the initial stage (from arrest to the date fixed for
the person's first court appearance) and of the period from conviction
to sentence.
By section 29 of the 1985 Act,
the power to make regulations under section 22A(1) is exercisable
by statutory instrument and subject to the negative resolution
procedure.
Clause 40
Clause 40 provides for certain
powers of magistrates' courts to be exercisable by single justices.
Subsection (2) extends the power in section 144 of the Magistrates'
Courts Act 1980 to enable rules made under that section by the
Lord Chancellor to provide that any of the things authorised by
subsection (1) of clause 40 to be done by a single justice for
any area may, subject to restrictions specified in the rules,
be done by a justices' clerk for that area and to make different
provision for different areas. Subjection (3) requires the Lord
Chancellor to consult the justices and justices' clerks for any
area in relation to which he proposes to make rules by virtue
of subsection (2).
By section 144(4) of the Magistrates'
Courts Act 1980, the power to make rules under that section (including
rules made by virtue of clause 40(2)) is exercisable by statutory
instrument and subject to the negative resolution procedure.
Clause 43 and Schedule 2
Clause 43 makes provision supplementing
clause 42 (indictable-only offences). Subsection (6) introduces
Schedule 2. Paragraph 1 of Schedule 2 requires the Attorney General
to make regulations providing for the service on the defendant
of copies of documents containing evidence on which any charge
against him for which he is sent for trial under clause 42 is
based.
By clause 90 the power to make
regulations under paragraph 1 is exercisable by statutory instrument
and subject to the negative resolution procedure. There
is power to make transitional provisions.
The provision in paragraph 1
is similar to provisions in the Criminal Justice Acts 1987 and
1991 relating to transfer for trial of certain cases of fraud
or cases involving children. The procedure applicable is also
similar.
Paragraph 2(7) enables Crown
Court rules to make provision for the purposes of the paragraph
and, in particular, as to the time when anything is to be done
or as to the contents of notices and persons on whom they are
to be served or as to the manner of submitting evidence. By section
84(8) of the Supreme Court Act 1981 Crown Court Rules are made
by statutory instrument and subject to the negative resolution
procedure.
Clause 46
By subsection (4)(b) the length
of an extension period in the term of an extended sentence under
clause 46 should not exceed five years in the case of a violent
offence.
By subsection (7), the Secretary
of State may amend that provision by substituting a different
period, not exceeding ten years, for the period for the time being
specified in subsection (4)(b).
By clause 90 the order making
power under clause 46(7) is exercisable by statutory instrument
and subject to the affirmative resolution procedure. There
is power to make transitional provisions.
Clause 48
By subsection (2) the court may
make a drug treatment and testing order which has effect for a
period specified in the order of not less than six months nor
more than three years.
Subsection (7) confers power
on the Secretary of State to substitute different minimum and
maximum periods under subsection (2) by order.
By clause 90 the order making
power under clause 48(7) is exercisable by statutory instrument
and subject to the affirmative resolution procedure. There
is power to make transitional provisions.
Clause 60
Clause 60 provides for a new
custodial sentence for children and young persons, the detention
and training order, the making of which is subject to specified
conditions. Subsection (2)(b) imposes additional conditions for
making a detention and training order in the case of persons under
the age of 12 at the time of conviction. The condition in paragraph
(b)(ii) is that the offence was committed on or after a date appointed
by the Secretary of State by order.
By clause 90, the order-making
power in clause 50(2)(b)(ii) is exercisable by statutory instrument
and there is power to make transitional provision. It is not
subject to any Parliamentary procedure, because it is a power
to appoint a day for the purposes of clause 60(2) and is similar
to a commencement order.
Clause 63
Clause 63 makes provision for
the period of supervision of an offender subject to a detention
and training order. Subsection (1) provides that, subject to
subsection (2), the period begins on the date of release and ends
when the term of the order ends. By subsection (2) the Secretary
of State may by order provide that the period is to end at such
point during the term of a detention and training order as may
be specified in the order under that subsection.
By clause 90 the order-making
power is exercisable by statutory instrument and subject to the
affirmative resolution procedure. There is power to make
transitional provision.
The power to shorten the period
of post-release supervision (which would otherwise, in most cases,
be half the term of the detention and training order) is considered
necessary to take account of experience or changing circumstances.
The affirmative resolution procedure is considered appropriate
as the order would amend primary legislation and have an impact
on the length of supervision under the detention and training
order.
