Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act 2008 is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland. In particular, it changes the law relating to custodial sentences and the early release of prisoners to reduce prison overcrowding, which reached crisis levels in 2008. It also reduces the right of prison officers to take industrial action, and changed the law on the deportation of foreign criminals. It received royal assent on 8 May 2008, but most of its provisions came into force on various later dates. Many sections came into force on 14 July 2008.
Specific provisions
Sentencing
Non-custodial sentences
Section 1 of the Act provides a comprehensive list of new community orders, called youth rehabilitation orders, which can be imposed on offenders aged under 18. They can only be imposed if the offence is imprisonable and, if the offender is aged under 15, he is a persistent offender. Neither of these criteria are necessary under the old law.Section 11 deals with adult offenders, and provides that adult community orders may not be imposed unless the offence is imprisonable, or unless the offender has been fined on three previous occasions.
Section 35 extends the availability of referral orders. Previously only available to first offenders, referral orders may be passed on offenders with previous convictions, subject to certain conditions being met.
Dangerous offenders
The Criminal Justice Act 2003 introduced mandatory sentencing for violent and sexual offenders, which significantly reduced judicial discretion in sentencing defendants who judges considered were a danger to the public. The increase in life sentences and "extended sentences" which resulted contributed to a major crisis of prison overcrowding, in which the prison population of England and Wales reached unprecedented levels. Sections 13 to 17 restored a proportion of judicial discretion and imposed stricter criteria for the imposition of such sentences. Section 25 provided for the automatic early release of prisoners serving extended sentences, instead of discretionary release by the Parole Board.Curfew
English law already provided the courts with the power to impose a curfew as a condition of bail, and the power to require the defendant to wear an electronic tag to monitor compliance. Section 21 introduces a new power enabling a court which imposes a custodial sentence to order that half of the time for which the defendant was on a curfew is to count as time served towards that sentence, provided that the curfew was in force for at least 9 hours each day and that it was monitored by a tag. Although there is a presumption that the court is to make such an order, the court may decline to do so, and is obliged to take into account any breaches of the bail condition.Obscene publications
Section 71 increases the maximum sentence for publishing an obscene article under section 2 of the Obscene Publications Act 1959 from 3 to 5 years.Offences
Extreme pornographic images
Section 63 creates a new offence of possessing "an extreme pornographic image".An image is deemed to be extreme if it "is grossly offensive, disgusting or otherwise of an obscene character" and "it portrays, in an explicit and realistic way, any of the following—
Where or apply, the maximum sentence is three years; otherwise the maximum is two years. Those sentenced to at least two years will be placed on the Violent and Sex Offender Register.
Section 64 excludes classified works, but states that extracts from classified works are not exempt, if "it is of such a nature that it must reasonably be assumed to have been extracted solely or principally for the purpose of sexual arousal".
Sections 65 to 66 provide defences to this offence.
Child pornography
Section 69 extends the definition of indecent photographs in the Protection of Children Act 1978 to cover tracings of such photographs or pseudo-photographs.Child sex offences
Section 72 amends section 72 of the Sexual Offences Act 2003 to extend extraterritorial jurisdiction over sexual offences against children overseas. Section 73 and Schedule 15 extend the definition of the offence of child grooming.Hate crimes
Section 74 and Schedule 16 amend Part 3A of the Public Order Act 1986 to extend hate crime legislation to cover "hatred against a group of persons defined by reference to sexual orientation ".To prevent the Act being used to inhibit freedom of speech on the subject of homosexuality, paragraph 14 of Schedule 16 inserts a new section 29JA, entitled "Protection of freedom of expression " but sometimes known as the Waddington Amendment. It reads:
The government tried to insert a clause in the 2009 Coroners and Justice Bill which would have explicitly repealed section 29JA, but the proposed repeal failed and section 29JA remains. The section was extended to protect criticism of gay marriage by the Marriage Act 2013.
Section 74 and Schedule 16 came into force on 23 March 2010.
Nuclear terrorism
Section 75 and Schedule 17 make major amendments to the Nuclear Material Act 1983 to extend extraterritorial jurisdiction over offences under section 1 of that Act, and to increase penalties. It also creates new offences pertaining to nuclear and radioactive material, also with extraterritorial jurisdiction.Blasphemy
Section 79 abolished the common law offences of blasphemy and blasphemous libel in England and Wales. This section came into force two months after royal assent.Violent offender orders
Part 7 creates violent offender orders. These are orders made by a magistrates' court under section 101 to control violent offenders, and are similar to anti-social behaviour orders. They must be "necessary for the purpose of protecting the public from the risk of serious violent harm caused by the offender".Applications for an order
To be eligible for an order a person must be at least 18, have been convicted of a "specified offence", and have received a sentence of at least one year in prison or incarceration in a psychiatric hospital. The "specified offences" are attempted murder, conspiracy to murder, and offences under sections 4, 18 or 20 of the Offences against the Person Act 1861. Murderers became eligible once section 119 of the Anti-social Behaviour, Crime and Policing Act 2014 came into force on 13 May 2014.Before deciding whether to make the order, a court may make an interim violent offender order, which lasts until it decides whether or not to make a final order. The court may make an interim order if it decides that it would be "likely" to make a final order if it were dealing with the main application.
