You Can Run ...

18th February 2013

Delays to reforms to the Rehabilitation of Offenders Act 1974

"We're disappointed to announce that this morning we've received notification from the Government that the changes to the Rehabilitation of Offenders Act 1974, due to come into force in Spring 2013, have been delayed. The Ministry of Justice provided us with the following:

"As you know, the commencement of the reforms are dependent on the necessary system changes being in place so that basic disclosure certificates for England and Wales will reflect the new rehabilitation periods. We had been aiming to commence the reforms by April 2013, however, it will not be possible to achieve the necessary system changes by that date and we are now looking at commencement in November.""

Nigel

I'm Nearly Spent

December 2012

Is it spent now?

1. Introduction

"This guide explains the changes to the Rehabilitation of Offenders Act 1974 (ROA) which the Government has made through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). It does not explain how the current ROA works (that is covered on our Information Hub and will be updated once the changes come into force)."

'Is it spent now?' - New brief guide on changes to the ROA (Unlock Forum)

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Legal Aid, Sentencing and Punishment of Offenders Act 2012 - Explanatory Notes - Chapter 8: Rehabilitation of offenders

"48. Chapter 8 contains a package of changes to the Rehabilitation of Offenders Act 1974 (“the ROA”) to amend the scope of the Act and its rehabilitation periods. The amendments extend the scope of the ROA so that custodial sentences of up to and including 4 years in length can become ‘spent’. The times at which different convictions become ‘spent’ are also amended, and in most cases the rehabilitation periods are reduced. Where a caution or conviction has become spent, the offender is treated as rehabilitated in respect of that offence and is not obliged to declare it for most purposes, for example, when applying for employment or insurance."

CHAPTER 8: Rehabilitation of offenders

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Orders 

Additions coming.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 4 and Saving Provisions) Order 2012  (2906)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential and Saving Provisions) Regulations 2012  (2824)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Children Act 1989) (Children Remanded to Youth Detention Accommodation) Regulations 2012 (2813)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 3 and Saving Provision) Order 2012 (2770)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 2 and Specification of Commencement Date) Order 2012 -18th September 2012 (2412)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 1) Order 2012 - 24th July 2012 (1956)

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Regarding 'drag through'/further convictions ...

'Then' (pre-LASPO 2012) ...

Further Convictions 

"Further convictions

 If a rehabilitation period is still running and the offender commits a ‘summary’ offence, a minor offence that can only be tried in a magistrates’ court, the minor offence will not affect the rehabilitation period for the other offence; each offence will expire separately."

What is the Rehabilitation of Offenders Act 1974?

"What happens if I get another caution or conviction before my first conviction becomes spent?

If you already have an unspent conviction (not including unspent conditional cautions), and you get a further caution or conviction before the earlier conviction has become spent, one of the following will apply:

1. If your later outcome is a caution (either a simple caution or a conditional caution), reprimand or warning, neither rehabilitation period will be affected. The caution or conviction for the earlier offence will become spent at the time originally fixed, and the caution for the later offence will become spent after the normal period (immediately for a simple caution or three months for a conditional caution).

2. If your later outcome is a conviction for a summary offence, (one that can only be tried in a magistrates’ court), neither rehabilitation period will be affected. The caution or conviction for the earlier offence will become spent at the time originally fixed, and the conviction for the later offence will become spent after the normal period.

3. If your later outcome is a conviction for an either way or an indictable offence (one which could be tried in the Crown Court) then neither conviction will become spent until the rehabilitation period for both offences are over.

4. If your later outcome is a conviction that results in a prison sentence of more than 2 ½ years then neither the second nor the first conviction will ever become spent.

Once a conviction becomes spent, it remains spent, even if a person is convicted of other offences later."

'Now' (post-LASPO 2012) ...

3.4 Increasing Some Rehabilitation Periods

"a) Further convictions 

Currently, the rehabilitation periods for further convictions for summary offences run separately from other unspent convictions. However, further triable either-way and indictable offences ‘drag through’ existing unspent convictions, extending their rehabilitation period until the last one is spent. Following the changes, all offences will create this ‘drag through’ effect, including summary."

Nigel

A Letter To The Home Office (Part 2)

Not yet sent, being proof-read. Recent additions in sand.

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To: The Rt Hon Theresa May MP

xx/12/2012

Dear Ms May,

I wish to survey your thoughts, and the official position and intention of the Ministry/Government, on the following issues:


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Issue 1

R v Wiles (2004): Ramifications For Police Forces And Those Who Are Required To Register, Under The Sexual Offences Act 2003

I am sure that you are aware of this document (www.unlock.org.uk/userfiles/file/IAG/SORExtendedSentence.pdf).

The main thrust, of the implications of Wiles, is understood, if not agreed upon..

