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Criminal Justice Bill


Criminal Justice Bill
Schedule 7 — Breach, revocation or amendment of community order
Part 2 — Breach of requirement of order

    232

 

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

offender to appear or be brought before the Crown Court.

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

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

5

of the offender.

Powers of magistrates’ court

  9       (1)      If it is proved to the satisfaction of a magistrates’ court before which an

offender appears or is brought under paragraph 7 that he has failed without

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

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order, the court must deal with him in respect of the failure in any one of the

following ways—

              (a)             by amending the terms of the community order so as to impose more

onerous requirements which the court could include if it were then

making the order;

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              (b)             where the community order was made by a magistrates’ court, by

dealing with him, for the offence in respect of which the order was

made, in any way in which the court could deal with him if he had

just been convicted by it of the offence;

              (c)             where—

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                    (i)                   the community order was made by a magistrates’ court,

                    (ii)                  the offence in respect of which the order was made was not

an offence punishable by imprisonment,

                    (iii)                 the offender is aged 18 or over, and

                    (iv)                  the offender has wilfully and persistently failed to comply

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with the requirements of the order,

                              by dealing with him, in respect of that offence, by imposing a

sentence of imprisonment for a term not exceeding 51 weeks.

          (2)      In dealing with an offender under sub-paragraph (1), a magistrates’ court

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

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the requirements of the community order.

          (3)      In dealing with an offender under sub-paragraph (1)(a), the court may

extend the duration of particular requirements (subject to any limit imposed

by Chapter 4 of Part 11 of this Act) but may not extend the period specified

under section 159(5).

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          (4)      In dealing with an offender under sub-paragraph (1)(b), the court may, in

the case of an offender who has wilfully and persistently failed to comply

with the requirements of the community order, impose a custodial sentence

(where the order was made in respect of an offence punishable with such a

sentence) notwithstanding anything in section 134(2).

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          (5)      Where a magistrates’ court deals with an offender under sub-paragraph

(1)(b) or (c), it must revoke the community order if it is still in force.

          (6)      Where a community order was made by the Crown Court and a magistrates’

court would (apart from this sub-paragraph) be required to deal with the

offender under sub-paragraph (1)(a), (b) or (c), it may instead commit him to

45

custody or release him on bail until he can be brought or appear before the

Crown Court.

 

 

Criminal Justice Bill
Schedule 7 — Breach, revocation or amendment of community order
Part 2 — Breach of requirement of order

    233

 

          (7)      A magistrates’ court which deals with an offender’s case under sub-

paragraph (6) must send to the Crown Court—

              (a)             a certificate signed by a justice of the peace certifying that the

offender has failed to comply with the requirements of the

community order in the respect specified in the certificate, and

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              (b)             such other particulars of the case as may be desirable;

                   and a certificate purporting to be so signed is admissible as evidence of the

failure before the Crown Court.

          (8)      A person sentenced under sub-paragraph (1)(b) or (c) for an offence may

appeal to the Crown Court against the sentence.

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Powers of Crown Court

  10      (1)      Where under paragraph 8 or by virtue of paragraph 9(6) an offender appears

or is brought before the Crown Court and it is proved to the satisfaction of

that court that he has failed without reasonable excuse to comply with any

of the requirements of the community order, the Crown Court must deal

15

with him in respect of the failure in any one of the following ways—

              (a)             by amending the terms of the community order so as to impose more

onerous requirements which the Crown Court could impose if it

were then making the order;

              (b)             by dealing with him, for the offence in respect of which the order was

20

made, in any way in which he could have been dealt with for that

offence by the court which made the order if the order had not been

made;

              (c)             where—

                    (i)                   the offence in respect of which the order was made was not

25

an offence punishable by imprisonment,

                    (ii)                  the offender is aged 18 or over,

                    (iii)                 the offender has wilfully and persistently failed to comply

with the requirements of the order,

                              by dealing with him, in respect of that offence, by imposing a

30

sentence of imprisonment for a term not exceeding 51 weeks.

          (2)      In dealing with an offender under sub-paragraph (1), the Crown Court must

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

requirements of the community order.

          (3)      In dealing with an offender under sub-paragraph (1)(a), the court may

35

extend the duration of particular requirements (subject to any limit imposed

by Chapter 4 of Part 11 of this Act) but may not extend the period specified

under section 159(5).

          (4)      In dealing with an offender under sub-paragraph (1)(b), the Crown Court

may, in the case of an offender who has wilfully and persistently failed to

40

comply with the requirements of the community order, impose a custodial

sentence (where the order was made in respect of an offence punishable with

such a sentence) notwithstanding anything in section 134(2).

          (5)      Where the Crown Court deals with an offender under sub-paragraph (1)(b)

or (c), it must revoke the community order if it is still in force.

