Criminal Justice and Immigration Act 2008
Encyclopedia
The Criminal Justice and Immigration Act 2008 (c 4) is an Act
of the Parliament of the United Kingdom
which makes significant changes in many areas of the criminal justice system in England and Wales
and, to a lesser extent, in Scotland
and Northern Ireland
. In particular, it changes the law relating to custodial sentences
and the early release
of prisoners to reduce prison overcrowding, which reached crisis levels in 2008. It also reduces the right of prison officer
s to take industrial action
, and changed the law on the deportation of foreign criminals. It received royal assent
on 8 May 2008, but most of its provisions will come into force on later dates. Many sections came into force on 14 July 2008.
by the Minister of State
for Justice, David Hanson
. The Bill was referred to committee and carried over to the 2007–08 session. It was reintroduced into the House of Commons by the Secretary of State for Justice, Jack Straw
, on 7 November 2007.
Section 11 deals with adult offenders, and provides that adult community orders may not be imposed unless the offence is imprisonable, or unless the offender has been fined (without additional punishment) on three previous occasions. (This section came into force on 14 July 2008.)
Section 35 extends the availability of referral orders (sentences designed to rehabilitate young offenders). Previously only available to first offenders, referral orders may be passed on offenders with previous convictions, subject to certain conditions being met. (This section came into force on 27 April 2009.)
introduced mandatory sentencing
for violent and sexual offenders, which significantly reduced judicial discretion in sentencing defendants who judges considered were a danger to the public. The increase in life sentences
and "extended sentences" which resulted, contributed to a major crisis of prison overcrowding, in which the prison population of England and Wales reached unprecedented levels. Sections 13 to 17 restored a proportion of judicial discretion and imposed stricter criteria for the imposition of such sentences. Section 25 provided for the automatic early release
of prisoners serving extended (as opposed to life) sentences, instead of discretionary release by the Parole Board. (These sections all came into force on 14 July 2008.)
as a condition of bail
, and the power to require the defendant to wear an electronic tag to monitor compliance. Section 21 introduces a new power enabling a court which imposes a custodial sentence to order that half of the time for which the defendant was on a curfew is to count as time served
towards that sentence, provided that the curfew was in force for at least 9 hours each day and that it was monitored by a tag. Although there is a presumption that the court is to make such an order, the court may decline to do so, and is obliged to take into account any breaches of the bail condition. (This power only applies to offences committed on or after 4 April 2005, the last date on which major changes to sentencing were made. This section came into force on 3 November 2008.)
from 3 to 5 years. (This section came into force on 26 January 2009.)
An image is deemed to be extreme if it "is grossly offensive, disgusting or otherwise of an obscene character" and "it portrays, in an explicit and realistic way, any of the following— (a) an act which threatens a person’s life, (b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals, (c) an act which involves sexual interference with a human corpse, or (d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real."
Where (a) or (b) apply, the maximum sentence is 3 years; otherwise the maximum is 2 years. Those sentenced to at least two years will be placed on the Violent and Sex Offender Register
.
Section 64 excludes classified works, but states that extracts from classified works are not exempt, if "it is of such a nature that it must reasonably be assumed to have been extracted (whether with or without other images) solely or principally for the purpose of sexual arousal."
Sections 65 to 66 provide defences to this offence.
(These sections all came into force on 26 January 2009.)
(which creates offences relating to child pornography
) to cover tracings of such photographs or pseudo-photograph
s.
to extend extraterritorial jurisdiction
over sexual offences against children overseas. Section 73 and Schedule 15 extend the definition of the offence of child grooming
. (These provisions all came into force on 14 July 2008.)
to extend hate crime legislation to cover "hatred against a group of persons defined by reference to sexual orientation
(whether towards persons of the same sex, the opposite sex or both)."
To prevent the Act being used to inhibit freedom of speech on the subject of homosexuality, paragraph 14 of Schedule 16 inserts a new section 29JA, entitled "Protection of freedom of expression (sexual orientation)" but sometimes known as the Waddington Amendment (after Lord Waddington
who introduced it). It reads:
The government tried to insert a clause in the 2009 Coroners and Justice Bill
which would have explicitly repealed section 29JA, but the proposed repeal failed and section 29JA remains.
