House of Lords - Explanatory Note
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Clause 260: Duty to release certain life prisoners

566.     Clause 260 deals with the release of mandatory life prisoners. In accordance with the ruling of the European Court of Human Rights in the case of Stafford this provision brings the arrangements for the release of mandatory life prisoners into line with those for discretionary life prisoners under section 28 of the Crime (Sentences) Act 1997. The amendments ensure that, like discretionary life sentence prisoners, a mandatory life sentence prisoner will be able to require the Secretary of State to refer his case to the Parole Board once he has served his minimum term. Once a case is referred to it the Parole Board decides whether a prisoner is to be released and may direct his release only if it is satisfied that the prisoner's continued detention is no longer necessary for the protection of the public. The Secretary of State is then under a duty to release the prisoner on a life licence.

Clause 261: Mandatory life sentences : transitional cases

567.     This clause introduces Schedule 18 dealing with existing life sentence prisoners. This Schedule is explained below.

Chapter 8: Other Provisions about sentencing

Clause 263: Deferment of Sentence

568.     This clause introduces Schedule 19, which deals with deferred sentences.

Clause 264: Inclusion of drug treatment requirement in action plan order or supervision order

569.     This clause introduces Schedule 20, which enables a requirement as to drug treatment and testing to be included in an action plan order or a supervision order.

570.     The action plan order is a community sentence, which is available where a child or young person aged between 10 and 17 years old is convicted of any offence for which the sentence is not fixed by law. The order lasts for a period of three months and provides a short but intensive and individually tailored programme of intervention designed to address the young person's offending behaviour and associated risk factors. The court may attach a range of requirements such as offending behaviour work, education and reparation.

571.     The supervision order is a community sentence available for a child or young person aged between 10 and 17 years old. The duration of the order may range from a minimum of six months to a maximum of three years. A range of requirements may be attached to the supervision order such as residence, reparation, night restrictions and activities specified by a youth offending team.

     Clause 265: Alteration of penalties for summary offences

572.     This clause is consequential on the changes in the structure of short sentences which this Bill introduces and the corresponding increase in magistrates' sentencing powers. It introduces Schedules 21 and 22, which make changes to the maximum penalties for summary only offences that previously carried a maximum penalty of less than 12 months. These offences are either to have the maximum penalty lowered so that they are no longer punishable with imprisonment (see Schedule 21) or raised to 51 weeks imprisonment so that they may be punishable with a sentence of imprisonment of less than 12 months (see Schedule 22).

     Clause 266: Alteration of penalties for other summary offences

573.     This clause provides for the alteration of penalties for certain summary offences. Subsections (1) to (3) enable the Secretary of State to amend by order the maximum penalties for summary only offences currently carrying a maximum custodial penalty of five months or less. Under subsection (1) such amendments may be made only in relation to offences which are not listed in Schedule 21 or 22 and are contained either in an Act passed before or in the same Session as this Bill, or any subordinate legislation made before the passing of this Bill. In such cases the Secretary of State may (by order) either remove imprisonment as a penalty for the offence or raise the maximum penalty for the offence to 51 weeks imprisonment. Subsections (4) and (5) provide for all summary offences contained in Acts passed before or in the same Session as this Bill with a maximum penalty of six months imprisonment to have this maximum penalty raised automatically to 51 weeks. Subsection (6) sets out that any alteration of penalties made under this clause may not affect the penalty for any offence committed before the commencement of this section.

     Clause 267: Increase in maximum term that may be imposed on summary conviction of offence triable either way

574.     This clause provides for an increase in the maximum sentence available on the summary conviction of a triable either way offence (falling within subsection (3)) following commencement of this section so that it corresponds with the extent of the magistrates' sentencing powers. In line with this, subsection (4) provides for the penalties for such offences to be increased to 12 months imprisonment on summary conviction or, if magistrates' sentencing powers are further extended under clause 148, up to 18 months. This clause also makes consequential amendments to the Magistrates' Courts Act 1980 in so far as it deals with penalties on summary conviction of triable either way offences.

     Clause 268: Enabling powers: alteration of maximum penalties

575.     Clause 268 makes the necessary provisions for offences created under enabling powers to have their maximum penalties altered so that they may be compatible with the new sentencing framework. Subsection (1) gives the Secretary of State the power to amend by order any enabling powers within any Act (passed before or in the same Session as this Bill) which allow for making offences punishable with imprisonment on summary conviction, excluding those listed in Schedule 23. Subsection (2) provides that an order under this power may amend the relevant enactment containing an enabling power so as either to remove its ability (through subordinate legislation) to make a summary offence punishable with imprisonment or to increase the maximum term of imprisonment to 51 weeks. Subsection (3) also enables an order under subsection (1) to amend enabling powers which make a triable either way offence punishable with imprisonment on summary conviction. Subsection (4) gives effect to Schedule 23.

