Part 4: Other Criminal Justice Provisions

Section 48: Alternatives to prosecution for offenders under 18

343.     Subsection 1 gives effect to Schedule 9 which makes provision for Youth Conditional Cautions. Similar provision for adult conditional cautions is made in Part 3 of the 2003 Act, as amended by sections 17 and 18 of the Police and Justice Act 2006. The Schedule also amends section 65 of the 1998 Act which relates to reprimands and final warnings.

344.     Subsection (2) provides the Secretary of State with the power (subject to the affirmative resolution procedure) to amend the provisions in new sections 66A-66H of the Crime and Disorder Act 1998 in respect of youth conditional cautions for those aged 15 and under. This is necessary because the needs and specific requirements of those aged 10-15 are likely to be different from those aged 16 and 17. Subsequent to consultation on the younger age range, it may be necessary to amend the provisions on youth conditional cautions for this age group.

Schedule 9: Alternatives to prosecution for offenders under 18

345.     Paragraph 2 amends section 65 of the 1998 Act. That section provides for the giving of reprimands and final warnings to children and young offenders. Paragraph 2(2) amends section 65(1) of the 1998 Act which sets out the conditions that must be satisfied before a reprimand or warning may be given. Paragraph 2(2)(a) amends section 65(1)(b) - which requires a constable to be satisfied that, on the evidence, there would be a realistic prospect of the offender being convicted - so as to bring it into line with the equivalent test for adult conditional cautions, namely that there is sufficient evidence to charge the offender with the offence. No practical difference is intended between the existing and revised test. Paragraph 2(2)(b) amends the test in section 65(1)(d) so that no young person may be given a reprimand or warning where he or she has previously been given a youth conditional caution. Paragraph 2(3) amends section 65(3) so as to require a constable, when considering whether to warn a young person (who has previously received a warning), to be satisfied that the offence is not so serious as to require either (as now) the person to be charged or a youth conditional caution to be given. Paragraph 2(4) amends section 65(6), which places a duty on the Secretary of State to issue guidance in respect of reprimands and warnings. As a result of the amendment, such guidance will need to set out the criteria for determining whether an offence is not so serious as to require the offender to be charged (as now), or given a youth conditional caution.

346.     Section 65(8) of the 1998 Act prohibits the giving of any caution to a child or young person other than a reprimand or warning. Paragraph 2(6) amends this provision so as to exclude youth conditional cautions from the prohibition (children and young persons will, as now, be ineligible to receive a "simple" police caution).

347.     Paragraph 3 inserts new sections 66A to 66H into the 1998 Act.

New section 66A of the 1998 Act: Youth conditional cautions

348.     New section 66A of the 1998 Act defines a youth conditional caution and provides that it may be given to a young person aged 10 to 17 if the offender has not previously been convicted of an offence and five other requirements, listed in new section 66B, are met. The conditions which may be imposed are restricted to those aimed at the rehabilitation of the offender, ensuring that the offender makes reparation for the offence or punishing the offender.

349.     New section 66A(4) provides that the conditions that may be included in a youth conditional caution may include the imposition of a financial penalty and/or a requirement for attendance at a specified place at a specified time (which might include completion of a specified activity). The provision for a financial condition is subject to new section 66C. New section 66A(5) provides that where a condition involves an attendance requirement, the maximum number of hours is restricted to no more than 20 hours in total. This 20 hour limit does not apply to an attendance requirement imposed for the purpose of facilitating the offender's rehabilitation. This is to permit rehabilitative conditions involving, for example, drug or alcohol treatment programmes that may take longer than 20 hours in total. By virtue of new section 66A(6) this figure of 20 hours may be amended by order (subject to the affirmative resolution procedure). A youth conditional caution may be given by an authorised person as defined in new section 66A(7).

New section 66B of the 1998 Act: The five requirements

350.     New section 66B of the 1998 Act sets out the requirements which need to be met for a youth conditional caution to be given. The requirements are that there is evidence against the offender; that a "relevant prosecutor" (as defined in new section 66H) considers that the evidence would be sufficient to charge him or her and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of what the caution (and failure to comply with it) would mean; and that he or she signs a document containing details of the offence, the admission, the offender's consent to the caution, and the conditions imposed. Where the offender is aged 16 or under the explanation about the effect of a youth conditional caution must be made in the presence of an appropriate adult.