Section 74 and Schedule 16 came into force on 23 March 2010. However, only days later (12 April) Cumbria Police chose to ignore the Waddington Amendment when they arrested and charged street preacher Dale Mcalpine for telling a gay PCSO
that according to the Bible
homosexuality was a sin. When Mcalpine pointed out that the arrest was unlawful (citing Paragraph 14 of Schedule 16, though wrongly attributing it to Lord Carey) the arresting officer refused to listen. Charges were eventually dropped and the police made a formal apology.
over offences under section 1 of that Act, and to increase penalties. It also creates new offences (under sections 1B and 1C) pertaining to nuclear and radioactive material, also with extraterritorial jurisdiction. (This section came into force on 30 November 2009.)
and blasphemous libel
in England and Wales. This section came into force two months after royal assent (that is, on 8 July 2008).
under section 101 to control violent offenders, and are similar to anti-social behaviour orders
. They must be "necessary for the purpose of protecting the public from the risk of serious violent harm caused by the offender." (Part 7 came into force on 3 August 2009.)
. The "specified offences" are attempted murder
, conspiracy to murder
, and offences under sections 4, 18 or 20 of the Offences against the Person Act 1861
(inciting murder
and serious assaults
).
Before deciding whether to make the order, a court may make an interim violent offender order, which lasts until it decides whether or not to make a final order. The court may make an interim order if it decides that it would be "likely" to make a final order if it were dealing with the main application.
An application for a final or interim order can only be made by the police, who can only apply for one if the offender has, since he became eligible for the order, acted in a way that "gives reasonable cause" to believe that the order is necessary. The defendant must be served with a notice giving the time and place of the hearing at which the application will be made. The court must be satisifed that the notice was given before it can hear the application. The court may only make the final order if it decides that the order is necessary to protect the public from "a current risk of serious physical or psychological harm caused by that person committing one or more specified offences." When making this decision the court must take into account any other statutory measures that are in place to protect the public from the person. If the order is made, the defendant may appeal to the Crown Court
, which does not review the decision but decides the matter afresh for itself.
A final or interim order "may contain prohibitions, restrictions or conditions preventing the offender— (a) from going to any specified premises or any other specified place (whether at all, or at or between any specified time or times); (b) from attending any specified event; (c) from having any, or any specified description of, contact with any specified individual." The offender must also notify the police, within 3 days of the order being made, of his date of birth, national insurance number
, his name on the date the order came into force and on the day he notifies the police (or all of his names if he uses more than one), his home address on each of those dates, and the address of any other premises in the United Kingdom at which on the latter date the offender regularly resides or stays, and any other information prescribed by regulations. He must repeat the notification every year (except if it is an interim order), and must notify any subsequent change of name or address within 3 days of the change. He may be fingerprinted and photographed by the police whenever he gives any of these notifications. If he leaves the United Kingdom he may also be required (by regulations made under the Act) to notify, before he leaves, the date he intends to leave, where he intends to go, his movements outside the UK, and any information about his return.
Breaching a violent offender order (whether it is a final or interim order), or failing to make a required notification on time, is an offence punishable with imprisonment for 5 years.
date of prisoners serving sentences greater than 4 years imposed before 4 April 2005. It did not apply to prisoners serving life sentences or serving sentences for violent or sexual offences. This section came into force on 9 June 2008. This was in order to alleviate prison overcrowding.
for his trial or sentence, the hearing should continue without him. (This section came into force on 14 July 2008.)
already employed staff who were not qualified lawyers to prosecute cases at pre-trial hearings and sentences in the magistrates' court. Section 55 grants them the right to prosecute trials for offences which are non-imprisonable and not triable on indictment. The original version of this section, when the Act was still a bill, would have allowed them to prosecute imprisonable, indictable offences. This proved to be controversial, and was amended following representations by concerned groups such as the Bar Council. (This section came into force on 14 July 2008.)
on the subject of self-defence. However it makes no changes to the existing law.
. This permits police and local authorities to apply for a court order to close for a period of three months residential premises associated with persistent noise and nuisance. This section came into force on 1 December 2008.
When an ASBO
is made on a person aged under 17, section 123 will require the courts to review the order every twelve months, until the subject of the order is 18. This section came into force on 1 February 2009.
