Coroners and Justice Act 2009

Section 144

Schedule 17 Treatment of convictions in other member States etc

Evidence of bad character

1 (1) The Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) In section 103 (matter in issue between the defendant and the prosecution), after subsection (6) add—

“(7) Where—

(a) a defendant has been convicted of an offence under the law of any country outside England and Wales (“the previous offence”), and

(b) the previous offence would constitute an offence under the law of England and Wales (“the corresponding offence”) if it were done in England and Wales at the time of the trial for the offence with which the defendant is now charged (“the current offence”),

subsection (8) applies for the purpose of determining if the previous offence and the current offence are of the same description or category.

(8) For the purposes of subsection (2)—

(a) the previous offence is of the same description as the current offence if the corresponding offence is of that same description, as set out in subsection (4)(a);

(b) the previous offence is of the same category as the current offence if the current offence and the corresponding offence belong to the same category of offences prescribed as mentioned in subsection (4)(b).

(9) For the purposes of subsection (10) “foreign service offence” means an offence which—

(a) was the subject of proceedings under the service law of a country outside the United Kingdom, and

(b) would constitute an offence under the law of England and Wales or a service offence (“the corresponding domestic offence”) if it were done in England and Wales by a member of Her Majesty’s forces at the time of the trial for the offence with which the defendant is now charged (“the current offence”).

(10) Where a defendant has been found guilty of a foreign service offence (“the previous service offence”), for the purposes of subsection (2)—

(a) the previous service offence is an offence of the same description as the current offence if the corresponding domestic offence is of that same description, as set out in subsection (4)(a);

(b) the previous service offence is an offence of the same category as the current offence if the current offence and the corresponding domestic offence belong to the same category of offences prescribed as mentioned in subsection (4)(b).

(11) In this section—

• “Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006;

• “service law”, in relation to a country outside the United Kingdom, means the law governing all or any of the naval, military or air forces of that country.”

(3) In section 108 (offences committed by defendant when a child), after subsection (2) insert—

“(2A) Subsection (2B) applies where—

(a) the defendant has been convicted of an offence under the law of any country outside England and Wales (“the previous offence”), and

(b) the previous offence would constitute an offence under the law of England and Wales (“the corresponding offence”) if it were done in England and Wales at the time of the proceedings for the offence with which the defendant is now charged.

(2B) For the purposes of subsection (2), the previous offence is to be regarded as triable only on indictment if the corresponding offence is so triable.”

2 (1) The Criminal Justice (Evidence) (Northern Ireland) Order 2004 (S.I. 2004/1501 (N.I. 10)) is amended as follows.

(2) In Article 8 (matter in issue between the defendant and the prosecution), after paragraph (6) add—

“(7) Where—

(a) a defendant has been convicted of an offence under the law of any country outside Northern Ireland (“the previous offence”), and

(b) the previous offence would constitute an offence under the law of Northern Ireland (“the corresponding offence”) if it were done in Northern Ireland at the time of the trial for the offence with which the defendant is now charged (“the current offence”),

paragraph (8) applies for the purpose of determining if the previous offence and the current offence are of the same description or category.

(8) For the purposes of paragraph (2)—

(a) the previous offence is of the same description as the current offence, if the corresponding offence is of that same description, as set out in paragraph (4)(a);

(b) the previous offence is of the same category as the current offence, if the current offence and the corresponding offence belong to the same category of offences prescribed as mentioned in paragraph (4)(b).”

(3) In Article 13 (offences committed by a defendant when a child), after paragraph (1) insert—

“(1A) Paragraph (1B) applies where—

(a) the defendant has been convicted of an offence under the law of any country outside Northern Ireland (“the previous offence”), and

(b) the previous offence would constitute an offence under the law of Northern Ireland (“the corresponding offence”) if it were done in Northern Ireland at the time of the proceedings for the offence with which the defendant is now charged.

(1B) For the purposes of paragraph (1), the previous offence is to be regarded as triable only on indictment if the corresponding offence is so triable.”

