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Legal Aid, Sentencing and Punishment of Offenders Act 2012
The controversial Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") received
Royal Assent on 1st May 2012. The Act covers a wide range of issues. It is comprised of 4 Parts and 27
Schedules. Part 1 (section 1 – 43) makes provisions on Legal Aid (section 13 – 43 deals with Criminal
Legal Aid); Part 2 (section 44 – 62) deals with Litigation Funding and Costs (section 62 addresses
Costs in Criminal Cases); Part 3 (section 63 – 148) covers Sentencing and the Punishment of
Offenders and Part 4 (section 149 – 154) sets out Final Provisions. Sections 77, 119 and 151 were
commended on Royal Assent. However, the rest of the Act has not yet come into effect.
Part 3: SENTENCING AND PUNISHMENT OF OFFENDERS
Part 3 of the Act is made up of 9 chapters. Some of the key provisions are summarised below.
CHAPTER 1: SENTENCING - (Section 63 – 89)
3.12.12 UPDATE
Since this
summary was
written a number
of the provisions
have now come
into force under:
SI 2012/2412
SI 2012/2770
SI 2012/2906
Chapter 1 sets out changes to some general sentencing provisions contained in the Criminal Justice
Act 2003 ("CJA 2003") and other legislation. In particular it does the following:
•
Imposes a duty on the court to "consider" a Compensation Order in any case in which it is
empowered to do so;
•
Adds "transgender identity" to the personal characteristics which constitute an aggravating
factor in sentence where an offence is motivated by hostility towards a victim on this basis. It
also provides for a starting point of 30 years for the minimum term for a life sentence for murder
aggravated on the grounds of the victim’s disability or transgender identity;
•
Gives a court the option of taking no action in relation to a breach of a community order. It also
gives a new power to fine an offender up to £2,500 in relation to a breach;
•
Enables the court to suspend sentences of imprisonment between 14 days and 2 years. The
amendment also allows a court to impose a suspended sentence without imposing any
community requirements;
•
Provides the court with a new power to impose a fine of up to £2,500 for breach of a suspended
sentence where it decides not to activate the custodial sentence;
•
Increases the maximum period in any day for which the court (adult or youth) may impose a
curfew requirement from 12 to 16 hours. The provision also increases the maximum period for
which a curfew requirement can be imposed from 6 to 12 months;
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•
Creates a new power to specifically prohibit foreign travel to a country or countries outside of
British Islands as a requirement of a community order or suspended sentence order;
•
Section 76 creates a new alcohol abstinence and monitoring requirement, which may be
brought into force by order of the Secretary of State under a pilot scheme (as per section 77
which was commenced on Royal Assent). An offender may be ordered to abstain from
consuming alcohol for a specified period of time or required to ensure that the alcohol in their
body does not exceed a specified level. The maximum period is limited to 120 days and the
requirement may only be imposed if 4 conditions have been met (including a condition that the
offender is not dependent on alcohol);
•
Widens the court’s youth sentencing powers to allow a conditional discharge to be imposed
following a guilty plea to a first time offence;
•
Allows a court to offer Referral Orders to youths who have received them in the past. There is
no longer a limit on the number of Referral Orders that a repeat offender can receive;
•
Extends the court power to allow an additional period of supervision (instead of a fine or period
of detention) to be imposed to punish a breach of a Detention and Training Order ("DTO").
Importantly, the period of supervision or detention for a breach may now be imposed even after
the term of the DTO has finished;
•
Increases the maximum fine for a breach of a Youth Rehabilitation Order from £250 (under 14
years) or £1,000 (in any other case) to £2,500;
•
Removes limits on "fines or maximum fines of £5,000 or more (however expressed)" for an
adult following summary conviction and
•
Repeals unimplemented provisions in the CJA 2003 relating to 'custody plus' and intermittent
custody.
