2003 Chapter 44

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These notes refer to the Criminal Justice Act 2003 (c.44) which received Royal Assent on 20th November 2003

CRIMINAL JUSTICE ACT 2003

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Criminal Justice Act 2003 which received Royal Assent on 20th November. They have been prepared by the Home Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.      The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3.     In July 2002 the Government published a White Paper outlining its plans for the criminal justice system, from crime prevention through to the punishment and rehabilitation of offenders. Justice for All (Cm 5563) focused particularly on reforms to court procedure and sentencing, to make trials faster and to deliver clear, consistent and appropriate sentencing. On these issues the White Paper built on the proposals in two consultation documents: Review of the Criminal Courts of England and Wales by Sir Robin Auld (2001) and Making Punishment Work: report of a review of the sentencing framework of England and Wales (2001) by John Halliday.

4.     This Act is intended to introduce reforms in these two areas. With regard to court procedure, the Act aims to improve the management of cases through the courts by involving the Crown Prosecution Service in charging decisions, by reforming the system for allocating cases to court, and by increasing magistrates' sentencing powers so that fewer cases have to go to the Crown Court. It will enable action to be taken to reduce breaches of bail by introducing a new presumption against bail in certain circumstances.

5.     The Act is designed to ensure that criminal trials are run more efficiently and to reduce the scope for abuse of the system. It will reform the rules on advance disclosure of evidence and will allow for judge-alone trial in cases involving threats and intimidation of juries, and paves the way for judge-alone trial in exceptionally long, complex serious fraud cases. It will ensure the wider involvement of the community as a whole by reforming rules on jury service. Rules on evidence will be changed to allow the use of previous convictions where relevant, and to allow the use of reported (hearsay) evidence where there is good reason why the original source cannot be present, or where the judge otherwise considers it would be appropriate. It will enable any witness to give evidence using live links. A right of appeal for the prosecution against judicial decisions to direct or order an acquittal before the jury has been asked to consider the evidence will be introduced to balance the defendant's right of appeal against both conviction and sentence. The Act will also make it possible in certain very serious cases for a retrial to take place despite an earlier acquittal if there is new and compelling evidence of an accused's guilt.

6.     The Act aims to provide a sentencing framework which is clearer and more flexible than the current one. The purposes of sentencing of adults are identified in statute for the first time, as punishment, crime reduction, reform and rehabilitation, public protection and reparation. The principles of sentencing are set out, including that any previous convictions, where they are recent and relevant, should be regarded as an aggravating factor which will increase the severity of the sentence. A new Sentencing Guidelines Council will be established. Sentences will be reformed, so that the various kinds of community order for adults will be replaced by a single community order with a range of possible requirements; custodial sentences of less than 12 months will be replaced by a new sentence, (described in the Halliday report as "custody plus"), which will always involve a period of at least 26 weeks post-release supervision in the community; and sentences over 12 months will be served in full, half in custody, half in the community, with supervision extended to the end of the sentence rather than the 3/4 point as now. Serious violent and sexual offenders will be given new sentences which will ensure that they are kept in prison or under supervision for longer periods than currently. At the other end of the custodial scale, several "intermediate" sanctions will be introduced. These include intermittent custody and a reformed suspended sentence in which offenders have to complete a range of requirements imposed by the court. The intention is for the court to be able to provide each offender with a sentence that best meets the need of the particular case, at any level of seriousness, and for sentences to be more effectively managed by the correctional services who will need to work together closely in delivering the new sentences.

7.     The Act also addresses a number of other areas. It contains a number of provisions on drug related offending, including extending to those aged 14 and above the provisions to test persons in police detention and at other points in the criminal justice system for specified Class A drugs. It establishes a new scheme under which the court, rather than the Home Secretary, will determine the minimum term to be served in prison by a person convicted of murder. It will establish a 5 year mandatory minimum custodial sentence for unauthorised possession of a prohibited firearm. It will increase the maximum penalty for causing death by dangerous driving from 10 to 14 years and retain the power of arrest for the possession of cannabis or cannabis resin following their proposed reclassification from Class B to Class C drugs. Finally, in relation to juveniles, the Act extends the use of parenting orders by making them available at an earlier stage and introduces individual support orders, requiring young people with anti-social behaviour orders to undertake education-related activities.

