Home Office circular 007 / 2004

Inplementation of the Criminal Justice Act 2003: Nos 1 and 2 Commencement Orders

Introduction
The Criminal Justice Act 2003 brings forward a wide range of reforms across the criminal justice system. Its provisions will be commenced by a series of commencement orders over the next couple of years.

2. This circular summarises the provisions of the Act which have already commenced or which are contained in the No1 and No 2 commencement orders. Copies of the orders are attached to this circular for information.

Action

3. Recipients of this circular are asked to make it available to their operational colleagues immediately upon receipt.

provisions commenced on royal assent
ORDER MAKING POWERS

4. The Act received Royal Assent on 20 November 2003. On that date the powers in Part 14 (except sections 331 and 332 - minor and consequential amendments and repeals) of the Act came into effect as well as measures allowing the making of rules and orders to allow commencement of other provisions at a later date.

PROVISIONS COMMENCED ON 18 DECEMBER 2003
EFFECT OF LIFE SENTENCE

5. On 18 December 2003, section 336(2) of the Act brought into effect provisions in Chapter 7 of part 12 of the Act. These provide for new arrangements whereby the trial court will set the minimum term for offenders given a mandatory life sentence on or after commencement of these sections, and for transitional arrangements. Further information was provided in Home Office Circular 62/2003.

PROVISIONS COMMENCING ON 20 JANUARY 2004
AMENDMENTS TO PACE

6. The following sections contained in Part 1 of the Act which take forward recommendations contained in the Cabinet Office/Home Office PACE Review will be commenced on 20 January 2004:-

· section 1 (extensions of powers to stop and search);
· section 2 (warrants to search and enter);
· section 4 (bail elsewhere than at a police station);
· section 6 (use of telephones for review of police detention);
· section 7 (limits of police detention without charge);
· section 8 (property of detained persons); and
· section 11 (PACE codes of practice).

7. Further information about the implementation of these provisions is contained in Home Office Circular 60/2003. More detailed information relating to section 4 (bail elsewhere than at a police station) is also contained in Home Office Circular 61/2003.

OFFENDERS TRANSFERRED TO MENTAL HOSPITAL

8. Sections 294 –297 of the Act which relate to access to the parole Board for offenders who have been transferred to mental hospital will have effect from 20 January 2004. These provisions place the current procedures on a statutory footing.

LIMIT ON DETENTION WITHOUT CHARGE OF TERRORIST SUSPECTS

9. Section 306, which increases the period that a terrorist suspect may be held without charge from 7 to 14 days, will take effect from 20 January 2004. Subject to the legislative safeguards and scrutiny contained in the provision, requests for extensions to detention beyond the current seven-day maximum will apply to individuals arrested under s41 of the Terrorism Act 2000 on or after the commencement date of 20 January 2004. It will not apply to arrests made prior to that date. Further information relating to this provision is contained in Home Office Circular 2/2004.

OUTRAGING PUBLIC DECENCY

10. Section 320, which makes the common law offence of outraging public decency triable, either way also comes into effect on 20 January 2004. This will enable those more minor cases of the offence to be tried in the magistrates’ court.

CIVIL PROCEEDINGS FOR TRESPASS AGAINST THE PERSON BROUGHT BY OFFENDER

11. Section 329 will come into effect on 20 January 2004. This will mean that a person who has been convicted of an imprisonable offence can only bring civil proceedings for trespass against the person relating to the incident in which the offence was committed with the leave of the court and only if there is evidence that the defendant’s actions were grossly disproportionate. If the court does give permission the defendant will not be liable at the civil trial unless his or her action was grossly disproportionate.

PROVISIONS COMMENCING ON 22 JANUARY 2004
FIREARMS OFFENCES

12. Sections 287-291 of the Act introduce a mandatory minimum sentence for unlawful possession of certain prohibited firearms. Section 292 introduces similar arrangements for firearm offences in Northern Ireland. Section 293 increases the maximum penalty for smuggling certain prohibited weapons. These provisions are being brought into effect on 22 January 2004.

Section 287: Minimum sentence for certain firearms offences

13. This section inserts a new section 51A into the Firearms Act 1968 to provide a new minimum custodial sentence for unauthorised possession of certain types of prohibited firearm.

14. Subsection (1) of the new section 51A applies the new minimum sentence to offences under section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af), (c) and section 5(1A)(a) which were committed after the commencement of these provisions on 22 January 2004. The minimum sentence applies only to persons aged 16 or over when the offence was committed.

15. Subsection (5) specifies the length of the minimum sentence, which is dependent on the age of the offender when the offence was committed. The minimum sentence is five years imprisonment for adult offenders (those aged 18 or over in England and Wales, and 21 or over in Scotland) and three years detention for juveniles (those aged under 18 in England and Wales, and under 21 in Scotland). The existing maximum sentence of 10 years imprisonment is not affected.

16. Under subsection (2) courts are required to impose the minimum sentence unless there are exceptional circumstances relating to the offence or to the offender which justify not doing so. The purpose of the minimum sentence is to tackle gun crime and gun culture. It is not aimed at purely technical offences. Exceptional circumstances might therefore include where the holder of a firearms certificate inadvertently forgets to renew his authority or where a war trophy is discovered among a deceased person's effects.

Section 288: Certain firearms offences to be triable only on indictment

17. This Section amends Part 1 of Schedule 6 to the Firearms Act 1968 and makes all offences to which the minimum sentence applies triable on indictment only (they were previously triable either way).

Section 289: Power to sentence young offender to detention in respect of certain firearms offences: England and Wales

18. This section makes the necessary amendments to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 to enable juvenile offenders in England and Wales to be sentenced to the term of detention required by the new section 51A of the 1968 Act.

