Legal Aid, Sentencing and Punishment of Offenders Act 2012

(32A) (1) Where P— (a) is a life prisoner in respect of whom a minimum term order has been made, and (b) is liable to removal from the United Kingdom, the Secretary of State may remove P from prison under this section at any time after P has served the relevant part of the sentence (whether or not the Parole Board has directed P's release under section 28). (2) But if P is serving two or more life sentences— (a) this section does not apply to P unless a minimum term order has been made in respect of each of those sentences; and (b) the Secretary of State may not remove P from prison under this section until P has served the relevant part of each of them. (3) If P is removed from prison under this section— (a) P is so removed only for the purpose of enabling the Secretary of State to remove P from the United Kingdom under powers conferred by— (i) Schedule 2 or 3 to the Immigration Act 1971, or (ii) section 10 of the Immigration and Asylum Act 1999, and (b) so long as remaining in the United Kingdom, P remains liable to be detained in pursuance of the sentence. (4) So long as P, having been removed from prison under this section, remains in the United Kingdom but has not been returned to prison, any duty or power of the Secretary of State under section 28 or 30 is exercisable in relation to P as if P were in prison. (5) In this section— - “liable to removal from the United Kingdom” has the meaning given by section 259 of the Criminal Justice Act 2003; - “the relevant part” has the meaning given by section 28. (32B) (1) This section applies if P, having been removed from prison under section 32A, is removed from the United Kingdom. (2) If P enters the United Kingdom— (a) P is liable to be detained in pursuance of the sentence from the time of P's entry into the United Kingdom; (b) if no direction was given by the Parole Board under subsection (5) of section 28 before P's removal from prison, that section applies to P; (c) if such a direction was given before that removal, P is to be treated as if P had been recalled to prison under section 32. (3) A person who is liable to be detained by virtue of subsection (2)(a) is, if at large, to be taken for the purposes of section 49 of the Prison Act 1952 (persons unlawfully at large) to be unlawfully at large. (4) Subsection (2)(a) does not prevent P's further removal from the United Kingdom.

Application and transitional provision

Application and transitional etc provision

120

Schedule 15 (application of sections 108 to 119 and transitional and transitory provision) has effect.

Simplification of existing transitional provisions

Simplification of existing transitional provisions

121

• (1) Chapter 6 of Part 12 of the Criminal Justice Act 2003 (“the 2003 Act”) is to apply to any person serving a sentence for an offence committed before 4 April 2005 (whenever that sentence was or is imposed).

• (2) Section 258 of the 2003 Act (release of fine defaulters and contemnors) is to apply to any person who was, before 4 April 2005, committed to prison or to be detained under section 108 of the Powers of Criminal Courts (Sentencing) Act 2000—

• (a) in default of payment of a sum adjudged to be paid by a conviction, or

• (b) for contempt of court or any kindred offence.

• (3) In accordance with subsections (1) and (2)—

• (a) the repeal of Part 2 of the Criminal Justice Act 1991 which is made by section 303(a) of the 2003 Act has effect in relation to any person mentioned in those subsections;

• (b) paragraphs 15 to 18, 19(a), (c) and (d), 20, 22 to 28 and 30 to 34 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2008 (S.I. 2005/950) (which relate to the coming into force of provisions of Chapter 6 of Part 12 of the 2003 Act) are revoked.

• (4) Section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 (extension of periods in custody and on licence in the case of certain sexual offences) is repealed.

• (5) Schedule 16 (transitional and other provision consequential on this section) has effect.

• (6) Schedule 17 (amendments to the 2003 Act restating the effect of certain transitional and other provision relating to the release and recall of prisoners) has effect.

CHAPTER 5 — Dangerous offenders

Life sentence for second listed offence

122

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Schedule 19 (life sentence for second listed offence: consequential and transitory provision) has effect.

Abolition of certain sentences for dangerous offenders

123

In Chapter 5 of Part 12 of the Criminal Justice Act 2003 (sentencing: dangerous offenders) omit—

• (a) section 225(3) to (4) (imprisonment for public protection for serious offences),

• (b) section 226(3) to (4) (detention for public protection for serious offences),

• (c) section 227 (extended sentence for certain violent or sexual offences: persons 18 or over), and

• (d) section 228 (extended sentence for certain violent or sexual offences: persons under 18).

New extended sentences

124

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

New extended sentences: release on licence etc

125

• (1) Chapter 6 of Part 12 of the Criminal Justice Act 2003 (sentencing: release and recall) is amended as follows.

• (2) In section 244(1) (duty to release prisoners on licence) (as amended by Schedule 14 to this Act) after “243A” insert “ , 246A ”.

• (3) After section 246 insert—

(246A) (1) This section applies to a prisoner (“P”) who is serving an extended sentence imposed under section 226A or 226B. (2) It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the requisite custodial period for the purposes of this section unless either or both of the following conditions are met— (a) the appropriate custodial term is 10 years or more; (b) the sentence was imposed in respect of an offence listed in Parts 1 to 3 of Schedule 15B or in respect of offences that include one or more offences listed in those Parts of that Schedule. (3) If either or both of those conditions are met, it is the duty of the Secretary of State to release P on licence in accordance with subsections (4) to (7). (4) The Secretary of State must refer P's case to the Board— (a) as soon as P has served the requisite custodial period, and (b) where there has been a previous reference of P's case to the Board under this subsection and the Board did not direct P's release, not later than the second anniversary of the disposal of that reference. (5) It is the duty of the Secretary of State to release P on licence under this section as soon as— (a) P has served the requisite custodial period, and (b) the Board has directed P's release under this section. (6) The Board must not give a direction under subsection (5) unless— (a) the Secretary of State has referred P's case to the Board, and (b) the Board is satisfied that it is no longer necessary for the protection of the public that P should be confined. (7) It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the appropriate custodial term, unless P has previously been released on licence under this section and recalled under section 254 (provision for the release of such persons being made by section 255C). (8) For the purposes of this section— - “appropriate custodial term” means the term determined as such by the court under section 226A or 226B (as appropriate); - “the requisite custodial period” means— 1. in relation to a person serving one sentence, two-thirds of the appropriate custodial term, and 2. in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2).

• (4) Schedule 20 (release of new extended sentence prisoners: consequential amendments of Chapter 6 of Part 12 of the Criminal Justice Act 2003) has effect.

Sections 123 to 125: consequential and transitory provision

126

Schedule 21 (abolition of certain sentences for dangerous offenders and new extended sentences: consequential and transitory provision) has effect.

Dangerous offenders subject to service law etc

127

Schedule 22 (dangerous offenders subject to service law etc) has effect.

