Police, Crime, Sentencing And Courts Act 2022

Policy background

Police Covenant

1. The Front Line Review announced by the then Home Secretary at the Police Federation Annual Conference in May 2018 invited police officers, police community support officers and police staff in England and Wales to share ideas to change and improve policing. The subsequent report published by the Home Office in July 2019 highlighted the concerns of police officers and staff and the need to do more to help them. Following the publication, on 18 July 2019 the then Home Secretary announced plans to establish a Police Covenant, similar to the covenant that exists for the armed forces to provide support to those working in policing.
2. The Home Secretary announced in September 2019 a consultation into the Police Covenant, which ran from 26 February to 22 April 2020. The consultation paper sought views on the principle of implementing a Police Covenant in England and Wales, to enhance support for the police and their families. The consultation attracted 1,113 responses with over 90% of respondents either agreeing or strongly agreeing with the idea of establishing a Police Covenant and enshrining it in legislation. A response to the consultation was published in September 2020, setting out the initial focus of the Covenant as:
   • Physical Protection;
   • Health and Wellbeing;
   • Support for Families.

1. The Government’s report also proposed that legislation should be brought forward to require the Home Secretary to report annually to Parliament on the Covenant. It was thereafter decided that the scope of the Covenant, and the duty to report, should extend to cover non-Home Office forces – British Transport Police, Civil Nuclear Constabulary, MoD Police, and National Crime Agency officers, meaning the provision extends UK wide, to ensure those forces which operate outside of England and Wales are properly captured by the provisions.
2. The Covenant itself will take the form of a declaration and is not set out in the legislation. The legislative provisions comprise a duty on the Secretary of State to produce a report annually, addressing key issues in respect of the Covenant, specifically the health and wellbeing of members and former members of the police workforce in England and Wales, their physical protection, and the support for members of their families, taking into account any disadvantages experienced by the police workforce as a result of working in policing.
3. Enshrining the Police Covenant report in law is designed to embed the importance of these issues in public consciousness, and to introduce accountability and encourage action to prevent detriment being suffered by members of the police workforce. The report must be laid before Parliament, providing an opportunity to scrutinise the nature of the issues facing those working in policing, and any work being done in these areas. These provisions will be underpinned by a non-statutory governance structure to support the Home Secretary in fulfilling these new duties. Section 1 gives effect to these proposals.

Assaults on emergency workers

1. The Assaults on Emergency Workers (Offences) Act 2018 modified the criminal offence of common assault or battery in instances where it is committed against an emergency worker who is acting in the course of their functions to provide for a maximum custodial penalty on summary conviction or on indictment of 12 months’ imprisonment.
2. Section 67 of the Sentencing Code ("the Code") (set by the Sentencing Act 2020 ("the 2020 Act")) provides that more serious assaults committed against emergency workers may be aggravated on sentence within the current statutory maxima for these offences.
3. On 13 July 2020 the Government launched a targeted consultation on doubling the maximum penalty for assaulting an emergency worker to two years. This was in line with the Government’s manifesto commitment. This consultation was directed at representative groups of emergency workers and other key stakeholders. The large majority of those who responded were in favour of doubling the maximum penalty from 12 months to two years.
4. Following consultation, on 15 September 2020, the Government announced that it would bring forward legislation to increase the maximum penalty for assaulting an emergency worker from 12 months’ to two years’ imprisonment.
5. The Act seeks to ensure that the law provides emergency workers with sufficient protection to enable them to carry out their duties, and the maximum penalty reflects the severity of these offences.
6. The current definition of an emergency worker applies to front-line workers who operate in what can sometimes be in life or death situations to protect the public and this may mean they place themselves at personal risk. It is in this context that the law recognises them for special protection.
7. The current maximum penalty for the offence of common assault or battery committed against an emergency worker is 12 months’ imprisonment. Section 2 increases the maximum penalty from 12 months to two years’ imprisonment and provides the courts with enhanced powers to sentence in a way that reflects the severity of the offence.

Mandatory life sentence for the unlawful act manslaughter of an emergency worker ("Harper’s Law")

1. The maximum penalty for manslaughter is life imprisonment, and that is currently imposed at the discretion of the court. However, following the death of PC Andrew Harper and the subsequent campaign by his family and the Police Federation for England and Wales ("the Police Federation"), the Government decided that a life sentence should always be imposed on those who are convicted of the unlawful act manslaughter of an emergency worker who is acting in the exercise of their functions as such a worker, unless there are exceptional circumstances relating to the offence or offender which justify not doing so. Section 3 makes this change in the Code. The court will retain its discretion in setting the minimum term within the life sentence.
2. The policy intention in relation to this change is to ensure that the punishment properly reflects the severity of the offence and reflects the great societal harm that caused when an emergency worker is killed whilst carrying out their role.
3. This sentence will apply in cases where an offender who was aged 16 or over at the time of the offence is convicted of the unlawful act manslaughter of an emergency worker, who was acting in the exercise of their functions of such a worker at the time. "Emergency worker" is defined by reference to section 68 of the Sentencing Code 2020 (which itself reflects the definition set out in the Assaults on Emergency Workers (Offences) Act 2018).
4. This definition of an emergency worker includes police officers; NHS workers such as doctors, nurses and paramedics, whose general activities involve face to face interaction with those receiving NHS services, or other members of the public, and fire fighters, among others.

Special constables – Police Federation membership

1. The Police Federation represents the interests of police officers below the rank of superintendent (namely, constables, sergeants, inspectors and chief inspectors). It was created in 1919 to represent officers, reflecting the fact that police officers are members of a disciplined service with an obligation to protect the public and, as such, are prohibited from joining a trade union or taking industrial action.
2. Membership of the Police Federation is confined to members of a police force (section 59 of the Police Act 1996), that is those who hold the office of constable and are remunerated by their police force. In England and Wales, special constables, that is volunteer police officers, are not "members" of their police force and are therefore ineligible for membership of the Police Federation. While special constables can access insurance, funded by the Home Office, to cover the cost of legal assistance for disciplinary and misconduct proceedings, this does not provide the end-to-end support, advice and pastoral care, for example in the immediate aftermath of an incident, that comes with membership of the Police Federation.
3. In July 2019, the then Home Secretary announced the Government’s intention to support the Police Federation offering membership to special constables. Section 4 of the Act amends the Police Act 1996 to enable the Police Federation to represent special constables.
4. Special constables are increasingly fulfilling a range of specialised and frontline roles within police forces and therefore often face the same risks as regular officers. These provisions will ensure special constables in England and Wales have access to the same level of support and representation as regular constables through access to membership of the Police Federation.

Police driving standards

1. The tests set out in the Road Traffic Act 1988 (the "1988 Act") for the offences of careless and dangerous driving apply to police drivers in the same way as any other driver, taking no account of the various exemptions to road traffic legislation (for example, in relation to speed limits and road signs) that apply to the police or of their additional training. Those offences are committed when a person drives in a way that is below (careless) or far below (dangerous) what would be expected of a competent and careful driver, that is a member of the public.
2. Following a campaign by the Police Federation, in September 2017, the then Minister for Policing and the Fire Service, Rt Hon Nick Hurd MP, commissioned a Home Office review of the law, guidance, procedures and processes surrounding police pursuits. The review had a particular focus on identifying the reasons why the current legal framework was seen as falling short, identifying options for improvement and developing recommendations.
3. In May 2018, the Home Office published a consultation , "The Law, Guidance and Training Governing Police Pursuits", which set out the findings of the review and options for changes in the law. In particular, the consultation sought views on:
   • whether any legislative change should apply only to police pursuits or to police response driving as well;
   • whether to revise the various exemptions from certain areas of road traffic legislation to make them clearer and more consistent;
   • amending the definitions in the offences of careless and dangerous driving to take account of the training and experience of police drivers; and
   • making clear that a suspect being pursued is responsible for their own decision to drive dangerously and that blame should not be attached to the pursuing police officer.

1. The Home Office received 383 responses to the consultation with two-thirds of respondents (66.6%) agreeing that a police officer responding to an emergency or a pursuit should be compared to the standard of a police driver with similar training and skill. The Government published its response to the consultation and the then Home Secretary issued a Written Ministerial Statement on 2 May 2019 announcing that the Government would seek to introduce a new test to assess the standard of driving of a police officer. The new test, as provided for in sections 5 to 7 of the Act, allows the courts to judge their standard of driving against a competent and careful police constable with the same level of training, rather than being considered as a member of the public. It is vital that the law empowers officers to carry out their duties effectively. The new test strikes the right balance between giving trained officers the confidence they need to fight crime effectively while holding to account those who drive in an inappropriate manner and put the public at risk.

Serious violence duty

1. In April 2018, the Government published its Serious Violence Strategy to help further tackle knife crime, gun crime and homicide. The Strategy explained that the Government’s approach was not solely focused on law enforcement, but depended on partnerships across a number of sectors such as education, health, social services, housing, youth services and victim services. In April 2019, the Home Office published a consultation paper seeking views on options to implement a multi-agency or "public health" approach to preventing and tackling serious violence. This set out three options to achieve this:
   • a new duty on specific organisations to have due regard to the prevention and tackling of serious violence;
   • a new duty to revise Community Safety Partnerships ("CSPs"), as established under the Crime and Disorder Act 1998 ("the 1998 Act"). Section 6 of the 1998 Act requires CSPs to formulate and implement strategies to reduce crime and disorder, combat the misuse of substances and reduce reoffending;
   • a voluntary non-legislative approach to encourage areas to adopt voluntary measures to engage in a multi-agency approach.

1. The consultation closed on 28 May 2019. The Home Office received 288 responses which indicated overall support for a multi-agency public health approach but with differing views on the approach to take. The then Home Secretary issued a Written Ministerial Statement on 15 July 2019 to announce the publication of the Government’s response to the consultation. The response proposed a new duty on relevant agencies to collaborate, where possible through existing partnership structures, to prevent and reduce serious violence and to amend the 1998 Act, which sets out the strategies CSPs must formulate and implement, to explicitly include serious violence. Chapter 1 of Part 2 of the Act gives effect to these proposals.

Homicide reviews

1. Reviews of certain deaths currently take place in England and Wales under sections 16M to 16Q of the Children Act 2004, section 9 of the Domestic Violence, Crime and Victims Act 2004, section 44 of the Care Act 2014, section 135(4)(a) of the Social Services and Well-being (Wales) Act 2014, section 70 of the Health and Social Care (Community Health and Standards) Act 2003 and section 1.5.4 of NHS England’s Serious Incidents Framework in certain specified circumstances, namely where a person aged under 18 dies, a person dies due to domestic violence, a vulnerable adult dies, or someone in receipt of mental health care commits homicide. The reviews are a formal process bringing together relevant local safeguarding partners to learn lessons and to make recommendations for change and improvement in order to prevent future homicides.
2. In April 2018, the Government published its Serious Violence Strategy to help further tackle knife crime, gun crime and homicide. The then Home Secretary expressed determination to "take action to address serious violence and in particular the recent increases in knife crime, gun crime and homicide". Currently most adult homicides are not subject to a formal review and therefore there is no process for learning lessons and making recommendations for change and improvement in order to help to prevent future homicides.
3. Chapter 2 of Part 2 of the Act introduces a new legal requirement on relevant partners in England and Wales to arrange and conduct homicide reviews in prescribed circumstances for adult homicides involving offensive weapons. This legal requirement is placed on the review partners – the relevant local authority/authorities, police chief constable and clinical commissioning group/local health board - and there is also requirement for any individual or body asked to provide relevant information to a review to comply.
4. This Chapter provide for the legislative framework for these new offensive weapons homicide reviews, and allows for secondary legislation to implement specific operational details, which will be made following engagement and co-design with local partners.

