Criminal Justice Act 1991 (c. 53)

(The document as of February, 2008)

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(3) The Board shall not make a recommendation under subsection (2) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice.

36 Power to release prisoners on compassionate grounds

(1) The Secretary of State may at any time release a prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds.

(2) Before releasing a long-term or life prisoner under subsection (1) above, the Secretary of State shall consult the Board, unless the circumstances are such as to render such consultation impracticable.

37 Duration and conditions of licences

(1) Subject to subsection (2) below, where a short-term or long-term prisoner is released on licence, the licence shall, subject to any suspension under section 38(2) below or, as the case may be, any revocation under section 39(1) or (2) below, remain in force until the date on which he would (but for his release) have served three-quarters of his sentence.

(2) Where a prisoner whose sentence is for a term of less than twelve months is released on licence under section 36(1) above, subsection (1) above shall have effect as if for the reference to three-quarters of his sentence there were substituted a reference to one-half of that sentence.

(3) Where a life prisoner is released on licence, the licence shall, unless previously revoked under section 39(1) or (2) below, remain in force until his death.

(4) A person subject to a licence shall comply with such conditions (which shall include on his release conditions as to his supervision by a probation officer) as may for the time being be specified in the licence; and the Secretary of State may make rules for regulating the supervision of any description of such persons.

(5) The Secretary of State shall not include on release, or subsequently insert, a condition in the licence of a long-term or life prisoner, or vary or cancel any such condition, except--

(a) in the case of the inclusion of a condition in the licence of a discretionary life prisoner, in accordance with recommendations of the Board; and

(b) in any other case, after consultation with the Board.

(6) For the purposes of subsection (5) above, the Secretary of State shall be treated as having consulted the Board about a proposal to include, insert, vary or cancel a condition in any case if he has consulted the Board about the implementation of proposals of that description generally or in that class of case.

(7) The power to make rules under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Misbehaviour after release

38 Breach of licence conditions by short-term prisoners

(1) A short-term prisoner--

(a) who is released on licence under this Part; and

(b) who fails to comply with such conditions as may for the time being be specified in the licence,

shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(2) The magistrates' court by which a person is convicted of an offence under subsection (1) above may, whether or not it passes any other sentence on him--

(a) suspend the licence for a period not exceeding six months; and

(b) order him to be recalled to prison for the period during which the licence is so suspended.

(3) On the suspension of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.

39 Recall of long-term and life prisoners while on licence

(1) If recommended to do so by the Board in the case of a long-term or life prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.

(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.

(3) A person recalled to prison under subsection (1) or (2) above--

(a) may make representations in writing with respect to his recall; and

(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.

(4) The Secretary of State shall refer to the Board--

(a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above; and

(b) the case of a person recalled under subsection (2) above.

(5) Where on a reference under subsection (4) above the Board--

(a) directs in the case of a discretionary life prisoner; or

(b) recommends in the case of any other person,

his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation.

(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.

40 Convictions during currency of original sentences

(1) This section applies to a short-term or long-term prisoner who is released under this Part if--

(a) before the date on which he would (but for his release) have served his sentence in full, he commits an offence punishable with imprisonment; and

(b) whether before or after that date, he is convicted of that offence ("the new offence").

(2) Subject to subsection (3) below, the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be returned to prison for the whole or any part of the period which--

(a) begins with the date of the order; and

(b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1) above.

(3) A magistrates' court--

(a) shall not have power to order a person to whom this section applies to be returned to prison for a period of more than six months; but

(b) may commit him in custody or on bail to the Crown Court for sentence in accordance with section 42 of the 1973 Act (power of Crown Court to sentence persons convicted by magistrates' courts of indictable offences).

(4) The period for which a person to whom this section applies is ordered under subsection (2) above to be returned to prison--

(a) shall be taken to be a sentence of imprisonment for the purposes of this Part;

(b) shall, as the court may direct, either be served before and be followed by, or be served concurrently with, the sentence imposed for the new offence; and

Remand time and additional days

41 Remand time to count towards time served

(1) This section applies to any person whose sentence falls to be reduced under section 67 of the [1967 c. 80.] Criminal Justice Act 1967 ("the 1967 Act") by any relevant period within the meaning of that section ("the relevant period").

(2) For the purpose of determining for the purposes of this Part--

(a) whether a person to whom this section applies has served one-half or two-thirds of his sentence; or

(b) whether such a person would (but for his release) have served three-quarters of that sentence,

the relevant period shall, subject to subsection (3) below, be treated as having been served by him as part of that sentence.

