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Criminal Justice and Immigration Act 2008

Commentary on Sections

Schedule 26: Minor and consequential amendments

841.Paragraph 1 amends section 81(3) of the Magistrates’ Courts Act 1980 to ensure that the court cannot impose a youth default order unless the court has inquired into the defaulter’s means in his presence on at least one occasion since the conviction.

842.Paragraph 2(4) amends Schedule 31 to the 2003 Act, which operates in conjunction with section 300 of that Act, as amended by section 24. Section 300, as amended, gives a court which has the power to commit an offender to prison for fine default the alternative of imposing a default order with an unpaid work requirement, a curfew requirement or an attendance centre requirement. Schedule 31 modifies the provisions governing the length of the unpaid work and curfew requirements of community orders set out in sections 199 and 204 of the 2003 Act, respectively. It sets out in tabular form the maximum periods of unpaid work or curfew which may be imposed corresponding to the amount of the sum in default.

843.Paragraph 2(4) amends Schedule 31 to make similar provision for default orders with attendance centre requirements. The attendance centre requirement of a community order is governed by section 214 of the 2003 Act. That provision is modified so that the minimum number of hours at an attendance centre to which an offender may be made subject under a default order remains at 12, but a table sets the maximum number of hours corresponding to the sum in default.

844.Paragraph 3 updates the definition of a young offender institution. At present it is defined in section 43(1)(aa) of the Prison Act 1952 as places for the detention of offenders sentenced to detention in a young offender institution or to custody for life. This is outdated as offenders under the age of 18 may no longer receive these sentences. Paragraph 3 amends the definition to make it clear that uoung offender institutions are also places for the detention of other offenders ie including those under 18 years of age.

845.Paragraph 4 updates the provisions in the Criminal Justice Act 1961 relating to harbouring an offender who is unlawfully at large, to take account of the wording in the Powers of Criminal Courts (Sentencing) Act 2000 relating to the power to place young people sentenced to a detention and training order.

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

847.Paragraph 6 makes a very minor change in section 13A(3) of the Criminal Appeal (Northern Ireland) Act 1980. Section 13(A)(1) refers to two findings; that the person is unfit to be tried; and that he did the act etc charged against him: and permits an appeal "against either or both of those findings". Section 13(A)(3) presently empowers the Court of Appeal to allow an appeal "if it thinks that the finding is unsafe". However since there are potentially 2 findings that may be appealed it is more appropriate to refer to "a finding", rather than "the finding."

848.Paragraph 7 ensures that section 19XA(1) of the Wildlife and Countryside Act 1981 (constables’ powers in connection with samples) correctly refers to constables’ powers of entry in section 19 of that Act.

849.Paragraph 8 amends section 37(1A) of the Mental Health Act 1983 (powers of court to order hospital admission or guardianship) to reflect the amendments which restore judicial discretion to the sentencing of offenders to public protection sentences. For the purposes of section 37, the only clarification still needed is that, where a court has to sentence an offender to life, that does not prevent it from ordering the offender’s admission to a hospital.

850.Paragraphs 9 to 18 make consequential amendments to the Repatriation of Prisoners Act 1984 to enable the new provisions to work within the existing framework of the Act. Paragraphs 27, 30, 51, 52 and 73make consequential amendments to other legislation to ensure references to transferred prisoners include prisoners for whom responsibility for the sentence is transferred by virtue of a warrant under section 4A, where appropriate.

851.Paragraph 19 amends the position for prisoners repatriated to the United Kingdom under the Repatriation of Prisoners Act 1984 insofar as they are to be treated in the same way as domestic prisoners in terms of their release from custody and can therefore benefit from the new release, recall and re-release provisions contained in the Act.

852.Paragraph 20 makes a consequential amendment to section 37B of PACE so that, where a young offender is referred by the police to a prosecutor for a decision on charging, the prosecutor may decide whether or not that person should be given a youth conditional caution.

853.Paragraph 21 ensures that on devolution of criminal justice functions in Northern Ireland superintendence of the work of the Serious Fraud Office in Northern Ireland is transferred from the new locally-appointed Attorney General for Northern Ireland to the Westminster-based Advocate General for Northern Ireland.

854.The Justice (Northern Ireland) Act 2002, in preparation for the devolution of criminal justice matters in Northern Ireland, provided for the appointment of an Advocate General for Northern Ireland and the removal of the Attorney General’s responsibilities for prosecutorial matters either by delegating them to the DPP for Northern Ireland or by transferring them to the Advocate General. The 2002 Act failed to make a consequential amendment to the provisions of the Criminal Justice Act 1987 in so far as they relate to the powers of the Attorney General in respect of the Serious Fraud Office.

855.Paragraphs 22 and 23 amend section 36 of the 1988 Act (reviews of sentencing). Section 36 allows the Attorney General, with the leave of the Court of Appeal, to refer a case to them for a sentencing review where, in the Attorney General’s view, the court failed to impose a sentence required by law. In consequence of the restoring of judicial discretion as regards the making of public protection sentences, section 36 should now only refer to section 225(2) or 226(2) of the 2003 Act (requirement on court to impose sentence of imprisonment for life or detention for life).

856.Paragraph 24 corrects an amendment made in error to section 160(1) of the 1988 Act by the Sexual Offences Act 2003.

857.Paragraph 25 makes a consequential amendment to the Criminal Justice (Evidence, Etc.)(Northern Ireland) Order 1988 to take account of the revised definition of a photograph in section 70.

858.Paragraph 26adds the offences in Part 3A of the Public Order Act 1986 (hatred against persons on religious grounds or grounds of sexual orientation), as amended by Schedule 16, to the list of trigger offences for football banning orders contained in Schedule 1 to the Football Spectators Act 1989.

859.Paragraph 28 amends section 167 of the Broadcasting Act 1990, which confers a power on a justice of the peace, where a relevant offence is suspected, to issue an order requiring the production of a recording of a programme for the purposes of making a copy. By virtue of section 167(4) of the Broadcasting Act, the power does not apply where a warrant could be granted under section 24 of the Public Order Act 1986 (racial hatred – powers of entry and search). Paragraph 28(2) amends section 167(4) of the Broadcasting Act to include a reference to section 29H of the 1986 Act, which contains the equivalent powers to those in section 24 in respect of Part 3A of the Public Order Act 1986 (hatred against persons on religious grounds or grounds of sexual orientation). Paragraph 28(3) extends the definition of a “relevant offence”, which currently includes that in section 22 of the 1986 Act (broadcasting or including a programme in a programme service threatening, abusive or insulting visual images or sounds), to include the parallel offence in section 29F of the Public Order Act 1986.

860.Paragraph 29(3) amends section 44 of the 1991 Act to provide that the definition of “liable to removal from the United Kingdom” applies to extended sentence prisoners. This is required as a result of section 33(6), which removes exclusions to the early removal scheme and which means that extended sentence prisoners may now be eligible for early removal under the scheme.

861.Paragraph 29(4) amends section 46 of the 1991 Act to provide that the definition of “liable to removal from the United Kingdom” applies to sections 46A, 46ZA and 46B, which set out the early removal scheme.

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.

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