|
| |
| |
“(a) a court is required to determine under section 115B(2) | |
of the Army Act 1955, section 115B(2) of the Air Force | |
Act 1955 or section 62B(2) of the Naval Discipline Act | |
1957 whether a person charged with an offence did | |
the act or made the omission charged,”; | 5 |
(b) for “the court is satisfied” substitute “the judge advocate is satisfied”; | |
(c) for the words after paragraph (b) substitute “the judge advocate | |
must either direct the court to acquit the defendant of the offence or, | |
if he considers that there ought to be a rehearing, dissolve the court.” | |
(5) For subsection (4) substitute— | 10 |
“(4) This section does not prejudice any other power a judge advocate | |
may have to direct a court to acquit a person of an offence or to | |
dissolve a court.” | |
Amendments | |
5 For paragraph 1 of Schedule 1 to the Courts-Martial (Appeals) Act 1968 | 15 |
(c. 20) (use at retrial under Naval Discipline Act 1957 of record of evidence | |
given at original trial) substitute— | |
“1 Evidence given at the retrial of any person under section 19 of this | |
Act shall be given orally if it was given orally at the original trial, | |
unless— | 20 |
(a) section 100 of the Criminal Justice Act 2003 applies | |
(admissibility of hearsay evidence where a witness is | |
unavailable); or | |
(b) the witness is unavailable to give evidence, otherwise than | |
as mentioned in subsection (2) of that section, and section | 25 |
98(1)(d) of that Act applies (admission of hearsay evidence | |
under residual discretion).” | |
6 For paragraph 3 of that Schedule (use at retrial under Army Act 1955 of | |
record of evidence given at original trial) substitute— | |
“3 Evidence given at the retrial of any person under section 19 of this | 30 |
Act shall be given orally if it was given orally at the original trial, | |
unless— | |
(a) section 100 of the Criminal Justice Act 2003 applies | |
(admissibility of hearsay evidence where a witness is | |
unavailable); or | 35 |
(b) the witness is unavailable to give evidence, otherwise than | |
as mentioned in subsection (2) of that section, and section | |
98(1)(d) of that Act applies (admission of hearsay evidence | |
under residual discretion).” | |
7 For paragraph 5 of that Schedule (use at retrial under Air Force Act 1955 of | 40 |
record of evidence given at original trial) substitute— | |
“5 Evidence given at the retrial of any person under section 19 of this | |
Act shall be given orally if it was given orally at the original trial, | |
unless— | |
(a) section 100 of the Criminal Justice Act 2003 applies | 45 |
(admissibility of hearsay evidence where a witness is | |
unavailable); or | |
| |
| |
|
| |
| |
(b) the witness is unavailable to give evidence, otherwise than | |
as mentioned in subsection (2) of that section, and section | |
98(1)(d) of that Act applies (admission of hearsay evidence | |
under residual discretion).” | |
Interpretation | 5 |
8 In this Schedule, and in any provision of this Part as applied by this | |
Schedule— | |
“court-martial” means a court-martial constituted under the Army Act | |
1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or | |
the Naval Discipline Act 1957 (c. 53); | 10 |
“service court” means— | |
(a) a court-martial; | |
(b) a summary appeal court constituted under section 83ZA of | |
the Army Act 1955 (3 & 4 Eliz. 2 c. 18), section 83ZA of the | |
Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or section 52FF of the | 15 |
Naval Discipline Act 1957 (c. 53); | |
(c) the Courts-Martial Appeal Court; | |
(d) a Standing Civilian Court. | |
Schedule 7 | |
Section 162 | |
Breach, revocation or amendment of community order | 20 |
Part 1 | |
Preliminary | |
Interpretation | |
1 In this Schedule— | |
“the offender”, in relation to a community order, means the person in | 25 |
respect of whom the order is made; | |
“the petty sessions area concerned”, in relation to a community order, | |
means the petty sessions area for the time being specified in the | |
order; | |
“the responsible officer” has the meaning given by section 177. | 30 |
2 In this Schedule— | |
(a) references to a drug rehabilitation requirement of a community | |
order being subject to review are references to that requirement | |
being subject to review in accordance with section 190(1)(b); | |
(b) references to the court responsible for a community order imposing | 35 |
a drug rehabilitation requirement which is subject to review are to be | |
construed in accordance with section 190(4). | |
3 For the purposes of this Schedule, a requirement of a community order is of | |
the same kind as another requirement if they fall within the same paragraph | |
of section 160(1); and references to a requirement of a different kind are to be | 40 |
read accordingly. | |
| |
| |
|
| |
| |
Orders made on appeal | |
4 Where a community order has been made on appeal, it is to be taken for the | |
purposes of this Schedule to have been made by the Crown Court. | |
Part 2 | |
Breach of requirement of order | 5 |
Duty to give warning | |
5 (1) If the responsible officer is of the opinion that the offender has failed without | |
reasonable excuse to comply with any of the requirements of a community | |
order, the officer must give him a warning under this paragraph unless— | |
(a) the offender has within the previous twelve months been given a | 10 |
warning under this paragraph in relation to a failure to comply with | |
any of the requirements of the order, or | |
(b) the officer causes an information to be laid before a justice of the | |
peace in respect of the failure. | |
(2) A warning under this paragraph must— | 15 |
(a) describe the circumstances of the failure, | |
(b) state that the failure is unacceptable, and | |
(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. | 20 |
(3) The responsible officer must, as soon as practicable after the warning has | |
been given, record that fact. | |
(4) In relation to any community order which was made by the Crown Court | |
and includes— | |
(a) a direction that any failure to comply with any of the requirements | 25 |
of the order be dealt with by the Crown Court, | |
