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(3) In subsection (1A)—

(a) for “An order under this section is” substitute “The orders specified in this subsection are”,(b) the word “or” at the end of paragraph (a) is omitted, and(c) after paragraph (b) insert—“(c) an order that the accused be released without bail.”

(4) After subsection (1B) insert—

“(1C) The Appeal Court may make an order within subsection (1A)(c) only if they think that it is in the interests of justice that the accused should not be liable to be detained as a result of the decision of the Supreme Court on the appeal.”

(5) In subsection (2) for “under this section” substitute “within subsection (1A)(a) or (b)”.

(6) For subsection (5) substitute—

“(5) The accused shall not be liable to be detained again as a result of the decision of the Supreme Court on the appeal if—

(a) the Appeal Court have made an order within subsection (1A)(c), or(b) the Appeal Court have made an order within subsection (1A)(a) or (b) but the order has ceased to have effect by virtue of subsection (2) or the accused has been released or discharged by virtue of subsection (3).” ”

Schedule 35, page 317, line 30, at end insert—

“Consecutive custodial sentences

7A In section 188(4) (consecutive custodial sentences), after “Part 12 of the 2003 Act” insert “or under Part 2 of the Criminal Justice Act 1991”

Schedule 35, page 317, line 43, leave out “under that law”

Schedule 35, page 317, line 43, at end insert—

“Dangerous offenders

8A In section 209 (offenders under 18 convicted of certain serious offences), in subsection (7) for “sections 221, 222 and 227” substitute “section 226(2) of the 2003 Act (as applied by section 221(2) of this Act) and section 227 of this Act”.

8B (1) Section 219 (dangerous offenders aged 18 or over) is amended as follows.

(2) In subsection (1) for the words from “a person” to the end substitute “—

(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct),(b) the corresponding offence under the law of England and Wales is a serious offence, and(c) the court is of the required opinion (defined by section 223).”

(3) For subsections (2) and (3) substitute—

“(2) Section 225(2) to (4) of the 2003 Act apply in relation to the offender.

(3) In section 225(2) and (3A) of the 2003 Act (as applied by subsection (2)), references to “the offence” are to be read as references to the offence under section 42 of this Act.”

(4) For the italic cross-heading before section 219 substitute “Required or discretionary sentences for particular offences”.

8C (1) Section 220 (certain violent or sexual offences: offenders aged 18 or over) is amended as follows.

(2) In subsection (1) for the words from “a person” to the end substitute “—

(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct),(b) the corresponding offence under the law of England and Wales is a specified offence,(c) the court is of the required opinion (defined by section 223), and

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(d) where the corresponding offence under the law of England and Wales is a serious offence, the case is not one in which the court is required by section 225(2) of the 2003 Act (as applied by section 219(2) of this Act) to impose a sentence of imprisonment for life.”

(3) For subsection (2) substitute—

“(2) Section 227(2) to (5) of the 2003 Act apply in relation to the offender.”

(4) In subsection (3)—

(a) for “section 227” substitute “section 227(2) to (5)”,(b) before paragraph (a) insert—“(za) the reference in section 227(2A) to “the offence” is to be read as a reference to the offence under section 42 of this Act;”, and(c) in paragraph (a) for “subsection (2)(b)” substitute “subsection (2C)(b)”.

(5) After subsection (3) insert—

“(3A) The power conferred by section 227(6) of the 2003 Act includes power to amend section 227(2B) as applied by this section.”

8D (1) Section 221 (dangerous offenders aged under 18) is amended as follows.

(2) In subsection (1) for the words from “a person” to the end substitute “—

(a) a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct),(b) the corresponding offence under the law of England and Wales is a serious offence, and(c) the court is of the required opinion (defined by section 223).”

(3) For subsection (2) substitute—

“(2) Section 226(2) to (4) of the 2003 Act apply in relation to the offender.”