. It is non-imprisonable and carries a maximum fine of £1,000. This section came into force on 30 November 2009.
Section 122 makes similar provision for Northern Ireland.
and do not have the right of abode
. Designated foreign criminals have a special status under immigration law, and may be required to comply with conditions as to their residence, employment, and compulsory reporting to the police or a government office. Failure to comply is an imprisonable offence. Part 10 is not yet in force.
, on 14 July 2008.)
. These create two new civil orders, which may be imposed by the magistrates' courts, prohibiting the sale of tobacco or cigarette paper, or keeping a cigarette vending machine, for up to one year. Breaching the order is a summary offence punishable with a fine of up to £20,000 (the usual maximum on summary convictions is £5,000). These orders (called restricted premises orders and restricted sale orders) can be imposed on anyone who has been convicted of an offence under section 7 of the 1933 Act, which prohibits selling tobacco to children under 18. (Section 143 came into force on 1 April 2009.)
. However the restriction on prison officers' right to strike came into force on royal assent (8 May 2008), and the abolition of the offence of blasphemy came into force two months later.
Fourteen commencement orders have been made under section 153. The second one brought most of the remaining provisions into effect on 14 July 2008.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
which makes significant changes in many areas of the criminal justice system in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
and, to a lesser extent, in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
and Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. In particular, it changes the law relating to custodial sentences
Imprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....
and the early release
Parole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
of prisoners to reduce prison overcrowding, which reached crisis levels in 2008. It also reduces the right of prison officer
Prison officer
A prison officer , also referred to as a corrections officer , correctional officer , or detention officer , is a person charged with the responsibility of the supervision, safety and security of prisoners in a prison, jail, or similar form of secure...
s to take industrial action
Industrial action
Industrial action or job action refers collectively to any measure taken by trade unions or other organised labour meant to reduce productivity in a workplace. Quite often it is used and interpreted as a euphemism for strike, but the scope is much wider...
, and changed the law on the deportation of foreign criminals. It received royal assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 8 May 2008, but most of its provisions will come into force on later dates. Many sections came into force on 14 July 2008.
The Criminal Justice and Immigration Bill
On 26 June 2007 the Criminal Justice and Immigration Bill was introduced into the House of Commons in the 2006–07 Parliamentary sessionParliamentary session
A legislative session is the period of time in which a legislature, in both parliamentary and presidential systems, is convened for purpose of lawmaking, usually being one of two or more smaller divisions of the entire time between two elections...
by the Minister of State
Minister of State
Minister of State is a title borne by politicians or officials in certain countries governed under a parliamentary system. In some countries a "minister of state" is a junior minister, who is assigned to assist a specific cabinet minister...
for Justice, David Hanson
David Hanson (politician)
David George Hanson is a British Labour Party politician, who has been the Member of Parliament for Delyn since 1992. He was the Minister of State for Security, Counter-Terrorism, Crime and Policing from 2009 to 2010...
. The Bill was referred to committee and carried over to the 2007–08 session. It was reintroduced into the House of Commons by the Secretary of State for Justice, Jack Straw
Jack Straw
Jack Straw , British politician.Jack Straw may also refer to:* Jack Straw , English* "Jack Straw" , 1971 song by the Grateful Dead* Jack Straw by W...
, on 7 November 2007.
Non-custodial sentences
Section 1 of the Act provides a comprehensive list of new community orders, called youth rehabilitation orders, which can be imposed on offenders aged under 18. They can only be imposed if the offence is imprisonable (i.e. an adult could receive a prison sentence for the offence) and, if the offender is aged under 15, he is a persistent offender. Neither of these criteria are necessary under the old law. (This section and sections 2-4 came into force on 30 November 2009.)Section 11 deals with adult offenders, and provides that adult community orders may not be imposed unless the offence is imprisonable, or unless the offender has been fined (without additional punishment) on three previous occasions. (This section came into force on 14 July 2008.)
Section 35 extends the availability of referral orders (sentences designed to rehabilitate young offenders). Previously only available to first offenders, referral orders may be passed on offenders with previous convictions, subject to certain conditions being met. (This section came into force on 27 April 2009.)
