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| Amendment and periodic review of drug treatment and testing orders. |
90. After section 234D of the 1995 Act there shall be inserted the following sections-
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| "Amendment of drug treatment and testing order. |
234E. - (1) Where a drug treatment and testing order is in force either the offender or the supervising officer may apply to the appropriate court for variation or revocation of the order.
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(2) Where an application is made under subsection (1) above by the supervising officer, the court shall issue a citation requiring the offender to appear before the court.
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(3) On an application made under subsection (1) above and after hearing both the offender and the supervising officer, the court may by order, if it appears to it in the interests of justice to do so-
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(i) amending or deleting any of its requirements or provisions;
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(ii) inserting further requirements or provisions; or
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(iii) subject to subsection (4) below, increasing or decreasing the treatment and testing period; or
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(4) The power conferred by subsection (3)(a)(iii) above shall not be exercised so as to increase the treatment and testing period above the maximum for the time being specified in section 234B(2)(a) of this Act, or to decrease it below the minimum so specified.
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(5) Where the court, on the application of the supervising officer, proposes to vary (otherwise than by deleting a requirement or provision) a drug treatment and testing order, sections 234B(5) and 234D(1) of this Act shall apply to the variation of such an order as they apply to the making of such an order.
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(6) If an offender fails to appear before the court after having been cited in accordance with subsection (2) above, the court may issue a warrant for his arrest.
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| Periodic review of drug treatment and testing order. |
234F. - (1) A drug treatment and testing order shall-
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(a) provide for the order to be reviewed periodically at intervals of not less than one month; |
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(b) provide for each review of the order to be made, subject to subsection (5) below, at a hearing held for the purpose by the appropriate court (a "review hearing"); |
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(c) require the offender to attend each review hearing; |
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(d) provide for the supervising officer to make to the court, before each review, a report in writing on the offender's progress under the order; and |
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(e) provide for each such report to include the test results communicated to the supervising officer under section 234C(7)(c) of this Act and the views of the treatment provider as to the treatment and testing of the offender. |
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(2) At a review hearing the court, after considering the supervising officer's report, may amend any requirement or provision of the order.
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(3) The court-
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(a) shall not amend the treatment or testing requirement unless the offender expresses his willingness to comply with the requirement as amended; |
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(b) shall not amend any provision of the order so as reduce the treatment and testing period below the minimum specified in section 234B(2)(a) of this Act or to increase it above the maximum so specified; and |
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(c) except with the consent of the offender, shall not amend any requirement or provision of the order while an appeal against the order is pending. |
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(4) If the offender fails to express his willingness to comply with the treatment or testing requirement as proposed to be amended by the court, the court may revoke the order.
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(5) If at a review hearing the court, after considering the supervising officer's report, is of the opinion that the offender's progress under the order is satisfactory, the court may so amend the order as to provide for each subsequent review to be made without a hearing.
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(6) A review without a hearing shall take place in chambers without the parties being present.
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(7) If at a review without a hearing the court, after considering the supervising officer's report, is of the opinion that the offender's progress is no longer satisfactory, the court may issue a warrant for the arrest of the offender or may, if it thinks fit, instead of issuing a warrant in the first instance may issue a citation requiring the offender to appear before that court as such time as may be specified in the citation.
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(8) Where an offender fails to attend-
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(a) a review hearing in accordance with a requirement contained in a drug treatment and testing order; or |
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(b) a court at the time specified in a citation under subsection (7) above, |
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the court may issue a warrant for his arrest.
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(9) Where an offender attends the court at a time specified by a citation issued under subsection (7) above-
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(a) the court may exercise the powers conferred by this section as if the court was conducting a review hearing; and |
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(b) so amend the order as to provide for each subsequent review to be made at a review hearing." |
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| Consequences of breach of drug treatment and testing order. |
91. After section 234F of the 1995 Act there shall be inserted the following sections-
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| "Breach of drug treatment testing order. |
234G. - (1) If at any time when a drug treatment and testing order is in force, it appears to the appropriate court that the offender has failed to comply with any requirement of the order, the court may issue a citation requiring the offender to appear before the court at such time as may be specified in the citation or, if it appears to the court to be appropriate, it may issue a warrant for the arrest of the offender.
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(2) If it is proved to the satisfaction of the appropriate court that the offender has failed without reasonable excuse to comply with any requirement of the order, the court may by order-
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(a) without prejudice to the continuation in force of the order, impose a fine not exceeding level 3 on the standard scale; |
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(3) For the purposes of subsection (2) above, the evidence of one witness shall be sufficient evidence.
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(4) A fine imposed under this section in respect of a failure to comply with the requirements of a drug treatment and testing order shall be deemed for the purposes of any enactment to be a sum adjudged to be paid by or in respect of a conviction or a penalty imposed on a person summarily convicted.
