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Criminal Justice Bill


Criminal Justice Bill
Schedule 10 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 2 — Breach of community requirement or conviction of further offence

    241

 

Schedule 10

Section 185

 

Breach or amendment of suspended sentence order, and effect of further

conviction

Part 1

Preliminary

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Interpretation

  1        In this Schedule—

                    “the offender”, in relation to a suspended sentence order, means the

person in respect of whom the order is made;

                    “the petty sessions area concerned”, in relation to a suspended sentence

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order, means the petty sessions area for the time being specified in

the order;

                    “the responsible officer” has the meaning given by section 188.

  2        In this Schedule—

              (a)             reference to a suspended sentence order being subject to review is a

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reference to such an order being subject to review in accordance with

section 183(1)(b) or to a drug rehabilitation requirement of such an

order being subject to review in accordance with section 201(1)(b);

              (b)             any reference to the court responsible for a suspended sentence order

which is subject to review is to be construed in accordance with

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section 183(3) or, as the case may be, 201(2).

Part 2

Breach of community requirement or conviction of further offence

Duty to give warning in relation to community requirement

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  3       (1)      If the responsible officer is of the opinion that the offender has failed without

reasonable excuse to comply with any of the community requirements of a

suspended sentence order, the officer must give him a warning under this

paragraph unless—

              (a)             the offender has within the previous twelve months been given a

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warning under this paragraph in relation to a failure to comply with

any of the community requirements of the order, or

              (b)             the officer causes an information to be laid before a justice of the

peace in respect of the failure.

          (2)      A warning under this paragraph must—

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              (a)             describe the circumstances of the failure,

              (b)             state that the failure is unacceptable, and

              (c)             inform the offender that if within the next twelve months he again

fails to comply with any requirement of the order, he will be liable to

be brought before a court.

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          (3)      The responsible officer must, as soon as practicable after the warning has

been given, record that fact.

 

 

Criminal Justice Bill
Schedule 10 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 2 — Breach of community requirement or conviction of further offence

    242

 

          (4)      In relation to any suspended sentence order made by the Crown Court, the

reference in sub-paragraph (1)(b) to a justice of the peace is to be read as a

reference to the Crown Court.

Breach of order after warning

  4       (1)      If—

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              (a)             the responsible officer has given a warning under paragraph 3 to the

offender in respect of a suspended sentence order, and

              (b)             at any time within the twelve months beginning with the date on

which the warning was given, the responsible officer is of the

opinion that the offender has since that date failed without

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reasonable excuse to comply with any of the community

requirements of the order,

                   the officer must cause an information to be laid before a justice of the peace

in respect of the failure in question.

          (2)      In relation to any suspended sentence order made by the Crown Court, the

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reference in sub-paragraph (1) to a justice of the peace is to be read as a

reference to the Crown Court.

Issue of summons or warrant by justice of of the peace

  5       (1)      If at any time while a suspended sentence order made by a magistrates’

court is in force in respect of an offender it appears on information to a

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justice of the peace acting for the petty sessions area concerned that the

offender has failed to comply with any of the community requirements of

the order, the justice may—

              (a)             issue a summons requiring the offender to appear at the place and

time specified in it, or

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              (b)             if the information is in writing and on oath, issue a warrant for his

arrest.

          (2)      Any summons or warrant issued under this paragraph must direct the

offender to appear or be brought—

              (a)             in the case of a suspended sentence order which is subject to review,

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before the court responsible for the order,

              (b)             in any other case, before a magistrates’ court acting for the petty

sessions area concerned.

          (3)      Where a summons issued under sub-paragraph (2)(a) requires the offender

to appear before a magistrates’ court and the offender does not appear in

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answer to the summons, the magistrates’ court may issue a warrant for the

arrest of the offender.

Issue of summons or warrant by Crown Court

  6       (1)      If at any time while a suspended sentence order made by the Crown Court

is in force in respect of an offender it appears on information to the Crown

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Court that the offender has failed to comply with any of the community

requirements of the order, the Crown Court may—

              (a)             issue a summons requiring the offender to appear at the place and

time specified in it, or

 

 

Criminal Justice Bill
Schedule 10 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 2 — Breach of community requirement or conviction of further offence

    243

 

              (b)             if the information is in writing and on oath, issue a warrant for his

arrest.

