HL Deb 21 July 1977 vol 386 cc535-45

MATTERS ANCILLARY TO SECTION (Prison sentence partly served and partly suspended) Probation orders

1. Where a court makes an order under section (Prison sentence partly served and partly suspended) (1) above with respect to a sentence of imprisonment, it shall not make a probation order in the offender's case in respect of another offence of which he is convicted by or before that court, or for which he is dealt with by that court.

Courts competent to restore sentence held in suspense

3.—(1) In relation to a sentence of imprisonment part of which is held in suspense, the courts competent under section (Prison sentence partly served and partly suspended) (3) above are—

  1. (a) the Crown Court; and
  2. (b) where the sentence was passed by a magistrates' court, any magistrates court before which the offender appears or is brought.

(2) Where an offender is convicted by a magistrates' court of an offence punishable with imprisonment and the court is satisfied that the offence was committed during the whole period of a sentence passed by the Crown Court with art order under section (Prison sentence partly served and partly suspended) (1) above—

  1. (a) it may, if it thinks fit, commit him in custody or on bail to the Crown Court; and
  2. (b) if it does not, it shall give written notice of the conviction to the appropriate officer of that court.

(3) For the purposes of this and the next following paragraph, a sentence of imprisonment passed on an offender with an order under section (Prison sentence partly served and partly suspended) (1) above shall be treated as having been passed (with such an order) by the court which originally sentenced him.

Recall of offender on re-conviction

3.—(1) If it appears to the Crown Court, where that court has jurisdiction in accordance with sub-paragraph (2) below, or to a justice of the peace having jurisdiction in accordance with that subparagraph that an offender has been convicted in Great Britain of an offence punishable with imprisonment committed during the whole period of a sentence passed with an order under section (Prison sentence partly served and partly suspended) (1) above and that he has not been dealt with in respect of the part of the sentence held in suspense, that court or justice may, subject to the following provisions of this paragraph, issue a summons requiring the offender to appear at the place and time specified therein, or a warrant for his arrest.

(2) Jurisdiction for the purposes of subparagraph (1) above may be exercised—

  1. (a) if the sentence was passed by the Crown Court, by that court;
  2. (b) if it was passed by a magistrates' court, by a justice acting for the area for which that court acted.

(3) Where an offender is convicted by a court in Scotland of an offence punishable with imprisonment and the court is informed that the offence was committed during the whole period of a sentence passed in England and Wales with an order under section (Prison sentence partly served and partly suspended) (1) above, the court shall give written notice of the conviction to the appropriate officer of the court by which the original sentence was passed.

(4) Unless he is acting in consequence of a notice under sub-paragraph (3) above, a justice of the peace shall not issue a summons under this paragraph except on information and shall not issue a warrant under this paragraph except on information in writing and on oath.

(5) A summons or warrant issued under this paragraph shall direct the offender to appear or to be brought before the court by which the original sentence of imprisonment was passed.

Miscellaneous (procedural)

4. Where the offender is before the Crown Court with a view to the exercise by that court of its powers under section (Prison sentence partly served and partly suspended) (3) above, any question whether and, if so, when he has been convicted of an offence shall be determined by the court and not by the verdict of a jury.

5. Where the offender has been before a court with a view to its exercising those powers, the appropriate officer shall—

  1. (a) if the court decided not to exercise the powers, record that fact; and
  2. (b) whether or not it exercised them, notify the appropriate officer of the court which passed the original sentence as to the manner in which the offender was dealt with.

6. For the purposes of any enactment conferring rights of appeal in criminal cases, the restoration by a court under section (Prison sentence partly served and partly suspended) (3) above of a part of a sentence held in suspense shall be treated as a sentence passed on the offender by that court for the original offence, that is to say the offence for which the original sentence was passed with an order under section (Prison sentence partly served and partly suspended) (1) above.