(b) a drug rehabilitation requirement which is subject to review, | |
the reference in sub-paragraph (1)(b) to a justice of the peace is to be read as | |
a reference to the Crown Court. | |
Breach of order after warning | 30 |
6 (1) If— | |
(a) the responsible officer has given a warning under paragraph 5 to the | |
offender in respect of a community order, and | |
(b) at any time within the twelve months beginning with the date on | |
which the warning was given, the responsible officer is of the | 35 |
opinion that the offender has since that date failed without | |
reasonable excuse to comply with any of the requirements of the | |
order, | |
the officer must cause an information to be laid before a justice of the peace | |
in respect of the failure in question. | 40 |
(2) In relation to any community order which was made by the Crown Court | |
and includes— | |
| |
| |
|
| |
| |
(a) a direction that any failure to comply with any of the requirements | |
of the order be dealt with by the Crown Court, or | |
(b) a drug rehabilitation requirement which is subject to review, | |
the reference in sub-paragraph (1) to a justice of the peace is to be read as a | |
reference to the Crown Court. | 5 |
Issue of summons or warrant by justice of the peace | |
7 (1) This paragraph applies to— | |
(a) a community order made by a magistrates’ court, or | |
(b) any community order made by the Crown Court other than one | |
which includes— | 10 |
(i) a direction that any failure to comply with any of the | |
requirements of the order is to be dealt with by the Crown | |
Court, or | |
(ii) a drug rehabilitation requirement which is subject to review. | |
(2) If at any time while a community order to which this paragraph applies is in | 15 |
force it appears on information to a justice of the peace acting for the petty | |
sessions area concerned that the offender has failed to comply with any of | |
the 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 | 20 |
(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— | |
(a) in the case of a community order imposing a drug rehabilitation | 25 |
requirement which is subject to review, before the magistrates’ court | |
responsible for the order, or | |
(b) in any other case, before a magistrates’ court acting for the petty | |
sessions area concerned. | |
(4) Where a summons issued under sub-paragraph (2)(a) requires the offender | 30 |
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 | |
8 (1) This paragraph applies to a community order made by the Crown Court | 35 |
which includes— | |
(a) a direction that any failure to comply with any of the requirements | |
of the order be dealt with by the Crown Court, or | |
(b) a drug rehabilitation requirement which is subject to review. | |
(2) If at any time while a community order to which this paragraph applies is in | 40 |
force it appears on information to the Crown Court that the offender has | |
failed to comply with any of the 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 | 45 |
| |
| |
|
| |
| |
(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 (2)(a) requires the offender | 5 |
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 magistrates’ court | |
9 (1) If it is proved to the satisfaction of a magistrates’ court before which an | 10 |
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 | |
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 | 15 |
onerous requirements which the court could include if it were then | |
making the order; | |
(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 | 20 |
just been convicted by it of the offence; | |
(c) where— | |
(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, | 25 |
(iii) the offender is aged 18 or over, and | |
(iv) 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 | |
sentence of imprisonment for a term not exceeding 51 weeks. | 30 |
(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 | |
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 | 35 |
by Chapter 4 of Part 12 of this Act) but may not extend the period specified | |
under section 160(5). | |
(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 | 40 |
(where the order was made in respect of an offence punishable with such a | |
sentence) notwithstanding anything in section 135(2). | |
(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’ | 45 |
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 | |
| |
| |
|
| |
| |
(6) custody or release him on bail until he can be brought or 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 | 5 |
offender has failed to comply with the requirements of the | |
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. | 10 |
(8) A person sentenced under subsection (1)(b) or (c) for an offence may appeal | |
to the Crown Court against the sentence. | |
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 | 15 |
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 | |
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 | 20 |
were then making the order; | |
(b) 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 before the Crown Court of the offence; | |
(c) where— | 25 |
(i) the offence in respect of which the order was made was not | |
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, | 30 |
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), the Crown Court must | |
take into account the extent to which the offender has complied with the | |
requirements of the community order. | 35 |
(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 12 of this Act) but may not extend the period specified | |
under section 160(5). | |
(4) In dealing with an offender under sub-paragraph (1)(b), the Crown Court | 40 |
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 135(2). | |
(5) Where the Crown Court deals with an offender under sub-paragraph (1)(b) | 45 |
or (c), it must revoke the community order if it is still in force. | |
(6) In proceedings before the Crown Court under this paragraph any question | |
whether the offender has failed to comply with the requirements of the | |
| |
| |
|
| |
| |
(6) 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 | 35 |
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— | |
| |
| |
|