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| Disposal on revocation of drugs treatment and testing order. |
234H. - (1) Where the court revokes a drugs treatment and testing order under section 234E(3)(b), 234F(4) or 234G(2)(c) of this Act, it may dispose of the offender in any way which would have been competent at the time when the order was made.
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(2) In disposing of an offender under subsection (1) above, the court shall have regard to the time for which the order has been in operation.
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(3) Where the court revokes a drug treatment and testing order as mentioned in subsection (1) above and the offender is subject to-
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(a) a probation order, by virtue of section 234J of this Act; or |
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(b) a restriction of liberty order, by virtue of section 245D of this Act; or |
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(c) a restriction of liberty order and a probation order by virtue of the said section 245D, |
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the court shall, before disposing of the offender under subsection (1) above-
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(i) where he is subject to a probation order, discharge that order; |
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(ii) where he is subject to a restriction of liberty order, revoke that order; and |
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(iii) where he is subject to both such orders, discharge the probation order and revoke the restriction of liberty order." |
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| Combination of orders. |
92. - (1) After section 234H of the 1995 Act there shall be inserted the following section-
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| "Concurrent drug treatment and testing and probation orders. |
234J. - (1) Notwithstanding sections 228(1) and 234B(2) of this Act, where the court considers it expedient that the offender should be subject to a drug treatment and testing order and to a probation order, it may make both such orders in respect of the offender.
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(2) In deciding whether it is expedient for it to exercise the power conferred by subsection (1) above, the court shall have regard to the circumstances, including the nature of the offence and the character of the offender and to the report submitted to it under section 234B(3)(b) of this Act.
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(3) Where the court makes both a drug treatment and testing order and a probation order by virtue of subsection (1) above, the clerk of the court shall send a copy of each of the orders to the following-
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(a) the treatment provider within the meaning of section 234C(1); |
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(b) the officer of the local authority who is appointed or assigned to be the supervising officer under section 234C(6) of this Act; and |
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(c) if he would not otherwise receive a copy of the order, the officer of the local authority who is to supervise the probationer. |
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(4) Where the offender by an act or omission fails to comply with a requirement of an order made by virtue of subsection (1) above-
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(a) if the failure relates to a requirement contained in a probation order and is dealt with under section 232(2)(c) of this Act, the court may, in addition, exercise the power conferred by section 234G(2)(b) of this Act in relation to the drug treatment and testing order; and |
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(b) if the failure relates to a requirement contained in a drug treatment and testing order and is dealt with under section 234G(2)(b) of this Act, the court may, in addition, exercise the power conferred by section 232(2)(c) of this Act in relation to the probation order. |
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(5) Where an offender by an act or omission fails to comply with both a requirement contained in a drug treatment and testing order and in a probation order to which he is subject by virtue of subsection (1) above, he may, without prejudice to subsection (4) above, be dealt with as respects that act or omission either under section 232(2) of this Act or under section 234G(2) of this Act but he shall not be liable to be otherwise dealt with in respect of that act or omission."
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(2) Schedule 6 to this Act (Part I of which makes further provision in relation to the combination of drug treatment and testing orders with other orders and Part II of which makes provision in relation to appeals) shall have effect.
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| Interpretation provision in relation to drug treatment and testing orders. |
93. - (1) After section 234J of the 1995 Act there shall be inserted the following section-
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| "Drug treatment and testing orders: interpretation. |
234K. In sections 234B to 234J of this Act-
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"the appropriate court" means- |
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(a) where the drug treatment and testing order has been made by the High Court, that court;
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(b) in any other case, the court having jurisdiction in the area of the local authority for the time being specified in the order under section 234C(6) of this Act, being a sheriff or district court according to whether the order has been made by a sheriff or district court, but in a case where an order has been made by a district court and there is no district court in that area, the sheriff court; and
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"local authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 and any reference to the area of such an authority is a reference to the local government area within the meaning of that Act for which it is so constituted." |
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(2) In section 307(1) of the 1995 Act (interpretation), after the definition of "diet" there shall be inserted the following definition-
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""drug treatment and testing order" has the meaning assigned to it in section 234B(2) of this Act;". |
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Racial aggravation |
| Offences racially aggravated. |
94. - (1) The provisions of this section shall apply where it is-
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(a) libelled in an indictment; or |
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(b) specified in a complaint, |
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and, in either case, proved that an offence has been racially aggravated.
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(2) An offence is racially aggravated for the purposes of this section if-
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(a) at the time of committing the offence, or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will based on the victim's membership of, or association with members of, a racial group; or |
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(b) the offence is motivated (wholly or partly) by malice and ill-will towards members of a racial group based on their membership of that group, |
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and evidence from a single source shall be sufficient evidence to establish, for the purposes of this subsection, that an offence is racially aggravated.
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(3) Where this section applies, the court shall, on convicting a person, take the aggravation into account in determining the appropriate sentence.
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(4) In this section "racial group" means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
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