          (2)      Any summons or warrant issued under this paragraph must direct the

offender to appear or be brought before the Crown Court.

          (3)      Where a summons issued under sub-paragraph (1)(a) requires the offender

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to appear before the Crown Court and the offender does not appear in

answer to the summons, the Crown Court may issue a warrant for the arrest

of the offender.

Powers of court on breach of community requirement or conviction of further offence

  7       (1)      This paragraph applies where—

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              (a)             it is proved to the satisfaction of a court before which an offender

appears or is brought under paragraph 5 or 6 or by virtue of section

184(5) that he has failed without reasonable excuse to comply with

any of the community requirements of the suspended sentence

order, or

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              (b)             an offender is convicted of an offence committed during the

operational period of a suspended sentence (other than one which

has already taken effect) and either—

                    (i)                   he is so convicted by or before a court having power under

paragraph 10 to deal with him in respect of the suspended

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sentence, or

                    (ii)                  he subsequently appears or is brought before such a court.

          (2)      The court must consider his case and deal with him in one of the following

ways—

              (a)             the court may order that the suspended sentence is to take effect with

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its original term and custodial period unaltered,

              (b)             the court may order that the sentence is to take effect with either or

both of the following modifications—

                    (i)                   the substitution for the original term of a lesser term

complying with section 174(2), and

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                    (ii)                  the substitution for the original custodial period of a lesser

custodial period complying with section 174(5) and (6),

              (c)             the court may amend the order by doing any one or more of the

following—

                    (i)                   imposing more onerous community requirements which the

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court could include if it were then making the order,

                    (ii)                  subject to subsection (3) of section 181, extending the

supervision period, or

                    (iii)                 subject to that subsection, extending the operational period.

          (3)      The court must make an order under sub-paragraph (2)(a) or (b) unless it is

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of the opinion that it would be unjust to do so in view of all the

circumstances, including the matters mentioned in sub-paragraph (4); and

where it is of that opinion the court must state its reasons.

          (4)      The matters referred to in sub-paragraph (3) are—

              (a)             the extent to which the offender has complied with the community

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requirements of the suspended sentence order, and

              (b)             in a case falling within sub-paragraph (1)(b), the facts of the

subsequent offence.

 

 

Criminal Justice Bill
Schedule 10 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 2 — Breach of community requirement or conviction of further offence

    244

 

          (5)      Where a court deals with an offender under sub-paragraph (2) in respect of

a suspended sentence, the appropriate officer of the court must notify the

appropriate officer of the court which passed the sentence of the method

adopted.

Further provisions as to order that suspended sentence is to take effect

5

  8       (1)      When making an order under paragraph 7(2)(a) or (b) that a sentence is to

take effect (with or without any variation of the original term and custodial

period), the court—

              (a)             must also make a custody plus order, and

              (b)             may order that the sentence is to take effect immediately or that the

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term of that sentence is to commence on the expiry of another term

of imprisonment passed on the offender by that or another court.

          (2)      The power to make an order under sub-paragraph (1)(b) has effect subject to

section 250 (restriction on consecutive sentences for released prisoners).

          (3)      In proceedings for dealing with an offender in respect of a suspended

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sentence which takes place before the Crown Court, any question whether

the offender has been convicted of an offence committed during the

operational period of the suspended sentence is to be determined by the

court and not by the verdict of a jury.

          (4)      For the purpose of any enactment conferring rights of appeal in criminal

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cases, any order made by the court under paragraph 7(2)(a) or (b) is to be

treated as a sentence passed on the offender by that court for the offence for

which the suspended sentence was passed.