Clause 70 - Extended
sentences for sex and violent offenders
Provision
Subsection (6) of the new Section
210A of Criminal Procedure (Scotland) Act 1995 inserted by Clause
70(1) of the Crime and Disorder Bill gives the Secretary of State
an order making power.
Purpose
Clause 70 (1) introduces a new
Section 210A to the Criminal Procedure (Scotland) Act 1995 to
enable courts to pass extended sentences on violent or sexual
offenders where it is necessary to do so to protect the public
from serious harm from the offender on his release from custody.
The maximum duration of extended supervision provided by S. 210A(3)
is 10 years for a sexual offence (S. 210A(3)(a)) and 5 years for
a violent offence (S. 210A(3)(b)).
S. 210A(6) gives the Secretary
of State delegated powers to substitute a different time period
of up to 10 years for violent offences ((S. 210A(3)(b)) and to
make any necessary transitional arrangements. S 210A(7) provides
for this power to be exercised by statutory instrument subject
to affirmative resolution.
Reason for delegated legislation
The principle behind the extended
supervision provisions is that in some cases sexual and violent
offenders should be supervised for much longer periods following
release than the law allows at present.
It is recognised that violent
offenders' behaviour patterns are less entrenched and more likely
to improve over time as they mature than sex offenders. It is
considered unlikely, therefore, that a 10 year maximum period
of extended supervision in addition to their existing period on
licence would be justified in the same way as for sex offenders.
For this reason it is intended that the maximum period for violent
offenders should be set at 5 years, but with the option to increase
this to 10 years should it prove necessary to do so in the light
of experience. To achieve this flexibility, the Bill proposes
that the Secretary of State should have the power to amend the
period to a maximum of 10 years.
Procedure
Section 210A(7) provides that
the order making power in subsection (6) of clause 70 shall be
exercisable by statutory instrument, including a power to make
whatever transitional arrangements as appear necessary in connection
with an amendment to subsection (6), and will be subject to the
affirmative resolution procedure. This is appropriate because
any change made by such an order would affect the period for which
offenders may be subject to post-release supervision.
Clause 72 - Drug Treatment
and Testing Orders
Provision
Clause 72 inserts a new
section 234B into the Criminal Procedure (Scotland) Act 1995.
The new section 234B(6) contains a power for the Secretary
of State, by order, to amend subsection 2(a) of section 234B.
Purpose
The purpose of the order making
power in new section 234B(6)(a) is to change the minimum
and maximum periods during which our Drug Treatment and Testing
Order could be in force. It also provides for transitional arrangements.
Reason for delegated legislation
This is a common provision in
legislation dealing with the length of non-custodial criminal
disposal orders. The length of these orders is fixed according
to current needs but the power to amend by order allows some flexibility
in the event of changing circumstances without recourse to primary
legislation.
Procedure
The order is exercisable by statutory
instrument subject to affirmative resolution of each House of
Parliament. This is in recognition that changes to the length
of the sentence would affect individual liberty.
Clause 80
Clause 80 amends section 23 of
the Children and Young Persons Act 1969. In subsection (5) of
that section (which enables a court, subject to specified conditions,
to remand a child or young person to local authority accommodation
with a requirement that he be placed and kept in secure accommodation)
clause 80(1) substitutes for the condition that the person must
have reached the age of fifteen, a condition that he must be a
child of at least 12, or a young person, who is in either case
of a prescribed description. Clause 80(2) inserts in subsection
(12) of section 23 a definition of "prescribed description",
that is to say, a description prescribed by reference to age or
sex or both by an order of the Secretary of State.
By section 69 of the 1969 Act
the order-making power in section 23(12) of that Act, as inserted
by clause 80(2), is exercisable by statutory instrument and subject
to the negative resolution procedure. There is power to
make different provision for different circumstances and to make
incidental or supplemental provisions.
The order-making power is considered
necessary to enable the security requirement provisions in section
23 (which are not yet in force) to be implemented in stages.
It replaces provision in section 20 of the Criminal Justice and
Public Order Act 1994 (which is repealed by clause 80(3)), but
enables implementation to be more flexible.
Clause 82
Clause 82 inserts a new section
34A into the Criminal Justice Act 1991. By subsection (4) of
that section, the requisite period to be served by a prisoner
before he becomes eligible for release on licence under that section
is defined. It provides for a period of 60 days less than half
of the term of the sentence in question, and shorter periods for
sentences of between three and eight months.