New section 66C of the 1998 Act: Financial penalties

351.     This new section makes provision in relation to a condition that the offender pay a financial penalty, called a "financial penalty condition". New section 66C(1) specifies that a financial penalty condition may not be attached to a youth conditional caution given in respect of an offence unless the offence in question is one prescribed, or of a description prescribed, in an order made by the Secretary of State (subject to the negative resolution procedure). New section 66C(2) requires that an order under new section 66C(1) must also specify the maximum amount of the financial penalty that may be specified for each offence or description of offence.

352.     New section 66C(3) provides that the maximum financial penalty prescribed for an offence must not exceed £100. New section 66C(4) provides that this limit may be amended by order (subject to the affirmative resolution procedure save where the £100 limit is being updated only to account for inflation in which case the negative procedure applies).

353.     The financial penalty condition is intended to be a requirement to pay money that is imposed for the purposes of punishing an offender. It does not preclude an offender also being required to pay compensation to victims for the purpose of making reparation for the offence, or to pay a sum of money to a charity by way of indirect reparation to the community.

New section 66D of the 1998 Act: Variation of conditions

354.     New section 66D makes express provision for the conditions attached to a youth conditional caution to be varied with the consent of the offender. Such variation may include the addition or omission of any condition.

New section 66E of the 1998 Act: Failure to comply with the conditions

355.     New section 66E provides that if the offender fails without reasonable excuse to comply with the conditions attached to the conditional caution he or she may be prosecuted for the offence. If proceedings are commenced the document referred to in new section 66B(6) is admissible in evidence, and the conditional caution ceases to have effect.

356.     New section 66E(4) and (5) apply section 24A of the 2003 Act with the necessary modifications. Section 24A confers on a constable a power of arrest without warrant where an offender is suspected of having breached the conditions of a conditional caution without reasonable excuse; this is in order to enable a quicker, more effective means of facilitating prosecution for the original offence

New section 66F of the 1998 Act: Restriction on sentencing powers where youth conditional caution given

357.     New section 66F provides that, save in exceptional circumstances, a court may not, when sentencing an offender who has been given a youth conditional caution in the period of two years preceding the commission of the offence for which he is being sentenced, sentence that person to a conditional discharge. Where the court is satisfied that exceptional circumstances are present, the sentencer must state in open court why he or she is so satisfied.

New section 66G of the 1998 Act: Code of practice on youth conditional cautions

358.     This new section makes provision for the Secretary of State, with the consent of the Attorney General, to publish a Code of Practice setting out, amongst other things, the circumstances in which youth conditional cautions may be given, how they are to be given and who may give them, the conditions which may be imposed and for what period, and arrangements for monitoring compliance.

359.     The Secretary of State is required to publish the Code in draft and to consider any representations regarding it. The completed Code must then be laid before Parliament. The Code is then brought into force by an order. The first such order will be subject to the affirmative resolution procedure and any subsequent orders will be subject to the negative resolution procedure

New section 66H of the 1998 Act: Interpretation

360.     New section 66H defines various terms used in Chapter 1 of Part 4 of the 1998 Act, as amended.

361.     Paragraph 4 of Schedule 9 amends section 114 of the 1998 Act to specify the appropriate parliamentary procedure for each of the new order-making powers conferred by new sections 66A, 66C, 66G and 66H.

Section 49 and Schedule 10: Protection for spent cautions under the Rehabilitation of Offenders Act 1974

362.     Section 49 introduces Schedule 10 which amends the 1974 Act so as to provide protection of spent cautions.

363.     The 1974 Act supports the rehabilitation into society of reformed offenders. Under the Act, following a certain period of time (which varies according to the severity of the sentence passed), all convictions (except those resulting in prison sentences of over 30 months) are regarded as "spent". As a result the offender is regarded as rehabilitated. For most purposes the Act treats a rehabilitated person as if he or she had never committed an offence and, as such, they are not obliged to declare them, for example, when applying for a job. There are certain exceptions, including where an ex-offender is applying for certain positions or jobs, such as those involving work with vulnerable adults or children.

