Criminal Justice and Immigration Act 2008

Section 148

SCHEDULE 27 Transitory, transitional and saving provisions

Part 1 Youth justice

Abolition of certain youth orders and related amendments

1 (1) Section 1, subsections (1) and (2) of section 6, the amendments in Part 1 of Schedule 4 and the repeals and revocations in Part 1 of Schedule 28 do not have effect in relation to—

(a) any offence committed before they come into force, or

(b) any failure to comply with an order made in respect of an offence committed before they come into force.

(2) So far as an amendment in Part 2 of Schedule 4 relates to any of the following orders, the amendment has effect in relation to orders made before, as well as after, the amendment comes into force—

(a) a referral order made under the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6);

(b) a reparation order made under that Act;

(c) a community order made under section 177 of the Criminal Justice Act 2003 (c. 44).

Reparation orders

2 (1) Sub-paragraph (2) applies if the amendments of Schedule 8 to the Powers of Criminal Courts (Sentencing) Act 2000 (action plan orders and reparation orders) made by paragraph 108(1) to (5) of Schedule 4 (reparation orders: court before which offender to appear or be brought) come into force before the amendments of Schedule 8 to that Act made by paragraph 62 of that Schedule.

(2) After paragraph 108(1) to (5) of Schedule 4 comes into force, and until paragraph 62 of that Schedule comes into force, paragraph 3 of Schedule 8 to the Powers of Criminal Courts (Sentencing) Act 2000 has effect as if—

(a) in sub-paragraph (5)(a) and (c), for “the appropriate court” there were substituted “a youth court”, and

(b) in sub-paragraph (6), for “appropriate” there were substituted “youth”.

(3) Sub-paragraph (4) applies if the amendments of Schedule 8 to the Powers of Criminal Courts (Sentencing) Act 2000 (action plan orders and reparation orders) made by paragraph 62 of Schedule 4 come into force before the amendments of Schedule 8 to that Act made by paragraph 108(1) to (5) of that Schedule (reparation orders: court before which offender to appear or be brought).

(4) After paragraph 62 of Schedule 4 comes into force, and until paragraph 108(1) to (5) of that Schedule comes into force, paragraph 1 of Schedule 8 to the Powers of Criminal Courts (Sentencing) Act 2000 has effect as if—

(a) for “an action plan order or” there were substituted “a”, and

(b) the words “69(8) or, as the case may be,” were omitted.

Making of youth rehabilitation orders: other existing orders

3 In paragraph 29(3)(c) of Schedule 1 (requirements not to conflict with other obligations), the reference to a youth rehabilitation order is to be read as including a reference to any youth community order within the meaning of section 147(2) of the Criminal Justice Act 2003 (c. 44) (as it has effect immediately before the commencement of paragraph 72 of Schedule 4 to this Act).

Instructions: other existing orders

4 In section 5(3)(c) (instructions not to conflict with other obligations), the reference to a youth rehabilitation order is to be read as including a reference to any youth community order within the meaning of section 147(2) of the Criminal Justice Act 2003 (as it has effect immediately before the commencement of paragraph 72 of Schedule 4 to this Act).

Fine default: section 35 of the Crime (Sentences) Act 1997

5 The amendments, repeals and revocations in section 6, Schedule 4 and Part 1 of Schedule 28 of provisions which are necessary to give effect to section 35 of the Crime (Sentences) Act 1997 (c. 43) (fine defaulters) do not have effect in relation to a sum ordered to be paid where—

(a) the sum is treated as adjudged to be paid on conviction, and

(b) the act or omission to which the sum relates occurred, or the order was made, before the commencement of those repeals and amendments.

Restrictions on imposing community sentences

6 In subsection (5) of section 148 of the Criminal Justice Act 2003 (restrictions on imposing community sentences), as inserted by section 10 of this Act, the reference to a youth rehabilitation order is to be read as including a reference to any youth community order within the meaning of section 147(2) of the Criminal Justice Act 2003 (as it has effect immediately before the commencement of paragraph 72 of Schedule 4 to this Act).