Miscellaneous (consequential)

7. Where a sentence of imprisonment is passed with an order under section (Prison sentence partly served and partly suspended) (1) above, it is still to be regarded for all purposes as a sentence of imprisonment for the term stated by the court, notwithstanding that part of it is held in suspense by virtue of the order; and, for the avoidance of doubt, a sentence of which part is held in suspense by virtue of such an order is not to be regarded as falling within the expression "suspended sentence" for the purposes of any legislation, instrument or document.

8. Where an offender is sentenced to imprisonment with an order under section (Prison sentence partly served and partly suspended) above and, having served part of the sentence in prison, is discharged under section 25(1) of the Prison Act 1952 (remission for industry and good conduct), the remainder of the sentence being held in suspense, the sentence is not to be regarded as expiring under that section.

9. In section 21 of the Firearms Act 1968 (prohibition on possession of firearms by persons previously convicted of crime), after subsection (2) there shall be inserted— (2A) For the purposes of subsection (2) above, 'the date of his release', in the case of a person sentenced to imprisonment with an order under section (Prison sentence partly served and partly suspended) (1) of the Criminal Law Act 1977, is the date on which he completes service of so much of the sentence as was by that order required to be served in prison".

10. In section 67 of the Criminal Justice Act 1967 (computation of sentence where offender has been previously in custody), in subsection (1), after "arose, but" there shall be inserted "(a)", and at the end of that subsection there shall be inserted— (b) in the case of a person sentenced to imprisonment with an order under section (Prison sentence partly served and partly suspended) of the Criminal Law Act 1977, this subsection operates to reduce the part of the sentence ordered to be served in prison, but not any part held in suspense and restored under subsection (3) of that section".

11. In section 1 of the Rehabilitation of Offenders Act 1974 (general principle as to rehabilitation when convict ion is spent), after subsection (2) there shall be inserted— (2A) Where in respect of a conviction a person has been sentenced to imprisonment with an order under section (Prison sentence partly served and partly suspended) (1) of the Criminal Law Act 1977, he is to be treated for the purposes of subsection (2) above as having served the sentence as soon as he completes service of so much of the sentence as was by that order required to be served in prison".

123 Page 67, line 8, after "with" insert "(i)".

124 Page 67, line 9, leave out "with" and insert "(ii)".

125 Page 67, line 11, leave out "with" and insert "(iii)".

126 Page 67, line 17, leave out "not mentioned in the preceding paragraph" and insert "(whether or not involving the death of a person other than the deceased)".

127 Page 67, line 19, after "deceased", insert "not being art offence within paragraph (a)(i), (ii) or (iii) above".

128 Page 68, line 13, leave out from "proceedings" to end of line 20 and insert— (b) the coroner shall, after the termination of the inquest, furnish the registrar of deaths with a certificate under his hand stating the result of the relevant criminal proceedings; and (c) the provisions of paragraph (3) of section 18 of the Coroners Act 1887 and section 23(1) of the Births and Deaths Registration Act 1953 (duty of coroner to send registrar certificate containing information as to death and finding of inquest) shall not apply in relation to that inquest".

129 Schedule 8, page 71, line 26, at end insert—

  1. "(1A) This subsection applies to the following enactments (by virtue of which certain byelaws may make persons contravening the byelaws liable on summary conviction to a fine not exceeding £20), namely—
    1. (a) section 203 of the Local Government (Scotland) Act 1973 (offences against byelaws) but (the provisions of section 462(11) of this Act notwithstanding) not that section as applied to byelaws made under any provision contained in a local or private Act other than by a local authority; and
    2. (b) paragraph 5 of Schedule 6 to the Weights and Measures Act 1963 (byelaws about solid fuel), including that paragraph as extended to wood fuel by paragraph 4 of Part IV of Schedule 7 to that Act.
  2. (1B) In the enactments to which subsection (1A) above applies for any reference to £20 there shall be substituted a reference to £50; and any provision in force at the coming into force of this subsection which—
    1. (a) is contained in any byelaw made by virtue of any enactment to which subsection (1A) above applies; and
    2. (b) specifies £20 as the maximum fine which may be imposed on summary conviction in respect of a contravention of, or offence under, any byelaw mentioned in that provision,
    shall have effect as if it specified £50 instead (but with no change by virtue of this subsection in the maximum daily fine, if any, for which it provides).".

