Law and Rights
Introduction: On 21st June, the Secretary of State for Justice and Lord Chancellor (Kenneth Clarke QC MP) introduced into Parliament his Legal Aid, Sentencing and Punishment of Offenders Bill. Along with the Bill, explanatory notes are also available. The Bill has 119 clauses and 16 Schedules.
Parts 1 and 2 of the Bill deal, respectively, with Legal Aid and Litigation Funding and Costs. Part 3 - which divides into 7 Chapters - deals with Sentencing and Punishment of Offenders. Part 4 includes some "Final Provisions." There are then 16 schedules.
The 7 Chapters in Part 3 are entitled: (1) Sentencing; (2) Bail; (3) remands of children otherwise than on bail; (4) Release on Licence; (5) Prisoners etc; (6) out of Court Disposals; (7) Knives and Offensive Weapons.
Prior consultations: At this stage, it should be noted that the Bill builds on three consultations:
- Laspo 2012 ~ Some Materials
Updated 9th March 2013 The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is gradually being brought into force. LASPO is one of 18 Public General Acts enacted in 2012. On top of that, 3001 Statutory Instruments have...
- Laspo - Part 3 Chapters 2 To 8
Part 3 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. deals with Sentencing and Punishment of Offenders. Part 3 divides into 9 Chapters which cover a very considerable range of criminal justice issues: 1. Sentencing; 2. Bail; 3. Remands...
- Laspo - Part 3 Chapter 1 - Sentencing
Part 3 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. deals with Sentencing and Punishment of Offenders. Part 3 divides into 9 Chapters which cover a very considerable range of criminal justice issues: 1. Sentencing; 2. Bail;...
- The Judges Respond To Government Criminal Justice Proposals
Crown Court at LiverpoolTwo responses to the government's green paper "Breaking the Cycle" have been published - see Judiciary website. One is from Lord Justice Thomas (Vice-President of the Queen's Bench Division and Deputy Head of Criminal...
- A Breathtaking Bill Of Which Even Henry Viii Would Have Been Proud ...!
On 28th October, the government's Public Bodies Bill received its first reading in Parliament - actually it has been first introduced via the House of Lords. We all knew that, mainly for economic reasons, a "Bonfire of the Quangos" was being...
Law and Rights
The "Legal Aid, Sentencing and Punishment of Offenders Bill" - A Quick Glance - a lot to look at and much unhappiness
With additions
Introduction: On 21st June, the Secretary of State for Justice and Lord Chancellor (Kenneth Clarke QC MP) introduced into Parliament his Legal Aid, Sentencing and Punishment of Offenders Bill. Along with the Bill, explanatory notes are also available. The Bill has 119 clauses and 16 Schedules.
Parts 1 and 2 of the Bill deal, respectively, with Legal Aid and Litigation Funding and Costs. Part 3 - which divides into 7 Chapters - deals with Sentencing and Punishment of Offenders. Part 4 includes some "Final Provisions." There are then 16 schedules.
The 7 Chapters in Part 3 are entitled: (1) Sentencing; (2) Bail; (3) remands of children otherwise than on bail; (4) Release on Licence; (5) Prisoners etc; (6) out of Court Disposals; (7) Knives and Offensive Weapons.
Prior consultations: At this stage, it should be noted that the Bill builds on three consultations:
- Proposals for the reform of Legal Aid in England and Wales - November 2010
- Proposals for the reform of civil litigation funding and costs in England and Wales - November 2010 - (based on Lord Justice Jackson's Report)
- Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders
The Bill will enact an entirely new scheme for legal aid. Present arrangements under the Access to Justice Act 1999 will be replaced. The Legal Services Commission will be abolished and administration of legal aid transferred to an executive agency within the Ministry of Justice. There is to be an official known as the Director of Legal Aid Casework who will be responsible for the decision-making about legal aid in individual cases. This will raise concerns about the executive agency's actual degree of independence from government.
Ideas - which were not implemented - in the Criminal Justice Act 2003 will be repealed. These include "Custody Plus", "Intermittent Custody" (only briefly trialled) and the increase in Magistrates' Courts sentencing powers.
Part 3 Chapter 6 contains amendments to the legislation under which police constables may issue a penalty notice for disorder and authorised persons may give conditional cautions. This includes the introduction of a penalty notice with an education option and provision for conditional cautions to be given without the need to refer the case to the relevant prosecutor. The amendments also allow new types of conditions to be attached to a conditional caution given to a foreign national offender without leave to enter or stay in the United Kingdom. The Chapter creates a new kind of youth caution. It also makes amendments to youth conditional cautions by making them more flexible.
Part 3 Chapter 7 creates new offences relating to threatening with weapons in public and threatening with a blade or point of offensive weapon. There will be a minimum sentence of 6 months imprisonment for persons over 18 found guilty of these new offences (unless this would be unjust in all the circumstances).
It will become possible for Penalty Notices for Disorder to have an "education condition" attached requiring the person to attend a
course aimed at reduction of offending. (Similar arrangements already exist for fixed penalty notices relating to speeding). Much more controversially, the requirement that a conditional caution may not be issued without reference to a Crown Prosecutor will be abolished. Currently, the Crown prosecutor has to decide if there is sufficient evidence. This will enable the Police to judge for themselves whether there is sufficient evidence. However, before a conditional caution may be issued, the person will still have to admit the offence and consent to the caution.