Attendance centre rules

7 The reference in paragraph 1(2)(a)(ii) of Schedule 2 to rules made under subsection (1)(d) or (e) of section 222 of the Criminal Justice Act 2003 includes a reference to rules made, or having effect as if made, before the coming into force of that section under section 62(3) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (provision, regulation and management of attendance centres).

Part 2 Sentencing

Release and recall of prisoners

8 Nothing in the amendments made by section 26 affects the operation of Part 2 of the Criminal Justice Act 1991 (c. 53) in relation to a long-term prisoner within the meaning of that Part who (for the purposes of that Part) has served one-half of his sentence before the commencement of that section.

9 Section 33(1A) of the Criminal Justice Act 1991 (c. 53) (which is inserted by section 26(2)) does not apply to a long-term prisoner serving a sentence (for one or more offences committed before 4th April 2005) by virtue of having been transferred to the United Kingdom in pursuance of a warrant under section 1 of the Repatriation of Prisoners Act 1984 (c. 47) if—

(a) the warrant was issued before the commencement of section 26(2); and

(b) the offence or one of the offences for which the prisoner is serving that sentence corresponds to murder or to any offence specified in Schedule 15 to the Criminal Justice Act 2003 (c. 44).

10 The amendments made by subsections (3) and (5) of section 28 do not apply in relation to any person who is released on licence under section 36(1) of the Criminal Justice Act 1991 before the commencement of section 28.

11 In section 255A and 255C of the Criminal Justice Act 2003 (which are inserted by section 29) “specified offence prisoner” is to be read as including a prisoner serving a determinate sentence by virtue of having been transferred to the United Kingdom in pursuance of a warrant under section 1 of the Repatriation of Prisoners Act 1984 if—

(a) the warrant was issued before the commencement of section 29; and

(b) the offence or one of the offences for which the prisoner is serving that sentence corresponds to murder or to any offence specified in Schedule 15 to the Criminal Justice Act 2003.

12 The amendment made by subsection (1) of section 32 applies in relation to any person who is recalled under section 254(1) of the Criminal Justice Act 2003 on or after the commencement of section 32 but it is immaterial when the person was released on licence under Part 2 of the Criminal Justice Act 1991.

Fine defaulters

13 (1) Section 39 and Schedule 7 do not apply—

(a) in relation to a sum adjudged to be paid by a conviction if the offence was committed before the commencement of that section, or

(b) where a sum ordered to be paid is treated as adjudged to be paid by a conviction, if the act or omission to which the sum relates occurred, or the order was made, before the commencement of that section.

(2) Section 40 and paragraph 2(4) and (6) of Schedule 26 do not apply—

(a) in relation to a sum adjudged to be paid by a conviction if the offence was committed before the commencement of that section, or

(b) where a sum ordered to be paid is treated as adjudged to be paid by a conviction, if the act or omission to which the sum relates occurred, or the order was made, before the commencement of that section.

Part 3 Appeals

Appeals against conviction etc.

14 The amendment made by section 42 applies in relation to an appeal under Part 1 of the Criminal Appeal Act 1968 (c. 19) if the reference by the Criminal Cases Review Commission is made on or after the date on which that section comes into force.

15 The amendment made by section 43 applies in relation to an appeal under Part 1 of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) if the reference by the Criminal Cases Review Commission is made on or after the date on which that section comes into force.

Prosecution appeals

16 (1) The amendment made by section 44 applies in relation to an appeal under Part 9 of the Criminal Justice Act 2003 (c. 44) if the proceedings on appeal begin on or after the date on which that section comes into force.

(2) For the purposes of this paragraph, the proceedings on appeal begin—

(a) if the prosecution appeals with leave of the Crown Court judge, on the date the application for leave is served on the Crown Court officer or, in the case of an oral application, on the date the application is made, or

(b) if the prosecution appeals with leave of the Court of Appeal, on the date the application for leave is served on the Crown Court officer.

(3) In this paragraph, references to service on the Crown Court officer are to be read in accordance with the Criminal Procedure Rules 2005 (S.I.2005/384).