(4) In subsection (3)—

(a) for the words from the beginning to “is” substitute “In section 226(2) of the 2003 Act (as applied subsection (2))”, and(b) in paragraphs (a) and (b) the words “in section 226(2)” are omitted.

(5) Subsection (4) is omitted.

8E (1) Section 222 (offenders aged under 18: certain violent or sexual offences) is amended as follows.

(2) In subsection (1), in paragraph (d) for the words from “section 221” to the end substitute “section 226(2) of the 2003 Act (as applied by section 221(2) of this Act) to impose a sentence of detention for life.”.

(3) For subsection (2) substitute—

“(2) Section 228(2) to (5) of the 2003 Act apply in relation to the offender.”

(4) In subsection (3)—

(a) for “section 228” substitute “section 228(2) to (5)”, and(b) in paragraph (a) for “subsection (2)(b)” substitute “subsection (2C)(b)”.

(5) After subsection (3) insert—

“(3A) The power conferred by section 228(7) of the 2003 Act includes power to amend section 228(2A) as applied by this section.”

8F (1) Section 223 (the required opinion for the purposes of sections 219 to 222) is amended as follows.

(2) In subsection (1) for “219(2), 220(2), 221(2)” substitute “219(1), 220(1), 221(1)”.

(3) In subsection (2) for “section 229(2) to (4)” substitute “section 229(2) and (2A)”.

(4) In subsection (3) the words “to (4)” are omitted.

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8G (1) Section 228 (appeals where previous convictions set aside) is amended as follows.

(2) For subsection (1) substitute—

“(1) Subsection (3) applies where—

(a) a sentence has been imposed on any person under section 225(3) or 227(2) of the 2003 Act (as applied by section 219(2) or 220(2) of this Act),(b) the condition in section 225(3A) or (as the case may be) 227(2A) of the 2003 Act was met but the condition in section 225(3B) or (as the case may be) 227(2B) of that Act was not, and(c) any previous conviction of his without which the condition in section 225(3A) or (as the case may be) 227(2A) would not have been met has been subsequently set aside on appeal.”

8H In section 237 (purposes of sentencing), in subsection (3)(b)—

(a) for “to 222” substitute “, 221”, and(b) for “any of sections 225 to 228” substitute “section 225(2) or 226(2)”.

8I In section 256 (pre-sentence reports), in subsection (1)(c) for the words from “section” to the end substitute “section 219(1), 220(1), 221(1) or 222(1) (sentences for dangerous offenders).”

8J In section 260 (discretionary custodial sentences: general restrictions), in subsection (1)(b) for the words from “as a result” to the end substitute “under section 225(2) or 226(2) of the 2003 Act (as applied by section 219(2) or 221(2) of this Act) or as a result of any of sections 225 to 227 of this Act.”

8K In section 261 (length of discretionary custodial sentences: general provision)—

(a) in subsection (1) for “falling to be imposed as a result of section 219(2) or 221(2)” substitute “imposed under section 225 or 226 of the 2003 Act (as applied by section 219(2) or 221(2) of this Act)”, and(b) in subsection (3) for “required minimum sentences” substitute “ sentences that may or must be imposed”.

8L In section 273 (review of unduly lenient sentences by Court Martial Appeal Court), in subsection (6)(b) for “section 219, 220, 221, 222, 225, 226 or 227” substitute “section 225(2) or 226(2) of the 2003 Act (as applied by section 219(2) or 221(2) of this Act) or by section 225, 226 or 227 of this Act”.”

Schedule 35, page 317, line 43, at end insert—

“Restrictions on imposing community punishment

8M In section 253(2)(h) (duties in complying with section 252) for “section 151(2) of the 2003 Act as applied by section 270 of this Act” substitute “section 270B(4)”.

8N In section 254(1) (savings for powers to mitigate sentence etc.) for “and 270” substitute “, 270 and 270B”.

8O (1) Section 270 (community punishments: general restrictions etc.) is amended as follows.