45

          (6)      In proceedings before the Crown Court under this paragraph any question

whether the offender has failed to comply with the requirements of the

 

 

Criminal Justice Bill
Schedule 7 — Breach, revocation or amendment of community order
Part 3 — Revocation of order

    234

 

community order is to be determined by the court and not by the verdict of

a jury.

Restriction of powers in paragraphs 9 and 10 where treatment required

  11      (1)      An offender who is required by any of the following requirements of a

community order—

5

              (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

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

10

of paragraph 9 or 10 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.

          (2)      A court may not under paragraph 9(1)(a) or 10(1)(a) amend a mental health

15

treatment requirement, a drug rehabilitation requirement or an alcohol

treatment requirement unless the offender expresses his willingness to

comply with the requirement as amended.

Supplementary

  12       Where a community order was made by a magistrates’ court in the case of

20

an offender under 18 years of age in respect of an offence triable only on

indictment in the case of an adult, any powers exercisable under paragraph

9(1)(b) in respect of the offender after he attains the age of 18 are powers to

do either or both of the following—

              (a)             to impose a fine not exceeding £5,000 for the offence in respect of

25

which the order was made;

              (b)             to deal with the offender for that offence in any way in which a

magistrates’ court could deal with him if it had just convicted him of

an offence punishable with imprisonment for a term not exceeding

51 weeks.

30

Part 3

Revocation of order

Revocation of order with or without re-sentencing: powers of magistrates’ court

  13      (1)      This paragraph applies where a community order, other than an order made

by the Crown Court and falling within paragraph 14 (1)(a), is in force and on

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the application of the offender or the responsible officer it appears to the

appropriate magistrates’ court that, having regard to circumstances which

have arisen since the order was made, it would be in the interests of justice—

              (a)             for the order to be revoked, or

              (b)             for the offender to be dealt with in some other way for the offence in

40

respect of which the order was made.

          (2)      The appropriate magistrates’ court may—

              (a)             revoke the order, or

              (b)             both—

 

 

Criminal Justice Bill
Schedule 7 — Breach, revocation or amendment of community order
Part 3 — Revocation of order

    235

 

                    (i)                   revoke the order, and

                    (ii)                  deal with the offender, for the offence in respect of which the

order was made, in any way in which it could deal with him

if he had just been convicted by the court of the offence.

          (3)      The circumstances in which a community order may be revoked under sub-

5

paragraph (2) include the offender’s making good progress or his

responding satisfactorily to supervision or treatment (as the case requires).

          (4)      In dealing with an offender under sub-paragraph (2)(b), a magistrates’ court

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

the requirements of the community order.

10

          (5)      A person sentenced under sub-paragraph (2)(b) for an offence may appeal

to the Crown Court against the sentence.

          (6)      Where a magistrates’ court proposes to exercise its powers under this

paragraph otherwise than on the application of the offender, it must

summon him to appear before the court and, if he does not appear in answer

15

to the summons, may issue a warrant for his arrest.

          (7)      In this paragraph “the appropriate magistrates’ court” means—

              (a)             in the case of an order imposing a drug rehabilitation requirement

which is subject to review, the magistrates’ court responsible for the

order, and

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              (b)             in the case of any other community order, a magistrates’ court acting

for the petty sessions area concerned.

Revocation of order with or without re-sentencing: powers of Crown Court

  14      (1)      This paragraph applies where—

              (a)             there is in force a community order made by the Crown Court which

25

does not include a direction that any failure to comply with the

requirements of the order is to be dealt with by a magistrates’ court,

and

              (b)             the offender or the responsible officer applies to the Crown Court for

the order to be revoked or for the offender to be dealt with in some

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other way for the offence in respect of which the order was made.

          (2)      If it appears to the Crown Court to be in the interests of justice to do so,

having regard to circumstances which have arisen since the order was made,

the Crown Court may—

              (a)             revoke the order, or

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              (b)             both—

                    (i)                   revoke the order, and

                    (ii)                  deal with the offender, for the offence in respect of which the

order was made, in any way in which he could have been

dealt with for that offence by the court which made the order

40

if the order had not been made.

          (3)      The circumstances in which a community order may be revoked under sub-

paragraph (2) include the offender’s making good progress or his

responding satisfactorily to supervision or treatment (as the case requires).

          (4)      In dealing with an offender under sub-paragraph (2)(b), the Crown Court

45

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

the requirements of the order.

 

 

Criminal Justice Bill
Schedule 7 — Breach, revocation or amendment of community order
Part 4 — Amendment of order

    236

 

          (5)      Where the Crown Court proposes to exercise its powers under this

paragraph otherwise than on the application of the offender, it must

summon him to appear before the court and, if he does not appear in answer

to the summons, may issue a warrant for his arrest.