Exclusion from paragraph 7(1)(a)

  9        An offender who is required by any of the following community

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requirements of a suspended sentence order—

              (a)             a mental health treatment requirement,

              (b)             a drug rehabilitation requirement, or

              (c)             an alcohol treatment requirement,

           to submit to treatment for his mental condition, or his dependency on or

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propensity to misuse drugs or alcohol, is not to be treated for the purposes

of paragraph 7(1)(a) as having failed to comply with that requirement on the

ground only that he had refused to undergo any surgical, electrical or other

treatment if, in the opinion of the court, his refusal was reasonable having

regard to all the circumstances.

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Court by which suspended sentence may be dealt with under paragraph 7(1)(b)

  10      (1)      An offender may be dealt with under paragraph 7(1)(b) in respect of a

suspended sentence by the Crown Court or, where the sentence was passed

by a magistrates’ court, by any magistrates’ court before which he appears

or is brought.

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          (2)      Where an offender is convicted by a magistrates’ court of any offence and

the court is satisfied that the offence was committed during the operational

period of a suspended sentence passed by the Crown Court—

              (a)             the court may, if it thinks fit, commit him in custody or on bail to the

Crown Court, and

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Criminal Justice Bill
Schedule 10 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 3 — Amendment of suspended sentence order

    245

 

              (b)             if it does not, must give written notice of the conviction to the

appropriate officer of the Crown Court.

          (3)      For the purposes of this paragraph and of paragraph 11, a suspended

sentence passed on an offender on appeal is to be treated as having been

passed by the court by which he was originally sentenced.

5

Procedure where court convicting of further offence does not deal with suspended sentence

  11      (1)      If it appears to the Crown Court, where that court has jurisdiction in

accordance with sub-paragraph (2), or to a justice of the peace having

jurisdiction in accordance with that sub-paragraph—

              (a)             that an offender has been convicted in the United Kingdom of an

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offence committed during the operational period of a suspended

sentence, and

              (b)             that he has not been dealt with in respect of the suspended sentence,

                   that court or justice may, subject to the following provisions of this

paragraph, issue a summons requiring the offender to appear at the place

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and time specified in it, or a warrant for his arrest.

          (2)      Jurisdiction for the purposes of sub-paragraph (1) may be exercised—

              (a)             if the suspended sentence was passed by the Crown Court, by that

court;

              (b)             if it was passed by a magistrates’ court, by a justice acting for the

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petty sessions area for which that court acted.

          (3)      Where—

              (a)             an offender is convicted in Scotland or Northern Ireland of an

offence, and

              (b)             the court is informed that the offence was committed during the

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operational period of a suspended sentence passed in England or

Wales,

                   the court must give written notice of the conviction to the appropriate officer

of the court by which the suspended sentence was passed.

          (4)      Unless he is acting in consequence of a notice under sub-paragraph (3), a

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justice of the peace may not issue a summons under this paragraph except

on information and may not issue a warrant under this paragraph except on

information in writing and on oath.

          (5)      A summons or warrant issued under this paragraph must direct the

offender to appear or be brought before the court by which the suspended

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sentence was passed.

          (6)      In relation to a suspended sentence passed on appeal, this paragraph is to be

read in accordance with paragraph 10(3).

Part 3

Amendment of suspended sentence order

40

Cancellation of community requirements of suspended sentence order

  12      (1)      Where at any time while a suspended sentence order is in force, it appears

to the appropriate court on the application of the offender or the responsible

officer that, having regard to the circumstances which have arisen since the

 

 

Criminal Justice Bill
Schedule 10 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 3 — Amendment of suspended sentence order

    246

 

order was made, it would be in the interests of justice to do so, the court may

cancel the community requirements of the suspended sentence order.

          (2)      The circumstances in which the appropriate court may exercise its power

under sub-paragraph (1) include the offender’s making good progress or his

responding satisfactorily to supervision.

5

          (3)      No application may be made by the offender under sub-paragraph (1) while

an appeal against the suspended sentence is pending.

          (4)      In this paragraph “the appropriate court” means—

              (a)             in the case of a suspended sentence order which is subject to review,

the court responsible for the order,

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              (b)             in the case of a suspended sentence order made by the Crown Court,

the Crown Court, and

              (c)             in any other case, a magistrates’ court acting for the petty sessions

area concerned.

