Criminal Justice and Immigration Act 2008
2008 c. 4
An Act to make further provision about criminal justice (including provision about the police) and dealing with offenders and defaulters; to make further provision about the management of offenders; to amend the criminal law; to make further provision for combatting crime and disorder; to make provision about the mutual recognition of financial penalties; to amend the Repatriation of Prisoners Act 1984; to make provision for a new immigration status in certain cases involving criminality; to make provision about the automatic deportation of criminals under the UK Borders Act 2007; to amend section 127 of the Criminal Justice and Public Order Act 1994 and to confer power to suspend the operation of that section; and for connected purposes.
[8th May 2008]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
6 Abolition of certain youth orders and related amendments
(1) Chapters 1, 2, 4 and 5 of Part 4 of (and Schedules 3 and 5 to 7 to) the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (curfew orders, exclusion orders, attendance centre orders, supervision orders and action plan orders) cease to have effect.
(2) Part 1 of Schedule 4 makes amendments consequential on provisions of this Part.
(3) Part 2 of Schedule 4 makes minor amendments regarding other community orders which are related to the consequential amendments in Part 1 of that Schedule.
21 Credit for period of remand on bail: terms of imprisonment and detention
(1) The Criminal Justice Act 2003 (c. 44) is amended as follows.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) In the italic heading before section 240, after “custody” insert “ or on bail subject to certain types of condition ”.
(4) After section 240 insert—
Crediting periods of remand on bail: terms of imprisonment and detention
240A (1) This section applies where—
(a) a court sentences an offender to imprisonment for a term in respect of an offence committed on or after 4th April 2005,
(b) the offender was remanded on bail by a court in course of or in connection with proceedings for the offence, or any related offence, after the coming into force of section 21 of the Criminal Justice and Immigration Act 2008, and
(c) the offender's bail was subject to a qualifying curfew condition and an electronic monitoring condition (“the relevant conditions”).
(2) Subject to subsection (4), the court must direct that the credit period is to count as time served by the offender as part of the sentence.
(3) The “credit period” is the number of days represented by half of the sum of—
(a) the day on which the offender's bail was first subject to conditions that, had they applied throughout the day in question, would have been relevant conditions, and
(b) the number of other days on which the offender's bail was subject to those conditions (excluding the last day on which it was so subject),
rounded up to the nearest whole number.
(4) Subsection (2) does not apply if and to the extent that—
(a) rules made by the Secretary of State so provide, or
(b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection.
(5) Where as a result of paragraph (a) or (b) of subsection (4) the court does not give a direction under subsection (2), it may give a direction in accordance with either of those paragraphs to the effect that a period of days which is less than the credit period is to count as time served by the offender as part of the sentence.
(6) Rules made under subsection (4)(a) may, in particular, make provision in relation to—
(a) sentences of imprisonment for consecutive terms;
(b) sentences of imprisonment for terms which are wholly or partly concurrent;
(c) periods during which a person granted bail subject to the relevant conditions is also subject to electronic monitoring required by an order made by a court or the Secretary of State.
(7) In considering whether it is of the opinion mentioned in subsection (4)(b) the court must, in particular, take into account whether or not the offender has, at any time whilst on bail subject to the relevant conditions, broken either or both of them.
(8) Where the court gives a direction under subsection (2) or (5) it shall state in open court—
(a) the number of days on which the offender was subject to the relevant conditions, and
(b) the number of days in relation to which the direction is given.
(9) Subsection (10) applies where the court—
(a) does not give a direction under subsection (2) but gives a direction under subsection (5), or
(b) decides not to give a direction under this section.
(10) The court shall state in open court—
(a) that its decision is in accordance with rules made under paragraph (a) of subsection (4), or
(b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.
(11) Subsections (7) to (10) of section 240 apply for the purposes of this section as they apply for the purposes of that section but as if—
(a) in subsection (7)—
(i) the reference to a suspended sentence is to be read as including a reference to a sentence to which an order under section 118(1) of the Sentencing Act relates;
(ii) in paragraph (a) after “Schedule 12” there were inserted “ or section 119(1)(a) or (b) of the Sentencing Act ”; and
(b) in subsection (8) the reference to subsection (3) of section 240 is to be read as a reference to subsection (2) of this section and, in paragraph (b), after “Chapter” there were inserted “ or Part 2 of the Criminal Justice Act 1991 ”.