CHAPTER 2: BAIL - (Section 90)
Section 90 gives effect to Schedule 11 which amends the Bail Act 1976 and other legislation
concerning bail. Some important changes are made, including:
•
The introduction of the "No Real Prospect Test". This provision restricts the courts power to
remand an unconvicted adult defendant (in non-extradition proceedings) into custody where it
appears that there is no real prospect that the defendant would receive a custodial sentence if
convicted. (A similar restriction to remand under 18s to youth detention accommodation is
imposed in Chapter 3.) This test also applies to offenders who have been released on bail and
who fail to surrender;
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•
The insertion of a new exception to the right to bail, where an offender released on bail might
commit an offence involving domestic violence. This provision is not subject to the "No Real
Prospect Test" and may apply to non imprisonable offences and
•
The Bail (Amendment) Act 1993 is amended so that the prosecution may appeal to the High
Court against the decision of a Crown Court Judge to grant bail to a person charged with or
convicted of an imprisonable offence. However this route of appeal is not available where the
Crown Court has granted bail on appeal from the Magistrates' Court.
CHAPTER 3: REMANDS OF CHILDREN OTHERWISE THAN ON BAIL - (Section 91 – 107)
This chapter replaces the existing framework for remand of children in the Children and Young
Persons Act 1969 and removes the provisions under which 17 year olds are currently remanded in
prison. It also removes the existing distinctions based on age and gender and imposes a more
rigorous test before under 18's can be remanded to youth detention accommodation.
•
New custodial remand provisions are provided for children (under the age of 18) who are
charged with or convicted of a criminal offence or concerned in extradition proceedings and who
are not released on bail. Subject to section 91(4) the Court must remand the child into local
authority accommodation in accordance with section 92 of the Act;
•
A court may impose conditions on a child who it has remanded to local authority
accommodation. However, electronic monitoring may only be imposed if the five requirements
in section 97 have been met;
•
A court may only remand a child (in criminal proceedings) to youth detention accommodation in
accordance with section 102 if a stringent set of conditions in section 98 or section 99 are met:
-
Under section 98 the child must be at least 12; at least one offence must be a violent or sexual
offence or be punishable in the case of an adult with imprisonment for a term of 14 years or
more; the court must consider that only such a remand would be adequate to protect the public
from death or serious personal injury occasioned by further offences or to prevent the
commission by the child of imprisonable offences ("the necessity condition"); and the child must
either be legally represented before the court or unrepresented for one of the specified reasons
("the first or second legal representation condition").
-
The set of conditions in section 99 focuses on the behaviour of the offender while on remand. It
applies if the child faces a realistic prospect of receiving a custodial sentence. In these
circumstances, if they have or are alleged to have committed an offence while on remand in
custody and have a recent history of absconding while on remand, or, alternatively, the offence
forms part of a recent history of committing imprisonable offences while on remand (on bail or
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in custody) then they may be remanded securely pursuant to this section. Once again the child
must be at least 12 and the "necessity" and "legal representation" conditions must be satisfied.
CHAPTER 4: RELEASE ON LICENCE ETC - (Section 108 – 121)
This chapter presents a large number of very detailed amendments to the provisions of the CJA 2003
dealing with the release on licence and recall of prisoners. By way of example only, changes include:
•
The crediting of remand time to be calculated and applied administratively. There is no longer
discretion to dis-apply any such time. Notably the days count in relation to only one sentence
and only once in relation to that sentence;
•
A simplified calculation for crediting periods of remand on bail using a 5 step process (as set out
in section 109);
•
Provision for prisoners serving sentences of less than 12 months to be released unconditionally
at the half way point. In relation to consecutive sentences, release will only be unconditional if
the 'total' sentence is less than 12 months;
•
Provision for additional restrictions for early release on Home Detention Curfew ("HDC"). For
example, prisoners serving a sentence of 4 years or more will not be eligible for the scheme.
