Part IV Dealing with offenders
Chapter I England and Wales
Sexual or violent offenders
F158. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I4C259 Effect of extended sentences.
For section 44 of the 1991 Act there shall be substituted the following section—
44 Extended sentences for sexual or violent offenders.
1
This section applies to a prisoner serving an extended sentence within the meaning of section 58 of the Crime and Disorder Act 1998.
2
Subject to the provisions of this section and section 51(2D) below, this Part, except sections 40 and 40A, shall have effect as if the term of the extended sentence did not include the extension period.
3
Where the prisoner is released on licence under this Part, the licence shall, subject to any revocation under section 39(1) or (2) above, remain in force until the end of the extension period.
4
Where, apart from this subsection, the prisoner would be released unconditionally—
a
he shall be released on licence; and
b
the licence shall, subject to any revocation under section 39(1) or (2) above, remain in force until the end of the extension period.
5
The extension period shall be taken to begin as follows—
a
for the purposes of subsection (3) above, on the date given by section 37(1) above;
b
for the purposes of subsection (4) above, on the date on which, apart from that subsection, the prisoner would have been released unconditionally.
6
Sections 33(3) and 33A(1) above and section 46 below shall not apply in relation to the prisoner.
7
For the purposes of sections 37(5) and 39(1) and (2) above the question whether the prisoner is a long-term or short-term prisoner shall be determined by reference to the term of the extended sentence.
8
In this section “extension period” has the same meaning as in section 58 of the Crime and Disorder Act 1998.
I560 Re-release of prisoners serving extended sentences.
After section 44 of the 1991 Act there shall be inserted the following section—
44A Re-release of prisoners serving extended sentences.
1
This section applies to a prisoner serving an extended sentence within the meaning of section 58 of the Crime and Disorder Act 1998 who is recalled to prison under section 39(1) or (2) above.
2
Subject to subsection (3) below, the prisoner may require the Secretary of State to refer his case to the Board at any time.
3
Where there has been a previous reference of the prisoner’s case to the Board (whether under this section or section 39(4) above), the Secretary of State shall not be required to refer the case until after the end of the period of one year beginning with the disposal of that reference.
4
On a reference—
a
under this section; or
b
under section 39(4) above,
the Board shall direct the prisoner’s release if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise).
5
If the Board gives a direction under subsection (4) above it shall be the duty of the Secretary of State to release the prisoner on licence.
Offenders dependent etc. on drugs
F261. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F362. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F463. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F564. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Young offenders: reprimands and warnings
I165 Reprimands and warnings.
1
Subsections (2) to (5) below apply where—
a
a constable has evidence that a child or young person (“the offender”) has committed an offence;
b
the constable considers that the evidence is such that, if the offender were prosecuted for the offence, there would be a realistic prospect of his being convicted;
c
the offender admits to the constable that he committed the offence;
d
the offender has not previously been convicted of an offence; and
e
the constable is satisfied that it would not be in the public interest for the offender to be prosecuted.
2
Subject to subsection (4) below, the constable may reprimand the offender if the offender has not previously been reprimanded or warned.
3
The constable may warn the offender if—
a
the offender has not previously been warned; or
b
where the offender has previously been warned, the offence was committed more than two years after the date of the previous warning and the constable considers the offence to be not so serious as to require a charge to be brought;
but no person may be warned under paragraph (b) above more than once.
4
Where the offender has not been previously reprimanded, the constable shall warn rather than reprimand the offender if he considers the offence to be so serious as to require a warning.
5
The constable shall—
F6a
where the offender is under the age of 17, give any reprimand or warning in the presence of an appropriate adult; and
b
explain to the offender and, where he is under that age, the appropriate adult in ordinary language—
i
in the case of a reprimand, the effect of subsection (5)(a) of section 66 below;
ii
in the case of a warning, the effect of subsections (1), (2), (4) and (5)(b) and (c) of that section, and any guidance issued under subsection (3) of that section.
6
The Secretary of State shall publish, in such manner as he considers appropriate, guidance as to—
a
the circumstances in which it is appropriate to give reprimands or warnings, including criteria for determining—
i
for the purposes of subsection (3)(b) above, whether an offence is not so serious as to require a charge to be brought; and
ii
for the purposes of subsection (4) above, whether an offence is so serious as to require a warning;
F7aa
the places where reprimands and warnings may be given
b
the category of constable by whom reprimands and warnings may be given; and
c
the form which reprimands and warnings are to take and the manner in which they are to be given and recorded.
