Chapter 8: Other Provisions about sentencing
Section 278: Deferment of Sentence
621.This section introduces Schedule 23, which deals with deferred sentences.
Section 279: Drug treatment and testing requirement in action plan order or supervision order
622.This section introduces Schedule 24, which enables a requirement as to drug treatment and testing to be included in an action plan order or a supervision order.
623.The action plan order is a community sentence, which is available where a child or young person aged between 10 and 17 years old is convicted of any offence for which the sentence is not fixed by law. The order lasts for a period of three months and provides a short but intensive and individually tailored programme of intervention designed to address the young person's offending behaviour and associated risk factors. The court may attach a range of requirements such as offending behaviour work, education and reparation.
624.The supervision order is a community sentence available for a child or young person aged between 10 and 17 years old. The duration of the order may range from a minimum of six months to a maximum of three years. A range of requirements may be attached to the supervision order such as residence, reparation, night restrictions and activities specified by a youth offending team.
Section 280: Alteration of penalties for summary offences
625.This section is consequential on the changes in the structure of short sentences which this Act introduces and the corresponding increase in magistrates’ sentencing powers. It introduces Schedules 25 and 26, which make changes to the maximum penalties for summary only offences that previously carried a maximum penalty of less than 12 months. These offences are either to have the maximum penalty lowered so that they are no longer punishable with imprisonment (see Schedule 25) or raised to 51 weeks imprisonment so that they may be punishable with a new sentence of imprisonment of less than 12 months, custody plus (see Schedule 26).
Section 281: Alteration of penalties for other summary offences
626.This section provides for the alteration of penalties for certain summary offences. Subsections (1) to (3) enable the Secretary of State to amend by order the maximum penalties for summary only offences currently carrying a maximum custodial penalty of five months or less. Under subsection (1) such amendments may be made only in relation to offences which are not listed in Schedule 25 or 26 and are contained either in an Act passed before or in the same Session as this Act, or any subordinate legislation made before the passing of this Act. In such cases the Secretary of State may (by order) either remove imprisonment as a penalty for the offence or raise the maximum penalty for the offence to 51 weeks imprisonment. Subsections (4) and (5) provide for all summary offences contained in Acts passed before or in the same Session as this Act with a maximum penalty of six months imprisonment to have this maximum penalty raised automatically to 51 weeks. Subsection (6)ensures that any alteration of penalties made under this section does not affect the penalty for any offence committed before the commencement of this section.
Section 282: Increase in maximum term that may be imposed on summary conviction of offence triable either way
627.This section provides for an increase in the maximum sentence available on the summary conviction of a triable either way offence following commencement of this section so that it corresponds with the extent of the magistrates’ sentencing powers. Subsection (4) provides for the maximum penalties for offences falling within subsection (3) to be increased to 12 months imprisonment on summary conviction. This section also makes consequential amendments to the Magistrates’ Courts Act 1980 in so far as it deals with penalties on summary conviction of triable either way offences.
Section 283: Enabling powers: alteration of maximum penalties
628.Section 283 makes the necessary provisions for offences created under enabling powers to have their maximum penalties altered so that they may be compatible with the new sentencing framework. Subsection (1) gives the Secretary of State the power to amend by order any enabling powers within any Act (passed before or in the same Session as this Act) which allow for making offences punishable with imprisonment on summary conviction, excluding those listed in Schedule 27. Subsection (2) provides that an order under this power may amend the relevant enactment containing an enabling power so as either to remove its ability (through subordinate legislation) to make a summary offence punishable with imprisonment or to increase the maximum term of imprisonment to 51 weeks. Subsection (3) also enables an order under subsection (1) to amend enabling powers which make a triable either way offence punishable with imprisonment on summary conviction. Subsection (4) introduces Schedule 27.
Section 284: Increase in penalties for drug related offences
629.This section introduces Schedule 28, which increases the maximum penalty for trafficking Class C drugs from 5 years' to 14 years'imprisonment.
Section 285: Increase in penalties for certain driving-related offences causing deaths
630.This section increases to 14 years' imprisonment the maximum penalty for the three offences of causing death by dangerous driving, causing death by careless driving under the influence of drink or drugs and aggravated vehicle-taking where the aggravating feature is that, owing to the driving of the vehicle, an accident occurs and death results. These increases in maximum penalties also apply to similar driving offences in Northern Ireland.