Extraction of information from electronic devices for purposes of a criminal investigation etc

1. With so much more of individuals’ lives being lived online, important information for the prevention, detection, investigation or prosecution of crime is now held on digital devices, such as mobile phones. This includes information from complainants and witnesses in criminal proceedings. The arrangements by which such information is made available to law enforcement agencies, prosecutors and the defence are critical to confidence in the criminal justice system and to meeting the right to a fair trial. Extraction of information from electronic devices has therefore become a more frequent and routine part of criminal investigations.
2. In June 2020, the Information Commissioner’s Office published a report on police practice in England and Wales around the extraction and analysis of data from mobile phones and other electronic communication devices of victims, witnesses and suspects during a criminal investigation. The report identified inconsistencies in the approach taken by police forces to extract digital data and the complex legal framework that governs this practice. It recommended clarifying the lawful basis for data extraction and introducing a code of practice to guide this activity in order to increase consistency and ensure that any data taken is strictly necessary for the purpose of the investigation.
3. Chapter 3 of Part 2 introduce a specific legal basis for the extraction of information from complainants’, witnesses’ and others’ digital devices. This will be a non-coercive power based on the agreement of the routine user of the device. It will be applicable to specified law enforcement and regulatory agencies, such as the police, who extract information to support investigations or to protect vulnerable people from harm. This will provide a nationally consistent legal basis for the purpose of preventing, detecting, investigating or prosecuting criminal offences and for safeguarding and preventing serious harm.
4. These provisions also include sections to ensure authorised persons have proper regard for confidential information that may be on a device and how to deal appropriately with that possibility. Confidential information includes legally privileged material, journalistic material and protected material as defined in section 43. The confidential information sections require that authorized persons use the facts of the case insofar as they have them to assess the likelihood that the device will contain confidential information. This requires the authorised person to give separate consideration to the potential volume of confidential information held on the device, and its potential relevance to the purposes of the investigation, before taking a view as to whether to rely on these powers to extract information. This is intended to strike an appropriate balance between safeguarding against improper access of confidential information, and enabling information to be extracted where it is appropriate to do so.

Pre-charge bail

1. An individual who has been arrested by the police but who has not yet been charged can be released on pre-charge bail or released without bail while the investigation continues. Pre-charge bail means the individual under investigation is released from police custody, with or without conditions, while officers continue their investigation. Individuals on pre-charge bail are required to return to the police station at a specified date and time, known as "answering bail", to either be informed of a final decision on their case or to be given an update on the progress of the investigation.
2. Conditions may be imposed upon the individual if they are deemed necessary to: prevent someone from failing to surrender to custody; prevent further offending; or prevent someone from interfering with witnesses or otherwise obstructing the course of justice. Conditions may also be imposed for the individuals’ own protection or, if aged under 18, for their own welfare and interests.
3. The then Government legislated through the Policing and Crime Act 2017 to address concerns that individuals were being kept on pre-charge bail for long periods, sometimes with strict conditions. The reforms introduced:
   • a "presumption" against pre-charge bail unless necessary and proportionate in all circumstances to release on bail; and
   • clear statutory timescales and processes for the initial imposition and extension of bail, including the introduction of judicial oversight for the extension of pre-charge bail beyond three months.

1. After the reforms came into force in April 2017, the use of pre-charge bail fell, mirrored by an increasing number of individuals released without bail, commonly known as "released under investigation" ("RUI"). This change has raised concerns that bail was not always being used when appropriate, including to prevent individuals from committing an offence whilst on bail or interfering with witnesses. Other concerns focus on the potential for longer investigations in cases where bail is not used and the adverse impacts on the courts.
2. On 5 November 2019 the Government announced a review of pre-charge bail to address the concerns raised around the impact of the current regime on the police, victims, those under investigation and the broader criminal justice system.
3. The Government held a public consultation which ran from 5 February to 29 May 2020 which sought views on proposed reforms that would remove the general presumption against bail and instead introduce a risk-based approach to the use of bail. In addition, the consultation sought views on proposals to amend the statutory framework governing pre-charge bail timescales and authorisations designed to remove disincentives against the use of pre-charge bail whilst supporting the timely progression of investigations.
4. The consultation received 844 responses, with 80% of respondents agreeing with the proposal to remove the presumption against pre-charge bail and 88% strongly agreeing that bail conditions needed to be made more effective to prevent interference with victims and witnesses. The Government’s response to the consultation was published on 14 January 2021. Section 45 and Schedule 4 give effect to these proposals.

Extending the offence of arranging or facilitating the commission of a child sex offence

1. The Sexual Offences Act 2003 ("the 2003 Act") contains a number of specific child sex offences. Under the provisions of the Criminal Attempts Act 1981, attempting to commit any of these offences is also an offence in itself.
2. At the Ministerial Digital Industry Roundtable 2019, the Five Country Ministers (the UK together with Australia, Canada, New Zealand and the USA) agreed that "tackling [the online child sexual abuse] epidemic requires an immediate upscaling of the global response to ensure that all children across the globe are protected…and that there is no safe space online for offenders to operate."
3. Section 14 of the 2003 Act provides that it is also an offence to undertake acts preparatory to one of the child sexual offences in sections 9 to 13 (rape and other offences against children under 16). Such preparatory acts might, for example, include the (alleged) offender approaching a person requesting that they procure a child for the purpose of sexual activity, or making plans to meet a child they have communicated with online for the purpose of sexual activity. Section 14 can be applied regardless of whether the abuse takes place, as the offence is the preparatory acts taken to arrange or facilitate a child sex offence. Section 14 currently does not apply to the child sex offences in sections 5 to 8 of the 2003 Act (rape and other offences against children under 13). Section 46 addresses this gap in the criminal law.

Positions of trust

1. The existing position of trust offences were created as part of the 2003 Act and are to be found within sections 16 to 24. These provisions contain a number of offences which criminalise sexual activity with children, aged under 18, by people who hold a "position of trust" in relation to them, even where such activity is apparently consensual and would otherwise be legal.
2. The policy intention in relation to creating further positions of trust is to extend protection by preventing other individuals, who are not already in an existing position of trust and who carry out certain activities on a regular basis in a sport or in a religion and know that they do so, from using their position to abuse, exploit or manipulate young people to consent to sex.
3. In Spring 2019, the Ministry of Justice conducted a review of the law in this area, speaking to 45 stakeholders including charities, sports bodies, religious organisations, victims’ groups, the police and the Crown Prosecution Service.
4. The review found strong evidence for extending the law to include those individuals who hold influence or authority over 16 and 17-year-olds by virtue of their roles and the activities which they undertake within a sports or a religious setting. Section 47 makes the necessary change to the 2003 Act.
5. Mindful of public concern about the potential for abuse by those individuals who are also considered to be in positions of trust when carry out certain other activities, provision has also been made to enable further positions of trust to be created by the Secretary of State in the future by way of secondary legislation (regulations) should there be evidence of a need to do this.

Breast-feeding voyeurism

1. There has been increasing public concern expressed about situations where women have been photographed, without their consent, while breast-feeding their children. Women in these situations feel harassed and intimidated, and there is a concern that fear of such photography will put women off breast-feeding their children in public. The harm caused to the victims includes harms arising from the act of taking the photograph, the existence of that photograph and the possibility of that photograph being shared and viewed at a later point in time.
2. It is possible that this behaviour may be captured by existing offences, including the offence of voyeurism, harassment and public order offences. However, the Government believes that the existing law does not fully cover all such situations.
3. The Government asked the Law Commission to review the law on taking, making and sharing intimate images without consent. The Commission consulted on proposals in early 2021 and is due to report in Spring 2022. The review is looking at a range of behaviour including taking a photo without consent of someone breast-feeding in a public place where their breasts are exposed, partially exposed or covered only with underwear.
4. Whilst the Government acknowledges that it would be ideal to wait for the Law Commission’s recommendations before making any significant changes to the law in this area, it believes it is right to act now to protect breastfeeding parents, and children, from this type of harassment and abuse.
5. Section 48 therefore creates new offences to criminalise recording images of, or operating equipment to observe, a person at a time when they are breast-feeding without that person’s consent or a reasonable belief that they consent. For the offences to be made out, the perpetrator must be acting for the purposes of obtaining sexual gratification (their own, or another’s) or of humiliating, alarming or distressing the victim. These offences will be punishable by up to two years imprisonment.

Time limit for prosecution of common assault or battery in domestic abuse cases

1. Victims of domestic abuse may understandably take some time to report their abuse to the police, and longer than is often the case in a non-domestic abuse context. As a result, it has been established that the current time limit on bringing prosecutions for common assault or battery in cases relating to domestic abuse, which expires six months after the offence is alleged to have been committed, has prevented some victims from seeking justice and allowed some perpetrators to evade prosecution. Section 49 therefore extends the time limit on bringing prosecutions in these cases to ensure that victims are not unfairly prevented from seeking justice.

Criminal damage to memorials

1. There is concern that the current law does not allow the court to deal effectively with cases of criminal damage or desecration of war memorials and other statues. This issue re-emerged during summer 2020 when many statues and memorials were damaged, causing great public concern. Earlier, during the 2019-21 session, backbench MPs asked the Government to support their Desecration of War Memorials Bill intended to introduce a new and specific offence where a person destroys, damages or otherwise desecrates a war memorial. The Government has adopted an alternative approach through section 50 of this Act which amends the Magistrates’ Courts Act 1980 ("the 1980 Act") to remove consideration of monetary value with respect to criminal damage to memorials which would otherwise, in some cases, determine venue and limit sentencing powers. These changes mean the courts can now deal effectively with damage caused to memorials.

Amendments to the Crime (Overseas Production Orders) Act 2019

1. The Crime (Overseas Production Orders) Act 2019 ("COPO Act") grants law enforcement agencies and prosecuting authorities the power to apply for and obtain electronic data directly from service providers (those who create, process, communicate or store electronic data) to support criminal investigations and prosecutions. Such orders may be used only when permitted under an international co-operation arrangement between the UK and the country where the subject of the order is located. Each request will be subject to scrutiny in UK courts, mirroring the existing safeguards and tests already in place for domestic powers to obtain investigatory and evidential material.
2. The COPO Act addresses the constraints of existing domestic court orders and the limits of Mutual Legal Assistance ("MLA") in being able to compel the production of electronic data from another jurisdiction quickly. The COPO Act does this by creating a new overseas production order which has extra-territorial effect, meaning that these orders are granted by UK courts exerting jurisdiction over evidence and persons outside the UK. This jurisdiction may be asserted only where an international co-operation arrangement to which the UK is a party permits this to happen and has been designated for the purposes of the Act. An international co-operation arrangement will be in the form of a treaty with another country or countries, and will relate (in whole or part) to the provision of assistance in connection with the investigation or prosecution of offences. The COPO Act reflects the anticipated framework required to implement such international agreements in future.
3. Work on implementing the COPO Act, which came into force on 9 October 2019, for England, Wales and Scotland and 22 February 2021 for Northern Ireland, identified the need to make a number of amendments to allow the Act to work more effectively. Section 51 and Schedule 5 amend the COPO Act, in particular, to:
   • allow law enforcement officers and prosecutors to seek and receive associated or connected communications data attached to content of communications; and
   • allow the Secretary of State and Lord Advocate to delegate the service of an overseas production order where it might be more expedient for an appropriate body to take on this function.

Functions of prisoner custody officers in relation to live link hearings

1. As a response to Covid-19, HM Courts and Tribunals Service ("HMCTS") increased the roll-out of Video Remand Hearings ("VRH") from police stations. Although it has been helping the courts respond to the pandemic by reducing the number of defendants travelling to magistrates’ courts, police forces have reported resourcing and operational issues with operating VRH.
2. The Government considers it important to continue to make the best use of technology such as VRH to improve future efficiency. Section 58 provides Prisoner Escort and Custody Service ("PECS") officers with the power to have custody over prisoners in police stations, including detainees in legal custody, for the purpose of overseeing any preliminary, sentencing or enforcement hearing taking place by way of live link, in particular VRH, and matters associated with such hearings (such as overseeing pre-trial meetings with solicitors and probation officers).

Proceeds of crime: account freezing orders

1. Account freezing and forfeiture provisions were created by the Criminal Finances Act 2017 ("CFA"), which inserted new provisions into the Proceeds of Crime Act 2002 ("POCA"). Those powers enable certain law enforcement officers to apply to the court for an account freezing order. The court can only make such an order where there are reasonable grounds for suspecting that the money present in an account is the proceeds of crime, or that it is intended for use in unlawful conduct. Once money is subject to an account freezing order, then law enforcement may seek to have it forfeited.
2. The CFA account freezing and forfeiture provisions applied to money held in accounts maintained with banks and building societies. The Financial Services Act 2021 further amended POCA to make provision for money held in accounts maintained by electronic money institutions ("EMIs") and payment institutions ("PIs"), in England and Wales and Scotland, keeping pace with technological advancements in the financial sector. Legislative consent to make similar provision for Northern Ireland in what is now the Financial Services Act 2021 could not be secured within the time available. Section 59 of the Act addresses the outstanding difference. It provides for consistency of powers across the UK by ensuring that they can also be used in respect of EMI and PI accounts in Northern Ireland.

