Non-Custodial Sentences.docx

***[Non-Custodial Sentences -- 2 Qs]*** ***[What is an order for absolute discharge? ]*** An order discharging an offender absolutely in respect of an offence. Availability An order for **absolute discharge is available to a court dealing with an offender for an offence where---** a. the **off...

***[Non-Custodial Sentences -- 2 Qs]*** ***[What is an order for absolute discharge? ]*** An order discharging an offender absolutely in respect of an offence. Availability An order for **absolute discharge is available to a court dealing with an offender for an offence where---** a. the **offender is convicted by or before the court**, and b. the **offence is not one in relation to which a mandatory sentence requirement** applies (see section 399). Exercise of power to make order for absolute discharge \(3) Where it is available, **the court may make an order for absolute discharge if it is of the opinion that it is inexpedient to inflict punishment, having regard to the circumstances, including---** a. the **nature** of the offence, and b. the **character of the offender**. Effect on other orders \(4) Nothing **in this section is to be taken to prevent a court, on discharging an offender absolutely in respect of an offence, from---** \(a) imposing any **disqualification on the offender**, \(b) making **any of the following orders in respect of the offence**--- i. a **compensation** order (see section 133); ii. an order under section 152 (**deprivation** orders); iii. a **restitution** order (see section 147); iv. an **unlawful profit** order under section 4 of the Prevention of Social Housing Fraud Act 2013, \(c) making an **order under section 46 (criminal courts charge), or** \(d) making an **order for costs against the offender**. The **power to grant an absolute discharge is available to all criminal courts whatever the age of the offender** and, apart from the exceptional cases referred to in the SA 2020, s. 80(2)(b), whatever the offence committed. An **absolute discharge is not a community sentence.** Its imposition may reflect the **triviality of the offence**, the circumstances in which it came to be prosecuted, or special factors relating to the offender. Where an offence is dealt with by way of an absolute discharge, **no surcharge is payable** **With respect to s. 79(4)(c) it should be noted that the criminal courts charge was effectively abolished with effect from 24 December 2015 by way of the sum payable** being reduced to £0. An absolute discharge cannot be combined with a punitive measure for the same offence except where permitted by statute. Thus, **an absolute discharge cannot be combined with a custodial sentence, a community order or a fine.** If, however, an offender is given an absolute discharge for one of a number of offences, the court is free to exercise its normal powers of sentence with respect to the other offences. **An absolute discharge may be combined with an order for disqualification from driving**. An absolute discharge **may be combined with an order to disqualify a person from acting as a company director**, with **an exclusion order under the Licensed Premises** (Exclusion of Certain Persons) Act 1980, or with a **recommendation for deportation.** It seems that a football banning order cannot be made where the offence has been dealt with by way of an absolute discharge. The Supreme Court held that a **confiscation order can be made on an offender who has been sentenced by way of a discharge.** ***[What is an order for conditional discharge? ]*** - An order discharging an offender for an offence subject to the condition that the offender commits no offence during the period specified in the order. *Availability* An order for conditional discharge is available to a court dealing with an offender for an offence where--- a. the offender is convicted by or before the court, and b. the offence is not one in relation to which a mandatory sentence requirement applies (see section 399). **(3)** But see the following for **circumstances where an order for conditional discharge is not available---** a. section 66ZB(6) of the Crime and Disorder Act 1998 (effect of **youth cautions**); b. section 66F of that Act (**youth conditional cautions**); c. section 103I(4) of the Sexual Offences Act 2003 (**breach of sexual harm prevention order and interim sexual harm prevention order** etc); d. section 339(3) (**breach of criminal behaviour order**); e. section 354(5) (**breach of sexual harm prevention order**). *Exercise of power to make order for conditional discharge* **Where it is available, the court may make an order for conditional discharge if it is of the opinion that it is inexpedient to inflict punishment**, having regard to the circumstances, including--- a. the nature of the offence, and b. the character of the offender. **(5)** The **period of conditional discharge specified in an order for conditional discharge must be a period of not more than 3 years beginning with the day on which the order is made**. **(6)** On making an order for conditional discharge, the court may, **if it thinks it expedient for the purpose of the offender's reformation, allow any person who consents to do so to give security for the good behaviour of the offender.** *Effect on other orders* **(7)** **Nothing in this section prevents a court, on making an order for conditional discharge in respect of an offence, from---** **(a)** imposing any disqualification on the offender, **(b)** making any of the following orders in respect of the offence--- i. a compensation order (see section 133), ii. an order under section 152 (deprivation orders), or iii. a restitution order (see section 147), or iv. an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013, **(c)** making an order under section 46 (criminal courts charge), or **(d)** making an order for costs against the offender. The sole condition is that the offender should commit no further offence during the period of the conditional discharge. No other condition or requirement may be inserted. The **power to grant an absolute discharge is available to all criminal courts whatever the age of the offender** and, apart from the exceptional cases referred to in the SA 2020, s. 80(2)(b), whatever the offence committed. A conditional discharge cannot be combined with a punitive measure for the same offence (Savage (1983) 5 Cr App R (S) 216) except where permitted by statute. An offender is given a conditional discharge for one of a number of offences, the court is free to exercise its normal powers of sentence with respect to the other offences. A football banning order can be made where the offence has been dealt with by way of a conditional (but not an absolute) discharge. Supreme Court held that a confiscation order can be made on an offender who has been sentenced by way of a discharge. Any court may, on making an order for conditional discharge, allow any person who **consents to do so to give security for the good behaviour of the offender.