364.     The 1974 Act currently applies only to convictions. Schedule 10 amends the 1974 Act so as to apply its provisions, with appropriate modifications, to adult and youth conditional cautions, other cautions (for example, "simple" cautions issued by the police), reprimands and warnings given to children and young people, and cautions given in a jurisdiction outside England and Wales (see the definition of a caution in new section 8A(2) of the 1974 Act inserted by paragraph 3 of Schedule 10).

365.     Paragraph 4 of Schedule 10 inserts new section 9A into the 1974 Act; this makes provision in respect of the unauthorised disclosure of spent cautions (mirroring the provisions in section 9 of the 1974 Act relating to the unauthorised disclosure of spent convictions). New section 9A makes it an offence for a relevant person (that is, someone who in the course of his official duties has access to caution information) to disclose caution information otherwise than in the cause of his or her duties or for any person to obtain caution information through fraud, dishonesty or bribery. New section 9A(5) enables the Secretary of State, by order (subject to the affirmative resolution procedure), to except specified classes of disclosure from the ambit of the offence. A similar order-making power is contained in section 9(5) of the 1974 Act, although the power has not been exercised.

366.     Paragraph 6 of Schedule 10 inserts a new Schedule 2 into the 1974 Act. Paragraph 1 of new Schedule 2 sets out the rehabilitation period for spent cautions. In the case of "simple" police cautions, reprimands and warnings, and cautions given in a jurisdiction outside England and Wales, the caution becomes spent at the time it is given. In the case of adult and youth conditional cautions the caution becomes spent after three months. This rehabilitation period for a conditional caution is extended where the offender is subsequently prosecuted and convicted for the offence in respect of which the conditional caution was given. In such cases the rehabilitation period for the caution is extended so that it is the same as the rehabilitation period for the offence.

367.     Paragraph 3 of new Schedule 2 to the 1974 Act sets out the protection afforded to persons relating to their spent cautions and the ancillary circumstances in relation to such cautions (this term is defined in paragraph 2 of new Schedule 2 and includes the offence in respect of which the caution was given and any proceedings in relation to that offence). As a result of the protections afforded, no one may ask a question in civil proceedings that might lead to the disclosure of a spent caution and any person with a spent caution applying for a job can truthfully answer "no" if asked if he or she has ever been cautioned. Failure to disclose a spent caution may not be taken as grounds for dismissing a person from employment. Under new paragraph 4 of Schedule 2 the Secretary of State may, by order (subject to the affirmative resolution procedure), specify exceptions to the protections afforded under paragraph 3. It is expected that such exceptions will be similar to those specified in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023), as amended, which, amongst other things, sets out kinds of employment, such as working with children and vulnerable adults, where spent cautions must still be disclosed.

368.     Paragraph 5 of new Schedule 2 to the 1974 Act ensures that the protections afforded by paragraph 3 do not affect the operation of the caution itself (for example, if the conditions attached to a conditional cautions apply for a period longer than 3 months) or the operation of any enactment, for example section 65 of the Crime and Disorder Act 1998 which prevents the police from giving a child or young person more than 2 warnings and/or reprimands.

369.     Paragraph 6 of new Schedule 2 to the 1974 Act applies, with modifications, section 7 of the 1974 Act which places limitations on the effect of rehabilitation under the Act.

Section 50: Criminal conviction certificates and criminal record certificates

370.     Section 50 makes amendments to Part 5 of the Police Act 1997 (the 1997 Act) consequential upon bringing cautions within the ambit of the 1974 Act. Part 5 of the 1997 Act provides the statutory framework for the disclosure of criminal records (under the aegis (in England and Wales) of the Criminal Records Bureau (CRB)) for employment and other purposes. Subsection (2) amends section 112 of the 1997 Act so that details of any unspent conditional caution would appear on a criminal conviction certificate (known as a CRB "Basic Disclosure"). Subsection (3) amends section 113A(6) of the 1997 Act so that details of spent cautions are included on criminal record certificates (CRB "Standard Disclosures") and enhanced criminal record certificates (CRB "Enhanced Disclosures").

Section 51: Bail conditions: electronic monitoring

371.     Section 51 introduces Schedule 11. Paragraph 1 of the Schedule introduces the amendments to the Bail Act 1976 that follow.

372.     Paragraph 2 of Schedule 11 extends section 3(6ZAA) of the 1976 Act to clarify the court's power to impose electronic monitoring of compliance with bail conditions on defendants aged 17 and over. It also adds a new subsection (6ZAB) to define electronic monitoring requirements.

