Legalize / United Kingdom / Public General Act

Coroners and Justice Act 2009

Type Public General Act

Publication 2009-11-12

Last updated 2026-03-22

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(2) A sentencing guideline may be general in nature or limited to a particular offence, particular category of offence or particular category of offender.

(3) The Council must prepare—

(a) sentencing guidelines about the discharge of a court's duty under section 73 of the Sentencing Code (reduction in sentences for guilty pleas), and

(b) sentencing guidelines about the application of any rule of law as to the totality of sentences.

(4) The Council may prepare sentencing guidelines about any other matter.

(4A) But sentencing guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender.

(5) Where the Council has prepared guidelines under subsection (3) or (4), it must publish them as draft guidelines.

(6) The Council must consult the following persons about the draft guidelines—

(a) the Lord Chancellor;

(b) such persons as the Lord Chancellor may direct;

(c) the Justice Select Committee of the House of Commons (or, if there ceases to be a committee of that name, such committee of the House of Commons as the Lord Chancellor directs);

(d) such other persons as the Council considers appropriate.

(7) In the case of guidelines within subsection (3), the Council must, after making any amendments of the guidelines which it considers appropriate —

(a) seek the consent of the Lord Chief Justice and the Lord Chancellor to issue them as definitive guidelines, and

(b) if such consent is given, issue them as definitive guidelines.

(8) In any other case, the Council may, after making any amendments of the draft guidelines which it considers appropriate—

(a) seek the consent of the Lord Chief Justice and the Lord Chancellor to issue them as definitive guidelines, and

(b) if such consent is given , issue them as definitive guidelines.

(8A) The Lord Chief Justice and the Lord Chancellor must consider any request for consent under subsection (7) or (8) as soon as practicable after receiving the request.

(8B) The Lord Chief Justice or the Lord Chancellor may withhold consent under subsection (7) or (8) only if the Lord Chief Justice or (as the case may be) the Lord Chancellor considers that it is necessary to do so in order to maintain public confidence in the criminal justice system.

(8C) If the Lord Chief Justice or the Lord Chancellor decides to withhold consent under subsection (7) or (8), the Lord Chief Justice or (as the case may be) the Lord Chancellor must, as soon as practicable after making the decision, lay before Parliament a document stating the reason for the decision.

(9) The Council may, from time to time, review the sentencing guidelines issued under this section, and may revise them.

(10) Subsections (5), (6) and (8) to (8C) apply to a revision of the guidelines as they apply to their preparation (and subsection (8) applies even if the guidelines being revised are within subsection (3)).

(11) When exercising functions under this section, the Council must have regard to the following matters—

(a) the sentences imposed by courts in England and Wales for offences;

(b) the need to promote consistency in sentencing;

(d) the need to promote public confidence in the criminal justice system;

(e) the cost of different sentences and their relative effectiveness in preventing re-offending;

(f) the results of the monitoring carried out under section 128.

(12) For the purposes of this section—

“personal characteristics” include, in particular—race;religion or belief;cultural background;

“pre-sentence report” has the same meaning as in the Sentencing Code (see section 31 of the Code).

Sentencing ranges

121

(1) When exercising functions under section 120, the Council is to have regard to the desirability of sentencing guidelines which relate to a particular offence being structured in the way described in subsections (2) to (9).

(2) The guidelines should, if reasonably practicable given the nature of the offence, describe, by reference to one or more of the factors mentioned in subsection (3), different categories of case involving the commission of the offence which illustrate in general terms the varying degrees of seriousness with which the offence may be committed.

(3) Those factors are—

(a) the offender's culpability in committing the offence;

(b) the harm caused, or intended to be caused or which might foreseeably have been caused, by the offence;

(c) such other factors as the Council considers to be particularly relevant to the seriousness of the offence in question.

(4) The guidelines should—

(a) specify the range of sentences (“the offence range”) which, in the opinion of the Council, it may be appropriate for a court to impose on an offender convicted of that offence, and

(b) if the guidelines describe different categories of case in accordance with subsection (2), specify for each category the range of sentences (“the category range”) within the offence range which, in the opinion of the Council, it may be appropriate for a court to impose on an offender in a case which falls within the category.

(5) The guidelines should also—

(a) specify the sentencing starting point in the offence range, or

(b) if the guidelines describe different categories of case in accordance with subsection (2), specify the sentencing starting point in the offence range for each of those categories.

(6) The guidelines should—

(a) (to the extent not already taken into account by categories of case described in accordance with subsection (2)) list any aggravating or mitigating factors which, by virtue of any enactment or other rule of law, the court is required to take into account when considering the seriousness of the offence and any other aggravating or mitigating factors which the Council considers are relevant to such a consideration,

(b) list any other mitigating factors which the Council considers are relevant in mitigation of sentence for the offence, and

(c) include criteria, and provide guidance, for determining the weight to be given to previous convictions of the offender and such of the other factors within paragraph (a) or (b) as the Council considers to be of particular significance in relation to the offence or the offender.

(7) For the purposes of subsection (6)(b) the following are to be disregarded—

(a) the requirements of section 73 of the Sentencing Code (reduction in sentences for guilty pleas);

(b) sections 74, 387 and 388 of the Sentencing Code (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence;

(8) The provision made in accordance with subsection (6)(c) should be framed in such manner as the Council considers most appropriate for the purpose of assisting the court, when sentencing an offender for the offence, to determine the appropriate sentence within the offence range.

(9) The provision made in accordance with subsections (2) to (8) may be different for different circumstances or cases involving the offence.

(10) The sentencing starting point in the offence range—

(a) for a category of case described in the guidelines in accordance with subsection (2), is the sentence within that range which the Council considers to be the appropriate starting point for cases within that category—

(i) before taking account of the factors mentioned in subsection (6), and

(ii) assuming the offender has pleaded not guilty, and

(b) where the guidelines do not describe categories of case in accordance with subsection (2), is the sentence within that range which the Council considers to be the appropriate starting point for the offence—

(i) before taking account of the factors mentioned in subsection (6), and

(ii) assuming the offender has pleaded not guilty.

Allocation guidelines

122

(1) In this Chapter “allocation guidelines” means guidelines relating to

(a) decisions by a magistrates' court under section 19 of the Magistrates' Courts Act 1980 (c. 43) ... as to whether an offence is more suitable for summary trial or trial on indictment

(b) decisions by the Crown Court as to whether to exercise the power in section 46ZA(1) of the Senior Courts Act 1981 or section 25A(2) of the Sentencing Code.

(2) The Council may prepare allocation guidelines.

(3) Where the Council has prepared guidelines under subsection (2), it must publish them as draft guidelines.

(4) The Council must consult the following persons about the draft guidelines—

(a) the Lord Chancellor;

(b) such persons as the Lord Chancellor may direct;

(c) the Justice Select Committee of the House of Commons (or, if there ceases to be a committee of that name, such committee of the House of Commons as the Lord Chancellor directs);

(d) such other persons as the Council considers appropriate.

(5) The Council may, after making any amendment of the draft guidelines which it considers appropriate —

(a) seek the consent of the Lord Chief Justice and the Lord Chancellor to issue them as definitive guidelines, and

(b) if such consent is given, issue the guidelines as definitive guidelines.

(5A) The Lord Chief Justice and the Lord Chancellor must consider any request for consent under subsection (5) as soon as practicable after receiving the request.

(5B) The Lord Chief Justice or the Lord Chancellor may withhold consent under subsection (5) only if the Lord Chief Justice or (as the case may be) the Lord Chancellor considers that it is necessary to do so in order to maintain public confidence in the criminal justice system.

(5C) If the Lord Chief Justice or the Lord Chancellor decides to withhold consent under subsection (5), the Lord Chief Justice or (as the case may be) the Lord Chancellor must, as soon as practicable after making the decision, lay before Parliament a document stating the reason for the decision.

(6) The Council may, from time to time, review the allocation guidelines issued under this section, and may revise them.

(7) Subsections (3) to (5C) apply to a revision of the guidelines as they apply to their preparation.

(8) When exercising functions under this section, the Council must have regard to—

(a) the need to promote consistency in decisions of the kind mentioned in subsection (1), and

(b) the results of the monitoring carried out under section 128.