130 Page 73, line 26, at end insert— 7A. In section 397(1) for the words 'or under section 72A of the Magistrates' Courts Act 1952' there shall be substituted the words ', under section 72A of the Magistrates' Courts Act 1952 or under section 104A of the Magistrates' Courts Act (Northern Ireland) 1964'.".

131 Page 74, line 18, leave out from "under" to end of line 32.

132 Page 75, line 13, at end insert—

133 Page 75, line 22, at end insert "Food and Drugs Act 1955"

134 Page 75, line 30, at end insert "Late Night Refreshment Houses Act 1969"

135 Schedule 9, page 75, line 33, at end insert—

"NIGHT POACHING ACT 1928 (c. 69)

1. In section 2 (assaults by persons committing offences under the Act), for the words from 'whether it be' onwards substitute 'be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £500, or to both'.

2. In section 9 (entering land, with others, armed and for the purpose of taking or destroying game or rabbits), for the words from 'at the discretion of the court' onwards substitute 'on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £500, or to both.'."

136 Schedule 9, page 75, line 46, at end insert—

"EXPLOSIVE SUBSTANCES ACT 1883 (c.3)

In section 3(1) (attempt to cause explosion, or making or keeping explosive, with intend to endanger life or property in the United Kingdom or the Republic of Ireland), for 'a term not exceeding twenty years' substitute 'life'.".

137 Page 76, line 29, at end insert—

"REPRESENTATION OF THE PEOPLE ACT 1949 (c. 68)

In section 149(9) (procedure where person prosecuted before an election court subsequently attends or is brought before a magistrates' court)—

  1. (a) in paragraph (b), for 'hear' substitute 'try'; and
  2. (b) after that paragraph add 'and sections 19 to 26 of the Criminal Law Act 1977 shall (in either case) not apply.'.".

138 Page 78, line 32, at end insert—

"BIRTHS AND DEATHS REGISTRATION ACT 1953 (c. 20)

In section 29(4) (correction of error in register resulting from error in information given by a coroner's certificate), for the words preceding 'the coroner, if satisfied' substitute— (4) where—

  1. (a) an error of fact or substance (other than an error relating to the cause of death) occurs in the information given by a coroner's certificate concerning a dead body upon which or a death touching which he has held an inquest; or
  2. (b) such an error relating to the cause of death occurs in the information given by a coroner's certificate issued under section 20(4) of the Coroners (Amendment) Act 1929 in the case of an inquest which was adjourned in compliance with section 20(1) of that Act (adjuornment in cases of murder etc. or at request of D.P.P.) but was subsequently resumed,'.".

139 Page 78, line 32, leave out lines 34 to 36 and insert—

  1. "1. A prosecution for an offence to which paragraph 14 or 15 (incest and attempts thereat) of Part II of Schedule 2 table of offences with mode of prosecution) relates shall not be commenced except by 540 or with the consent of the Director of Public Prosecutions; and accordingly in sub-paragraph (a) and (b) of each of those paragraphs, in the second column, for the words from 'without' to 'behalf' substitute 'except by or with the consent'.
  2. 2. In paragraphs 17 and 18 of the said Part II (indecent assault)—".

140 Page 78, line 44, at end insert—

"ADOPTION ACT 1958 (7 & 8 Eliz. 2. c. 5.)