Subsection (5) confers powers
on the Secretary of State to amend by order the definition of
the requisite period under subsection (4). This is to enable
the Secretary of State to alter the period in the light of experience
of the home detention curfew scheme, without the need for amending
primary legislation. For example, a shorter or longer period
on home detention curfew could be shown to have a beneficial effect
on recidivism. Subsection (4) also confers powers to make transitional
provisions in such an order.
The order making power is exercisable
by statutory instrument and, by subsection (5), is subject to
the affirmative resolution procedure.
Clause 83
Subsection (1) introduces a new
section 37A into the Criminal Justice Act 1991. Subsection (4)
provides that the curfew condition included in a licence under
section 34A of that Act shall include provision for making a person
responsible for monitoring the whereabouts of the licensee during
the periods specified in the condition.
Subsection (4) further provides
that the person who is made so responsible shall be of a description
specified in an order made by the Secretary of State.
The order making power is exercisable
by statutory instrument and includes power to make different provision
for different cases or classes of case. As with the similar power
to specify a responsible person in respect of a curfew order under
section 12 of the 1991 Act, the power is not subject to Parliamentary
procedure. Compare section 30(2) of that Act.
Clause 88
Subsection (3) inserts a new
subsection (7A) into section 9 of the Crime (Sentences) Act 1997.
This is consequential upon the repeal by clause 88(2) of section
27(5) of that Act which provided inter alia that rules
made under section 9(4)(a) may make such incidental, supplemental
and consequential provisions as may appear to the Secretary of
State to be necessary or expedient. The new subsection (7A) simply
replicates the repealed provision in so far as it applies to rules
made under section 9(4)(a).
(Section 9(4)(a) enables the
Secretary of State to make rules to qualify the requirement in
subsection (3) of that section upon a sentencing court to direct
that the number of days for which the offender was remanded in
custody in connection with the offence or a related offence shall
count as time served by him as part of the sentence. The qualifying
power in subsection (4)(a) applies in the case of a remand in
custody which is concurrent with a sentence of imprisonment or
in the case of sentences of imprisonment for consecutive or concurrent
terms. The power is made subject to the affirmative resolution
procedure by section 9(7)).
Clause 91
Clause 91 contains transitory
provisions in relation to sections 1 and 4 of the Criminal Justice
and Public Order Act 1994, which are repealed by clause 60(7).
Subsection (1) enables the Secretary of State by order to provide
that in relation to any time before the commencement of clause
60 a court shall not make a secure training order under section
1, or an order that a person be detained in a secure training
centre for breach of supervision requirements under section 4,
of the 1994 Act unless it has been notified by the Secretary of
State that accommodation at a secure training centre, or at local
authority secure accommodation, is immediately available for the
offender and the notice has not been withdrawn.
Subsection (2) provides that
an order under clause 91 may also provide that sections 2 and
4 of the 1994 Act shall have effect, in relation to any time before
the commencement of clause 60, subject to specified modifications.
By clause 90, the order-making power in clause 91 is exercisable
by statutory instrument and may contain transitional provisions.
It is not subject to any Parliamentary procedure because the
power is transitory, pending commencement of clause 60 and the
introduction of the detention and training order which will replace
secure training orders.
The order-making power is considered
necessary to enable the Secretary of State to control demand for
places in secure training centres. It is anticipated that when
the power under section 1 of the 1994 Act to make secure training
orders is brought into force only one secure training centre will
be available, with 40 places. The power to restrict the making
of a secure training order according to availability of places
will only be exercised if demand exceeds supply. The modifications
specified in clause 91(2) limit the power of courts to commit
an offender subject to a secure training order to accommodation
other than a secure training centre so that only secure local
authority accommodation can be specified in the warrant of commitment
if no place in a secure training centre is immediately available.
Clause 93
Clause 93 provides that an Order
in Council under paragraph 1(1)(b) of Schedule 1 to the Northern
Ireland Act 1974 which is made only for purposes corresponding
to those of clauses 2 to 4 (sex offender orders), 27 (abolition
of presumption of doli incapax), 38(2) (youth court adjournments),
45 (live TV links at remand hearings), 48 to 51 (drug treatment
and testing orders) and 69 (interpretation) is to be subject to
negative resolution procedure instead of affirmative resolution
procedure.
Clause 96
Subsection (2) provides that,
with the exception of clause 96 itself, the Bill is to come into
force on such day as the Secretary of State may by order appoint;
different days may be appointed for different purposes or areas.
By clause 90, the order-making
power in clause 96(2) is exercisable by statutory instrument and
transitional provision may be made. The power is not subject
to any Parliamentary procedure, in common with most commencement
order-making powers.
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