** When making such an order the court should specify the type of conduct from which the offender is to refrain. Thus, **a conditional discharge cannot be combined with a custodial sentence, a community order or a fine.** ***[What happens when you breach conditional discharge? ]*** - A conditional discharge can be breached only by the conviction of the offender of a further offence committed during the period of the discharge. - A court dealing with the breach (the Crown Court if it made the conditional discharge, or the magistrates' court if it made it) may sentence the offender for the original offence in any manner in which it could have done if the offender had just been convicted before the court for that offence. - The Crown Court dealing with a person conditionally discharged by a magistrates' court is limited to the lower court's power. **The only reason why a magistrates' court conditional discharge should ever be before the Crown Court would be because the person subject to it was there to be dealt with for other matters.** The Crown Court has the power to sentence in respect of it in those circumstances, and no committal is required.' **One magistrates' court may deal with breach of a conditional discharge imposed by a different magistrates' court, but only with the consent of the original magistrates'** It should be noted that, **in relation to an offender who was aged under 18 when first convicted, the court may resentence that offender in any way in which it could deal with the offender if he or she were the same age as when convicted.** Sentencing for the original offence always terminates the conditional discharge itself, but **any order for compensation or costs made at the time of the discharge remains valid**. ***[What are the courts powers to impose a fine? ]*** **A fine is available to the Crown Court where it is dealing with an offender who is convicted on indictment for an offence---** a. **instead** of, or b. in **addition** to, **dealing with the offender in any other way which is available to the court**. \(2) Subsection (1)--- a. does not apply where the offence is one in relation to **which a mandatory sentence requirement applies by virtue of any of the following provisions of section** 399--- \(i) paragraph (a) (**life sentence for murder** etc), \(ii) paragraph (b) (**other mandatory life sentences**), (iia) paragraph (ba) (**serious terrorism sentences**), or \(iii) paragraph (c)(iv) (**minimum sentence for third domestic burglary offence**), b. is **subject to any other enactment requiring the offender to be dealt with in a particular way, and** c. **does not apply if the court is precluded from sentencing the offender by its exercise of some other power.** Nothing in subsection (1) **affects the maximum amount of a fine to which a person is liable for an offence committed before 1 December 2020.** Section 120 deals with the general power of the Crown Court to impose a fine on an offender convicted on indictment. There are some sentences which cannot be combined with a fine. **A fine cannot be combined with a hospital order** (Mental Health Act 1983, s. 37(8)), **nor with an absolute or conditional discharge when sentencing for a single offence.** s\. 32(1), Where a **person convicted on indictment of any offence (whether triable only on indictment or either way) would, apart from that subsection, be liable to a fine not exceeding a specified amount, the person shall by virtue of that subsection be liable to a fine of any amount.** When the Crown Court imposes a fine on an offender, it may make an order--- a. allowing time for the payment of the fine, or b. directing payment of the fine by instalments of the amounts and on the dates specified in the order. *[What is the Duty of Crown Court to Fix Term in Default? ]* This **section applies when the Crown Court imposes a fine on an offender who is aged 18 or over when convicted of the offence**. But **it does not apply in relation to a fine imposed by the Crown Court on appeal against a decision of a magistrates' court.** Subsections (3) to (5) also apply in relation to a fine imposed on such an offender--- a. **by the criminal division of the Court of Appeal, or** b. **by the Supreme Court on appeal from that division.** The **court must make an order (a 'term in default order') fixing a term---** a. **of imprisonment**, or b. **of detention under section 108 of the Powers of Criminal Courts** (Sentencing) Act 2000, **which the offender is to undergo if any sum which the offender is liable to pay is not duly paid or recovered.** Although **a term of imprisonment or detention to be served in default must be fixed in every case where the Crown Court imposes a fine or forfeits a recognizance** (unless the offender is a limited company or is a person under 18 years of age), **a failure to fix such a term does not invalidate the fine itself.