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90C: Schedule 15, page 159, line 30, at end insert-

"35AA Effect of custodial sentence in other cases

(1) This section applies where a person is convicted in England and Wales of an offence for which a court proposes to order the person to be disqualified under section 34 or 35 and-

(a) the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

(b) at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.



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(2) In determining the period for which the person is to be disqualified under section 34 or 35, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

(4) If the court proposes to order the person to be disqualified under section 34 or 35 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of subsection (2).

(5) In this section "custodial sentence" and "suspended sentence" have the same meaning as in section 35A.""

90D: Schedule 15, page 159, line 31, leave out "35A" and insert "35AA"

90E: Schedule 15, page 160, line 7, at end insert-

"(4A) If a period determined under subsection (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90F: Schedule 15, page 160, line 39, leave out from "includes" to second "of" in line 40 and insert-

"-

(a) an order for detention in residential accommodation under section 44 of the 1995 Act, and

(b) a sentence of detention under section 205, 207 or 208"

90G: Schedule 15, page 160, line 40, at end insert-

"35C Effect of sentence of imprisonment in other cases: Scotland

(1) This section applies where a person is convicted in Scotland of an offence for which a court proposes to order the person to be disqualified under section 34 or 35 and-

(a) the court proposes to impose on the person a sentence of imprisonment for another offence, or

(b) at the time of sentencing for the offence, a sentence of imprisonment imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under section 34 or 35, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a sentence of imprisonment.

(4) If the court proposes to order the person to be disqualified under section 34 or 35 and to impose a sentence of imprisonment for the same offence, the court may not in relation to that disqualification take that sentence of imprisonment into account for the purposes of subsection (2).

(5) In this section "sentence of imprisonment" has the same meaning as in section 35B.""

90H: Schedule 15, page 161, line 18, at end insert-

"(4A) If a period determined under subsection (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90J: Schedule 15, page 162, line 1, leave out from "includes" to second "of" in line 2 and insert-

"-

(a) an order for detention in residential accommodation under section 44 of this Act, and

(b) a sentence of detention under section 205, 207 or 208"

90K: Schedule 15, page 162, line 2, at end insert-

"248E Effect of sentence of imprisonment in other cases

(1) This section applies where a person is convicted of an offence for which a court proposes to order the person to be disqualified under section 248 or 248A from holding or obtaining a driving licence and-

(a) the court proposes to impose on the person a sentence of imprisonment for another offence, or



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(b) at the time of sentencing for the offence, a sentence of imprisonment imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under section 248 or 248A, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a sentence of imprisonment.

(4) If the court proposes to order the person to be disqualified under section 248 or 248A and to impose a sentence of imprisonment for the same offence, the court may not in relation to that disqualification take that sentence of imprisonment into account for the purposes of subsection (2).

(5) In this section "sentence of imprisonment" has the same meaning as in section 248D.""

90L: Schedule 15, page 163, line 6, at end insert-

"(4A) If a period determined under paragraph (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90M: Schedule 15, page 163, line 38, at end insert-

"40B Effect of custodial sentence in other cases

(1) This Article applies where a person is convicted of an offence for which a court proposes to order the person to be disqualified under Article 35 or 40 and-

(a) the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

(b) at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under Article 35 or 40, the court must have regard to the consideration in paragraph (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

(4) If the court proposes to order the person to be disqualified under Article 35 or 40 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of paragraph (2).

(5) In this Article "custodial sentence" and "suspended sentence" have the same meaning as in Article 40A.""

90N: Schedule 15, page 164, line 46, at end insert-

"(4A) If a period determined under subsection (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90P: Schedule 15, page 165, line 34, at end insert-

"147B Effect of custodial sentence in other cases

(1) This section applies where a person is convicted of an offence for which a court proposes to order the person to be disqualified under section 146 or 147 for holding or obtaining a driving licence and-

(a) the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

(b) at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under section 146 or 147, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.



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(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

(4) If the court proposes to order the person to be disqualified under section 146 or 147 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of subsection (2).

(5) In this section "suspended sentence" has the same meaning as in section 147A.""

90Q: Schedule 15, page 166, line 39, at end insert-

"(4A) If a period determined under paragraph (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90R: Schedule 15, page 167, line 14, at end insert-

"91B Effect of custodial sentence in other cases

(1) This Article applies where a person is convicted of an offence for which a court proposes to order the person to be disqualified under Article 91 for holding or obtaining a driving licence and-

(a) the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

(b) at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under Article 91, the court must have regard to the consideration in paragraph (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

(4) If the court proposes to order the person to be disqualified under Article 91 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of paragraph (2).

(5) In this Article "custodial sentence" and "suspended sentence" have the same meaning as in Article 91A.""

Amendments 90B to 90R agreed.

9.45 pm

Clause 128 : Dangerous offenders: terrorism offences (England and Wales)

Amendment 91 not moved.

Clause 129 : Dangerous offenders: terrorism offences (Northern Ireland)

Amendment 92 not moved.

Schedule 16 : Treatment of convictions in other member States etc

Amendment 92A

Moved by Lord Thomas of Gresford

92A: Schedule 16, page 168, line 18, at end insert-

"( ) This section does not apply if the defendant can show that his or her conviction was imposed outside England and Wales and resulted from a trial that would have, if the trial had taken place in England and Wales, breached Article 6 of the Convention rights within the meaning of the Human Rights Act 1998 (c. 42)."