Bail

3 (1) Section 25 of the Criminal Justice and Public Order Act 1994 (c. 33) (no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences) is amended as follows.

(2) For subsection (3) substitute—

“(3) This section applies in the circumstances described in subsection (3A) or (3B) only.

(3A) This section applies where—

(a) the person has been previously convicted by or before a court in any part of the United Kingdom of any offence within subsection (2) or of culpable homicide, and

(b) if that previous conviction is one of manslaughter or culpable homicide—

(i) the person was then a child or young person, and was sentenced to long-term detention under any of the relevant enactments, or

(ii) the person was not then a child or young person, and was sentenced to imprisonment or detention.

(3B) This section applies where—

(a) the person has been previously convicted by or before a court in another member State of any relevant foreign offence corresponding to an offence within subsection (2) or to culpable homicide, and

(b) if the previous conviction is of a relevant foreign offence corresponding to the offence of manslaughter or culpable homicide—

(i) the person was then a child or young person, and was sentenced to detention for a period in excess of 2 years, or

(ii) the person was not then a child or young person, and was sentenced to detention.”

(3) In subsection (5), omit “and” at the end of the definition of “conviction”, and at the end insert—

• ““relevant foreign offence”, in relation to a member State other than the United Kingdom, means an offence under the law in force in that member State.”

(4) After that subsection insert—

“(5A) For the purposes of subsection (3B), a relevant foreign offence corresponds to another offence if the relevant foreign offence would have constituted that other offence if it had been done in any part of the United Kingdom at the time when the relevant foreign offence was committed.”

Decision as to allocation

4 (1) Section 19 of the Magistrates’ Courts Act 1980 (c. 43) (decision as to allocation) (as substituted by Schedule 3 to the Criminal Justice Act 2003 (c. 44)) is amended as follows.

(2) In subsection (5), omit “or” at the end of paragraph (a) and insert—

“(aa) a previous conviction by a court in another member State of a relevant offence under the law of that State; or”.

(3) After that subsection insert—

“(5A) For the purposes of subsection (5)(aa) an offence is “relevant” if the offence would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time when the allocation decision is made.”

5 (1) Paragraph 9 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (procedure where persons are sent for trial under section 51 of the Crime and Disorder Act 1998) (as amended by Schedule 3 to the Criminal Justice Act 2003) is amended as follows.

(2) In sub-paragraph (5), omit “or” at the end of paragraph (a) and insert—

“(aa) a previous conviction by a court in another member State of a relevant offence under the law of that State, or”.

(3) After that sub-paragraph, insert—

“(5A) For the purposes of sub-paragraph (5)(aa) an offence is “relevant” if the offence would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time when the allocation decision is made.”

Seriousness

6 (1) Section 143 of the Criminal Justice Act 2003 (determining the seriousness of an offence) is amended as follows.

(2) In subsection (4)—

(a) omit “or” at the end of paragraph (a) and insert—

“(aa) a previous conviction by a court in another member State of a relevant offence under the law of that State,”, and

(b) after paragraph (b) insert “or

(c) a finding of guilt in respect of a member State service offence.”

(3) For subsection (5) substitute—

“(5) Subsections (2) and (4) do not prevent the court from treating—

(a) a previous conviction by a court outside both the United Kingdom and any other member State, or

(b) a previous conviction by a court in any member State (other than the United Kingdom) of an offence which is not a relevant offence,

as an aggravating factor in any case where the court considers it appropriate to do so.

(6) For the purposes of this section—

(a) an offence is “relevant” if the offence would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time of the conviction of the defendant for the current offence,

(b) “member State service offence” means an offence which—

(i) was the subject of proceedings under the service law of a member State other than the United Kingdom, and

(ii) would constitute an offence under the law of any part of the United Kingdom, or a service offence (within the meaning of the Armed Forces Act 2006), if it were done in any part of the United Kingdom, by a member of Her Majesty’s forces, at the time of the conviction of the defendant for the current offence,

(c) “Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006, and

(d) “service law”, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State.”