Clause 269: Increase in penalties for drug related offences

576.     This clause introduces Schedule 24.

Clause 270: Increase in penalties for certain driving-related offences causing deaths

577.     This clause increases the maximum penalty to 14 years imprisonment for the three offences of causing death by dangerous driving, causing death by careless driving under the influence of drink or drugs and aggravated vehicle taking where the aggravating feature is that, owing to the driving of the vehicle, an accident occurs and death results.

Clause 271: Minimum sentence for certain firearms offences

578.     This clause inserts a new section 51A into the Firearms Act 1968 ("the 1968 Act") to provide a new minimum custodial sentence for unauthorised possession of certain types of firearm.

579.     Subsection(1) of the new section 51A sets out the particular offences which will attract the new minimum sentence, and applies it to persons aged 16 or over when the offence was committed. Under subsection (5) the minimum is fixed at five years for persons aged 18 or over (in England and Wales) or aged 21 or over (in Scotland) when the offence was committed, and three years for persons aged under 18 (in England and Wales) or aged under 21 (in Scotland).

580.     Under subsection (2) courts will be required to impose the minimum sentence, unless there are exceptional circumstances relating to the offence or offender which justify not doing so. Examples of when this might apply might be where the holder of a firearms certificate inadvertently forgets to renew his authority or where a war trophy is discovered among a deceased person's effects.

Clause 272: Certain firearms offences to be triable only on indictment

581.     This clause amends Part 1 of Schedule 6 to the 1968 Act and makes all offences to which the minimum sentence applies triable on indictment only. At present, these offences are triable either way. However, the minimum sentence is beyond the sentencing powers of magistrates and (but for this clause) magistrates would have to make a preliminary assessment of whether any exceptional circumstances were involved before determining whether a case should go to the Crown Court.

Clause 273: Power to sentence young offender to detention in respect of certain firearms offences: England and Wales

582.     This clause amends section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 so as to ensure that persons aged 16 or 17 can be sentenced to the term of detention required by the new section 51A of the 1968 Act.

Clause 274: Power to sentence young offender to detention in respect of certain firearms offences: Scotland

583.     This clause amends the Criminal Procedure (Scotland) Act 1995 to ensure that where offenders aged 16 or 17 are convicted on indictment under section 5 of the 1968 Act, the court itself retains the power to order detention and to dispose of the case.

Clause 275: Power by order to exclude application of minimum sentence to those under 18

584.     This clause enables the Secretary of State by order to prevent the minimum sentence applying to those aged 16 or 17. There is also power to make consequential amendments of other legislation. An order under this power is subject to affirmative resolution procedure (see clause 299(5)).

Clause 276: Increase in penalty for offences relating to importation or exportation of certain firearms

585.     This clause amends the Customs and Excise Management Act 1979 to increase from 7 years' imprisonment to the 10 years the maximum penalty for smuggling prohibited weapons covered by the minimum penalty provisions. The offences concerned are: improper importation of goods (section 50), exportation of prohibited or restricted goods (section 68) and fraudulent evasion of duty etc (section 170).

Clause 277: Term of a detention and training order

586.     This clause is related to the increase in the maximum sentence for some summary-only offences from 6 months to 51 weeks. The clause provides that the maximum sentence for such offences in the case of those under 18 will remain as a 6-month detention and training order.

Clause 278: Power to impose unpaid work requirement or curfew requirement on fine defaulter

587.     This clause re-enacts with appropriate modifications to make them applicable for the new sentencing framework, the fine default provisions in clause 35 of the Crime Sentences Act 1997.

588.     Where a Court has the power to commit an offender to prison in default of payment of a fine, subsection (2) provides the Court with an alternative power to order the offender to comply with an unpaid work or curfew requirement. Such an order is named a "default order" by subsection (3). Subsection (4) allows these requirements to be subject to electronic monitoring. Subsection (5) provides the Court with a power to postpone the making of a default order until such time as thinks fit. Subsection (6) applies the breach provisions in Schedule 7, the transfer of community order provisions in Schedule 8 and the provisions of Chapter 4, subject to set out the modifications outline in Schedule 23, to the making of default orders.

589.     Should the offender pay the whole or part of the sum of the fine originally defaulted, Subsection (7) provides for the number of hours of unpaid work or days of curfew to be reduced by a proportion corresponding to the amount repaid, or for the order to cease to have effect altogether.

