Select Committee on Home Affairs Third Report


(i)  Non-custodial sentences: the options available to the courts

Community penalties

20. The Criminal Justice Act 1991 states that if an offence is "serious enough" a community penalty may be imposed[32]. The use of community penalties, like prison sentences, has increased in recent years. In 1996 (the last year for which figures are available), 133,000 offenders were given community sentences, 2 per cent more than in 1995. The numbers of community sentences changed little between 1994 and 1996, following rises of 13 per cent in 1994 and 11 per cent in 1993. Combination orders (see paragraph 28 below) have formed a significant part of this increase: their use has risen rapidly from the first 1,300 made in 1992 to 8,900 in 1993, 12,400 in 1994, 14,600 in 1995, and 17,300 in 1996.[33]

21. Community sentences are implemented and enforced by the probation service. There are 54 probation areas in England and Wales which are each the responsibility of a probation committee consisting of judges, justices and co-opted members who are not justices. Each probation area has a Chief Probation Officer (CPO), appointed by the committee, with the approval of the Home Secretary, whose responsibility it is to ensure the effective and efficient of operation the area probation service. Local authorities fund 20 per cent of most expenditure by probation committees, the rest being paid for by the Home Office. The main responsibilities of the service are:

    - to provide the courts with advice and information on offenders to assist in sentencing decisions;

    - to implement and enforce community sentences passed by the courts;

    - to design, provide and promote effective programmes for supervising offenders safely in the community for public protection;

    - to assist offenders, before and after release, to lead law-abiding lives which minimise risk to the public;

    - to help communities prevent crime and reduce its effect on victims;

    - to safeguard the welfare of children in family proceedings; and

    - to work in partnership with other statutory agencies and the voluntary and private sectors to provide effective programmes for offenders.[34]

22. The following table gives details of the community penalties available, the age of offender they may be imposed on, the numbers imposed in 1996, and the cost of the order where available.

Community penalties available to the courts[35]

Community Penalty

Offender Age

Numbers Imposed (1996)

Average cost of order

Probation order

16 years and over



Community service order

16 years and over



Combination order (community service and probation)

16 years and over



Attendance centre order

Under 21 years


Not given

Curfew order enforced by electronic monitoring (trials running since July 1995)

16 years and over

(10 years and over in trial areas)


Not given

Supervision order

10-17 years


Not given[37]

23. Probation Orders The probation order has been in existence as an order of the court since 1907 and remains the most commonly used community sentence. The statutory purpose of a probation order is to "secure the rehabilitation of the offender (e.g. by taking action to deal with the causes of offending behaviour), to protect the public (e.g. by confronting the offender with the effect of his crime on the victim) and to prevent the offender from committing further offences (e.g. education and training)".[38]

24. Probation orders require offenders to be under the supervision of the probation service for a period of not less than 6 months and not more than 3 years. Home Office National Standards state that in the first three months of an order there should be a minimum of 12 meetings (normally weekly) between offender and probation officer, followed by at least 6 appointments in the second three months, and at least one appointment a month thereafter; although, as we note in paragraph 73, these minimum standards are not always adhered to.

25. As well as these minimum requirements, under the terms of the Powers of the Criminal Courts Act 1973 as amended by Schedule 1A2 (1)(b) of the Criminal Justice Act 1991, sentencers can make probation orders with additional requirements. Such additional requirements can include: residential or non-residential mental treatment; residence in an approved probation hostel; residence in another institution; other residential requirements; attendance at a probation centre; reporting to a specified person at a specified place; participation in specified activities; refraining from specified activities; mental treatment by/under qualified medical person; residential or non-residential drugs/alcohol treatment; extended requirements for sex offenders; or other requirements.[39] In 1996 30 per cent of new probation orders had such an additional requirement. This continued an upward trend: in 1991 24 per cent had an additional requirement and in 1995 the figure was 28 per cent.

26. The most common form of additional requirement in 1996 was for the offender to participate in specified activities (17 per cent of probation orders had this requirement). Such activity can be to attend a probation programme intended to tackle a specific type of offending behaviour, usually by means of participation in weekly group sessions run by probation officers, typically for ten weeks or so. Programmes exist to deal with, for example, anger management, disqualified drivers, drug user offending, alcohol related offending, drunk driving, and domestic violence. Some probation areas also run programmes specifically for women offenders. The common objectives of such programmes are to reduce the likelihood of further offending, to increase offenders' awareness of the effect of their crimes on victims and others, and to help offenders develop skills which enhance their self-control and social skills.