7 (1) Section 238 of the Armed Forces Act 2006 (c. 52) (deciding the seriousness of an offence) is amended as follows.

(2) In subsection (3)—

(a) omit “or” at the end of paragraph (a), and

(b) at the end of paragraph (b), insert—

“(c) a previous conviction by a court in a member State other than the United Kingdom of a relevant offence under the law of that State, or

(d) a finding of guilt in respect of a member State service offence.”

(3) For subsection (4) substitute—

“(4) Nothing in this section prevents the court or officer from treating—

(a) a previous conviction by a court outside both the British Islands and any member State, or

(b) a previous conviction by a court in any member State (other than the United Kingdom) of an offence which is not a relevant offence or a member State service offence,

as an aggravating factor in any case where the court or officer considers it appropriate to do so.

(5) For the purposes of this section—

(a) an offence is “relevant” if the offence would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time of the conviction in respect of the current offence,

(b) “member State service offence” means an offence which—

(i) was the subject of proceedings under the service law of a member State other than the United Kingdom, and

(ii) would constitute an offence under the law of any part of the United Kingdom, or a service offence, if it were done in any part of the United Kingdom, by a member of Her Majesty’s forces, at the time of the conviction of the defendant for the current offence, and

(c) “service law”, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State.”

Availability of community orders

8 (1) Section 151 of the Criminal Justice Act 2003 (c. 44) (community order or youth rehabilitation order for persistent offender previously fined) (as amended by the Criminal Justice and Immigration Act 2008 (c. 4)) is amended as follows.

(2) For subsection (1)(b) substitute—

“(b) on three or more previous occasions a sentence consisting only of a fine has been passed on the offender on conviction—

(i) by a court in the United Kingdom of an offence committed by the offender after attaining the age of 16, or

(ii) by a court in another member State of a relevant offence so committed, and”.

(3) For subsection (1A)(c) substitute—

“(c) on three or more previous occasions a sentence consisting only of a fine has been passed on the offender on conviction—

(i) by a court in the United Kingdom of an offence committed by the offender after attaining the age of 16, or

(ii) by a court in another member State of a relevant offence so committed.”

(4) For subsection (2A)(b) substitute—

“(b) on three or more previous occasions a sentence consisting only of a fine has been passed on the offender on conviction—

(i) by a court in the United Kingdom of an offence committed by the offender after attaining the age of 16, or

(ii) by a court in another member State of a relevant offence so committed, and”.

(5) After subsection (4) insert—

“(4A) For the purposes of subsections (1)(b), (1A)(c) and (2A)(b), an offence is “relevant” if the offence would constitute an offence under the law of any part of the United Kingdom if it were done there at the time of the conviction of the defendant for the current offence.”

(6) In subsection (8) (as inserted by Schedule 16 to the Armed Forces Act 2006 (c. 52))—

(a) in paragraph (a) for the words “within the meaning of the Armed Forces Act 2006; and”, substitute “or a member State service offence;”,

(b) in paragraph (b)—

(i) after “service disciplinary proceedings” insert “(other than proceedings for a member State service offence)”, and

(ii) for “that Act” substitute “the Armed Forces Act 2006”, and

(c) after that paragraph insert—

“(c) member State service offence” means an offence which—

(i) was the subject of proceedings under the service law of a member State other than the United Kingdom, and

(ii) would constitute an offence under the law of any part of the United Kingdom, or a service offence, if it were done in any part of the United Kingdom, by a member of Her Majesty’s forces, at the time of the conviction of the defendant for the current offence;

(d) “Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006;

(e) “service law”, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State;

(f) “service offence” has the same meaning as in the Armed Forces Act 2006.”

9 (1) Section 270B of the Armed Forces Act 2006 (c. 52) (community punishment for offender previously fined) is amended as follows.