(3) Nothing in subsection (2) above shall have the effect of reducing the period for which a licence granted under this Part to a short-term or long-term prisoner remains in force to a period which is less than--

(a) one-quarter of his sentence in the case of a short-term prisoner; or

(b) one-twelfth of his sentence in the case of a long-term prisoner.

42 Additional days for disciplinary offences

(1) Prison rules, that is to say, rules made under section 47 of the 1952 Act, may include provision for the award of additional days--

(a) to short-term or long-term prisoners; or

(b) conditionally on their subsequently becoming such prisoners, to persons on remand,

who (in either case) are guilty of disciplinary offences.

(2) Where additional days are awarded to a short-term or long-term prisoner, or to a person on remand who subsequently becomes such a prisoner, and are not remitted in accordance with prison rules--

(a) any period which he must serve before becoming entitled to or eligible for release under this Part; and

(b) any period for which a licence granted to him under this Part remains in force,

shall be extended by the aggregate of those additional days.

Special cases

43 Young offenders

(1) Subject to subsections (4) and (5) below, this Part applies to persons serving sentences of detention in a young offender institution, or determinate sentences of detention under section 53 of of the 1933 Act, as it applies to persons serving equivalent sentences of imprisonment.

(2) Subject to subsection (5) below, this Part applies to persons serving--

(a) sentences of detention during Her Majesty's pleasure or for life under section 53 of the 1933 Act; or

(b) sentences of custody for life under section 8 of the 1982 Act,

as it applies to persons serving sentences of imprisonment for life.

(3) References in this Part to prisoners (whether short-term, long-term or life prisoners), or to prison or imprisonment, shall be construed in accordance with subsections (1) and (2) above.

(4) In relation to a short-term prisoner under the age of 18 years to whom subsection (1) of section 33 above applies, that subsection shall have effect as if it required the Secretary of State--

(a) to release him unconditionally if his sentence is for a term of twelve months or less; and

(b) to release him on licence if that sentence is for a term of more than twelve months.

(5) In relation to a person under the age of 22 years who is released on licence under this Part, section 37(4) above shall have effect as if the reference to supervision by a probation officer included a reference to supervision by a social worker of a local authority social services department.

44 Sexual offenders

Where, in the case of a long-term or short-term prisoner--

(a) the whole or any part of his sentence was imposed for a sexual offence; and

(b) the court by which he was sentenced for that offence, having had regard to the matters mentioned in section 32(6)(a) and (b) above, ordered that this section should apply,

sections 33(3) and 37(1) above shall each have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence.

45 Fine defaulters and contemnors

(1) Subject to subsection (2) below, this Part (except sections 35 and 40 above) applies to persons committed to prison or to be detained under section 9 of the 1982 Act--

(a) in default of payment of a sum adjudged to be paid by a conviction; or

(b) for contempt of court or any kindred offence,

as it applies to persons serving equivalent sentences of imprisonment; and references in this Part to short-term or long-term prisoners, or to prison or imprisonment, shall be construed accordingly.

(2) In relation to persons committed as mentioned in subsection (1) above, the provisions specified in subsections (3) and (4) below shall have effect subject to the modifications so specified.

(3) In section 33 above, for subsections (1) to (4) there shall be substituted the following subsections--

" (1) As soon as a person committed as mentioned in section 45(1) below has served the appropriate proportion of his term, that is to say--

(a) one-half, in the case of a person committed for a term of less than twelve months;

(b) two-thirds, in the case of a person committed for a term of twelve months or more,

it shall be the duty of the Secretary of State to release him unconditionally.

(2) As soon as a person so committed who--

(a) has been released on licence under section 36(1) below; and

(b) has been recalled under section 38(2) or 39(1) below,

would (but for his release) have served the appropriate proportion of his term, it shall be the duty of the Secretary of State to release him unconditionally. "

(4) In section 37 above, for subsections (1) to (3) there shall be substituted the following subsection--

" (1) Where a person committed as mentioned in section 45(1) below is released on licence under section 36(1) above, the licence shall, subject to--

(a) any suspension under section 38(2) below; or

(b) any revocation under section 39(1) below,

continue in force until the date on which he would (but for his release) have served the appropriate proportion of his term; and in this subsection "appropriate proportion" has the meaning given by section 33(1) above. "

46 Persons liable to removal from the United Kingdom

(1) In relation to a long-term prisoner who is liable to removal from the United Kingdom, section 35 above shall have effect as if the words "if recommended to do so by the Board" were omitted.

(2) In relation to a person who is liable to removal from the United Kingdom, section 37(4) above shall have effect as if the words in parentheses were omitted.