Non-criminal hate incidents

1. Non-crime hate incident (NCHI) recording is a type of police recording which stems from the murder of Stephen Lawrence and is used to collect intelligence on ‘hate incidents’ occurring in communities which could escalate into more serious harm. The Macpherson Inquiry into that murder called for Codes of Practice to create ‘a comprehensive system of reporting and recording of all racist incidents and crimes’; the recording regime has since expanded to cover all the protected characteristics covered by hate crime laws: race, religion, disability, sexual orientation and transgender identity.
2. The police regard the recording of NCHIs as an essential tool to record patterns of individual behaviour or local incident ‘hotspots’ which could give rise to safeguarding risks or community tensions. The College of Policing currently publish non-statutory Authorised Professional Practice guidance on hate crime, which includes guidance on NCHIs for officers and staff and covers the procedures they should follow when responding to NCHIs. The Court of Appeal ruled, in its judgement in Miller v College of Policing provided on 20 December 2021, that the recording of NCHIs is lawful provided that there are robust safeguards in place so that the interference with freedom of expression is proportionate. Safeguards protecting free speech in the current guidance must be made more explicit to help police officers proportionately implement recording, to ensure lawfulness of the scheme.
3. The Government recognises that there are sensitivities surrounding the recording and retention of such information by the police and also recognises the considerable strength of feeling on this issue amongst Parliamentarians in relation to the lack of democratic oversight that is afforded to the process.
4. To strike the right balance between ensuring that the practice is subject to Parliamentary scrutiny, whilst respecting the operational importance of this type of recording for the police, sections 60 and 61 enable the Home Secretary to issue a statutory Code of Practice to the police about the recording and retention of personal data relating to NCHIs. The Government will work closely with policing partners, including the College of Policing and National Police Chiefs’ Council, to draft the Code to ensure that it meets operational requirements. The Code will also reflect the recent Court of Appeal judgment. The Code will subsequently need to be debated and approved by both Houses through the affirmative procedure.

Hare Coursing

1. Successful prosecutions for hare coursing have been hampered by the current low level of penalties available to the courts under the Game Acts (the Game Act 1831 and Night Poaching Act 1828) which are commonly relied on as the basis for such prosecutions. Following consultation with stakeholders and the police, the Act addresses the gaps identified in previous laws relating to hare coursing. Sections 62 to 70:
   1. Increase the penalties available to the courts under section 1 of the Night Poaching Act 1828 and section 30 of the Game Act 1831 so that the maximum penalty for offences under these sections are a fine of any amount and/or 6 months imprisonment (increasing to 51 weeks upon the coming into force of section 281(5) Criminal Justice Act 2003)
   2. Introduced new offences relating to trespassing with intent to search for or pursue hares with dogs, including being equipped for searching for or pursuing hares with dogs
   3. Provided the court with the power to order recovery of expenses incurred from the lawful seizure and detention of dogs upon conviction for the offences referred to in (a) and (b)
   4. Provided the court with the power to make a disqualification order upon conviction for the offences referred to in (a) and (b), along with other associated orders and directions.
2. The overarching purpose of these changes is to fulfil the Government’s public commitment, made as part of its May 2021 Action Plan for Animal Welfare, to crack down on illegal hare coursing and address the animal cruelty and serious harm to rural communities associated with it.

Administering a substance with intent to cause harm

1. Administering a substance with intent to cause harm ("spiking"). In September 2021, the media began drawing attention to a new phenomenon of reported cases of spiking by needles.
2. In response, the Home Secretary asked the National Police Chiefs’ Council ("NPCC") to urgently review the extent and scale of the issue of needle spiking. This has included establishing a reporting mechanism to enable forces to report any reported incidences of needle-spiking in their area to help us to better understand the scale and nature of the problem. It has also led to the development of a rapid testing capability which will enable the Police to broaden the understanding of the substances used by offenders to facilitate spiking.
3. The Government recognises the public’s concerns about spiking and their right to feel safe when out in public. Section 71 requires the Home Secretary to set out the Government’s assessment of the whole issue of spiking, whether drink spiking or needle-spiking, and will outline the actions that the Government is taking to tackle it.

Response to Law Commission report on hate crime laws

1. The Government recognises that hate crime legislation, having been developed and added to over time, has prompted concerns that it is not sufficiently coherent and is difficult for practitioners and criminal justice agencies to implement.  In 2018, the Government therefore commissioned the Law Commission - a statutorily independent body that reviews laws and produces recommendations for their reform in England and Wales - to review hate crime laws. This review examined the coverage and approach of existing hate crime legislation, including consideration of whether sex and/or gender should be added to existing hate crime laws.
2. The Law Commission published its final recommendations in December 2021. Recommendation 8 of the Law Commission report stated: "We [the Law Commission] recommend that sex or gender should not be added as a protected characteristic for the purposes of aggravated offences and enhanced sentencing." Its report highlighted concerns relating to the potential negative consequences of adding sex or gender to hate crime laws, concluding that adding sex or gender to hate crime laws would be "more harmful than helpful, both to victims of violence against women and girls, and also to efforts to tackle hate crime more broadly." The full report can be found here.
3. As a consequence of the Law Commission’s recommendation, the Government subsequently disagreed with amendments tabled to the Police, Crime, Sentencing and Courts Bill that sought to add sex and/or gender to hate crime legislation. However, the Government recognises the strength of public feeling in relation to this issue, and violence against women and girls more generally. Section 72 therefore gives effect to the Government’s commitment to prepare and publish a response to Recommendation 8 of the report within a year of the Act coming into effect. This response will be laid before Parliament.
4. Under the Law Commissions Act 1965, there is a formal legal requirement for the Government to report to Parliament annually on the extent to which the Government has implemented Law Commission recommendations from the preceding year. The Government’s formal response to Recommendation 8 will be included in the full response to the Law Commission report.

Police powers to tackle non-violent protests

1. Current legislation to manage protests provides predominantly for powers to counter behaviours at protests which are violent or distressing to the public. These powers include those under the Public Order Act 1986 (the "1986 Act") which provides the police with powers to manage public processions and assemblies, including protests. Section 12 of the 1986 Act allows the police to impose any type of condition on a public procession necessary to prevent: serious disorder; serious damage to property; serious disruption to the life of the community; or if the purpose of the organiser is to intimidate others into doing or not doing something that they have a right to do, or to not do. Conditions that may be imposed on a public assembly are more limited, being restricted to specifying their maximum duration, maximum attendance and location (section 14(1) of the 1986 Act).
2. The tactics employed by certain protesters, for example gluing themselves to buildings or vehicles, blocking bridges or otherwise obstructing access to buildings such as the Palace of Westminster and newspaper printing works, have highlighted some gaps in current legislation. To address these gaps, Sections 73 to 75 and 79 amend the 1986 Act to:
   • allow the police to place any necessary condition on a public assembly, as they can with a public procession;
   • amend the offences relating to the breaching of conditions placed on a public procession or assembly by closing a loophole which some protesters exploit to evade conviction for breaching conditions, and increasing the maximum penalties for the offence;
   • broaden the range of circumstances in which the police can impose conditions on the generation of noise at a public procession or public assembly to include where police reasonably believe the noise generated by persons taking part may have a significant detrimental impact on persons in the vicinity or cause a serious disruption to the running of an organisation;
   • allow the police to impose conditions on one-person protests where they reasonably believe the noise generated by the person carrying on the protest may have a significant detrimental impact on persons in the vicinity or may result in serious disruption to the activities of an organisation;
   • make provision about the meaning of "serious disruption to the life of the community".

1. Section 76 amends Part 3 of the Police Reform and Social Responsibility Act 2011 so that a police officer may direct an individual to cease, or not start obstructing the passage of a vehicle into or out of the Parliamentary Estate and expands the Palace of Westminster controlled area to ensure that all entrances are included. This measure follows the recommendation of the Joint Committee on Human Rights in their October 2019 Report "Democracy, freedom of expression and freedom of association: Threats to MPs" (First of session 2019, HC37 and HL Paper 5) for further legislation to protect the right of access to the Parliamentary estate for those with business there.
2. Section 77 further provides a power for the Secretary of State to make a provision to define a new controlled area around the temporary locations of Parliament when both Houses relocate as part of the Place of Westminster Restoration and Renewal Programme, or for any reason (e.g. an emergency relocation due to events such as a fire or flood). Some or all of the prohibited behaviours in the existing controlled area, as amended, as provided for in the Police Reform and Social Responsibility Act 2011, will be prohibited in the newly defined controlled area.
3. Section 78 gives effect to recommendations made by the Law Commission in their July 2015 Report on "Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency ", that the common law offence of public nuisance should be replaced by a statutory offence covering any conduct which endangers the life, health, property or comfort of a section of the public or obstructs them in the exercise of their rights.
4. Section 80 increases the maximum penalty for willful obstruction of the highway from a level-3 fine to an unlimited fine and/or six-months imprisonment. It also clarifies that the offence can be committed even if the highway in question has been temporarily closed by the relevant authority.
5. Section 82 introduces expedited Public Spaces Protection Orders ("PSPOs"), which allow local authorities to make PSPOs outside schools, vaccine and test and trace centres, where protests are, or are likely to have the effect of harassing, intimidating or impeding those who work and use the services of these sites. Expedited PSPOs can last for a maximum of six-months and are not subject to the usual pre-consultation requirements of normal PSPOs. However, the council must carry out the necessary consultation as soon as reasonably practicable after making an expedited PSPO.

Unauthorised encampments

1. There are a number of powers available to the police and local authorities to tackle unauthorised encampments. Sections 61 to 62E of the Criminal Justice and Public Order Act 1994 ("the 1994 Act") confer powers on the police to direct trespassers to leave land and to remove any vehicles or other property they have with them on the land. Sections 77 to 79 of the 1994 Act confer similar powers on local authorities in respect of unauthorised encampments. 1 The vast majority of travelling communities reside in caravans on authorised sites. Out of the 24,203 caravans recorded in England in July 2021, only 707 (3%)  were on unauthorised sites. Despite this relatively low proportion, there have been long-standing concerns about the disproportionate impact some unauthorised encampments can have. They can infringe upon the settled communities’ rights through temporary loss of local amenities and can cause distress to local communities and local businesses.
2. Recognising these concerns, from 5 April to 15 June 2018, the Government ran a consultation on the effectiveness of enforcement against unauthorised encampments. The consultation sought views on the scale of the problem, whether existing powers could be used more effectively and if any additional powers were required. Alongside the Government response to the consultation published on 6 February 2019, the then Home Secretary announced the Government would look to amend sections 61 and 62A of the 1994 Act to enable unauthorised encampments to be tackled more effectively. He also confirmed that Home Office officials would review how the Government could criminalise the act of trespassing when setting up an unauthorised encampment in England and Wales.
3. Following this a second consultation was launched on 5 November 2019 and ran until 4 March 2020. This consultation asked how to strengthen the police’s powers to tackle unauthorised encampments. It included proposals to amend the 1994 Act and proposals for the introduction of a new criminal offence of trespass. The Government published its response to this consultation on 8 March 2021, setting out proposals to create a new offence and strengthen the powers in the 1994 Act; Part 4 gives effect to these proposals.

Road traffic

Road traffic offences

1. On 5 December 2016 the Government launched a consultation, "Driving offences and penalties relating to causing death or serious injury". The consultation sought views on specific offences dealing with causing death or serious injury, which had been identified as of the greatest concern to the public. The consultation ran until 1 February 2017.
2. The Government response to the consultation was published on 16 October 2017. The Government committed to bring forward proposals for reform of the law to:
   • create a new offence of causing serious injury by careless driving;
   • increase the maximum penalty for causing death by dangerous driving from 14 years to life imprisonment; and
   • increase the maximum penalty for causing death by careless driving when under the influence of drink or drugs from 14 years to life imprisonment.

1. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 created an offence of causing serious injury by dangerous driving. The Criminal Justice and Courts Act 2015 added a further offence of causing serious injury while driving disqualified. There are therefore two "causing serious injury" driving offences, relating to dangerous driving and disqualified driving, but no offence with respect to serious injury resulting from careless driving.
2. A new offence of causing serious injury by careless, or inconsiderate, driving means that those who drive carelessly resulting in a person suffering serious injury will be liable to prosecution for a specific offence which carries a maximum penalty of a custodial sentence of 2 years on indictment rather than under the offence of careless, and inconsiderate, driving which has the maximum penalty of a fine. The Government believes that this new offence better reflects the overall seriousness of the careless, or inconsiderate, driving that leads to serious injury.
3. 14 years’ imprisonment is the current maximum custodial penalty available for the offences of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs. Increasing the maximum penalty to life imprisonment for these offences will provide the courts with enhanced powers to sentence appropriately for the most serious cases.
4. Sections 86 to 88 of and Schedule 8 to the Act give effect to these measures.
5. The 2016 consultation also sought views on whether drivers should be given longer minimum periods of disqualification for offences of causing death by driving. 84% of respondents thought that consideration should be given to a longer minimum period of disqualification, demonstrating strong public support for a change.
6. Previously, section 34(1) of the Road Traffic Offenders Act 1988 provided for a minimum period of 12 months disqualification for an offence involving obligatory disqualification from driving, unless the court thought there were special reasons for disqualifying for less than this minimum or for making no order for disqualification. This minimum period increased to two years in the case of a conviction for the offences mentioned in section 34(4), which include the offences of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs. The minimum period further increased to three years in the case of a conviction for causing death by careless driving when under the influence of drink or drugs, or any of the other offences listed in section 34(3), where the offender had been convicted of any such offence within the ten years immediately preceding the commission of the new offence. This scenario is known as a repeat offence.
7. Section 86 also increases the minimum period of disqualification for the offences of causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs from two years to five years. This change supplements the increase in custodial sentences for these two offences from 14 years to life. In the case of a repeat offence where both the previous offence and the new offence consisted of causing death by careless driving when under the influence of drink or drugs, the period is increased to six years. This is in recognition of the fact that repeat offences of causing death by careless driving when under the influence are indicative of a pattern of reckless conduct in preparation for driving, with very serious consequences. Section 86 does not remove the discretion that judges and magistrates have to impose a shorter period of disqualification, or not to impose a disqualification, where there are special reasons which make this appropriate.

Courses offered as an alternative to prosecution

1. Persons who commit certain low-level road traffic offences (for example, being caught speeding by a speed camera, driving without due care and attention, traffic light offences or not wearing a seat belt) may be offered educational courses under existing powers (section 1 of the Local Government (Goods and Services) Act 1970 and section 143 of the Anti-Social Behaviour Crime and Policing Act 2014 read in conjunction with paragraph 14 of Schedule 1 to the Police Reform and Social Responsibility Act 2011). Such courses are offered as an alternative to a fixed penalty (www.ukroed.org.uk ) and therefore a driver who successfully completes a course is not required to pay a financial penalty in relation to the offence, or to have points endorsed on their driving record. The current fee is around £100 as the exact course fee can vary according to local arrangements. This is charged to a driver who enrolls on a course, which covers the cost of the course, administrative expenses and an element to fund road safety programmes. Section 89 sets out a specific statutory basis for this charging regime, putting beyond doubt the police’s power to charge. It does not change the way in which courses are offered, administered or run, but provides greater transparency over the way that fees are set.

Charges for removal, storage and disposal of vehicles

1. Section 102 of the Road Traffic Regulation Act 1984 (the "1984 Act") enables charges incurred in the removal, storage and disposal of vehicles under sections 99 and 101 of that Act to be recovered. This includes where vehicles are removed:
   • On a road in contravention of a statutory prohibition or restriction;
   • On a road causing an obstruction to road users or likely to cause danger to them;
   • On a road or any land in the open air and appearing to be abandoned without lawful authority;
   • From a parking place where a vehicle has been left there in contravention of agreed conditions.

1. Following amendments to section 102(2) of the 1984 Act made by section 68 of the Road Traffic Act 1991 ("the 1991 Act") and paragraph 4(2) of Schedule 11 to the Traffic Management Act 2004 ("the 2004 Act"), section 90 amends section 102(2A) of the 1984 Act, returning the power to charge for the recovery, storage and disposal of vehicles in certain circumstances to a statutory footing. This section ensures that such statutory charging powers extend to the chief officer, local authorities, the Secretary of State and strategic highways companies once again.

Surrender of driving licences

1. The paper counterpart to the driving licence was abolished in June 2015 by the commencement of section 10 of and Schedule 3 to the Road Safety Act 2006. As a result, there is no further need for a physical driving licence to be produced and surrendered (either to the court where proceedings are commenced, or to a constable, vehicle examiner or fixed penalty clerk in relation to fixed penalties or conditional offers) for an endorsement to be recorded on an individual’s driving record. Endorsement information is recorded on the electronic driver record held by the Driver and Vehicle Licensing Agency ("DVLA"). The only need for a licence to be produced or surrendered is therefore where the driver may be sentenced to disqualification or is actually disqualified.
2. Sections 91 to 96, and Schedules 9 and 10 update the law in relation to the production and surrender of driving licences so as to streamline the processes for the electronic endorsement of driving licences by removing the need for the physical licence to be produced. They also strengthen the rules for the surrender of driving licences where a driver faces disqualification.

Fixed penalty notices for certain road traffic offences - Scotland

1. Currently, the police throughout Great Britain have the power to issue a conditional offer of fixed penalty notice ("COFPN") under sections 75 to 77A of the Road Traffic Offenders Act 1988 (the "1988 Act"). This scheme was introduced in 1989 as an alternative to prosecution for certain low-level road traffic offences. Once a COFPN is issued, an individual has 28 days to accept the offer and make payment. If, in Scotland, the offer is not accepted or if the recipient fails to take any action, the police will submit a "Standard Prosecution Report" to the Crown Office and Procurator Fiscal Service for consideration of whether a prosecution should take place.
2. In England and Wales, in addition to powers to issue COFPN, section 54 of the 1988 Act allows the police and Driver and Vehicle Standards Agency ("DVSA") vehicle examiners to issue fixed penalty notices ("FPNs") on-the-spot to alleged road traffic offenders. The level of the monetary penalty varies depending on the offence. For example, the penalty is £100 for driving without due care and attention, £200 for using a hand-held mobile phone while driving and £300 for driving without insurance. If the recipient does not either pay the fixed penalty on time or request a hearing in respect of the FPN, a sum equal to one and a half times the FPN amount becomes a registered fine and is collected and enforced in line with the normal procedures in place for court-imposed fines. There is no need for the police to report the matter to the Crown Prosecution Service, nor for a prosecution to take place. There is no equivalent power for police officers in Scotland to issue FPNs.
3. The Department for Transport, in partnership with the Scottish Government, ran a public consultation from 27 March to 8 May 2018 seeking views on whether to extend the power in section 54 of the 1988 Act to allow the police, traffic wardens and DVSA vehicle examiners to issue on-the-spot FPNs to suspected offenders of road traffic offences committed in Scotland. The consultation received 26 responses with the majority of respondents agreeing to the proposed changes. A response to the consultation was published in September 2020 accepting the Scottish Government’s request to enable the police to issue FPNs to suspected offenders of road traffic offences committed in Scotland. Section 97 of the Act gives effect to these proposals.

Cautions

1. Out of Court Disposals ("OOCDs") are sanctions which allow the police to deal swiftly, proportionately and appropriately with low-level offending without the offender coming before court. They can maximise the use of officer time, achieving a satisfactory outcome for the public while allowing officers to spend more time on frontline duties tackling more serious and complex crime.
2. They are also an opportunity to provide intervention and support to offenders at an earlier stage in criminal behaviour, diverting them into rehabilitative services to help reduce escalation of offending. In this way, there is potential for a greater whole-systems approach, in particular diverting those who have mental health issues, health vulnerabilities or other complex needs into appropriate services as a condition of the disposal, getting to the root cause of their offending.
3. Police forces currently have access to up to six OOCDs for adults (Cannabis/Khat warning, Community Resolution, Penalty Notice for Disorder, Simple Cautions and Conditional Cautions). The Act will reduce this to two statutory OOCDs.
4. The Government and the police conducted a joint review of the existing OOCD framework in 2013, and held a public consultation, which ran from November 2013 to January 2014. The consultation responses confirmed that the OOCD framework was in need of reform. The joint Government and police response to the consultation was published in November 2014. It set out plans to reduce the number of disposals from six to two. A new ‘two-tier framework’ was piloted in three police forces.
5. A two-tier framework, based on the pilot forces, has been voluntarily adopted by a number of police forces to date through the National Police Chiefs’ Council OOCD strategy which was published in 2017.
6. Part 6 of the Act gives effect to the Government’s commitment to legislate, implementing the new two-tier framework to ensure transparency and consistency of approach for OOCDs across England and Wales. These measures introduce a two-tier legislative framework, comprising community and diversionary cautions to simplify the OOCDs framework. The new framework will still afford the police scope to innovate through local initiatives, such as deferred prosecution; the Ministry of Justice-led programme ‘Chance to Change’ is piloting such a scheme in two police forces areas as recommended by the Lammy Review .

Custodial Sentences

Penalty for cruelty to children

1. Currently, section 1 of the Children and Young Persons Act 1933 provides that the maximum penalty for cruelty to a person under 16 is 10 years’ imprisonment; and section 5 of the Domestic Violence, Crime and Victims Act 2004 provides that the maximum penalty causing or allowing a child or vulnerable adult to suffer serious physical harm is 10 years’ imprisonment and the maximum penalty for causing or allowing a child or vulnerable adult to die is 14 years’ imprisonment.
2. Since 2016 Members of Parliament have, on several occasions, asked the Government to consider raising the maximum penalties for these offences amid concerns that they are insufficient to reflect the severity of the harm caused in extreme cases. In July 2021, in response to Tom Tugendhat MP raising the issue at Commons Report stage of the Police, Crime, Sentencing and Courts Bill, the Government undertook to consider it and to bring forward proposals for reform as soon as possible.
3. Following such consideration, the government decided to increase the maximum penalties for:
   1. cruelty to a person under 16 from 10 years’ imprisonment to 14 years’ imprisonment;
   2. causing or allowing a child or vulnerable adult to suffer serious physical harm from 10 years’ imprisonment to 14 years’ imprisonment; and
   3. causing or allowing a child or vulnerable adult to die from 14 years’ imprisonment to life imprisonment.
4. This will ensure that the courts have the fullest range of sentencing powers available to deal appropriately with those who abuse children. Sections 122 and 123 give effect to these changes.

Minimum sentences for particular offences

1. For offenders who commit certain key offences of a serious nature, the law provides minimum custodial sentences. These generally, although not exclusively, apply to repeat offences, such as a third conviction for domestic burglary. These minimum sentences are not technically mandatory; rather they are a mandatory consideration that the court must make before passing a sentence. Courts have the discretion not to impose the minimum when it considers that there are particular circumstances pertaining to the offender and/or the offence which would make it unjust. The court will apply a reduction for an early guilty plea, although the reduction cannot take the sentence length to below 80% of the minimum.
2. A large proportion of repeat offenders do not receive the minimum custodial sentence. The Act aims to reduce the occasions in which the court could depart from the minimum term, by changing the threshold for passing a sentence below the minimum term for offences including: a third class A drug trafficking offence (7 years minimum); a third domestic burglary (3 years minimum); a repeat offence involving a weapon or bladed article (6 months minimum); and threatening a person with a weapon or bladed article (6 months minimum). The changes will also apply to 16- and 17-year-olds who receive a 4-month detention and training order ("DTO") for a repeat offence involving a weapon or bladed article or threatening a person with weapon or bladed article.
3. These changes will also align the criteria used for these offences with section 311 of the Sentencing Code ("the Code") (as introduced by the Sentencing Act 2020 (the "2020 Act")), which states, in relation to offences involving firearms, that the court must impose an appropriate custodial sentence of at least the minimum term unless the court is of the opinion that there are "exceptional" circumstances which relate to the offence or to the offender which would justify not doing so.
4. Section 124 and Schedule 12 amend sections 312 to 315 and 320 of the Code in relation to the offences mentioned above so that it requires the court to impose a custodial sentence of at least the statutory minimum term unless there are exceptional circumstances that relate to any of the offences or to the offender which would make it unjust to do so. Judicial discretion to depart from the minimum is retained.
5. These changes will apply only prospectively, and the court will continue to apply a discount for an early guilty plea, not below 80% of the minimum.

