Easton & Piper: Sentencing and Punishment 2e 
DevelopmentsEaston & Piper: Sentencing and Punishment 2e
Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act 2008 received the Royal Assent on May 8th 2008 and some amendments were made to this book at proof stage to take account of the passage of the Act. Most of the provisions relevant to this book are not yet in force but this Online Resource Centre will provide further information as it becomes available.
To view a copy of the Act, please follow this link: www.opsi.gov.uk/acts/acts2008/ukpga_20080004_en_1
Section 1
Youth rehabilitation orderscame into force in April 2009. Section 1 (and ss 2-7)
The youth rehabilitation orders were not expected to come into force until November but did come into force on April 1st. Basically the order is like the adult ones where the court imposes one order but can add anything to it as below. So, for example, the youth rehabilitation order with a supervision requirement would be the same in practice as the current supervision order and, just as other requirements could be added to the supervision order, the court can now have several requirements in the one new order if it so wishes in order to get to the same outcome. The idea is to give the court more flexibility.
1 Youth rehabilitation orders
(1) Where a person aged under 18 is convicted of an offence, the court by or before which the person is convicted may in accordance with Schedule 1 make an order (in this Part referred to as a “youth rehabilitation order”) imposing on the person any one or more of the following requirements—
(a) an activity requirement (see paragraphs 6 to 8 of Schedule 1),
(b) a supervision requirement (see paragraph 9 of that Schedule),
(c) in a case where the offender is aged 16 or 17 at the time of the conviction, an unpaid work requirement (see paragraph 10 of that Schedule),
(d) a programme requirement (see paragraph 11 of that Schedule),
(e) an attendance centre requirement (see paragraph 12 of that Schedule),
(f) a prohibited activity requirement (see paragraph 13 of that Schedule),
(g) a curfew requirement (see paragraph 14 of that Schedule),
(h) an exclusion requirement (see paragraph 15 of that Schedule),
(i) a residence requirement (see paragraph 16 of that Schedule),
(j) a local authority residence requirement (see paragraph 17 of that Schedule),
(k) a mental health treatment requirement (see paragraph 20 of that Schedule),
(l) a drug treatment requirement (see paragraph 22 of that Schedule),
(m) a drug testing requirement (see paragraph 23 of that Schedule),
(n) an intoxicating substance treatment requirement (see paragraph 24 of that Schedule), and
(o) an education requirement (see paragraph 25 of that Schedule).
NOTE: s177 of the Criminal Justice Act 2003 has consequently been amended to apply only to those over 18 and so will not implemented at all for minors.
Section 9
Correction to page 247: sentencing principles
Pages 246-7 of the book (2nd ed) discuss the welfare principle to be found in s44 of the Children and Young Person's Act 1933 which mandates a court to 'have regard to' the welfare of the child. The book notes that the Criminal Justice and Immigration Act (CJIA) 2008 section 9(3) has made relevant amendments but we regret that the discussion is misleading because reference is made to an earlier version of clause 9 of the Bill which stated that 'The court must have regard primarily to the principal aim of the youth justice system, that is, to prevent offending by children and other persons aged under 18'. The final version is a fudged position which is, however, a considerable improvement on this earlier version. Section 9(1) now inserts a new s142A in the Criminal Justice Act 2003, headed 'Purposes etc. of sentencing: offenders under 18', such that s 142A(1) reads as follows:
(2) The court must have regard to-
(a) the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18: see section 37(1) of the Crime and Disorder Act 1998),
(b) in accordance with section 44 of the Children and Young Persons Act 1933, the welfare of the offender, and
(c) the purposes of sentencing mentioned in subsection (3) (so far as it is not required to do so by paragraph (a)).
The new s142A(3) lists the purposes of sentencing 10-17 year olds as:
(a) the punishment of offenders,
(b) the reform and rehabilitation of offenders,
(c) the protection of the public, and
(d) the making of reparation by offenders to persons affected by their offences
The exceptions are if the young offender is being dealt with under the 'dangerousness' provisions: see pp 434-5 of the book (2nd ed).
Please note that this legislation – which applies only to England and Wales - is not yet in force and no date is available (at December 15th 2008) for its commencement.
Sections 10-11
Pages 78 and 97
Correction to page 78:
The reference in paragraph 1 to '(CJI) Act 2008 10' should read '(CJI) Act 2008 s 11'.