I request clarification, of the following passage, and how it should impact, consistently, on all police forces, in regards to them relinquishing people from (or maintaining them within), notification requirements:

"... to make sure that they have applied the effects of this judgement from at least 1 April 2005."

Please provide a more extended explanation, of what this passage is meant to convey, and, in particular, the nature of the phrase 'at least' and:

e.g. does it mean, that Wiles is retrospective, based on sentencing, prior to Wiles and/or 1/4/2005?

e.g. does it mean, that the requirement to notify, is retrospective, based on sentencing, before 1/4/2005, in light of Wiles?

If the answer to either of these question is "yes", what does the government intend to do, so as to rectify this situation, by legislation (I am sure that you are aware, that the whole construct, of the 'Extended Sentence'; was different, prior to that date and, in fact, earlier to it, than to what it is now).

If your answer, in terms of intention, is "nothing", why not?

On R v Wiles
http://criticalestoppel.blogspot.co.uk/2012/08/on-r-v-wiles.html

A Letter To The Home Office (Part 1) 
http://criticalestoppel.blogspot.co.uk/2012/08/on-r-v-wiles-letter-to-home-office-part.html

What Is 'Imprisonment'? 
http://criticalestoppel.blogspot.co.uk/2012/08/76-meaning-of-custodial-sentence.html 

Sexual Offences Act 2003
http://www.legislation.gov.uk/ukpga/2003/42/part/2


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Issue 2:

Re-Balancing The Notification Periods: In Light Of The Legal Aid, Sentencing and Punishment of Offenders Act 2012

I am sure, that any reasonable person would agree with me, that the excellent work carried out by Lord Dholakia, and his colleagues (leading to the amendments of the ROA 1974 (via LASPOA 2012)), is one small, but, very important, step, in enabling those who have served their debt to society (and more), towards integration as good-standing and productive members of that society. I do have to say, in these days, it is relatively brave and rare, for a government to support such amendments.

Prejudice and persecution, against people, such as myself, are rife, within our communities; that can never be 'a good thing'.

It is now illuminating, to consider the intention of Parliament, when the original Sex Offenders Bill (1996) and Act (1997), were being created:

"The Bill

The Government published its Sex Offenders Bill on 18 December 1996 ... For present purposes, we will focus on Part 1 ... which in turn constituted five clauses, specifying the offenders who will have to register and for how long they will be required to register; describing what information must be supplied and how; making failure to comply with the requirements an offence; outlining the position of young offenders (i.e. under 18 years); and empowering courts to issue certificates stating details of the court hearing. How did the Bill compare to the Consultation Document? First we should note that, although putting forward options, the Consultation Document did contain what might be called the Government's 'preferred options'. These included, firstly, that we did actually have registration requirements, and that their duration should match that of the Rehabilitation of Offenders Act 1974. (my emphasis). Failure to register was to be an absolute offence and the provisions should not be retrospective; the offence of failing to register would be a summary one. Registration was to be in the locality where the offender lived. The Government wanted access to the information on record to be given to those engaged in child protection activities.

The Bill reflected all of these 'preferred options' (my emphasis), although again had nothing directly to say on the subject of allowing access to registered information. It is true to say that the Government continually held the line on all its preferred options, although some were held more easily than others."

(Thomas, T. (2000), Sex Crime: Sex Offending and Society, pg. 108-109, Willan).

The arguments, which the present government supported, towards the LASPOA 2012 amendments, are parallel in nature to those considered, during their creation, and are on record, in the usual places.

I need not comment, here, about the continuing, draconian, populist, mission creep, within the notification requirements, which a person in my position suffers. I have stated such, here, and no doubt, will do so again, in the future:

The Creation of Fresh Pariahs
http://therealosc.blogspot.co.uk/2012/05/creation-of-fresh-pariahs.html

This is particularly irritating, in a personal sense, as it rests only.on Wiles,  which I (amongst others) see as per incuriam, in itself. It is galling and offensive, to one such as myself, who presents no more a risk to society, than any man in the street (and never has - quite the opposite, in fact).

So, the question is this; does the government intend to re-balance the notification periods, with those in the LASPOA 2012 amendments and with the original intention of Parliament?

If that answer is "no", why not?