** The term which is fixed should relate to the whole sum, rather than to any instalment. ***[What is the power of the MC to impose a fine? ]*** A **fine is available to a magistrates' court dealing with an offender for an offence if under the relevant offence provision, a person who is convicted of that offence is liable to a fine**. If **under the relevant offence provision** the offender is liable to--- a. a **fine of a specified amount**, b. a **fine of not more than a specified amount**, the amount of the fine--- \(i) **must not be more than that amount**, but \(ii) **may be less than that amount** (unless an Act passed after 31 December 1879 expressly provides to the contrary). This is **subject** to--- a. section 121 (**availability: fines not to be combined with certain other orders**); b. section 123 (**limit on fines imposed by magistrates' courts in respect of young offenders**). In this section 'relevant offence provision', in relation to an offence, means--- a. the **enactment creating the offence or specifying the penalty to which a person convicted of the offence is liable, or** b. that provision read in accordance with--- \(i) section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (removal of limit on certain fines on conviction by magistrates' court) and regulations under that section \(ii) section 86 of that Act (**power to increase certain other fines on conviction by magistrates' court**) and regulations under that section \(iii) section 32 of the Magistrates' Courts Act 1980 (penalties on summary conviction for offences triable either way) \(iv) section 119 (power of magistrates' court to fine where only imprisonment etc specified) \(v) section 122 (standard scale of fines), and, for this purpose, 'enactment' includes an enactment contained in a local Act or in any order, regulation or other instrument having effect by virtue of an Act. 119.--- This section applies where under an enactment a **magistrates' court has power to sentence an offender to imprisonment or other detention but not to a fine**. It is immaterial whether the enactment was passed or made before or after the commencement of this Act. **The magistrates' court may impose a fine instead of sentencing the offender to imprisonment or other detention** (unless an Act **passed after 31 December 1879 expressly provides to the contrary).** In the **case of an offence** which--- a. is **triable either way**, and b. was **committed before 12 March 2015**, a fine imposed under subsection (2) **may not exceed the prescribed sum** (within the meaning of section 32 of the Magistrates' Courts Act 1980). In the case of a **fine imposed under subsection (2) for a summary offence**--- a. the amount of the fine **may not exceed level 3 on the standard scale**, and b. the **default term must not be longer than the term of imprisonment or detention** to which the offender is liable on conviction of the offence. For this purpose**, 'default term' means the term of imprisonment or detention under section 108 of the Powers of Criminal Courts (Sentencing) Act 2000 to which the offender would be subject in default of payment of the fine.** In this section 'enactment' includes an enactment contained in a local Act or in any order, regulation or other instrument having effect by virtue of an Act. For offences **where the maximum fine was previously expressed as a specified sum in excess of £5,000, the maximum fine becomes a fine of any amount (sch. 4).** ***[What are the sentencing principles for fines? ]*** - 'Before fixing the amount of any fine to be imposed on an offender who is an individual, **a court must inquire into the offender's financial circumstances**.' - The amount of any fine must be such as, in the opinion of the court, **reflects the seriousness of the case**, but that the court must take into account the circumstances of the case including, in particular, **the financial circumstances of the offender so far as they as known, or appear, to the court**. Where **an individual has been convicted of an offence, the court may, before sentencing, make a 'financial circumstances order' with respect to the individual.** Both magistrates' courts and the Crown Court may make such an order. Where a magistrates' court has been notified in accordance with the MCA 1980, s. 12(4), that an individual wishes to plead guilty without appearing before the court, the court also has power to make a financial circumstances order. A 'financial circumstances order' is an order requiring the relevant individual 'to give to the court, before the end of the period specified in the order, such a statement of the individual's assets and other financial circumstances as the court may require' (s. 35(1)). An individual who, without reasonable excuse, fails to comply with a financial circumstances order is liable on **summary conviction to a fine not exceeding level 3** (s. 36(2)), and if such individual makes, in pursuance of a financial circumstances order, a statement which the individual knows to be false in a material particular, is reckless as to its falsity or knowingly fails to disclose any material fact, he or she is liable on **summary conviction to a fine not exceeding level 4.** ***[Proportionality to gravity of the offence -- ]*** - A key principle in relation to the use of the fine, whether in the Crown Court or in magistrates' courts, is that the selection of the fine as a sentence, and the determination of the appropriate level of any fine, should reflect the seriousness of the offence. - This principle applies when sentencing corporations as well as individual offenders. - A fine is an inappropriate penalty where the seriousness of the offence requires an immediate custodial sentence. Where fines totalling £350 had been imposed on D who had pleaded guilty to wounding with intent to cause grievous bodily harm. The Court of Appeal held that the sentence was 'absurd', and unduly lenient and substituted a custodial term of 30 months. who had a clean record and substantial personal mitigation, was convicted of theft of a half-bottle of whisky from a supermarket and fined £300. The Court of Appeal varied the sentence to a conditional discharge. It had had been wrong for the judge to impose a substantial fine on D, who was convicted of theft from a shop, because he had chosen to contest a 'hopeless case' and wasted the jury's time for two days. The Court of Appeal expressed some sympathy with the comments of the judge but said that while those concerns might be relevant to an application for prosecution costs, they should not have affected the level of the fine imposed. In a particular case the effect of a guilty plea may be to reduce a community sentence to a fine, in which case there should normally be no further reduction of the fine to reflect the plea of guilty. In **fixing the appropriate fine upon an offender who has spent a significant period of time in custody on remand (or, it is submitted, a significant period on bail under a qualifying curfew), it seems that some credit should normally be given although the level of adjustment to the otherwise appropriate fine is a matter for the court** (Warden). The imposition of the maximum available fine should be reserved for the most serious instances of the offence which are reasonably likely to occur. The existence of significant mitigation, such as the offender's guilty plea, should normally preclude the imposition of the maximum fine. The principle here is the same as that which applies to custodial sentences. ***[How to take into account financial circumstances of the offender? ]*** - It is well **established that while a fine is meant to be a punishment and it is perfectly proper for the offender to have to endure a degree of hardship in paying the fine, since 'one of the objects of the fine is to remind the offender that what he has done is wrong'** (per Lord Lane CJ in Olliver (1989) 11 Cr App R (S) 10), **the imposition of a fine which is beyond the means of the offender is wrong in principle**. - Where the offender lacks the means to pay the level of fine which is proportionate to the seriousness of the offence, **it is contrary to principle to impose a custodial sentence instead.