(2) After subsection (6) insert—

“(6A) The fact that by virtue of any provision of this section—

(a) a community punishment may be awarded in respect of an offence, or(b) particular restrictions on liberty may be imposed by a community punishment,does not require a court to award such a punishment or to impose those restrictions.”

(3) Subsection (7) is omitted.

(4) In subsection (8)—

(a) the word “Accordingly” is omitted; and(b) for “151(2) of the 2003 Act as applied by this section” substitute “270B(4)”.

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8P After section 270 insert—

“270A Community punishment available only for offences punishable with imprisonment or for offenders previously fined

The power to award a community punishment is only exercisable in respect of an offence if—

(a) a person who is guilty of such an offence is liable to imprisonment; or(b) in any other case, section 270B(4) confers power to award such a punishment.

270B Community punishment for offender previously fined

(1) This section provides for the award of a community punishment by a court in respect of an offence (“the current offence”) committed by a person to whom subsection (2) or (3) applies.

(2) This subsection applies to the offender if—

(a) a person guilty of the current offence is liable to imprisonment,(b) the offender was aged 16 or over when he was convicted;(c) on three or more previous occasions the offender has, on conviction by a court for an offence committed by him after attaining the age of 16, had passed on him a sentence consisting only of a fine; and(d) despite the effect of section 238(1)(b), the court would not (apart from this section) regard the current offence, or the combination of the current offence and one or more offences associated with it, as being serious enough to warrant a community punishment.

(3) This subsection applies to the offender if—

(a) a person guilty of the current offence is not liable to imprisonment;(b) the offender was aged 16 or over when he was convicted; and(c) on three or more previous occasions the offender has, on conviction by a court for an offence committed by him after attaining the age of 16, had passed on him a sentence consisting only of a fine.

(4) The court may award a community punishment in respect of the current offence if it considers that, having regard to all the circumstances including the matters referred to in subsection (5), it would be in the interests of justice to award such a punishment.

(5) Those matters are—

(a) the nature of the offences to which the previous convictions mentioned in subsection (2)(c) or (3)(c) (as the case may be) relate and their relevance to the current offence; and(b) the time that has elapsed since the offender’s conviction of each of those offences

(6) In subsections (2)(c) and (3)(c) “conviction by a court” means—

(a) a conviction by a civilian court in any part of the United Kingdom for a service offence or for an offence punishable by the law of that part of the United Kingdom; or(b) a conviction in service disciplinary proceedings.

(7) For the purposes of subsections (2)(c) and (3)(c) a compensation order or a service compensation order awarded in service disciplinary proceedings does not form part of an offender’s sentence.

(8) It is immaterial for the purposes of subsections (2)(c) and (3)(c) whether on previous occasions a court has passed on the offender a sentence not consisting only of a fine.

(9) This section does not limit the extent to which a court may, in accordance with section 238(1)(b) and (2), treat any previous convictions of the offender as increasing the seriousness of an offence.

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(10) In this section—

(a) “service disciplinary proceedings” means proceedings (whether or not before a court) in respect of a service offence; and(b) any reference to a conviction or sentence, in the context of such proceedings, includes anything that under section 376(1) to (3) is to be treated as a conviction or sentence.”

Schedule 35, page 319, line 37, at end insert—

“Imposition of unpaid work requirement for breach of service community order or overseas service community order

12A In paragraph 14(b) of Schedule 5 (modifications of Schedule 8 to the Criminal Justice Act 2003 as it applies to overseas community orders) , for “(3)” substitute “(3A)”.”

Schedule 35, page 319, line 37, at end insert—

“Suspended prison sentences: further conviction or breach of requirement

12B In paragraph 9(1)(b) of Schedule 7 (which provides for paragraph 9 of Schedule 12 to the Criminal Justice Act 2003, as it applies to an order under paragraph 8 of that Schedule made by a service court, to have effect with substituted sub-paragraphs (2) and (3))—

(a) in the substituted text of sub-paragraph (2), after “Part 12” insert “of this Act or under Part 2 of the Criminal Justice Act 1991”; and(b) in the substituted text of sub-paragraph (3), after “287” insert “of the Armed Forces Act 2006”.”