Dangerous offenders
The Criminal Justice Act 2003Criminal Justice Act 2003
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
introduced mandatory sentencing
Mandatory sentencing
A mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison...
for violent and sexual offenders, which significantly reduced judicial discretion in sentencing defendants who judges considered were a danger to the public. The increase in life sentences
Life imprisonment
Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life...
and "extended sentences" which resulted, contributed to a major crisis of prison overcrowding, in which the prison population of England and Wales reached unprecedented levels. Sections 13 to 17 restored a proportion of judicial discretion and imposed stricter criteria for the imposition of such sentences. Section 25 provided for the automatic early release
Parole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
of prisoners serving extended (as opposed to life) sentences, instead of discretionary release by the Parole Board. (These sections all came into force on 14 July 2008.)
Curfew
English law already provided the courts with the power to impose a curfewCurfew
A curfew is an order specifying a time after which certain regulations apply. Examples:# An order by a government for certain persons to return home daily before a certain time...
as a condition of bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
, and the power to require the defendant to wear an electronic tag to monitor compliance. Section 21 introduces a new power enabling a court which imposes a custodial sentence to order that half of the time for which the defendant was on a curfew is to count as time served
Time served
In criminal law, "time served" describes a sentence where the defendant is credited immediately after the guilty verdict with the time spent in remand awaiting trial. The time is usually subtracted from the sentence, with only the balance being served after the verdict...
towards that sentence, provided that the curfew was in force for at least 9 hours each day and that it was monitored by a tag. Although there is a presumption that the court is to make such an order, the court may decline to do so, and is obliged to take into account any breaches of the bail condition. (This power only applies to offences committed on or after 4 April 2005, the last date on which major changes to sentencing were made. This section came into force on 3 November 2008.)
Obscene publications
Section 71 increases the maximum sentence for publishing an obscene article under section 2 of the Obscene Publications Act 1959Obscene Publications Act 1959
The Obscene Publications Act 1959 is an Act of Parliament of the United Kingdom Parliament that significantly reformed the law related to obscenity. Prior to the passage of the Act, the law on publishing obscene materials was governed by the common law case of R v Hicklin, which had no exceptions...
from 3 to 5 years. (This section came into force on 26 January 2009.)
Extreme pornographic images
Section 63 creates a new offence of possessing "an extreme pornographic image."An image is deemed to be extreme if it "is grossly offensive, disgusting or otherwise of an obscene character" and "it portrays, in an explicit and realistic way, any of the following— (a) an act which threatens a person’s life, (b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals, (c) an act which involves sexual interference with a human corpse, or (d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real."
Where (a) or (b) apply, the maximum sentence is 3 years; otherwise the maximum is 2 years. Those sentenced to at least two years will be placed on the Violent and Sex Offender Register
Violent and Sex Offender Register
In the United Kingdom, the Violent and Sex Offender Register is a database of records of those required to register with the Police under the Sexual Offences Act 2003, those jailed for more than 12 months for violent offences, and unconvicted people simply thought to be at risk of offending...
.
Section 64 excludes classified works, but states that extracts from classified works are not exempt, if "it is of such a nature that it must reasonably be assumed to have been extracted (whether with or without other images) solely or principally for the purpose of sexual arousal."
Sections 65 to 66 provide defences to this offence.
(These sections all came into force on 26 January 2009.)
Child pornography
Section 69 extends the definition of indecent photographs in the Protection of Children Act 1978Protection of Children Act 1978
The Protection of Children Act 1978 is an Act of the Parliament of the United Kingdom.The Protection of Children Bill was put before Parliament as a Private Member's Bill by Cyril Townsend in the 1977-1978 session of Parliament....
(which creates offences relating to child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
) to cover tracings of such photographs or pseudo-photograph
Pseudo-photograph
A pseudo-photograph is "an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph".Although the term pseudo-photograph can be applied regardless of what it depicts, in law its meaning is especially relevant regarding child pornography.In the UK, the...
s.
Child sex offences
Section 72 amends section 72 of the Sexual Offences Act 2003Sexual Offences Act 2003
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
to extend extraterritorial jurisdiction
Extraterritorial jurisdiction
Extraterritorial jurisdiction is the legal ability of a government to exercise authority beyond its normal boundaries.Any authority can, of course, claim ETJ over any external territory they wish...
over sexual offences against children overseas. Section 73 and Schedule 15 extend the definition of the offence of child grooming
Child grooming
Child grooming refers to actions deliberately undertaken with the aim of befriending and establishing an emotional connection with a child, in order to lower the child's inhibitions in preparation for sexual activity with the child, or exploitation .Child grooming may be used to lure minors into...