** D had pleaded guilty to obtaining £600 by deception and had received a prison sentence of nine months, the comments made by the sentencer 'must plainly have indicated to the appellant . . . that he was being sent to prison not because the offence itself merited a sentence of immediate imprisonment but because he had not the financial wherewithal to pay a substantial fine. That . . . is, of course, completely wrong. - Where the **offender is well-off and paying the fine proportionate to the offence would cause little inconvenience, it is contrary to principle to impose a custodial sentence instead**. - it is appropriate to raise the level of the fine in such a case, so as to increase its impact on the offender. - There must remain some proportionality between the offence and the fine. In that case a fine of £10,000 imposed on a relatively affluent offender for handling stolen goods worth £2,739 was said to be manifestly excessive, and was reduced to £6,000. **The level of a fine should be adjusted upwards or downwards to take account of the offender's ability to pay**. This **does not, of course, affect the principle that an offender who is well-off should not be dealt with by financial penalty where the offence itself merits custody and an offender who is less well-off would have gone to prison.** The principle that a rich offender must not be permitted to 'buy his way out of prison' is a fundamental one, and it applies equally where the offender has family or friends who are able to meet a substantial fine. D was a very wealthy individual who admitted offences under the Wildlife and Countryside Act 1981; he had **instructed his estate manager to carry out unauthorised works on a site of special scientific interest.** A fine of £450,000, together with a similar figure for prosecution costs, was upheld by the Court of Appeal. The Court said that a proper assessment of harm and culpability had been made**. The judge had proceeded on the assumption that D had assets of £300 million**. Since that assumption was not challenged by the defence, **the judge had been entitled to proceed as he did, but the Court said that it would have been preferable to have made a financial circumstances order requiring a detailed statement of D's assets and income covering a five-year period**. In the case of a very wealthy individual, **as with a large company, the fine should be paid immediately**, or within a few days, **unless there was cogent evidence that more time was required**. The requirement that the court should adjust the level of the fine in accordance with **the offender's means entails that the court should not assume that someone other than the offender will be paying the fine.** where a fine was imposed on a married woman who had limited income of her own, the Court of Appeal stressed that the fine must reflect the offender's means and was not a fine on the family. ***[Should instalments require payment within a reasonable time? ]*** - Normally a fine **should be of an amount that is capable of being paid within 12 months**, though there may be exceptions to this. It was noted that **it may be unrealistic to expect those on very low incomes to maintain payments for as long as 12 months**. "There is nothing wrong in principle in the period of payment being longer, indeed much longer than one year, **providing it is not an undue burden and so too severe a punishment having regard to the nature of the offence and the nature of the offender**. Certainly, it seems to **us that a two-year period will seldom be too long, and in an appropriate case three years will be unassailable**, again of course depending on the nature of the offender and the nature of the offence". **There is an exception in relation to corporate defendants, where the fine may be payable over a substantially longer period than for an individual.** ***[Can a fine be combined with other sentences or orders? ]*** - For restrictions imposed by statute on combining a fine with certain custodial sentences see the SA 2020, s. 120, at E5.1. **Apart from those cases, there is no formal restriction on combining fines with imprisonment or other custodial sentences, whether in respect of the same offence or different offences sentenced on the same occasion**, though **[this will not often be a desirable combination]**, since incarceration may well deprive the offender of the means to pay the fine, and simply **result in the enforcement of the default sentence**. ***[Community Orders -- ]*** - A 'community order' is an order imposed on an offender aged 18 or over when convicted. This section applies where a community order is available. The court **must not make a community order unless it is of the opinion that---** a. **the offence, or** b. **the combination of the offence** and one or more offences associated with it,was serious enough to warrant the making of such an order. In forming its opinion for the purposes of subsection (2), the court **must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors**. The **pre-sentence report requirements (see section 30) apply to the court in relation to forming that opinion.** The fact that, by virtue of subsection (2**), the court may make a community order does not require it to do so.