Preparation or revision of guidelines in urgent cases

123

(1) This section applies where the Council—

(a) decides to prepare or revise sentencing guidelines or allocation guidelines, and

(b) is of the opinion that the urgency of the case makes it impractical to comply with the procedural requirements of section 120 or (as the case may be) section 122.

(2) The Council may prepare or revise the guidelines without complying with—

(a) in the case of sentencing guidelines, section 120(5), and

(b) in the case of allocation guidelines, section 122(3).

(3) The Council may—

(a) in the case of sentencing guidelines, amend and issue the guidelines under section 120(7) or (8) without having complied with the requirements of section 120(6)(b) to (d), and

(b) in the case of allocation guidelines, amend and issue the guidelines under section 122(5) without having complied with the requirements of section 122(4)(b) to (d).

(4) The guidelines or revised guidelines must—

(a) state that the Council was of the opinion mentioned in subsection (1)(b), and

(b) give the Council's reasons for that opinion.

Proposals by Lord Chancellor or Court of Appeal

124

(1) The Lord Chancellor may propose to the Council—

(a) that sentencing guidelines be prepared or revised by the Council under section 120—

(i) in relation to a particular offence, particular category of offence or particular category of offenders, or

(ii) in relation to a particular matter affecting sentencing;

(b) that allocation guidelines be prepared or revised by the Council under section 122.

(2) Subsection (3) applies where the criminal division of the Court of Appeal (“the appeal court”) is seised of an appeal against, or a reference under section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) with respect to, the sentence passed for an offence (“the relevant offence”).

(3) The appeal court may propose to the Council that sentencing guidelines be prepared or revised by the Council under section 120—

(a) in relation to the relevant offence, or

(b) in relation to a category of offences within which the relevant offence falls.

(4) A proposal under subsection (3) may be included in the appeal court's judgment in the appeal.

(5) If the Council receives a proposal under subsection (1) or (3) to prepare or revise any guidelines, it must consider whether to do so.

(6) For the purposes of this section, the appeal court is seised of an appeal against a sentence if—

(a) the court or a single judge has granted leave to appeal against the sentence under section 9 or 10 of the Criminal Appeal Act 1968 (c. 19) (appeals against sentence), or

(b) in a case where the judge who passed the sentence granted a certificate of fitness for appeal under section 9 or 10 of that Act, notice of appeal has been given,

and the appeal has not been abandoned or disposed of.

(7) For the purposes of this section, the appeal court is seised of a reference under section 36 of the Criminal Justice Act 1988 (reviews of sentencing) if it has given leave under subsection (1) of that section and the reference has not been disposed of.

(8) This section is without prejudice to any power of the appeal court to provide guidance relating to the sentencing of offenders in a judgment of the court.

Duties of the court

Sentencing guidelines: duty of court

125

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Determination of tariffs etc

126

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Other functions of the Council

Resource implications of guidelines

127

(1) This section applies where the Council—

(a) publishes draft guidelines under section 120 or 122, or

(b) issues guidelines as definitive guidelines under either of those sections.

(2) The Council must publish a resource assessment in respect of the guidelines.

(3) A resource assessment in respect of any guidelines is an assessment by the Council of the likely effect of the guidelines on—

(a) the resources required for the provision of prison places,

(b) the resources required for probation provision, and

(4) The resources assessment must be published—

(a) in a case within subsection (1)(a), at the time of publication of the draft guidelines;

(b) in a case within subsection (1)(b), at the time the guidelines are issued or, where the guidelines are issued by virtue of section 123, as soon as reasonably practicable after the guidelines are issued.

(5) The Council must keep under review any resource assessment published under this section, and, if the assessment is found to be inaccurate in a material respect, publish a revised resource assessment.

Monitoring

128

(1) The Council must—

(a) monitor the operation and effect of its sentencing guidelines, and

(b) consider what conclusions can be drawn from the information obtained by virtue of paragraph (a).

(2) The Council must, in particular, discharge its duty under subsection (1)(a) with a view to drawing conclusions about—

(a) the frequency with which, and extent to which, courts depart from sentencing guidelines;

(b) the factors which influence the sentences imposed by courts;

(d) the effect of the guidelines on the promotion of public confidence in the criminal justice system.

(3) When reporting on the exercise of its functions under this section in its annual report for a financial year, the Council must include—

(a) a summary of the information obtained under subsection (1)(a), and

(b) a report of any conclusions drawn by the Council under subsection (1)(b).

Promoting awareness

129

(1) The Council must publish, at such intervals as it considers appropriate—

(a) in relation to each local justice area, information regarding the sentencing practice of the magistrates' courts acting in that area, and

(b) in relation to each location at which the Crown Court sits, information regarding the sentencing practice of the Crown Court when it sits at that location.

(2) The Council may promote awareness of matters relating to the sentencing of offenders by courts in England and Wales, including, in particular—

(a) the sentences imposed by courts in England and Wales;

(b) the cost of different sentences and their relative effectiveness in preventing re-offending;

(3) For the purposes of subsection (2), the Council may, in particular, publish any information obtained or produced by it in connection with its functions under section 128(1).

Resources: effect of sentencing practice

130

(1) The annual report for a financial year must contain a sentencing factors report.

(2) A sentencing factors report is an assessment made by the Council, using the information available to it, of the effect which any changes in the sentencing practice of courts are having or are likely to have on each of the following—

(a) the resources required for the provision of prison places;

(b) the resources required for probation provision;

131

(1) The annual report for a financial year must contain a non-sentencing factors report.

(2) The Council may, at any other time, provide the Lord Chancellor with a non-sentencing factors report, and may publish that report.

(3) A non-sentencing factors report is a report by the Council of any significant quantitative effect (or any significant change in quantitative effect) which non-sentencing factors are having or are likely to have on the resources needed or available for giving effect to sentences imposed by courts in England and Wales.

(4) Non-sentencing factors are factors which do not relate to the sentencing practice of the courts, and include—

(a) the recalling of persons to prison;

(b) breaches of orders within subsection (5);

(d) decisions or recommendations for release made by the Parole Board;

(e) the early release under discretionary powers of persons detained in prison;

(f) the remanding of persons in custody.

(5) The orders within this subsection are—

(a) community orders (within the meaning given by section 200 of the Sentencing Code),

(b) suspended sentence orders (within the meaning given by section 286 of that Code), and

Duty to assess impact of policy and legislative proposals

132

(1) This section applies where the Lord Chancellor refers to the Council any government policy proposal, or government proposal for legislation, which the Lord Chancellor considers may have a significant effect on one or more of the following—

(a) the resources required for the provision of prison places;

(b) the resources required for probation provision;

(2) For the purposes of subsection (1)—

“government policy proposal” includes a policy proposal of the Welsh Ministers;

“government proposal for legislation” includes a proposal of the Welsh Ministers for legislation.

(3) The Council must assess the likely effect of the proposal on the matters mentioned in paragraphs (a) to (c) of subsection (1).

(4) The Council must prepare a report of the assessment and send the report—

(a) to the Lord Chancellor, and

(b) if the report relates to a proposal of the Welsh Ministers, to the Welsh Ministers.

(5) A single report may be prepared of the assessments relating to 2 or more proposals.

(6) If the Lord Chancellor receives a report under subsection (4) the Lord Chancellor must, unless it relates only to a proposal of the Welsh Ministers, lay a copy of it before each House of Parliament.

(7) If the Welsh Ministers receive a report under subsection (4) they must lay a copy of it before the National Assembly for Wales.

(8) The Council must publish a report which has been laid in accordance with subsections (6) and (7).

(9) In this section “legislation” means—

(a) an Act of Parliament if, or to the extent that, it extends to England and Wales;

(b) subordinate legislation made under an Act of Parliament if, or to the extent that, the subordinate legislation extends to England and Wales;

Lord Chancellor's functions

Assistance by the Lord Chancellor

133

The Lord Chancellor may provide the Council with such assistance as it requests in connection with the performance of its functions.

