Tuesday 8 May 2012

LASPO - Part 3 Chapters 2 to 8

Part 3 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. deals with Sentencing and Punishment of Offenders. Part 3 divides into 9 Chapters which cover a very considerable range of criminal justice issues: 1. Sentencing; 2. Bail; 3. Remands of children otherwise than on bail; 4. Release on licence; 5. Dangerous Offenders; 6. Prisoners; 7. Out of Court disposals; 8. Rehabilitation of Offenders; 9. Offences (including more legislation on the use of reasonable force in self-defence).  The 9 Chapters cover sections 63 to 141 and bring into play Schedules 9 to 27.  The previous posts on this blog have considered LASPO Part 1, Part 2 and Chapter 1 of Part 3.  This post is an overview of Chapters 2 to 8.

Chapter 2 - Bail - comprises section 90 which will bring into force Schedule 11.  This brings about various amendments to legislation dealing with bail.  The result is that the Bail Act 1976 becomes even more convoluted than it already is.  Surely, it is time for a new Act addressing bail.  A fresh start so-to-speak !

It was the Bail (Amendment) Act 1993 which introduced prosecution appeals (to the Crown Court) against grants of bail (by Magistrates' Courts) to defendants.  The 1993 Act will be amended so that where a judge of the Crown Court grants bail to a person who is charged with, or convicted of, an offence punishable by imprisonment, the prosecution may appeal to the High Court against the granting of bail.  However,  an appeal may not be made where a judge of the Crown Court has granted bail on an appeal.

As originally enacted, the Criminal Justice and Public Order Act 1994 section 25 prevented courts granting bail at all for defendants charged with or convicted of homicide or rape after previous conviction for such offences.  However, the original enactment was not compliant with the European Convention on Human Rights and the section was amended so as to permit courts to grant bail where the court "is satisfied" that there are exceptional circumstances.  A further amendment - in LASPO Schedule 11 - will replace the words “is satisfied” with “is of the opinion."  The new wording is preferable but will perhaps make little practical difference.

A further change - aimed at reducing the number of remands in custody - is the introduction of the “no real prospect test”, which restricts the courts’ power to remand an adult defendant who has not yet been convicted into custody where it appears that there is no real prospect that the defendant would receive a custodial sentence if convicted. The test also applies to offenders who have been released on bail and who then fail to surrender. (There is a similar restriction to remand those under 18 to youth detention accommodation.)

There is also the insertion of a new exception to the right to bail where an offender who has been released on bail may commit an offence involving domestic violence. This provision is not subject to the “no real prospect” test and may be applied in cases of non-imprisonable offences.

Chapter 3 -  Remands of Children otherwise than on bail - Comprises sections 91 to 107.  Clearly, this Chapter will be of major interest to those involved with Youth Justice.   The word "child" - for the purposes of Chapter 3 - means under age 18.  Section 107 is an interpretation section for Chapter 3.

Section 91 applies where- (a) a court deals with a child charged with or convicted of one or more offences by remanding the child, and (b) the child is not released on bail.  Section 91 also applies where - (a) a court remands a child in connection with extradition proceedings, and (b) the child is not released on bail.

In such cases, the court must usually remand the child to local authority accommodation in accordance with section 92.  

However, in certain cases, the court may instead remand the child to youth detention accommodation in accordance with section 102.  Where such a remand is made in criminal proceedings, the first or second set of conditions for such a remand (see sections 98 and 99) must be met in relation to the child.  Where the child is remanded in extradition proceedings, the  the first or second set of conditions in sections 100 and 101 must be met in relation to the child.

Chapter 4 - Release on Licence - Comprises sections 108 to 121 present a considerable number of very detailed amendments to the law relating to release of prisoners.
Section 108 Crediting of periods of remand in custody -  removes s240 from the Criminal Justice Act 2003 and inserts a new section 240ZA.  The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence.  But this is subject to subsections (4) to (6).  If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served.  A day counts as time served - (a) in relation to only one sentence, and (b) only once in relation to that sentence.  A day is not to count as time served as part of any period of 28 days served by the offender before automatic release.

Section 109  - Crediting of periods of remand on bail - Section 240A of the Criminal Justice Act 2003 is amended.  Essentially, the amendment clarifies how the "credit period" is to be calculated - by way of a 5 step calculation.

Section 110 -  deals with some consequential amendments to legislation which arise as a result of sections 108 and 109.

Section 111 - Prisoners serving less than 12 months - A new section 243A will be inserted into the Criminal Justice Act 2003 to deal with the duty of the Secretary of State to release unconditionally such a prisoner once the "requisite custodial period" has been served.  In relation to a person serving a sentence of imprisonment for a term of less than twelve months, the requisite period is one-half of the sentence.

Section 112 -  Amends section 246(4) of the Criminal Justice Act 2003 (power to release prisoners on licence before required to do so), and also inserts a new subsection 4ZA into section 264.

Section 113 - Cancellation of revocation of licence - New subsections are inserted into section 254 (Recall of prisoners on licence) of the Criminal Justice Act 2003. The Secretary of State, after considering any representations ... or any other matters, may cancel a revocation under this section.   The Secretary of State must be satisfied that the person recalled has complied with all the conditions specified in the licence.