The Legal Aid, Sentencing and Punishment of Offenders Act 2012
http://www.legislation.gov.uk/ukpga/2012/10/part/3/chapter/8/enacted

Rehabilitation of Offenders Act 1974 
http://www.legislation.gov.uk/ukpga/1974/53 (requires correction, at the time of writing, via Commencement)

Sexual Offences Act 2003
http://www.legislation.gov.uk/ukpga/2003/42/part/2

Rehabilitation of Offenders (Amendment) Bill [HL]: Second Reading
http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/110121-0001.htm#11012142000397

Rehabilitation of Offenders (Amendment) Bill
http://news.bbc.co.uk/democracylive/hi/house_of_lords/newsid_9367000/9367178.stm

Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders
http://webarchive.nationalarchives.gov.uk/20120119200607/http:/www.justice.gov.uk/consultations/docs/breaking-the-cycle.pdf


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Issue 3:

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 - Commencement

Do you have any further guidance on (or dates applying to) when the periods, described in Issue 2, are likely to be 'Commenced'?

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Issue 4:

The ICPC

Regarding the ICPC, I received this email, from your representative:

"public.enquiries@homeoffice.gsi.gov.uk

19 Oct
to me
Dr Nigel Leigh Oldfield,
Reference : T14916/12
Date: 19-Oct-2012

TREAT OFFICIAL CORRESPONDENCE

Thank you for your e-mail of 18/10/2012 8:11:07 PM.

The matters you have raised are the responsibility of Department for Education.

We have therefore transferred your e-mail to DfE, who will arrange for a reply to be sent to you.

Transfer Desk"

Please provide, in as much detail as possible, to whom my request was redirected.

For the record, I do not believe, for one moment, it is the responsibility of the DfE; Do you?


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If you believe that any of my requests relate better to The Ministry of Justice, please redirect my email to them, informing me that you have done so and to whom. You may treat this as a request, under the Freedom of Information Act 2000, if you so desire.

For the record, it is very likely, that these communications will be shared with my local Member of Parliament and, possibly, in later legal action(s). They may, also, be posted online.

A copy of this email is posted at:

http://criticalestoppel.blogspot.co.uk/2012/12/a-communication-to-our-home-secretary.html

... with active hyperlinks, where appropriate.

A copy of this email has been sent to the Rt Hon Theresa May MP, and my PPU, by Royal Mail.

I look forward to your reply, which is preferred, by email.

Yours Sincerely,

Dr Nigel Leigh Oldfield
wmcriticalestoppel@googlemail.com
http://criticalestoppel.blogspot.co.uk
http://therealosc.blogspot.co.uk

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Nigel.

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Addendum (2/8/13)

"The Rehabilitation of Offenders Act 1974 is an important piece of legislation. It is designed to help people with a criminal record get back into work by allowing their record to become ‘spent’ after a period of time, provided they have not reoffended.

Once a record is spent, this means that the person is no longer required to declare their offence to a prospective employer. At this point, as the Act says, they are ‘entitled to be treated for all purposes in law as a person who has not been convicted or sentenced’."

http://www.nacro.org.uk/what-we-do/resettlement-advice-service/reforms-to-the-rehabilitation-of-offenders-act/what-is-the-rehabilitation-of-offenders-act-1974,1346,NAP.html

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Nigel.

What Is 'Imprisonment'?

76 Meaning of “custodial sentence”.

(1) In this Act “custodial sentence” means—

(a)a sentence of imprisonment (as to which, see section 89(1)(a) below);

(b)a sentence of detention under section 90 or 91 below;

(c)a sentence of custody for life under section 93 or 94 below;

(d)a sentence of detention in a young offender institution (under section 96 below or otherwise); or

(e)a detention and training order (under section 100 below).

(2)In subsection (1) above “sentence of imprisonment” does not include a committal for contempt of court or any kindred offence.

Powers of Criminal Courts (Sentencing) Act 2000

imprison v. 1 put in prison. 2 confine. imprisonment n.

Pocket Oxford Dictionary

Nigel

A Letter To The Home Office (Part 1)

I could not have put most of it better, myself:

"Re: R v Wiles ruling - justice?
Today at 16:51:21

The fact is that different forces cannot lawfully apply the rule from a date they choose, so an authoritive decision will need to take place. If they choose the 1997 date, this will lead to hundreds who have completed their notification being required to re-start, and you can hear the costly legal challenges already.

The RvW ruling was on 4/3/04, and should have set a precedent, however it did not and judges continued to sentence under the interpretation of the 1997 act, upheld in R v Graham S 2001. In fact even as late as this year, judges were still not applying RvW in some cases I read.

The Home Office themselves did not become aware of the ruling until April 2005, and even though the ruling was in relation to being banned from working with children, they decided it was a useful tool to hit all those with a sexual offence, so it could be argued that it is being used beyond it's remit.

As more and more are now coming to the end of their 'given' sentence, the challenges will mount. The media will blow it up as 'paedophiles being released', but that is to be expected. But the truth is more than that, it is the police and government riding over a sentence that has been passed and declared in open court and not challenged at the time by the Crown. It was accepted as correct, and indeed in most cases was correct interpretation at the time.

the arguments must be put forward that retrospective increases cannot happen in any case, no matter how emotive you feel about the offence. For example, if you were caught speeding at 58mph in a 50 zone, you will receive due punishment. If 2 years later they changed the speed limit of that section of road to 30mph, would they retrospectively say you were now doing 28mph over the limit, almost twice the limit, and your penalty will now be increased?