8.     In general the Act extends only to England and Wales.

9.     The Act is in fourteen parts. Part 1 contains provisions on the Police and Criminal Evidence Act. Part 2 contains provisions on bail. Part 3 contains provisions on conditional cautions. Part 4 contains provisions on charging. Part 5 contains provisions on disclosure. Part 6 contains provisions on allocation and sending of offences. Part 7 contains provisions on trials on indictment without a jury. Part 8 contains provisions on live links. Part 9 contains provisions on prosecution appeals. Part 10 contains provisions enabling retrial for serious offences following acquittal (double jeopardy). Part 11 contains provisions on evidence of bad character (Chapter 1) and provisions on hearsay evidence (Chapter 2). Part 12 contains provisions on sentencing and is split into a number of Chapters. Chapter 1 contains general provisions about sentencing. Chapter 2 contains provisions on community orders for offenders aged 16 or over. Chapter 3 contains provisions on prison sentences of less than 12 months. Chapter 4 contains further provisions on orders under Chapters 2 and 3. Chapter 5 contains provisions on dangerous offenders. Chapter 6 contains provisions on release of prisoners on licence. Chapter 7 deals with the effect of life sentences. Chapter 8 contains other provisions about sentencing. Chapter 9 contains supplementary provisions. Part 13 contains miscellaneous provisions and Part 14 contains general provisions.

Part 1 - Amendments of Police and Criminal Evidence Act 1984

10.     Part 1 amends the Police and Criminal Evidence Act 1984 (PACE). The Act extends the definition of prohibited articles under section 1 of PACE so that it includes an article made, adapted or intended for use in causing criminal damage. The effect is to give police officers the power to stop and search where they have reasonable suspicion that a person is carrying any such item. It also makes new provision for warrants to enter and search. At present, persons who accompany constables executing search warrants are able to do so merely in an advisory or clerical capacity. The Act allows those accompanying the police under a warrant to actively assist in searching premises.

11.     The Act enables the immediate grant of bail from the scene of arrest ("street bail") where there is no immediate need to deal with the arrested person at a police station. It gives police the discretion to decide when and where an arrested person should attend a police station for interview. It also enables reviews of the continuing need for detention without charge to be conducted over the telephone rather than in person at the police station as is currently the case. Where video conferencing facilities are available they should be used in preference to the telephone.

12.     The Act extends to persons who are aged 14 and above the provisions in the Police and Criminal Evidence Act 1984 enabling officers to detain a person after charge to test for specified class A drugs, subject to conditions in section 63B of PACE (as introduced by Section 57 of the Criminal Justice and Court Services Act 2000). An appropriate adult is required to be present during the testing procedure for those under the age of 17. The Secretary of State may alter the minimum age by order subject to the affirmative resolution procedure.

13.     The Act extends the time for which someone may be detained without charge, under the authority of a superintendent, from 24 to 36 hours for any arrestable offence, rather than for any serious arrestable offence as the law currently stands. At present a custody officer is required to record everything a detained person has with him on entering custody. Section 8 of the Act changes the law so that whilst the custody officer still has a responsibility to ascertain what the person has with him, any recording and where it is made will be at his discretion.

14.     The Act makes fundamental changes to the process for establishing and amending codes of practice under PACE. At present codes cover stop and search, searching of premises, detention, identification, and the recording of interviews. Issuing a new code or revising an existing one requires extensive public consultation and an active process of parliamentary consideration. The amendments provide for a targeted consultation process and for a level of parliamentary scrutiny proportionate to the amendments proposed. The introduction of any new code will remain subject to the affirmative procedure.