(3) A person is liable to removal from the United Kingdom for the purposes of this section if--

(a) he is liable to deportation under section 3(5) of the [1971 c. 77.] Immigration Act 1971 and has been notified of a decision to make a deportation order against him;

(b) he is liable to deportation under section 3(6) of that Act;

(d) he is an illegal entrant within the meaning of section 33(1) of that Act.

47 Persons extradited to the United Kingdom

(1) A short-term or long-term prisoner is an extradited prisoner for the purposes of this section if--

(a) he was tried for the offence in respect of which his sentence was imposed--

(i) after having been extradited to the United Kingdom; and

(ii) without having first been restored or had an opportunity of leaving the United Kingdom; and

(b) he was for any period kept in custody while awaiting his extradition to the United Kingdom as mentioned in paragraph (a) above.

(2) If, in the case of an extradited prisoner, the court by which he was sentenced so ordered, section 67 of the 1967 Act (computation of sentences of imprisonment) shall have effect in relation to him as if a period specified in the order were a relevant period for the purposes of that section.

(3) The period that may be so specified is such period as in the opinion of the court is just in all the circumstances and does not exceed the period of custody mentioned in subsection (1)(b) above.

(4) In this section--

"extradited to the United Kingdom" means returned to the United Kingdom--
(i)
in pursuance of extradition arrangements;
(ii)
under any law of a designated Commonwealth country corresponding to the [1989 c. 33.] Extradition Act 1989;
(iii)
under that Act as extended to a colony or under any corresponding law of a colony; or
(iv)
in pursuance of a warrant of arrest endorsed in the Republic of Ireland under the law of that country corresponding to the [1965 c. 45.] Backing of Warrants (Republic of Ireland) Act 1965;
"extradition arrangements" has the meaning given by section 3 of the [1989 c. 33.] Extradition Act 1989;
"designated Commonwealth country" has the meaning given by section 5(1) of that Act.

48 Life prisoners transferred to England and Wales

(1) This section applies where, in the case of a transferred life prisoner, the Secretary of State, after consultation with the Lord Chief Justice, certifies his opinion that, if--

(a) he had been sentenced for his offence in England and Wales after the commencement of section 34 above; and

(b) the reference in subsection (1)(a) of that section to a violent or sexual offence the sentence for which is not fixed by law were a reference to any offence the sentence for which is not so fixed,

the court by which he was so sentenced would have ordered that that section should apply to him as soon as he had served a part of his sentence specified in the certificate.

(2) In a case to which this section applies, this Part except section 35(2) above shall apply as if--

(a) the transferred life prisoner were a discretionary life prisoner for the purposes of this Part; and

(b) the relevant part of his sentence within the meaning of section 34 of this Act were the part specified in the certificate.

(3) In this section "transferred life prisoner" means a person--

(a) on whom a court in a country or territory outside England and Wales has imposed one or more sentences of imprisonment or detention for an indeterminate period; and

(b) who has been transferred to England and Wales, in pursuance of--

(i) an order made by the Secretary of State under section 26 of the [1961 c. 39.] Criminal Justice Act 1961 or section 2 of the [1884 c. 31.] Colonial Prisoners Removal Act 1884; or

(ii) a warrant issued by the Secretary of State under the [1984 c. 47.] Repatriation of Prisoners Act 1984,

there to serve his sentence or sentences or the remainder of his sentence or sentences.

(4) A person who is required so to serve the whole or part of two or more such sentences shall not be treated as a discretionary life prisoner for the purposes of this Part unless the requirements of subsection (1) above are satisfied as respects each of those sentences; and subsections (3) and (5) of section 34 above shall not apply in relation to such a person until after he has served the relevant part of each of those sentences.

Supplemental

49 Alteration by order of relevant proportions of sentences

(1) The Secretary of State may by order made by statutory instrument provide--

(a) that the references in section 33(5) above to four years shall be construed as references to such other period as may be specified in the order;

(b) that any reference in this Part to a particular proportion of a prisoner's sentence shall be construed as a reference to such other proportion of a prisoner's sentence as may be so specified.

(2) An order under this section may make such transitional provisions as appear to the Secretary of State necessary or expedient in connection with any provision made by the order.

(3) No order shall be made under this section unless a draft of the order has been laid before and approved by resolution of each House of Parliament.

50 Transfer by order of certain functions to Board

(1) The Secretary of State, after consultation with the Board, may by order made by statutory instrument provide that, in relation to such class of case as may be specified in the order, the provisions of this Part specified in subsections (2) to (4) below shall have effect subject to the modifications so specified.