Section 286: Increase in penalties for offences under section 174 of Road Traffic Act 1988
631.This section increases the maximum penalties for the offences of giving false statements and withholding material information in relation to road traffic documentation/offences. For those offences, when tried on indictment the maximum penalty is increased to 2 years or a fine or both; and when tried summarily the maximum penalty is increased to 6 months or the statutory maximum or both.
Section 287: Minimum sentence for certain firearms offences
632.This section inserts a new section 51A into the Firearms Act 1968 (“the 1968 Act”) to provide a new minimum custodial sentence for unauthorised possession of certain types of firearm.
633.Subsection(1) of the new section 51A sets out the particular offences which will attract the new minimum sentence, and applies it to persons aged 16 or over when the offence was committed. Under subsection (5) the minimum is fixed at five years for persons aged 18 or over (in England and Wales) or aged 21 or over (in Scotland) when the offence was committed, and three years for persons aged under 18 (in England and Wales) or aged under 21 (in Scotland).
634.Undersubsection (2) courts will be required to impose the minimum sentence, unless there are exceptional circumstances relating to the offence or offender which justify not doing so. Examples of exceptional circumstances might be where the holder of a firearms certificate inadvertently forgets to renew his authority or where a war trophy is discovered among a deceased person’s effects.
Section 288: Certain firearms offences to be triable only on indictment
635.This Section amends Part 1 of Schedule 6 to the 1968 Act and makes all offences to which the minimum sentence applies triable on indictment only. At present, these offences are triable either way. However, the minimum sentence is beyond the sentencing powers of magistrates and (but for this section) magistrates would have to make a preliminary assessment of whether any exceptional circumstances were involved before determining whether a case should go to the Crown Court.
Section 289: Power to sentence young offender to detention in respect of certain firearms offences: England and Wales
636.This section amends section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 to ensure that persons aged 16 or 17 can be sentenced to the term of detention required by the new section 51A of the 1968 Act.
Section 290: Power to sentence young offender to detention in respect of certain firearms offences: Scotland
637.This section amends the Criminal Procedure (Scotland) Act 1995 to ensure that where offenders aged 16 or 17 are convicted on indictment under section 5 of the 1968 Act, the court itself retains the power to order detention and to dispose of the case.
Section 291: Power by order to exclude application of minimum sentence to those under 18
638.This section enables the Secretary of State by order to prevent the minimum sentence applying to those aged 16 or 17. There is also power to make consequential amendments of other legislation. An order under this power is subject to affirmative resolution procedure.
Section 292: Sentencing for firearms offences in Northern Ireland
639.Section 292 introduces Schedule 29, which makes provision for Northern Ireland similar to that made for England and Wales found in sections 287 and 288 of the Act. In particular the Schedule applies the minimum sentence provision to handguns, which are currently not prohibited in Northern Ireland.
Section 293: Increase in penalty for offences relating to importation or exportation of certain firearms
640.This section amends the Customs and Excise Management Act 1979 to increase from 7 years’ imprisonment to 10 years’ imprisonment the maximum penalty for smuggling prohibited weapons covered by the minimum sentence provisions. The offences concerned are: improper importation of goods (section 50), exportation of prohibited or restricted goods (section 68) and fraudulent evasion of duty etc (section 170).
Section 294: Duration of directions under Mental Health Act 1983 in relation to offenders
641.Section 294 makes amendments to section 50 of the Mental Health Act 1983 dealing with arrangements for the release, or return to prison, of serving prisoners who have been transferred to hospital for medical treatment. It replaces references to the expiration of a prisoner’s sentence with references to his release date. This means that the Secretary of State can only treat the patient as a restricted patient until the time when the prisoner would have been released from prison. On the release date the Secretary of State ceases to be able to send the patient back to prison or control decisions on leave, transfer or discharge from hospital under the 1983 Act. New section 50(3) of the 1983 Act provides that the release date means the date on which the prisoner would be entitled to be released if he had not been transferred to hospital, disregarding any powers that the Parole Board would have if he were still detained in prison, or any discretionary powers of early release exercisable by the Secretary of State. This means that schemes for early release such as the home detention curfew scheme are not taken into account and that (subject to the changes made in section 295 of the Act) life prisoners have to return to prison and to apply to the Parole Board in order to be released.