(12) In this section—
“electronic monitoring condition” means any electronic monitoring requirements imposed under section 3(6ZAA) of the Bail Act 1976 for the purpose of securing the electronic monitoring of a person's compliance with a qualifying curfew condition;
“qualifying curfew condition” means a condition of bail which requires the person granted bail to remain at one or more specified places for a total of not less than 9 hours in any given day; and
“related offence” means an offence, other than the offence for which the sentence is imposed (“offence A”), with which the offender was charged and the charge for which was founded on the same facts or evidence as offence A.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) In section 242 (interpretation of sections 240 and 241), in the title and in subsection (1), after “sections 240” insert “ , 240A ”.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22 Credit for period of remand on bail: other cases
(1) The Criminal Justice Act 2003 (c. 44) is amended in accordance with subsections (2) and (3).
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) In paragraph 2 of Schedule 2 to the Criminal Appeal Act 1968 (c. 19) (sentence on conviction at retrial), in sub-paragraph (4), for the words from the beginning to “custody:” substitute “ Sections 240 and 240A of the Criminal Justice Act 2003 (crediting of periods of remand in custody or on bail subject to certain types of condition: ”.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) In paragraph 2(1) of Schedule 7 to the International Criminal Court Act 2001 (c. 17) (provisions of law of England and Wales affecting length of sentence which are not applicable to ICC prisoners), for paragraph (d) substitute—
(d) sections 240 and 240A of the Criminal Justice Act 2003 (crediting of periods spent on remand in custody or on bail subject to certain types of condition: terms of imprisonment and detention).
24 Minimum conditions for early release under section 246(1) of Criminal Justice Act 2003
In section 246(2) of the Criminal Justice Act 2003 (c. 44) (minimum conditions for early release of fixed-term prisoner other than intermittent custody prisoner) for paragraph (b) substitute
and
(b) he has served—
(i) at least 4 weeks of that period, and
(ii) at least one-half of that period.
25 Release on licence under Criminal Justice Act 2003 of prisoners serving extended sentences
(1) Section 247 of the Criminal Justice Act 2003 (release on licence of prisoner serving extended sentence) is amended as follows.
(2) In subsection (2)—
(a) the word “and” at the end of paragraph (a) is omitted, and
(b) paragraph (b) is omitted.
(3) Subsections (3), (4), (5) and (6) are omitted.
30 Further review and release of prisoners after recall
(1) Section 256 of the Criminal Justice Act 2003 (c. 44) (further release after recall) is amended as follows.
(2) In subsection (1) for paragraph (b) substitute—
(b) determine the reference by making no recommendation as to his release.
(3) In subsection (2) omit “or (b)”.
(4) Subsections (3) and (5) cease to have effect.
(5) In consequence of the amendments made by section 29 and this section, the heading to section 256 becomes “ Review by the Board ”.
(6) After section 256 insert—
Further review
256A (1) The Secretary of State must, not later than the first anniversary of a determination by the Board under section 256(1) or subsection (4) below, refer the person's case to the Board.
(2) The Secretary of State may, at any time before that anniversary, refer the person's case to the Board.
(3) The Board may at any time recommend to the Secretary of State that a person's case be referred under subsection (2).
(4) On a reference under subsection (1) or (2), the Board must determine the reference by—
(a) recommending the person's immediate release on licence under this Chapter,
(b) fixing a date for his release on licence, or
(c) making no recommendation as to his release.
(5) The Secretary of State—
(a) where the Board makes a recommendation under subsection (4)(a) for the person's immediate release on licence, must give effect to the recommendation; and
(b) where the Board fixes a release date under subsection (4)(b), must release the person on licence on that date.
31 Recall of life prisoners: abolition of requirement for recommendation by Parole Board
(1) Section 32 of the Crime (Sentences) Act 1997 (c. 43) (recall of life prisoners while on licence) is amended as follows.
(2) For subsections (1) and (2) (power of Secretary of State to revoke licence) substitute—
(1) The Secretary of State may, in the case of any life prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.
(3) In subsection (3) (representations by prisoner) for “subsection (1) or (2) above” substitute “ this section ”.
(4) In subsection (4) (reference to Parole Board by Secretary of State) for paragraphs (a) and (b) substitute “ the case of a life prisoner recalled under this section ”.
(1) In Part 12 of the Criminal Justice Act 2003 (c. 44) (sentencing) Chapter 6 (release on licence) is amended as follows.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Section 260 (early removal of prisoners liable to removal from United Kingdom) is amended as follows.
(4) In subsection (1) (the power of removal)—
(a) for “subsections (2) and (3)” substitute “ subsection (2) ”, and
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) For subsection (2) (conditions relating to time) substitute—
(2) Subsection (1) does not apply in relation to a prisoner unless he has served at least one-half of the requisite custodial period.