373.     Paragraph 3 of Schedule 11 amends section 3AA of the 1976 Act, which sets out the conditions that must be satisfied before a court can order electronic monitoring of children and young persons, to make clear that it applies only to that age group, to reflect that electronic monitoring is now available across England and Wales and to remove some general provisions, which are transferred to a new section 3AC.

374.     Paragraph 4 of Schedule 11 inserts two new sections into the 1976 Act.

375.     New section 3AB, which corresponds to the amended section 3AA, sets out the conditions that must be satisfied before a court can order electronic monitoring of those who are 17 or over. These are that:

• without the imposition of an electronic monitoring requirement, the defendant would not be granted bail;

• the court is satisfied that the necessary provision for electronic monitoring can be made for the defendant; and

• in the case of those aged 17 the local youth offending team has advised the court that electronic monitoring is suitable in the particular case.

376.     New section 3AC is a general provision which deals with the arrangements for electronic monitoring and the associated powers of the Secretary of State. It gives the Secretary of State the power to make an order designating certain individuals as responsible officers for the supervision of electronic monitoring. It also requires the court to appoint a responsible officer in each case where it orders electronic monitoring. In addition, the Secretary of State may make rules regulating electronic monitoring and the functions of responsible officers.

377.     Paragraph 5 of Schedule 26 makes some consequential amendments to section 23AA of the Children & Young Persons Act 1969, which provides for the electronic monitoring of those remanded into local authority accommodation.

Section 52 and Schedule 12: Bail for summary offences and certain other offences to be tried summarily

378.     Section 52 and Schedule 12 amend the 1976 Act to restrict the grounds on which a person charged with an imprisonable summary offence or a relevant low-level criminal damage offence may be refused bail.

379.     Schedule 1 to the 1976 Act sets out the grounds on which a court may refuse bail in criminal proceedings (the "exceptions to the right to bail"): Part 1 of Schedule 1 currently applies where a defendant is accused or convicted of an imprisonable offence; Part 2 applies to non-imprisonable offences and has a more restricted list of exceptions than Part 1. Schedule 12 will disapply Part 1 for certain defendants, and instead insert and apply a new Part 1A. New Part 1A will include the four exceptions to the right to bail that are in Part 2 as well as four further exceptions, two of which derive from Part 1.

380.     Paragraph 2 of Schedule 12 amends section 3(6D)(a) of the 1976 Act so that the conditions of bail specified in that provision (which apply to persons for whom there is drug test evidence of a Class A drug and who are required to undergo a relevant assessment or participate in a follow-up) will still apply to defendants within new Part 1A.

381.     Paragraphs 3 to 5 of Schedule 12 insert a new section 9A into the 1976 Act and amend Part 1 of Schedule 1 to prescribe which defendants will fall within new Part 1A, which is inserted by paragraph 6. Part 1A will apply to a defendant charged with imprisonable offences that are -

a)     summary offences, or

b)     offences listed in Schedule 2 to the Magistrates' Courts Act 1980 (certain offences involving criminal damage), where the value involved is less than the relevant sum (currently £5000).

382.     For offences listed in Schedule 2 to the Magistrates' Courts Act 1980 (criminal damage, related offences, and certain forms of aggravated vehicle-taking), a defendant over 18 will fall within new Part 1A if, under the procedure in section 22 of the Magistrates' Courts Act 1980 (for determining mode of trial), the court has decided it is clear that the value involved does not exceed £5000. New section 9A provides for a court to take the same decision in relation to defendants under 18, for the purposes of applying the 1976 Act.

383.     Paragraph 1 of new Part 1A establishes which defendants fall within the new Part, and paragraphs 2 to 9 prescribe eight exceptions to the right to bail. Where an exception applies, the court need not grant bail to the defendant, but still has a discretion to do so which will be exercised having regard to all the circumstances of the case. The exceptions are as follows:

a)     Paragraph 2 applies if, having been granted bail previously, the defendant has failed to surrender to custody and the court believes that, if released on bail, he would do so again.

b)     Paragraph 3 applies if the defendant was on bail in criminal proceedings on the date of the offence and the court believes that, if released, he would commit an offence on bail.

c)     Paragraph 4 applies if there are substantial grounds to believe that, if released on bail, the defendant would commit an offence by engaging in conduct that would be likely to cause physical or mental injury, or fear of such injury.