Section 295: Access to Parole Board for certain patients serving prison sentences
642.Section 295 makes amends section 74 of the Mental Health Act 1983. The inserted subsection (5A) relates to transferred prisoners detained in hospital beyond their release date whose detention in hospital has been found by the mental health review tribunal to be no longer justified by their mental disorder, but who the tribunal has recommended should remain in hospital, rather than return to prison, in the event that the Secretary of State does not agree to discharge them from hospital. It provides that the fact that restrictions under the Mental Health Act remain in force does not prevent an application or reference to the Parole Board for release. It further provides that if the Parole Board directs or recommends release, the restrictions cease to have effect at the time he is entitled to release. The effect of this is that the transferred prisoner is assured access to the Parole Board, and the possibility of release on licence, once he has reached his release date and the mental health review tribunal find he is no longer appropriately detained in hospital for medical treatment.
Section 296: Duration of directions under Mental Health (Northern Ireland) Order 1986 in relation to offenders
643.Section 296 makes amendments to Article 56 of the Mental Health (Northern Ireland) Order 1986 dealing with the arrangements in Northern Ireland for the release or return to prison of serving prisoners who have been transferred to hospital for medical treatment. It substitutes references to the expiration of a prisoner’s sentence with references to his release date. This ensures that the Secretary of State can only treat the patient as a restricted patient until the time when the prisoner would have been released from prison. New article 56(3) provides that the release date means the date on which the prisoner would be entitled to release if he had not been transferred to hospital, (regardless of any powers of the Sentence Review Commissioners or the Life Sentence Review Commissioners), if he was still detained in prison.
Section 297: Access to Sentence Review Commissioners and Life Sentence Review Commissioners for certain Northern Ireland patients
644.Section 297 makes an insertion into Article 79 of the Mental Health (Northern Ireland) Order 1986. It relates to transferred prisoners detained in hospital beyond their release date whose detention in hospital has been found by the mental health review tribunal for Northern Ireland to be no longer justified by their mental disorder but who the tribunal has recommended should remain in hospital rather than return to prison in the event that the Secretary of State does not agree to their discharge from hospital. It provides that the fact that restrictions under the Mental Health Order remain in force does not prevent an application or reference to the Sentence Review Commissioners or the Life Sentence Review Commissioners for release. It further provides that if the Commissioners direct release, the restrictions cease to have effect at the time he is entitled to release. The effect of this is that the transferred prisoner is assured access to the Review Commissioners, and the possibility of release on licence once he has reached his release date and the mental health review tribunal find that he is no longer detained in hospital for medical treatment.
Section 298: Term of a detention and training order
645.This section is related to the increase in the maximum sentence for some summary-only offences from 6 months to 51 weeks. The Section provides that the maximum sentence for such offences in the case of those under 18 will remain as a 6-month detention and training order.
Section 299: Disqualification from working with children
646.This section introduces Schedule 30, which is explained below.
Section 300: Power to impose unpaid work requirement or curfew requirement on fine defaulter
647.This section re-enacts, with appropriate modifications to make them applicable for the new sentencing framework, the fine default provisions in section 35 of the Crime Sentences Act 1997.
648.Where a court has the power to commit an offender to prison in default of payment of a fine, subsection (2) provides the court with an alternative power to order the offender to comply with an unpaid work or curfew requirement. Such an order is named a "default order" by subsection (3). Subsection (4) allows these requirements to be subject to electronic monitoring. Subsection (5) provides the Court with a power to postpone the making of a default order until such time as thinks fit. Subsection (6) applies the breach provisions in Schedule 8, the transfer of community order provisions in Schedule 9 and the provisions of Chapter 4, subject to set out the modifications outline in Schedule 31, to the making of default orders.
649.Should the offender pay the whole or part of the sum of the fine originally defaulted, Subsection (7) provides for the number of hours of unpaid work or days of curfew to be reduced by a proportion corresponding to the amount repaid, or for the order to cease to have effect altogether.
Section 301: Fine defaulters: driving disqualification
650.This section re-enacts the provisions of section 40 of the Crime Sentences Act 1997. As an alternative to committing an offender to custody in default of payment of a sum, it provides the Court in subsection (2) with a power to disqualify an offender from driving for a period of up to 12 months.
651.Under subsection (3) if the fine is repaid the order ceases to have effect, or if it is repaid in part, the total number of weeks or months is reduced by a corresponding proportion. Subsection (5) provides the Secretary of State with an order-making power to alter the period of disqualification (currently 12 months) specified in subsection (2).