. (These provisions all came into force on 14 July 2008.)
Hate crimes
Section 74 and Schedule 16 amend Part 3A of the Public Order Act 1986Public Order Act 1986
The Public Order Act 1986 is an Act of the Parliament of the United Kingdom. It creates a number of public order offences. They replace similar common law offences and parts of the Public Order Act 1936...
to extend hate crime legislation to cover "hatred against a group of persons defined by reference to sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
(whether towards persons of the same sex, the opposite sex or both)."
To prevent the Act being used to inhibit freedom of speech on the subject of homosexuality, paragraph 14 of Schedule 16 inserts a new section 29JA, entitled "Protection of freedom of expression (sexual orientation)" but sometimes known as the Waddington Amendment (after Lord Waddington
David Waddington, Baron Waddington
David Charles Waddington, Baron Waddington, GCVO, DL, QC, PC , is a British politician. A member of the Conservative Party, he served as a Member of Parliament in the House of Commons from 1968 to 1990, and was then made a life peer...
who introduced it). It reads:
The government tried to insert a clause in the 2009 Coroners and Justice Bill
Coroners and Justice Act 2009
-External links:*, as amended from the National Archives.*, as originally enacted from the National Archives.* to the Coroners and Justice Act 2009....
which would have explicitly repealed section 29JA, but the proposed repeal failed and section 29JA remains.
Section 74 and Schedule 16 came into force on 23 March 2010. However, only days later (12 April) Cumbria Police chose to ignore the Waddington Amendment when they arrested and charged street preacher Dale Mcalpine for telling a gay PCSO
PCSO
PCSO is an acronym that may refer to:In law enforcement:*Police Community Support Officer, a Police staff role in England and Wales*Police Custody and Security Officer, a Police staff role in ScotlandIn government:...
that according to the Bible
Bible
The Bible refers to any one of the collections of the primary religious texts of Judaism and Christianity. There is no common version of the Bible, as the individual books , their contents and their order vary among denominations...
homosexuality was a sin. When Mcalpine pointed out that the arrest was unlawful (citing Paragraph 14 of Schedule 16, though wrongly attributing it to Lord Carey) the arresting officer refused to listen. Charges were eventually dropped and the police made a formal apology.
Nuclear terrorism
Section 75 and Schedule 17 make major amendments to the Nuclear Material (Offences) Act 1983 to extend extraterritorial jurisdictionExtraterritorial jurisdiction
Extraterritorial jurisdiction is the legal ability of a government to exercise authority beyond its normal boundaries.Any authority can, of course, claim ETJ over any external territory they wish...
over offences under section 1 of that Act, and to increase penalties. It also creates new offences (under sections 1B and 1C) pertaining to nuclear and radioactive material, also with extraterritorial jurisdiction. (This section came into force on 30 November 2009.)
Blasphemy
Section 79 abolished the common law offences of blasphemyBlasphemy
Blasphemy is irreverence towards religious or holy persons or things. Some countries have laws to punish blasphemy, while others have laws to give recourse to those who are offended by blasphemy...
and blasphemous libel
Blasphemous libel
Blasphemous libel was originally an offence under the common law of England. It is an offence under the common law of Northern Ireland. It is a statutory offence in Canada and New Zealand...
in England and Wales. This section came into force two months after royal assent (that is, on 8 July 2008).
Violent offender orders
Part 7 (sections 98 to 117) creates violent offender orders. These are orders made by a magistrates' courtMagistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
under section 101 to control violent offenders, and are similar to anti-social behaviour orders
Anti-Social Behaviour Order
An Anti-Social Behaviour Order or ASBO is a civil order made against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders, introduced in the United Kingdom by Prime Minister Tony Blair in 1998, were designed to correct minor incidents that...
. They must be "necessary for the purpose of protecting the public from the risk of serious violent harm caused by the offender." (Part 7 came into force on 3 August 2009.)