7
In this section “appropriate adult”, in relation to a child or young person, means—
a
his parent or guardian or, if he is in the care of a local authority or voluntary organisation, a person representing that authority or organisation;
b
a social worker of a local authority social services department;
c
if no person falling within paragraph (a) or (b) above is available, any responsible person aged 18 or over who is not a police officer or a person employed by the police.
8
No caution shall be given to a child or young person after the commencement of this section.
9
Any reference (however expressed) in any enactment passed before or in the same Session as this Act to a person being cautioned shall be construed, in relation to any time after that commencement, as including a reference to a child or young person being reprimanded or warned.
I266 Effect of reprimands and warnings.
1
Where a constable warns a person under section 65 above, he shall as soon as practicable refer the person to a youth offending team.
2
A youth offending team—
a
shall assess any person referred to them under subsection (1) above; and
b
unless they consider it inappropriate to do so, shall arrange for him to participate in a rehabilitation programme.
3
The Secretary of State shall publish, in such manner as he considers appropriate, guidance as to—
a
what should be included in a rehabilitation programme arranged for a person under subsection (2) above;
b
the manner in which any failure by a person to participate in such a programme is to be recorded; and
c
the persons to whom any such failure is to be notified.
C14
Where a person who has been warned under section 65 above is convicted of an offence committed within two years of the warning, the court by or before which he is so convicted—
a
shall not make an order under subsection (1)(b) (conditional discharge) of F8section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of the offence unless it is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify its doing so; and
b
where it does so, shall state in open court that it is of that opinion and why it is.
5
The following, namely—
a
any reprimand of a person under section 65 above;
b
any warning of a person under that section; and
c
any report on a failure by a person to participate in a rehabilitation programme arranged for him under subsection (2) above,
may be cited in criminal proceedings in the same circumstances as a conviction of the person may be cited.
6
In this section “rehabilitation programme” means a programme the purpose of which is to rehabilitate participants and to prevent them from re-offending.
F25Young offenders: youth conditional cautions
66AYouth conditional cautions
1
An authorised person may give a youth conditional caution to a child or young person (“the offender”) if—
a
the offender has not previously been convicted of an offence, and
b
each of the five requirements in section 66B is satisfied.
2
In this Chapter, “youth conditional caution” means a caution which is given in respect of an offence committed by the offender and which has conditions attached to it with which the offender must comply.
3
The conditions which may be attached to such a caution are those which have one or more of the following objects—
a
facilitating the rehabilitation of the offender;
b
ensuring that the offender makes reparation for the offence;
c
punishing the offender.
4
The conditions that may be attached to a youth conditional caution include—
a
(subject to section 66C) a condition that the offender pay a financial penalty;
b
a condition that the offender attend at a specified place at specified times.
“Specified” means specified by a relevant prosecutor.
5
Conditions attached by virtue of subsection (4)(b) may not require the offender to attend for more than 20 hours in total, not including any attendance required by conditions attached for the purpose of facilitating the offender's rehabilitation.
6
The Secretary of State may by order amend subsection (5) by substituting a different figure.
7
In this section, “authorised person” means—
a
a constable,
b
an investigating officer, or
c
a person authorised by a relevant prosecutor for the purposes of this section.
66BThe five requirements
1
The first requirement is that the authorised person has evidence that the offender has committed an offence.
2
The second requirement is that a relevant prosecutor decides—
a
that there is sufficient evidence to charge the offender with the offence, and
b
that a youth conditional caution should be given to the offender in respect of the offence.
3
The third requirement is that the offender admits to the authorised person that he committed the offence.
4
The fourth requirement is that the authorised person explains the effect of the youth conditional caution to the offender and warns him that failure to comply with any of the conditions attached to the caution may result in his being prosecuted for the offence.
5
If the offender is aged 16 or under, the explanation and warning mentioned in subsection (4) must be given in the presence of an appropriate adult.
6
The fifth requirement is that the offender signs a document which contains—
a
details of the offence,
b
an admission by him that he committed the offence,
c
his consent to being given the youth conditional caution, and
d
the conditions attached to the caution.
66CFinancial penalties
1
A condition that the offender pay a financial penalty (a “financial penalty condition”) may not be attached to a youth conditional caution given in respect of an offence unless the offence is one that is prescribed, or of a description prescribed, in an order made by the Secretary of State.
2
An order under subsection (1) must prescribe, in respect of each offence or description of offence in the order, the maximum amount of the penalty that may be specified under subsection (5)(a).
3
The amount that may be prescribed in respect of any offence must not exceed £100.
4
The Secretary of State may by order amend subsection (3) by substituting a different figure.
