Chapter 18: Adult offenders – community sentences
Chapter 18.1: Community Orders (pp837ff)
Section 66 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amends s 177 of the
Criminal Justice Act 2003 to provide that a community order comes to an end on the date specified
under s 177(5). Where, however, the order includes an unpaid work requirement, that order
continues in force until the requirement has been complied with. Where an order imposes two or
more requirements, a court may specify end dates for each of those requirements, and where it
does so, the last of those end dates must be the same as the date specified under s 177(5) (that is,
the date at which the order comes to an end).
The amendments also allow magistrates’ courts and the Crown Court to extend the duration of an
order by up to 6 months where the offender has breached a requirement in an order, and also (by
adding a para 19 to Sch 8 of the 2003 Act) enable magistrates’ courts and the Crown Court to extend
the duration of an order otherwise than for breach of the order.
Foreign Travel Prohibition Requirement
Section 72 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 adds a new
subsection to s 177 of the Criminal Justice Act 2003 (s 177(1)(ga)), which enables the court to impose
a 'foreign travel prohibition requirement'. This requires is defined in a new section, s 206A, which
provides as follows:
(1)
In this Part “foreign travel prohibition requirement”, in relation to a relevant
order, means a requirement prohibiting the offender from travelling, on a day
days specified in the order, or for a period so specified—
(a)
to any country or territory outside the British Islands specified or
described in the order,
(b)
to any country or territory outside the British Islands other than a
country or territory specified or described in the order, or
(c)
to any country or territory outside the British Islands.
(2)
A day specified under subsection (1) may not fall outside the period of 12
months beginning with the day on which the relevant order is made.
or
(3)
A period specified under that subsection may not exceed 12 months
beginning with the day on which the relevant order is made.
Chapter 18.1.4: Programme requirements (p 840-841)
Section 70 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amends s 202 of the
Criminal Justice Act 2003, which enables the court to impose 'programme requirements' as part of a
community order (or a suspended sentence order) with a view to addressing particular aspects of
offender behaviour such as treatment of alcohol or drug addiction.
Section 202(1) is amended so as to remove the requirement that the court must specify the
particular accredited programme in which the offender must participate, and the place at which the
offender must participate in that programme. However, the court must still specify the number of
days on which the offender must take part in the programme.
Sections 202(4) and (5) of the 2003 Act (which specify a number of conditions that have to be met
before a court may impose a programme requirement) are repealed.
Chapter 18.1.6: Curfew requirements (p 841)
Section 71 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amends s 204 of the
Criminal Justice Act 2003 so as to increase the maximum period in any day for which the court may
impose a curfew requirement from twelve to sixteen hours, and to increase the maximum period for
which a curfew requirement may be imposed from six to twelve months (from the date on which the
community order is made).
Chapter 18.1.9: Mental health treatment requirements (p 842)
Section 73 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amends s 207 of the
Criminal Justice Act 2003 so as to remove the condition that a court can only impose a mental health
treatment requirement on the evidence of a registered mental health practitioner approved for the
purposes of s 12 of the Mental Health Act 1983. However, the condition that the court may not
include a mental health treatment requirement unless the offender has expressed willingness to
comply with it remains.
Chapter 18.1.10: Drug rehabilitation requirements (p 843-844)
Section 74 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amends s 209 of the
Criminal Justice Act 2003 so as to remove the requirement that the treatment and testing period of a
drug rehabilitation requirement must be at least six months. Thus, there will be no minimum
treatment and testing period.
Chapter 18.1.11: Alcohol treatment requirements (p 844)
Section 75 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amends s 212 of the
Criminal Justice Act 2003 so as to remove the requirement that the period of an alcohol treatment
requirement must be at least six months. Thus, there will be no minimum period.