(2) In section 35 above, in subsection (1) for the word "may" there shall be substituted the word "shall"; but nothing in this subsection shall affect the operation of that subsection as it has effect in relation to a long-term prisoner who is liable to removal from the United Kingdom (within the meaning of section 46 above).

(3) In section 37 above, in subsection (5)(a) after the words "in the case of" there shall be inserted the words "the licence of a long-term prisoner or", and subsection (6) shall be omitted.

(4) In section 39 above, in subsection (1) for the word "may" there shall be substituted the word "shall", and subsection (2) shall be omitted.

(5) No order shall be made under this section unless a draft of the order has been laid before and approved by resolution of each House of Parliament.

51 Interpretation of Part II

(1) In this Part--

"the Board" means the Parole Board;
"discretionary life prisoner" has the meaning given by section 34 above (as extended by section 43(2) above);
"life prisoner" has the meaning given by section 34(7) above (as extended by section 43(2) above);
"long-term prisoner" and "short-term prisoner" have the meanings given by section 33(5) above (as extended by sections 43(1) and 45(1) above);
"sentence of imprisonment" does not include a committal in default of payment of any sum of money, or for want of sufficient distress to satisfy any sum of money, or for failure to do or abstain from doing anything required to be done or left undone.
"sexual offence" and "violent offence" have the same meanings as in Part I of this Act.

(2) For the purposes of any reference in this Part, however expressed, to the term of imprisonment to which a person has been sentenced or which, or part of which, he has served, consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term.

(3) Nothing in this Part shall require the Secretary of State to release a person who is serving--

(a) a sentence of imprisonment for a term; and

(b) one or more sentences of imprisonment for life,

unless and until he is entitled under this Part to be released in respect of each of those sentences.

(4) Subsections (2) and (3) of section 31 above shall apply for the purposes of this Part as they apply for the purposes of Part I of this Act.

Part IIIII Children and Young Persons

Children's evidence

52 Competence of children as witnesses

(1) After section 33 of the 1988 Act there shall be inserted the following section--

" 33A Evidence given by children

(1) A child's evidence in criminal proceedings shall be given unsworn.

(2) A deposition of a child's unsworn evidence may be taken for the purposes of criminal proceedings as if that evidence had been given on oath.

(3) In this section "child" means a person under fourteen years of age. "

(2) Subsection (1) of section 38 of the 1933 Act (evidence of child of tender years to be given on oath or in certain circumstances unsworn) shall cease to have effect; and accordingly the power of the court in any criminal proceedings to determine that a particular person is not competent to give evidence shall apply to children of tender years as it applies to other persons.

53 Notices of transfer in certain cases involving children

(1) If a person has been charged with an offence to which section 32(2) of the 1988 Act applies (sexual offences and offences involving violence or cruelty) and the Director of Public Prosecutions is of the opinion--

(a) that the evidence of the offence would be sufficient for the person charged to be committed for trial;

(b) that a child who is alleged--

(i) to be a person against whom the offence was committed; or

(ii) to have witnessed the commission of the offence,

will be called as a witness at the trial; and

(c) that, for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceeded with without delay by the Crown Court,

a notice ("notice of transfer") certifying that opinion may be served by or on behalf of the Director on the magistrates' court in whose jurisdiction the offence has been charged.

(2) A notice of transfer shall be served before the magistrates' court begins to inquire into the case as examining justices.

(3) On the service of a notice of transfer the functions of the magistrates' court shall cease in relation to the case except as provided by paragraphs 2 and 3 of Schedule 6 to this Act or by section 20(4) of the [1988 c. 34.] Legal Aid Act 1988.

(4) The decision to serve a notice of transfer shall not be subject to appeal or liable to be questioned in any court.

(5) Schedule 6 to this Act (which makes further provision in relation to notices of transfer) shall have effect.

(6) In this section "child" means a person who--

(a) in the case of an offence falling within section 32(2)(a) or (b) of the 1988 Act, is under fourteen years of age or, if he was under that age when any such video recording as is mentioned in section 32A(2) of that Act was made in respect of him, is under fifteen years of age; or

(b) in the case of an offence falling within section 32(2)(c) of that Act, is under seventeen years of age or, if he was under that age when any such video recording was made in respect of him, is under eighteen years of age.

(7) Any reference in subsection (6) above to an offence falling within paragraph (a), (b) or (c) of section 32(2) of that Act includes a reference to an offence which consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within that paragraph.