** **A community order is only available if the offence is punishable with imprisonment** (SA 2020, s. 202(1)). A community **order is not available in respect of an offence in relation to which a mandatory sentence requirement applies** (s. 202(3), and see s. 399). A community order **cannot be made in combination with a hospital order or guardianship order in respect of the same offence** (s. 202(2)). A court **may not make a community order in respect of an offence if it makes a suspended sentence order in respect of that offence or any other offence of which the offender is convicted at that time or any other offence for which it deals with the offender** ***[What about reports? ]*** - Whenever a court is considering whether to impose a community sentence, and what restrictions to put on the offender's liberty as part of that sentence, the court must take into account all the information available to it, including information about the offence and about the offender. Before imposing **a community sentence, the sentencing court must normally obtain a pre-sentence report but the court need not obtain such a report if it considers it 'unnecessary' to do so.** That 'in many cases a pre-sentence report will be pivotal in helping the court to decide whether to impose a community order', that 'it may be helpful to indicate to the National Probation Service the court's preliminary opinion as to which of the three sentencing ranges is relevant', but that 'ideally a pre-sentence report should be completed on the same day to avoid adjourning the case'. ***[What are the requirements of a community order? ]*** s\. 201, **provides a 'community requirements table' listing the requirements with which the court may order an offender aged 18 or over to comply during the course of a community order.** unpaid work requirement (sch. 9, part 1) rehabilitation activity requirement (sch. 9, part 2) programme requirement (sch. 9, part 3) prohibited activity requirement (sch. 9, part 4) curfew requirement (sch. 9, part 5) exclusion requirement (sch. 9, part 6) residence requirement (sch. 9, part 7) foreign travel prohibition order requirement (sch. 9, part 8) mental health treatment requirement (sch. 9, part 9) drug rehabilitation requirement (sch. 9, part 10) drug testing requirement (sch. 9, part 10A) alcohol treatment requirement (sch. 9, part 11) alcohol abstinence and monitoring requirement (sch. 9, part 12) attendance centre requirement (sch. 9, part 13) electronic compliance monitoring requirement (sch. 9, part 14) electronic whereabouts monitoring requirement (sch. 9, part 14) It should be noted that the alcohol abstinence and monitoring requirement is not available unless regulations are in force under para. 25(7) of sch. 9. the attendance centre requirement was effectively repealed by the PCSCA 2022 An **electronic compliance monitoring requirement is not available unless the community order imposes at least one other requirement other than an alcohol abstinence and monitoring requirement or an electronic whereabouts monitoring requirement.** ***[What is the unpaid work requirement? ]*** - The number of hours of unpaid work which may be ordered by the court **must be not less than 40 and not more than 300.** - Before inserting an unpaid work requirement into a community order, the court must, if it thinks necessary, **hear from an appropriate officer that the offender is a suitable person to perform work under the requirement and that local arrangements exist for the requirement to be carried out** (para. 3(1)). The appropriate officer is an officer of the local probation board or an officer of a provider of probation services. - The best approach, if unpaid work was not available at the time of sentencing, was to order the work to be carried out within 12 months, as and when such work became available. - If the **court makes community orders on the offender in respect of two or more offences of which the offender has been convicted on the same occasion and includes unpaid work requirements in each of them, the court may direct that the hours of work run concurrently or consecutively, but the total number of hours must not exceed 300.** - The work required should normally be completed within 12 months - A community order with a **single requirement of unpaid work is always a community order for 12 months** and completion of the hours in less than 12 months does not affect the legal status of the order. - **Unless revoked, a community order imposing an unpaid work requirement remains in force until the offender has worked under it for the number of hours specified.** - effect of this provision is that a failure to complete the required number of hours within the normal 12 months places the offender in breach of the community order, and the probation service may then apply to the court either to initiate breach or to extend the 12-month period. **The court may order an extension irrespective of whether the normal 12-month period has expired or whether the end date specified in the community order has passed** The position is different in the case of an unpaid work requirement in a suspended sentence. ***[What is the rehabilitation activity requirement? ]*** - A rehabilitation activity requirement is a requirement that, **during the relevant period, the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both.** - the 'relevant period' means (i) in relation to a community order, the period for which the community order is in force, and (ii) in relation to a suspended sentence, the supervision period. - Appointments and activities can take place at any time during the order. - A **rehabilitation activity requirement may be used solely as a means of ensuring compliance with instructions to attend supervision appointments**. - The **court does not prescribe the activities to be undertaken but must specify the maximum number of days the offender must complete** (para. 4(2)). The activities include those which form part of an accredited programme and those whose purpose is reparative, such as restorative justice. - The responsible officer must obtain the agreement of any person other than the offender whose co-operation is necessary to comply with the requirement. - sentencers should ensure the activity length of a \[rehabilitation activity requirement\] is suitable and proportionate ***[What is programme requirement? ]*** - A programme requirement is a requirement that the offender must in accordance **with instructions given by the responsible officer participate in an accredited programme at a particular place on a number of days which must be specified in the order.