Coroners and Justice Act 2009

(9A) If the court directs under subsection (9) that evidence is to be given by live link, it may also make such provision in that direction as it could make under section 24(1A) in a special measures direction.

Video recorded evidence in chief: supplementary testimony

103

• (1) Section 27 of the Youth Justice and Criminal Evidence Act 1999 (video recorded evidence in chief) is amended as follows.

• (2) In subsection (5) (consequences of admitting video recording), for paragraph (b) substitute—

(b) the witness may not without the permission of the court give evidence in chief otherwise than by means of the recording as to any matter which, in the opinion of the court, is dealt with in the witness's recorded testimony.

• (3) In subsection (7) (giving permission for additional testimony)—

• (a) for “subsection (5)(b)(ii)” substitute “ subsection (5)(b) ”, and

• (b) in paragraph (a) (requirement of a material change of circumstances since the relevant time), omit from “if there” to “relevant time,”.

• (4) Omit subsection (8) (definition of “the relevant time”).

• (5) In subsection (9) (supplementary testimony by live link), for “subsection (5)(b)(ii)” substitute “ subsection (5)(b) ”.

Evidence of certain accused persons

Examination of accused through intermediary

104

• (1) After section 33B of the Youth Justice and Criminal Evidence Act 1999 (c. 23) insert—

(33BA) (1) This section applies to any proceedings (whether in a magistrates' court or before the Crown Court) against a person for an offence. (2) The court may, on the application of the accused, give a direction under subsection (3) if it is satisfied— (a) that the condition in subsection (5) is or, as the case may be, the conditions in subsection (6) are met in relation to the accused, and (b) that making the direction is necessary in order to ensure that the accused receives a fair trial. (3) A direction under this subsection is a direction that provides for any examination of the accused to be conducted through an interpreter or other person approved by the court for the purposes of this section (“an intermediary”). (4) The function of an intermediary is to communicate— (a) to the accused, questions put to the accused, and (b) to any person asking such questions, the answers given by the accused in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the accused or the person in question. (5) Where the accused is aged under 18 when the application is made the condition is that the accused's ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by the accused's level of intellectual ability or social functioning. (6) Where the accused has attained the age of 18 when the application is made the conditions are that— (a) the accused suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function, and (b) the accused is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court. (7) Any examination of the accused in pursuance of a direction under subsection (3) must take place in the presence of such persons as Criminal Procedure Rules or the direction may provide and in circumstances in which— (a) the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the accused and to communicate with the intermediary, (b) the jury (if there is one) are able to see and hear the examination of the accused, and (c) where there are two or more accused in the proceedings, each of the other accused is able to see and hear the examination of the accused. For the purposes of this subsection any impairment of eyesight or hearing is to be disregarded. (8) Where two or more legal representatives are acting for a party to the proceedings, subsection (7)(a) is to be regarded as satisfied in relation to those representatives if at all material times it is satisfied in relation to at least one of them. (9) A person may not act as an intermediary in a particular case except after making a declaration, in such form as may be prescribed by Criminal Procedure Rules, that the person will faithfully perform the function of an intermediary. (10) Section 1 of the Perjury Act 1911 (perjury) applies in relation to a person acting as an intermediary as it applies in relation to a person lawfully sworn as an interpreter in a judicial proceeding. (33BB) (1) The court may discharge a direction given under section 33BA(3) at any time before or during the proceedings to which it applies if it appears to the court that the direction is no longer necessary in order to ensure that the accused receives a fair trial (but this does not affect the power to give a further direction under section 33BA(3) in relation to the accused). (2) The court may vary (or further vary) a direction given under section 33BA(3) at any time before or during the proceedings to which it applies if it appears to the court that it is necessary for the direction to be varied in order to ensure that the accused receives a fair trial. (3) The court may exercise the power in subsection (1) or (2) of its own motion or on an application by a party. (4) The court must state in open court its reasons for— (a) giving, varying or discharging a direction under section 33BA(3), or (b) refusing an application for, or for the variation or discharge of, a direction under section 33BA(3), and, if it is a magistrates' court, it must cause those reasons to be entered in the register of its proceedings.