Power to change test for release on licence of certain prisoners

128

• (1) The Secretary of State may by order provide that, following a referral by the Secretary of State of the case of a discretionary release prisoner, the Parole Board—

• (a) must direct the prisoner's release if it is satisfied that conditions specified in the order are met, or

• (b) must do so unless it is satisfied that conditions specified in the order are met.

• (2) “Discretionary release prisoner” means—

• (a) an IPP prisoner,

• (b) an extended sentence prisoner,

• (bza) a prisoner whose case has been referred to the Parole Board under section 244ZB of the Criminal Justice Act 2003 (power to refer to Parole Board in place of automatic release),

• (ba) a section 236A prisoner,

• (bb) a terrorist prisoner, eligible for discretionary release or

• (c) a person , other than a terrorist prisoner, eligible for discretionary release to whom paragraph 4, 15, 24 or 27 of Schedule 20B to the Criminal Justice Act 2003 (determinate sentence prisoners subject to transitional provisions) applies.

• (3) An order under this section may—

• (a) amend section 28 of the Crime (Sentences) Act 1997 (duty to release IPP prisoners and others),

• (aza) amend section 28ZA of the Crime (Sentences) Act 1997 (public protection decisions), as that section applies for the purposes of section 28 or 32 of that Act,

• (aa) amend section 32 of the Crime (Sentences) Act 1997 (recall of IPP prisoners and others while on licence and further release),

• (aaza) amend section 237A of the Criminal Justice Act 2003 (public protection decisions), as that section applies for the purposes of a provision of that Act mentioned in any of paragraphs (aaa) to (c) below,

• (aaa) amend section 244ZC of the Criminal Justice Act 2003 (proceedings following reference under section 244ZB of that Act),

• (ab) amend section 244A of the Criminal Justice Act 2003 (release on licence of section 236A prisoners),

• (b) amend section 246A of the Criminal Justice Act 2003 (release on licence of extended sentence prisoners),

• (ba) amend section 247A of the Criminal Justice Act 2003 (restricted eligibility for release on licence of terrorist prisoners);

• (c) amend paragraph 6, 15, 25 or 28 of Schedule 20B to the Criminal Justice Act 2003 (release on licence of determinate sentence prisoners subject to transitional provisions),

• (d) make provision in relation to any person whose case is disposed of by the Parole Board on or after the day on which the regulations come into force (even if the Secretary of State referred that person's case to the Board before that day),

• (e) make different provision in relation to each of the categories of discretionary release prisoner mentioned in subsection (2), and

• (f) include consequential provision.

• (4) An order under this section is to be made by statutory instrument.

• (5) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

• (6) In this section—

• “extended sentence prisoner” means a prisoner , other than one to whom section 247A of the Criminal Justice Act 2003 applies, who is serving a sentence under section 226A or 226B of the Criminal Justice Act 2003 or section 254, 266 or 279 of the Sentencing Code (including one imposed as a result of section 219A or 221A of the Armed Forces Act 2006);

• “IPP prisoner” means a prisoner who is serving one or more of the following sentences and is not serving any other life sentence—a sentence of imprisonment for public protection or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 (including one imposed as a result of section 219 of the Armed Forces Act 2006);a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 (including one imposed as a result of section 221 of the Armed Forces Act 2006);

• “life sentence” has the same meaning as in section 34 of the Crime (Sentences) Act 1997;

• “section 236A prisoner” means a prisoner , other than one to whom section 247A of the Criminal Justice Act 2003 applies, who is serving a sentence under section 236A of the Criminal Justice Act 2003 or section 265 or 278 of the Sentencing Code (including one imposed as a result of section 224A of the Armed Forces Act 2006);

• “terrorist prisoner eligible for discretionary release” means a prisoner to whom section 247A (3) to (5) of the Criminal Justice Act 2003 applies (or would apply but for the prisoner‘s release on licence).

CHAPTER 6 — Prisoners etc

Employment in prisons: deductions etc from payments to prisoners

129

• (1) In section 47 of the Prison Act 1952 (power of Secretary of State to make rules for the regulation and management of prisons etc), in subsection (1) omit “employment,”.

• (2) After that subsection insert—

(1A) The Secretary of State may make rules about— (a) the employment of persons who are required to be detained in secure training centres or young offender institutions; (b) the making of payments to such persons in respect of work or other activities undertaken by them, or in respect of their unemployment.

• (3) In that section, after subsection (5) insert—

(6) Rules made under this section may— (a) make different provision for different cases; (b) contain supplementary, incidental, transitional, transitory or saving provision.

• (4) After that section insert—

(47A) (1) The Secretary of State may make rules about— (a) the employment of prisoners; (b) the making of payments to prisoners in respect of work or other activities undertaken by them, or in respect of their unemployment. (2) The Secretary of State may make rules about the making, by the governor of the prison in which a prisoner is detained or the Secretary of State, of reductions in payments to the prisoner in respect of— (a) work undertaken by the prisoner, (b) other activities undertaken by the prisoner, or (c) the prisoner's unemployment, where those payments are made by or on behalf of the Secretary of State. (3) Rules under subsection (2) may make provision, in a case where reductions are made by the governor, for amounts generated by the reductions to be used by the governor— (a) for making payments for the benefit of victims or communities; (b) for making payments for the purposes of the rehabilitation of offenders; (c) for other prescribed purposes. (4) Rules under subsection (2) may make provision, in a case where reductions are made by the governor— (a) for amounts generated by the reductions to be used by the governor for making payments into an account of a prescribed kind; (b) for the administration of the account; (c) for the making of payments out of the account to a prisoner before or after the prisoner's release on fulfilment by the prisoner of prescribed conditions. (5) Rules under subsection (2) that make provision for amounts generated by reductions to be used to make payments may provide for such payments to be made after the deduction of amounts of a prescribed description. (6) The Secretary of State may make rules about the making of deductions from, or the imposition of levies on, payments to a prisoner in respect of— (a) work undertaken by the prisoner, (b) other activities undertaken by the prisoner, or (c) the prisoner's unemployment, where those payments are made otherwise than by or on behalf of the Secretary of State. (7) Rules under subsection (6)— (a) may provide for deductions to be made, or levies to be imposed, by the governor of the prison or by the Secretary of State; (b) must provide that, if the governor makes the deductions or imposes the levies, the governor must pay amounts generated to the Secretary of State. (8) The Secretary of State may make rules providing— (a) for the making of payments by the Secretary of State into an account of a prescribed kind; (b) for the administration of the account; (c) for the making of payments out of the account to a prisoner before or after the prisoner's release on fulfilment by the prisoner of prescribed conditions. (9) Rules under this section may— (a) make different provision for different cases; (b) contain supplementary, incidental, transitional, transitory or saving provision. (10) In this section references to the governor of a prison include— (a) the director of a contracted out prison within the meaning of Part 4 of the Criminal Justice Act 1991, and (b) an officer of a prison who may exercise the functions of a governor in accordance with rules under section 47 or this section. (11) In this section— - “prescribed” means prescribed by rules under this section; - “prisoner” includes a prisoner on temporary release.