Whole life order as a starting point for premeditated child murder

1. Section 125 expands the existing criteria, set out in Schedule 21 to the Code, so that the premeditated murder of a child should have, as its starting point, a whole life order when it comes to a court passing sentence. This change is being made to reflect the particularly heinous nature of such murders, ensuring they can be met with the most severe punishment that is available.

Whole life orders for young adult offenders in exceptional cases

1. Currently, whole life orders can be imposed only on offenders aged 21 and over. Section 126 will make it possible for judges to impose whole life orders on offenders aged 18 to 20 in exceptional and serious circumstances. The measures will amend provisions in the Code, which deals with whole life orders, so that, although it will remain the case that such sentences cannot ordinarily be imposed on offenders below the age of 21, judges have the option of imposing them in particularly rare and serious cases.

Starting points for murder committed when under 18

1. Detention at Her Majesty’s Pleasure ("DHMP") is a mandatory life sentence for offenders who commit the offence of murder when they are a child, as set out in section 259 of the Code. As with all life sentences, the court must set a minimum term to be served in custody before the offender can be considered for release by the Parole Board. Paragraph 6 of Schedule 21 to the Code sets the minimum term starting point at 12 years for all children. Section 127 amends the Code to introduce a sliding scale of starting points for minimum terms. The scale takes into consideration the age of the child and the seriousness of the murder. The older the child and the more serious the murder, the higher the starting point.
2. Those who are sentenced to DHMP can currently apply for a review of their minimum term at the halfway point. The purpose of the review is to determine if the existing minimum term is still appropriate, in light of the individual’s progress in custody. The individual can apply for further reviews every two years under current policy. Section 128 enshrines the minimum term review process into legislation. It also removes eligibility for continuing reviews past the age of 18. Those sentenced to DHMP will be eligible for only a single review at the halfway point of their minimum term but no further reviews once they have turned 18. Those who were already age 18 or over at sentencing will no longer be eligible for any minimum term review.

Life sentence not fixed by law: minimum term

1. Discretionary life sentences may be imposed where a serious offence (such as manslaughter, rape or grievous bodily harm with intent) has been committed. When imposing such a sentence, the court must set a minimum term (commonly known as a tariff) that must be served in full in custody before the prisoner can be considered for release by the Parole Board. Section 129 changes the way in which the starting point for discretionary life sentence minimum terms are calculated so that there is greater consistency across the sentencing framework as it applies to serious offences.
2. The change will require courts to base the minimum term on a starting point of at least two-thirds of a notional determinate sentence instead of half of such a sentence as at present. This change is necessary because most serious violent and sexual offenders who receive determinate sentences – including those who may receive an extended determinate sentence – are required to serve two-thirds of their custodial term before they may be released. The Government has also legislated through the Counter-Terrorism and Sentencing Act 2021, to require that the most serious terrorist offenders given a determinate sentence serve the whole of their custodial term before they can be released. To ensure consistency with that position, where a prisoner receives a discretionary life sentence instead of such a determinate sentence, this change provides that the starting point for the minimum term would be the whole of the custodial term for that notional determinate sentence.
3. The measure will amend section 323 of the Code and will mean that those serving discretionary life sentences should serve longer in prison before being considered for release by the Parole Board.

Abolishing automatic halfway release for certain serious offenders

1. Standard release provisions are set out in section 244 of the Criminal Justice Act 2003 ("CJA 2003"), which before 2020 provided in all cases that offenders in receipt of a standard determinate sentence ("SDS") for any offence would be automatically released from their sentence at the half-way point and they would then serve the remainder of their sentence on licence in the community. The Government’s 2019 manifesto committed to "end automatic halfway release from prison for serious crimes".
2. In February 2020, this halfway release requirement was changed for terrorist offenders in receipt of an SDS, by the Terrorist Offenders (Restriction of Early Release) ("TORER") Act 2020, so they would instead have to serve two-thirds of their sentence before the Parole Board would consider if they were safe for early release. This fast-track legislation was brought forward following the terror attacks at London Bridge and in Streatham.
3. In relation to non-terrorist offenders, the Release of Prisoners (Alteration of Relevant Proportion of Sentence) ("ROPARPS") Order 2020 (SI 2020/158) came into force on 1 April 2020. This Order ensured that offenders who receive an adult SDS of 7 years or more, for an offence that attracts a maximum life sentence, must serve two-thirds in custody before they are automatically released on license for the remainder of the sentence.
4. Section 130 further expands on this to deliver the manifesto commitment, providing that offenders sentenced to an adult SDS of between 4 and 7 years for certain serious violent and sexual offences (where that offence attracts a maximum penalty of life) will be required to serve two-thirds of their sentence in custody instead of half. It also enshrines the provisions of the ROPARPS Order 2020 in primary legislation.
5. The release provisions that are set out in section 244 of the CJA 2003 also apply to section 250 sentences (standard determinate sentences for youths). This Act changes the automatic release from half-way to the two-thirds point for those who receive a section 250 sentence of seven years or more for certain serious violent and sexual offences (where that offence attracts a maximum penalty of life).
6. Sections 130 and 131 are required to ensure that the proportion of the sentence served in custody reflects the gravity of the offence committed, and to address concerns about the current automatic halfway release of offenders who have committed very serious violent and sexual offences.

Power to refer high-risk offenders to the Parole Board in place of automatic release

1. Offenders who are assessed as dangerous by the sentencing court may be sentenced to an extended determinate sentence and may be released only before the end of their custodial term if the Parole Board assess they no longer pose a public protection risk. The majority of offenders who are not assessed as dangerous by the sentencing court will be given an SDS. They will be automatically released before the end of their sentence – either at the half way point or the two-thirds point of the sentence – to serve the remainder of the sentence on licence in the community.
2. The Government introduced fast-track legislation after the terrorist attack in Streatham in February 2020, the TORER Act 2020, to ensure that those convicted of terrorist or terrorist-connected offences serving standard determinate sentences could not be released before the end of their sentence without the approval of the Parole Board.
3. Section 131 builds on this approach by introducing a new power for the Secretary of State to prevent the automatic early release of prisoners serving an SDS who are identified as a significant public protection concern while they are imprisoned. This measure will ensure that prisoners who become dangerous or are identified as dangerous in prison following conviction and sentencing are not subject to automatic release before the end of their sentence. They will instead be assessed by the Parole Board who will determine if they can be safely released on licence before this point. There will be no provision for holding an offender in custody beyond the end of the sentence handed down by the court.

Increase in requisite custodial period for certain other offenders of particular concern

1. A Sentence for Offenders of Particular Concern ("SOPC") must be imposed where there is a conviction for a specified offence (certain terrorist offences and the two most serious child sex offences - rape of a child under 13 and sexual assault of a child under 13) but the offending is not deemed serious enough to attract a life sentence and where the court assesses that the offender is not dangerous and therefore does not require an extended determinate sentence. Under this sentence, an offender may be considered for early release (at either the halfway or two-thirds point of the custodial term) by the Parole Board. If not released early, they must be released at the end of their custodial term to serve a further period of 12 months on licence. The TORER Act 2020 moved the earliest release point for terrorist offenders sentenced to a SOPC from halfway to two-thirds.
2. This measure will change the earliest release point for all remaining offences which attract a SOPC (those specified child sex offences), bringing them into line with those terrorist offenders who receive a SOPC. This is in order to achieve consistency between all offenders serving the sentence itself, regardless of the offence committed, and to achieve consistency with the release arrangements that are in place for other serious offenders. This change will ensure that all those who receive a SOPC can be released, at the earliest and at the discretion of the Parole Board, only after having served two-thirds of their custodial term rather than half of the term as at present. The change will also ensure that all those who receive a SOPC are brought into line with the two-thirds release point that applies to other serious offenders. It will align, in particular, with the changes being made in this Act to require certain serious sexual and violent offenders who receive an SDS of 4 years or more to serve two-thirds instead of half their sentence in custody.

Power to make provision for reconsideration and setting aside of Parole Board decisions

1. The courts have recently found that there is no power in the current legal framework for the Parole Board to re-open a case where they have made a decision, other than under the terms of the reconsideration mechanism which the Government introduced in the Parole Board Rules 2019 (SI 2019/1038). The scope of that mechanism was deliberately restrictive to ensure it was within the power set out in primary legislation to make rules. This means that there is the potential for the Secretary of State to be required by legislation to release a prisoner at the direction of the Parole Board, even where the parole decision may be based on an error of fact or law. In that situation the only recourse available is to apply to the High Court for the decision to be set aside, which is a costly and time-consuming process.
2. To remedy this, section 133 provides that the rules the Secretary of State may make may confer a power on the Parole Board to set aside its own release decisions administratively on application from the Secretary of State without the need for a judicial review of the decision by the High Court.
3. The reconsideration mechanism requires the Parole Board to take decisions which are provisional for 21-days, during which time a reconsideration application may be made. The power for the Board to make provisional decisions currently exists only in secondary legislation. The lawfulness of that approach was tested in the High Court and while the Government successfully defended the claim, section 133 now puts this question beyond doubt by making specific provision for the Parole Board to be able to make provisional decisions and reconsider those decisions.

Responsibility for setting licence conditions for fixed-term prisoners

1. The current system for setting and varying licence conditions for fixed-term prisoners is complex and confusing for practitioners to apply correctly and the statutory provisions on responsibility for setting licence conditions are inconsistent across different determinate sentence types. This creates an environment where confusion and administrative mistakes can occur.
2. The provisions made by section 134 will create a clear, consistent and logical split in responsibility for licence conditions for determinate sentence prisoners. This will be easier to operate in practice and corrects the current inconsistent approach that has evolved through the CJA 2003 following previous changes to the release and recall provisions. Licence conditions for indeterminate prisoners will remain the responsibility of the Parole Board.

Repeal of uncommenced provision for establishment of recall adjudicators

1. The Criminal Justice and Courts Act 2015 ("the 2015 Act") introduced provisions for the creation of a new body of decision makers called ‘recall adjudicators’. This was done with the intention of removing from the Parole Board the responsibility for reviewing the detention of recalled fixed-term prisoners and instead have those cases reviewed by recall adjudicators appointed by the Secretary of State. This was conceived in order to reduce pressure on the Parole Board because of the large and increasing backlog of oral hearings that had developed since the ‘Osborn’ Supreme Court judgment in 2013, which required the Parole Board to direct a higher proportion of cases to an oral hearing as opposed to a decision on the papers.
2. Following Royal Assent of the 2015 Act, implementation was delayed by the General Election. In the intervening time new ways of working enabled the pressure on the Parole Board to be reduced and the backlog of cases awaiting an oral hearing to be eliminated. As a result, it was no longer necessary to implement those provisions and they have become redundant. Section 135 repeals these provisions.

Release at direction of Parole Board after recall: fixed-term prisoners

1. Section 136 makes a number of minor changes and fixes to the provisions in the CJA 2003 dealing with recall and re-release of fixed-term prisoners. These measures will ensure that the Parole Board applies the same ‘public protection’ release test as they apply in all other parole cases when considering the re-release of recalled fixed-term prisoners. In practice, the Parole Board already applies this test in these cases so this change will simply fill a gap in the legislation where there is currently no provision for the test the Board should apply.
2. Section 136 also removes the current provision which allows the Parole Board to direct release of a fixed-term prisoner on a specified future date (in section 256 of the CJA 2003). This is undesirable because it creates an expectation of release on that date, which may not be possible if other conditions of release also need to be fulfilled. In those circumstances, applications are required to the Parole Board to change the timing of its release direction. This provision is therefore being removed and replaced with a new provision as to timing (see below).
3. Section 136 also amends the existing provision so that, in a case where a recalled determinate prisoner has less than 13 months remaining on their sentence (at which point they must then be released automatically), there is no requirement on the Secretary of State to make the further annual referral to the Parole Board. This is on the basis that the prisoner will be due for release in any event at the end of their sentence by the time that further review would take place, so such a referral serves no useful purpose.
4. Current legislation also unnecessarily requires a recall case to be referred to the Parole Board to consider re-release even where another sentence is being served from which release is not yet possible. Provision is made (new section 256AZA of the CJA 2003) to remove that requirement and thereby avoid unnecessary referrals to the Parole Board.