** - Such programmes include those which address offending behaviour relating to anger management, domestic violence, sex offending, substance misuse and so on. - **Where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement can be a proper alternative to a short or moderate length custodial sentence.** - While the responsible officer has a wide discretion as to the appropriate programme to follow, and the place where it must be undertaken**, the court is not relieved of the duty to specify that an accredited programme needs to be undertaken; failure to specify that a programme needed to be complied with, and to specify the number of days, rendered the order unlawful.** ***[What is prohibited activity requirement? ]*** - The **court can require an offender to refrain from participating in certain activities, on a specified day or days (such as attending football matches), or over a specified period of time. The requirement may include forbidding the offender to contact a certain person, and may be that the offender does not possess, use or carry a firearm.** - Before inserting a prohibited activity requirement into a community sentence, the court must consult an officer of a local probation board or an officer of a provider of probation services. ***[What is the curfew requirement? ]*** - A curfew requirement is a requirement that the offender must remain at a place specified by the court for certain periods of time. - Different places or different curfew periods may be specified for different days (para. 9(3)). **These periods of time must be not less than two hours and not more than 16 hours in any given day.** - As from 28 June 2022, where an offender is convicted on or after that day, the PCSCA 2022, s. 150(2) and (3), amended para**. 9(4) so as to increase this figure from 16 hours to 20 hours.** - **So that the curfew periods specified in the order must not amount to more than 112 hours in any period of seven days.** - A curfew requirement within a community order **may not specify periods which fall outside the period of 12 months beginning with the date** on which the order was made. Amended to increase the period of 12 months to one of two years. - **Before inserting a curfew requirement into a community order, the court must obtain and consider information about the place(s) proposed to be specified in the order, including information as to the attitude of persons likely to be affected by the enforced presence there of the offender.** - Where the court makes a community sentence which includes a curfew requirement, **it must normally also impose an electronic monitoring requirement** unless the court considers it inappropriate to do so. **Court of Appeal said that the duration of a curfew requirement must be related to culpability and need. There was no justification on the facts for the imposition of an electronically monitored curfew for the maximum period of 12 months.** As from 28 June 2022, **where an offender is convicted on or after this date provide the responsible officer with a limited power (with the consent of the offender), to vary by written notice the start time of any of the curfew periods, or to vary the relevant place in relation to any of those periods.** ***[What is the exclusion requirement? ]*** - An exclusion requirement is a requirement which prohibits an offender from entering a specified prohibited place, or places, or area (such as a specified town centre), during a period specified in the order. - **The order can exclude the offender from different places for different periods of time** (para. 11(3)). It may also be used as a means of keeping the offender away from a specified person, in which case the person for whose protection the order is made should be given a copy of the requirement made by the court. - An exclusion requirement in a community order cannot last longer than two years. - Where the court makes a community order which includes an exclusion requirement, it **must normally also impose an electronic compliance monitoring requirement** unless the court considers it inappropriate to do so. - such a requirement should be proportionate to the risk of further offending. - It has been held unlawful for a court to seek to expel an offender from the UK by way of an exclusion requirement within a community order. ***[What is the residence requirement? ]*** - A residence requirement is a requirement that the offender resides at a place specified in the order for a specified period of time (SA 2020, sch. 9, para. 13(1)). The order may in addition permit the offender to reside at some other place with the prior approval of the responsible officer. - A **court may not specify residence at a hostel or other institution except on the recommendation of an officer of a local probation board or an officer of a provider of probation services** (para. 13(3)). Before making a residence requirement, the court must consider the home surroundings of the offender. ***[What is the mental health treatment requirement? ]*** - A requirement that **the offender must, during a period or periods specified in the order, submit to mental health treatment, in the form of in-patient treatment, out-patient treatment or practitioner-based treatment**, by or **under the direction of a registered medical practitioner or registered psychologist.** The **in-patient treatment may take place in a hospital (but not a special hospital) or care home** within the meaning of the Care Standards Act 2000. - Before the court can insert a mental health treatment requirement, **it must be satisfied that the mental condition of the offender is such as requires and may be susceptible to treatment but is not such as to warrant the making of a hospital order or a guardianship order.