• (5) In section 66(4) of the Criminal Justice Act 1967 (procedure applying to rules under section 47 of the Prison Act 1952), for “of the said Act of 1952” substitute “ or section 47A of the Prison Act 1952 ”.

• (6) In section 127(6) of the Criminal Justice and Public Order Act 1994 (inducements to prison officers to contravene prison rules: meaning of “prison rules”), after “section 47” insert “ or 47A ”.

• (7) In section 4 of the Prisoners' Earnings Act 1996 (interpretation)—

• (a) omit subsection (2) (application of the Act to England and Wales), and

• (b) in subsection (3) (application of the Act to Scotland), for “In the application of this Act to Scotland” substitute “ In this Act ”.

• (8) In section 5 of that Act (short title, commencement and extent), for subsection (3) substitute—

(3) This Act extends to Scotland only.

• (9) In section 45(2) of the National Minimum Wage Act 1998 (exclusion for prisoners doing work in pursuance of prison rules: interpretation), in paragraph (a) of the definition of “prison rules”, after “section 47” insert “ or 47A ”.

• (10) Before the coming into force of section 59 of the Criminal Justice and Court Services Act 2000 (abolition of power to provide remand centres), section 47(1A) of the Prison Act 1952 has effect as if it referred also to persons required to be detained in remand centres.

• (11) Before the coming into force of section 61 of the Criminal Justice and Court Services Act 2000 (abolition of sentences of detention in a young offender institution, custody for life etc)—

• (a) section 47(1A) of the Prison Act 1952 has effect as if the references to persons required to be detained in young offender institutions were to persons aged under 18 required to be so detained, and

• (b) section 47A of that Act has effect as if—

• (i) “prison” included a young offender institution, and

• (ii) “prisoner” included a person aged 18 or over who is required to be detained in a young offender institution.

• (12) The Secretary of State may make such payments to such persons as the Secretary of State considers appropriate in connection with measures that appear to the Secretary of State to be intended to—

• (a) rehabilitate offenders,

• (b) prevent re-offending, or

• (c) limit the impact of crime.

• (13) In making payments under subsection (12), the Secretary of State must have regard to the sums that have been made available to, or received by, the Secretary of State by virtue of rules under section 47A of the Prison Act 1952 (reductions, deductions and levies in respect of payments to prisoners etc.).

Transfer of prisoners: prosecution of other offences

130

In the Repatriation of Prisoners Act 1984, after section 3 insert—

(3A) (1) This section applies where— (a) a person has been transferred into Great Britain under a warrant under section 1, and (b) the international arrangements in accordance with which the person has been transferred contain a speciality provision. (2) The person must not, unless a condition in subsection (3) is met— (a) be prosecuted for any offence committed before the departure of that person from the country or territory from which that person has been transferred, or (b) be detained or otherwise subjected to any restriction of liberty for any offence committed before the departure of that person from the country or territory from which that person has been transferred, other than the offence in respect of which the person has been transferred. (3) For the purposes of subsection (2), the conditions are as follows— (a) the person has consented to the transfer; (b) the offence is an offence which is not punishable with imprisonment or another form of detention; (c) the offence is an offence in respect of which the person will not be detained in connection with the person's trial, sentence or appeal; (d) the person is given an opportunity to leave Great Britain and— (i) the person does not do so before the end of the permitted period, or (ii) if the person does so before the end of the permitted period, the person subsequently returns to Great Britain; (e) after the transfer has taken place, the person has made a renunciation of the application of subsection (2) to the offence; (f) the appropriate authority of the country or territory from which the person has been transferred consents to the prosecution of the offence. (4) For the purpose of subsection (3)(d) the “permitted period” is 45 days starting with the day on which the person's sentence ends. (5) For the purpose of subsection (3)(e) a renunciation must be made before a court before which the person may be prosecuted for that offence. (6) In this section a “speciality provision” means a provision preventing or limiting the prosecution, detention or other restriction of liberty of the person (“P”) for any offence committed before the departure of P from the country or territory from which P has been transferred, other than for the offence in respect of which P has been transferred.