5
Where a financial penalty condition is attached to a youth conditional caution, a relevant prosecutor must also specify—
a
the amount of the penalty, and
b
the person to whom the financial penalty is to be paid and how it may be paid.
6
To comply with the condition, the offender must pay the penalty in accordance with the provision specified under subsection (5)(b).
7
Where a financial penalty is (in accordance with the provision specified under subsection (5)(b)) paid to a person other than a designated officer for a local justice area, the person to whom it is paid must give the payment to such an officer.
66DVariation of conditions
A relevant prosecutor may, with the consent of the offender, vary the conditions attached to a youth conditional caution by—
a
modifying or omitting any of the conditions;
b
adding a condition.
66EFailure to comply with conditions
1
If the offender fails, without reasonable excuse, to comply with any of the conditions attached to the youth conditional caution, criminal proceedings may be instituted against the person for the offence in question.
2
The document mentioned in section 66B(6) is to be admissible in such proceedings.
3
Where such proceedings are instituted, the youth conditional caution is to cease to have effect.
4
Section 24A(1) of the Criminal Justice Act 2003 (“the 2003 Act”) applies in relation to the conditions attached to a youth conditional caution as it applies in relation to the conditions attached to a conditional caution (within the meaning of Part 3 of that Act).
5
Sections 24A(2) to (9) and 24B of the 2003 Act apply in relation to a person who is arrested under section 24A(1) of that Act by virtue of subsection (4) above as they apply in relation to a person who is arrested under that section for failing to comply with any of the conditions attached to a conditional caution (within the meaning of Part 3 of that Act).
66FRestriction on sentencing powers where youth conditional caution given
Where a person who has been given a youth conditional caution is convicted of an offence committed within two years of the giving of the caution, the court by or before which the person is so convicted—
a
may not make an order under section 12(1)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 (conditional discharge) in respect of the offence unless it is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify its doing so; and
b
where it does make such an order, must state in open court that it is of that opinion and why it is.
66GCode of practice on youth conditional cautions
1
The Secretary of State must prepare a code of practice in relation to youth conditional cautions.
2
The code may, in particular, make provision as to—
a
the circumstances in which youth conditional cautions may be given,
b
the procedure to be followed in connection with the giving of such cautions,
c
the conditions which may be attached to such cautions and the time for which they may have effect,
d
the category of constable or investigating officer by whom such cautions may be given,
e
the persons who may be authorised by a relevant prosecutor for the purposes of section 66A,
f
the form which such cautions are to take and the manner in which they are to be given and recorded,
g
the places where such cautions may be given,
h
the provision which may be made by a relevant prosecutor under section 66C(5)(b),
i
the monitoring of compliance with conditions attached to such cautions,
j
the exercise of the power of arrest conferred by section 24A(1) of the Criminal Justice Act 2003 (c. 44) as it applies by virtue of section 66E(4),
k
who is to decide how a person should be dealt with under section 24A(2) of that Act as it applies by virtue of section 66E(5).
3
After preparing a draft of the code the Secretary of State—
a
must publish the draft,
b
must consider any representations made to him about the draft, and
c
may amend the draft accordingly,
but he may not publish or amend the draft without the consent of the Attorney General.
4
After the Secretary of State has proceeded under subsection (3) he must lay the code before each House of Parliament.
5
When he has done so he may bring the code into force by order.
6
The Secretary of State may from time to time revise a code of practice brought into force under this section.
7
Subsections (3) to (6) are to apply (with appropriate modifications) to a revised code as they apply to an original code.
Interpretation of Chapter 1
66HInterpretation
In this Chapter—
a
“appropriate adult” has the meaning given by section 65(7);
b
“authorised person” has the meaning given by section 66A(7);
c
“investigating officer” means an officer of Revenue and Customs, appointed in accordance with section 2(1) of the Commissioners for Revenue and Customs Act 2005, or a person designated as an investigating officer under section 38 of the Police Reform Act 2002 (c. 30);
d
“the offender” has the meaning given by section 66A(1);
e
“relevant prosecutor” means—
i
the Attorney General,
ii
the Director of the Serious Fraud Office,
iii
the Director of Revenue and Customs Prosecutions,
iv
the Director of Public Prosecutions,
v
the Secretary of State, or
vi
a person who is specified in an order made by the Secretary State as being a relevant prosecutor for the purposes of this Chapter;
f
“youth conditional caution” has the meaning given by section 66A(2).