Alcohol abstinence and monitoring requirement
Section 76 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (not in force at the
time of writing) inserts new section, s 212A, into the Criminal Justice Act 2003, in order to create a
new 'alcohol abstinence and monitoring requirement' which may be imposed as a requirement of a
community order (or suspended sentence order). Section 212A provides as follows:
(1)
In this Part “alcohol abstinence and monitoring requirement”, in relation to a
relevant order, means a requirement—
(a)
that, subject to such exceptions (if any) as are specified—
(i)
the offender must abstain from consuming alcohol throughout
a specified period, or
(ii)
the offender must not consume alcohol so that at any time
during a specified period there is more than a specified level of
alcohol in the offender's body, and
(b)
that the offender must, for the purpose of ascertaining whether the
offender is complying with provision under paragraph (a), submit
during the specified period to monitoring in accordance with specified
arrangements.
(2)
A period specified under subsection (1)(a) must not exceed 120 days.
(3)
If the Secretary of State by order prescribes a minimum period for the
purposes of subsection (1)(a), a period specified under that provision must be
least as long as the period prescribed.
(4)
The level of alcohol specified under subsection (1)(a)(ii) must be that
prescribed by the Secretary of State by order for the purposes of that
provision (and a requirement under that provision may not be imposed unless
an order is in force).
(5)
at
such
An order under subsection (4) may prescribe a level—
(a)
by reference to the proportion of alcohol in any one or more of an
offender's breath, blood, urine or sweat, or
(b)
by some other means.
(6)
The arrangements for monitoring specified under subsection (1)(b) must be
consistent with those prescribed by the Secretary of State by order (and an
alcohol abstinence and monitoring requirement may not be imposed unless
an order is in force).
(7)
An order under subsection (6) may in particular prescribe—
(a)
arrangements for monitoring by electronic means;
(b)
arrangements for monitoring by other means of testing.
(8)
A court may not include an alcohol abstinence and monitoring requirement in
a relevant order unless the following conditions are met.
(9)
The first condition is that—
(a)
the consumption of alcohol by the offender is an element of the
offence for which the order is to be imposed or an associated offence,
or
(b)
the court is satisfied that the consumption of alcohol by the offender
was a factor that contributed to the commission of that offence or an
associated offence.
such
(10)
The second condition is that the court is satisfied that the offender is not dependent on
alcohol.
(11)
The third condition is that the court does not include an alcohol treatment requirement in
the order.
(12)
The fourth condition is that the court has been notified by the Secretary of State that
arrangements for monitoring of the kind to be specified are available in the local justice area
to be specified.
Chapter 18.2.1: Breach of community orders (pp 846-849)
Guidance on the procedure to be followed in the event of a breach of a community order was given
in West Yorkshire Probation Board v Robinson & Tinker [2009] EWHC 2517 (Admin); (2010) 174 JP 13.
Thomas LJ, at [13] and [14], said:
It is clear that the purpose of paragraph 5 of the schedule was to give the probation officer one and
one discretion only to give a warning. The view was taken, and it is clear from the schedule that this
was what Parliament embodied, that after that first warning, the probation officer was to have no
discretion as to what he was to do. If there was a failure after the first warning, then an information
had to be laid. It is clear that that is what paragraphs 5 and 6 respectively say. If there is a breach
within the requisite period then an information must be laid before justice of the peace in respect of
the failure in question. It does not mean that, when the information is laid, it can only be laid in
respect of the failure in question. It is plainly open to the probation service to set out in that
information both the original breach before the warning and the subsequent breach after the
warning. There is no reason to construe the clear wording in any other way.
… The plain purpose of the legislation is to give the probation officer a single discretion, so that he
does not always have to bring the offender to court but can give a warning. But that one warning
having been given, there is no discretion. But it does not say in any way (and I cannot construe the
schedule as saying in any way) that the warning operates as a punishment. It is simply a warning that,
if thereafter the offender complies and 12 months elapses, he may not be subject to having an
information laid immediately, and the probation officer has a further discretion. In no way is the
effect of the warning to expunge the initial breach. When a matter comes before the court, the court,
in exercising its powers under paragraphs 8 and 9 respectively in each of the schedules, looks at the
full circumstances of each breach in determining what to do, assuming, of course, that in respect of
each breach it has determined that there has been a breach without reasonable excuse.
Section 67 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amends paras 9 and
10 of Sch 8 to the 2003 Act to include payment of a fine up to £2,500 as an additional possible
penalty for a breach of a community order.