Section 114 - Further release after recall - When a person is recalled to prison under CJA 2003 s254, further release is currently governed by the CJA 2003 sections 255A to 255D.  These provisions will be replaced by new sections 255A to 255C.

Section 115 - Adds a new sections 256B and 256C to the CJA 2003 deal with Supervision of young offenders after release

Section 116 -  Miscellaneous amendments relating to release and recall.  Section 117 is a list of amendments to Part 12 Chapter 6 of the CJA 2003.  Section 118 repeals a number of unimplemented provisions.

Section 119 - inserts into the Crime (Sentences) Act 1997 two new sections - 32A and 32B - dealing with prisoners liable to removal from the UK and re-entry to UK of offenders removed from prison.

Section 120 - gives effect to Schedule 15 of LASPO.  Section 121 seeks to simplify various transitional provisions in the CJA 2003 and gives effect to LASPO Schedules 16 and 17

Chapter 5 - Dangerous Offenders - Comprises sections 122 to 128.  The Criminal Justice Act 2003 introduced the concept of a "dangerous offender". The provisions introduced indeterminate sentences of imprisonment for public protection and extended (determinate) sentences of imprisonment for dangerous sexual or violent offender. These provisions came into effect on 4 April 2005.  Amendments were made by sections 13 to 18 of the Criminal Justice and Immigration Act 2008 in relation to both adults and juveniles. These changes came into effect on 14 July 2008.  LASPO sections 122 to 128 will bring about further amendment of the law in this difficult area.

However, under section 123, imprisonment for public protection (IPP) for serious offences and detention for public protection for serious will be abolished.  Existing provisions for extended sentences for certain violent and sexual offences will be replaced by a new form of extended sentence - see section 124 for details. 

Section 128 offers an interesting Henry VIII power handed to the Secretary of State who will have power to make an Order altering the test for release on licence of certain "discretionary release prisoners" - mainly those on IPP or extended sentences.  Any order will be subjected to affirmative resolution procedure.

Law and Lawyers earlier posts on IPP are here and here.  See also the Brian Barder blog for the cogent viewpoint of a well-informed non-lawyer.
Chapter 6 - Prisoners - Section 129 deals with empowering the Secretary of State to make rules relating to the employment (and payment to) those held in secure training centres, young offenders institutions and prisons.  The new powers are to be inserted into the Prison Act 1952.  This is an important element in the present government's strategy to make detention / prison a more rehabilitative situation.

Section 130 and 131 are concerned with amendment to the Repatriation of Prisoners Act 1984.

Chapter 7 - Out of Court disposals - The modern criminal justice system is noted for its extensive use of various out of court disposals as an alternative to prosecution before the courts.  Chapter 7 makes a number of important amendments.

Section 132 - gives effect to Schedule 23 (Penalty Notices for Disorder).  The Schedule amends the Criminal Justice and Police Act 2001 to enable the Police to issue, for certain offences, a penalty notice with an education option.

Section 133 - Conditional Cautions - Involvement of Prosecutors - amends the CJA 2003 sections 22, 23 , 23A, 23B and 25.  This will allow "authorised persons" to issue conditional cautions.  In Parliamentary debate (13th October 2011) Helen Goodman MP said - "Removing the requirement that the police must first refer the offender’s case to the CPS could be dangerous, as it would effectively allow the police to sentence the offender, as well as being responsible for his or her arrest. The Opposition believe that the involvement of the CPS would be likely to result in a more robust approach to conditional cautions than if the police had sole responsibility.

In addition, the clause would allow the police to decide and vary the conditions that the offender consented to. Obviously, most police officers in this country are excellent, but we feel that without such a cross-check there is a risk that conditional cautions will be given inappropriately and that biases of various kinds could arise. For example, young offenders, people with mental health problems or learning difficulties, or foreign offenders might be persuaded to accept a conditional caution without realising the full implications."

Whether those fears prove to be justified remains to be seen.

Section 134 - deals with conditional cautions containing conditions aimed to removal from the UK of  certain foreign offenders.

Section 135 - Youth Cautions - Sections 65 (reprimands and warning) and 66 (effect of reprimands and warnings) of the Crime and Disorder Act 1998 will be omitted and LASPO makes new provisions for Youth Cautions.  Those cautioned by the Police will be referred to a Youth Offending Team.

Sections 136, 137 make further provision about Youth Cautions.  Section 138 - in similar manner to section 133 (above) - removes CPS oversight from youth cautioning.

Chapter 8 - Rehabilitation of Offenders -  Sections 139 to 141. 

Section 139 amends the Rehabilitation of Offenders Act 1974 and brings in new periods after which certain convictions become spent.  The detail is complex. The comments made by NACRO are of interest.  Speaking in the second reading of the LASPO Bill in the House of Lords, Lord McNally, Minister of State for Justice and Deputy Leader in the House of Lords, said:  “...The Government intend to introduce reforms to the Rehabilitation of Offenders Act 1974, the outdated operation of which inhibits rehabilitation. We intend to bring forward amendments to achieve the right balance between the need to protect the public while removing unnecessary barriers that prevent reformed offenders contributing to society ...." - (Column 823 Hansard 21 November)

Ministry of Justice - LASPO Background Material

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