Office of Public Sector Information
305.The section does nothing to alter the position regarding breach of a community order that already contains an unpaid work requirement; in such a case there is no minimum amount by which the period of unpaid work may be increased. This section affects neither the 40 hour minimum period of unpaid work that may be imposed as a requirement of a community order at the point of sentence, nor the existing maximum of 300 hours that applies to unpaid work, whether imposed as a sentence or for breach.
306.At present where a magistrates’ court would, but for section 89 of the 2000 Act (which restricts courts from imprisoning persons aged under 21), have power to commit to prison a person under the age of 18 for a default consisting in failure to pay a sum adjudged to be paid by a conviction, for instance a fine, the court may take enforcement proceedings against the parent or guardian under section 81 of the Magistrates’ Courts Act 1981. This section makes provision in subsections (1) and (2) for a magistrates’ court to impose a youth default order if a person aged under 18 defaults on a fine imposed following a conviction, instead of taking proceedings against the parent or guardian. A youth default order may require the court to order the young person in default to undertake unpaid work (if the person is 16 or 17), attend an attendance centre or be subject to a curfew.
307.Subsection (4) provides for a power to impose electronic monitoring of a curfew requirement imposed under subsection (2).
308.Subsection (5) allows a court to postpone making a youth default order if expedient.
309.Subsection (6) provides that certain provisions relating to YROs have effect in relation to youth default orders with the modifications set out in Schedule 7.
310.Subsections (7) and (8) provide for the youth default order to cease to have effect if the sum owed is paid in full and for the total number of hours or days specified in the default order to be reduced by a proportion if part payment is made.
311.Paragraph 2 modifies paragraph 10 of Schedule 1 to amend the number of hours of unpaid work that can be specified in the youth default order. It sets out in a table the maximum number of hours of unpaid work which may be required. This differs according to the amount which the offender has failed to pay.
312.Paragraph 3 modifies paragraph 12 of Schedule 1. It sets out in a table the number of hours which the offender may be required to attend an attendance centre. This differs according to the amount which he has failed to pay.
313.Paragraph 4 modifies paragraph 14 of Schedule 1. It sets out in a table the maximum number of days of curfew which may be imposed, which differs according to the amount owed by the offender.
314.Paragraph 5 modifies Schedule 2 to apply the provisions for breach, revocation or amendment to youth default orders.
315.Paragraph 6 provides the Secretary of State with the power to amend by order (subject to the affirmative resolution procedure) the amounts of money or number of hours or days set out in the tables in paragraphs 2, 3 and 4.
316.Paragraph 7 modifies Schedule 3 (transfer of orders to Northern Ireland) as it applies to youth default orders.
317.This section re-enacts, with appropriate modifications to make them applicable to the new sentencing framework, one of the fine default provisions in section 60 of the 2000 Act. That provision gives a court with the power to commit a fine defaulter aged under 25 to prison a power to send him or her to an attendance centre instead. Section 40 achieves the re-enactment by amending section 300 of the 2003 Act, which provides similar powers to impose unpaid work requirements or curfew requirements on fine defaulters as an alternative to committal to prison. Under section 300, an order imposing an unpaid work requirement or a curfew requirement is called a “default order”.
318.Section 41 inserts new paragraphs 9A, 9B and 9C into Part 3 of Schedule 5 to the Courts Act 2003.
319.Paragraph 9A empowers a designated officer in a magistrates’ court to ask for information about a person’s benefit status from the Secretary of State, in order to assist a court in deciding whether to make an application for benefits deductions. A person’s benefit status consists of the particular benefit of which he is in receipt, which deductions apply and how much money is finally received after those deductions have been made (paragraph 9C). It also allows certain other information, such as name and address, to be obtained. This enables the person in respect of whom the request is made to be identified.
320.Paragraph 9B places restrictions on the way in which this information can be used once it has been obtained and creates an offence to ensure that it is not used or disclosed in an unauthorised manner or otherwise than in accordance with the purposes intended.
321.Section 42 inserts a new section, section 16C, into the 1968 Act. There have been a number of cases in which the Court of Appeal has considered that it was obliged to quash a conviction solely because there has been a development in the common law, or in the interpretation of a statutory provision, since the date of the conviction. Where this would be the only ground for allowing an appeal, an extension of time in which to seek leave to appeal is usually refused if an application is made directly to the Court of Appeal. However, when cases are referred to the Court by the CCRC, this leave is not required and convictions in such cases have been required to be quashed, even though the Court might well have refused leave had leave been required.
322.Subsection (1) of new section 16C lists the provisions under which the CCRC may refer cases to the Court of Appeal, including old cases where the verdict was guilty but insane. Subsections (2) and (3) provide that where the only ground for allowing the appeal is that there has been a development in the law since the date of conviction, the Court may dismiss the appeal if they would have refused an extension of time within which to seek leave to appeal.