Clause 279: Fine defaulters: driving disqualification

590.     This clause re-enacts the provisions of section 40 of the Crime Sentences Act 1997. As an alternative to committing an offender to custody in default of payment of a sum, it provides the Court in subsection (2) with a power to disqualify an offender from driving for a period of up to 12 months.

591.     Under subsection (3) if the fine is repaid the order ceases to have effect, or if it is repaid in part, the total number of weeks or months is reduced by a corresponding proportion. Subsection (5) provides the Secretary of State with an order-making power to alter the period of disqualification (currently 12 months) specified in subsection (2).

Chapter 9 : Supplementary

Clause 280: Execution of process between England and Wales and Scotland

592.     This clause enables summonses and warrants issued to persons under the sentencing provisions of the Bill can be served in Scotland. The clause lists the relevant sentencing provisions which involve summonses and warrants. This clause applies only applies to the magistrates' court, as nothing is needed to allow summonses and warrants issued by the Crown Court to be served in Scotland.

Clause 281: Sentencing: repeals

593.     This clause lists the main provisions superseded by this Part of the Bill. Full details of all repeals are found in Schedule 31.

Clause 282: Amendments relating to sentencing

594.     This clause introduces Schedule 26.

Clause 283: Interpretation of Part 12

595.     This clause defines various terms used in this Part of the Bill. It also outlines how to determine the age of an offender for sentencing purposes and how to construe "imprisonment" in relation to young offenders.


Clause: 284: Limit on period of detention without charge of suspected terrorists

596.     Clause 284 relates to detention under Schedule 8 to the Terrorism Act 2000. This relates to persons arrested under section 41 of that Act as suspected terrorists.

597.     Clause 284 gives the "judicial authority" as defined in paragraph 29 of Schedule 8 to the Terrorism Act power to extend the period of detention for up to a total of fourteen days from the existing starting times set out in paragraphs 29(3) and 36(3) provided the conditions in paragraph 32 are met. These conditions are that there must be reasonable grounds for believing that the further detention of the person concerned is necessary to obtain relevant evidence, and the investigation in connection with which the person is detained is being conducted diligently and expeditiously. Paragraph 37 provides that the detainee must be released immediately if the grounds for his detention no longer apply.

598.     The judicial authority is only able to extend the period in the warrant for more than seven days if the warrant already authorises detention for the maximum seven days currently permitted. For example, the clause does not allow the police to ask for ten more days' detention if the warrant only authorises detention for four days. At that stage the judicial authority would only be able extend the warrant for three more days. The clause only permits an extension of detention for longer than seven days if the warrant already permits detention for the current maximum of seven days. Nevertheless, the clause does not prevent an application for an extension of the warrant for longer than seven days being made before the seven day period has expired so long as the warrant already authorises detention for seven days. Accordingly, it is not possible for the fourteen days to be granted in one block no matter how compelling the reason.

599.     The procedural requirements for making an application for extension to detention as stipulated in paragraphs 30(3) and 31 to 34 apply to extensions for up to 14 days just as they apply to other extensions of detention under paragraph 36.

Clause 286: Preparatory hearings for serious offences not involving fraud

600.     This clause amends section 29 of the Criminal Procedure and Investigations Act 1996 which sets out the circumstances in which a statutory preparatory hearing may be held in cases not involving fraud. At present, preparatory hearings may be held in non-fraud cases where it appears to the judge that the case is of such complexity or length that holding a preparatory hearing is likely to bring substantial benefits. This clause adds "seriousness" to these criteria.

Clause 287 : Preparatory hearings to deal with severance and joinder of charges

601.     This clause amends sections 7(1), 9(3) and 9(11) of the Criminal Justice Act 1987 and sections 29(2) and 31(3) of the Criminal Procedure and Investigations Act 1996. It adds issues of severance and joinder to the purposes for which preparatory hearings may be held under these Acts and also provides that the judge may make rulings on severance and joinder in preparatory hearings. These rulings will be appealable under the 1987 Act or the 1996 Act by both the prosecution and the defence, subject to the leave of the judge or the Court of Appeal.

Clause 288: Reporting restrictions for preparatory hearings

602.     This clause extends to Northern Ireland the reporting restrictions that apply to preparatory hearings held in long or complex fraud cases under the Criminal Justice Act 1987 and those held in long or complex non-fraud cases held under the Criminal Procedure and Investigations Act 1996. At present these restrictions extend only to Great Britain. Subsections (3) and (7) provide that the consent of the Attorney General for Northern Ireland is required before proceedings for these offences can be instituted in Northern Ireland.