Other categories of prisoners that are excluded include those previously released and recalled
under the scheme for breach of licence conditions and those previously returned to prison for
committing a further offence before the expiry of a previous sentence;
•
Provision for a revocation of a licence to be cancelled where a mistake was made. This will apply
even after the Parole Board have considered the recall and made a decision on release;
•
Removal of some of the restrictions on the use of recalls subject to automatic release for certain
categories of prisoner;
•
Allowing for the executive release of recalled extended sentence prisoners subject to a risk test;
•
Provision for the supervision of young adult prisoners released from a sentence of Detention in a
Young Offenders’ Institution ("DYOI") – available for 18 to 20 year olds. This will ensure that
prisoners released from a DYOI sentence of less than 12 months will receive 3 months’
supervision. Such supervision can include specific requirements relating to drug testing and
electronic monitoring. The Act also sets out what is to happen if the offender breaches the terms
of the supervision;
•
Removal of the duty of the Secretary of State to consult the Parole Board before releasing
extended sentence prisoners on compassionate grounds; and
•
Allowing foreign national prisoners serving indeterminate sentences to be removed from the UK
when the tariff set by the court expires but also to re-detain such prisoners if they subsequently
return. This provision is set out in Section 119 of the Act, which came into force on 1st May 2012.
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CHAPTER 5: DANGEROUS OFFENDERS - (Section 122 – 128)
Under section 123 of LASPO, indeterminate sentences for public protection and extended sentences
for certain violent or sexual offences will be abolished. They will be replaced with provisions for life
sentences to be imposed on conviction for a second serious offence and a new provision for
extended sentences:
•
Under section 122 - a court must impose a life sentence on a person aged 18 or over who is
convicted of an offence listed in Part 1 of the new Schedule 15B CJA 2003 (as inserted by and set
out in Schedule 18 LASPO) which is serious enough to justify a sentence of imprisonment for 10
years or more, if that person has previously been convicted of an offence listed in Schedule 15B
and was sentenced to imprisonment for life or for a period of 10 years or more in respect of that
previous offence. However the court is not obliged to impose a life sentence where it is of the
opinion that there are particular circumstances which relate to the offence, to the previous
offence or to the offender which would make it unjust to do so in all of the circumstances.
•
Section 124 inserts new sections 226A and 226B in the 2003 Act. Those sections create new
extended sentences for adults and persons under 18 respectively. The sentences may be
imposed where the offender has been convicted in respect of an offence listed in Schedule 15 to
the 2003 Act (referred to as "specified offences") and where the court considers that there is a
"significant risk to members of the public of serious harm occasioned by the commission by the
offender of further specified offences". (At paragraph 661 of the Explanatory Notes, it is stated
that the "significant risk" test in section 226A(1)(b) is the same as the previous test for
indeterminate sentences for public protection). For adults, one of two further conditions must
also apply: either the court must consider that the current offence is serious enough to merit a
determinate sentence of at least 4 years – or – at the time the present offence was committed
the offender must have previously been convicted of an offence listed in the new Schedule 15B.
Where these conditions are made out, the court may impose an extended period for which the
offender is to be subject to a licence (an 'extension period') of up to 5 years for a violent offence
and up to 8 years for a sexual offence. Section 125 also makes specific provisions about the
release on licence of persons serving sentences under these new sections.
•
Section 128 also creates a new power for the Secretary of State to amend the Parole Board
release test for prisoners serving Indeterminate Sentences for Public Protection, extended
sentence prisoners and determinate sentence prisoners subject to transitional provisions.
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CHAPTER 6: PRISONERS ETC - (Section 129 – 131)
Chapter 6 gives the Secretary of State the power to make rules in respect of the employment and
payment of prisoners and persons in young offender institutions aged 18 or over, including in
respect of reductions in, deductions from or levies upon such payments. It also includes
amendments to the Repatriation of Prisoners Act 1984, which governs the transfer of prisoners to
and from the United Kingdom. The amendments provide for transit through Great Britain of
prisoners serving sentences of imprisonment and statutory protection from prosecution of prisoners
transferred to Great Britain under international prisoner transfer arrangements.
CHAPTER 7: OUT OF COURT DISPOSALS - (Section 132 – 138)
Chapter 7 contains a number of important amendments relating to out of court disposals which may
be used as an alternative to prosecution.