In section 50 (prohibition of certain payments), after subsection (3) insert:— '(3A) This section does not apply to—

  1. (a) any payment made by an adoption agency to a person who has applied or proposes to apply to a court for an adoption order or an order under section 53 of this Act (provisional adoption orders), beng a payment of or towards any legal or medical expenses incurred or to be incurred by that person in connection with the application; or
  2. (b) any payment made by an adoption agency to another adoption agency in consideration of the placing of a child in the actual custody of any person with a view to the child's adoption; or
  3. (c) any payment made by an adoption agency to a voluntary organisation for the time being approved for the purposes of this paragraph by the Secretary of State as a fee for the services of that organisation in putting that adoption agency into contact with another adoption agency with a view to the making of arrangements between the adoption agencies for the adoption of a child,
and never has applied to payments of the kinds mentioned in paragraphs (a) and (b) of this subsection. In paragraph (c) of this subsection "voluntary organisation" means a body, other than a public or local authority, the activities of which are not carried on for profit.'".

141 Page 78, line 44, at end insert:

"OBSCENE PUBLICATIONS ACT 1959 (c. 66)

In section 3(3) (powers of search and seizure) at end add: 'Provided also that this subsection does not apply in relation to any article seized under subsection (1) of this section which is returned to the occupier of the premises or, as the case may be, to the user of the stall or vehicle in or on which it was found'.

142 Page 80, line 30, at end insert: 2. In section 169 (serving or delivering intoxicating liquor to or for consumption by persons under 18)—

  1. (a) in subsection (1) (which prohibits in licensed premises, licence holder or his servant from knowingly selling intoxicating liquor to a person under 18 or allowing such a person to consume it in a bar, and the licence 541 holder from knowingly allowing any person to sell it to a person under 18), for 'subsection (4)' substitute 'subsections (4) and (10)'; and
  2. (b) after subsection (9) add—
'(10) Where, as regards any licensed premises, the holder of the licence is charged with an offence under subsection (1) of this section in a case in which it is proved or admitted that he did not personally have the knowledge required for the commission of the offence charged, he shall not be convicted of the offence on the basis of anothor's knowledge if he proves that he exercised all due diligence to avoid the commission of an offence under that subsection.'".

143 Page 82, line 14, at end insert: 1A. In section 22, as amended by paragraph 37 of Schedule 2 to the Bail Act 1976 (extension of power of High Court to grant, or vary conditions of, bail)—

  1. (a) in subsections (1) and (2) for 'inferior court' substitute 'magistrates' court'; and
  2. (b) in subsection (4) omit '"inferior court" means a magistrates' court or a coroner and'.".

144 Page 82, line 14, at end, insert: 1B. In section 23(2) (requirements as to bringing before a justice of the peace or court a person arrested after admission to bail), after paragraph (b) insert— 'In reckoning for the purposes of this subsection any period of twenty-four hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.'".

145 Page 82, line 35, at end insert— 2A. In section 44(5) (restrictions on magistrates' court's power to issue a warrant of commitment for a default in paying a sum adjudged to be paid by conviction), for paragraph (b) substitute— '(b) the court—

  1. (i) is satisfied that the default is due to the offender's wilful refusal or culpable neglect; and
  2. (ii) has considered or tried all other methods of enforcing payment of the sum and it appears to the court that they are inappropriate or unsuccessful.'".

146 Page 85, line 11, at end insert— 6. In section 91 (Drunkenness in a public place) omit subsection (5).

147 Page 85, line 11, at end insert—

"COMPANIES ACT 1967 (c. 81)

1. In section 49(1) (certain offences to be triable summarily), after 'triable' insert 'only'.

2. Paragraph 1 above shall be deemed to have had effect as from the passing of the Companies Act 1967.".

148 Page 85, line 50, at end insert—

"GAMING ACT 1968 (c. 65)

In section 8(7) (offences) for 'section 67' substitute 'section 68'

149 Page 86, line 1, at end insert— Al.—(1) Section 12 (power to include requirements in supervision orders) shall be amended as follows.

(2) In subsection (2) (directions which order may empower supervisor to give), omit paragraph (a) (directions to live for a single period at a place specified by the supervisor) and for 'paragraph (a) or (b) or paragraph (a) and (b)' substitute 'paragraph (b)'.