Applications for an order
To be eligible for an order a person must be at least 18, have been convicted of a "specified offence" (or an equivalent offence under the law of a foreign country), and have received a sentence of at least one year in prison or incarceration in a psychiatric hospitalPsychiatric hospital
Psychiatric hospitals, also known as mental hospitals, are hospitals specializing in the treatment of serious mental disorders. Psychiatric hospitals vary widely in their size and grading. Some hospitals may specialise only in short-term or outpatient therapy for low-risk patients...
. The "specified offences" are attempted murder
Attempted murder
Attempted murder is a crime in England and Wales and Northern Ireland.-Today:In English criminal law, attempted murder is the crime of more than merely preparing to commit unlawful killing and at the same time having a specific intention to cause the death of human being under the Queen's Peace...
, conspiracy to murder
Conspiracy to murder
Conspiracy to murder is a statutory offence in England and Wales and Northern Ireland and the Republic of Ireland.-England and Wales:Conspiracy to murder is an offence by virtue of section 1 of the Criminal Law Act 1977.Mens rea...
, and offences under sections 4, 18 or 20 of the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
(inciting murder
Soliciting to murder
Soliciting to murder is a statutory offence of incitement in England and Wales and Northern Ireland and the Republic of Ireland.-England and Wales:This offence is created by section 4 of the Offences against the Person Act 1861 which reads:...
and serious assaults
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
).
Before deciding whether to make the order, a court may make an interim violent offender order, which lasts until it decides whether or not to make a final order. The court may make an interim order if it decides that it would be "likely" to make a final order if it were dealing with the main application.
An application for a final or interim order can only be made by the police, who can only apply for one if the offender has, since he became eligible for the order, acted in a way that "gives reasonable cause" to believe that the order is necessary. The defendant must be served with a notice giving the time and place of the hearing at which the application will be made. The court must be satisifed that the notice was given before it can hear the application. The court may only make the final order if it decides that the order is necessary to protect the public from "a current risk of serious physical or psychological harm caused by that person committing one or more specified offences." When making this decision the court must take into account any other statutory measures that are in place to protect the public from the person. If the order is made, the defendant may appeal to the Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
, which does not review the decision but decides the matter afresh for itself.
Effect of an order
A final violent offender order lasts for between 2 and 5 years, but may be renewed for up to 5 years at a time. It may not be in force during any time that the offender is in custody or on parole subject to licence. After 2 years the defendant may apply to the magistrates' court to have the order discharged.A final or interim order "may contain prohibitions, restrictions or conditions preventing the offender— (a) from going to any specified premises or any other specified place (whether at all, or at or between any specified time or times); (b) from attending any specified event; (c) from having any, or any specified description of, contact with any specified individual." The offender must also notify the police, within 3 days of the order being made, of his date of birth, national insurance number
National Insurance
National Insurance in the United Kingdom was initially a contributory system of insurance against illness and unemployment, and later also provided retirement pensions and other benefits...
, his name on the date the order came into force and on the day he notifies the police (or all of his names if he uses more than one), his home address on each of those dates, and the address of any other premises in the United Kingdom at which on the latter date the offender regularly resides or stays, and any other information prescribed by regulations. He must repeat the notification every year (except if it is an interim order), and must notify any subsequent change of name or address within 3 days of the change. He may be fingerprinted and photographed by the police whenever he gives any of these notifications. If he leaves the United Kingdom he may also be required (by regulations made under the Act) to notify, before he leaves, the date he intends to leave, where he intends to go, his movements outside the UK, and any information about his return.
Breaching a violent offender order (whether it is a final or interim order), or failing to make a required notification on time, is an offence punishable with imprisonment for 5 years.
Early release of prisoners
Section 26 brought forward the releaseParole
Parole may have different meanings depending on the field and judiciary system. All of the meanings originated from the French parole . Following its use in late-resurrected Anglo-French chivalric practice, the term became associated with the release of prisoners based on prisoners giving their...
date of prisoners serving sentences greater than 4 years imposed before 4 April 2005. It did not apply to prisoners serving life sentences or serving sentences for violent or sexual offences. This section came into force on 9 June 2008. This was in order to alleviate prison overcrowding.