Clause 289: Award of costs

603.     This clause remedies a gap in existing legislation by means of an amendment to the Prosecution of Offences Act 1985. It provides that the Court of Appeal may award defence costs from central funds or award costs against the defendant following an appeal from a preparatory hearing in a non-fraud case under the Criminal Procedure and Investigations Act 1996. The amendment will bring appeals under the 1996 Act in line with equivalent appeals under the Criminal Justice Act 1987.

Clause 290: Offence of outraging public decency triable either way

604.     This clause makes the offence of outraging public decency triable summarily in a magistrates' court as well as on indictment. The maximum penalties on summary conviction for this offence are to be those provided for by section 32(1) of the Magistrates' Courts Act 1980. These are currently six months' imprisonment or a fine of £5000 or both.

Clause 291: Jury service

605.     This clause introduces Schedule 27.

Clause 292: Individual support orders

606.     Section 1 of the Crime and Disorder Act 1998 permits the police, the British Transport police, local authorities and registered social landlords to apply for anti-social behaviour orders (ASBOs) in the Magistrates' court. Orders can be issued to persons over 10 years who have acted in an anti-social manner and where the order is necessary to protect the public from further anti-social acts. Section 1 defines an anti-social manner as that which causes or is likely to cause harassment, alarm and distress to one or more persons not of the same household. Anti-social behaviour includes harassment, noise nuisance, writing graffiti and verbal abuse. An ASBO prohibits the person under the order from doing anything described in the order. Clause 292 inserts sections 1AA (Individual support orders) and 1AB (explanation, breach, amendment etc.) after section 1A of the Crime and Disorder Act 1998. These sections allow for a new order aimed at preventing further anti-social behaviour to be available where an anti-social behaviour order has already been granted against a person under 18.

607.     Subsection (1) of section 1AA (Individual support orders) obliges the court to consider the question of making an ISO after an anti-social behaviour order is made against a child or young person (that is a person aged 10-17). Subsection (2) states that the court must make an ISO if it is satisfied that the ISO conditions in subsection (3) are satisfied. Subsection (2)(a) ensures that requirements under the order cannot exceed a period of 6 months. Subsection (2)(b) allows the order to require the defendant to comply with directions given by a 'responsible officer' who can be one of the persons set out in subsection (10).

608.     All three conditions set out in subsection (3) have to be satisfied for an ISO to be made. If the conditions are not met and an ISO is not made, subsection (4) requires the court to state in open court why it considers that the conditions are not met.

609.     Subsection (5) sets out the nature of the requirements which a court can make in an ISO, namely any requirement that the court considers desirable in the interests of preventing a repetition of the anti-social behaviour which led to the ASBO.

610.     Subsection (6) sets out certain things which an ISO may require the defendant to do or which a responsible officer may direct the defendant to do. Subsection (7) ensures that the person subject to the order cannot be required to attend any place (or different places) under the order on more than two occasions in any given week. Subsection (8) obliges the court, when imposing requirements, to avoid conflict with religious beliefs and avoid interference with other educational attendance requirements as far as this is practicable.

611.     Subsection (9) allows the court to obtain whatever information it considers necessary in order to determine whether the individual support conditions set out in subsection (3) are fulfilled and in order to determine the requirements that should be included in an order. The court is empowered to obtain this information from a social worker of a local authority social services department or a member of youth offending team.

612.     Subsection (1) of section 1AB (Individual Support Orders: explanation, breach, amendment etc) sets out the court's obligation to explain to the defendant in open court the effect of the order, the consequences of breach and the power to review the order on application.

613.     Subsection (2) allows for the Secretary of State to prescribe cases: where the requirement to explain to the defendant in open court will not apply; where the explanation can be made in writing; and where the explanation can be given in the absence of the defendant.

614.      Subsection (3) sets the maximum fines available for non-compliance with an ISO. In the magistrates courts where these breaches would be heard there is a cap imposed by the section 135 of the Powers of Criminal Courts (Sentencing) Act 2000. For under 18 it is £1,000; for under 14 it is £250. Subsection (4) proscribes the use of referral orders for non-compliance with an ISO.

615.     Subsection (5) requires an ISO to cease if the ASBO to which it is linked ceases. Subsection (6) allows the person who is subject to the order or the responsible officer to apply to the court for the order to be varied or discharged. Subsection (7) allows a court to vary or discharge an ISO if it is varying the ASBO to which the ISO is linked.

Clause 293: Individual support orders: consequential amendments

616.     Clause 293 makes changes consequential to the introduction of the ISO to sections 4, 18 and 38 of the Crime and Disorder Act 1998 and to section 143 of the Magistrates Courts Act 1980.