Some ideas - such as the 50% discount for guilty pleas - do not appear on the face of the Bill. Given the potential of this to save money, one wonders whether it might re-appear in another guise. However, the appearance given by government is that this is one idea which the Prime Minister was not prepared to go along with for political reasons - The Guardian 8th June.
This clause contain Henry VIII powers enabling Ministers to alter the maximum sentences available for certain offences. See the clause. The clause is hidden away in Part 4 "Final Provisions." This will have significant impact on the powers of Magistrates' Courts.
A further "Henry VIII" power is Clause 8(2) which will enable the Lord Chancellor to alter the scope of civil legal aid by omitting services.
It will become possible for Penalty Notices for Disorder to have an "education condition" attached requiring the person to attend a
course aimed at reduction of offending. (Similar arrangements already exist for fixed penalty notices relating to speeding). Much more controversially, the requirement that a conditional caution may not be issued without reference to a Crown Prosecutor will be abolished. Currently, the Crown prosecutor has to decide if there is sufficient evidence. This will enable the Police to judge for themselves whether there is sufficient evidence. However, before a conditional caution may be issued, the person will still have to admit the offence and consent to the caution.
Some ideas - such as the 50% discount for guilty pleas - do not appear on the face of the Bill. Given the potential of this to save money, one wonders whether it might re-appear in another guise. However, the appearance given by government is that this is one idea which the Prime Minister was not prepared to go along with for political reasons - The Guardian 8th June.
: Clause 114 - Henry VIII is alive and kicking :
This clause contain Henry VIII powers enabling Ministers to alter the maximum sentences available for certain offences. See the clause. The clause is hidden away in Part 4 "Final Provisions." This will have significant impact on the powers of Magistrates' Courts.
A further "Henry VIII" power is Clause 8(2) which will enable the Lord Chancellor to alter the scope of civil legal aid by omitting services.
Conclusion: This Bill is likely to take quite some time to pass through Parliament. There will be significant amendments and the inevitable additions. A more detailed look will follow. In particular, the civil legal aid provisions are harsh. There is a lot to look at and much unhappiness!
Other comments: The Defence Brief - Are further restrictions on your rights coming? This is an excellent look at Clause 12 of the Bill relating to initial advice and assistance at Police Stations. There seems to be little doubt that Clause 12(2) brings in an "interests of justice" test of some sort. Currently, there is entitlement to free advice in the police station for those arrested. For minor cases this may be telephone advice and, for more serious matters, a lawyer at the police station for any interview.
See also UK Human Rights Blog - Adam Wagner - with additional links to blogs making further comment.
Solicitor's Journal 21st June 2011
Justice - "Legal Aid Reform: danger of 'economic cleansing' of the civil courts"
The Guardian 22nd June - "Kenneth Clarke is buying time for prison sentencing reform"
The Guardian 23rd June - "Dismay at response to legal aid consultation" - Young barrister's committee
The New Statesman - David Allen Green - "Legal Aid and Civil Justice"
Other comments: The Defence Brief - Are further restrictions on your rights coming? This is an excellent look at Clause 12 of the Bill relating to initial advice and assistance at Police Stations. There seems to be little doubt that Clause 12(2) brings in an "interests of justice" test of some sort. Currently, there is entitlement to free advice in the police station for those arrested. For minor cases this may be telephone advice and, for more serious matters, a lawyer at the police station for any interview.
See also UK Human Rights Blog - Adam Wagner - with additional links to blogs making further comment.
Solicitor's Journal 21st June 2011
Justice - "Legal Aid Reform: danger of 'economic cleansing' of the civil courts"
The Guardian 22nd June - "Kenneth Clarke is buying time for prison sentencing reform"
The Guardian 23rd June - "Dismay at response to legal aid consultation" - Young barrister's committee
The New Statesman - David Allen Green - "Legal Aid and Civil Justice"
- Laspo 2012 ~ Some Materials
Updated 9th March 2013 The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is gradually being brought into force. LASPO is one of 18 Public General Acts enacted in 2012. On top of that, 3001 Statutory Instruments have...
- Laspo - Part 3 Chapters 2 To 8
Part 3 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. deals with Sentencing and Punishment of Offenders. Part 3 divides into 9 Chapters which cover a very considerable range of criminal justice issues: 1. Sentencing; 2. Bail; 3. Remands...
- Laspo - Part 3 Chapter 1 - Sentencing
Part 3 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. deals with Sentencing and Punishment of Offenders. Part 3 divides into 9 Chapters which cover a very considerable range of criminal justice issues: 1. Sentencing; 2. Bail;...
- The Judges Respond To Government Criminal Justice Proposals
Crown Court at LiverpoolTwo responses to the government's green paper "Breaking the Cycle" have been published - see Judiciary website. One is from Lord Justice Thomas (Vice-President of the Queen's Bench Division and Deputy Head of Criminal...
- A Breathtaking Bill Of Which Even Henry Viii Would Have Been Proud ...!
On 28th October, the government's Public Bodies Bill received its first reading in Parliament - actually it has been first introduced via the House of Lords. We all knew that, mainly for economic reasons, a "Bonfire of the Quangos" was being...