15.     The Act extends the powers of the police to enable them to take fingerprints and a DNA sample from a person whilst he is in police detention following his arrest for a recordable offence. Fingerprints can now be taken electronically and the police will be able to confirm in a few minutes the identity of a suspect where that person's fingerprints are already held on the National Fingerprint Database. It will prevent persons who may be wanted for other matters avoiding detection by giving the police a false name and address. Fingerprints taken under this provision will be subject to a speculative search across the crime scene database to see if they are linked to any unsolved crime. The DNA profile of an arrested person will be loaded onto the National DNA Database and will be subject to a speculative search to see whether it matches a crime scene stain already held on the Database. This will assist the police in the detection and prevention of crime.

16.     Section 12 introduces Schedule 1 which deals with amendments related to this Part of the Act.

Part 2 - Bail

17.     This Part gives effect to the Law Commission's recommendation that minor amendments should be made to the Bail Act 1976 to ensure that its compliance with the ECHR is beyond dispute. The provision which purports to make it an exception to the right to bail that an offence appears to have been committed while the defendant was on bail for another offence is repealed, and replaced with a presumption that bail will not be granted in these circumstances to a defendant aged 18 or over unless the court is satisfied that there is no significant risk of his re-offending on bail. There is also a presumption that a defendant aged 18 or over who without reasonable cause has failed to surrender to custody will not be granted bail, unless the court is satisfied that there is no significant risk that he would so fail if released.

18.     This Part also gives effect to recommendations of Lord Justice Auld in his Review of the Criminal Courts of England and Wales for simplifying the bail appeals system, including removing the High Court's bail jurisdiction where it is concurrent with that of the Crown Court. The right of the prosecution to appeal to the Crown Court against a decision by magistrates to grant bail is extended to cover all imprisonable offences, and not just those carrying a maximum penalty of 5 years or more as at present.

19.     This Part creates a presumption that bail will not be granted for a person aged 18 or over who is charged with an imprisonable offence, and tests positive for a specified Class A drug, if he refuses to undergo an assessment as to his dependency or propensity to misuse such drugs, or following an assessment, refuses any relevant follow-up action recommended unless the court is satisfied that there is no significant risk of his re-offending on bail.

Part 3 - Conditional Cautions

20.     This Part allows for a caution with specific conditions attached to it to be given where there is sufficient evidence to charge a suspect with an offence which he or she admits, and the suspect agrees to the caution. It would be for the prosecutor to decide whether a conditional caution was appropriate, and in most cases for the police to administer it. If the suspect failed to comply with the conditions, he or she would be liable to be prosecuted for the offence. The Act provides for the publication of a Code of Practice for conditional cautions.

Part 4 - Charging etc

21.     This Part amends the Police and Criminal Evidence Act 1984 to provide that, where a custody officer decides that there is sufficient evidence to charge a suspect who is in police detention, he is to have regard to guidance issued by the DPP in determining whether the suspect should be released without charge but on bail, released without charge and without bail, or charged. Where, pursuant to that guidance, a case is referred to the Crown Prosecution Service to determine whether proceedings should be instituted (and if so on which charge), the defendant will be released on police bail with or without conditions.

22.     This Part also makes provision for a new method of initiating public prosecutions, to replace laying an information and issue of a summons. The police, the CPS and other named public prosecutors will instead issue a written charge, which will be accompanied by a 'requisition' informing the defendant when he is to appear in court to answer to it.

Part 5 - Disclosure

23.     This Part amends some of the provisions in the Criminal Procedure and Investigations Act 1996 that govern the disclosure of unused prosecution material to the defence and the provision of a defence case statement. It replaces the present two stage test with a new objective single test for the disclosure of unused prosecution material to the defence, requiring the prosecutor to disclose prosecution material that has not previously been disclosed and which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused. It replaces the present secondary disclosure stage with a revised continuing duty on the prosecutor to disclose material that meets the new test. The prosecutor is specifically required to review the prosecution material on receipt of the defence statement and to make further disclosure if required under the continuing duty.