Absence of defendants
Section 54 creates a presumption that when an adult defendant fails to attend a magistrates' courtMagistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
for his trial or sentence, the hearing should continue without him. (This section came into force on 14 July 2008.)
Non-legal staff
Before the Act, the Crown Prosecution ServiceCrown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
already employed staff who were not qualified lawyers to prosecute cases at pre-trial hearings and sentences in the magistrates' court. Section 55 grants them the right to prosecute trials for offences which are non-imprisonable and not triable on indictment. The original version of this section, when the Act was still a bill, would have allowed them to prosecute imprisonable, indictable offences. This proved to be controversial, and was amended following representations by concerned groups such as the Bar Council. (This section came into force on 14 July 2008.)
Self-defence
Section 76 codifies English and Northern Irish case lawCase law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
on the subject of self-defence. However it makes no changes to the existing law.
Anti-social behaviour
Section 118 created a new Part 1A to the Anti-Social Behaviour Act 2003Anti-social Behaviour Act 2003
The Anti-social Behaviour Act 2003 is an Act of the Parliament of the United Kingdom which almost entirely applies only to England and Wales. The Act, championed by then Home Secretary, David Blunkett, was passed in 2003...
. This permits police and local authorities to apply for a court order to close for a period of three months residential premises associated with persistent noise and nuisance. This section came into force on 1 December 2008.
When an ASBO
Åsbo
Åsbo can refer to:*Åsbo Northern Hundred, a hundred in Scania*Åsbo Southern Hundred, a hundred in Scania...
is made on a person aged under 17, section 123 will require the courts to review the order every twelve months, until the subject of the order is 18. This section came into force on 1 February 2009.
Public order
Section 119 created a new offence of causing "a nuisance or disturbance" to a member of staff of the National Health ServiceNational Health Service (England)
The National Health Service or NHS is the publicly funded healthcare system in England. It is both the largest and oldest single-payer healthcare system in the world. It is able to function in the way that it does because it is primarily funded through the general taxation system, similar to how...
. It is non-imprisonable and carries a maximum fine of £1,000. This section came into force on 30 November 2009.
Section 122 makes similar provision for Northern Ireland.
Foreign criminals
Part 10 of the Act (sections 130 to 137) gives the Secretary of State the power to designate as "foreign criminals" certain criminals who are not British citizensBritish nationality law
British nationality law is the law of the United Kingdom that concerns citizenship and other categories of British nationality. The law is complex because of the United Kingdom's former status as an imperial power.-History:...
and do not have the right of abode
Right of abode
The right of abode is an individual's freedom from immigration control in a particular country. A person who has the right of abode in a country does not need permission from the government to enter the country and can live and work there without restriction....
. Designated foreign criminals have a special status under immigration law, and may be required to comply with conditions as to their residence, employment, and compulsory reporting to the police or a government office. Failure to comply is an imprisonable offence. Part 10 is not yet in force.
Prison officers
Section 138 curtails the right of prison officers to strike. This section came into force on royal assent.Child sex offenders
Section 140 requires local authorities to consider disclosing to members of the public details about the previous convictions of convicted child sex offenders. (This legislation took effect as new sections 327A and 327B of the Criminal Justice Act 2003Criminal Justice Act 2003
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
, on 14 July 2008.)
Tobacco
Section 143 inserts new sections 12A to 12D into the Children and Young Persons Act 1933Children and Young Persons Act 1933
The Children and Young Persons Act 1933 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland...
. These create two new civil orders, which may be imposed by the magistrates' courts, prohibiting the sale of tobacco or cigarette paper, or keeping a cigarette vending machine, for up to one year. Breaching the order is a summary offence punishable with a fine of up to £20,000 (the usual maximum on summary convictions is £5,000). These orders (called restricted premises orders and restricted sale orders) can be imposed on anyone who has been convicted of an offence under section 7 of the 1933 Act, which prohibits selling tobacco to children under 18. (Section 143 came into force on 1 April 2009.)
Commencement
Section 153 of the Act provides that most of its sections will come into force on dates to be determined by the Secretary of StateSecretary of State (United Kingdom)
In the United Kingdom, a Secretary of State is a Cabinet Minister in charge of a Government Department ....
. However the restriction on prison officers' right to strike came into force on royal assent (8 May 2008), and the abolition of the offence of blasphemy came into force two months later.
