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Criminal Justice Bill


Criminal Justice Bill
Schedule 11 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 2 — Breach of community requirement or conviction of further offence

    257

 

Schedule 11

Section 175

 

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

conviction

Part 1

Preliminary

5

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 179.

  2        In this Schedule—

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

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is a reference to such an order being subject to review in accordance

with section 173(1)(b) or to a drug rehabilitation requirement of such

an order being subject to review in accordance with section 192(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 173(3) or, as the case may be, 192(2).

Orders made on appeal

  3        Where a suspended sentence order is made on appeal it is to be taken for the

purposes of this Schedule to have been made by the Crown Court.

Part 2

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Breach of community requirement or conviction of further offence

Duty to give warning in relation to community requirement

  4       (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

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paragraph unless—

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

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

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peace in respect of the failure.

          (2)      A warning under this paragraph must—

              (a)             describe the circumstances of the failure,

              (b)             state that the failure is unacceptable, and

 

 

Criminal Justice Bill
Schedule 11 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 2 — Breach of community requirement or conviction of further offence

    258

 

              (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.

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

been given, record that fact.

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          (4)      In relation to any suspended sentence order which is made by the Crown

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

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

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.

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Breach of order after warning

  5       (1)      If—

              (a)             the responsible officer has given a warning under paragraph 4 to the

offender in respect of a suspended sentence order, and

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

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

opinion that the offender has since that date failed without

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

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in respect of the failure in question.

          (2)      In relation to any suspended sentence order which is made by the Crown

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

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

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

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as a reference to the Crown Court.

Issue of summons or warrant by justice of the peace

  6       (1)      This paragraph applies to—

              (a)             a suspended sentence order made by a magistrates’ court, or

              (b)             any suspended sentence order which was made by the Crown Court

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and includes a direction that any failure to comply with the

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

magistrates’ court.

          (2)      If at any time while a suspended sentence order to which this paragraph

applies is in force it appears on information to a justice of the peace acting

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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

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

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arrest.

          (3)      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,

before the court responsible for the order,

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

sessions area concerned.

 

 

Criminal Justice Bill
Schedule 11 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 2 — Breach of community requirement or conviction of further offence

    259

 

          (4)      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

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

5

  7       (1)                        This paragraph applies to a suspended sentence order made by the Crown

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

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

court.

          (2)      If at any time while a suspended sentence order to which this paragraph

10

applies is in force it appears on information to the Crown 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

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

arrest.

          (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 (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

  8       (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 6 or 7 or by virtue of section

174(6) 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 11 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 163(2), and

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

custodial period complying with section 163(5) and (6),

 

 

Criminal Justice Bill
Schedule 11 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 2 — Breach of community requirement or conviction of further offence

    260

 

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

following—

                    (i)                   imposing more onerous community requirements which the

court could include if it were then making the order,

                    (ii)                                        subject to subsections (3) and (4) of section 171, extending the

5

supervision period, or

                    (iii)                                       subject to subsection (3) of that section, extending the

operational period.

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

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

10

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

requirements of the suspended sentence order, and

15

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

subsequent offence.

          (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

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adopted.

          (6)                        Where a suspended sentence 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 (2)(a), (b) or (c) it may instead

commit him to custody or release him on bail until he can be brought or

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appear before the Crown Court.

          (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

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community order in the respect specified in the certificate, and

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

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

suspended sentence order and 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.

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

  9       (1)      When making an order under paragraph 8(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

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

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

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

 

 

Criminal Justice Bill
Schedule 11 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 2 — Breach of community requirement or conviction of further offence

    261

 

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

section 243 (restriction on consecutive sentences for released prisoners).

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

cases, any order made by the court under paragraph 8(2)(a) or (b) is to be

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

5

which the suspended sentence was passed.

Restriction of powers in paragraph 8 where treatment required

  10      (1)      An offender who is required by any of the following community

requirements of a suspended sentence order—

              (a)             a mental health treatment requirement,

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              (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

of paragraph 8(1)(a) as having failed to comply with that requirement on the

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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 8(2)(c)(i) amend a mental health treatment

requirement, a drug rehabilitation requirement or an alcohol treatment

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requirement unless the offender expresses his willingness to comply with

the requirement as amended.

Court by which suspended sentence may be dealt with under paragraph 8(1)(b)

  11      (1)      An offender may be dealt with under paragraph 8(1)(b) in respect of a

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

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

or is brought.

          (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—

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

Crown Court, and

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

appropriate officer of the Crown Court.

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

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  12      (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

offence committed during the operational period of a suspended

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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

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

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Criminal Justice Bill
Schedule 11 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 3 — Amendment of suspended sentence order

    262

 

          (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

petty sessions area for which that court acted.

5

          (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

operational period of a suspended sentence passed in England or

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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

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

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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

sentence was passed.

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Part 3

Amendment of suspended sentence order

Cancellation of community requirements of suspended sentence order

  13      (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

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

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

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responding satisfactorily to supervision.

          (3)      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,

              (b)             in the case of a suspended sentence order which was made by the

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

comply with the community requirements of the order is to be dealt

with by a magistrates’ court, the Crown Court, and

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

area concerned.

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Amendment by reason of change of residence

  14      (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.

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Criminal Justice Bill
Schedule 11 — Breach or amendment of suspended sentence order, and effect of further conviction
Part 3 — Amendment of suspended sentence order

    263

 

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

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

5

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

complied with unless the offender resides in the petty sessions area

concerned unless, in accordance with paragraph 15 it either—

              (a)             cancels those requirements, or

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

10

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

          (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.

15

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

paragraph 13.

Amendment of community requirements of suspended sentence order

  15      (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

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any community requirement of a suspended sentence order—

              (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)—

25

              (a)             a requirement falling within any paragraph of section 172(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 172(1) to which it

30

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.

35

          (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

40

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

45

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

requirements of the order.

 

 

 
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