24.     It also amends the defence disclosure requirements, requiring the accused to provide a more detailed defence statement than currently required. The main changes are that the defence will be required to set out the nature of his defence including any particular defences on which he intends to rely and indicate any points of law he wishes to take, including any points as to the admissibility of evidence or abuse of process. Other new provisions are a requirement for the judge to warn the accused about any failure to comply with the defence statement requirements, placing cross service of defence statements on a statutory footing, a requirement for service of an updated defence statement to assist the management of the trial, requiring the accused to serve, before the trial, details of any witnesses he intends to call to give evidence (other than himself) and also details of all experts instructed including those not called to give evidence. The new obligation on the defence to provide details of the witnesses it intends to call will be accompanied by a code of practice governing the conduct of any interviews by the police or non-police investigators with defence witnesses disclosed in accordance with the requirement.

25.     Other provisions include a requirement that the judge must warn the defence about disclosure failures and judicial discretion to disclose the defence statement to the jury. The procedure for enabling the jury to draw adverse inferences from defence disclosure failures in respect of the defence statement is simplified.Part 6 - Allocation and sending of offences

26.     This Part of the Act (with Schedule 3) amends the procedure to be followed by magistrates' courts in determining whether cases triable either way should be tried summarily or on indictment, and provides for the sending to the Crown Court of those cases which need to go there. The new procedures are designed to enable cases to be dealt with in the level of court which is appropriate to their seriousness, and to ensure that they reach that court as quickly as possible.

27.     These provisions give effect to a number of recommendations from Lord Justice Auld's Review of the Criminal Courts, including making magistrates aware, when they determine allocation, of any previous convictions of the defendant; removing the option of committal for sentence in cases which the magistrates decide to hear; allowing defendants in cases where summary trial is considered appropriate to seek a broad indication of the sentence they would face if they were to plead guilty at that point; and replacing committal proceedings and transfers in serious fraud and child witness cases with a common system for sending cases to the Crown Court, based on the present arrangements for indictable-only cases.

28.     Provision is made for defendants aged under 18 to give, for certain offences, an indication of plea, along the lines of the procedure which applies in adult cases. This should help to avoid cases involving young defendants being sent to the Crown Court unnecessarily. Provision is made for defendants under 18 who are charged with certain firearms offences to be sent to the Crown Court for trial.

Part 7 - Trials on indictment without a jury

29.     This Part of the Act sets out the circumstances in which criminal trials that currently take place on indictment in the Crown Court before a judge and jury will in future be conducted by a judge sitting alone.

30.     This Part makes provision for the prosecution to apply for a trial of a serious or complex fraud case to proceed in the absence of a jury. The judge may order the case to be conducted without a jury if he is satisfied that the length or complexity of the case (having regard to steps which might reasonably be taken to reduce it) is likely to make the trial so burdensome upon the jury that the interests of justice require serious consideration to be given to conducting the trial without a jury.

31.     This Part provides for a trial to be conducted without a jury where there is a real and present danger of jury tampering, or continued without a jury where the jury has been discharged because of jury tampering. The court must be satisfied that the risk of jury tampering would be so substantial (notwithstanding any steps, including police protection, that could reasonably be taken to prevent it) as to make it necessary in the interests of justice for the trial to be conducted without a jury. In trials already under way where the jury has been discharged because of jury tampering, the trial will continue without a jury unless the judge considers it necessary in the interests of justice to terminate the trial. In that event, he may order a retrial, and if he does he will have the option of ordering that the retrial should take place without a jury.

32.     This Part provides a right of appeal to the Court of Appeal for both prosecution and defence against a determination made by a court on an application for a trial without a jury, and against a court order to continue a trial in the absence of a jury, or to order a retrial without a jury, because of jury tampering.