Power to change test for release of fixed-term prisoners following recall

1. The new measures (contained in section 137) provide that when considering the release of recalled fixed-term prisoners, the Parole Board is required to apply the same test as for any other parole case; that is, that the Parole Board must be satisfied that the prisoner’s detention is no longer necessary for the protection of the public.
2. For other parole cases (excluding life sentences), the Secretary of State has the power to amend the release test by Order. Having added the same ‘public protection’ release test to the legislation for recalled fixed-term prisoners, it is necessary for consistency to also replicate the power to amend that test in line with other parole cases in which that test is applied.
3. In addition, section 137 also makes similar provisions for a power to amend the test in the CJA 2003 that the Secretary of State applies when deciding whether a ‘fixed term recall’ may be appropriate (under section 255A) and when deciding whether to re-release a recalled prisoner under sections 255B or 255C.

Imprisonment for public protection etc: duty to refer person released on licence to Parole Board

1. Following release from prison, offenders serving Imprisonment for Public Protection ("IPP") (and youth and armed forces equivalents) will remain on licence in the community for the rest of their lives or until their licence is terminated.
2. IPP offenders are entitled to make an application to the Parole Board to have their licence terminated once 10 years has elapsed from their first release from prison.
3. The Parole Board will only direct that the licence should cease to have effect if it is ‘satisfied that it is no longer necessary for the protection of the public that the licence should remain in force’. If the Parole Board determines that the licence is no longer necessary, the individual will no longer be subject to the terms of the licence or any supervision under it and cannot be recalled to prison.
4. Typically, the Secretary of State applies to the Parole Board for licence termination on the behalf of eligible offenders; though, as the legislation is framed as a right conferred on the prisoner to make an application, the Secretary of State must first obtain permission from the offender prior to making the application.
5. Section 138 will instead require the Secretary of State to make a referral to the Parole Board for licence termination (instead of the offender) and therefore removes the need for the Secretary of State to seek prior permission from the offender before doing so. This will better enable (and require) the Secretary of State to make referrals on behalf of offenders where their permission may be difficult to obtain; for example, where the offender’s supervision has been suspended and the individual is no longer required to maintain contact with a probation office.
6. This section also clarifies that time spent in custody following recall does not affect the calculation of the qualifying period and neither does the fact that the offender is in custody following recall. If this is the case, the Parole Board must instead determine if it is necessary for the protection of the public that, when released, the offender remains under the IPP licence.
7. Section 138 also requires that where the referral for licence termination is rejected by the Parole Board, the Secretary of State must then automatically re-refer them every 12 months for consideration.

Release at direction of Parole Board: timing

1. Section 139 amends existing legislation regarding the timing of a prisoner’s release following a direction by the Parole Board. In all cases, when the Parole Board directs release, the Secretary of State must give effect to the direction ‘as soon as it is reasonably practicable’ to do so. In recall cases, the Parole Board will no longer be able to direct ‘immediate’ release. The reason for these changes is that in practice, decisions described as requiring ‘immediate release’ are unhelpful and unnecessary. They may create an expectation that release will take place immediately after the Board decision is made, which may not be possible due to the need to make necessary arrangements for the licence conditions the Board stipulates the prisoner must be subject to on release (for example, a requirement to reside in an approved premises).

Driver disqualification

1. As a consequence of recent changes to the release points for offenders in England and Wales (and, for terrorist offenders, in Scotland as well), made through the Terrorist Offenders (Restriction of Early Release) Act 2020, the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 and those made by the Counter-Terrorism and Sentencing Act 2021 and by this Act, the Government have considered the legislation that provides for an appropriate extension period when a driving disqualification is imposed with a custodial sentence. The Act amends such legislation to ensure that an appropriate extension period is of a length that accurately correlates with the relevant release points of the associated custodial sentence.
2. Alongside a discretionary disqualification period, which is set at the discretion of the court, a judge must impose the appropriate extension period. This period is imposed to ensure that, as far as is possible, the total disqualification period is equal to the anticipated time actually spent in custody (the extension period) plus the discretionary disqualification period imposed by the court. To achieve this, sections 140 to 142 amend the appropriate extension periods prescribed in Chapter 1 of Part 8 of the Code; section 248D of the Criminal Procedure (Scotland) Act 1995; and the Road Traffic Offenders Act 1988, so the appropriate extension period accurately correlates with the new release provisions. Section 143 amends the equivalent driving disqualification provisions as they relate to Scotland to ensure they continue to operate correctly.
3. These changes are necessary to ensure those in receipt of a driving disqualification and a custodial sentence will not have a significant part of that disqualification subsumed by time spent in custody.

Sentences and offences in respect of which polygraph condition may be imposed

1. Section 146 makes provision to enable the Secretary of State to add polygraph testing as a licence condition for individuals convicted of sexual offences or domestic abuse offences subject to release on licence, who have been convicted under service law, or who are repatriated to England or Wales from overseas. The Act also updates and extends the list of sex offences eligible for polygraph testing.
2. Section 28 of the Offender Management Act 2007 enables the Secretary of State to impose a polygraph testing licence provision on an offender released on licence in England and Wales. The current arrangements for testing sex offenders commenced in January 2013, following a successful pilot of polygraph for sexual offenders. Polygraph testing is included as an additional licence condition for all serious sexual offenders (in the case of indeterminate sentenced prisoners, with the consent of the Parole Board). In addition, probation officers have the discretion to propose the condition for some less serious offenders, where it is deemed necessary and proportionate to do so.
3. There is currently no ability to impose polygraph conditions on sex offenders and domestic abuse offenders who meet the criteria and are repatriated offenders, or service offenders. It is considered that the Secretary of State’s ability to include a polygraph testing condition should be extended to sex offenders and domestic abuse offenders who are repatriated to England and Wales from overseas, or who are service offenders. This will ensure that the management of those offenders will benefit from the polygraph and will put beyond all doubt who should be made subject to testing. It will also make it consistent with the legislation that applies to terrorist offenders.
4. The section retains existing sexual offences which are eligible for polygraph, and additionally expands the list to include sexual offences listed in Schedule 3 to the 2003 Act (the specified list of sexual offences for which notification requirements must be imposed). This will ensure consistency, both in the management of sex offenders and between jurisdictions when an offender is transferred from Scotland or Northern Ireland to serve their licence period in England and Wales and ensure current offences of concern in all jurisdictions are reflected.

Minor amendments to do with weapons-related offences

1. Section 147 streamlines the release point for two specific (and very rarely charged) offences relating to the use of nuclear material and weapons-related acts overseas, to ensure where the offender is sentenced to a standard determinate sentence of 7 years or more they will be automatically released after two-thirds of their sentence. This is necessary as the offences, though serious, are not inherently terroristic offences and ought properly to be located in Part 1 of Schedule 15 to the CJA 2003 (specified violent offences).

Application of various provisions to service offences

1. The service justice system – the criminal justice system that applies to UK service personnel – uses a modified form of the sentencing law of England and Wales which is set out in the Armed Forces Act 2006. Where changes are made to the England and Wales civilian sentencing and release framework, it is the policy position that, where appropriate, service offences and the sentences they attract should reflect those changes to keep the criminal justice system and the service justice system aligned. Section 148 therefore contains minor amendments to existing service law to ensure that this is the case.

Community Sentences

Strengthening supervision powers for probation practitioners

1. There is currently a lack of clarity in legislation around a Responsible Officer’s ability to instruct an offender, who is subject to a community order or a suspended sentence order, to attend supervision appointments. This is problematic in scenarios where additional appointments are required to address non-compliance with a requirement of the court, or where possible public protection concerns have arisen, including post-completion of a requirement of the court.
2. In order to rectify this, section 149 clarifies the scope of supervision powers available to Responsible Officers. This will be achieved by creating a power which will provide Responsible Officers with the ability to require offenders to attend appointments at any stage of a community order or during the supervision period of a suspended sentence order.
3. The measure will also place a duty on offenders to comply with requests for additional appointments given by their Responsible Officer, failure to do so will result in enforcement action.
4. In order to achieve this in legislation, the Act amends the Code by strengthening the existing "keep in touch" duty.

Increases in maximum daily curfew hours and curfew requirement period

1. A curfew is a requirement of a community order or suspended sentence order. It requires that the offender must remain for the periods specified at a place also specified. Chapter 2 of Part 9 and Chapter 5 of Part 10 of the Code are concerned with community orders, suspended sentence orders and the imposition of a curfew requirement. The measures in sections 150 and 151 will make curfews more flexible and allow them to be imposed more creatively by courts.
2. Currently, a community order or suspended sentence order may specify a maximum of 16 hours curfew per day, providing in practice a weekly maximum of 112 hours of curfew. Section 150 will increase the daily maximum to 20 curfew hours per day, whilst maintaining the seven-day period maximum of 112 hours. Paragraph 9 of Schedule 9 to the Code (on curfew requirements) is amended to reflect a new daily maximum of 20 hours and to operate within the seven-day period maximum limit. The purpose of this change is to allow for a curfew to have a greater impact on specified days. This will also allow for the total hours falling in a seven-day period to be used more creatively and flexibly by decision makers, enabling them to target what could be considered ‘leisure days’ for more punitive hours than is currently available to them.
3. At present, a curfew can be imposed for a maximum of 12 months. This section also increases the maximum length of time a curfew can be imposed for to two years, by amending paragraph 9 of Schedule 9 to the Code. This change will increase the punitive weight of a curfew requirement, but also has the potential to support rehabilitation by providing a longer period during which some of the positive effects of curfew could be established, such as deterring criminal associates. It is envisaged that courts will be able to use longer curfews in particularly serious cases, where a sentence served in the community may be more effective in preventing future re-offending, alongside appropriate consideration of a custodial sentence.
4. Where an offender is brought before the court on or after the commencement of these provisions in the Act for breach of an order which was made before such commencement, the court may impose a curfew according to the new measures.
5. Finally, any changes to the curfew, however small, must currently be approved by the court. Section 151 gives power to the responsible officer (as defined in section 213 and 299 of the Code i.e. probation officers) to vary electronic monitoring requirements within a prescribed range of circumstances limited to such an extent that they do not undermine the weight or purpose of the requirement as imposed by the court. The scope of the power to amend the requirement is limited to two aspects:
   • a shift in start and/or end times of the curfew periods within a 24-hour period only (this will not make a change to the number of hours imposed); and
   • a change to the residence of the offender as set out in the order (a change to the residence for the purposes of curfew may not be made if this undermines an existing order for a residence requirement).

1. The courts will be notified of the changes to the original order using a variation notice, which will also provide evidence of the consent of the offender. This legislative change seeks to reduce the burden on the courts, freeing up time for other matters and saving probation resource by reducing the volumes of papers prepared for court and court visits. There will also be advantages for offenders, allowing for variations where typically there are alterations to work hours or location that make compliance impossible, or where an offender’s curfew residence address needs to be changed in a timely way.

Removal of attendance centre requirements for adults

1. This measure will abolish Senior Attendance Centres ("SACs") by removing SAC requirements from the menu of sentencing options available to sentencers.
2. SACs are rarely used and the Government believes their removal will promote simpler and more consistent sentencing, with the needs of young adult offenders better met by other available community sentence requirements.
3. Section 152 amends the Code so that SACs requirements are no longer available to sentencers, unless the offender was convicted of the offence before the date on which the amendment came into force.   

Problem-Solving Courts

1. In 2016 a Problem-Solving Court Working Group, established by the then Lord Chancellor, Rt Hon Michael Gove MP, and the Lord Chief Justice, concluded that a new problem-solving court model that more closely resembles international best practice by incorporating a core set of elements should be tested here.
2. Historically elements of a problem-solving approach have been trialed separately across England and Wales. For example: Liverpool Community Justice Centre, Family Drug and Alcohol Courts, and Greater Manchester’s female-focused approach.
3. The Government has committed to piloting Problem-Solving Courts in up to five locations in a way that incorporates previously tried problem-solving approaches. Many of the elements needed to run a problem-solving court approach based on best practice already exist; for instance, the ability for the sentencer to order a detailed pre-sentence report and in some cases to review an individual’s progress during the sentence.
4. Some legislative changes are necessary to ensure that the recommendations made by the 2016 Working Group can effectively be put into practice and to ensure that a thorough evaluation can take place:
   • giving the court a power to regularly review community and suspended sentence orders and to initiate breach proceedings at a review hearing;
   • expand the power to test for illicit substances outside the provisions of drug rehabilitation requirements; and
   • enable the court to impose short custodial penalties for non-compliance.