17 (1) The amendment made by section 45 applies in relation to an appeal under Part IV of the Criminal Justice (Northern Ireland) Order 2004 (S.I. 2004/1500 (N.I.9)) if the proceedings on appeal begin on after the date on which that section comes into force.

(2) For the purposes of this paragraph, the proceedings on appeal begin—

(a) if the prosecution appeals with leave of the Crown Court judge, on the date the application for leave is made,

(b) if the prosecution appeals with leave of the Court of Appeal, on the date the application for leave is served on the proper officer, or

(c) if leave to appeal is not required, on the date the prosecution informs the Crown Court judge that it intends to appeal.

(3) In this paragraph, “the proper officer” has the same meaning as in the Criminal Appeal (Prosecution Appeals) Rules (Northern Ireland) 2005 (S.R (N.I.) 2005/159).

Part 4 Other criminal justice provisions

Alternatives to prosecution for offenders under 18

18 The amendments made by Schedule 9 do not apply in relation to offences committed before the commencement of section 48.

Protection for spent cautions under Rehabilitation of Offenders Act 1974

19 (1) Subject to the following provisions of this paragraph, the Rehabilitation of Offenders Act 1974 (c. 53) (as amended by Schedule 10 to this Act) applies to cautions given before the commencement date as it applies to cautions given on or after that date.

(2) A caution given before the commencement date shall be regarded as a spent caution at a time determined in accordance with sub-paragraphs (3) to (8).

(3) A caution other than a conditional caution (as defined in section 8A(2)(a) of the 1974 Act) shall be regarded as a spent caution on the commencement date.

(4) If the period of three months from the date on which a conditional caution was given ends on or before the commencement date, the caution shall be regarded as a spent caution on the commencement date unless sub-paragraph (7) applies.

(5) If the period of three months from the date on which a conditional caution was given ends after the commencement date, the caution shall be regarded as a spent caution at the end of that period of three months unless sub-paragraph (7) applies.

(6) Sub-paragraph (7) applies if—

(a) before the date on which the caution would be regarded as a spent caution in accordance with sub-paragraph (4) or (5) (“the relevant date”), the person concerned is convicted of the offence in respect of which the caution was given, and

(b) the rehabilitation period for the offence ends after the relevant date.

(7) The caution shall be regarded as a spent caution at the end of the rehabilitation period for the offence.

(8) If, on or after the date on which the caution becomes regarded as a spent caution in accordance with sub-paragraph (4) or (5), the person concerned is convicted of the offence in respect of which the caution was given—

(a) the caution shall be treated for the purposes of Schedule 2 to the 1974 Act as not having become spent in relation to any period before the end of the rehabilitation period for the offence, and

(b) the caution shall be regarded as a spent caution at the end of that rehabilitation period.

(9) In this paragraph, “the commencement date” means the date on which section 49 comes into force.

20 In the application of subsection (7) of section 9A of the Rehabilitation of Offenders Act 1974 (as inserted by paragraph 4 of Schedule 10) to offences committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), the reference to 51 weeks is to be read as a reference to 6 months.

Extension of powers of non-legal staff

21 A designation made under section 7A of the Prosecution of Offences Act 1985 (c. 23) (powers of non-legal staff) which has effect immediately before the date on which section 55 comes into force continues to have effect on and after that date as if made under section 7A as amended by that section.

Compensation for miscarriages of justice

22 (1) Section 61(3) has effect in relation to any application for compensation made in relation to—

(a) a conviction which is reversed, and

(b) a pardon which is given,

on or after the commencement date.

(2) Section 61(4), (6) and (7) have effect in relation to—

(a) any application for compensation made on or after the commencement date, and

(b) any application for compensation made before that date in relation to which the question whether there is a right to compensation has not been determined before that date by the Secretary of State under section 133(3) of the 1988 Act.

(3) Section 61(5) has effect in relation to any conviction quashed on an appeal out of time in respect of which an application for compensation has not been made before the commencement date.

(4) Section 61(5) so has effect whether a conviction was quashed before, on or after the commencement date.