Transit of prisoners

131

• (1) In the Repatriation of Prisoners Act 1984, after section 6 insert—

(6A) (1) The relevant Minister may issue a transit order where— (a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Islands of persons to whom subsection (2) applies; and (b) the relevant Minister has received a request from the appropriate authority of that country or territory in accordance with those arrangements for the transit of a person to whom subsection (2) applies through a part of Great Britain. (2) A person falls within this subsection if— (a) that person is for the time being required to be detained in a prison, a hospital or any other institution either— (i) by virtue of an order made in the course of the exercise by a court or tribunal in a country or territory outside the British Islands of its criminal jurisdiction; or (ii) by virtue of any provisions of the law of such a country or territory which are similar to any of the provisions of this Act; and (b) except in a case where a transit request is made in the circumstances described in section 6D (1), that person is present in a country or territory outside the British Islands. (3) The relevant Minister may issue a transit order where— (a) international arrangements apply to any of the Channel Islands or the Isle of Man which provide for the transfer between that island and a country or territory outside the British Islands of persons to whom subsection (4) applies; and (b) the relevant Minister has received a request from the appropriate authority of that island for the transit of a person to whom subsection (4) applies through a part of Great Britain. (4) A person falls within this subsection if— (a) that person is for the time being required to be detained in a prison, a hospital or any other institution either— (i) by virtue of an order made in the course of the exercise of its criminal jurisdiction by a court or tribunal in the island from which the transit request is made; or (ii) by virtue of any provisions of the law of that island which are similar to any of the provisions of this Act; and (b) except in a case where a transit request is made in the circumstances described in section 6D(1), that person is present in that island. (5) Terms used in subsection (2)(a) or (4)(a) have the same meaning as in section 1(7). (6) In this section and sections 6B, 6C and 6D “transit order” means an order issued by the relevant Minister, in respect of a person who has been the subject of a request within subsection (1)(b) or (3)(b), which authorises the detention of that person in any part of Great Britain at any time when that person is in transit. (7) In subsection (6) “detention” includes detention while the person is being taken from one place to another place within Great Britain. (8) A person may be detained pursuant to a transit order only for as long as is reasonable and necessary to allow the transit to take place. (9) In this section and section 6B “relevant Minister” means— (a) the Scottish Ministers, in a case where it is proposed that the person who is the subject of a request under subsection (1)(b) or (3)(b) will, whilst in transit— (i) be present only in Scotland, or (ii) arrive in Scotland before being taken to another part of Great Britain; (b) the Secretary of State, in any other case. (10) For the purposes of this section and sections 6B and 6C a person who is the subject of a transit order is “in transit” at any time during the period beginning with the arrival of that person in Great Britain and ending with the removal of that person from Great Britain. (6B) (1) A person who is the subject of a transit order is deemed to be in the legal custody of the relevant Minister at any time when that person is in transit. (2) A constable may for the purposes of a transit order detain a person who is the subject of that order. (3) The relevant Minister may, from time to time, designate any person as a person who is for the time being authorised for the purposes of a transit order to detain a person under the order. (4) A person authorised under subsection (3) has all the powers, authority, protection and privileges of a constable in any part of Great Britain in which the person who is the subject of the transit order is for the time being. (5) If a person who is the subject of a transit order escapes or is unlawfully at large, that person may be arrested without warrant by a constable. (6) A constable may search a person who is the subject of a transit order, and any item in the possession of that person, for any item which that person might use— (a) to cause physical injury to that person or to any other person; or (b) to assist that person to escape from detention. (7) The power conferred by subsection (6) does not authorise a constable to require a person to remove any clothing other than an outer coat, jacket, headgear or gloves. (8) The power conferred by subsection (6) includes power to use reasonable force where necessary. (9) A constable searching a person in the exercise of the power conferred by subsection (6) may seize any item found if the constable has reasonable grounds for believing that the person searched might use the item — (a) to cause physical injury to that person or to any other person; or (b) to assist that person to escape from detention. (10) Any item seized from a person under subsection (9) may be retained while that person is in transit. (11) In this section “constable” means— (a) any person who is a constable in any part of Great Britain or who has, under any enactment (including subsection (4) above), the powers of a constable in any part of Great Britain, or (b) any person who is a prison officer within the meaning of section 117(1) of the Criminal Justice and Public Order Act 1994. (12) A person who is a constable by virtue of subsection (11)(a) has, for the purposes of section 6A, this section and section 6C, all the powers, authority, protection and privileges of a constable in any part of Great Britain in which a person who is the subject of a transit order is for the time being. (6C) (1) Where the Scottish Ministers issue a transit order and it is proposed that the person who is the subject of the order will be taken to a part of Great Britain other than Scotland whilst in transit, they must notify the Secretary of State. (2) The Scottish Ministers need not notify the Secretary of State where the Secretary of State has agreed in writing to the transit order. (3) Unless the Secretary of State agrees in writing to the transit order, that order authorises the detention of the person subject to it in Scotland only. (4) But where the person escapes or is unlawfully at large, the order also authorises— (a) the arrest of the person under section 6B(5) in a part of Great Britain other than Scotland, and (b) the detention of the person in that part by a constable (within the meaning of that section) for the purpose of taking the person to Scotland. (5) Where the Secretary of State issues a transit order and it is proposed that the person who is the subject of the order will be taken to Scotland whilst in transit, the Secretary of State must notify the Scottish Ministers. (6) The Secretary of State need not notify the Scottish Ministers where the Scottish Ministers have agreed in writing to the transit order. (7) Unless the Scottish Ministers agree in writing to the transit order, that order authorises the detention of the person subject to it only in a part of Great Britain other than Scotland. (8) But where the person escapes or is unlawfully at large, the order also authorises— (a) the arrest of the person under section 6B(5) in Scotland, and (b) the detention of the person in Scotland by a constable (within the meaning of that section) for the purpose of taking the person to a part of Great Britain other than Scotland. (6D) (1) This section applies where— (a) a person is being transferred between two countries or territories outside the United Kingdom in accordance with international arrangements between those two countries or territories providing for the transfer of persons within section 6A(2)(a) or (4)(a), (b) the United Kingdom is a party to international arrangements of the kind mentioned in section 6A(1)(a) with at least one of those countries or territories such that the country or territory can make a request under section 6A(1)(b), and (c) the person makes an unscheduled arrival in Great Britain. (2) A constable may detain a person to whom subsection (1) applies until the expiry of the period of 72 hours beginning with the person's arrival in Great Britain or until a transit order is issued under section 6A in respect of that person, whichever is the sooner. (3) In this section “constable” means any person who is a constable in any part of Great Britain or who has, under any enactment (including section 6B(4) above), the powers of a constable in any part of Great Britain. (4) A person who is a constable by virtue of subsection (3) has for the purposes of this section all the powers, authority, protection and privileges of a constable in the part of Great Britain in which the person mentioned in subsection (2) is for the time being.

• (2) In section 9 of the Repatriation of Prisoners Act 1984 (short title, commencement and extent)—

• (a) at the beginning of subsection (3) insert “ Subject to subsection (3A), ”, and

• (b) after that subsection insert—

(3A) Sections 3A and 6A to 6D extend to England and Wales and Scotland only.

CHAPTER 7 — Out of court disposals

Penalty notices

Penalty notices for disorderly behaviour

132

Schedule 23 (penalty notices for disorderly behaviour) has effect.

Cautions

Conditional cautions: involvement of prosecutors

133

• (1) The Criminal Justice Act 2003 is amended as follows.

• (2) In section 22(3A) (conditions that may be attached to a conditional caution) for “by a relevant prosecutor” substitute “ in the condition ”.

• (3) In section 23(2) (relevant prosecutor must decide there is sufficient evidence to prosecute and that a conditional caution should be given) after “a relevant prosecutor” insert “ or the authorised person ”.

• (4) In section 23A(5) (relevant prosecutor must specify amount of financial penalty and how it is to be paid etc) for “a relevant prosecutor must also” substitute “ the condition must ”.

• (5) In section 23B (variation of conditions by relevant prosecutor) after “A relevant prosecutor” insert “ or an authorised person ”.

• (6) In section 25 (code of practice) in subsection (2)(ga) (Secretary of State's code of practice may include provision about what a relevant prosecutor may provide under section 23A(5)(b)) for “by a relevant prosecutor” substitute “ in a condition ”.

