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862.Paragraph 32ensures that those prisoners who transfer from England and Wales to another UK jurisdiction on a restricted transfer under the provisions of the Crime (Sentences) Act 1997 will be subject to the new release and recall arrangements.

863.Paragraph 34 amends section 38 of the 1998 Act to extend the youth justice services provided by youth offending teams to include the provision of assistance to relevant prosecutors for the purpose of determining whether a youth conditional caution should be given to an offender, and the supervision and rehabilitation of offenders who have been given a youth conditional caution.

864.Paragraphs 35 to 39 make amendments to the Youth Justice and Criminal Evidence Act 1999 to re-include certain offences within the lists of sexual offences for which particular procedural protections provided for by that Act are available for complainants and other witnesses giving evidence in criminal trials.

865.Paragraphs 36 and 37 amend sections 35 and 62 respectively of the Youth Justice and Criminal Evidence Act 1999 to ensure that the procedural protections whose application hinges on those provisions apply to all relevant witnesses and complainants in trials not only for offences committed under the Sexual Offences Act 2003 but also for offences committed under earlier sexual offences legislation, most of which has now been repealed.

866.Paragraph 38 provides that, on commencement, these amendments will be deemed to have had effect from 1 May 2004, when the Sexual Offences Act 2003 came into force. Paragraph 39 ensures that the retrospective correction will also apply to proceedings in military service courts.

867.Paragraph 41 amends section 12 of the 2000 Act (absolute and conditional discharge) to reflect the amendments which restore judicial discretion in the sentencing of offenders to public protection sentences. The amendment provides that, if the offence for which the offender is charged falls under sections 225(2) or 226(2) of the 2003 Act (requirement to impose sentence of imprisonment for life or detention for life), the court does not have power under the 2000 Act to impose an absolute or conditional discharge.

868.Paragraphs 44 updates section 92 of the 2000 Act to reflect the current arrangements for placing young people sentenced to be detained under section 90 or 91 of that Act.

869.Paragraphs 46 to 48 amend sections 130 (compensation orders), 146 (driving disqualification for any offence) and 164 (further interpretative provisions) of the 2000 Act to reflect amendments restoring judicial discretion in the sentencing of offenders to public protection sentences. The amendments provide that compensation orders and driving disqualification may be ordered instead of, as well as additional to, any public protection sentence.

870.Paragraph 50 amends section 1 of the Criminal Justice and Court Services Act 2000 to remove the reference to authorised persons so that assistance can be given to prosecutors (as well as authorised persons) in determining whether youth conditional cautions should be given and which conditions to attach to youth conditional cautions.

871.Paragraph 56 amends the definition of “cautioned” in section 133(1) of the Sexual Offences Act 2003 to remove reference to a caution having been given by a police officer. This will ensure that conditional cautions, which may be given by persons other than a police officer, are covered by the definition of cautions for the purposes of that Act.

872.Paragraphs 60 and 62 amend the 2003 Act to alter the provision made about the payment of financial penalties imposed under the adult conditional caution scheme. This is in line with the provision made by Schedule 9 for youth conditional cautions. Further provision about the payment of financial penalties will be included in the Code of Practice.

873.Paragraph 61 amends the 2003 Act so as to clarify that a relevant prosecutor may, with consent, add or omit a condition following breach of the original condition under the conditional cautions scheme.

874.Paragraph 63 amends sections 88, 89 and 91 of the 2003 Act. Part 10 of the 2003 Act reformed the law relating to double jeopardy. Sections 87 to 91 of the 2003 Act set out the arrangements for the arrest, custody and bail of acquitted persons under the new provisions. Sections 88, 89 and 91 provide that certain matters must be dealt with by the Crown Court or, as the case may be, the Court of Appeal. A potential difficulty has come to light in that, unlike the High Court and the magistrates’ court, the Crown Court and the Court of Appeal do not sit in urgent cases on Saturdays. In order to meet the time limits contained in the 2003 Act, a suspect would in exceptional circumstances have to be brought before these courts on a Saturday. Although double jeopardy cases are very rare, the amendment will prevent the situation from arising even theoretically.

875.Paragraphs 64 to 69 amend sections 142 (purposes of sentencing), 150 (circumstances in which community sentence not available), 152 (general restrictions on imposing custodial sentences), 163 (general power of Crown Court to fine) and 305 (interpretation of Part 12) of the 2003 Act. The amendments are needed in consequence of the changes made by sections 13 to 18 (which give judges more discretion in the sentencing of dangerous offenders).

876.Paragraph 79 makes consequential amendments to the definition of "Convention Offences" in Schedule 1 to the Terrorism Act 2006. This ensures that the Schedule to that Act accurately reflects the new list of offences set out in the amended Nuclear Material (Offences) Act 1983 and Customs and Excise Management Act 1979.

877.Paragraph 80 ensures that where enforcement powers for wildlife inspectors contained in the Wildlife and Countryside Act 1981 are extended to other wildlife legislation, including penalties for offences in relation to those powers, the offences themselves are also extended.

878.Paragraph 81 corrects two minor errors in the Police and Justice Act 2006.

