Criminal Law Legislation Update
| Author | Sally Louise Ireland |
| Published date | 01 January 2004 |
| Date | 01 January 2004 |
| DOI | http://doi.org/10.1350/jcla.68.1.4.25834 |
| Subject Matter | Criminal Law Legislation Update |
Criminal Law Legislation
Update*
Sally Louise Ireland†
Criminal Justice Bill
This update deals with what are now (confusingly) Parts 11 and 12 of
the Bill, as amended in Committee in the House of Lords and published
on 15 October 2003.
(New) Part 11
Part 11, formerly called Part 12, concerns sentencing. Clause 125 sets
down in statutory form the purposes of sentencing for most adult
offenders—the punishment of offenders, the reduction of crime (includ-
ing its reduction by deterrence), the reform and rehabilitation of offend-
ers, the protection of the public, and the making of reparation by
offenders to persons affected by their offences. There is also a general
clause on determining seriousness of offences (cl. 126): the court must
consider culpability, harm caused and harm intended or foreseeable.
If the offender has previous convictions, each conviction must be
treated as an aggravating factor if the court considers that reasonable,
bearing in mind its nature, its relevance to the current offence and the
time elapsed. Guilty pleas are also considered in general: the court must
take into account the stage in the proceedings at which the plea occurred
and the circumstances in which the indication was given. Where of-
fences other than those under ss 29–32 of the Crime and Disorder Act
1998 are racially or religiously aggravated, the court must treat that fact
as an aggravating factor, and state in open court that the offence was so
aggravated.
Requirements in relation to pre-sentence reports and other informa-
tion to be considered by sentencing benches are not greatly altered by
the Bill. For offenders under 18, a complete copy of a pre-sentence or
other similar report need not be given to the offender or his parent or
guardian if to do so would put him at risk of serious harm. Pre-sentence
drug testing is extended under the Bill to 14–18 year-olds.
Clause 144 of the Bill gives the court power on a conviction or plea of
guilty to make a ‘financial circumstances order’ in respect of an offender,
requiring him to provide the court with such a statement of his circum-
stances as the court may require. Failure to comply with an order, the
* As at October 2003.
† Barrister, 18 Red Lion Court.
4
Criminal Law Legislation Update
provision of false particulars, and failure to disclose a material fact are
summary offences punishable by fines.
Provisions as to fines in the Bill, bar consequential amendments, echo
those in the Powers of Criminal Courts (Sentencing) Act 2000 and
therefore are not discussed here.
The Bill sets up the Sentencing Guidelines Council, consisting of the
Lord Chief Justice, who is to be its chair, plus seven judicial and five non-
judicial members. There will still be a Sentencing Advisory Panel. The
Secretary of State may at any time propose to the Council that it make
or revise guidelines as to sentencing and allocation (i.e. between the
Crown and magistrates’ courts). When sentencing an offender, the court
must have regard to any relevant sentencing guidelines issued as defini-
tive guidelines by the Council.
Community orders
The Bill restates in new language (‘community orders’) the criteria for
the imposition of community sentences (Part 11, Chapter 2). Where
under certain provisions there is a minimum sentence fixed by law, no
community sentence must be imposed. The Bill also introduces the
possibility of a community sentence where the ‘serious enough’ thresh-
old has not been passed, if the offender has had three convictions for
which he has been fined since the age of 16, and it would be in the
interests of justice bearing in mind the nature and relevance of those
previous convictions and the time elapsed.
In Chapter 2, the government proposes once again to overhaul and
apply new names to the various community sentences available to the
courts for defendants aged 16 and over. Various new types of commu-
nity order will be available to the court, alone or in combination with
one another. The aim of these provisions would seem to be to allow
sentencers to create an individualised package of orders for each of-
fender. All community orders are to be completed within three years.
The requirements that may be imposed in a community order are set
out in Part 11, Chapter 4 of the Bill. A community punishment order
becomes a...
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