(6) Subsections (3) and (3A) (cases where subsection (1) does not apply) cease to have effect.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) In subsection (6) (order-making powers)—
(a) in paragraph (a) omit “or (3)(e)”,
(b) omit paragraph (b), and
(c) in paragraph (c) for “subsection (2)(b)(ii)” substitute “ subsection (2) ”.
(9) For subsection (7) (meaning of “requisite custodial period”) substitute—
(7) In this section “requisite custodial period”—
(a) in relation to a prisoner serving an extended sentence imposed under section 227 or 228, means one-half of the appropriate custodial term (determined by the court under that section);
(b) in any other case, has the meaning given by paragraph (a), (b) or (d) of section 244(3).
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40 Power to impose attendance centre requirement on fine defaulter
(1) Section 300 of the Criminal Justice Act 2003 (c. 44) (power to impose unpaid work requirement or curfew requirement on fine defaulter) is amended as follows.
(2) In the heading for “or curfew requirement” substitute “ curfew requirement or attendance centre requirement ”.
(3) In subsection (2), at the end of paragraph (b) insert
, or
(c) in a case where the person is aged under 25, an attendance centre requirement (as defined by section 214)
.
(1) Part 3 of Schedule 5 to the Courts Act 2003 (c. 39) (attachment of earnings orders and applications for benefit deductions) is amended as follows.
(2) After paragraph 9 insert—
Disclosure of information in connection with application for benefit deductions
9A (1) The designated officer for a magistrates' court may make an information request to the Secretary of State for the purpose of facilitating the making of a decision by the court as to whether it is practicable or appropriate to make an application for benefit deductions in respect of P.
(2) An information request is a request for the disclosure of some or all of the following information—
(a) P's full name;
(b) P's address (or any of P's addresses);
(c) P's date of birth;
(d) P's national insurance number;
(e) P's benefit status.
(3) On receiving an information request, the Secretary of State may disclose the information requested to—
(a) the officer who made the request, or
(b) a justices' clerk specified in the request.
Restrictions on disclosure
9B (1) A person to whom information is disclosed under paragraph 9A(3), or this sub-paragraph, may disclose the information to any person to whom its disclosure is necessary or expedient in connection with facilitating the making of a decision by the court as to whether it is practicable or appropriate to make an application for benefit deductions in respect of P.
(2) A person to whom such information is disclosed commits an offence if the person—
(a) discloses or uses the information, and
(b) the disclosure is not authorised by sub-paragraph (1) or (as the case may be) the use is not for the purpose of facilitating the making of such a decision as is mentioned in that sub-paragraph.
(3) But it is not an offence under sub-paragraph (2)—
(a) to disclose any information in accordance with any enactment or order of a court or for the purposes of any proceedings before a court; or
(b) to disclose any information which has previously been lawfully disclosed to the public.
(4) It is a defence for a person charged with an offence under sub-paragraph (2) to prove that the person reasonably believed that the disclosure or use was lawful.
(5) A person guilty of an offence under sub-paragraph (2) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
Paragraphs 9A and 9B: supplementary
9C (1) This paragraph applies for the purposes of paragraphs 9A and 9B.
(2) “Benefit status”, in relation to P, means whether or not P is in receipt of any prescribed benefit or benefits and, if so (in the case of each benefit)—
(a) which benefit it is,
(b) where it is already subject to deductions under any enactment, the nature of the deductions concerned, and
(c) the amount received by P by way of the benefit, after allowing for any such deductions.
(3) “Information” means information held in any form.
(4) “Prescribed” means prescribed by regulations made by the Lord Chancellor.
(5) Nothing in paragraph 9A or 9B authorises the making of a disclosure which contravenes the Data Protection Act 1998.
42 Power to dismiss certain appeals following references by the CCRC: England and Wales
After section 16B of the Criminal Appeal Act 1968 (c. 19) insert—
Appeals following references by the CCRC
Power to dismiss certain appeals following references by the CCRC
16C (1) This section applies where there is an appeal under this Part following a reference by the Criminal Cases Review Commission under section 9(1)(a), (5) or (6) of the Criminal Appeal Act 1995 or section 1(1) of the Criminal Cases Review (Insanity) Act 1999.
(2) Notwithstanding anything in section 2, 13 or 16 of this Act, the Court of Appeal may dismiss the appeal if—
(a) the only ground for allowing it would be that there has been a development in the law since the date of the conviction, verdict or finding that is the subject of the appeal, and
(b) the condition in subsection (3) is met.