On Question, amendments agreed to.

Schedule 35, as amended, agreed to.

Clause 196 [Orders, rules and regulations]:

Lord Bach moved Amendment No. 177P:

Clause 196, page 141, line 12, at end insert—

“(2A) Subject to subsection (2B), a statutory instrument containing any order or regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.

(2B) Subsection (2A) does not apply to—

(a) a statutory instrument containing an order under section 201,(b) a statutory instrument containing an order under paragraph 26(5) of Schedule 1,(c) a statutory instrument containing an Order in Council under paragraph 9 of Schedule 27, or(d) a statutory instrument to which subsection (3) applies.”

The noble Lord said: This government amendment and the ones that go with it are minor technical amendments. The Bill as it stands does not make provision for a single statutory instrument to be made combining provisions that attract the negative procedure and provisions that attract the affirmative procedure. These amendments make provision for a single statutory instrument to be made combining provisions attracting the negative procedure and provisions attracting the affirmative procedure. The amendments make it clear that such a combined statutory instrument would require the affirmative procedure. I understand that this type of provision is not unusual.

I give an example from this large Bill. The provisions on violent offender orders that the Committee debated contain order-making powers, some of which require a negative resolution under Clause 150 and some of which require an affirmative resolution, for example under Clauses 157 to 160. It is conceivable that we might bring forward a single

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order relating to violent offender orders. Under these amendments, that entire order would be considered through the affirmative principle. I beg to move.

On Question, amendment agreed to.

5.30 pm

Lord Bach moved Amendments Nos. 177Q to 178ZZA:

Clause 196, page 141, line 13, after “containing” insert “(whether alone or with other provision)”

Clause 196, page 141, line 15, leave out paragraphs (b) to (h)

Clause 196, page 141, line 34, leave out subsection (4)

On Question, amendments agreed to.

Clause 196, as amended, agreed to.

Clause 197 agreed to.

Schedule 36 [Minor and consequential amendments]:

Lord Bach moved Amendment No. 178ZA:

Schedule 36, page 322, leave out lines 22 to 26

On Question, amendment agreed to.

Lord Bach moved Amendment No. 178A:

Schedule 36, page 327, line 28, at end insert—

“Criminal Justice Act 1987 (c.38)

21A In section 1(17) of the Criminal Justice Act 1987 (application of Serious Fraud Office provisions to Northern Ireland), for “Attorney General for Northern Ireland” substitute “Advocate General for Northern Ireland”.”

The noble Lord said: This is a government amendment to put right something that was not done as it should have been in the Justice (Northern Ireland) Act 2002. It is the Government’s policy for the Advocate General for Northern Ireland to exercise superintending powers over the Serious Fraud Office in Northern Ireland following devolution of justice matters. The amendment gives effect to this policy.

I should take a minute to set out the background. The Justice (Northern Ireland) Act 2002, which some noble Lords present will remember well, prepared for the devolution of criminal justice matters in Northern Ireland by providing for the appointment of an Advocate General for Northern Ireland who would assume responsibility for matters relating to prosecutions that would not be within the competence of the devolved Administration. We intend that the office of Advocate General for Northern Ireland should be held by the Attorney-General for England and Wales for the time being.

Prosecution matters in England, Wales and Northern Ireland are, of course, currently the responsibility of the Attorney-General. The 2002 Act makes provision for the responsibility for prosecutorial matters in Northern Ireland to be removed from the Attorney-General and given either to the Director of Public Prosecutions for Northern Ireland or transferred to the Advocate General for Northern Ireland. However, the superintendence of the work of the Serious Fraud Office in Northern

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Ireland was inadvertently overlooked. This amendment ensures that the Advocate General for Northern Ireland exercises superintending powers over the Serious Fraud Office in Northern Ireland following devolution of justice matters. I beg to move.

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