(5) In the case of—

(a) a conviction which is reversed, or

(b) a pardon which is given,

before the commencement date but in relation to which an application for compensation has not been made before that date, any such application must be made before the end of the period of 2 years beginning with that date.

(6) But the Secretary of State may direct that an application for compensation in relation to a case falling within sub-paragraph (5) which is made after the end of that period is to be treated as if it had been made before the end of that period if the Secretary of State considers that there are exceptional circumstances which justify doing so.

(7) In this paragraph—

• “the 1988 Act” means the Criminal Justice Act 1988 (c. 33);

• “application for compensation” means an application for compensation made under section 133(2) of the 1988 Act;

• “the commencement date” means the date on which section 61 comes into force;

• “reversed” has the same meaning as in section 133 of the 1988 Act (as amended by section 61(5)).

Part 5 Criminal law

Penalties for possession of extreme pornographic images

23 In section 67(4)(a) the reference to 12 months is to be read as a reference to 6 months in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44).

Indecent photographs of children

24 (1) Section 69(3) applies in relation to things done as mentioned in—

(a) section 1(1) of the Protection of Children Act 1978 (c. 37) (offences relating to indecent photographs of children), or

(b) section 160(1) of the Criminal Justice Act 1988 (c. 33) (offence of possession of indecent photographs of children),

after the commencement of section 69.

(2) Section 70(3) applies in relation to things done as mentioned in—

(a) Article 3(1) of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (offences relating to indecent photographs of children), or

(b) Article 15(1) of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (offence of possession of indecent photographs of children),

after the commencement of section 70.

Maximum penalty for publication etc. of obscene articles

25 Section 71 does not apply to offences committed before the commencement of that section.

Offences relating to nuclear material and nuclear facilities

26 The new section 2 inserted into the Nuclear Material (Offences) Act 1983 (c. 18) by paragraph 4 of Schedule 17 and the repeal in Part 5 of Schedule 28 of section 14 of the Terrorism Act 2006 (c. 11) do not apply in relation to anything done before the date on which Schedule 17 comes into force.

Reasonable force for purposes of self-defence etc.

27 (1) Section 76 applies whether the alleged offence took place before, or on or after, the date on which that section comes into force.

(2) But that section does not apply in relation to—

(a) any trial on indictment where the arraignment took place before that date, or

(b) any summary trial which began before that date,

or in relation to any proceedings in respect of any trial within paragraph (a) or (b).

(3) Where the alleged offence is a service offence, that section similarly does not apply in relation to—

(a) any proceedings before a court where the arraignment took place before that date, or

(b) any summary proceedings which began before that date,

or in relation to any proceedings in respect of any proceedings within paragraph (a) or (b).

(4) For the purposes of sub-paragraph (3) summary proceedings are to be regarded as beginning when the hearing of the charge, or (as the case may be) the summary trial of the charge, begins.

(5) In this paragraph—

• “service offence” means—

  (a)

  any offence against any provision of Part 2 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18), Part 2 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or Part 1 of the Naval Discipline Act 1957 (c. 53); or

  (b)

  any offence under Part 1 of the Armed Forces Act 2006 (c. 52);

• “summary proceedings” means summary proceedings conducted by a commanding officer or appropriate superior authority.

Unlawfully obtaining etc. personal data: defences

28 The amendment made by section 78 does not apply in relation to an offence committed before the commencement of that section.

Part 6 International co-operation in relation to criminal justice matters

Mutual recognition of financial penalties

29 (1) The amendments made by subsection (1) of section 80, and subsection (2) of that section, do not apply in relation to financial penalties (within the meaning of that section) imposed before that section comes into force.

(2) Section 82 does not apply in relation to financial penalties (within the meaning of that section) imposed before that section comes into force.

(3) Section 84 does not apply in relation to financial penalties (within the meaning of that section) imposed before that section comes into force.

(4) Section 87 does not apply in relation to financial penalties (within the meaning of that section) imposed before that section comes into force.