• (2) In the heading of Chapter 1A of Part 2 of that Act, after “live link” insert “ and intermediary ”.

Witnesses protected from cross-examination by accused in person

Age of child complainant

105

In section 35 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (child complainants and other child witnesses), in subsection (4)(a) for “17” substitute “ 18 ”.

Chapter 4 — Live links

Directions to attend through live link

106

• (1) The Crime and Disorder Act 1998 (c. 37) is amended as follows.

• (2) In section 57B (use of live link at preliminary hearings where accused is in custody), after subsection (6) add—

(7) The following functions of a magistrates' court under this section may be discharged by a single justice— (a) giving a live link direction under this section; (b) rescinding a live link direction before a preliminary hearing begins; and (c) requiring or permitting a person to attend by live link a hearing about a matter within paragraph (a) or (b).

• (3) In section 57C (use of live link at preliminary hearings where accused is at police station)—

• (a) after subsection (6) insert—

(6A) A live link direction under this section may not be given unless the court is satisfied that it is not contrary to the interests of justice to give the direction.

,

• (b) omit subsection (7) (no live link direction unless accused consents),

• (c) in subsection (8) (power to rescind live link direction before or during hearing), omit “before or”, and

• (d) in subsection (9) (representations about use of live link), omit paragraph (a) (and the “and” following it).

• (4) In section 57D (continued use of live link for sentencing hearing following a preliminary hearing)—

• (a) in subsection (2) (conditions for use of live link)—

• (i) omit paragraph (b) (but not the “and” following it), and

• (ii) in paragraph (c), for “it” to the end substitute “ the accused continuing to attend through the live link is not contrary to the interests of justice. ”, and

• (b) in subsection (3) (conditions for giving oral evidence by live link), omit paragraph (a) (and the “and” following it).

• (5) In section 57E (use of live link in sentencing hearings)—

• (a) in subsection (5) (conditions for giving live link direction), omit paragraph (a) (and the “and” following it), and

• (b) in subsection (7) (conditions for giving oral evidence by live link), omit paragraph (a) (and the “and” following it).

Answering to live link bail

107

• (1) The Police and Criminal Evidence Act 1984 (c. 60) is amended as follows.

• (2) In section 46ZA (persons granted live link bail)—

• (a) in subsection (3) (accused persons who answer to live link bail and are treated as in police detention)—

• (i) omit paragraph (a)(persons not intending to consent to live link direction),

• (ii) in paragraph (b), for “at any such time,” substitute “ at any time before the beginning of proceedings in relation to a live link direction under section 57C of the Crime and Disorder Act 1998 in relation to the accused person, ”,

• (iii) omit paragraph (c)(persons not giving consent during proceedings in relation to a live link direction) (but not the “or” following it), and

• (iv) in paragraph (d), for “any other reason” substitute “ any reason ”, and

• (b) in subsection (4) (effect of subsection (3) applying to a person), for “any of paragraphs (a) to (d) of subsection (3) apply” substitute “ paragraph (b) or (d) of subsection (3) applies ”.

• (3) In section 46A(power of arrest for failure to answer police bail), in subsection (1ZA) (such failure includes leaving police station without informing a constable that intend not to consent to live link direction), in paragraph (b) omit from “, without informing” to the end.