(2) In subsection (6) omit “or” at the end of paragraph (a) and insert—

“(aa) a conviction by a court in any member State other than the United Kingdom of a relevant offence; or”.

(3) In subsection (10)—

(a) in paragraph (a) after “offence” insert “or a member State service offence”;

(b) in paragraph (b) for “such proceedings” substitute “proceedings in respect of a service offence”;

(c) after that paragraph insert—

“(c) relevant offence” means an offence that would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time of the conviction of the defendant for the current offence;

(d) “member State service offence” means an offence which—

(i) was the subject of proceedings under the service law of a member State other than the United Kingdom, and

(ii) would constitute an offence under the law of any part of the United Kingdom, or a service offence, if it were done in any part of the United Kingdom, by a member of Her Majesty’s forces, at the time of the conviction of the defendant for the current offence;

(e) “the service law of a member State other than the United Kingdom” means the law governing all or any of the naval, military or air forces of that State.”

Required custodial sentences for certain offences

10 (1) Chapter 3 of Part 5 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) is amended as follows.

(2) In section 110 (minimum sentence of 7 years for third class A drug trafficking offence)—

(a) in subsection (1)(b), for “been convicted” to the end substitute “2 relevant drug convictions; and”, and

(b) after subsection (2) insert—

“(2A) For the purposes of subsection (1)—

(a) a “relevant drug conviction” means—

(i) a conviction in any part of the United Kingdom of a class A drug trafficking offence, or

(ii) a conviction in another member State of an offence which was committed after the relevant date and would, if done in the United Kingdom at the time of the conviction, have constituted a class A drug trafficking offence; and

(b) “the relevant date” means the date on which this subsection comes into force.”

(3) In section 111 (minimum of 3 years for third domestic burglary)—

(a) in subsection (1)—

(i) in paragraph (b), for “been convicted” to the end substitute “2 relevant domestic burglary convictions; and”, and

(ii) in paragraph (c), for “30th November 1999” substitute “the relevant date”, and

(b) after subsection (2) insert—

“(2A) For the purposes of subsection (1)—

(a) a “relevant domestic burglary conviction” means—

(i) a conviction in England and Wales of a domestic burglary, or

(ii) a conviction in any other part of the United Kingdom or any other member State of an offence which would, if done in England and Wales at the time of the conviction, have constituted domestic burglary;

(b) “the relevant date”, in relation to a relevant domestic burglary conviction, means—

(i) in respect of a conviction in England and Wales, 30 November 1999, and

(ii) in any other case, the day on which this subsection comes into force.”

(4) In section 113 (certificates of conviction for the purposes of Chapter 3)—

(a) after subsection (1) insert—

“(1A) Where—

(a) a person is convicted—

(i) in any part of the United Kingdom other than England and Wales of a class A drug trafficking offence,

(ii) in any member State other than the United Kingdom of a corresponding drug trafficking offence, or

(iii) in any part of the United Kingdom other than England and Wales, or in any other member State, of a corresponding domestic burglary offence,

(b) in the case of a conviction by or before a court in the United Kingdom, it is stated in open court that the person has been convicted of such an offence on that date, and

(c) the court by or before which the person is convicted certifies, by way of a certificate signed by the proper officer of the court, the fact that the person has been convicted of such an offence on that date,”

the certificate is evidence, for the purposes of the relevant section of this Chapter, that the person was convicted of such an offence on that date.”,

(b) after subsection (2) insert—

“(2A) Where—

(a) a person is convicted—

(i) in any part of the United Kingdom other than England and Wales of a class A drug trafficking offence,

(ii) in any member State other than the United Kingdom of a corresponding drug trafficking offence, or

(iii) in any part of the United Kingdom other than England and Wales, or in any other member State, of a corresponding domestic burglary offence,

(b) in the case of a conviction by or before a court in the United Kingdom, it is stated in open court that the offence was committed on a particular day or over, or at some time during, a particular period, and