•
Section 132 gives effect to Schedule 23 (Penalty Notices for Disorderly Behaviour) which amends
the Criminal Justice and Police Act 2001. The new provisions enable a police officer to give
penalty notices with an education option. The schedule removes the requirement that an
issuing officer need be an "authorised constable" or in uniform and prohibits a Penalty Notice
for Disorder being given to a person under the age of 18.
•
Section 133 amends the CJA 2003 to allow an "authorised person" (usually a police officer) to
issue or vary a conditional caution without reference to the relevant prosecutor. This provision
may cause concern due to the potential for its inconsistent or inappropriate use. (In a similar
provision, section 138 also removes the requirement that the conditions attached to a youth
conditional caution be specified by a relevant prosecutor).
•
Section 134 introduces new types of conditional cautions which can be offered to offenders
whose immigration status makes them liable for removal from the UK. The object of this section
is to bring about the departure of relevant foreign offenders from the UK and to ensure that
they do not return for a period of time.
•
Section 135 abolishes the Final Warning System for young offenders and creates a new Youth
Caution. Unlike the current reprimands and warnings, a youth caution may be offered even if a
young person has previously been convicted or given a youth conditional caution. (Section 136
also allows a youth conditional caution to be given to a person with a previous conviction).
Where a young person receives a youth caution or a youth conditional caution, the police must
refer them to the appropriate youth offending team as soon as is practicable.
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CHAPTER 8: REHABILITATION OF OFFENDERS - (Section 139 – 141)
Chapter 8 contains a package of changes to the Rehabilitation of Offenders Act 1974 ("ROA") to
amend the scope of the Act and its rehabilitation periods. The amendments extend the scope of the
ROA so that custodial sentences of up to and including 4 years in length may become 'spent'. The
times at which different convictions become 'spent' are also amended, and in most cases the
rehabilitation periods are reduced. For example:
•
SENTENCE
REHABILITATION PERIOD (Adult / Under 18 at Date of Conviction)
•
30 months to 4 years
7 years / 3.5 years - after the end of the Sentence including Licence Period
•
6 months to 30 months
4 years / 2 years
•
Up to 6 months
2 years / 18 months - after the end of the Sentence including Licence Period
•
Fines
1 year / 6 months - after the Date of Conviction
•
Compensation Order
Date on which the Payment is made in Full
•
Community Order / YRO
1 years / 6 months - after the date provided as the end date in the Order
•
Community Order / YRO
24 months from the date of conviction where an end date has not been specified
•
Absolute Discharge
No Rehabilitation Period – become Spent immediately
•
Cautions
Become Spent immediately on being administered
•
Conditional Cautions
Up to a maximum of 3 months after being administered
- after the end of the Sentence including Licence Period
The LASPO provisions retain the position in relation to consecutive and concurrent terms of
imprisonment so that they are treated as a single term for the purpose of calculating rehabilitation
periods. However, section 139 amends the provision for when an offender commits a further
offence, in that all rehabilitation periods applicable remain for the duration of the longest
rehabilitation period. Section 140 also amends the UK Borders Act 2007 to exclude immigration or
nationality decision making from the operation of the ROA.
CHAPTER 9: OFFENCES - (Section 142 – 148)
The final chapter in Part 3 introduces a number of new offences.
•
Section 142 - Offences of Threatening with Article with Blade or Point or Offensive Weapon in
Public or on School Premises: A new section 1A (Offence of Threatening with Offensive Weapon
in Public) is inserted into the Prevention of Crime Act 1953. A person is guilty of this offence if
that person has an offensive weapon with him in a public place; unlawfully and intentionally
threatens another person with the weapon; and does so in a way that there is an immediate risk
of serious physical harm to that other person. For the purposes of this section, physical harm is
serious if it amounts to 'grievous bodily harm'. A person guilty of this offence is liable on
summary conviction to 6 months imprisonment, a fine, or both and on indictment to a maximum
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of 4 years imprisonment, a fine, or both. However, this offence carries a minimum custodial
sentence for offenders aged 16 and over. Section 1A (5) and 1A (6) imposes a requirement upon
the court to sentence a person aged 18 or over to a term of at least 6 months imprisonment;
and a person aged at least 16 but under 18 to a Detention and Training Order of at least 4
months – unless the court is of the opinion that there are particular circumstances which relate
to the offence or to the offender which would make it unjust to do so in all of the circumstances.