54 Video recordings of testimony from child witnesses

After section 32 of the 1988 Act (evidence through television links) there shall be inserted the following section--

" 32A Video recordings of testimony from child witnesses

(1) This section applies in relation to the following proceedings, namely--

(a) trials on indictment for any offence to which section 32(2) above applies;

(b) appeals to the criminal division of the Court of Appeal and hearings of references under section 17 of the [1968 c. 19.] Criminal Appeal Act 1968 in respect of any such offence; and

(2) In any such proceedings a video recording of an interview which--

(a) is conducted between an adult and a child who is not the accused or one of the accused ("the child witness"); and

(b) relates to any matter in issue in the proceedings,

may, with the leave of the court, be given in evidence in so far as it is not excluded by the court under subsection (3) below.

(3) Where a video recording is tendered in evidence under this section, the court shall (subject to the exercise of any power of the court to exclude evidence which is otherwise admissible) give leave under subsection (2) above unless--

(a) it appears that the child witness will not be available for cross-examination;

(b) any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court; or

(c) the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted;

and where the court gives such leave it may, if it is of the opinion that in the interests of justice any part of the recording ought not to be admitted, direct that that part shall be excluded.

(4) In considering whether any part of a recording ought to be excluded under subsection (3) above, the court shall consider whether any prejudice to the accused, or one of the accused, which might result from the admission of that part is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.

(5) Where a video recording is admitted under this section--

(a) the child witness shall be called by the party who tendered it in evidence;

(b) that witness shall not be examined in chief on any matter which, in the opinion of the court, has been dealt with in his recorded testimony.

(6) Where a video recording is given in evidence under this section, any statement made by the child witness which is disclosed by the recording shall be treated as if given by that witness in direct oral testimony; and accordingly--

(a) any such statement shall be admissible evidence of any fact of which such testimony from him would be admissible;

(b) no such statement shall be capable of corroborating any other evidence given by him;

and in estimating the weight, if any, to be attached to such a statement, regard shall be had to all the circumstances from which any inference can reasonably be drawn (as to its accuracy or otherwise).

(7) In this section "child" means a person who--

(a) in the case of an offence falling within section 32(2)(a) or (b) above, is under fourteen years of age or, if he was under that age when the video recording was made, is under fifteen years of age; or

(b) in the case of an offence falling within section 32(2)(c) above, is under seventeen years of age or, if he was under that age when the video recording was made, is under eighteen years of age.

(8) Any reference in subsection (7) above to an offence falling within paragraph (a), (b) or (c) of section 32(2) above includes a reference to an offence which consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within that paragraph.

(9) In this section--

"statement" includes any representation of fact, whether made in words or otherwise;
"video recording" means any recording, on any medium, from which a moving image may by any means be produced and includes the accompanying sound-track.

(10) A magistrates' court inquiring into an offence as examining justices under section 6 of the [1980 c. 43.] Magistrates' Courts Act 1980 may consider any video recording as respects which leave under subsection (2) above is to be sought at the trial, notwithstanding that the child witness is not called at the committal proceedings.

(11) Without prejudice to the generality of any enactment conferring power to make rules of court, such rules may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this section.

(12) Nothing in this section shall prejudice the admissibility of any video recording which would be admissible apart from this section. "

55 Further amendments of enactments relating to children's evidence

(1) In section 103 of the 1980 Act (evidence of children in committal proceedings) subsection (3)(a) shall cease to have effect and for subsection (5) there shall be substituted the following subsection--

" (5) In this section "child" has the same meaning as in section 53 of the Criminal Justice Act 1991. "

(2) In subsection (1) of section 32 of the 1988 Act (evidence through television links)--

(a) for the words from "on a trial" to "1968" there shall be substituted the words "in proceedings to which subsection (1A) below applies"; and

(b) for paragraph (b) there shall be substituted the following paragraph--

" (b) the witness is a child, or is to be cross-examined following the admission under section 32A below of a video recording of testimony from him, and the offence is one to which subsection (2) below applies, " .

(3) After that subsection there shall be inserted the following subsection--

" (1A) This subsection applies--

(a) to trials on indictment, appeals to the criminal division of the Court of Appeal and hearings of references under section 17 of the Criminal Appeal Act 1968; and

(b) to proceedings in youth courts and appeals to the Crown Court arising out of such proceedings. "

(4) After subsection (3) of that section there shall be inserted the following subsections--

" (3A) Where, in the case of any proceedings before a youth court--

(a) leave is given by virtue of subsection (1)(b) above for evidence to be given through a television link; and

(b) suitable facilities for receiving such evidence are not available at any petty-sessional court-house in which the court can (apart from this subsection) lawfully sit,

the court may sit for the purposes of the whole or any part of those proceedings at any place at which such facilities are available and which has been appointed for the purposes of this subsection by the justices acting for the petty sessions area for which the court acts.

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