(3) In subsection (3) (restrictions as to periods specified in supervisor's directions)—

  1. (a) for paragraph (a) substitute—
    1. '(a) the aggregate of the periods specified in directions given by virtue of that subsection shall not exceed ninety days or such shorter period, if any, as the order may specify for the purposes of this paragraph;'
  2. (b) omit paragraphs (b), (c) and (d) and, in paragraph (e), the words from 'and if' onwards.".

150 Page 86, line 5, at end insert—

  1. "1A. In Section 15(1) (variation and discharge of supervision order where supervised person is under the age of eighteen) for the words from 'twelve months' to 'with that date' substitute 'three months beginning with the date when the order was originally made', and omit 'in either case'.
  2. 1B. In section 16(10) (meaning of attendance centre order' etc. for the purpose of section 15(4)(a))
    1. (a) after 'In', where it first occurs, insert paragraph (b) of subsection (2A) and';
    2. (b) for 'that paragraph' substitute 'each of those paragraphs';
    3. (c) for section 15(4) substitute 'section 15(2A) or (4)'.".

151 Page 86, line 9, at end insert— 3. Paragraphs A1 and 1A above, and any related repeal provided for in Schedule 10 to this Act, shall not apply in relation to supervision orders made before the coming into force of those paragraphs.".

152 Page 86, line 9, at end insert—

"ROAD TRAFFIC ACT 1972 (c. 20)

1. In section 179 (restrictions in prosecutions for certain offences), in subsection (1) (offences to which section applies), after paragraph (a) insert — '(aa) any offence under subsection (4) of section 13 of the Road Traffic Regulation Act 1967 (traffic regulation on special roads) consisting of failure to observe a speed limit imposed by regulations under that section; and'.

2. In Part I of Schedule 4 (prosecution and punishment of offences), in column 7 (additional provisions)—

  1. (a) in the entry relating to section 3, for '4' substitute '3A, 4, 5';
  2. (b) in the entry relating to section 18, after 'paragraphs' insert '3A'.

3.—(1) Part IV of Schedule 4 (supplementary provisions as to prosecution, trial and punishment of offences) shall be amended as follows.

(2) After paragraph 3 insert the following paragraph— '3A.—(1) Where on a person's trial on indictment in England or Wales for an offence under section 1, 2, or 17 the jury find him not guilty of the offence specifically charged in the indictment, they may (without prejudice to section 6(3) of the Criminal Law Act 1967) find him guilty—

  1. (a) if the offence so charged is an offence under section 1 or 2, of an offence under section 3; or
  2. (b) if the offence so charged is an offence under section 17, of an offence under section 18.

(2) The Crown Court shall have the like powers and duties in the case of a person who is by virtue of this paragraph convicted before it of an offence under section 3 or 18 as a magistrates' court would have had on convicting him of that offence.'.

(3) In paragraph 5 (by virtue of which, on a prosecution on indictment for an offence to which section 179 does not apply, subsection (2) of that section does not prejudice any power of the jury to find him guilty of an offence under section 2)—

  1. (a) after 'apply', insert 'or (if that section does not apply) as regards which the requirement of section 179(2) has been satisfied, or does not apply,';
  2. (b) after 'section 2', add 'or 3 '.".

153 Page 86, line 9, line 14, at end insert: 1. In section 34(1) (power of constable to take drunken offender to a place approved by the Secretary of State as a medical treatment centre for alcoholics), omit 'medical'.".

154 Page 86, line 17, leave out "twenty-one" and insert "twenty-eight".

155 Page 87, line 50, at end insert: 4. In section 15(2) (period within which work under a community service order is to be performed), at the end add'; but, unless revoked, the order shall remain in force until the offender has worked under it for the number of hours specified in it.'.