(c) the court by or before which the person is convicted certifies, by way of a certificate signed by the proper officer of the court, that the offence was committed on a particular day or over, or at some time during, a particular period,”

the certificate is evidence, for the purposes of the relevant section of this Chapter, that the offence was committed on that day or over, or at some time during, that period.”, and

(c) in subsection (3)—

(i) at the beginning of the definitions insert—

• ““proper officer” means the clerk of the court, that clerk’s deputy or any other person having custody of the court record;”, and

(ii) omit “and” at the end of the definition of “class A drug trafficking offence” and “domestic burglary”, and after those definitions insert—

• ““corresponding drug trafficking offence” means an offence within section 110(2A)(a)(ii);

• “corresponding domestic burglary offence” means an offence within section 111(2A)(a)(ii); and”.

(5) In section 114 (offences under service law) (as substituted by Schedule 16 to the Armed Forces Act 2006 (c. 52))—

(a) after subsection (1) insert—

“(1A) Where—

(a) a person has at any time been found guilty of a member State service offence committed after the relevant date, and

(b) the corresponding UK offence was a class A drug trafficking offence or a domestic burglary,

the relevant section of this Chapter and subsection (1) above shall have effect as if the person had at that time been convicted in England and Wales of that corresponding UK offence.

(1B) For the purposes of subsection (1A)—

(a) “member State service offence” means an offence which—

(i) was the subject of proceedings under the service law of a member State other than the United Kingdom, and

(ii) at the time it was done would have constituted an offence under the law of any part of the United Kingdom, or an offence under section 42 of the Armed Forces Act 2006, if it had been done in any part of the United Kingdom by a member of Her Majesty’s forces (“the corresponding UK offence”);

(b) “relevant date” means—

(i) where the corresponding UK offence was a class A drug trafficking offence, the relevant date referred to in section 110(2A)(b), and

(ii) where the corresponding UK offence was a domestic burglary, the relevant date referred to in section 111(2A)(b)(ii);

(c) “Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006;

(d) “service law”, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State.”, and”

(b) after subsection (3) insert—

“(4) Where—

(a) the corresponding UK offence is an offence under section 42 of the Armed Forces Act 2006 by reason of section 43, 45, 46 or 47 of that Act (attempting, conspiring to commit, inciting, aiding, abetting, counselling or procuring criminal conduct); and

(b) the act to which it relates (“the contemplated act”) is not an act that is (or that if done would have been) punishable by the law of England and Wales;

for the purposes of subsections (1A) and (1B) it must be assumed that the contemplated act amounted to the offence under the law of England and Wales that it would have amounted to if it had been the equivalent act in England or Wales.”

Restriction on imposing custodial sentence or service detention

11 In section 263 of the Armed Forces Act 2006 (c. 52) (restriction on imposing custodial sentence or service detention on unrepresented offender)—

(a) at the end of subsection (2)(b) insert “, or sentenced to detention by a court in any other member State or for a member State service offence”, and

(b) at the end of subsection (6)(b) insert—

“(c) member State service offence” means an offence which—

(i) was the subject of proceedings under the service law of a member State other than the United Kingdom, and

(ii) at the time it was done, would have constituted an offence in any part of the United Kingdom, or a service offence, if it had been done in any part of the United Kingdom by a member of Her Majesty’s forces;

(d) “service law”, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State.”

Young offenders: referral conditions

12 (1) Section 17 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (referral conditions for young offenders) (as amended by the Criminal Justice and Immigration Act 2008 (c. 4)) is amended as follows.

(2) For subsection (1)(b) substitute—

“(b) has never been—

(i) convicted by or before a court in the United Kingdom of any offence other than the offence and any connected offence, or

(ii) convicted by or before a court in another member State of any offence.”

(3) In subsection (2A)—

(a) after “never” insert “—

(a)” , and

(b) at the end insert “, or

(b) been convicted by or before a court in another member State of any offence.”