d)     Paragraph 5 applies if the court is satisfied the defendant should be kept in custody for his own protection or, if a child or young person, for his own welfare.

e)     Paragraph 6 applies if the defendant is in custody under the sentence of a court or officer under the Armed Forces Act 2006.

f)     Paragraph 7 applies if, having been released on bail in proceedings for the same offence, the defendant was arrested under section 7 of the Bail Act (liability to arrest for absconding or breaking conditions of bail) and the court believes that, if released, he would:
• fail to surrender to custody;
• commit an offence while on bail,
• interfere with witnesses or
• otherwise obstruct the course of justice.

g)     Paragraph 8 applies if it has not been practicable to obtain enough information to take decisions required by Part 1A due to lack of time since the proceedings began.

h)     Paragraph 9 applies paragraphs 6A to 6C of Part 1 (exception applicable to drug users in certain areas) to defendants falling within Part 1A.

Section 53 and Schedule 13: Allocation of offences triable either way etc.

384.     Section 53 introduces Schedule 13, which amends Schedule 3 to the 2003 Act.

385.     Schedule 3 to the 2003 Act amends a number of Acts so as to provide a new scheme for determining the appropriate venue for either way cases together with a common mechanism, based on section 51 of the 1998 Act, for moving appropriate cases from the magistrates' court to the Crown Court.

386.     The amendments made by Schedule 3 to the 2003 Act achieve this through, firstly, a revised procedure (called allocation) for deciding whether a case that is triable either way should be heard in the magistrates' court or in the Crown Court; secondly, abolition of committal and transfer proceedings and the substitution of a sending procedure like that already used to get indictable-only cases to the Crown Court; and, thirdly, abolition of the general power, contained in section 3 of the 2000 Act, to commit for sentence, except on a guilty plea "before venue" or where an indefinite or extended sentence is required. Under the scheme, the general power of committal for sentence is abolished for cases that magistrates decide to hear.

387.     Most of the provisions of Schedule 3 to the 2003 Act are not yet in force.

388.     The principal amendment in Schedule 13, which is made by paragraph 7, is to preserve the general power of a magistrates' court to commit to the Crown Court for sentence an offender whom it has convicted after a summary trial, if it considers that a Crown Court sentence should be available. Paragraph 22 of Schedule 3 to the 2003 Act provided for this general power under section 3 of the 2000 Act to be replaced with a more limited power. As set out above, this limited the power to commit for sentence to cases where a defendant enters a guilty plea "before venue" (that is, before the court has made an allocation decision) to a serious either way offence which is beyond the magistrates' powers of punishment. Paragraph 22 has not been brought into force and paragraph 7 of Schedule 13 to the Act removes it from Schedule 3 (so that the general power in section 3 of the 2000 Act will be preserved).

389.     Although the general power to commit for sentence is preserved, paragraph 8 of Schedule 13 amends Schedule 3 to the 2003 Act to make amendments of section 3 of the 2000 Act. The most important of these is the repeal of subsection (2)(b). This subsection refers to the longer than commensurate sentence for violent and sexual offences in section 80 of the 2000 Act. As that section has now been repealed (subject to savings) and replaced by the dangerousness provisions in Chapter 5 of Part 12 of the 2003 Act, it is appropriate to repeal section 3(2)(b).

390.     Paragraph 3 modifies the warning about the possibility of committal for sentence that is to be given to a defendant offered summary trial under section 20(2) of the Magistrates' Courts Act 1980. Under that section, as substituted by paragraph 6 of Schedule 3 to the 2003 Act, the court must explain to the defendant that the case appears suitable for summary trial, that he can consent to be tried summarily or choose to be tried on indictment; and, in the case of a specified offence, if he consents to be tried summarily and is convicted, he may be committed to the Crown Court for sentence if he qualifies for a sentence of imprisonment for public protection or an extended sentence. The modified warning makes clear that the possibility of committal to the Crown Court for sentence also exists if the magistrates'court considers that a Crown Court sentence should be available (because the magistrates' sentencing powers are inadequate). The amendment made by paragraph 3 is in consequence of the restoration of the general power to commit for sentence (as discussed in the preceding paragraphs).

391.     The remaining paragraphs make minor amendments to Schedule 3 to the 2003 Act.