1. The Act will enable the new measures to be implemented in certain courts, for offenders who meet the particular eligibility criteria. The policy intention is to conduct a limited initial pilot, but the legislative changes will allow for the potential to enable the pilot to be rolled out to further courts in the future, and also allow for the pilot measures to be made permanent after the end of the pilot period.
2. The existing provisions will continue to operate in other courts and for offenders who are non-eligible for these measures.

Unpaid Work consultation duty

1. Currently probation officials have no formal requirement to consult local stakeholders on the design or delivery of Unpaid Work carried out by offenders as part of a community sentence. Section 155 creates a new statutory duty requiring probation officials to consult key local and regional stakeholders on the design and delivery of Unpaid Work.
2. The Scottish Government introduced a similar provision into section 227ZL of the Criminal Procedure (Scotland) Act 1995, requiring local authorities to consult prescribed persons in the community about the type of Unpaid Work that should be carried out by offenders.
3. The creation of a similar duty in England and Wales will improve links between probation officials and their communities. It is hoped that this will ensure strong community participation in Unpaid Work both from key agencies and members of the public. Improving the quality of placements by better understanding community needs, has an important role to play in the rehabilitative process and will support offenders to make more effective reparation to local communities for the damage caused by crime.

Assaults on those providing a public service etc

1. The retail sector and other sectors with staff providing a service to the public have seen an increase in the frequency and severity of violence and abuse experienced by staff and there have been calls for the Government to act. The Crime Survey for England and Wales estimated that in the year to March 2020 there were 688,000 incidents of violence experienced at work by adults in employment. Research by the Institute of Customer Service estimates that customer-facing staff account for 61% of the nation’s workforce.
2. In July 2020 the Government published its response to a Call for Evidence on Violence and Abuse toward Shop Staff . The Call for Evidence sought to understand the extent of violence against shop staff, as well as the application of the current legislative framework, and response by the police and wider criminal justice system to enable Government to understand whether there are any gaps in current legislation and consider the case for reform. Responses highlighted that often incidents of violence and abuse are not reported to police. Reasons given included a lack of police response to a previous incident; employers discouraging their workforce from reporting incidents; employers or employees considering incidents were not serious enough to be reported to police; and a general sense that abuse was ‘part of the job’. Those in favour of changing the law to increase the penalty for assaulting a shop worker suggested it was required to deter potential offenders and ensure an effective criminal justice response to these crimes when they occur. At that time, whilst the Government recognised the motivations behind this suggestion, it did not consider that a case had yet been made for a change in the law. The Government Response to the Call for Evidence set out a programme of work to address the issues raised.
3. In Summer 2021, the Home Affairs Select Committee (HASC) conducted an inquiry into violence and abuse towards retail workers. The HASC concluded there is a strong case for extra protection in law for retail workers, and recommended the Government should consult urgently on the scope of a new standalone offence. In response to an amendment tabled to the Police, Crime, Sentencing and Courts Act, the Government committed to consider an amendment to legislation.
4. Section 156 seeks to reduce violence and abuse against all workers who provide a service to the public, perform a public duty or provide a public service. The provision places in statute the aggravating factor set out in the Sentencing Council’s sentencing guidelines that is applied by the courts in cases of assault where an offence is committed against such workers.

Youth Justice

Remand

1. The Legal Aid, Sentencing and Punishment of Offenders ("LASPO") Act 2012 introduced new youth remand provisions. The changes aimed to reduce numbers of children unnecessarily remanded to custody by making it more difficult to remand a child and giving local authorities a financial incentive to reduce remands.
2. A 2019 report from the Independent Inquiry into Child Sexual Abuse ("IICSA") noted a significant increase in the use of custodial remand for children and data shows that in 2018/19, only a third of children remanded to custody or local authority accommodation ("LAA") went on to receive a custodial sentence. Following IICSA’s recommendation to investigate why the child remand population is as high as it is, the Government publicly committed to a review of custodial remand for children and develop options to reduce its use where appropriate.
3. Section 157 amends the LASPO framework to tighten the tests the courts must satisfy to decide when to remand a child to custody. The aim of the policy is to encourage courts to impose custodial remand only where absolutely necessary, while ensuring the public remains safe.
4. Section 157 introduces a statutory duty for courts to consider the welfare and best interests of the child when making remand decisions. It amends the tests courts must apply to determine whether to remand a child into custody and makes it a statutory requirement for the courts to record the reasons for their decision, which will also reinforce the existing presumption of non-custodial remand by ensuring the courts consider remand to LAA as a first step. These provisions amend the ‘real prospect’ test and the ‘necessity condition,’ so that remand in Youth Detention Accommodation (Young Offender Institution, Secure Training Centre or Secure Children’s Home) can be imposed only for the most serious cases, where a custodial sentence appears the only option and the risk posed by the child cannot be safely managed in the community.

Detention and Training Orders

1. A Detention and Training Order ("DTO") is a youth custodial sentence that can be given for 4, 6, 8, 10, 12, 18 or 24 months. This is fixed in section 236(1) of the Code and is the only youth sentence with fixed lengths. Section 158 amends the Code to remove the fixed lengths so that a DTO of any length, from 4 to 24 months can be given.
2. Time spent on remand or bail (where it is subject to a qualifying curfew condition and an electronic monitoring condition) is currently taken into account by the court in their sentence calculation when deciding which of the fixed lengths to impose. Schedule 16 amends the Code so that so that time spent on remand or on qualifying bail is to count as time served under sections 240ZA and 240A of the CJA 2003.
3. When a DTO and another sentence of detention are served consecutively, the order in which the sentences are given, impacts on the amount of early release available. Section 159 removes this inconsistency.

Youth Rehabilitation Orders

1. The Criminal Justice and Immigration Act 2008 (the "2008 Act") introduced the Youth Rehabilitation Order ("YRO"), a new generic community sentence for youths now set out in sections 173 to 199 of the Code. It provides courts with a choice of 18 requirements from which a sentence can be designed. The YRO also provides for two high-intensity requirements (Intensive Supervision and Surveillance ("ISS") or Intensive Fostering) that are set as alternatives to custody for the most serious offenders.
2. Section 161 will make the following changes to the YRO:
   1. a standalone electronic whereabouts monitoring requirement will be added to the list of available requirements;
   2. the curfew requirement will be amended to raise the maximum number of daily hours from 16 to 20 while retaining a weekly maximum of 112 hours;
   3. youth offending teams or probation staff will be made the Responsible Officers for YROs with electronic compliance monitoring requirements;
   4. the maximum length of the extended activity requirement of a YRO with Intensive Supervision and Surveillance will be extended from 180 days to 365 days;
   5. a mandatory location monitoring requirement will be added to YROs with Intensive Supervision and Surveillance; and
   6. the age limit of the education requirement will be raised so that it is the same as the age of compulsory education and training, rather than compulsory school age.

1. These measures make provision for the Government to pilot items (a), (d) and (e) above and to restrict their use if necessary, in light of evidence of use in practice.

Abolition of Reparation Orders

1. The Reparation Order was introduced in the Powers of Criminal Courts (Sentencing) Act 2000 ("PCC(S)A"), and now set out in sections 109 to 116 of the Code. It requires an offender to make reparation to the victim(s) of the offence or to the community at large. Since the PCC(S)A came into force, other sentences which allow for reparation, such as the YRO, have been introduced and usage of the Reparation Order has declined significantly. As a consequence of this decline, section 162 abolishes the Reparation Order.

Secure Children’s Homes and Secure 16 to 18 Academies

Temporary release from secure children’s homes

1. Temporary release is an essential part of the successful rehabilitation of children who are sentenced to custody. Some objectives of a child’s sentence plan will require them to attend meetings or participate in activities outside the secure establishment.
2. The Youth Custody Service and Secure Children’s Homes ("SCHs") providers currently rely on inherent powers to make arrangements for the mobility of children detained in such accommodation to help address their offending behaviour and to support the integration of children back into the community at the end of their sentence. Section 163 places existing provisions on a statutory basis. The Secretary of State and SCH registered managers will be able to temporarily release children detained following a court sentence or breach of a civil order. As secure 16 to 19 academies will be legally constituted as SCHs, this will also have the effect of conferring autonomy on that provider to take decisions about temporary release.

Secure 16 to 19 academies

1. Secure 16 to 19 academies are a new type of custodial provision for children and young people remanded or sentenced to detention in relation to a criminal offence. They will be run by child-focused providers and create a therapeutic environment within a secure setting, in line with international evidence that this is the most successful approach in reducing reoffending.
2. They will be dually established as 16 to 19 academies and SCHs. This means that they must be principally concerned with the provision of education to young people between the ages of 16 and 19. The Government intends that the majority of young people to be accommodated in secure 16 to 19 academies will fall within this age range.
3. Key to the vision for secure 16 to 19 academies is the autonomy of providers. The market for providers consists primarily of charities at the present time. This legislative change aims to provide confidence to future secure school providers regarding their ability to autonomously operate secure schools in line with both their charitable objects and the  Government ’s vision.  

Serious Violence Reduction Orders

1. Recorded knife crime has risen over a period of years. Police recorded offences in England and Wales involving knives and sharp instruments totaled 46,265 in the year ending March 2020, up from 43,706 offences in the year ending March 2019.
2. There are a number of existing powers to enable the police to tackle knife crime.
3. Section 1 of the Police and Criminal Evidence Act 1984 allows an officer to search someone if they have reasonable grounds to suspect that they are carrying a knife to commit an offence or carrying an offensive weapon. Section 60 of the 1994 Act allows a constable, on the authorisation of an officer of the rank of inspector or above, where serious violence is anticipated, to search anybody, without suspicion, to see if they are carrying an offensive weapon or dangerous implement. The section 60 powers are strictly limited and can be used only in a specific area and for a short time period.
4. The Offensive Weapons Act 2019 introduced Knife Crime Prevention Orders, which apply to adults and children aged 12 or over, and will allow a court to impose specific requirements or restrictions for example prohibiting a person from being in a certain place, associating with particular people or undertaking certain activities.
5. A number of offenders who carry knives and weapons go on to offend repeatedly. The proportion of offenders for whom a knife related conviction was their first knife or offensive weapon offence has been decreasing and was at 71% for the year ending September 2019, its lowest level since 2009.
6. The Government, in their 2019 manifesto, pledged to make it "easier for officers to stop and search those convicted of knife crime." A public consultation ran from 14 September to 8 November 2020 seeking views on a new order, the Serious Violence Reduction Order ("SVRO"), which would work in conjunction with current stop and search provisions and target individuals who have been convicted of a relevant knife-related offence. The consultation received 549 responses. Of those responding, 77.8% agreed that a new order should be created.
7. The Government published its response to this consultation on 9 March 2021. The response set out proposals for a new order that the courts can make in respect of a person convicted of a knife or offensive weapon related offence. The Government’s response also set out that these orders would initially be subject to a pilot in a small number of police forces to build an understanding of the effectiveness of the new orders. Chapter 1 of Part 10 provides for SVROs.

Knife Crime Prevention Orders

1. The Offensive Weapons Act 2019 introduced Knife Crime Prevention Orders, which apply to adults and children aged 12 or over, and allow a court to impose specific requirements or restrictions for example prohibiting a person from being in a certain place, associating with particular people or undertaking certain activities.
2. The provision in Chapter 2 of Part 10 makes it explicit that, if an application for a knife crime prevention order is made following a defendant's conviction for an offence, the court may adjourn proceedings on the application after sentencing the defendant.