Entrenchment of Lord Chancellor’s functions

134

In Schedule 7 to the Constitutional Reform Act 2005 (c. 4) (protected functions of the Lord Chancellor), in Part A of paragraph 4—

(a) for the entry for the Criminal Justice Act 2003 (c. 44) substitute—

Criminal Justice Act 2003 (c. 44) Section 174(4) Section 269(6) and (7)

, and

(b) after the entry for the Tribunals, Courts and Enforcement Act 2007 (c. 15) insert—

Coroners and Justice Act 2009 (c. 25) Section 119(1) and (2) Section 120(6) Section 122(4) Section 124(1) Section 131(2) Section 132(1), (4) and (6) Section 133 Schedule 15

Miscellaneous and general

Abolition of existing sentencing bodies

135

The following are abolished—

(a) the Sentencing Guidelines Council;

(b) the Sentencing Advisory Panel.

Interpretation of this Chapter

136

In this Chapter, except where the context otherwise requires—

“allocation guidelines” has the meaning given by section 122;

“annual report” means a report made under section 119;

“the category range” has the meaning given by section 121(4)(b);

“the Council” means the Sentencing Council for England and Wales;

“definitive sentencing guidelines” means sentencing guidelines issued by the Council under section 120 as definitive guidelines, as revised by any subsequent guidelines so issued;

“financial year” means a period of 12 months ending with 31 March;

“the offence range” has the meaning given by section 121(4)(a);

“prison”—includes any youth detention accommodation within the meaning of section 248(1) of the Sentencing Code (detention and training orders), butdoes not include any naval, military or air force prison;

“probation provision” has the meaning given by section 2 of the Offender Management Act 2007 (c. 21);

“sentence”, in relation to an offence, includes any order made by a court when dealing with the offender in respect of the offender's offence, and “sentencing” is to be construed accordingly;

“sentencing guidelines” has the meaning given by section 120;

“the sentencing starting point”, in relation to the offence range, has the meaning given by section 121(10);

“youth justice services” has the meaning given by section 38(4) of the Crime and Disorder Act 1998 (c. 37).

Chapter 2 — Other provisions relating to sentencing

Driving disqualification

Extension of driving disqualification

137

Schedule 16 makes provision about the extension of disqualification for holding or obtaining a driving licence in certain circumstances.

Dangerous offenders

Dangerous offenders: terrorism offences (England and Wales)

138

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Dangerous offenders: terrorism offences (Northern Ireland)

139

(1) Schedule 1 to the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)) (serious offences for purposes of Chapter 3 of Part 2 of that Order) is amended in accordance with subsections (2) to (4).

(2) After paragraph 25 insert—

(25A) An offence under— - section 54 (weapons training), - section 56 (directing terrorist organisation), - section 57 (possession of article for terrorist purposes), or - section 59 (inciting terrorism overseas).

(3) After paragraph 26 insert—

(26A) An offence under— - section 47 (use etc of nuclear weapons), - section 50 (assisting or inducing certain weapons-related acts overseas), or - section 113 (use of noxious substance or thing to cause harm or intimidate).

(4) After paragraph 31 insert—

(31ZA) An offence under— - section 5 (preparation of terrorist acts), - section 6 (training for terrorism), - section 9 (making or possession of radioactive device or material), - section 10 (use of radioactive device or material for terrorist purposes etc), or - section 11 (terrorist threats relating to radioactive devices etc).

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Confiscation orders

Appeals against certain confiscation orders (England and Wales)

140

(1) The Criminal Appeal Act 1968 (c. 19) is amended in accordance with subsections (2) and (3).

(2) In section 11 (supplementary provisions as to appeal against sentence), after subsection (3) insert—

(3A) Where the Court of Appeal exercise their power under paragraph (a) of subsection (3) to quash a confiscation order, the Court may, instead of proceeding under paragraph (b) of that subsection, direct the Crown Court to proceed afresh under the relevant enactment. (3B) When proceeding afresh pursuant to subsection (3A), the Crown Court shall comply with any directions the Court of Appeal may make. (3C) The Court of Appeal shall exercise the power to give such directions so as to ensure that any confiscation order made in respect of the appellant by the Crown Court does not deal more severely with the appellant than the order quashed under subsection (3)(a). (3D) For the purposes of this section— - “confiscation order” means a confiscation order made under— 1. section 1 of the Drug Trafficking Offences Act 1986, 2. section 71 of the Criminal Justice Act 1988, 3. section 2 of the Drug Trafficking Act 1994, or 4. section 6 of the Proceeds of Crime Act 2002; - “relevant enactment”, in relation to a confiscation order quashed under subsection (3)(a), means the enactment under which the order was made.

(3) After that section insert—

(11A) (1) This section applies where the Court of Appeal— (a) quash a confiscation order under section 11(3)(a) (“the quashed order”), and (b) under section 11(3A), direct the Crown Court to proceed afresh under the relevant enactment. (2) Nothing in this section prevents any sum paid by the appellant pursuant to the quashed order being a sum which is recoverable from the Secretary of State as a debt owing to the appellant, but the Court of Appeal may direct that any such sum is not to be repaid until such time as the Crown Court makes a confiscation order, or decides not to make such an order, when proceeding afresh pursuant to section 11(3A). (3) Nothing in this section prevents an amount which would otherwise fall to be repaid as a result of the order being quashed being set against an amount which the appellant is required to pay by virtue of a confiscation order made by the Crown Court in those proceedings. (4) In this section “confiscation order” and “relevant enactment” have the same meaning as in section 11(3D).

Appeals against certain confiscation orders (Northern Ireland)

141

(1) The Criminal Appeal (Northern Ireland) Act 1980 (c. 47) is amended in accordance with subsections (2) and (3).

(2) In section 10 (supplementary provisions as to appeals against sentence), after subsection (3) insert—

(3A) Where the Court of Appeal exercises its power under subsection (3) to quash a confiscation order, the Court may, instead of passing a sentence in substitution for that order, direct the Crown Court to proceed afresh under the relevant enactment. (3B) When proceeding afresh pursuant to subsection (3A), the Crown Court shall comply with any directions the Court of Appeal may make. (3C) For the purposes of this section— - “confiscation order” means a confiscation order made under— 1. Article 4 or 5 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990, 2. Article 8 of the Proceeds of Crime (Northern Ireland) Order 1996, or 3. section 156 of the Proceeds of Crime Act 2002; - “relevant enactment”, in relation to a confiscation order quashed under subsection (3), means the enactment under which the order was made.

(3) After that section insert—

(10A) (1) This section applies where the Court of Appeal— (a) quashes a confiscation order under section 10(3) (“the quashed order”), and (b) under section 10(3A), directs the Crown Court to proceed afresh under the relevant enactment. (2) Nothing in this section prevents any sum paid by the appellant pursuant to the quashed order being a sum which is recoverable from the Secretary of State as a debt owing to the appellant, but the Court of Appeal may direct that any sum is not to be repaid until such time as the Crown Court makes a confiscation order, or decides not to make such an order, when proceeding afresh pursuant to section 10(3A). (3) Nothing in this section prevents an amount which would otherwise fall to be repaid as a result of the order being quashed being set against an amount which the appellant is required to pay by virtue of a confiscation order made by the Crown Court in those proceedings. (4) In this section “confiscation order” and “relevant enactment” have the same meaning as in section 10(3C).

Part 5 — Miscellaneous criminal justice provisions

Commissioner for Victims and Witnesses

142

(1) Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28) (victims etc) is amended as follows.

(2) In section 48 (the Commissioner for Victims and Witnesses)—

(a) omit subsections (3) to (5) (establishment of corporation sole, no Crown status etc), and

(b) for subsection (6) substitute—

(6) The Secretary of State may pay to, or in respect of, the Commissioner amounts— (a) by way of remuneration, pensions, allowances or gratuities, or (b) by way of provision for any such benefits. (7) The Secretary of State may pay sums in respect of the expenses of the Commissioner.

(3) In section 49 (general functions of Commissioner)—

(a) omit subsection (2)(d) (carrying out of research),

(b) omit subsection (3)(b) (laying of reports before Parliament), and

(4) The Commissioner must prepare in respect of each calendar year a report on the carrying out of the functions of the Commissioner during the year. (5) The Commissioner must send a copy of each report prepared under subsection (4) to— (a) the Secretary of State for Justice, (b) the Attorney General, and (c) the Secretary of State for the Home Department. (6) Reports under subsection (2)(b) or (4) must be published by the Commissioner. (7) If section 48 comes into force after the beginning of a calendar year, the first report under subsection (4) may relate to a period beginning with the day on which that section comes into force and ending with the end of the next calendar year.