(3) The condition in this subsection is that if—
(a) the reference had not been made, but
(b) the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law,
the Court would not think it appropriate to grant the application by exercising the power conferred by section 18(3).
43 Power to dismiss certain appeals following references by the CCRC: Northern Ireland
After section 13A of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) insert—
Appeals following references by the CCRC
Power to dismiss certain appeals following references by the CCRC
13B (1) This section applies where there is an appeal under this Part following a reference by the Criminal Cases Review Commission under section 10(1)(a), (6) or (7) of the Criminal Appeal Act 1995 or section 1(1) of the Criminal Cases Review (Insanity) Act 1999.
(2) Notwithstanding anything in section 2, 12 or 13A of this Act, the Court of Appeal may dismiss the appeal if—
(a) the only ground for allowing it would be that there has been a development in the law since the date of the conviction, verdict or finding that is the subject of the appeal, and
(b) the condition in subsection (3) is met.
(3) The condition in this subsection is that if—
(a) the reference had not been made, but
(b) the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law,
the Court would not think it appropriate to grant the application by exercising the power conferred by section 16(2).
44 Determination of prosecution appeals: England and Wales
In section 61 of the Criminal Justice Act 2003 (c. 44) (determination of prosecution appeal by Court of Appeal) for subsection (5) substitute—
(5) But the Court of Appeal may not make an order under subsection (4)(c) in respect of an offence unless it considers that the defendant could not receive a fair trial if an order were made under subsection (4)(a) or (b).
45 Determination of prosecution appeals: Northern Ireland
In Article 20 of the Criminal Justice (Northern Ireland) Order 2004 (S.I. 2004/1500 (N.I.9)) (determination of prosecution appeal by Court of Appeal) for paragraph (5) substitute—
(5) But the Court of Appeal may not make an order under paragraph (4)(c) in respect of an offence unless it considers that the defendant could not receive a fair trial if an order were made under paragraph (4)(a) or (b).
46 Review of sentence on reference by Attorney General
(1) Section 36 of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) is amended as follows.
(2) In subsection (3A) (as amended by paragraph 89(3) of Schedule 24 to the Sentencing Act 2020) omit “in respect of an offence the sentence for which is fixed by law
(3) In subsection (9) after paragraph (b) insert
, and
(c) the reference in subsection (3A) to an order specified in subsection (3B) shall be construed as a reference to an order under Article 5(1) of the Life Sentences (Northern Ireland) Order 2001.
47 Further amendments relating to appeals in criminal cases
Schedule 8 amends the Criminal Appeal Act 1968 (c. 19), the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) and other Acts relating to appeals in criminal cases.
48 Alternatives to prosecution for offenders under 18
(1) Schedule 9 amends the Crime and Disorder Act 1998 (c. 37)—
(a) to make provision for the giving of youth conditional cautions to children and young persons, ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) The Secretary of State may by order amend the Crime and Disorder Act 1998 (c. 37), as amended by Schedule 9, so as to vary the provision made by it for the giving of youth conditional cautions to children and young persons under the age of 16 (including doing so by adding or omitting any provision).
49 Protection for spent cautions under Rehabilitation of Offenders Act 1974
(1) Schedule 10 amends the Rehabilitation of Offenders Act 1974 (c. 53) so as to provide for the protection of spent cautions.
(2) The provisions of Schedule 10 (and this section) extend only to England and Wales.
50 Criminal conviction certificates and criminal record certificates
(1) Part 5 of the Police Act 1997 (c. 50) (certificates of criminal records) is amended as follows.
(2) In section 112 (criminal conviction certificates)—
(a) in the definition of “central records”, after “convictions” insert “ and conditional cautions ”;
(b) after that definition insert—
“conditional caution” means a caution given under section 22 of the Criminal Justice Act 2003 (c. 44) or section 66A of the Crime and Disorder Act 1998, other than one that is spent for the purposes of Schedule 2 to the Rehabilitation of Offenders Act 1974.
(3) In section 113A(6) (criminal record certificates)—
(a) in the definition of “exempted question”, after “a question” insert
which—
“(a) so far as it applies to convictions, is a question
;
(b) in that definition, at the end insert
; and—
“(b) so far as it applies to cautions, is a question to which paragraph 3(3) or (4) of Schedule 2 to that Act has been excluded by an order of the Secretary of State under paragraph 4 of that Schedule;
;
(c) in the definition of “relevant matter”, after “caution” insert “ , including a caution that is spent for the purposes of Schedule 2 to that Act ”.
(4) This section extends to England and Wales only.