Searches of persons answering to live link bail

108

• (1) After section 54A of the Police and Criminal Evidence Act 1984 (c. 60) insert—

(54B) (1) A constable may search at any time— (a) any person who is at a police station to answer to live link bail; and (b) any article in the possession of such a person. (2) If the constable reasonably believes a thing in the possession of the person ought to be seized on any of the grounds mentioned in subsection (3), the constable may seize and retain it or cause it to be seized and retained. (3) The grounds are that the thing— (a) may jeopardise the maintenance of order in the police station; (b) may put the safety of any person in the police station at risk; or (c) may be evidence of, or in relation to, an offence. (4) The constable may record or cause to be recorded all or any of the things seized and retained pursuant to subsection (2). (5) An intimate search may not be carried out under this section. (6) The constable carrying out a search under subsection (1) must be of the same sex as the person being searched. (7) In this section “live link bail” means bail granted under Part 4 of this Act subject to the duty mentioned in section 47(3)(b). (54C) (1) Except as provided by subsections (2) and (3), a constable may retain a thing seized under section 54B until the time when the person from whom it was seized leaves the police station. (2) A constable may retain a thing seized under section 54B in order to establish its lawful owner, where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence. (3) If a thing seized under section 54B may be evidence of, or in relation to, an offence, a constable may retain it— (a) for use as evidence at a trial for an offence; or (b) for forensic examination or for investigation in connection with an offence. (4) Nothing may be retained for either of the purposes mentioned in subsection (3) if a photograph or copy would be sufficient for that purpose. (5) Nothing in this section affects any power of a court to make an order under section 1 of the Police (Property) Act 1897. (6) The references in this section to anything seized under section 54B include anything seized by a person to whom paragraph 27A of Schedule 4 to the Police Reform Act 2002 applies.

• (2) In section 46A of that Act (power of arrest for failure to answer to police bail), after subsection (1ZA) insert—

(1ZB) The reference in subsection (1) to a person who fails to attend at a police station at the time appointed for the person to do so includes a reference to a person who— (a) attends at a police station to answer to bail granted subject to the duty mentioned in section 47(3)(b), but (b) refuses to be searched under section 54B.

• (3) In Part 3 of Schedule 4 to the Police Reform Act 2002 (c. 30) (powers exercisable by detention officers), after paragraph 27 insert—

(27A) (1) Where a designation applies this paragraph to any person, that person has the powers of a constable under section 54B of the 1984 Act (searches of persons answering to live link bail)— (a) to carry out a search of any person attending a police station in the relevant police area; and (b) to seize or retain articles found on such a search. (2) Anything seized by a person under the power conferred by sub-paragraph (1) must be delivered to a constable as soon as practicable and in any case before the person from whom the thing was seized leaves the police station.

Use of live link in certain enforcement hearings

109

• (1) After section 57E of the Crime and Disorder Act 1998 (c. 37) insert—

(57F) (1) This section applies where— (a) a confiscation order is made against a person; and (b) the amount required to be paid under the order is not paid when it is required to be paid. (2) If it appears to the court before which an enforcement hearing relating to the confiscation order is to take place that it is likely that the person will be held in custody at the time of the hearing, the court may give a live link direction under this section in relation to that hearing. (3) A live link direction under this section is a direction requiring the person, if the person is being held in custody at the time of the hearing, to attend it through a live link from the place at which the person is being held. (4) Such a direction— (a) may be given by the court of its own motion or on an application by a party; and (b) may be given in relation to all subsequent enforcement hearings before the court or to such hearing or hearings as may be specified or described in the direction. (5) The court may rescind a live link direction under this section at any time before or during a hearing to which it relates. (6) The court may not give or rescind a live link direction under this section (whether at a hearing or otherwise) unless the parties to the proceedings have been given the opportunity to make representations. (7) If a hearing takes place in relation to the giving or rescinding of such a direction, the court may require or permit any party to the proceedings who wishes to make representations in relation to the giving or rescission of a live link direction under this section to do so through a live link. (8) The person may not give oral evidence while attending a hearing through a live link by virtue of this section unless the court is satisfied that it is not contrary to the interests of justice for the person to give it that way. (9) If in a case where it has power to do so a court decides not to give a live link direction under this section, it must— (a) state in open court its reasons for not doing so; and (b) cause those reasons to be entered in the register of its proceedings. (10) The following functions of a magistrates' court under this section may be discharged by a single justice— (a) giving a live link direction under this section; (b) rescinding a live link direction before a preliminary hearing begins; and (c) requiring or permitting a person to attend by live link a hearing about a matter within paragraph (a) or (b).