Fourteen commencement orders have been made under section 153. The second one brought most of the remaining provisions into effect on 14 July 2008.
Commencement orders
- Criminal Justice and Immigration Act 2008 (Commencement No.1 and Transitional Provisions) Order 2008
Brought into force section 26 (in part) on 9 June 2008. - Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional and Saving Provisions) Order 2008
Brought into force sections 10, 11(1), 12-18, 20, 24-25, 27-32, 38, 40, 42-47 (except 46(2)), 52, 54-59, 72-73, 76, 93-97, 140-142, Schedules 5, 8, 12, 15, 24, and miscellaneous amendments of other legislation on 14 July 2008. - Criminal Justice and Immigration Act 2008 (Commencement No. 3 and Transitional Provisions) Order 2008
Brought into force sections 21 (except 21(2)), 22-23, 33(1), (3), (5) and (6), 34 (mostly), 41, 51, 60, 126(1) (in part), 127 (in part), 129, Schedules 6, 11, 22 (in part), 23 (in part), and miscellaneous amendments of other legislation on 3 November 2008. - Criminal Justice and Immigration Act 2008 (Commencement No. 4 and Saving Provision) Order 2008
Brought into force sections 61, 118, 126 (in part), 127 (in part), Schedules 20, 22 (in part), 23 (in part), 27 (in part) and 28 (in part) on 1 December 2008. Also brought into force sections 63-68, 71, Schedules 14, 26 (paragraph 58 only) and 27 (paragraphs 23 and 25 only) on 26 January 2009. - Criminal Justice and Immigration Act 2008 (Commencement No. 5) Order 2008
Brought into force sections 49-50, Schedules 10, and 27 (paragraphs 19 and 20 only) on 19 December 2008. Also brought into force sections 119(4), 120(5) and (6), and 121(1) to (3), (5) and (6) on 1 January 2009 in England only. - Criminal Justice and Immigration Act 2008 (Commencement No. 6 and Transitional Provisions) Order 2009
Brought into force sections 48(1)(a), 123, 124, Schedules 9 (in part) and 27 (paragraphs 33 and 34 only) on 1 February 2009. - Criminal Justice and Immigration Act 2008 (Commencement No. 7) Order 2009
Brought into force sections 125, 143, 146, Schedules 1 (paragraphs 26(5) and 35) and 28 (Part 7) on 1 April 2009. Also brought into force sections 35-37 on 27 April 2009. - Criminal Justice and Immigration Act 2008 (Commencement No. 8) Order 2009
Brought into force most of Schedule 25 on 31 October 2009. - Criminal Justice and Immigration Act 2008 (Commencement No. 9) Order 2009
Brought into force some miscellaneous provisions on 8 July 2009. - Criminal Justice and Immigration Act 2008 (Commencement No. 10) Order 2009
Brought into force sections 98-117 on 3 August 2009. - Criminal Justice and Immigration Act 2008 (Commencement No. 11) Order 2009
Brought into force sections 80-92 and Schedules 18 and 19 on 1 October 2009. Also brought into force sections 21, 26 (fully) and 29 on 31 October 2009. - Criminal Justice and Immigration Act 2008 (Commencement No. 12) Order 2009
Brought into force section 48(1)(b) and some miscellaneous provisions in Cambridgeshire, Hampshire, Humberside, Merseyside, and Norfolk only, on 16 November 2009. - Criminal Justice and Immigration Act 2008 (Commencement No.13 and Transitory Provision) Order 2009
Brought into force sections 1 to 5, 6 (in part), 7, 8, 75, 119 to 121, Schedules 1 to 3, 4 (in part) and 17, and other miscellaneous provisions on 30 November 2009. - Criminal Justice and Immigration Act 2008 (Commencement No.14) Order 2010
Brings into force section 74, Schedule 16, and other miscellaneous provisions on 23 March 2010. Also brings into force section 144 on 6 April 2010 and some other miscellaneous provisions on 1 April 2010.
External links
- The Criminal Justice and Immigration Act 2008, as amended from the National Archives.
- The Criminal Justice and Immigration Act 2008, as originally enacted from the National Archives.
- Explanatory notes to the Criminal Justice and Immigration Act 2008.