Amendment by reason of change of residence

15

  13      (1)      This paragraph applies where, at any time while a suspended sentence order

is in force, the appropriate court is satisfied that the offender proposes to

change, or has changed, his residence from the petty sessions area concerned

to another petty sessions area.

          (2)      Subject to sub-paragraphs (3) and (4), the appropriate court may, and on the

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application of the responsible officer must, amend the suspended sentence

order by substituting the other petty sessions area for the area specified in

the order.

          (3)      The court may not amend under this paragraph a suspended sentence order

which contains requirements which, in the opinion of the court, cannot be

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complied with unless the offender resides in the petty sessions area

concerned unless, in accordance with paragraph 14 it either—

              (a)             cancels those requirements, or

              (b)             substitutes for those requirements other requirements which can be

complied with if the offender does not reside in that area.

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          (4)      The court may not amend under this paragraph any suspended sentence

order imposing a programme requirement unless it appears to the court that

the accredited programme specified in the requirement is available in the

other petty sessions area.

          (5)      In this paragraph “the appropriate court” has the same meaning as in

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paragraph 12.

Amendment of community requirements of suspended sentence order

  14      (1)      At any time during the supervision period, the appropriate court may, on

the application of the offender or the responsible officer, by order amend

any community requirement of a suspended sentence order—

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              (a)             by cancelling the requirement, or

              (b)             by replacing it with a requirement of the same kind, which the court

could include if it were then making the order.

          (2)      For the purposes of sub-paragraph (1)—

 

 

Criminal Justice Bill
Schedule 10 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 3 — Amendment of suspended sentence order

    247

 

              (a)             a requirement falling within any paragraph of section 182(1) is of the

same kind as any other requirement falling within that paragraph,

and

              (b)             an electronic monitoring requirement is a requirement of the same

kind as any requirement falling within section 182(1) to which it

5

relates.

          (3)      The court may not under this paragraph amend a mental health treatment

requirement, a drug rehabilitation requirement or an alcohol treatment

requirement unless the offender expresses his willingness to comply with

the requirement as amended.

10

          (4)      If the offender fails to express his willingness to comply with a mental health

treatment requirement, drug rehabilitation requirement or alcohol

treatment requirement as proposed to be amended by the court under this

paragraph, the court may—

              (a)             revoke the suspended sentence order and the suspended sentence to

15

which it relates, and

              (b)             deal with him, for the offence in respect of which the suspended

sentence was imposed, in any way in which it could deal with him if

he had just been convicted by or before the court of the offence.

          (5)      In dealing with the offender under sub-paragraph (4)(b), the court must take

20

into account the extent to which the offender has complied with the

requirements of the order.

          (6)      In this paragraph “the appropriate court” has the same meaning as in

paragraph 12.

Amendment of treatment requirements on report of practitioner

25

  15      (1)      Where the medical practitioner or other person by whom or under whose

direction an offender is, in pursuance of any requirement to which this sub-

paragraph applies, being treated for his mental condition or his dependency

on or propensity to misuse drugs or alcohol—

              (a)             is of the opinion mentioned in sub-paragraph (3), or

30

              (b)             is for any reason unwilling to continue to treat or direct the treatment

of the offender,

                            he must make a report in writing to that effect to the responsible officer and

that officer must apply under paragraph 14 to the appropriate court for the

variation or cancellation of the requirement.

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          (2)      The requirements to which sub-paragraph (1) applies are—

              (a)             a mental health treatment requirement,

              (b)             a drug rehabilitation requirement, and

              (c)             an alcohol treatment requirement.

          (3)      The opinion referred to in sub-paragraph (1) is—

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              (a)             that the treatment of the offender should be continued beyond the

period specified in that behalf in the order,

              (b)             that the offender needs different treatment,

              (c)             that the offender is not susceptible to treatment, or

              (d)             that the offender does not require further treatment.

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          (4)      In this paragraph “the appropriate court” has the same meaning as in

paragraph 12.

 

 

 
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