• (2) In section 57A of that Act (introductory)—

• (a) in subsection (1)—

• (i) in paragraph (a), after “an offence” insert “ and enforcement hearings relating to confiscation orders ”, and

• (ii) in paragraph (b), for “and 57E” substitute “ , 57E and 57F ”, and

• (b) in subsection (3), at the appropriate place insert—

“confiscation order” means an order made under— (a) section 71 of the Criminal Justice Act 1988; (b) section 2 of the Drug Trafficking Act 1994; or (c) section 6 of the Proceeds of Crime Act 2002;”, and “ “enforcement hearing” means a hearing under section 82 of the Magistrates' Courts Act 1980 to consider the issuing of a warrant of committal or to inquire into a person's means;

.

• (3) In the title of Part 3A of that Act, for “and Sentencing” substitute “ , Sentencing and other ”.

Direction of registrar for appeal hearing by live link

110

In section 31A of the Criminal Appeal Act 1968 (c. 19) (powers of the Court of Appeal under Part 1 of that Act that are exercisable by the registrar), in subsection (2), after paragraph (a) insert—

(aa) to give a live link direction under section 22(4);

.

Chapter 5 — Miscellaneous

Evidence by video recording

Effect of admission of video recording

111

In section 138 of the Criminal Justice Act 2003 (c. 44) (video evidence: further provisions), omit subsection (1) (no evidence in chief on matter dealt with adequately in recorded account).

Evidence of previous complaints

Admissibility of evidence of previous complaints

112

In section 120(7) of the Criminal Justice Act 2003 (third condition for admitting previous statement of witness as evidence of matter stated of which oral evidence of witness would be admitted), omit paragraph (d) (requirement that complaint be made as soon as could reasonably be expected after the alleged conduct).

Immunity etc

Powers in respect of offenders who assist investigations and prosecutions

113

• (1) Chapter 2 of Part 2 of the Serious Organised Crime and Police Act 2005 (c. 15) is amended as follows.

• (2) In section 71 (assistance by offender: immunity from prosecution), in subsection (1) (immunity notice)—

• (a) for “any offence” substitute “ an indictable offence or an offence triable either way ”, and

• (b) after “prosecution”, in second place it occurs, insert “ for any offence ”.

• (3) In subsection (4) of that section (specified prosecutors)—

• (a) after paragraph (d) insert—

(da) the Financial Services Authority; (db) the Secretary of State for Business, Innovation and Skills, acting personally;

, and

• (b) in paragraph (e) for “(d)” substitute “ (db) ”.

• (4) After subsection (6) of that section insert—

(6A) In exercising the power to designate a prosecutor under subsection (4)(e), the Financial Services Authority and the Secretary of State for Business, Innovation and Skills may each designate only— (a) one prosecutor (a “chief prosecutor”) to act at any one time, and (b) an alternative prosecutor (a “deputy prosecutor”) to act as a specified prosecutor— (i) when the chief prosecutor is unavailable, or (ii) during any period when no chief prosecutor is designated. (6B) Paragraph 5(1) of Schedule 1 to the Financial Services and Markets Act 2000 (arrangements for discharging functions of the Authority) does not apply to the exercise of the powers conferred on the Financial Services Authority under this Chapter. (6C) An immunity notice may be given by the Financial Services Authority, the Secretary of State for Business, Innovation and Skills or a prosecutor designated by either of them under subsection (4)(e), only with the consent of the Attorney General.

• (5) In section 72 (assistance by offender: undertakings as to use of evidence), in subsection (1) (restricted use undertaking) for “any offence” substitute “ an indictable offence or an offence triable either way ”.

• (6) In subsection (2)(a) of that section, at the beginning insert “ any ”.