Section 290: Power to sentence young offender to detention in respect of certain firearms offences: Scotland

19. This section amends the Criminal Procedure (Scotland) Act 1995 to ensure that the court in Scotland retains the power to order the detention of a juvenile offender and to dispose of the case.

Section 291: Power by order to exclude application of minimum sentence to those under 18

20. This section enables the Secretary of State to make an order disapplying the minimum sentence in the case of offenders aged under 18, if in the future this is no longer necessary in order to tackle gun crime. There is also power to make consequential amendments of other legislation. An order under this power is subject to affirmative resolution procedure. Should such an order be made it will be announced by means of a Home Office circular.

Section 292: Sentencing for firearms offences in Northern Ireland

21. This section applies to firearms law in Northern Ireland.

Section 293: Increase in penalty for offences relating to importation or exportation of certain firearms

22. This section amends the Customs and Excise Management Act 1979 to increase from 7 years' imprisonment to 10 years' imprisonment the maximum penalty for smuggling prohibited weapons covered by the minimum sentence provisions. The offences concerned are: improper importation of goods (section 50), exportation of prohibited or restricted goods (section 68) and fraudulent evasion of duty etc (section 170).


PROVISIONS COMMENCING ON 26 JANUARY 2004
INTERMITTENT CUSTODY

23. The Criminal Justice Act 2003 (Commencement No 1) Order 2003 brings into effect various provisions contained in Part 12 of the Act to enable the piloting of provisions relating to intermittent custody (see sections 183-186 of the Act. This new disposal allows an offender to be sentenced to a custodial sentence that will be served either during the week or at weekends. The remainder of the sentence will be served on licence in the community. Details of the courts and probation areas taking part in the pilots are at Annex A. They have been notified separately of their powers by the Secretary of State and have been issued with further guidance.

PROVISIONS COMMENCING ON 29 JANUARY 2004
CANNABIS MEASURES

24. The measures in section 3(3), which makes possession of cannabis and cannabis resin a specific arrestable offence, and in section 284 and Schedule 28, which increase the maximum penalties for supply of Class C drugs, take effect on 29 January 2004. This coincides with the reclassification of cannabis from a Class B to Class C drug. Further guidance on these measures has been issued in Home Office Circular 5/2004.

IDENTITY FRAUD OFFENCES

25. Fraudulently obtaining a passport is commonly dealt with under the Theft Act 1968. However despite the high penalties available for offences under the Theft Act, loss is often equated to the value of the document, rather than the potential use to which such a document can be put. A specific offence exists under s 36 Criminal Justice Act 1925 and measures in section 3 make giving false statements to obtain a passport or a driving licence a specific arrestable offence. Section 3 and section 286, which increases the penalty for falsely obtaining a driving licence, to align it with the penalty for fraudulently obtaining a passport, will take effect from 29 January 2004.

RULE AND ORDER MAKING POWERS

26. A number of provisions will come into effect on 29 January 2004 to allow the making of rules of court and the drawing up of codes of practice and regulations in relation to provisions that will be brought into force at a later date.

CHARGING

27. Section 28 and Schedule 2, which make provision in relation to the charging or release of persons in police detention, come into effect on 29 January. It should be noted that the guidance which Schedule 2 makes provision for the Director of Public Prosecutions to issue will initially have effect only in part of Greater Manchester, where it will be piloted; in all other Areas the existing arrangements will continue to apply. The intention is that the guidance will subsequently be extended elsewhere, and it is expected to apply in all Areas by the end of 2004.

28. Section 31, which also takes effect on 29 January, abolishes the requirement to substantiate on oath an application for a warrant under sections 1(3), 13(3)(a) and 13(3A) of the Magistrates’ Court Act 1980.



PROVISIONS COMMENCING ON 27 FEBRUARY 2004
PARENTING ORDERS AND REFERRAL ORDERS

29. Section 324 and Schedule 34 of the Act, which allow the making of a parenting order with a referral order or where a parent or guardian fails to comply with requirement under a referral order to attend meetings of a youth offender panel, will come into effect on 27 February 2004. Technical guidance on parenting orders will be issued shortly.

INCREASE IN MAXIMUM PENALTY FOR DRIVING OFFENCES RESULTING IN DEATH

30. The measures in section 285 will take effect from 27th February 2004. These make the following offences subject to a maximum sentence of 14 years: -
(a) Aggravated vehicle taking
(b) Causing death by dangerous driving
(c) Causing death by careless driving when under the influence of drink or drugs
(d) Causing death or grievous bodily injury by dangerous driving (Northern Ireland)
(e) Causing death or grievous bodily injury by careless driving when under the influence of drink or drugs (Northern Ireland).
The new maximum penalty will only apply to offences committed after commencement of this section.

SENTENCING GUIDELINES COUNCIL

31. The provisions contained in sections 167 to 173 relating to the Sentencing Guidelines Council will take effect from 01 March 2004.

further information

32. An electronic version of this circular can be found at www.homeoffice.gov.uk/circulars/index.htm

33. An electronic version of the Criminal Justice Act 2003 and the accompanying explanatory notes can be found on the Stationery Office website at www.legislation.hmso.gov.uk/acts/acts2003/20030044.htm. Further information about the provisions in the Criminal Justice Act 2003 and its implementation can be found on www.cjsonline.gov.uk. This website also contains links to the circulars and secondary legislation referred to in this circular.



DAVE CHEESMAN
CRIMINAL PROCEDURE AND EVIDENCE UNIT

Attachments

• IC commencement Order (Sched).doc (Microsoft Word file - 33kb)
• List of Courts.DOC (Microsoft Word file - 29kb)
• no.2 commencement order 15.1.doc (Microsoft Word file - 36kb)

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