** - **Courts should see** arrangements have been made or can be made for the treatment to be specified in the order, and that the offender has expressed willingness to comply with such an order - supervising officer will supervise the offender only to the extent necessary for revoking or amending the order - The registered medical practitioner or chartered psychologist subsequently to change the place at which the offender is to receive treatment to a place where treatment can be better or more conveniently given (to make 'alternative arrangements'). The registered medical practitioner or registered psychologist must notify in writing the responsible officer in advance, and the offender must consent to any such change. ***[What is the Drug Rehabilitation requirement? ]*** - Treatment and testing. - It requires that, **during a period specified in the order (the treatment and testing period), the offender must submit to treatment by or under the direction of a specified person having the necessary qualifications or experience and must provide samples**, at such times and in such circumstances as are requested, to determine whether the offender has any drug in his or her body during that period. - Before imposing a drug rehabilitation requirement, the court must be satisfied that the offender is dependent on, or has a propensity to misuse, any controlled drug and that the dependency or propensity is such as requires and may be susceptible to treatment. - The court must also be satisfied that arrangements have been made or can be made for the proposed treatment (para. 20(3)), and that the insertion of a drug rehabilitation requirement has been recommended to the court as being suitable for the offender by an officer of a provider of probation services. - The **offender must express willingness to comply with the requirement (para. 20(5)). There is no minimum period for the treatment and testing requirement.** It may take the form of treatment as a resident in a specified institution or place, or treatment as a non-resident. ***[What is the alcohol treatment requirement? ]*** - It requires that, during a period specified in the order, the offender must submit to treatment by or under the direction of a specified person having the necessary qualifications or experience with a view to the reduction or elimination of the offender's dependency on alcohol. - Before imposing an alcohol treatment requirement**, the court must be satisfied that the offender is dependent on alcohol and that the dependency is such as requires and may be susceptible to treatment** (para. 24(2)). **The court must also be satisfied that arrangements have been made or can be made for the proposed treatment** (para. 24(3)). The offender must express willingness to comply with the requirement (para. 24(4)). There is **no minimum period for the alcohol treatment requirement. Treatment may take the form of treatment as a resident in a specified institution or place, or treatment as a non-resident or treatment by or under the direction of such person having the necessary qualification or experience.** ***[What is the attendance centre requirement? ]*** - Abolished the attendance centre requirement both for community orders and suspended sentence orders (see E12.8). An **attendance centre requirement is available only where an offender was convicted before 28 June 2022 and the offender was aged under 25 when convicted.** - Under an attendance centre requirement in a community sentence, the offender must attend at an attendance centre specified in the relevant order for a specified **number of hours which must be not less than 12 nor more than 36.** - The **offender must not be required to attend more than once on any single day or for more than three hours on any occasion** (para. 27(8)). The court cannot make an **attendance centre requirement unless satisfied that there is an attendance centre available locally and that the attendance centre order specified is reasonably accessible to the offender** (paras. 27(5) and 28). The **responsible officer will notify the offender of the date and time required for the first attendance, and subsequent hours are fixed by the officer in charge of the attendance centre.** ***[What is the electronic whereabouts monitoring requirement? ]*** - Court may, in the alternative to s. 215(1)(a) or in addition to it, order the electronic monitoring of the offender's whereabouts, otherwise than for the purpose of securing compliance with any other requirement in the order. - This **means that electronic monitoring may be ordered as a free-standing requirement of a community order. The court must specify the duration of the period of electronic monitoring within the term of the order, and if there is a person, other than the offender, without whose co-operation it will not be practicable to secure the monitoring, the requirement cannot be included without that person's consent.** - The court must ensure that electronic monitoring arrangements are available in the local area and that the necessary provisions can be made under those arrangements ***[How to enforce community orders? ]*** Step 1 -- if the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the requirements of a community order, the officer must give a warning describing the circumstances of the failure, stating that the failure is unacceptable, and informing the offender that if within the next 12 months he or she again fails to comply with any requirement of the order, he or she will be brought back before the court. **The responsible officer need not give a warning if a previous warning was given within the preceding 12 months or if the matter is referred to an enforcement officer**. If there has been a warning, and within 12 months there is a further failure without reasonable excuse to comply, the responsible officer must refer the matter to an enforcement officer. Step 2 -- **The enforcement officer is then under a duty 'to consider the matter and, where appropriate, to cause an information to be laid'** in respect of the failure to comply. the plain purpose of the warning provisions was to provide the probation officer with a discretion which could be exercised just once. If there is a further breach within the 12-month period, the matter must come back before the court. The Court also noted that when the **information is laid there is nothing in the legislation to prevent the probation service from setting out details of the breach which prompted the warning as well as details of the second breach. The mere fact that D has lodged an appeal against conviction or against sentence does not amount to a reasonable excuse for non-compliance with a community order.** ***[Power of MC for breach of CO -- ]*** The *Crown Court may have included in the community order a direction that any breach of the order is to be dealt with by the magistrates' court. If no such direction has been made, any breach will be dealt with in the Crown Court.