33.     Where a trial is conducted or continued without a jury and a defendant is convicted, the court will be required to give its reasons for the conviction.

Part 8 - Live links

34.     This Part provides powers for the courts to hear evidence by way of a live television link from outside the court building. The court will be able to exercise these powers where they believe it to be in the interests of the efficient or effective administration of justice. Under the law as it stands at present witnesses are generally required to attend the court in person. The law does however currently provide for the use of live links in limited cases, such as in the case of young, disabled, vulnerable or intimidated witnesses under the Youth Justice and Criminal Evidence Act 1999.

35.     Sir Robin Auld during his Review of the Criminal Courts, which reported in October 2001, considered evidence given by experts and recommended provision for the use of live links in this context. The provisions of this Part extend live link provision to any witness, other than the defendant, where it is in the interests of efficiency or effectiveness, to hear that witness's evidence by way of a live link.

Part 9 - Prosecution appeals

36.     Under current legislation, the defendant has a right of appeal at the end of the trial against both conviction and sentence but the prosecution has no equivalent right of appeal against an acquittal, whether as a result of a jury's decision or a judge's ruling that has the effect of bringing trial to an end early. This Part introduces an interlocutory prosecution right of appeal against two categories of ruling by a Crown Court judge. The first group comprises a ruling that has the effect of terminating the trial made either at a pretrial hearing or during the trial, at any time up until the start of the judge's summing up. This includes both rulings that are terminating in themselves and those that are so fatal to the prosecution case that the prosecution proposes to treat them as terminating and, in the absence of the right of appeal, would offer no or no further evidence. The second group relates to an evidentiary ruling or series of rulings made in certain trials for qualifying offences listed in Schedule 4. This right of appeal is limited to those rulings that significantly weaken the prosecution case and may only be exercised up to the opening of the defence case.

37.     Leave to appeal must be obtained either from the judge or the Court of Appeal. Depending upon the circumstances of the case the judge will decide whether the appeal follows either an expedited route, where the trial is adjourned pending the conclusion of the appeal, or a non-expedited route, where any jury that has been empanelled may be discharged. In both cases any judicial ruling effectively acquitting the defendant or otherwise terminating the trial will not take effect while the prosecution is considering whether to appeal and, if an appeal is pursued, until the conclusion of the appeal or its abandonment. When appealing a terminating or effectively terminating ruling the prosecution must agree to the acquittal of the defendant(s) for the offence(s) to which the ruling applies, if leave to appeal is not granted or the appeal is abandoned. This does not apply to appeals against significantly weakening evidentiary rulings where the trial will usually continue or a fresh trial will take place, whatever the outcome of the appeal.

38.     The Court of Appeal will be able to confirm, reverse or vary the ruling appealed against. Where it confirms a terminating or effectively terminating ruling, the Court of Appeal must order the acquittal of the defendant(s) for the offence(s) to which the appeal applies and it has the discretion to do so where it reverses or varies the ruling. Where it reverses or varies a terminating or effectively terminating ruling, the Court of Appeal may only order that proceedings in the Crown Court should continue or that a fresh trial should take place if this is necessary in the interests of justice. In the case of prosecution appeals against evidentiary rulings, after confirming, reversing or varying the ruling(s) appealed against, the Court of Appeal may order the continuation of the proceedings in the Crown Court or a fresh trial to take place. But where the prosecution indicates that it does not intend to continue with the prosecution the Court of Appeal may order the acquittal of the defendant. Under both categories of appeal, both the prosecution and the defence will have a further right of appeal to the Houses of Lords on a point of law of general public importance.

39.     This Part also provides for restrictions on reporting the proceedings associated with the appeal and the appeal itself, until after the conclusion of the trial. The aim is to ensure that, if the appeal is successful, matters prejudicial to the continuing or fresh trial are not reported. This restriction will cover reports in England and Wales, Scotland and Northern Ireland. Contravention will be a summary offence subject to a maximum penalty of a level 5 fine.