323.In asking itself whether it would have refused an application for an extension of time, the Court must assume that the appellant would have been entitled to make such an application. This is necessary to prevent the condition in subsection (3) being met simply because the applicant has previously appealed or applied for leave.
324.Section 43 makes similar provision to that in section 42 in respect of Northern Ireland.
325.Section 44 alters the test in subsection (5) of section 61 of the 2003 Act for ordering a retrial (or that the trial should resume) where the Court of Appeal allow a prosecution appeal against a terminating ruling. At present where the prosecution successfully appeal against a judge’s decision that has the effect that proceedings should stop (for example on a submission at the end of the prosecution evidence that the defendant has no case to answer), the defendant must be acquitted unless the Court consider it "necessary in the interests of justice" for the trial to continue or for a fresh trial to take place. The substituted subsection (5) has the effect that the trial must continue or a fresh trial must take place unless the Court considers that the defendant could not receive a fair trial.
326.Section 45 makes similar provision to that in section 44 in respect of Northern Ireland.
327.Section 46 inserts new subsections (3A) and (3B) into section 36 of the 1988 Act. Under section 36 of the 1988 Act, the Attorney General has the power to refer cases concerning certain offences to the Court of Appeal on the grounds that the sentence imposed is unduly lenient. The Court of Appeal then has the discretion to quash the sentence and, replace it with one that it considers appropriate for the case. As a matter of sentencing practice, the Court of Appeal, when increasing a sentence which in its view is unduly lenient, sometimes operates a “double jeopardy” discount in favour of the offender to take account the fact that they are going through the sentencing process for a second time.
328.A person who is the subject of a life sentence or another indeterminate sentence has no certain prospect of a particular release date. Section 272 of the 2003 Act amended section 36 of the 1988 Act to prevent the Court of Appeal from applying such a “double jeopardy” discount in referred cases relating to minimum term orders under section 269(2) of the 2003 Act (mandatory life sentence cases). Section 46 extends this to cases relating to minimum term orders under section 82A(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (discretionary life sentence cases and other indeterminate sentences). The effect is that the practice of allowing a “double jeopardy” discount is abolished in cases referred under section 36 of the 1998 Act in respect of the following types of sentence: a sentence of imprisonment for life; a sentence of detention during Her Majesty’s pleasure or for life under section 90 or 91 of the 2000 Act; a sentence of custody for life under section 93 or 94 of the 2000 Act; a sentence of imprisonment or detention for public protection under section 225 of the 2003 Act and a sentence of detention for public protection under section 226 of the 2003 Act.
329.Section 47 introduces Schedule 8. Paragraphs 2 to 5 of Schedule 8 amend sections 1, 11, 12 and 15 of the 1968 Act to impose a time limit of 28 days on the trial judge’s power to grant a certificate of fitness for appeal in England and Wales. This provides consistency between the time within which this power may be exercised and the 28 day limits on the Crown Court’s power to grant bail when a certificate is granted (see section 81 of the Supreme Court Act 1981) and on the giving of notice of an application for leave to appeal (see section 18 of the 1968 Act). Paragraphs 15 to 17 of Schedule 8 make similar provision for Northern Ireland.
330.Paragraph 6 of Schedule 8 amends section 4 of the 1968 Act. It empowers the Court of Appeal in England and Wales, when they quash a conviction, to re-sentence the appellant for any other offence for which he was sentenced by the court below on the same day as he was sentenced for the conviction which has been quashed. This has general application, but is particularly likely to be of use in cases in which a defendant has received an indeterminate sentence of imprisonment for public protection for an offence that was subsequently successfully appealed and was also convicted of another offence, the seriousness of which was reflected in the tariff for the indeterminate sentence rather than in a separate determinate sentence. Provided that the two sentences were originally passed on the same day, the new provision enables the Court of Appeal to re-sentence the defendant in respect of the other offence, even if it was on a separate indictment, whereas at present it can only do so if both offences were on the same indictment. For the purposes of section 4, sentences which are passed on different days will, in effect, be treated as passed on the same day if the court in passing any one of them states that it is treating them as substantially one sentence. Paragraph 18 of Schedule 8 makes similar provision for Northern Ireland.
331.Paragraphs 7 to 8 rationalise powers relating to interim hospital orders imposed by the Court of Appeal in England and Wales. Currently, where the Court impose such an order under section 6, 11, 14 or 16B of the 1968 Act, the powers to renew or terminate the order, to deal with the offender on termination, and to deal with the offender if he absconds, all lie with the court below.
332.The amendments will mean that, in an appealed case, interim hospital orders imposed by the Court of Appeal will now usually be extended and terminated by the Court itself, and the Court itself will be able to deal with the offender on termination of the order. There is an exception for offenders who abscond during an interim hospital order: absconders will be brought before and dealt with by the court below. These provisions will apply whatever section of the 1968 Act the Court originally used to impose the order. Paragraphs 19 and 20 of Schedule 8 make similar provision for Northern Ireland.