617.     Subsection (2) amends section 4 of the Crime and Disorder Act 1998, which sets out the provision for appeals against orders. This subsection allows for section 4 to apply to ISOs and allows for any ISO amended or made by the Crown Court to be treated as if it were an order of the magistrates' court.

618.     Subsection (3) inserts definitions of individual support orders and responsible officers into the Crime and Disorder Act 1998.

619.     Subsection (4) amends s18(4) of the Crime and Disorder Act to ensure that the correct responsible officer is identified for the ISO.

620.     Subsection (5) by inserting provision of responsible officers into the definition of local provision of youth services ensures that there are obligations on the local authority to provide, and the bodies set out in 38(2) of the Crime and Disorder Act 1998 to co-operate in the provision of, responsible officers for ISOs.

621.     Subsection (6) inserts ISOs into section 143(2) of the Magistrates' Courts Act 1980 and allows the Secretary of State to amend the level of fines for ISOs if there has been a substantial change in the value of money.

Clause 294: Parenting orders and referral orders

622.     Clause 294 introduces Schedule 28, which makes provision about the interaction of parenting orders, made under sections 8 to 10 Crime and Disorder Act 1998, and referral orders made under Part 3 of the Powers of Criminal Courts (Sentencing) Act 2000.

623.     Paragraph 1: Removal of restriction in Crime and Disorder Act 1998. This together with the amendment made in paragraph 3 of the Schedule removes from section 8 of the Crime and Disorder Act 1998 the restriction currently on a court for the making of a Parenting Order alongside a Referral Order.

624.     Paragraph 2: Supplemental provisions relating to Parenting Orders. This amends section 9 of the Crime and Disorder Act 1998 (which makes supplemental provision relating to Parenting Orders).

625.     Subparagraph (2) substitutes a new subsection (1A) into section 9. The old subsection was one of the provisions ensuring that a parenting order and a referral order could not be made in respect of the same offence. The new subsection provides that the normal duty on the court to make a parenting order (or explain why it would not help to prevent the offender from committing another offence) where a person under the age of 16 is convicted of an offence does not apply where the court makes a referral order in respect of the offence.

626.     Subparagraph (3) inserts a new subsection (2A) and (3B) into section 9. This provides that where the court does decide to make a Parenting Order with a Referral Order, the court must obtain and consider a report by a probation officer, a local authority social worker, or a member of a youth offending team. The report should indicate what the requirements of the Parenting Order might include, the reasons why it would be desirable, and also, if the offender is under age 16 years, information about the family's circumstances and the likely effect of the Order on those circumstances.

627.     Subparagraph (4) inserts a new subsection (7A) which defines a Referral Order as an order imposed under section 16(2) or (3) of the Powers of Criminal Courts (Sentencing) Act 2000.

628.     Paragraph 3: Removal of Restriction in Powers of Criminal Courts (Sentencing) Act 2000. This removes the restriction in section 19(5) of the Powers of Criminal Courts (Sentencing) Act 2000 preventing the court from imposing a parenting order and a referral order in respect of the same offence.

629.     Paragraph 4: Panel to refer case back to Youth Court where parent or guardian fails to comply. This inserts a new subsection (2A) into section 22 of the Powers of Criminal Courts (Sentencing) Act 2000. A court making a referral order may require a parent or guardian to attend the meetings of the youth offender panel under section 20 of the Powers of Criminal Courts (Sentencing) Act 2000. Where the parent or guardian fails to comply with such an order, the new subsection provides the power to the panel to refer the case back to the offender's youth court. This would then allow the court the opportunity to decide whether it should impose a Parenting Order.

630.     Paragraphs 5 and 6: Arrangements when a panel refers a parent or guardian to the youth court. These insert new provisions into section 28 of and Schedule 1 to the Powers of Criminal Courts (Sentencing) Act 2000. These provisions set out the arrangements when a youth offender panel refers a parent or guardian to the appropriate youth court using the power set out in the new section 22(2A). The panel must make a report to the court explaining why the parent is being referred to it and the court can require the parent to appear before it by means of the issue of a summons, or a warrant for arrest. Where the parent then appears before the youth court, the court may make a Parenting Order if both of two conditions are satisfied. The first is that the court is satisfied that the parent has failed without reasonable excuse to comply with an order made by the court under section 20 to attend the youth offender panel. The second is that the court believes that it is desirable in the interests of preventing further offences being committed by the offender. The provisions also state which of the provisions of the Crime and Disorder Act relating to parenting orders apply to a parenting order made in these circumstances and provide for a right of appeal to the Crown Court against the making of a parenting order in these circumstances.

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Prepared: 23 May 2003