Section 10 of the Criminal Justice and Immigration Act (CJIA) 2008 adds a new s 5 to s 148 of the Criminal Justice Act (CJA) 2003 as follows:
5) The fact that by virtue of any provision of this section—
(a) a community sentence may be passed in relation to an offence; or
(b) particular restrictions on liberty may be imposed by a community order or youth rehabilitation order,
does not require a court to pass such a sentence or to impose those restrictions.
This stresses that the court has discretion to take into account any factors which would justify a lesser sentence.
Section 11 of the CJIA 2008 also creates a new s 150A of the CJA 2003 which states that:
1) The power to make a community order is only exercisable in respect of an offence if—
(a) the offence is punishable with imprisonment; or
(b) in any other case, section 151(2) confers power to make such an order.
This means that, when implemented, a community sentence or a sentence for a persistent offender previously fined can only be imposed if the offence is one punishable by imprisonment.
Both these sections have been in force since July 14th 2008.
See also Chapter 3 in the 'Developments in law and policy' section of this online resource centre.
Sections 13-18
Pages 156-161, especially page 161
These provisions - which amend sections 225-231 of the Criminal Justice Act 2003 in relation to 'dangerous offenders' - have been in force since July 14th 2008.
This means that the courts now have greater discretion in relation to sentences of imprisonment of public protection and the extended sentence.
Section 26
Pages 165-171
This section regarding the release of certain long-term prisoners under the Criminal Justice Act 1991 makes several amendments to Part 2 of that Act and has been in force since 9 June 2008.
The Explanatory Notes to the Act note summarize the import as follows:
'Section 26 applies to prisoners who committed offences before 4 April 2005 and whose release is governed by Part 2 of the Criminal Justice Act 1991 (the 1991 Act). It changes the early release provisions for certain long term prisoners (those serving sentences of 4 years and over for an offence other than a sexual or violent offence specified in Schedule 15 of the 2003 Act) by placing a duty on the Secretary of State to release them automatically on licence at the halfway point in their sentence on a licence that will remain in force until the end of their sentence. This duty also applies to those prisoners serving sentences for the equivalent armed services offences. This brings all such prisoners in line with those subject to the release provisions of the 2003 Act.'
Section 35
Pages 424-426
This section, which amends the law on referral conditions in relation to a referral order. It came into force on April 27th 2009.
The court is now able to make a referral order where:
- the offender has had one previous conviction but has not previously received a referral order, or
- the offender has previously been bound over to keep the peace, or
- the offender has previously received a conditional discharge.
In addition the court has the power:
- to make a second Referral Order, in exceptional circumstances, on the recommendation of the YOT
- to revoke a Referral Order early for good behaviour
- to extend the term of a Referral Order for up to three months on the recommendation of the youth offender panel (for example where non-compliance occurs through circumstances beyond the control of the offender, i.e. illness).
Section 41
Page 227
Inserts new paragraphs 9A-9C in the Courts Act 2003, Schedule 5, Part 3 concerning attachment of earnings orders and applications for benefit deductions. The new provisions have been in force since 3 November 2008.
On request to the Secretary of State the staff of Her Majesty's Courts Service (HMCS) can gain access to benefit records held by the Department for Work and Pensions (DWP) for the purpose of fine enforcement
Section 124
Pages 419-422: ASBOs
Footnote 1 on page 420 refers to the new provisions re ASBOs whereby the court must consider the imposition of individual support orders in conjunction with an anti-social behaviour order given to a minor. These provisions are not yet in force.
Section 124 of the CJ&I Act 2008 will amend s 1AA of the Crime and Disorder Act 1998 as follows:
(1) In section 1AA of the Crime and Disorder Act 1998 (c. 37) (individual support orders) for subsection (1) and the words in subsection (2) before paragraph (a) substitute-
"(1) This section applies where a court makes an anti-social behaviour order in respect of a defendant who is a child or young person when that order is made.
(1A) This section also applies where-
(a) an anti-social behaviour order has previously been made in respect of such a defendant;
(b) an application is made by complaint to the court which made that order, by the relevant authority which applied for it, for an order under this section; and
(c) at the time of the hearing of the application-
(i) the defendant is still a child or young person, and
(ii) the anti-social behaviour order is still in force.
(1B) The court must consider whether the individual support conditions are fulfilled and, if satisfied that they are, must make an individual support order.
A new s1AB(5A) states that 'The period specified as the term of an individual support order made on an application under section 1AA(1A) above must not be longer than the remaining part of the term of the anti-social behaviour order as a result of which it is made'.
Please note that this legislation - which applies only to England and Wales - is not yet in force and no date is available (at December 15th 2008) for its commencement.
View print version