Young offenders: non-custodial orders
F967. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1068. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1169. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1270. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1371. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1472. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Young offenders: detention and training orders
F1573. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1674. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1775. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1876. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1977. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2078. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2179. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sentencing: general
80 Sentencing guidelines.
1
This section applies where the Court—
a
is seised of an appeal against, or a reference under section 36 of the M4Criminal Justice Act 1988 with respect to, the sentence passed for an offence; or
b
receives a proposal under section 81 below in respect of a particular category of offence;
and in this section “the relevant category” means any category within which the offence falls or, as the case may be, the category to which the proposal relates.
2
The Court shall consider—
a
whether to frame guidelines as to the sentencing of offenders for offences of the relevant category; or
b
where such guidelines already exist, whether it would be appropriate to review them.
3
Where the Court decides to frame or revise such guidelines, the Court shall have regard to—
a
the need to promote consistency in sentencing;
b
the sentences imposed by courts in England and Wales for offences of the relevant category;
c
the cost of different sentences and their relative effectiveness in preventing re-offending;
d
the need to promote public confidence in the criminal justice system; and
e
the views communicated to the Court, in accordance with section 81(4)(b) below, by the Sentencing Advisory Panel.
4
Guidelines framed or revised under this section shall include criteria for determining the seriousness of offences, including (where appropriate) criteria for determining the weight to be given to any previous convictions of offenders or any failures of theirs to respond to previous sentences.
5
In a case falling within subsection (1)(a) above, guidelines framed or revised under this section shall, if practicable, be included in the Court’s judgment in the appeal.
6
Subject to subsection (5) above, guidelines framed or revised under this section shall be included in a judgment of the Court at the next appropriate opportunity (having regard to the relevant category of offence).
7
For the purposes of this section, the Court is seised of an appeal against a sentence if—
a
the Court or a single judge has granted leave to appeal against the sentence under section 9 or 10 of the M5Criminal Appeal Act 1968; or
b
in a case where the judge who passed the sentence granted a certificate of fitness for appeal under section 9 or 10 of that Act, notice of appeal has been given,
and (in either case) the appeal has not been abandoned or disposed of.
8
For the purposes of this section, the Court is seised of a reference under section 36 of the M6Criminal Justice Act 1988 if it has given leave under subsection (1) of that section and the reference has not been disposed of.
9
In this section and section 81 below—
“the Court” means the criminal division of the Court of Appeal;
“offence” means an indictable offence.
81 The Sentencing Advisory Panel.
1
The Lord Chancellor, after consultation with the Secretary of State and the Lord Chief Justice, shall constitute a sentencing panel to be known as the Sentencing Advisory Panel (“the Panel”) and appoint one of the members of the Panel to be its chairman.
2
Where, in a case falling within subsection (1)(a) of section 80 above, the Court decides to frame or revise guidelines under that section for a particular category of offence, the Court shall notify the Panel.
3
The Panel may at any time, and shall if directed to do so by the Secretary of State, propose to the Court that guidelines be framed or revised under section 80 above for a particular category of offence.
4
Where the Panel receives a notification under subsection (2) above or makes a proposal under subsection (3) above, the Panel shall—
a
obtain and consider the views on the matters in issue of such persons or bodies as may be determined, after consultation with the Secretary of State and the Lord Chief Justice, by the Lord Chancellor;
b
formulate its own views on those matters and communicate them to the Court; and
c
furnish information to the Court as to the matters mentioned in section 80(3)(b) and (c) above.
5
The Lord Chancellor may pay to any member of the Panel such remuneration as he may determine.
F2282. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Miscellaneous and supplemental
I383 Power to make confiscation orders on committal for sentence.
After subsection (9) of section 71 of the M1Criminal Justice Act 1988 (confiscation orders) there shall be inserted the following subsection—
9A
Where an offender is committed by a magistrates’ court for sentence under section 38 or 38A of the M2Magistrates’ Courts Act 1980 or section 56 of the M3Criminal Justice Act 1967, this section and sections 72 to 74C below shall have effect as if the offender had been convicted of the offence in the proceedings before the Crown Court and not in the proceedings before the magistrates’ court.
Ss. 66A-66H (and cross-headings before ss. 66A, 66H) inserted (1.2.2009 for the insertion of ss. 66G, 66H, 1.4.2009 for the insertion of s. 66C, 16.11.2009 for the insertion of ss. 66A, 66B, 66D-66F for specified purposes, 8.4.2013 in so far as not already in force) by Criminal Justice and Immigration Act 2008 (c. 4), s. 153(7), Sch. 9 para. 3 (with Sch. 27 para. 18); S.I. 2009/140, art. 2(e)(ii); S.I. 2009/860, art. 2(1)(h); S.I. 2009/2780, art. 2(1)(c)(2); S.I. 2013/616, art. 2(b)