Repatriation of prisoners

30 The amendment made by section 93 does not apply to warrants under section 1 of the Repatriation of Prisoners Act 1984 issued before the commencement of that section.

Part 7 Violent offender orders

Penalties for offences

31 In section 113(7)(a) in its application in relation to England and Wales the reference to 12 months is to be read as a reference to 6 months in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44).

Service custody and detention

32 (1) In relation to any time before the commencement of section 105(2) of the Armed Forces Act 2006 (c. 52)—

(a) the definition of “kept in service custody” in section 117(1) of this Act does not apply; and

(b) any reference in Part 7 to being kept in service custody is to be read as a reference to being kept in military, air-force or naval custody by virtue of an order made under section 75A(2) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) or of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 47G(2) of the Naval Discipline Act 1957 (c. 53) (as the case may be).

(2) In relation to any time before the commencement of the definition of “service detention” in section 374 of the Armed Forces Act 2006—

(a) the definition of “service detention” in section 117(1) of this Act does not apply; and

(b) any reference in Part 7 to service detention is to be read as a reference to detention under section 71(1)(e) of the Army Act 1955 or of the Air Force Act 1955 or section 43(1)(e) of the Naval Discipline Act 1957.

Part 8 Anti-social behaviour

Review of anti-social behaviour orders etc.

33 (1) The amendments made by section 123 do not apply in relation to an anti-social behaviour order, or a section 1B or 1C order, made more than 9 months before the day on which that section comes into force, unless the order has been varied by a further order made no more than 9 months before that day.

(2) In sub-paragraph (1) “section 1B or 1C order” means an order under section 1B or section 1C of the Crime and Disorder Act 1998 (c. 37).

Individual support orders

34 (1) The amendments made by section 124 do not apply in relation to an anti-social behaviour order, or a section 1B or 1C order, made more than 9 months before the day on which that section comes into force, unless the order has been varied by a further order made no more than 9 months before that day.

(2) In sub-paragraph (1) “section 1B or 1C order” means an order under section 1B or section 1C of the Crime and Disorder Act 1998 (c. 37).

Part 9 Police

Police misconduct and performance procedures

35 (1) This paragraph applies if paragraphs 7, 8(3), 15 and 16 of Schedule 22 come into force before the relevant provisions of the Legal Services Act 2007 (c. 29) come into force.

(2) Until the relevant provisions of the Legal Services Act 2007 come into force—

(a) section 84 of the Police Act 1996 (c. 16) (as substituted by paragraph 7 of that Schedule and as referred to in the subsection (4) of section 85 of that Act substituted by paragraph 8(3) of that Schedule) has effect as if, in subsection (4), for the definition of “relevant lawyer” there were substituted—

““relevant lawyer” means counsel or a solicitor;”; and

(b) section 4 of the Ministry of Defence Police Act 1987 (c. 4) (as substituted by paragraph 15 of that Schedule and as referred to in subsection (7) of the section 4A of that Act substituted by paragraph 16 of that Schedule) has effect as if, in subsection (4), for the definition of “relevant lawyer” there were substituted—

““relevant lawyer” means counsel or a solicitor;”.

(3) In this paragraph “the relevant provisions of the Legal Services Act 2007” means the provisions of that Act which provide, for the purposes of that Act, for a person to be an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act).

Part 10 Special immigration status

Conditions on designated persons

36 In the application of section 133 to England and Wales in relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44) (51 week maximum term of sentences) the reference in section 133(6)(b) to 51 weeks is to be read as a reference to six months.

Part 11 Miscellaneous

Persistent sales of tobacco to persons under 18

37 The new sections 12A and 12B inserted into the Children and Young Persons Act 1933 (c. 12) by section 143 do not apply where any of the offences mentioned in those new sections were committed before the commencement of that section.

Sexual offences

38 The amendment made by sub-paragraph (1) of paragraph 57 of Schedule 26 is not to be read as affecting the validity of any supplementary, incidental, consequential, transitional, transitory or saving provisions included in orders or regulations made by the Secretary of State under the Sexual Offences Act 2003 (c. 42) before the commencement of that sub-paragraph.