Management of sex offenders

1. Under Part 2 of the 2003 Act, offenders who receive a conviction, caution, or finding for specified sexual offences are automatically required to provide the police with a record of (amongst other things) their: name, address, date of birth, national insurance number, any foreign travel, where they are living in a household with a child under the age of 18, their bank account and credit card details, and information about their passports or other identity documents. This must be done annually and whenever their details change.
2. In addition, Part 2 of the 2003 Act provides for various civil preventative orders, including the Sexual Harm Prevention Order ("SHPO") and the Sexual Risk Order ("SRO"), to protect the public from sexual harm. A SHPO may be imposed on someone who has a finding, conviction or caution for a specified sexual or violent offence. A SHPO may be made either by a court on conviction, or by a magistrates’ court on application by the police or National Crime Agency. An SRO may be imposed on a person without a conviction but who poses a risk of sexual harm.
3. These orders can include any prohibition the court considers necessary for the purpose of protecting the public from sexual harm, including the prevention of foreign travel to any country or countries specified in the order. Any prohibition must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm outside the UK.
4. In January 2021, the Government published its "Tackling Child Sexual Abuse Strategy " which committed to measures to strengthen these orders. The provisions in Chapter 3 of Part 10 seek to improve the efficiency and effectiveness of these orders and the notification requirements for registered sex offenders by:
   • Enabling positive obligations to be imposed through SHPOs and SROs.
   • Making it clear that a court may include an electronic monitoring requirement through SHPOs and SROs.
   • Providing for the civil standard of proof (‘balance of probabilities’) to apply when the court is deciding an application for an SHPO or SRO (in determining whether the individual has done the act in question).
   • Removing a requirement for the Secretary of State to prescribe a list of police stations where registered sex offenders must notify and enabling the police to determine and maintain the list directly.
   • Enabling the police to make sex offenders who are convicted of or cautioned for specified sexual offences abroad subject to notification requirements without the need for a court order.
   • Providing for the reciprocal enforcement of SHPOs and SROs throughout the United Kingdom.
   • Enabling the British Transport Police and Ministry of Defence Police to apply for an SHPO or SRO.

1. The Independent Inquiry into Child Sexual Abuse (IICSA), chaired by Professor Alexis Jay OBE, was set up in 2014 because of serious concerns that some organisations had failed and were continuing to fail to protect children from sexual abuse. IICSA recommended in its Children Outside the UK report, published in January 2020, that more could be done to protect children outside the UK from sexual abuse. In particular, IICSA recommended greater use of foreign travel restrictions through SHPOs and SROs via the establishment and maintenance of a list of countries where children are considered to be at high risk of sexual abuse and exploitation from overseas offenders to be used by police and the courts when considering foreign travel restrictions for offenders through these orders. Sections 172 and 173 gives effect to this IICSA recommendation.

Management of terrorist offenders

1. Sections 325 to 327B of the CJA 2003 provide for the establishment of Multi-Agency Public Protection Arrangements ("MAPPA") across England and Wales. These arrangements require the Police, Probation and Prison Services to work together with other agencies to assess and manage the risks posed by violent and sexual offenders living in the community in order to protect the public. Offenders who meet the criteria set out in sections 325 to 327 of the CJA 2003 will be subject to management under the MAPPA process. 
2. The measures that may be put in place under MAPPA to manage the risk posed by terrorist offenders can include the use of licence conditions: placing restrictions on association, residence, movement and activities; applying electronic monitoring requirements to the offender; surveillance; or the use of civil preventative orders, such as serious crime prevention orders.
3. Following the terrorist attack in Fishmongers’ Hall, London, in November 2019, (which was committed by a terrorist offender released on licence) the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, was asked to undertake an independent review of MAPPA regarding the management of terrorist offenders and other offenders of terrorism concern. Under current MAPPA arrangements, offenders convicted of a terrorism offence listed in Part 3 of Schedule 15 to the CJA 2003 must be managed under MAPPA, whilst other terrorism or terrorist connected offenders are managed under the discretionary power in section 325(2)(b) which allows for management of other offenders who are assessed to pose a risk to the public. The outcome of the independent review was published on 2 September 2020 and concluded that MAPPA was a well-established process which did not require wholesale change. Instead, the review recommended a number of legislative changes to the current system including additional powers to better manage offenders who present a risk of committing an act of terrorism, including:
   • Statutory provision to enable judges to grant search warrants to check an offender’s compliance with their licence conditions, where this is necessary for the purpose of assessing their terrorist risk;
   • Statutory provision to allow the police to conduct a personal search, to look for weapons or harmful objects in cases where a new licence condition requires an offender to submit to a personal search;
   • Statutory provision enabling the arrest, in urgent cases, of released offenders pending a decision to recall to prison where there is concern they might abscond;
   • Amendment of section 325(2)(a) of the CJA 2003 so that all persons subject to the notification requirements of the Counter-Terrorism Act 2008 are automatically eligible for MAPPA;
   • Statutory provision in the CJA 2003 so that other dangerous offenders who are deemed to be at risk of involvement in terrorism-related activity are eligible for MAPPA whether or not their risk arises from offences committed by them;
   • Statutory provision in the CJA 2003, equivalent to section 115 of the Crime and Disorder Act 1998, providing a lawful basis for disclosure by any person or body for the purpose of MAPPA; and
   • Statutory provision in the CJA 2003 clarifying the statutory function of MAPPA for all MAPPA agencies for the purposes of the Data Protection Act 2018, to provide agencies with certainty about which regime applies when sharing information under MAPPA.

1. On 17 December 2020, the Government set out its response to the independent review of terrorist supervision in a Written Ministerial Statement and a letter to Jonathan Hall QC. In the statement, the Government committed to bringing forward legislation to introduce further powers for the police and probation service in line with Jonathan Hall QC’s recommendations. Chapter 4 of Part 10 of the Act gives effect to the above recommendations. Other recommendations made by Jonathan Hall QC which require legislation have been implemented through the Counter-Terrorism and Sentencing Act 2021.

Football Banning Orders

1. Football banning orders were introduced in their current form in 2000 as a response to violent and public order offences at football matches. Available court sanctions against low level offences had limited impact preventing repeat offending in a football context. Football banning orders prevent attendance at prescribed matches, can be tailored to address offending behaviour such as setting an exclusion zone or preventing use of the rail network on match days, and the enforcing authority can require a banned individual to surrender their passport to police during a designated time period thus preventing their attendance at overseas matches and tournaments. Following the disgraceful online racist abuse directed at England players after the Euro 2020 Final the Prime Minister committed to legislating to change the football banning order regime so that it would be possible for a court to impose a football banning order against a person convicted of an online hate crime offence against a footballer 2 .
2. Prior to the changes made by this Act, following conviction for a relevant football-related offence a court was required to consider whether the individual met a two-stage test of (i) past involvement in football-related disorder (evidenced by conviction for a relevant offence); and (ii) posing an identifiable ongoing risk of such involvement.
3. Football banning orders were designed to respond to and prevent violence and disorder related to football matches before widespread online communication and the advent of engagement with football through online platforms. Section 190 adds relevant communications offences with a hate element, such as racist or homophobic hate speech, against football players, managers and match officials as well as certain offences relating to race or religion to the schedule of relevant offences for banning order purposes on conviction. The objective of this is to prevent such offenders from exporting their online and remote hate crime to real world football matches and deter such behaviour.
4. Due to the potential for the committing of online and remote hate offences at any time, Chapter 5 of Part 10 removes the geographic and temporal proximity for such offences within the Schedule of relevant offences, by not requiring the offence to have occurred at, on a journey to, or within 24 hours of, a regulated football match. Instead, section 190 establishes a power to prescribe by secondary legislation "relevant football organisations" and persons with "prescribed connections" to a football organisation, to enable hate offences which are football related to be properly covered by football banning orders. For example, a racist tweet against a player, sent two weeks after a match, could be captured. Section 191 includes a power to add, remove or modify the Schedule of relevant offences exercisable by secondary legislation.

Rehabilitation of Offenders

1. A key element in reducing reoffending is access to employment. In order to support these aims, Part 11 amends the Rehabilitation of Offenders Act 1974 to provide for some custodial sentences of over four years to become spent after a certain period of time, meaning when asked, the conviction would not have to be disclosed. The existing rehabilitation periods for certain other disposals given or imposed on conviction are also reduced. This will reduce the number of ex-offenders required to disclose their convictions as part of basic checks for employment and mean that those who have served their time and stopped committing crime are not unfairly discriminated against in the job market.
2. To ensure the protection of the public, this change will not apply to persons sentenced to any sentence of more than four years following a conviction for any serious violent, sexual or terrorism offence. The policy therefore means that such convictions will continue to never become spent (and will always need to be disclosed). A table setting out the changes to rehabilitation periods is set out at Annex C.
3. Part 11 also clarifies the applicable rehabilitation periods for certain other orders on conviction.

Disregards and Pardons

1. The Disregards Scheme (‘the Scheme’) was established in 2012 to address the historical wrongs that were suffered by individuals who were convicted of, or cautioned for, certain now-repealed offences which in the past criminalised homosexual activity. The Scheme enables those people to apply to the Home Secretary to have their convictions or cautions disregarded, provided that certain conditions are met. If a disregard is granted, the applicant is treated in all circumstances as if the offence had never occurred and it is not disclosed for any purpose (such as in court proceedings or on criminal record certificates).
2. As of November 2021 , 198 convictions had been disregarded in this way.
3. In 2017, automatic pardons were introduced for those who obtained a disregard and posthumous pardons were introduced for those who had died before the provisions came into force.
4. The Government recognised that the Scheme, as introduced in 2012, was too narrowly focused, since only convictions or cautions for a list of named offences could be disregarded. The Government recognised that other now repealed and abolished offences were also used to convict or caution people for engaging in, or attempting to engage in, same-sex sexual activity.
5. Part 12 extends the Scheme to enable individuals who have been convicted or cautioned of same-sex sexual activity under any now repealed or abolished offences, including service offences, to apply to the Secretary of State to have those convictions or cautions disregarded, provided that certain conditions are met.
6. The conditions are intended to ensure that convictions are not disregarded for activity that is still unlawful today. For this reason the extended Scheme does not enable the disregarding of any behaviour that would still amount to an offence today, such as where any other party involved in the activity is under 16.
7. Under section 195, the provisions in relation to pardons are extended in parallel. Anyone who is granted a disregard under the extended Scheme will also be automatically pardoned.
8. Anyone who dies before the provisions become law, or before 12 months has elapsed after they become law, is posthumously pardoned, provided that they meet the same conditions as are required for someone to be granted a disregard.
9. In addition, where an offence is repealed or abolished after the provisions come into force, that repealed or abolished offence will fall within the scope of the Scheme. Anyone convicted or cautioned for the offence, who died prior to the repeal or abolishment, or before 12 months has elapsed after the repeal or abolishment, is posthumously pardoned if they meet the conditions.

Procedures in Courts and Tribunals

British Sign Language interpreters for deaf jurors

1. Section 196 amends the common law to permit the presence of a British Sign Language ("BSL") interpreter in the jury deliberation room to assist a profoundly deaf juror in proceedings before a court. The trial judge will have a duty to consider such a reasonable adjustment and, if satisfied the BSL interpreter’s services will enable the person to act effectively as a juror, will affirm the summons. Offences relating to research and sharing research during a trial period will apply to BSL interpreters as they apply to jurors, with a new offence created for circumstances where a BSL interpreter intentionally interferes in or influences the deliberations of the jury.

Transmission and recording of court and tribunal proceedings

1. In criminal proceedings, the courts have a duty to deal with cases effectively and expeditiously and that includes making use of technology such as live video and audio links ("live links") where it is in the interests of justice to do so. Live links have been increasingly used across the courts, enabling greater participation in proceedings from remote locations, particularly during the current pandemic.
2. These provisions replace the current temporary provisions in the Coronavirus Act 2020, simplifying the regime and making it clear that a jury as a panel can participate in a trial (but only by live video link). Live links will make proceedings in criminal cases more efficient for all parties by reducing delay and unnecessary travel and the need for physical appearances at court, save where the interests of justice require it.
3. Further measures focus on permitting and facilitating the remote observation of proceedings across all courts and tribunals using video and audio links in order to uphold the principle of open justice. These measures will enable any court, tribunal or other body exercising the judicial power of the State (with the exception of the Supreme Court and devolved courts or tribunals) to provide transmissions of proceedings, by audio or video live link, either to designated premises or to individuals who have requested access and have identified themselves to the court or tribunal. Once enabled in secondary legislation these powers may allow open justice to be upheld in this way in various types of hearings: e.g. wholly remote hearings; hybrid hearings (i.e. those taking place in a court room with some participants joining via audio or video links), and traditional (wholly in-person) hearings. This secondary legislation will be made by the Lord Chancellor in concurrence with the Lord Chief Justice or the Senior President of Tribunals, or both, as appropriate.
4. This legislation will also provide safeguards which prohibit observers or participants from making unauthorised recordings or transmissions of proceedings which involve live links or transmissions. Courts and tribunals will be enabled to make audio or audio-visual recordings of all types of proceedings for their own use. This legislation makes permanent and expands the temporary provisions in the Coronavirus Act 2020 so that the power to direct transmissions, and the associated protections, are applicable for all courts and tribunals (except the Supreme Court and devolved tribunals).