* - The **offender must be sentenced on the basis of his or her age when the original order was made**. Any breach should either be admitted by the offender or be formally proved to the criminal standard of proof. The prosecution should be in a position to put before the court the facts of the original offence, at least in outline, as well as the facts of the breach Step 3 -- If it is proved to the satisfaction of the court before which the offender is brought that he or she has failed without reasonable excuse to comply with any of the requirements of the community order, **the court must deal with the offender in one of the following ways** a. by ordering the offender to pay a **fine not exceeding £2,500;** b. by **amending the terms of the community order so as to impose more onerous requirements which the court could include if it had just convicted the offender of the offence in respect of which the order was made and were then making the order**; c. if the **community order qualifies for special procedures for the purposes of this paragraph, by ordering the offender to be committed to prison for such period not exceeding 28 days as the court considers appropriate** (but see also paragraph 13A); d. if the **community order was made by a magistrates' court, by re-sentencing the offender for the offence in respect of which the order was made**. **Where the offender has wilfully and persistently breached the requirements of the community order and the court is dealing with the offender under para. 10(5)(c), the court may impose a custodial sentence.** **The court must deal with the breach in one of the ways specified. There is no power to take 'no action' on breach**. When dealing with the offender under para. 10(5), the magistrates' court must take into account the extent to which the offender has complied with the requirements of the community order. In dealing with an offender under para. **10(5)(b), the court may extend the duration of particular requirements (subject to statutory limitations on the maximum duration of particular requirements). The court may extend the duration of the order for up to six months beyond the original end date even if that involves the total duration of the order exceeding three years.** Such an extension may be exercised **only once.** If the court **proceeds to resentence the offender under para. 10(5)(c), it must revoke the community order if it is still in force.** The Court of Appeal said that a court dealing with breach must always consider the nature of the breach and the extent of compliance with the order. If the breach report indicated that the probation service wished to continue working with the offender, that should be given considerable weight. ***[Power of CC for breach of CO -- ]*** Powers the same as above -- Additional guidance for CC -- Since time served on remand is deducted automatically from a custodial sentence under the CJA 2003, s. 240ZA (see E13.12), **it is clear that the judge dealing with an offender for breach of a community order by revoking the order and imposing custody has no power to direct that the time spent on remand shall not count**. ***[How to revoke CO? ]*** Powers of a magistrates' court and the Crown Court considering revocation of a community order where, **on application by the offender or by an officer of a provider of probation services, having regard to changed circumstances since the order was made, it is in the interests of justice to revoke the order or to revoke the order and deal with the offender for the offence in some other way**. These circumstances include the offender making good progress under the order or responding satisfactorily to the requirements in the order. Powers of a magistrates' court or the Crown Court considering revocation of a community order where the offender has committed a further offence within the currency of a community order -- - The power to revoke the order depends upon the community order still being in force. **In relation to commission of a further offence the power to revoke does not arise where the order has expired, even if the additional offence was committed while it was still current.** 23(1) and (2) if **the community order was made by a magistrates' court and if it appears to be in the interests of justice to do so, having regard to the circumstances which have arisen since the order was made, the magistrates' court may** a. revoke the community order, or b. both revoke the order and resentence the offender for the offence in respect of which the order was made. **If the court deals with the offender under para. 23(2)(b) it must take into account the extent to which the offender has complied with the requirements of the order** (para. 23(5)). If the **community order was made by the Crown Court, the magistrates' court may instead commit the offender in custody or release the offender on bail to appear before the Crown Court (para. 24), but if that course is taken the magistrates should ensure that the offender is also committed in respect of the new offence.** By para. 25, if **the Crown Court is dealing with the subsequent offence, because the offender subject to a community order is convicted of an offence by the Crown Court or appears before the Crown Court by virtue of para**. 24 or having been committed by a magistrates' court to the Crown Court for sentence, the Crown Court may a. revoke the community order, or b. revoke it and resentence the offender for the offence in respect of which the order was made When dealing with the offender under para. 25(2)(b), the Crown Court must take into account the extent to which the offender has complied with the requirements of the community order. ***[How to amend the community order? ]*** On application **by the offender or an officer of a provider of probation services**: a. because of **a change in the offender's residence** (paras. 16 and 17), or b. for **amendment of requirements in the order** (para. 18), or c. to **change a treatment requirement on the report of a medical practitioner** (para. 19), or d. for **amending the order by substituting a later end date than that originally specified, which may have the effect of extending the order beyond the normal maximum of three years but not so as to extend the order by more than six months from the end date originally specified** (para. 20), and e. to **extend the period of 12 months for completion of an unpaid work requirement**