No, because that was not the circumstances at the time. In my case, at the time I was sentenced, the correct notification period was 10 years, and you simply cannot get away from that fact.

The police and Home Office need to swallow their pride, stop pandering to the media and accept that the judge passed a sentence. If he made a mistake, it needed to be challenged at the time, not 7 years later."

http://theopinionsite.org/forum/case-law-new-law-court-of-appeal-decisions/r-v-wiles-ruling-justice/60/

Nigel

On R v Wiles

A reply, from me, in a forum thread:

R v Wiles ruling - justice?

"M-N,

An ES under the CJA 2003, is not the same as an ES before it. As for the LASPO, I have some detailed documentation on it, but, will wait for the Act. Of course, as the ROA periods are to be 'reduced', that should be translated to the SOA requirements (for the reasons are identical) - do you think they will be? I will be asking the HO on Friday, for their thoughts, on the matter.

WM"

"Hi WM.

I'm at a disadvantage. How is an ES different pre and post CJA 2003?" 

"An extended sentence may be imposed, under section 227 of the Criminal Justice Act 2003 (as amended) on an offender aged 18 or over where the following criteria are met:

>the offender is guilty of a specified violent or sexual offence;
>the court assesses the offender as a significant risk to the public of committing further specified offences;
>a sentence of imprisonment for life is not available or justified; and
>the offender has a previous conviction for an offence listed in schedule 15A to the Criminal Justice Act 2003 or the current offence justifies an appropriate custodial term of at least four years."

http://sentencingcouncil.judiciary.gov.uk/sentencing/extended-prison-sentences.htm

"What is an extended sentence? 

An extended sentence is a determinate sentence comprising an appropriate custodial term plus an extended period of licence. The appropriate custodial term is the determinate period of imprisonment that would have been imposed if the offender was not dangerous, but it must be for a minimum period of 12 months. It is defined as "the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it": section 153(2) CJA 2003. Despite the requirement of the condition in section 227(2B) that the appropriate custodial term must be 4 years (i.e. 2 years actually in custody), it is possible in some circumstances that that an offender may receive an extended sentence with an appropriate custodial term of less than 4 years if he satisfies the previous conviction criteria in section 227(2A). The extension period is "of such length as the court considers necessary for the purpose of protecting members of the public from serious harm": section 227(2) CJA 2003. It may be up to 5 years for a specified violent offence and 8 years for a specified sexual offences: section 227(4) CJA 2003. The sum of the custodial term and the extended licence must not exceed the maximum penalty for the offence: section 227(5) CJA 2003."

http://www.cps.gov.uk/legal/s_to_u/sentencing_and_dangerous_offenders/#a16

The CJA 2003 http://www.legislation.gov.uk/ukpga/2003/44/contents introduced the concept of dangerousness, much more rigorously (and severely), to the ES (which caused me no end of fun, inside, at the time).

Prior to that [CDA 1998; http://www.legislation.gov.uk/ukpga/1998/37/part/IV/chapter/I/crossheading/sexual-or-violent-offenders/enacted, then the PCC(S)A 2000 http://www.legislation.gov.uk/ukpga/2000/6/section/85] the judge could extend the sentence (i.e. 'would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation' - which the PSR almost always did, based on no valid theoretical, research etc evidence, in those days - even less so, now), so as to 'assist the offender in their rehabilitation' etc (see the David Lee piece) ...

36 Bedford Row

This is why sentences are now 'lesser' [sic], in many cases, so that they get the 'care in the community', which would not happen, inside, because they would not be dangerous enough for 4 years or more. Of course, the populist quid pro quo is, usually, the court application, of an unwarranted and unjustified SOPO.

This is why ES's, prior to 2003, could never be meant to lead to indefinite notification.

Note, Wiles [http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Crim/2004/836.html&query=Wiles&method=boolean] [4th March 2004], was after the CJA 2003 [20th November 2003], so that is why the outcome was as it was (quashing Graham [R v Graham (S) [2001] 1 Cr App R 111]), which was correct, before 2003).

You will not find much of this stated, officially (for it is contentious, legal, history), although the odd judge will whine about it.

WM"

Addendum (27/8/2012)

"This case is governed by the extended sentence regime of the PCC(S)A 2000, not the successor regime of the CJA 2003 ..."

[2011] EWHC 1610 (Admin)

R (on the application of Minter) v Chief Constable of Hampshire Constabulary and another

Nigel