Conditional cautions: removal etc of certain foreign offenders

134

In section 22 of the Criminal Justice Act 2003 (conditional cautions)—

• (a) in subsection (3) (both as originally enacted and as substituted by section 17 of the Police and Justice Act 2006) (conditions attached to conditional cautions to have certain objects) for “ such a caution ” substitute “any conditional caution”, and

• (b) after subsection (3C) insert—

(3D) A conditional caution given to a relevant foreign offender may have conditions attached to it that have one or more of the objects mentioned in subsection (3E) (whether or not in addition to conditions with one or more of the objects mentioned in subsection (3)). (3E) The objects are— (a) bringing about the departure of the relevant foreign offender from the United Kingdom; (b) ensuring that the relevant foreign offender does not return to the United Kingdom for a period of time. (3F) If a relevant foreign offender is given a conditional caution with a condition attached to it with the object of ensuring that the offender does not return to the United Kingdom for a period of time, the expiry of that period does not of itself give rise to any right on the part of the offender to return to the United Kingdom. (3G) In this section “relevant foreign offender” means— (a) an offender directions for whose removal from the United Kingdom have been, or may be, given under— (i) Schedule 2 to the Immigration Act 1971, or (ii) section 10 of the Immigration and Asylum Act 1999, or (b) an offender against whom a deportation order under section 5 of the Immigration Act 1971 is in force.

Youth cautions

Youth cautions

135

• (1) Omit sections 65 (reprimands and warning) and 66 (effect of reprimands and warnings) of the Crime and Disorder Act 1998.

• (2) Before section 66A of that Act insert—

(66ZA) (1) A constable may give a child or young person (“Y”) a caution under this section (a “youth caution”) if— (a) the constable decides that there is sufficient evidence to charge Y with an offence, (b) Y admits to the constable that Y committed the offence, and (c) the constable does not consider that Y should be prosecuted or given a youth conditional caution in respect of the offence. (2) A youth caution given to a person under the age of 17 must be given in the presence of an appropriate adult. (3) If a constable gives a youth caution to a person, the constable must explain the matters referred to in subsection (4) in ordinary language to— (a) that person, and (b) where that person is under the age of 17, the appropriate adult. (4) Those matters are— (a) the effect of subsections (1) to (3) and (5) to (7) of section 66ZB, and (b) any guidance issued under subsection (4) of that section. (5) The Secretary of State must publish, in such manner as the Secretary of State considers appropriate, guidance as to— (a) the circumstances in which it is appropriate to give youth cautions, (b) the places where youth cautions may be given, (c) the category of constable by whom youth cautions may be given, and (d) the form which youth cautions are to take and the manner in which they are to be given and recorded. (6) No caution other than a youth caution or a youth conditional caution may be given to a child or young person. (7) In this Chapter “appropriate adult”, in relation to a child or young person, means— (a) a parent or guardian of the child or young person, (b) if the child or young person is in the care of a local authority or voluntary organisation, a person representing that authority or organisation, (c) a social worker of a local authority, or (d) if no person falling within paragraph (a), (b) or (c) is available, any responsible person aged 18 or over who is not a police officer or a person employed by the police. (66ZB) (1) If a constable gives a youth caution to a person, the constable must as soon as practicable refer the person to a youth offending team. (2) Subject to subsection (3), on a referral of a person under subsection (1), the youth offending team— (a) must assess the person, and (b) unless they consider it inappropriate to do so, must arrange for the person to participate in a rehabilitation programme. (3) If the person has not previously been referred under subsection (1) and has not previously been given a youth conditional caution, the youth offending team— (a) may assess the person, and (b) may arrange for the person to participate in a rehabilitation programme. (4) The Secretary of State must publish, in such manner as the Secretary of State considers appropriate, guidance as to— (a) what should be included in a rehabilitation programme arranged for a person under subsection (2) or (3), (b) the manner in which any failure by a person to participate in a programme is to be recorded, and (c) the persons to whom any such failure must be notified. (5) Subsection (6) applies if— (a) a person who has received two or more youth cautions is convicted of an offence committed within two years beginning with the date of the last of those cautions, or (b) a person who has received a youth conditional caution followed by a youth caution is convicted of an offence committed within two years beginning with the date of the youth caution. (6) The court by or before which the person is convicted— (a) must not make an order under section 12(1)(b) of the Powers of Criminal Courts (Sentencing) Act 2000 (conditional discharge) in respect of the offence unless it is of the opinion that there are exceptional circumstances relating to the offence or the person that justify it doing so, and (b) where it does so, must state in open court that it is of that opinion and its reasons for that opinion. (7) There may be cited in criminal proceedings— (a) a youth caution given to a person, and (b) a report on a failure by a person to participate in a rehabilitation programme arranged for the person under subsection (2) or (3), in the same circumstances as a conviction of the person may be cited. (8) In this section “rehabilitation programme” means a programme with the purpose of rehabilitating participants and preventing them from re-offending.

• (3) Schedule 24 (youth cautions: consequential amendments) has effect.

• (4) The amendments made by this section and that Schedule do not apply in relation to an offence committed before they come into force.

• (5) A reprimand or warning of a person under section 65 of the Crime and Disorder Act 1998, or any caution treated as such by virtue of paragraph 5 of Schedule 9 to that Act, is to be treated for the purposes of any enactment or instrument (whenever passed or made) as a youth caution given to that person under section 66ZA(1) of that Act.

• (6) A referral of a person to a youth offending team under section 66(1) of the Crime and Disorder Act 1998 is to be treated for the purposes of section 66ZB of that Act as a referral under that section.

• (7) A rehabilitation programme provided under section 66 of the Crime and Disorder Act 1998 is to be treated for the purposes of any enactment or instrument (whenever passed or made) as provided under section 66ZB of that Act.

Youth conditional cautions: previous convictions

136

In section 66A(1) of the Crime and Disorder Act 1998 (requirements to be met before youth conditional caution may be given) omit paragraph (a) and the “and” at the end of that paragraph (requirement of no previous convictions).

Youth conditional cautions: references to youth offending teams

137

In section 66A of the Crime and Disorder Act 1998 (youth conditional cautions) after subsection (6) insert—

(6A) If an authorised person gives a youth conditional caution to an offender, the authorised person must as soon as practicable refer the offender to a youth offending team.

Youth conditional cautions: involvement of prosecutors

138

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

• (2) In section 66A(4) (conditions that may be attached to a youth conditional caution) for “by a relevant prosecutor” substitute “ in the condition ”.

• (3) In section 66B(2) (relevant prosecutor must decide that there is sufficient evidence to prosecute and that a conditional caution should be given) after “a relevant prosecutor” insert “ or the authorised person ”.

• (4) In section 66C(5) (relevant prosecutor must specify amount of financial penalty and how it must be paid etc) for “a relevant prosecutor must also” substitute “ the condition must ”.

• (5) In section 66D (variation of conditions by relevant prosecutor) after “A relevant prosecutor” insert “ or an authorised person ”.

• (6) In section 66G (code of practice) in subsection (2)(h) (Secretary of State's code of practice may include provision about what a relevant prosecutor may provide under section 66C(5)(b)) for “by a relevant prosecutor” substitute “ in a condition ”.