333.Paragraph 9 allows a single judge sitting in the Court of Appeal in England and Wales to exercise the power to renew (but not terminate) an interim hospital order which was imposed by the Court (section 31 of the 1968 Act is amended, as is the case with the provisions regarding single judges later in the schedule). This removes the need for a panel of Court of Appeal judges to decide what may be a routine unopposed extension. Paragraph 21 of Schedule 8 makes similar provision for Northern Ireland.
334.Paragraph 10 extends the powers of the Court of Appeal in England and Wales to compel the production of documents and the attendance of witnesses (under section 23 of the 1968 Act). It deals with three separate matters. Paragraphs 22 and 23 of Schedule 8 make similar provision for Northern Ireland.
335.First, it clarifies that the powers to order the production of documents and the attendance of witnesses, and to receive evidence, can be used for the purposes of determining applications for leave to appeal as well as the appeal itself.
336.Secondly, it ensures that the Court can call and compel to attend persons, such as jurors or lawyers, who may be able to give relevant evidence to the Court of Appeal because of their presence at trial or other involvement in the proceedings below. The Court already, in appropriate cases, receives evidence from such persons; this change merely ensures that the Court is able, when they think it necessary or expedient in the interests of justice, to compel the attendance of such persons and order their examination. Rules of legal professional privilege, and the common law prohibition on the Court inquiring into events in the jury room, will continue to apply. This change is not intended to allow the Court to compel a person to give evidence on appeal if he would have been immune from being compelled to give that evidence at trial because of his or her status as, for example, the accused, a co-defendant, a spouse or a civil partner.
337.Thirdly, it clarifies that where the Court orders the production of a document, it can require production to the Court itself or to the appellant or the respondent.
338.Paragraph 11 of Schedule 8 allows a single judge to exercise the power to give leave to appeal in certain interlocutory appeals in England and Wales. This removes an omission whereby a single judge could grant leave in the majority of appeals but could not do so in appeals against decisions made at preparatory hearings under section 9 of the Criminal Justice Act 1987 or under section 35 of the Criminal Procedure and Investigations Act 1996. Paragraph 25 of Schedule 8 makes similar provision for Northern Ireland.
339.Paragraph 12 allows a single judge to make directions that cannot be appealed to a full Court of Appeal in England and Wales. The intention is that this power should normally be exercised by the Lord Justice who will preside at the appeal hearing proper. This is intended to allow the Court of Appeal to deal quickly and efficiently with procedural issues.
340.Paragraph 13 provides that, when the prosecution successfully appeals from the Court of Appeal in England and Wales to the Supreme Court (currently, the House of Lords), an offender can be compelled to serve out any remainder of his sentence unless the Court of Appeal have actively made an order to the contrary effect. It addresses a problem relating to cases where the Court of Appeal have determined in the appellant’s favour but which are to be appealed to the Supreme Court. The provisions ensure that in such a case the Court can no longer simply release the applicant (with the effect, currently, that he is immune from further detention whatever the decision of the Supreme Court) but will be obliged to order either his continued detention, or that he not be released except on bail, or that he be released without bail. Only if the Court order release without bail will the appellant have no further liability to detention as a result of the decision of the Supreme Court. This provision will ensure that an applicant will be liable to continue serving any remainder of his sentence if the Supreme Court find against him, unless the Court of Appeal have made an explicit decision that it is in the interests of justice that the defendant should not be liable to further detention. Paragraph 24 of Schedule 8 makes similar provision for Northern Ireland.
341.Paragraph 26 of Schedule 8 makes consequential amendments to section 5 of the Administration of Justice Act 1960 in connection with the detention or release on bail of defendants pending appeal to the Supreme Court in England and Wales (currently, the House of Lords), as outlined in paragraph 13. These consequential amendments will affect those who appeal to the Supreme Court from a decision of the High Court in a criminal cause or matter.
342.Paragraphs 27 and 28 of Schedule 8 amend section 49 of the Judicature (Northern Ireland) Act 1978 and section 155 of the 2000 Act to increase from 28 to 56 days the time within which the Crown Court can vary or rescind a sentence. This will allow more time for correction of errors and is therefore intended to reduce the number of cases requiring the attention of the Court of Appeal. An example of a case in which this provision might be used is where deduction from sentence for time served in custody on remand has been made on the basis of inaccurate or incomplete information. There will no longer be a separate time limit applying to sentences imposed following a joint trial on an indictment; the 56-day limit will apply in all cases, beginning on the day on which the sentence was imposed.
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.
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 3inserts new sections 66A to 66H into the 1998 Act.
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).
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.
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.
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.
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
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.
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
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.
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 6of 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.
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”).
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.
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 -
summary offences, or
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:
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.
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.
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.
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.
Paragraph 6 applies if the defendant is in custody under the sentence of a court or officer under the Armed Forces Act 2006.
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.
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.
Paragraph 9 applies paragraphs 6A to 6C of Part 1 (exception applicable to drug users in certain areas) to defendants falling within Part 1A.
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.
Criminal Justice and Immigration Act 2008