27. Community service Community service orders, which were introduced in 1974, require offenders to perform unpaid work for between 40 and 240 hours within one year of conviction at a minimum rate of five hours per week. The aim is to re-integrate the offender into the community through positive and demanding unpaid work. Such work may include helping to safeguard the community against further crime; the repair of damage caused by crime; helping the elderly or disabled; or work to improve the appearance or amenities of a neighbourhood. According to ACOP, offenders on community service orders perform over 6 million hours of work annually for the benefit of an estimated 17,000 individuals and community groups in England and Wales.[40]

28. Combination Orders Combination orders combine probation and community service elements in one order. The probation element may be of 1 to 3 years' duration; the community service element of between 40 and 100 hours. First used in 1992, their use has increased each year since then.

29. Curfew Orders Curfew orders use electronic monitoring equipment to ensure an offender remains at a specific place or places for between 2 and 12 hours a day, for up to six months. Trials have been conducted since 1995 in Manchester, Reading and Norfolk and are progressively being extended. Curfew orders are discussed below at paragraph 156f.

30. Attendance Centre Orders / Supervision Orders Attendance centre orders can be used in the case of any offender under 21 who has been convicted of an imprisonable crime, or who has failed to comply with probation order requirements. The aims are to impose a loss of leisure and to use free time constructively. The number of hours specified is normally 12, although it can be increased to 36. Offenders should not be required to attend for more than 3 hours on one occasion nor on more than one occasion in a day. Centres are normally open for 2 or 3 hours every other Saturday. Supervision orders are available for all juveniles and place the offender under the supervision of a social worker or a probation officer for up to 3 years. They may include an additional requirement to reside in local authority accommodation for up to 6 months.

Financial Penalties

31. Fines If the offence in question does not reach either the custodial or community penalty threshold, the courts may impose a financial penalty or a discharge. The most commonly used financial penalty is the fine. The Home Office memorandum states that "in general terms where the Crown Court may impose a fine there is no limit. The statutory maximum fine on summary conviction for an offence triable either way is £5,000. Maximum fines for summary offences are expressed in terms of levels on a standard scale, the monetary value of which may be increased by order". The present scale is[41]:
level 1 £200
level 2 £500
level 3£1,000
level 4£2,500
level 5£5,000

In 1996 1,073,000 offenders were fined, the average fine being £140 in the magistrates' courts and £400 in the Crown Court. Although fines remain the most common form of disposal used by the courts, their use has declined since 1986 when 1,598,000 offenders were fined.

32. Compensation Order The Courts may make an order for payment for personal injury, loss or damage, or for funeral expenses arising from the offence(s) taken into account. In 1996 there were 89,100 such orders made by the magistrates' courts and 5,700 made by the Crown Court; the average compensation ordered being £160 and £1070 respectively. We discuss the use of fines at paragraphs 175-179.

33. Confiscation Order The consolidated Drug Trafficking Act 1994 and the Proceeds of Crime Act 1995 permit magistrates' courts and the Crown Court to make confiscation orders where an offender has benefited from drug trafficking offences and some other crimes. The order is in addition to any other sentence. If an offender defaults on payment he may be committed to prison, but this does not expunge the debt.

Other Disposals

34. Binding Over Magistrates may bind a person over to keep the peace and/or be of good behaviour, the court ordering the person to enter a recognizance for a stipulated sum and time. Binding over requires the person's consent; if this is refused the court may commit the defendant for up to six months. Approximately 38,600 binding over orders were imposed in 1996.

35. Discharges Where a court is satisfied that it is inexpedient to punish an offender and where the sentence for the offence is not fixed by law, it may impose an absolute or conditional discharge. The former means that no further action is taken. The period of the latter may not exceed three years and must be specified by the court; if during that time a further offence is committed the offender will be liable to be sentenced for the original offence. 124,700 discharges were made in 1996.

36. Suspended Sentences Where imprisonment for not more than two years would be an appropriate sentence but there are exceptional circumstances, the courts may suspend the sentence for between one and two years. If a further offence is committed in that time the original sentence may be put into effect. 3,300 suspended sentences were passed in 1996. We discuss suspended sentences further at paragraph 165f below.

32  We note the comments of the Magistrates Association who state that "under the Criminal Justice Act 1991, community sentences are not alternatives to prison sentences. They are for offences that come within the 'serious enough' bracket, whereas prison sentences are for the 'so serious' bracket. It is, however, true that, if magistrates have confidence in a particular community sentence as a vigorous punishment and consider it to be an adequate punishment for the offence committed, they may be persuaded to use it in place of custody in marginal cases." (Appendix 11). However, in a less legal sense any non-custodial sentence is an 'alternative' to a prison sentence and it is this sense the term is used in this report. Back

33  Criminal Statistics England and Wales 1996, Home Office, Cm 3764, p 153. Back

34  Probation Statistics, England and Wales 1996, Home Office, p 2. Back

35  Appendix 1. Back

36  During the second year of trials. Back

37  ibid. Back

38  ibidBack

39  Probation Statistics, England and Wales 1996, Home Office, p 30. Back

40  Appendix 2. Back

41  Appendix 1, para 32. Back

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Prepared 10 September 1998