• (7) After section 75A insert—

(75B) (1) The Attorney General may issue guidance to specified prosecutors about the exercise by them of any of their powers under sections 71 to 74. (2) The Attorney General may from time to time revise any guidance issued under this section. (3) In this section “specified prosecutor” is to be construed in accordance with section 71.

Bail

Bail: risk of committing an offence causing injury

114

• (1) Part 1 of Schedule 1 to the Bail Act 1976 (c. 63) (defendants accused or convicted of imprisonable offences) is amended as follows.

• (2) After paragraph 6 insert—

(6ZA) If the defendant is charged with murder, the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant.

• (3) In paragraph 9 (matters to which court is to have regard when taking decisions about granting bail)—

• (a) after “6A” insert “ or of the opinion mentioned in paragraph 6ZA ”, and

• (b) after paragraph (d) insert—

(e) if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the risk that the defendant may do so by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant,

.

Bail decisions in murder cases to be made by Crown Court judge

115

• (1) A person charged with murder may not be granted bail except by order of a judge of the Crown Court.

• (2) Subsections (3) and (4) apply where a person appears or is brought before a magistrates' court charged with murder.

• (3) A judge of the Crown Court must make a decision about bail in respect of the person as soon as reasonably practicable and, in any event, within the period of 48 hours beginning with the day after the day on which the person appears or is brought before the magistrates' court.

• (4) The magistrates' court must, if necessary for the purposes of subsection (3), commit the person to custody to be brought before a judge of the Crown Court.

• (5) For the purposes of subsections (3) and (4), it is immaterial whether the magistrates' court—

• (a) sends the person to the Crown Court for trial, or

• (b) adjourns proceedings under section 52(5) of the Crime and Disorder Act 1998 (c. 37) and remands the person.

• (6) In this section a reference to a person charged with murder includes a person charged with murder and one or more other offences.

• (7) For the purposes of subsection (3), when calculating the period of 48 hours Saturdays, Sundays, Christmas Day, Good Friday and bank holidays are to be excluded.

Unsigned indictments

Indictment of offenders

116

• (1) In the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36)—

• (a) in section 2 (procedure for indictment of offenders), in subsection (1) omit—

• (i) from “, and where” to “the bill,”, and

• (ii) from “Provided” to the end,

• (b) in subsection (3) of that section—

• (i) after “indictment”, in first place it occurs, insert “ has been ”, and

• (ii) omit “has been signed by the proper officer of the court”,

• (c) after subsection (6) of that section, insert—

(6ZA) Where a bill of indictment is preferred in accordance with subsections (1) and (2), no objection to the indictment may be taken after the commencement of the trial by reason of any failure to observe any rules under subsection (6). (6ZB) For the purposes of subsection (6ZA) the trial commences at the time when a jury is sworn to consider the issue of guilt or whether the accused did the act or made the omission charged, or, if the court accepts a plea of guilty before the time when a jury is sworn, when that plea is accepted. (6ZC) The references in subsection (6ZB) to the time when a jury is sworn include the time when that jury would be sworn but for the making of an order under Part 7 of the Criminal Justice Act 2003.

, and

• (d) in paragraph 1 of Schedule 2 (consequential adaptations of enactments)—

• (i) for “respectively references” substitute “ reference ”, and

• (ii) omit “and signing”.

• (2) In section 82 of the Supreme Court Act 1981 (c. 54) (duties of officers of Crown Court), in subsection (1) omit “the signing of indictments,”.

Detention of terrorist suspects

Detention of persons under section 41 of the Terrorism Act 2000

117

• (1) Section 36 of the Terrorism Act 2006 (c. 11) (review of terrorism legislation) is amended in accordance with subsections (2) and (3).