Supplementary

5

  15       Paragraph 12 applies for the purposes of paragraphs 13 and 14 as it applies

for the purposes of paragraph 9 above, but as if for the words “paragraph

9(1)(b)” there were substituted “paragraph 13(2)(b)(ii) or 14(2)(b)(ii)”.

Part 4

Amendment of order

10

Amendment by reason of change of residence

  16      (1)      This paragraph applies where, at any time while a community order is in

force in respect of an offender, 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.

15

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

application of the responsible officer must, amend the community order by

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

          (3)      The court may not under this paragraph amend a community order which

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

20

complied with unless the offender continues to reside in the petty sessions

area concerned unless, in accordance with paragraph 17, it either—

              (a)             cancels those requirements, or

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

complied with if the offender ceases to reside in that area.

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          (4)      The court may not amend under this paragraph a community 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” means—

30

              (a)             in relation to any community order imposing a drug rehabilitation

requirement which is subject to review, the court responsible for the

order,

              (b)             in relation to any community order which was made by the Crown

Court and does not include any direction that any failure to comply

35

with the requirements of the order is to be dealt with by a

magistrates’ court, the Crown Court, and

              (c)             in relation to any other community order, a magistrates’ court acting

for the petty sessions area concerned.

Amendment of requirements of community order

40

  17      (1)      The appropriate court may, on the application of the offender or the

responsible officer, by order amend a community order—

              (a)             by cancelling any of the requirements of the order, or

 

 

Criminal Justice Bill
Schedule 7 — Breach, revocation or amendment of community order
Part 4 — Amendment of order

    237

 

              (b)             by replacing any of those requirements with a requirement of the

same kind, which the court could include if it were then making the

order.

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

requirement, a drug rehabilitation requirement or an alcohol treatment

5

requirement unless the offender expresses his willingness to comply with

the requirement as amended.

          (3)      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

10

paragraph, the court may—

              (a)             revoke the community order, and

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

made, in any way in which he could have been dealt with for that

offence by the court which made the order if the order had not been

15

made.

          (4)      In dealing with the offender under sub-paragraph (3)(b), the court—

              (a)             must take into account the extent to which the offender has complied

with the requirements of the order, and

              (b)             may impose a custodial sentence (where the order was made in

20

respect of an offence punishable with such a sentence)

notwithstanding anything in section 134(2).

          (5)      Paragraph 12 applies for the purposes of this paragraph as it applies for the

purposes of paragraph 9, but as if for the words “paragraph 9(1)(b)” there

were substituted “paragraph 17(3)(b)”.

25

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

paragraph 16.

Amendment of treatment requirements of community order on report of practitioner

  18      (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-

30

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

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

of the offender,

35

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

that officer must apply under paragraph 17 to the appropriate court for the

variation or cancellation of the requirement.

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

              (a)             a mental health treatment requirement,

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              (b)             a drug rehabilitation requirement, and

              (c)             an alcohol treatment requirement.

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

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

period specified in that behalf in the order,

45

              (b)             that the offender needs different treatment,

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

 

 

Criminal Justice Bill
Schedule 7 — Breach, revocation or amendment of community order
Part 5 — Powers of court in relation to order following subsequent conviction

    238

 

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

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

paragraph 16.

Amendment in relation to review of drug rehabilitation requirement

  19       Where the responsible officer is of the opinion that a community order

5

imposing a drug rehabilitation requirement which is subject to review

should be so amended as to provide for each subsequent periodic review

(required by section 193) to be made without a hearing instead of at a review

hearing, or vice versa, he must apply under paragraph 17 to the court

responsible for the order for the variation of the order.

10

Extension of unpaid work requirement

  20      (1)      Where—

              (a)             a community order imposing an unpaid work requirement is in force

in respect of any offender, and

              (b)             on the application of the offender or the responsible officer, it

15

appears to the appropriate court that it would be in the interests of

justice to do so having regard to circumstances which have arisen

since the order was made,

                            the court may, in relation to the order, extend the period of twelve months

specified in section 182(2).

20

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

paragraph 16.

Part 5

Powers of court in relation to order following subsequent conviction

Powers of magistrates’ court following subsequent conviction

25

  21      (1)      This paragraph applies where—

              (a)             an offender in respect of whom a community order made by a

magistrates’ court is in force is convicted of an offence by a

magistrates’ court, and

              (b)             it appears to the court that it would be in the interests of justice to

30

exercise its powers under this paragraph, having regard to

circumstances which have arisen since the community order was

made.

          (2)      The magistrates’ court may—

              (a)             revoke the order, or

35

              (b)             both—

                    (i)                   revoke the order, and

                    (ii)                  deal with the offender, for the offence in respect of which the

order was made, in any way in which he could have been

dealt with for that offence by the court which made the order

40

if the order had not been made.

 

 

 
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Revised 17 October 2003