CHAPTER 8 — Rehabilitation of offenders

Establishment or alteration of rehabilitation periods

139

• (1) The Rehabilitation of Offenders Act 1974 is amended as follows.

• (2) In section 5(1)(b) and (d) (sentences excluded from rehabilitation) for “thirty months” substitute “ forty eight months ”.

• (3) In the opening words of section 5(1A) (references to provisions of the Armed Forces Act 2006) for “subsection (1)(d)” substitute “ this section ”.

• (4) For section 5(2) to (11) (rehabilitation periods) substitute—

(2) For the purposes of this Act and subject to subsections (3) and (4), the rehabilitation period for a sentence is the period— (a) beginning with the date of the conviction in respect of which the sentence is imposed, and (b) ending at the time listed in the following Table in relation to that sentence:

Sentence	End of rehabilitation period for adult offenders	End of rehabilitation period for offenders under 18 at date of conviction
A custodial sentence of more than 30 months and up to, or consisting of, 48 months	The end of the period of 7 years beginning with the day on which the sentence (including any licence period) is completed	The end of the period of 42 months beginning with the day on which the sentence (including any licence period) is completed
A custodial sentence of more than 6 months and up to, or consisting of, 30 months	The end of the period of 48 months beginning with the day on which the sentence (including any licence period) is completed	The end of the period of 24 months beginning with the day on which the sentence (including any licence period) is completed
A custodial sentence of 6 months or less	The end of the period of 24 months beginning with the day on which the sentence (including any licence period) is completed	The end of the period of 18 months beginning with the day on which the sentence (including any licence period) is completed
Removal from Her Majesty's service	The end of the period of 12 months beginning with the date of the conviction in respect of which the sentence is imposed	The end of the period of 6 months beginning with the date of the conviction in respect of which the sentence is imposed
A sentence of service detention	The end of the period of 12 months beginning with the day on which the sentence is completed	The end of the period of 6 months beginning with the day on which the sentence is completed
A fine	The end of the period of 12 months beginning with the date of the conviction in respect of which the sentence is imposed	The end of the period of 6 months beginning with the date of the conviction in respect of which the sentence is imposed
A compensation order	The date on which the payment is made in full	The date on which the payment is made in full
A community or youth rehabilitation order	The end of the period of 12 months beginning with the day provided for by or under the order as the last day on which the order is to have effect	The end of the period of 6 months beginning with the day provided for by or under the order as the last day on which the order is to have effect
A relevant order	The day provided for by or under the order as the last day on which the order is to have effect	The day provided for by or under the order as the last day on which the order is to have effect

(3) Where no provision is made by or under a community or youth rehabilitation order or a relevant order for the last day on which the order is to have effect, the rehabilitation period for the order is to be the period of 24 months beginning with the date of conviction. (4) There is no rehabilitation period for— (a) an order discharging a person absolutely for an offence, or (b) any other sentence in respect of a conviction where the sentence is not dealt with in the Table or under subsection (3), and, in such cases, references in this Act to any rehabilitation period are to be read as if the period of time were nil. (5) See also— (a) section 8AA (protection afforded to spent alternatives to prosecution), and (b) Schedule 2 (protection for spent cautions). (6) The Secretary of State may by order amend column 2 or 3 of the Table or the number of months for the time being specified in subsection (3). (7) For the purposes of this section— (a) consecutive terms of imprisonment or other custodial sentences are to be treated as a single term, (b) terms of imprisonment or other custodial sentences which are wholly or partly concurrent (that is terms of imprisonment or other custodial sentences imposed in respect of offences of which a person was convicted in the same proceedings) are to be treated as a single term, (c) no account is to be taken of any subsequent variation, made by a court dealing with a person in respect of a suspended sentence of imprisonment, of the term originally imposed, (d) no account is to be taken of any subsequent variation of the day originally provided for by or under an order as the last day on which the order is to have effect, (e) no account is to be taken of any detention or supervision ordered by a court under section 104(3) of the Powers of Criminal Courts (Sentencing) Act 2000, (f) a sentence imposed by a court outside England and Wales is to be treated as the sentence mentioned in this section to which it most closely corresponds. (8) In this section— - “community or youth rehabilitation order” means— 1. a community order under section 177 of the Criminal Justice Act 2003, 2. a service community order or overseas community order under the Armed Forces Act 2006, 3. a youth rehabilitation order under Part 1 of the Criminal Justice and Immigration Act 2008, or 4. any order of a kind superseded (whether directly or indirectly) by an order mentioned in paragraph (a), (b) or (c), - “custodial sentence” means— 1. a sentence of imprisonment, 2. a sentence of detention in a young offender institution, 3. a sentence of Borstal training, 4. a sentence of youth custody, 5. a sentence of corrective training, 6. a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 or section 209 of the Armed Forces Act 2006, 7. a detention and training order under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 or an order under section 211 of the Armed Forces Act 2006, 8. any sentence of a kind superseded (whether directly or indirectly) by a sentence mentioned in paragraph (f) or (g), - “earlier statutory order” means— 1. an order under section 54 of the Children and Young Persons Act 1933 committing the person convicted to custody in a remand home, 2. an approved school order under section 57 of that Act, or 3. any order of a kind superseded (whether directly or indirectly) by an order mentioned in any of paragraphs (c) to (e) of the definition of “relevant order” or in paragraph (a) or (b) above, - “relevant order” means— 1. an order discharging a person conditionally for an offence, 2. an order binding a person over to keep the peace or be of good behaviour, 3. an order under section 1(2A) of the Street Offences Act 1959, 4. a hospital order under Part 3 of the Mental Health Act 1983 (with or without a restriction order), 5. a referral order under section 16 of the Powers of Criminal Courts (Sentencing) Act 2000, 6. an earlier statutory order, or 7. any order which imposes a disqualification, disability, prohibition or other penalty and is not otherwise dealt with in the Table or under subsection (3), - “removal from Her Majesty's service” means a sentence of dismissal with disgrace from Her Majesty's service, a sentence of dismissal from Her Majesty's service or a sentence of cashiering or discharge with ignominy, - “sentence of imprisonment” includes a sentence of penal servitude (and “term of imprisonment” is to be read accordingly), - “sentence of service detention” means— 1. a sentence of service detention (within the meaning given by section 374 of the Armed Forces Act 2006), or a sentence of detention corresponding to such a sentence, in respect of a conviction in service disciplinary proceedings, or 2. any sentence of a kind superseded (whether directly or indirectly) by a sentence mentioned in paragraph (a).