879.Paragraph 82 amends Schedule 2 to the Armed Forces Act 2006 to include in the list of offences contained therein the offences under sections 29B to 29G of the 1986 Act (incitement to hatred against persons on religious grounds or hatred on the grounds of sexual orientation), in addition to the parallel offences in sections 18 to 23 of that Act (incitement to racial hatred) which are already listed. Section 113 of the Armed Forces Act 2006 requires a commanding officer to notify a service police force when he becomes aware that a serious offence has or may have been committed by a person under his command. Section 116 requires a service policeman who considers there is sufficient evidence to charge a person with a serious offence, or an offence prescribed by regulations made by the Secretary of State under section 128, to refer the case to the Director of Service Prosecutions. Schedule 2 lists those serious offences to which section 113 and section 116 apply. They include serious disciplinary offences, such as mutiny and desertion, and serious criminal offences, such as murder, manslaughter and certain sexual offences.

880.Paragraph 83 amends section 1 of the Offender Management Act 2007 to remove the reference to authorised persons so that assistance can be given to anyone able to issue a conditional caution and to assist them with which conditions to attach to conditional cautions.

Section 149 and Schedule 28: Repeals and revocations

881.This section introduces Schedule 28 (repeals and revocations).

Section 150: Financial provisions

882.This section authorises out of money provided by Parliament any expenditure incurred by a Minister of the Crown under the Act. It also authorises any additional expenditure incurred under any other Acts, where that additional expenditure results from the Act.

Section 151: Effect of amendments to criminal justice provisions applied for the purpose of service law.

883.This section clarifies that unless the contrary intention appears any amendment made by the Act, other than under Part 1, to criminal justice legislation which has been applied for the purposes of service law also amends the provisions as applied.

Section 152: Extent

884.This section sets out the extent of the provisions of the Act. This is detailed in paragraphs 100 to 106 above. Subsection (10) clarifies that section 76 (reasonable force for purposes of self-defence etc.) will operate outside the United Kingdom in relation to offences triable in service courts or which may be dealt with summarily by commanding officers in the armed forces, as the common law rules relating to self defence apply in relation to the armed forces wherever they are.

Section 153: Commencement

885.This section provides for commencement. The provisions mentioned in paragraph 887 and 888 below will come into force either on Royal Assent or 2 months after Royal Assent. The other provisions of the Act are, with two exceptions, to be brought into force by means of orders made by the Secretary of State or the Lord Chancellor. The exceptions are those parts of sections 119 to 121 in relation to nuisance and disturbance on Welsh NHS premises which will be brought into force by order made by Welsh Ministers and section 122 and Schedule 21 (nuisance or disturbance on HSS premises) which will be brought into force by order made by statutory rule by the Northern Ireland Department of Health, Social Services and Public Safety.

Section 154: Short title

886.This section sets out the short title of the Act.

Commencement

887.The following provisions of the Act came into force on Royal Assent:

• Section 53 and Schedule 13 which amend Schedule 3 to the 2003 Act, which makes provision in relation to the allocation of offences triable either way and the sending of cases to the Crown Court. Commencement of the amendments to Schedule 3 to the 2003 Act will not have any material effect until Schedule 3, as amended, is itself commenced;

• Section 77 which introduces a power of the Secretary of State to make an order altering the maximum penalty for unlawfully obtaining etc. personal data;

• Section 128 which amends section 57 of the Police Act 1996 which makes provision for the Secretary of State to provide and maintain organisations which promote the efficiency and effectiveness of the police;

• Sections 138(1) to (4) and 139 which reintroduce a statutory prohibition on prison officers in England and Wales taking industrial action;

• Part 12, Sections 147, 148(3) to (7), 150, 152 to 154;

• Paragraph 6(3) and 12 to 16 of Schedule 16 (and the related appeals in Schedule 28) which make amendments to Part 3A of the Public Order Act 1986; and

• Paragraphs 35 to 39 of Schedule 26 which amend the provisions in the Youth Justice and Criminal Evidence Act 1999 intended to protect rape complainants from cross-examination about their previous sexual history;

888.The following provisions of the Act will come into force two months after Royal Assent:

• Section 62, which repeals the requirement to publish an annual report on the workings of the Criminal Justice (Terrorism and Conspiracy) Act 1998;

• Sections 69 and 70 and related provisions which extend the definition of an indecent photograph in the Protection of Children Act 1978 (and the equivalent Northern Ireland legislation) to include a tracing or other image derived from a photograph;

• Section 79 and the related repeals in Part 5 of Schedule 28, which abolishes the common law offences of blasphemy and blasphemous libel; and

• Paragraphs 2 to 7 of Schedule 15 which amend the Sexual Offences Act 2003 in relation to adoption.

889.All other provisions will be brought into force by means of commencement orders.

Hansard References

890.The following table sets out the dates and Hansard references for each stage of the Act’s passage through Parliament.

Royal Assent – 8 May 2008 House of Commons Hansard Vol. 475 Col. 851

House of Lords Hansard Vol. 701 Col. 669

A Glossary