(4) Omit section 50(2) (advice to authorities within Commissioner's remit).

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Omit Schedule 8 (supplementary provision about the Commissioner for Victims and Witnesses).

Implementation of E-Commerce and Services directives: penalties

143

(1) Paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972 (c. 68) (limitation on penalty which can be imposed for a criminal offence) does not apply in relation to the exercise of the powers conferred by section 2(2) of that Act (implementation of EU obligations etc) for the purpose of implementing—

(a) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services in particular electronic commerce in the Internal Market (Directive on electronic commerce), or

(b) Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market.

(2) Where a statutory instrument includes provision by virtue of subsection (1)—

(a) if paragraph 2 of Schedule 2 to the European Communities Act 1972 (c. 68) applies to the instrument, sub-paragraph (2) of that paragraph has effect as if it required a draft of the instrument to be approved by resolution of each House of Parliament or, in the case of an instrument made by the Scottish Ministers, of the Scottish Parliament;

(b) if section 59(3) of the Government of Wales Act 2006 (c. 32) applies to the instrument, that provision has effect as if it required a draft of the instrument to be approved by resolution of the National Assembly for Wales.

(3) Where a statutory rule to which paragraph 3 of Schedule 2 to the European Communities Act 1972 applies includes provision by virtue of subsection (1), that paragraph has effect as if it required a draft of the rule to be approved by resolution of the Northern Ireland Assembly.

Treatment of convictions in other member States etc

144

Schedule 17 contains—

(a) amendments relating to the treatment of criminal convictions imposed by courts outside England and Wales, and

(b) amendments relating to the treatment of criminal convictions imposed by courts outside Northern Ireland.

Transfer to Parole Board of functions under the Criminal Justice Act 1991

145

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Retention of knives surrendered or seized (England and Wales)

146

(1) The Courts Act 2003 (c. 39) is amended as follows.

(2) In section 55 (powers to retain articles surrendered or seized), after subsection (3) add—

(4) This section is subject to section 55A.

(3) After section 55 insert—

(55A) (1) This section applies where a knife is surrendered to a court security officer in response to a request under section 54(1) or seized by a court security officer under section 54(2). (2) Section 55 does not apply. (3) The knife must be retained in accordance with regulations under subsection (5), unless returned or disposed of in accordance with those regulations or regulations made under section 56. (4) If a court security officer reasonably believes that a retained knife may be evidence of, or in relation to, an offence, nothing in subsection (3) prevents the officer retaining the knife for so long as necessary to enable the court security officer to draw it to the attention of a constable. (5) Without prejudice to the generality of section 56, the Lord Chancellor must by regulations make provision as to— (a) the procedure to be followed when a knife is retained under this section; (b) the making of requests by eligible persons for the return of knives so retained; (c) the procedure to be followed when returning a knife pursuant to a request made in accordance with the regulations. (6) For the purposes of this section— - “eligible person”, in relation to a knife retained under this section, means— 1. the person who has surrendered the knife under section 54(1) or from whom the knife has been seized under section 54(2), or 2. any other person specified in regulations made under subsection (5); - “knife” includes— 1. a knife-blade, and 2. any other article which— 1. has a blade or is sharply pointed, and 2. is made or adapted for use for causing injury to the person.

(4) In section 56(2)(a), after “section 55” insert “ or section 55A ”.

Retention of knives surrendered or seized (Northern Ireland)

147

(1) Schedule 3 to the Justice (Northern Ireland) Act 2004 (c. 4) (court security) is amended in accordance with subsections (2) to (4).

(2) In paragraph 5 (power to retain articles surrendered or seized), after sub-paragraph (3) add—

(4) This paragraph is subject to paragraph 5A.

(3) After paragraph 5 insert—

(5A) (1) This paragraph applies where a knife is surrendered to a court security officer in response to a request under paragraph 4(1) or seized by a court security officer under paragraph 4(2). (2) Paragraph 5 does not apply. (3) The knife must be retained in accordance with regulations under sub-paragraph (5), unless returned or disposed of in accordance with those regulations or regulations made under paragraph 6. (4) If a court security officer reasonably believes that a retained knife may be evidence of, or in relation to, an offence, nothing in sub-paragraph (3) prevents the officer retaining the knife for so long as necessary to enable the court security officer to draw it to the attention of a constable. (5) Without prejudice to the generality of paragraph 6, the Lord Chancellor must by regulations make provision as to— (a) the procedure to be followed when a knife is retained under this paragraph; (b) the making of requests by eligible persons for the return of knives so retained; (c) the procedure to be followed when returning a knife pursuant to a request made in accordance with the regulations. (6) For the purposes of this paragraph— - “eligible person”, in relation to a knife retained under this paragraph, means— 1. the person who has surrendered the knife under paragraph 4(1) or from whom the knife has been seized under paragraph 4(2), or 2. any other person specified in regulations made under sub-paragraph (5); - “knife” includes— 1. a knife-blade, and 2. any other article which— 1. has a blade or which is sharply pointed, and 2. is made or adapted for use for causing injury to the person.

(4) In paragraph 6(2)(a), after “paragraph 5” insert “ or paragraph 5A ”.

(5) In section 21(3) of the Justice (Northern Ireland) Act 2004 (c. 4) (orders and regulations subject to annulment in pursuance of resolution of either House of Parliament) after “1(4)” insert “ , 5A(5) ”.

Security in tribunal buildings

148

(1) The Lord Chancellor may, by order—

(a) authorise or require the Lord Chancellor, or such other person as may be specified, to designate persons as security officers in relation to a specified description of tribunal buildings;

(b) provide that Part 4 (other than section 51(1)) of the Courts Act 2003 (c. 39) (provisions relating to court security) applies in relation to a specified description of tribunal buildings and security officers designated in relation to tribunal buildings of that description as it applies to court buildings and court security officers, subject to such modifications as may be specified.

(2) The provision which may be included in an order under subsection (1) by virtue of section 176 (power to make consequential provision etc) includes provision modifying any provision made by or under an Act (whenever passed or made).

(3) In this section—

“court building” has the meaning given by section 52(3) of the Courts Act 2003;

“modify” includes amend, add to, repeal or revoke (and modification is to be construed accordingly);

“specified” means specified by an order under subsection (1);

“tribunal buildings” means any building, or part of a building, to which the public have access (other than a court building)—where the business of any tribunal mentioned in section 39(1) of the Tribunals, Courts and Enforcement Act 2007 (c. 15) is carried on, orwhere the business of any other tribunal designated by the Lord Chancellor, by order, is carried on.

Part 6 — Legal aid and other payments for legal services

Community Legal Service

Community Legal Service: pilot schemes

149

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Excluded services: help in connection with business matters

150

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criminal Defence Service

Criminal Defence Service: information requests

151

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criminal Defence Service: enforcement of order to pay cost of representation

152

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General

Statutory instruments relating to the Legal Services Commission

153

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation of certain agreements

Damages-based agreements relating to employment matters

154

(1) The Courts and Legal Services Act 1990 (c. 41) is amended as follows.

(2) After section 58A insert—

("58AA)

(58AA) (1) A damages-based agreement which relates to an employment matter and satisfies the conditions in subsection (4) is not unenforceable by reason only of its being a damages-based agreement. (2) But a damages-based agreement which relates to an employment matter and does not satisfy those conditions is unenforceable. (3) For the purposes of this section— (a) a damages-based agreement is an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that— (i) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and (ii) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained; (b) a damages-based agreement relates to an employment matter if the matter in relation to which the services are provided is a matter that is, or could become, the subject of proceedings before an employment tribunal. (4) The agreement— (a) must be in writing; (b) must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner; (c) must comply with such other requirements as to its terms and conditions as are prescribed; and (d) must be made only after the person providing services under the agreement has provided prescribed information. (5) Regulations under subsection (4) are to be made by the Lord Chancellor and may make different provision in relation to different descriptions of agreements. (6) Before making regulations under subsection (4) the Lord Chancellor must consult— (a) the designated judges, (b) the General Council of the Bar, (c) the Law Society, and (d) such other bodies as the Lord Chancellor considers appropriate. (7) In this section— - “payment” includes a transfer of assets and any other transfer of money's worth (and the reference in subsection (4)(b) to a payment above a prescribed amount, or above an amount calculated in a prescribed manner, is to be construed accordingly); - “claims management services” has the same meaning as in Part 2 of the Compensation Act 2006 (see section 4(2) of that Act). (8) Nothing in this section applies to an agreement entered into before the coming into force of the first regulations made under subsection (4).