(4) For subsection (2B) substitute—

“(2B) This subsection is satisfied in relation to the offender if, disregarding the offence and any connected offence—

(a) the offender —

(i) has been dealt with by a UK court for any offence on only one previous occasion, and

(ii) was not referred to a youth offender panel under section 16 on that occasion; or

(b) the offender has been dealt with by a court in any member State other than the United Kingdom on only one previous occasion.”

(5) For subsection (2C)(a) substitute—

“(a) disregarding the offence and any connected offence, the offender has been dealt with by a UK court or a court in another member State for any offence on one or more previous occasions, and has either—

(i) never been referred to a youth offender panel under section 16 above, or

(ii) been referred to a youth offender panel on only one previous occasion;”.

Proving of foreign convictions before courts in England and Wales

13 (1) Section 73 of the Police and Criminal Evidence Act 1984 (c. 60) (proof of convictions and acquittals) is amended as follows.

(2) In subsection (1), after “Kingdom” insert “or any other member State”.

(3) In subsection (2), after paragraph (b) insert “; and

(c) shall, as regards a conviction or acquittal by a court in a member State (other than the United Kingdom), consist of a certificate, signed by the proper officer of the court where the conviction or acquittal took place, giving details of the offence, of the conviction or acquittal, and of any sentence;”.

(4) In subsection (3)—

(a) in paragraph (b), after “other court” insert “in the United Kingdom”, and

(b) after that paragraph add “, and

(c) in relation to any court in another member State (“the EU court”), a person who would be the proper officer of the EU court if that court were in the United Kingdom.”

14 (1) Section 74 of that Act (conviction as evidence of commission of offence) is amended as follows.

(2) In subsection (1), after “Kingdom” (in first place it occurs) insert “or any other member State”.

(3) In subsection (2), after “Kingdom” (in first place it occurs) insert “or any other member State”.

(4) In subsection (3)(a) after “Kingdom” insert “or any other member State”.

15 In section 75 of that Act (provisions supplementary to section 74), for subsection (1)(b) substitute—

“(b) the contents of—

(i) the information, complaint, indictment or charge-sheet on which the person in question was convicted, or

(ii) in the case of a conviction of an offence by a court in a member State (other than the United Kingdom), any document produced in relation to the proceedings for that offence which fulfils a purpose similar to any document or documents specified in sub-paragraph (i),”.

Proving of foreign convictions before courts in Northern Ireland

16 (1) Article 71 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (proof of convictions and acquittals) is amended as follows.

(2) After paragraph (1) insert—

“(1A) Where in any criminal proceedings the fact that a person has in a member State been convicted or acquitted of an offence is admissible in evidence, it may be proved by—

(a) producing a certificate of conviction or, as the case may be, of acquittal relating to that offence, and

(b) proving that the person named in the certificate as having been convicted or acquitted of the offence is the person whose conviction or acquittal of the offence is to be proved.”

(3) In paragraph (2), after sub-paragraph (b) insert “; and

“(c) shall, as regards a conviction or acquittal by a court in a member State (other than the United Kingdom), consist of a certificate, signed by the clerk of the court where the conviction or acquittal took place, giving details of the offence, of the conviction or acquittal, and of any sentence;”.

17 (1) Article 72 of that Order (conviction as evidence of commission of offence) is amended as follows.

(2) In paragraph (1), after “Kingdom” (in first place it occurs) insert “or any other member State”.

(3) In paragraph (2), after “Kingdom” (in first place it occurs) insert “or any other member State”.

(4) In paragraph (3)(a), after “Kingdom” insert “or any other member State”.

18 In Article 73 of that Order (provisions supplementary to Article 72), for paragraph (1)(b) substitute—

“(b) the contents of—

(i) the complaint, information, indictment or charge-sheet on which the person in question was convicted, or

(ii) in the case of a conviction of an offence by a court in a member State (other than the United Kingdom), any document produced in relation to the proceedings for that offence which fulfils a purpose similar to any document or documents specified in paragraph (i),”.