• (5) In section 6 (subsequent convictions to extend the rehabilitation period applicable to a conviction)—

• (a) in subsection (5) (exception to rule for certain orders imposing disqualifications etc) for “in accordance with section 5(8) above” substitute “ by virtue of paragraph (g) of the definition of “relevant order” in section 5(8) above ”, and

• (b) omit subsection (6) (other exceptions to the rule).

• (6) After section 8A (protection afforded to spent cautions) insert—

(8AA) (1) The following provisions of this Act apply, with the modifications specified in subsection (3), to a spent alternative to prosecution as they apply to a spent caution— (a) section 9A (unauthorised disclosure of spent cautions), and (b) paragraphs 2 to 6 of Schedule 2 (protection relating to spent cautions and ancillary circumstances). (2) An alternative to prosecution becomes spent for the purposes of this Act when it becomes spent under the law of Scotland. (3) The modifications mentioned in subsection (1) are— (a) references to cautions are to be read as references to alternatives to prosecution (and references to cautioned are to be read accordingly), (b) references to the offence which was the subject of the caution are to be read as references to the offence in respect of which the alternative to prosecution was given, (c) paragraphs (e) and (f) of paragraph 2(1) of Schedule 2 are to be read as if they were— (e) anything done or undergone in pursuance of the terms of the alternative to prosecution, (d) references to cautions for an offence are to be read as references to alternatives to prosecution in respect of an offence, and (e) the reference in paragraph 5 of Schedule 2 to the rehabilitation period applicable to the caution is to be read as a reference to the time at which the alternative to prosecution becomes spent. (4) In this section “alternative to prosecution” has the same meaning as in section 8B as that section has effect in the law of Scotland but disregarding subsection (1)(f) of that section.

• (7) In paragraph 1 of Schedule 2 (protection for spent cautions)—

• (a) in sub-paragraph (1)(a) (when conditional cautions to be regarded as spent cautions) for “, at the end of the relevant period for the caution;” substitute

— (i) at the end of the period of three months from the date on which the caution is given, or (ii) if earlier, when the caution ceases to have effect; and

, and

• (b) omit sub-paragraphs (2) and (3) (meaning of “the relevant period for the caution”).

No rehabilitation for certain immigration or nationality purposes

140

Before section 57 of the UK Borders Act 2007 (and after the italic cross-heading before that section) insert—

(56A) (1) Section 4(1), (2) and (3) of the Rehabilitation of Offenders Act 1974 (effect of rehabilitation) do not apply— (a) in relation to any proceedings in respect of a relevant immigration decision or a relevant nationality decision, or (b) otherwise for the purposes of, or in connection with, any such decision. (2) In this section— - “immigration officer” means a person appointed by the Secretary of State as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971, - “relevant immigration decision” means any decision, or proposed decision, of the Secretary of State or an immigration officer under or by virtue of the Immigration Acts, or rules made under section 3 of the Immigration Act 1971 (immigration rules), in relation to the entitlement of a person to enter or remain in the United Kingdom (including, in particular, the removal of a person from the United Kingdom, whether by deportation or otherwise), - “relevant nationality decision” means any decision, or proposed decision, of the Secretary of State under or by virtue of— 1. the British Nationality Act 1981, 2. the British Nationality (Hong Kong) Act 1990, or 3. the Hong Kong (War Wives and Widows) Act 1996, (3) The references in subsection (2) to the Immigration Acts and to the Acts listed in the definition of “relevant nationality decision” include references to any provision made under section 2(2) of the European Communities Act 1972, or of EU law, which relates to the subject matter of the Act concerned.

Transitional and consequential provision

141

• (1) Section 139 applies in relation to convictions or (as the case may be) cautions before the commencement date (as well as in relation to convictions or cautions on or after that date).

• (2) The Rehabilitation of Offenders Act 1974 (“the 1974 Act”) applies in relation to convictions or cautions before the commencement date as if the amendments and repeals made by section 139 had always had effect.

• (3) Where by virtue of subsection (2)—

• (a) a person would, before the commencement date, have been treated for the purposes of the 1974 Act as a rehabilitated person in respect of a conviction, or

• (b) a conviction would, before that date, have been treated for the purposes of that Act as spent,

the person or conviction concerned is (subject to any order made by virtue of section 4(4) or 7(4) of that Act) to be so treated on and after that date.

• (4) Where by virtue of subsection (2)—

• (a) a person would, before the commencement date, have been treated as mentioned in paragraph 3(1) of Schedule 2 to the 1974 Act in respect of a caution, or

• (b) a caution would, before that date, have been treated for the purposes of that Act as spent,

the person or caution concerned is (subject to any order made by virtue of paragraph 4 or 6(1) and (4) of that Schedule to that Act) to be so treated on and after that date.

• (5) But—

• (a) no person who, immediately before the commencement date—

• (i) is treated as a rehabilitated person for the purposes of the 1974 Act in respect of a conviction, or

• (ii) is treated as mentioned in paragraph 3(1) of Schedule 2 to that Act in respect of a caution, and

• (b) no conviction or caution which, immediately before the commencement date, is treated for the purposes of that Act as spent,

is to cease to be so treated merely because of section 139.

• (6) Section 139 does not apply in relation to alternatives to prosecution given before the commencement date.

• (7) Section 140 applies in relation to convictions before the commencement date (as well as in relation to convictions on or after that date).

• (8) Section 140 applies as mentioned in subsection (7) above whether or not, immediately before the commencement date—

• (a) the person concerned is treated as a rehabilitated person for the purposes of the 1974 Act in respect of the conviction, or

• (b) the conviction is treated for the purposes of that Act as spent.

• (9) But section 140 does not affect—

• (a) any proceedings begun, but not completed, before the commencement date,

• (b) any applications for immigration or nationality decisions made, but not finally determined, before the commencement date, or

• (c) the validity of any proceedings, or any relevant immigration or nationality decision (within the meaning of section 56A of the UK Borders Act 2007) which is made, before the commencement date.

• (10) Schedule 25 (consequential provision) has effect.

• (11) Any reference in this section to section 139 is to be read as including a reference to Schedule 25.

• (12) In this section “the commencement date” means such day as may be specified by order of the Secretary of State made by statutory instrument; and different days may be specified for different purposes.