(3) In section 120(4) (regulations and orders) after “58(4),” insert “ 58AA ”.

Part 7 — Criminal memoirs etc

Exploitation proceeds orders

155

(1) A court may make an exploitation proceeds order in respect of a person if it is satisfied, on the balance of probabilities, that the person—

(a) is a qualifying offender, and

(b) has obtained exploitation proceeds from a relevant offence.

(2) An exploitation proceeds order is an order which requires the respondent to pay an amount (“the recoverable amount”) in respect of exploitation proceeds obtained by the respondent from a relevant offence to the enforcement authority which applied for the order.

(3) A person obtains exploitation proceeds from a relevant offence if the person derives a benefit from—

(a) the exploitation of any material pertaining to the relevant offence, or

(b) any steps taken or to be taken with a view to such exploitation.

(4) An exploitation proceeds order must—

(a) specify the recoverable amount, and

(b) identify the benefits derived by the respondent in respect of which it is made.

(5) The power conferred by subsection (1) is subject to sections 161 and 163.

(6) If the recoverable amount required to be paid by the respondent under an exploitation proceeds order (or any part of that amount) is not paid when it is required to be paid, the respondent must pay interest at the appropriate rate on the recoverable amount (or part) for the period for which it remains unpaid.

(7) Any sum received by an enforcement authority pursuant to an exploitation proceeds order (including any interest under subsection (6)) must be paid—

(a) if the authority is the Scottish Ministers, into the Scottish Consolidated Fund;

(b) in any other case, into the Consolidated Fund.

(8) In this section—

“appropriate rate” means—in the case of an exploitation proceeds order made by the High Court, the rate for the time being specified in section 17 of the Judgments Act 1838 (c. 110) (interest on civil judgment debts), orin the case of an exploitation proceeds order made by the Court of Session, the rate payable under a decree of the Court of Session;

“court” means—in relation to England and Wales, the High Court in England and Wales;in relation to Scotland, the Court of Session;in relation to Northern Ireland, the High Court in Northern Ireland;

“the respondent”, in relation to an exploitation proceeds order or an application for such an order, means the person against whom the order is made or sought.

Qualifying offenders

156

(1) In this Part “qualifying offender” means a person who is within subsection (2) or (3) (or both).

(2) A person is within this subsection if (whether before or after the commencement of this Part) the person—

(a) has been convicted by a court in the United Kingdom of an offence,

(b) has been found not guilty by such a court of an offence by reason of insanity, or

(ba) has been acquitted by such a court of an offence by reason of the special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995 (c.46), or

(3) A person is within this subsection if—

(a) under the law in force in a country outside the United Kingdom (and whether before or after the commencement of this Part)—

(i) the person has been convicted of a foreign offence,

(ii) a court exercising jurisdiction under that law has made, in respect of a foreign offence, a finding equivalent to a finding that the person was not guilty by reason of insanity, or

(iia) such a court has made, in respect of a foreign offence, a finding equivalent to a finding of the person's acquittal by reason of the special defence set out in section 51A of the Criminal Procedure (Scotland) Act 1995, or

(iii) such a court has made, in respect of a foreign offence, a finding equivalent to a finding that the person was under a disability and did the act charged in respect of the offence, and

(b) the person—

(i) is a United Kingdom national,

(ii) is resident in the United Kingdom, or

(iii) was resident in the United Kingdom at the time the act which constituted the offence was done.

(4) In subsection (3)—

“foreign offence” means an act which—constituted an offence under the law in force in the country concerned,at the time it was done, would have constituted an offence if it had been done in any part of the United Kingdom, andwould constitute an offence if it were done in any part of the United Kingdom at the time the application for an exploitation proceeds order is made in respect of it;

“United Kingdom national” means an individual who is—a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,a person who under the British Nationality Act 1981 (c. 61) is a British subject, ora British protected person within the meaning of that Act.

(5) For the purposes of subsection (4), conduct punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law however it is described in that law.

(6) In this section a reference to the doing of an act includes a reference to a failure to act.

Qualifying offenders: service offences

157

(1) In subsection (2) of section 156—

(a) a reference to a person who has been convicted by a court in the United Kingdom of an offence includes a reference to a person who has been convicted of a UK service offence;

(b) a reference to a finding by a court in the United Kingdom in relation to an offence includes a reference to a finding by a UK service court (wherever situated) in relation to a UK service offence.

(2) In subsection (3) of that section—

(a) a reference to a foreign offence includes a foreign service offence;

(b) a reference to a person who has been convicted of a foreign offence includes a reference to a person who has been found guilty of a foreign service offence in respect of any act done which was the subject of proceedings under the service law of a country outside the United Kingdom;

(c) a reference to a finding of a court exercising jurisdiction under the law in force in a country outside the United Kingdom includes a reference to a finding of—

(i) a court established under the service law of that country, or

(ii) an authority of the country who under the law of the country is empowered to review the proceedings of such a court or to try or investigate charges brought against persons subject to the service law of that country.

(3) For the purposes of subsection (1) the reference to a person who has been convicted of a UK service offence includes a person in respect of whom there has been—

(a) under the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), the recording of a finding that a charge in respect of the offence has been proved;

(b) under the Naval Discipline Act 1957 (c. 53), a determination that a charge in respect of the offence has been proved, and the recording of a finding of guilt;

(c) under the Armed Forces Act 2006 (c. 52), the recording of a finding that a charge in respect of the offence has been proved;

(d) a substitution, by the Summary Appeal Court established under any of the Acts mentioned in paragraphs (a) to (c), of a finding that a charge in respect of the offence has been proved;

(e) a substitution by the Courts-Martial Appeal Court or the Court Martial Appeal Court of a finding of guilty of the offence.

(4) In this section—

“foreign service offence” means an act which—was the subject of proceedings under the service law of a country outside the United Kingdom,at the time it was done, would have constituted an offence, or a UK service offence, if it had been done in any part of the United Kingdom by a member of Her Majesty's forces, andwould constitute an offence or a UK service offence if it were done in any part of the United Kingdom by a member of Her Majesty's forces at the time the application for an exploitation proceeds order is made in respect of it;

“Her Majesty's forces” has the same meaning as in the Armed Forces Act 2006;

“service law”, in relation to a country outside the United Kingdom, means the law governing all or any of the naval, military or air forces of that country;

“UK service offence” means an offence triable by a UK service court;

and a reference to the doing of an act includes a reference to a failure to act.

Qualifying offenders: supplementary

158

(1) In section 7 of the Rehabilitation of Offenders Act 1974 (c. 53) (limitations on rehabilitation under the 1974 Act, etc), in subsection (2), at the end add “or

(h) in any proceedings brought under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc).

(2) In Article 8 of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)) (limitations on rehabilitation under the 1978 Order etc), in paragraph (2), at the end add “or

(g) in any proceedings brought under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc).

(3) For the purposes of this Part, the following provisions do not apply to a conviction for an offence in respect of which an order for an absolute or conditional discharge is made—

(a) section 82(2) of the Sentencing Code (conviction with absolute or conditional discharge deemed not to be a conviction);

(b) Article 6(1) of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)) (conviction with absolute or conditional discharge deemed not to be a conviction);

(c) section 247(1) and (2) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (effect of probation and absolute discharge);

(d) section 187(1) of the Armed Forces Act 2006 (c. 52) (conviction with absolute or conditional discharge deemed not to be a conviction);

(e) paragraph 5(1) of Schedule 5A to the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Schedule 4A to the Naval Discipline Act 1957 (c. 53) (conviction with absolute or conditional discharge or community suspension order deemed not to be a conviction).