156 Page 90, line 31, at end insert:

"ADOPTION ACT 1976 (c. 36)

1. In section 28(8), for 'subsection (6)' substitute 'subsection (7)'.

2. In section 57 (prohibition of certain payments), after subsection (3) insert— '(3A) This section does not apply to—

  1. (a) any payment made by an adoption agency to a person who has applied or proposes to apply to a court for an adoption order or an order under section 55 (adoption of children abroad), being a payment of or towards any legal or medical expenses incurred or to be incurred by that person in connection with the application; or
  2. (b) any payment made by an adoption agency to another adoption agency 544 in consideration of the placing of a child in the actual custody of any person with a view to the child's adoption; or
  3. (c) any payment made by an adoption agency to a voluntary organisation for the time being approved for the purposes of this paragraph by the Secretary of State as a fee for the services of that organisation in putting that adoption agency into contact with another adoption agency with a view to the making of arrangements between the adoption agencies for the adoption of a child.
In paragraph (c) "voluntary organisation" means a body, other than a public or local authority, the activities of which are not carried on for profit.'.

157 Page 90, line 34, at end insert— 2. In section 3(8) (power of court granting bail to vary conditions of bail or impose conditions in respect of bail (granted unconditionally)—

  1. (a) for 'it may' substitute 'that court or, where that court has committed a person on bail to the Crown Court for trial or to be sentenced or otherwise dealt with, that court or the Crown Court may'
  2. (b) for 'it was' substitute 'bail was'
  3. (c) for 'it has' substitute 'has been'.".

158 Page 90, line 34, at end insert— 3. In section 7(4) (requirements as to bringing before a justice of the peace or court a person arrested after release on bail), after paragraph (b) insert— 'In reckoning for the purposes of this subsection any period of 24 hours, no account shall be taken of Christmas Day, Good Friday or any Sunday.'.

159 Page 90, line 34, at end insert— 4.—(1) Section 5 (supplementary provisions about bail) shall be amended as follows. (2) After subsection (8) insert—

  1. '(8A) An order under subsection (7) above shall, unless previously revoked, take effect at the end of twenty-one days beginning with the day on which it is made.
  2. (8B) A court which has ordered the forfeiture of a security under subsection (7) above may, if satisfied on an application made by or on behalf of the person who gave it that he did after all have reasonable cause for his failure to surrender to custody, by order remit the forfeiture or declare that it extends to such amount less than the full value of the security as it thinks fit to order.
  3. (8C) An application under subsection (8B) above may be made before or after the order for forfeiture has taken effect, but shall not be entertained unless the court is satisfied that the prosecution was given reasonable notice of the applicant's intention to make it.

(3) After subsection (9) insert— '(9A) Where an order is made under subsection (8B) above after the order for forfeiture of the security in question has taken effect, any money which would have fallen to be repaid or paid over to the person who gave the security if the order under subsection (8B) had been made before the order for forfeiture took effect shall be repaid or paid over to him'.

160 Page 91, line 11, at end insert—

"9 Geo. 4. c. 69. Night Poaching Act 1828. Sections 4 and 11.
1 & 2 Will.4 c. 37. Truck Act 1831. Section 10."

161 Page 91, line 35, at end insert—

"5O&51 Vict. c. 46. Truck Amendment Act 1887. Section 13(1) and (3)."

162 Page 92, line 5, column 3, leave out 'paragraph 2(3)' and insert 'paragraphs 2(3) and 3(1)'.

163 line 11, at end insert—

"12,13 & 14 Geo. 6 c. 101. Justices of the Peace Act 1949. Section43(3)."

164 Page 92, line 13, column 3, at end insert—

"Section 285(1)."

165 Page 92, line 17, column 3, at end insert—

"Section 102(3)."

166 Page 92, line 25, column 3, at end insert—

"In Schedule 3, paragraph 3.",

167 Page 92, line 50, column 3, at beginning insert—

"In the proviso to section 1(3), the words from 'a cinematograph exhibition' to 'in the course of'."

Lord HARRIS of GREENWICH

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 114 to 167 en bloc.

Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Harris of Greenwich.)