An application for a final or interim order can only be made by the police, who can only apply for one if the offender has, since he became eligible for the order, acted in a way that "gives reasonable cause" to believe that the order is necessary. The defendant must be served with a notice giving the time and place of the hearing at which the application will be made. The court must be satisfied that the notice was given before it can hear the application. The court may only make the final order if it decides that the order is necessary to protect the public from "a current risk of serious physical or psychological harm caused by that person committing one or more specified offences". When making this decision the court must take into account any other statutory measures that are in place to protect the public from the person. If the order is made, the defendant may appeal to the Crown Court, which does not review the decision but decides the matter afresh for itself.
Effect of an order
A final violent offender order lasts for between 2 and 5 years, but may be renewed for up to 5 years at a time. It may not be in force during any time that the offender is in custody or on parole subject to licence. After 2 years the defendant may apply to the magistrates' court to have the order discharged.A final or interim order "may contain prohibitions, restrictions or conditions preventing the offender— from going to any specified premises or any other specified place ; from attending any specified event; from having any, or any specified description of, contact with any specified individual". The offender must also notify the police, within 3 days of the order being made, of his date of birth, national insurance number, his name on the date the order came into force and on the day he notifies the police, his home address on each of those dates, and the address of any other premises in the United Kingdom at which on the latter date the offender regularly resides or stays, and any other information prescribed by regulations. He must repeat the notification every year, and must notify any subsequent change of name or address within 3 days of the change. He may be fingerprinted and photographed by the police whenever he gives any of these notifications. If he leaves the United Kingdom he may also be required to notify, before he leaves, the date he intends to leave, where he intends to go, his movements outside the UK, and any information about his return.
Breaching a violent offender order, or failing to make a required notification on time, is an offence punishable with imprisonment for 5 years.
Miscellaneous
Early release of prisoners
Section 26 brought forward the release date of prisoners serving sentences greater than 4 years imposed before 4 April 2005. It did not apply to prisoners serving life sentences or serving sentences for violent or sexual offences. This section came into force on 9 June 2008. This was in order to alleviate prison overcrowding.Absence of defendants
Section 54 creates a presumption that when an adult defendant fails to attend a magistrates' court for his trial or sentence, the hearing should continue without him.Non-legal staff
Before the Act, the Crown Prosecution Service already employed staff who were not qualified lawyers to prosecute cases at pre-trial hearings and sentences in the magistrates' court. Section 55 grants them the right to prosecute trials for offences which are non-imprisonable and not triable on indictment. The original version of this section, when the Act was still a bill, would have allowed them to prosecute imprisonable, indictable offences. This proved to be controversial, and was amended following representations by concerned groups such as the Bar Council.Self-defence
Section 76 codifies English and Northern Irish case law on the subject of self-defence. However it made no changes to the existing law.The section was amended on 25 April 2013 by section 43 of the Crime and Courts Act 2013 to allow people to use greater force in defence of their homes against burglars. In those circumstances, force need no longer be reasonable as long as it is not "grossly disproportionate."
Anti-social behaviour
Section 118 created a new Part 1A to the Anti-Social Behaviour Act 2003. This permits police and local authorities to apply for a court order to close for a period of three months residential premises associated with persistent noise and nuisance. This section came into force on 1 December 2008.When an ASBO is made on a person aged under 17, section 123 requires the courts to review the order every twelve months, until the subject of the order is 18. This section came into force on 1 February 2009.
Public order
Section 119 created a new offence of causing "a nuisance or disturbance" to a member of staff of the National Health Service. It is non-imprisonable and carries a maximum fine of £1,000. This section came into force on 30 November 2009.Section 122 makes similar provision for Northern Ireland.
Foreign criminals
Part 10 of the Act gives the Secretary of State the power to designate as "foreign criminals" certain criminals who are not British citizens and do not have the right of abode. Designated foreign criminals have a special status under immigration law, and may be required to comply with conditions as to their residence, employment, and compulsory reporting to the police or a government office. Failure to comply is an imprisonable offence. As of July 2018, Part 10 is not yet in force.Prison officers
Section 138 curtails the right of prison officers to strike. This section came into force on royal assent.Child sex offenders
Section 140 requires local authorities to consider disclosing to members of the public details about the previous convictions of convicted child sex offenders.Tobacco
Section 143 inserts new sections 12A to 12D into the Children and Young Persons Act 1933. These create two new civil orders, which may be imposed by the magistrates' courts, prohibiting the sale of tobacco or cigarette paper, or keeping a cigarette vending machine, for up to one year. Breaching the order is a summary offence punishable with a fine of up to £20,000. These orders can be imposed on anyone who has been convicted of an offence under section 7 of the 1933 Act, which prohibits selling tobacco to children under 18.Commencement
Section 153 of the Act provides that most of its sections will come into force on dates to be determined by the Secretary of State. However the restriction on prison officers' right to strike came into force on royal assent, and the abolition of the offence of blasphemy came into force two months later.Fifteen commencement orders have been made under section 153. The second one brought most of the remaining provisions into effect on 14 July 2008.
Commencement orders
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Brought into force sections 1 to 5, 6, 7, 8, 75, 119 to 121, Schedules 1 to 3, 4 and 17, and other miscellaneous provisions on 30 November 2009.
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Brought into force section 74, Schedule 16, and other miscellaneous provisions on 23 March 2010. Also brought into force section 144 on 6 April 2010 and some other miscellaneous provisions on 1 April 2010.
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Brought into force section 148 and paragraphs 59, 60 and 62 of Schedule 26 on 8 April 2013.