Relevant offences

159

(1) In this Part “relevant offence”, in relation to a person (“P”), means—

(a) a serious offence by reason of which P is a qualifying offender,

(b) a serious offence which was taken into consideration by a court in determining the sentence imposed on P for an offence by reason of which P is a qualifying offender, or

(i) an offence by reason of which P is a qualifying offender, or

(ii) an offence which was taken into consideration by a court in determining the sentence imposed on P for such an offence.

(2) For this purpose an offence is “serious” if—

(a) in the case of an offence under the law of England and Wales, it is an offence which, if committed by an adult, is triable only on indictment,

(b) in the case of an offence under the law of Scotland, it is an offence triable only on indictment,

(c) in the case of an offence under the law of Northern Ireland, it is an offence which, if committed by an adult, is triable only on indictment,

(d) in the case of a foreign offence, the act constituting the offence—

(i) at the time it was done, would have constituted an offence within paragraph (a), (b) or (c) if it had been done in any part of the United Kingdom, and

(ii) would also constitute such an offence if it were done in any part of the United Kingdom at the time the application for an exploitation proceeds order is made in respect of it.

(3) Two offences are associated with one another if—

(a) they were committed in the context of the same joint criminal venture, or

(b) subsection (4) applies.

(4) This subsection applies if one of the offences is—

(a) an offence of inciting the commission of the other offence;

(b) an offence of conspiring to commit the other offence;

(c) an offence under section 44, 45 or 46 of the Serious Crime Act 2007 (c. 27) (offences relating to encouraging or assisting an offence) in relation to the other offence;

(d) an offence of soliciting (however expressed) the commission of the other offence;

(e) an offence under section 4 of the Criminal Law Act 1967 (c. 58) (assisting the evasion of arrest and concealment) in relation to the other offence;

(f) an offence of perverting the course of justice in connection with the other offence;

(g) an offence under section 51 of the Criminal Justice and Public Order Act 1994 (c. 33) (intimidation of witnesses and jurors etc) in connection with the other offence.

(5) In subsection (1)—

(a) a reference to an offence includes a reference to a UK service offence and a foreign service offence, and

(b) the reference to a court includes a reference to a UK service court or a court or authority of the kind mentioned in section 157(2)(c)(i) or (ii).

(6) Subsection (2) does not apply in relation to a UK service offence or a foreign service offence, and for the purposes of subsection (1) such an offence is “serious” if—

(a) in the case of a UK service offence—

(i) the act constituting the offence is a serious offence within subsection (2)(a),

(ii) the act constituting the offence, if done in England and Wales, would be a serious offence within subsection (2)(a), or

(iii) the offence is within subsection (7);

(b) in the case of a foreign service offence, the act constituting the offence—

(i) at the time it was done, would have constituted a serious offence within subsection (2) or an offence within subsection (7) if it had been done in any part of the United Kingdom by a member of Her Majesty's forces, and

(ii) would also constitute such an offence if it were done in any part of the United Kingdom by a member of Her Majesty's forces at the time the application for an exploitation proceeds order is made in respect of it.

(7) An offence is within this subsection if it is an offence under—

(a) section 24(1) of the AA 1955 or of the AFA 1955, section 2(1) of the NDA 1957 or section 2(1) of the AFA 2006 (misconduct on operations),

(b) section 25 of the AA 1955 or of the AFA 1955, section 3 of the NDA 1957 or section 1 of the AFA 2006 (assisting an enemy),

(c) section 26(1) of the AA 1955 or of the AFA 1955, section 4(1) of the NDA 1957 or section 3 of the AFA 2006 (obstructing operations),

(d) section 30(a) or (b) of the AA 1955 or of the AFA 1955, section 5(a) or (b) of the NDA 1957 or section 4(1) or (2) of the AFA 2006 (looting),

(e) section 31 of the AA 1955 or of the AFA 1955, section 9 of the NDA 1957 or section 6 of the AFA 2006 (mutiny), or

(f) section 32 of the AA 1955 or of the AFA 1955, section 10 of the NDA 1957 or section 7 of the AFA 2006 (failure to suppress mutiny).

(8) In subsection (4), the offences listed in paragraphs (a) to (g) include—

(a) any corresponding offence triable by a court exercising jurisdiction in a country outside the United Kingdom,

(b) the corresponding offences triable by a UK service court, and

(9) In this section—

“AA 1955” means the Army Act 1955 (3 & 4 Eliz. 2 c. 18);

“act” includes a failure to act (and references to the doing of an act are to be read accordingly);

“AFA 1955” means the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19);

“AFA 2006” means the Armed Forces Act 2006 (c. 52);

“foreign offence” has the same meaning as in section 156;

“foreign service offence”, “Her Majesty's services” and “UK service offence” have the same meaning as in section 157;

“NDA 1957” means the Naval Discipline Act 1957 (c. 53).

Deriving a benefit

160

(1) This section applies for the purposes of section 155(3).

(2) The exploitation may be by any means, including—

(a) the publication of any material in written or electronic form;

(b) the use of any media from which visual images, words or sounds can be produced;

(3) A person (“A”) is to be regarded as having derived a benefit if A secures the benefit for another person (“B”) (whether or not A had any legal right to ensure the benefit was so secured or B had any legal entitlement to the benefit).

(4) It does not matter whether the benefit is derived, or whether the exploitation (or any step taken or to be taken with a view to exploitation) takes place,—

(a) within or outside the United Kingdom, or

(b) before or after the person who committed the relevant offence is convicted of that offence.

(5) But—

(a) the benefit must be derived after the coming into force of section 155, and

(b) where the relevant offence is an offence within section 159(1)(c), the associated offence committed by the respondent must have been committed before the benefit was derived.

(6) In subsection (4)(b), the reference to conviction of the relevant offence includes a reference to a finding mentioned in section 156(2)(b) or (c) or (3)(a)(ii) or (iii) or 157(2)(b) or (3) in relation to the offence.

Applications

161

(1) A court may not make an exploitation proceeds order except on the application of an enforcement authority.

(2) “Enforcement authority” means—

(a) in relation to an application to the High Court in England and Wales or to the High Court in Northern Ireland—

(i) the National Crime Agency, or

(ii) a person prescribed or of a description prescribed by order made by the Secretary of State;

(b) in relation to an application to the Court of Session, the Scottish Ministers.

(3) An enforcement authority (other than the Scottish Ministers) may make such an application only with the consent of—

(a) in the case of an application to the High Court in England and Wales, the Attorney General;

(b) in the case of an application to the High Court in Northern Ireland, the Advocate General for Northern Ireland.

(4) The Secretary of State may by order make such modifications of any provision made by or under Part 8 of the Proceeds of Crime Act 2002 (c. 29) or any other enactment (whenever passed or made) as the Secretary of State considers appropriate in consequence of provision made by an order under subsection (2)(a)(ii).

(5) In subsection (4) “modification” includes an amendment, addition, revocation or repeal.

(6) In the application of this section to Northern Ireland, in subsections (2)(a)(ii) and (4) references to the Secretary of State are to be read as references to the Department of Justice in Northern Ireland.

Exercise of power to make orders

Determination of applications

162

(1) This section applies where the court to which an application for an exploitation proceeds order is made is satisfied as mentioned in section 155(1).

(2) When determining whether to make an exploitation proceeds order in respect of any benefit, or the recoverable amount to be specified in such an order, the court—

(a) must take account of the matters mentioned in subsection (3), and

(b) may take account of such other matters as it considers relevant.

(3) Those matters are—

(a) the nature and purpose of the exploitation from which (or intended exploitation in connection with which) the respondent derived the benefit;

(b) the degree to which the relevant material was (or was intended to be) integral to the activity or product and whether it was (or was intended to be) of central importance to the activity or product;

(d) the social, cultural or educational value of the activity or product;

(e) the seriousness of the relevant offence to which the activity or product relates;

(f) the extent to which any victim of the offence or the family of the victim is offended by the respondent obtaining exploitation proceeds from the relevant offence.

(4) In subsection (3) references to “activity” or “product” are to the activity or product which constituted (or was intended to constitute) the exploitation from which, or in connection with which, the respondent derived the benefit.