CHAPTER 9 — Offences

Offences of threatening with article with blade or point or offensive weapon in public or on school premises

142

• (1) In the Prevention of Crime Act 1953, after section 1 (prohibition of the carrying of offensive weapons without lawful authority or reasonable excuse) insert—

(1A) (1) A person is guilty of an offence if that person— (a) has an offensive weapon with him or her in a public place, (b) unlawfully and intentionally threatens another person with the weapon, and (c) does so in such a way that there is an immediate risk of serious physical harm to that other person. (2) For the purposes of this section physical harm is serious if it amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861. (3) In this section “public place” and “offensive weapon” have the same meaning as in section 1. (4) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding 4 years or to a fine, or to both. (5) Where a person aged 16 or over is convicted of an offence under this section, the court must impose an appropriate custodial sentence (with or without a fine) unless the court is of the opinion that there are particular circumstances which— (a) relate to the offence or to the offender, and (b) would make it unjust to do so in all the circumstances. (6) In this section “appropriate custodial sentence” means— (a) in the case of a person who is aged 18 or over when convicted, a sentence of imprisonment for a term of at least 6 months; (b) in the case of a person who is aged at least 16 but under 18 when convicted, a detention and training order of at least 4 months. (7) In considering whether it is of the opinion mentioned in subsection (5) in the case of a person aged under 18, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933. (8) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (4)(a) to 12 months is to be read as a reference to 6 months. (9) In relation to times before the coming into force of paragraph 180 of Schedule 7 to the Criminal Justice and Court Services Act 2000, the reference in subsection (6)(a) to a sentence of imprisonment, in relation to an offender aged under 21 at the time of conviction, is to be read as a reference to a sentence of detention in a young offender institution. (10) If on a person's trial for an offence under this section (whether on indictment or not) the person is found not guilty of that offence but it is proved that the person committed an offence under section 1, the person may be convicted of the offence under that section.

• (2) In the Criminal Justice Act 1988 after section 139A (offence of having article with blade or point or offensive weapon on school premises) insert—

(139AA) (1) A person is guilty of an offence if that person— (a) has an article to which this section applies with him or her in a public place or on school premises, (b) unlawfully and intentionally threatens another person with the article, and (c) does so in such a way that there is an immediate risk of serious physical harm to that other person. (2) In relation to a public place this section applies to an article to which section 139 applies. (3) In relation to school premises this section applies to each of these— (a) an article to which section 139 applies; (b) an offensive weapon within the meaning of section 1 of the Prevention of Crime Act 1953. (4) For the purposes of this section physical harm is serious if it amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861. (5) In this section— - “public place” has the same meaning as in section 139; - “school premises” has the same meaning as in section 139A. (6) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding 4 years or to a fine, or to both. (7) Where a person aged 16 or over is convicted of an offence under this section, the court must impose an appropriate custodial sentence (with or without a fine) unless the court is of the opinion that there are particular circumstances which— (a) relate to the offence or to the offender, and (b) would make it unjust to do so in all the circumstances. (8) In this section “appropriate custodial sentence” means— (a) in the case of a person who is aged 18 or over when convicted, a sentence of imprisonment for a term of at least 6 months; (b) in the case of a person who is aged at least 16 but under 18 when convicted, a detention and training order of at least 4 months. (9) In considering whether it is of the opinion mentioned in subsection (7) in the case of a person aged under 18, the court must have regard to its duty under section 44 of the Children and Young Persons Act 1933. (10) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, the reference in subsection (6)(a) to 12 months is to be read as a reference to 6 months. (11) In relation to times before the coming into force of paragraph 180 of Schedule 7 to the Criminal Justice and Court Services Act 2000, the reference in subsection (8)(a) to a sentence of imprisonment, in relation to an offender aged under 21 at the time of conviction, is to be read as a reference to a sentence of detention in a young offender institution. (12) If on a person's trial for an offence under this section (whether on indictment or not) the person is found not guilty of that offence but it is proved that the person committed an offence under section 139 or 139A, the person may be convicted of the offence under that section.

• (3) Schedule 26 (knives and offensive weapons: minor and consequential amendments) has effect.

Offence of causing serious injury by dangerous driving

143

• (1) The Road Traffic Act 1988 is amended as follows.

• (2) After section 1 insert—

(1A) (1) A person who causes serious injury to another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence. (2) In this section “serious injury” means— (a) in England and Wales, physical harm which amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861, and (b) in Scotland, severe physical injury.

• (3) In section 2A (meaning of dangerous driving) in subsections (1) and (2) after “sections 1” insert “ , 1A ”.

• (4) Section 1A inserted by subsection (2) has effect only in relation to driving occurring after that subsection comes into force.

• (5) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences under the Traffic Acts) in the appropriate place insert—

RTA section 1A	Causing serious injury by dangerous driving.	(a) Summarily.	(a) 12 months or the statutory maximum or both.	Obligatory.	Obligatory.	3-11.”
RTA section 1A	Causing serious injury by dangerous driving.	(b) On indictment.	(b) 5 years or a fine or both.	Obligatory.	Obligatory.	3-11.”

• (6) In the entry inserted by subsection (5), in relation to an offence committed before 2 May 2022 “the general limit in a magistrates’ court” is to be read as “6 months (in England and Wales) or 12 months (in Scotland)”.

• (7) Schedule 27 (causing serious injury by dangerous driving: minor and consequential amendments) has effect.

Offence of squatting in a residential building

144

• (1) A person commits an offence if—

• (a) the person is in a residential building as a trespasser having entered it as a trespasser,

• (b) the person knows or ought to know that he or she is a trespasser, and

• (c) the person is living in the building or intends to live there for any period.

• (2) The offence is not committed by a person holding over after the end of a lease or licence (even if the person leaves and re-enters the building).

• (3) For the purposes of this section—

• (a) “building” includes any structure or part of a structure (including a temporary or moveable structure), and

• (b) a building is “residential” if it is designed or adapted, before the time of entry, for use as a place to live.

• (4) For the purposes of this section the fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser.

• (5) A person convicted of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 5 on the standard scale (or both).

• (6) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (5) to 51 weeks is to be read as a reference to 6 months.

• (7) For the purposes of subsection (1)(a) it is irrelevant whether the person entered the building as a trespasser before or after the commencement of this section.

• (8) In section 17 of the Police and Criminal Evidence Act 1984 (entry for purpose of arrest etc)—

• (a) in subsection (1)(c), after sub-paragraph (v) insert—

(vi) section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (squatting in a residential building);

;

• (b) in subsection (3), for “or (iv)” substitute “ , (iv) or (vi) ”.

• (9) In Schedule 10 to the Criminal Justice and Public Order Act 1994 (consequential amendments), omit paragraph 53(b).

Scrap metal dealing: increase in penalties for existing offences

145

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

Offence of buying scrap metal for cash etc

146

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

Review of offence of buying scrap metal for cash etc

147

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

Reasonable force for the purposes of self-defence etc

148

• (1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for the purposes of self-defence etc) is amended as follows.

• (2) In subsection (2) after paragraph (a) omit “and” and insert—