A new section 139AA is inserted into the Criminal Justice Act 1988 to create a corresponding
offence of threatening another with an offensive weapon or article with a blade or point in a
public place or on a school premises.
•
Section 143 and Schedule 27 - Offence of Causing Serious Injury by Dangerous Driving: This
section inserts a new section 1A in the Road Traffic Act 1998 ("RTA") and makes provision for a
new criminal offence of causing serious injury by dangerous driving. The offence is committed
when a person causes serious physical injury to another person by driving a mechanically
propelled vehicle dangerously on a road or other public place. Section 1A (2) defines 'serious
injury' in England and Wales as physical harm which amounts to grievous bodily harm for the
purposes of the Offences against the Person Act 1861. Section 1A(3) applies the existing
definition of dangerous driving in the RTA to the new offence. The offence is triable either way.
In England, the maximum penalty on summary conviction is 6 months’ imprisonment, a fine of
£5000, or both; and on indictment it is 5 years imprisonment, a fine, or both. The offence will be
subject to mandatory disqualification and endorsement. A person convicted of the new offence
will be subject to a minimum disqualification of two years, unless the court considers that there
are special reasons either not to disqualify them, or to disqualify for a shorter period. A person
convicted of the new offence will also be disqualified until they pass an extended driving test
(under section 36 of the RTOA). An endorsement in relation to this offence will remain effective
until four years have elapsed following conviction.
•
Section 144 - Offence of Squatting in a Residential Building: This is a summary only offence
which carries a maximum sentence of 6 months imprisonment, a fine not exceeding level 5 on
the standard scale, or both. The offence is committed when the person is in a residential
building as a trespasser having entered it as such; the person knows or ought to know that they
are a trespasser; and the person is living in the building or intends to live there for any period.
Subsection (2) is designed to ensure that the offence is not committed by a person who remains
in occupation after the end of a lease or licence.
•
Section 145 to 147 - Scrap Metal Dealing: Section 145 raises the level of fines available for
certain existing offences under the Scrap Metal Dealers Act 1964, which regulates those carrying
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on business as a scrap metal dealer. The effect of the section is to increase the level of fine
available for those offences by two levels on the standard scale.
Section 146(2) creates a new offence of buying scrap metal for cash, which prohibits scrap metal
dealers paying for scrap metal other than by cheque or by electronic transfer (or other methods
of payment as the Secretary of State may by order permit). The scrap metal dealer, a person
who makes the payment acting for the dealer and a manager who fails to take reasonable steps
to prevent payment being made in breach of this subsection will each be guilty of an offence.
There is however a statutory exception in relation to itinerant collectors. The offence is
summary only and carries a maximum penalty of a level 5 fine on the standard scale.
Other amendments under section 146 include a requirement for the dealer to record the
method of payment and keep a copy of any cheque or any receipt identifying the transfer. Once
again, the record-keeping provisions referred to do not apply to itinerant collectors who have an
order from the relevant local authority under section 3(1) of the Act.
Interestingly, section 147 places a duty on the Secretary of State to review the offence of buying
scrap metal for cash within five years of the offence coming into force.
•
Section 148 - Reasonable Force for the Purposes of Self-Defence: This provision amends section
76 of the Criminal Justice and Immigration Act 2008 in order to clarify the current law on selfdefence. The list of defences in section 76 (2) of the 2008 Act are expanded to include the
common law defence of defence of property. (The definition of "legitimate purpose" is also
widened to include the purpose of defence of property under the common law). Furthermore a
new subsection (6A) is inserted which clearly sets out the existing legal position that the
possibility of retreat does not give rise to a 'duty' to retreat, but is merely a factor to be taken
into account when deciding upon the reasonableness of any force used in the circumstances as
the Defendant understood them to be.
Sara Woodhouse Davie
Garden Court North Chambers
June 2012
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