(5) “Relevant material” means the material—

(a) which pertains to the relevant offence in relation to the respondent, and

(b) by reason of the exploitation of which (or steps taken or to be taken with a view to the exploitation of which) the respondent has derived the benefit.

Limits on recoverable amount

163

(1) The recoverable amount specified in an order must not exceed whichever is the lesser of—

(a) the total value of the benefits identified in the order under section 155(4)(b), and

(b) the available amount.

(2) The recoverable amount may be a nominal amount.

(3) The benefits identified in the order—

(a) may include any benefit derived by the respondent up to the time the court makes its determination;

(b) must not include any benefit identified in a previous exploitation proceeds order made against the respondent;

(c) must not include any benefit in respect of which an enforcement authority has no cause of action under this Part by virtue of section 27C of the Limitation Act 1980 (c. 58), Article 72C of the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)) or section 19D of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (limitation period for exploitation proceeds orders).

(4) The value of a benefit in kind derived by a person is the amount which, at the time that benefit was received, it would have cost that person to obtain the benefit in the open market less the total value of any consideration for that benefit provided by that person or, where that benefit was secured for another person, by that other person.

(5) If a benefit in kind cannot be obtained in the open market, the court is to determine a value to attribute to that benefit that is just and reasonable, taking into account any similar benefits available in the open market.

(6) Where a benefit derives only partly from the matters mentioned in section 155(3)(a) or (b), the value of the benefit derived from those matters is such proportion of the value of the benefit as the court considers it is just and reasonable to regard as attributable to those matters.

(7) In this section “the court” means the court making the exploitation proceeds order.

The available amount

164

(1) The available amount is the total of—

(a) the value of the respondent's relevant assets,

(b) to the extent that any benefits identified in the order are benefits secured for a person other than the respondent, the value of those benefits, and

(c) the value (at the time the exploitation proceeds order is made) of such relevant gifts (if any) as the court considering making the exploitation proceeds order considers it just and reasonable to take account of in determining the available amount.

(2) The value of the respondent's relevant assets is the total of the values (at the time the exploitation proceeds order is made) of all the free property then held by the respondent, reduced by the total amount payable in pursuance of obligations which then have priority.

(3) Property is free unless an order or notice (as the case may be) is in force in respect of it under any of these provisions—

(a) section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(b) Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (deprivation orders);

(d) section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) or Chapter 4 of Part 7 of the Sentencing Code (deprivation orders);

(e) section 23, 23A or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders);

(f) section 245A, 246, 255A, 256, 266, 295(2) or 298(2) of the Proceeds of Crime Act 2002 (c. 29) (freezing, interim receiving, prohibitory, interim administration, recovery, detention and forfeiture orders);

(g) section 297A of the Proceeds of Crime Act 2002 (c. 29) (forfeiture notices).

(4) An obligation has priority if it is an obligation of the respondent—

(a) to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the exploitation proceeds order is made, or

(b) to pay a sum which would be included among the preferential debts (or preferred debts) if the respondent's bankruptcy (or sequestration) had commenced on the date of the exploitation proceeds order or the respondent's winding up had been ordered on that date.

(5) If the respondent transfers property to another person for a consideration the value of which is significantly less than the value of the property at the time of the transfer, the respondent is to be treated as making a gift of the difference in value between the value of the property transferred and the consideration given in respect of it.

(6) In this section—

“preferential debts” has the meaning given by section 386 of the Insolvency Act 1986 (c. 45);

“preferred debts” has the meaning given by section 129(2) of the Bankruptcy (Scotland) Act 2016;

“relevant gift”, in relation to an exploitation proceeds order, means a gift made by the respondent on or after the day on which the respondent first derived any of the benefits identified in the order under section 155(4)(b).

Property

165

(1) This section applies for the purposes of this Part.

(2) Property is all property wherever situated and includes—

(a) money;

(b) all forms of real, corporeal or personal property;

(3) The following rules apply in relation to property—

(a) property is held by a person if the person holds an interest in it;

(b) property is transferred by one person to another if the first one transfers or grants an interest in it to the second;

(c) references to property held by a person include references to property vested in the person's trustee in bankruptcy, trustee or interim trustee in a sequestration of the person’s estate under the Bankruptcy (Scotland) Act 2016 or liquidator;

(d) references to an interest, in relation to land in England and Wales or Northern Ireland, are to any legal estate or equitable interest or power;

(e) references to an interest, in relation to land in Scotland, are to any interest, servitude or other right in or over land, including a heritable security;

(f) references to an interest, in relation to property other than land, include references to a right (including a right in possession).

(4) Where property is held jointly the court considering making the exploitation proceeds order must determine such value as it considers just and reasonable to attribute to the person's interest in that property for the purposes of section 164.

Additional powers

Effect of conviction being quashed etc

166

(1) Where an exploitation proceeds order has been made in respect of exploitation proceeds obtained by the respondent from a relevant offence, the order ceases to have effect if—

(a) the relevant offence is within paragraph (a) of section 159(1) and the respondent's conviction for it is subsequently quashed, or

(b) the relevant offence is within paragraph (b) or (c) of that section and the respondent's conviction for the offence (or, if more than one, all of the offences) by virtue of which the relevant offence is within either of those paragraphs is (or are) subsequently quashed.

(2) Where an exploitation proceeds order has been made in respect of exploitation proceeds obtained by the respondent from 2 or more relevant offences, the order ceases to have effect if paragraph (a) or (b) of subsection (1) applies in relation to each of those offences.

(3) Where an exploitation proceeds order ceases to have effect under subsection (1) or (2), the court must, on the application of the respondent (or the respondent's personal representative), order the Secretary of State to repay to the respondent (or the personal representative) the recovered amount.

(4) Subsection (5) applies where an exploitation proceeds order has been made if—

(a) where the order was made in respect of exploitation proceeds obtained by the respondent from 2 or more relevant offences, paragraph (a) or (b) of subsection (1) applies in relation to one or more, but not all, of those offences, or

(b) where the order was made in respect of exploitation proceeds obtained by the respondent from a relevant offence within section 159(1)(c) (whether alone or together with other relevant offences), another person has been convicted of that offence and that conviction is subsequently quashed.

(5) On the application of the respondent (or the respondent's personal representative), the court may—

(a) determine that the exploitation proceeds order is to cease to have effect, or

(b) reduce the recoverable amount by such amount (if any) as it considers just and reasonable.

(6) Where the exploitation proceeds order ceases to have effect under subsection (5)(a), the court must order the Secretary of State to repay to the respondent (or the respondent's personal representative) the recovered amount.

(7) Where the court reduces the recoverable amount under subsection (5)(b), if the recovered amount exceeds the reduced recoverable amount, the court must order the Secretary of State to repay to the respondent (or the respondent's personal representative) that excess.

(8) An order under subsection (3), (6) or (7) for the repayment of a sum must also order the Secretary of State to pay to the recipient interest on that sum, at a rate determined by the court, for the period which—

(a) begins with the day on which the respondent made the payment in accordance with the exploitation proceeds order, and

(b) ends with the day before the day on which that sum is repaid to the respondent or the respondent's personal representative.

(9) In the case of an exploitation proceeds order made on the application of the Scottish Ministers—

(a) references in this section to the Secretary of State are to be read as references to the Scottish Ministers, and

(b) the reference in subsection (8) to a rate determined by the court is to read as a reference to a rate set by rules of court.

(9A) In the case of an exploitation proceeds order made in Northern Ireland on the application of an enforcement authority other than the National Crime Agency, references in this section to the Secretary of State are to be read as references to the Department of Justice in Northern Ireland.

(10) In this section—

(a) any reference to a conviction for an offence includes a reference to a finding, in relation to the offence, of the kind mentioned in section 156(2)(b) or (c) or (3)(a)(ii) or (iii) or section 157(2)(b) or (3), and

(b) any reference to a conviction for an offence being quashed includes a reference to—

(i) the reversal or setting aside of a conviction;

(ii) the substitution of a verdict of acquittal in relation to a finding of the kind mentioned in section 156(2)(b) or (c);

(iii) a finding of the kind mentioned in section 156(3)(a)(ii) or (iii) being quashed;

(iv) a finding of the kind mentioned in section 157(2)(b) or (3) being quashed, set aside, reversed or replaced with a verdict of acquittal.