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Lord Thomas of Gresford: My Lords, the purpose of the amendments in this group is to insert in Schedule 16 the proviso that the section does not apply if the defendant can show that his or her conviction was imposed outside England and Wales and resulted from a trial that would have, if the trial had taken place in England and Wales, breached Article 6 of the convention rights within the meaning of the Human Rights Act. We are concerned about the quality of justice in certain countries. The purpose of these amendments is to ensure that the courts can take into account the fact that a trial was in breach of Article 6 of the convention rights. I beg to move.

Lord Bach: My Lords, Schedule 16 implements the council framework decision of July last year on taking account of convictions in EU member states in the course of new criminal proceedings. Courts will be required to treat previous convictions of other member states in the same way as previous UK convictions. To a large extent, this merely sets out what can and does already happen. For example, overseas convictions can already be adduced as evidence of bad character or taken into account in sentencing decisions.

As I said in Committee, these amendments are obviously well intentioned but we do not think that they are necessary. The effect of the amendments as drafted would be that we would fail to comply with the provisions of the framework decision. This is because the amended legislation would oblige courts not to take into account other EU convictions to the extent that domestic convictions are taken into account since a separate assessment of whether to admit those EU convictions would be required beforehand.

Moreover, it would be an impracticable, if not impossible, task for the courts in every case. As drafted, the amendments would oblige courts to determine whether a conviction resulting from a trial in another jurisdiction would,

have breached Article 6. However, different rules of procedure and evidence apply between countries. For example, evidence admissible in some EU states would not be admissible in England and Wales, and it would often be difficult to predict accurately how such cases would have proceeded here, taking this into account, before any assessment of Article 6 compliance could be made.

All EU member states are subject to Article 6, which guarantees the right to a fair trial. The framework decision is predicated on compliance with the convention and states that it shall not have the effect of amending the obligation to respect fundamental rights. It will not be necessary for courts to consider the procedural proprieties of trials in other member states. Despite differences in national legal systems, convicted persons throughout the EU will have had recourse to the same framework of rights by which to challenge the previous conviction if it was procedurally unsound. We do not think it practicable or proper in implementing the provisions in the framework decision for our courts to be required to undertake a separate assessment of Article 6 compliance, and it would not be necessary because of the safeguards already in place.

As regards convictions from countries outside the EU, no provision in the schedule makes any material change

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in respect of non-EU convictions. The amendments proposed only clarify the existing law, which already applies to all convictions wherever obtained. Those clarifications concern the "bad character" provisions of the Criminal Justice Act 2003 and related Northern Ireland provisions. Under those provisions, it will, as now, be open to the defence to argue that a conviction is unfair by Article 6 standards. A court could continue to exclude evidence of a conviction that was shown to have resulted from an unfair trial. The court may, for example, exclude evidence under Section 101(3) of the Criminal Justice Act 2003 if such evidence would have a sufficiently adverse effect on the fairness of the proceedings; and, under Section 78 of the Police and Criminal Evidence Act 1984, the court may refuse to allow evidence to be given on which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court should not admit it. I hope with that explanation that the noble Lord, Lord Thomas, will withdraw his amendment.

Lord Thomas of Gresford: My Lords, your Lordships will recall that I spoke at considerable length in Committee on this issue, and I have attempted, having regard to the time, to limit what I said tonight. However, it is unfortunate that the amendments in the Bill ensure that convictions in an EU member state can be used to take into account evidence of the bad character of the defendant, to impose a presumption against bail, to consider whether a person should be tried summarily or indicted, and in sentencing. It is going a little far to say that the judges must automatically take at face value any conviction in any EU state, regardless of any arguments that may be advanced about the quality of the defendant's trial at the time. At this hour, however, I do not propose to divide the House. I beg leave to withdraw the amendment.

Amendment 92A withdrawn.

Amendments 92B to 92G not moved.

Amendments 93 to 95

Moved by Lord Bach

93: Schedule 16, page 173, line 27, leave out paragraph (b) and insert-

"(b) in paragraph (b)-

(i) after "service disciplinary proceedings" insert "(other than proceedings for a member State service offence)", and

(ii) for "that Act" substitute "the Armed Forces Act 2006", and"

94: Schedule 16, page 176, line 41, after "offence" insert "committed after the relevant date"

95: Schedule 16, page 177, line 6, at the end insert-

"( ) "relevant date" means-

(i) where the corresponding UK offence was a class A drug trafficking offence, the relevant date referred to in section 110(2A)(b), and

(ii) where the corresponding UK offence was a domestic burglary, the relevant date referred to in section 111(2A)(b)(ii);"

Amendments 93 to 95 agreed.



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Clause 142 : Criminal Defence Service: enforcement of order to pay cost of representation

Amendment 95A not moved.

Consideration on Report adjourned.



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Marine and Coastal Access Bill [HL]

Returned from the Commons

The Bill was returned from the Commons with amendments and with a privilege amendment. It was ordered that the Commons amendments be printed.

House adjourned at 9.53 pm.


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