• (2) After subsection (2) insert—

(2A) A review under subsection (2) may, in particular, consider whether— (a) the requirements imposed by or under Part 1 or 2, or paragraph 37, of Schedule 8 to the Terrorism Act 2000 (detention of suspected terrorists), and (b) the requirements imposed by any relevant code of practice under section 66 of the Police and Criminal Evidence Act 1984 or Article 65 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)), have been complied with in relation to persons detained under section 41 of the Terrorism Act 2000 pursuant to a warrant of further detention issued under Part 3 of Schedule 8 to that Act.

• (3) In subsection (3) for “That person” substitute “ The person appointed under subsection (1) ”.

• (4) Section 51 of the Police Reform Act 2002 (c. 30) (independent custody visitors for places of detention) is amended in accordance with subsections (5) to (8).

• (5) After subsection (1) insert—

(1A) Every police authority must ensure— (a) that the arrangements made by it require independent custody visitors to prepare and submit to it a report of any visit made under the arrangements to a suspected terrorist detainee, and (b) that a copy of any report submitted under paragraph (a) is given to the person appointed under section 36(1) of the Terrorism Act 2006 (independent reviewer of terrorism legislation).

• (6) In subsection (3), after paragraph (b) insert—

(ba) in relation to suspected terrorist detainees, to listen to the audio recordings and view the video recordings (with or without sound) of interviews with those detainees which have taken place during their detention there and which were conducted by a constable;

.

• (7) After that subsection insert—

(3A) The arrangements may include provision for access to the whole or part of an audio or video recording of an interview of the kind mentioned in subsection (3)(ba) to be denied to independent custody visitors if— (a) it appears to an officer of or above the rank of inspector that there are grounds for denying access at the time it is requested; (b) the grounds are grounds specified for the purposes of paragraph (a) in the arrangements; and (c) the procedural requirements imposed by the arrangements in relation to a denial of access to such recordings are complied with. (3B) Grounds are not to be specified in any arrangements for the purposes of subsection (3A)(a) unless they are grounds for the time being set out for the purposes of this subsection in the code of practice issued by the Secretary of State under subsection (6).

• (8) For subsection (10) substitute—

(10) In this section— - “detainee”, in relation to arrangements made under this section, means a person detained in a police station in the police area of the police authority; - “suspected terrorist detainee” means a detainee detained under section 41 of the Terrorism Act 2000.

Part 4 — Sentencing

Chapter 1 — Sentencing Council for England and Wales

Sentencing Council for England and Wales

Sentencing Council for England and Wales

118

• (1) There is to be a Sentencing Council for England and Wales.

• (2) Schedule 15 makes provision about the Council.

Annual report

119

• (1) The Council must, as soon as practicable after the end of each financial year, make to the Lord Chancellor a report on the exercise of the Council's functions during the year.

• (2) The Lord Chancellor must lay a copy of the report before Parliament.

• (3) The Council must publish the report once a copy has been so laid.

• (4) Sections 128(3), 130 and 131 make further provision about the content of reports under this section.

• (5) If section 118 comes into force after the beginning of a financial year, the first report may relate to a period beginning with the day on which that section comes into force and ending with the end of the next financial year.

Guidelines

Sentencing guidelines

120

• (1) In this Chapter “sentencing guidelines” means guidelines relating to the sentencing of offenders.

• (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;

• (c) the impact of sentencing decisions on victims of offences;

• (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;

• (c) any rule of law as to the totality of sentences.

• (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

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

Determination of tariffs etc

126

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

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

• (c) the resources required for the provision of youth justice services.

• (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;

• (c) the effect of the guidelines on the promotion of consistency in sentencing;

• (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;

• (c) the operation and effect of guidelines under this Chapter.

• (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;

• (c) the resources required for the provision of youth justice services.

Resources: effect of factors not related to sentencing

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);

• (c) patterns of re-offending;

• (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

• (c) youth rehabilitation orders (within the meaning given by section 173 of that Code).

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;

• (c) the resources required for the provision of youth justice services.

• (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;

• (c) a Measure or Act of the National Assembly for Wales or subordinate legislation made under such a Measure or Act.

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

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

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

• (c) at the end add—

(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

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

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