(11) In this section—

“the court” means the court which made the exploitation proceeds order;

“personal representative” means—in relation to England and Wales, a person who is a personal representative within the meaning of section 55(1) of the Administration of Estates Act 1925 (c. 23),in relation to Scotland, an executor confirmed to the estate of the respondent,in relation to Northern Ireland, a person who is one of the personal representatives within the meaning of the Administration of Estates Act (Northern Ireland) 1955 (c. 24), orany person having, in relation to the respondent, under the law of another country any functions corresponding to the functions of a person falling within paragraph (a), (b) or (c);

“the recovered amount”, in relation to an exploitation proceeds order, means the amount (if any) paid by the respondent to an enforcement authority in accordance with the order, reduced by any amount already repaid under subsection (7) and disregarding any interest paid under section 155(6).

Powers of court on repeat applications

167

(1) This section applies if—

(a) a court makes an exploitation proceeds order (“the earlier order”) in respect of a person, and

(b) an application (“the later application”) is then made to the court for another exploitation proceeds order in respect of the same person.

(2) The court may, for the purposes of the later application, adopt any finding of fact made by the court in connection with the earlier order.

(3) Subsection (4) applies where, on the later application, the court is satisfied as mentioned in section 155(1).

(4) If, or to the extent that, the earlier order was in respect of benefits derived from the same source as the benefits to which the later application relates, the court must when making a determination under section 162 in relation to the later application, have regard to any determination made by it under that section in connection with the earlier order.

(5) For the purposes of subsection (4) benefits are from the same source if they consist of benefits derived by the respondent from (or from steps taken or to be taken with a view to) the same exploitation of material related to the same relevant offence.

Additional proceeds reporting orders

168

(1) A court making an exploitation proceeds order may also make an additional proceeds reporting order in respect of the respondent.

(2) But it may do so only if it is satisfied that the likelihood of the respondent obtaining further exploitation proceeds from a relevant offence is sufficiently high to justify the making of an additional proceeds reporting order.

(3) An additional proceeds reporting order—

(a) comes into force when it is made, and

(b) has effect for the period specified in the order, beginning with the date on which it is made.

(4) The period specified under subsection (3) must not exceed 20 years.

(5) Sections 79, 80(1) and (2) and 81 of the Serious Organised Crime and Police Act 2005 (c. 15) apply in relation to an additional proceeds reporting order under this section as they apply in relation to a financial reporting order under section 76, 77 or 78 of that Act.

(6) The person to whom reports are made under an additional proceeds reporting order may disclose a report to an enforcement authority for the purposes of—

(a) an exploitation proceeds investigation (within the meaning of section 341(5) of the Proceeds of Crime Act 2002 (c. 29)), or

(b) the making or pursuing of an application for, or the enforcement of, an exploitation proceeds order or an additional proceeds reporting order.

Investigations

Exploitation proceeds investigations

169

Part 8 of the Proceeds of Crime Act 2002 (c. 29) (investigations) is amended in accordance with Schedule 19.

Functions of Serious Organised Crime Agency

170

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Limitation

171

(1) After section 27B of the Limitation Act 1980 (c. 58) insert—

(27C) (1) None of the time limits given in the preceding provisions of this Act applies to proceedings under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc) for an exploitation proceeds order. (2) Proceedings under that Part for such an order are not to be brought after the expiration of 6 years from the date on which the enforcement authority's cause of action accrued. (3) Proceedings under that Part for such an order are brought when an application is made for the order. (4) Where exploitation proceeds have been obtained by a person from a relevant offence, an enforcement authority's cause of action under that Part in respect of those proceeds accrues when the enforcement authority has actual knowledge that the proceeds have been obtained. (5) Expressions used in this section and that Part have the same meaning in this section as in that Part.

(2) After Article 72B of the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)) insert—

(72C) (1) None of the time limits given in the preceding provisions of this Order applies to proceedings under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc) for an exploitation proceeds order. (2) Proceedings under that Part for such an order are not to be brought after the expiration of 6 years from the date on which the enforcement authority's cause of action accrued. (3) Proceedings under that Part for such an order are brought when an application is made for the order. (4) Where exploitation proceeds have been obtained by a person from a relevant offence, an enforcement authority's cause of action under that Part in respect of those proceeds accrues when the enforcement authority has actual knowledge that the proceeds have been obtained. (5) Expressions used in this Article and that Part have the same meaning in this Article as in that Part.

(3) After section 19C of the Prescription and Limitation (Scotland) Act 1973 (c. 52) insert—

(19D) (1) None of the time limits given in the preceding provisions of this Act applies to proceedings under Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc) for an exploitation proceeds order. (2) Proceedings under that Part for such an order are not to be brought after the expiration of 5 years from the date on which the enforcement authority's right of action accrued. (3) Proceedings under that Part for such an order are brought when an application is made for the order. (4) Where exploitation proceeds have been obtained by a person from a relevant offence, an enforcement authority's right of action under that Part in respect of those proceeds accrues when the enforcement authority has actual knowledge that the proceeds have been obtained. (5) Expressions used in this section and that Part have the same meaning in this section as in that Part.

Interpretation

Interpretation of this Part

172

In this Part—

“benefit” means a direct or indirect benefit of any nature (pecuniary or non-pecuniary);

“enactment” includes an enactment contained in, or an instrument made under, Northern Ireland legislation;

“enforcement authority” has the meaning given by section 161(2);

“material” means any information, opinion, image or other thing;

“qualifying offender” has the meaning given by section 156;

“recoverable amount” has the meaning given by section 155;

“relevant offence” has the meaning given by section 159;

“the respondent” has the meaning given by section 155;

“UK service court” means—a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53) or the Court Martial established by the Armed Forces Act 2006 (c. 52);a Standing Civilian Court established under the Armed Forces Act 1976 (c. 52) or the Service Civilian Court established by the Armed Forces Act 2006;the Courts-Martial Appeal Court or the Court Martial Appeal Court.

Part 8 — Data Protection Act 1998

Assessment notices

173

After section 41 of the Data Protection Act 1998 (c. 29) insert—

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Coroners and Justice Act 2009

Sentencing ranges

121

Allocation guidelines

122

Preparation or revision of guidelines in urgent cases

123

Proposals by Lord Chancellor or Court of Appeal

124

Duties of the court

Sentencing guidelines: duty of court

125

Determination of tariffs etc

126

Other functions of the Council

Resource implications of guidelines

127

Monitoring

128

Promoting awareness

129

Resources: effect of sentencing practice

130

Resources: effect of factors not related to sentencing

131

Duty to assess impact of policy and legislative proposals

132

Lord Chancellor's functions

Assistance by the Lord Chancellor

133

Entrenchment of Lord Chancellor’s functions

134

Miscellaneous and general

Abolition of existing sentencing bodies

135

Interpretation of this Chapter

136

Chapter 2 — Other provisions relating to sentencing

Driving disqualification

Extension of driving disqualification

137

Dangerous offenders

Dangerous offenders: terrorism offences (England and Wales)

138

Dangerous offenders: terrorism offences (Northern Ireland)

139

Confiscation orders

Appeals against certain confiscation orders (England and Wales)

140

Appeals against certain confiscation orders (Northern Ireland)

141

Part 5 — Miscellaneous criminal justice provisions

Commissioner for Victims and Witnesses

142

Implementation of E-Commerce and Services directives: penalties

143

Treatment of convictions in other member States etc

144

Transfer to Parole Board of functions under the Criminal Justice Act 1991

145

Retention of knives surrendered or seized (England and Wales)

146

Retention of knives surrendered or seized (Northern Ireland)

147

Security in tribunal buildings

148

Part 6 — Legal aid and other payments for legal services

Community Legal Service

Community Legal Service: pilot schemes

149

Excluded services: help in connection with business matters

150

Criminal Defence Service

Criminal Defence Service: information requests

151

Criminal Defence Service: enforcement of order to pay cost of representation

152

General

Statutory instruments relating to the Legal Services Commission

153