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(a) cancels those requirements, or | |
(b) substitutes for those requirements other requirements which can be | |
complied with if the offender does not reside in that area. | |
(4) The court may not amend under this paragraph any custody plus order or | |
intermittent custody order imposing a programme requirement unless it | 5 |
appears to the court that the accredited programme specified in the | |
requirement is available in the other petty sessions area. | |
Amendment of requirements of custody plus order or intermittent custody order | |
5 (1) At any time during the term of imprisonment to which a custody plus order | |
or intermittent custody order relates, the appropriate court may, on the | 10 |
application of the offender or the responsible officer, by order amend any | |
requirement of the custody plus order or intermittent custody order— | |
(a) by cancelling the requirement, or | |
(b) by replacing it with a requirement of the same kind imposing | |
different obligations, which the court could include if it were then | 15 |
making the order. | |
(2) For the purposes of sub-paragraph (1) a requirement of a custody plus order | |
or intermittent custody order is of the same kind as another if they fall | |
within the same paragraph of section 164(1). | |
(3) Sub-paragraph (1)(b) has effect subject to the provisions mentioned in | 20 |
subsection (2) of section 164, and to subsections (3) and (5) of that section. | |
Alteration of pattern of temporary release | |
6 (1) At any time during the term of imprisonment to which an intermittent | |
custody order relates, the appropriate court may, on the application of the | |
offender or the responsible officer, amend the order so as to specify different | 25 |
periods for the purposes of section 165(1)(b)(i). | |
(2) The appropriate court may not by virtue of sub-paragraph (1) amend an | |
intermittent custody order unless it has received from the Secretary of State | |
notification that suitable prison accommodation is available for the offender | |
during the periods which, under the order as amended, will be custodial | 30 |
periods. | |
Supplementary | |
7 No application may be made under paragraph 3(1), 5(1) or 6(1) while an | |
appeal against the sentence of which the custody plus or intermittent | |
custody order forms part is pending. | 35 |
8 (1) Subject to sub-paragraph (2), where a court proposes to exercise its powers | |
under paragraph 5 or 6, otherwise than on the application of the offender, | |
the court— | |
(a) must summon him to appear before the court, and | |
(b) if he does not appear in answer to the summons, may issue a warrant | 40 |
for his arrest. | |
(2) This paragraph does not apply to an order cancelling any requirement of a | |
custody plus or intermittent custody order. | |
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9 (1) On the making under this Schedule of an order revoking or amending a | |
custody plus order or amending an intermittent custody order, the proper | |
officer of the court must— | |
(a) provide copies of the revoking or amending order to the offender | |
and the responsible officer, | 5 |
(b) in the case of an amending order which substitutes a new petty | |
sessions area, provide a copy of the amending order to— | |
(i) the local probation board acting for that area, and | |
(ii) the magistrates’ court acting for that area, | |
(c) in the case of an an order which cancels or amends a requirement | 10 |
specified in the first column of Schedule 10, provide a copy of so | |
much of the amending order as relates to that requirement to the | |
person specified in relation to that requirement in the second column | |
of that Schedule. | |
(2) Where under sub-paragraph (1)(b) the proper officer of the court provides a | 15 |
copy of an amending order to a magistrates’ court acting for a different area, | |
the officer must also provide to that court such documents and information | |
relating to the case as it considers likely to be of assistance to a court acting | |
for that area in the exercise of its functions in relation to the order. | |
Schedule 9 | 20 |
Section 174 | |
Breach or amendment of suspended sentence order, and effect of further | |
conviction | |
Part 1 | |
Preliminary | |
Interpretation | 25 |
1 In this Schedule— | |
“the petty sessions area concerned”, in relation to a suspended sentence | |
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) reference to a suspended sentence order being subject to review is a | |
reference to such an order being subject to review in accordance with | |
section 172(1)(b) or to a drug rehabilitation requirement of such an | |
order being subject to review in accordance with section 190(1)(b); | 35 |
(b) any reference to the court responsible for a suspended sentence order | |
which is subject to review is to be construed in accordance with | |
section 172(3) or, as the case may be, 190(4). | |
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Part 2 | |
Breach of community requirement or conviction of further offence | |
Duty to give warning in relation to community requirement | |
3 (1) If the responsible officer is of the opinion that a person (“the offender”) has | |
failed without reasonable excuse to comply with any of the community | 5 |
requirements of a suspended sentence order, the officer must give him a | |
warning under this 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 | 10 |
(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— | |
(a) describe the circumstances of the failure, | |
(b) state that the failure is unacceptable, and | 15 |
(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. | 20 |
(4) In relation to any suspended sentence order made by the Crown 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. | |
Breach of order after warning | |
4 (1) If— | 25 |
(a) the responsible officer has given a warning under paragraph 3 to any | |
person (“the offender”) in respect of a suspended sentence 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 | |
opinion that the offender has since that date failed without | 30 |
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 | |
in respect of the failure in question. | |
(2) In relation to any suspended sentence order made by the Crown Court, the | 35 |
reference in sub-paragraph (1) to a justice of the peace is to be read as a | |
reference to the Crown Court. | |
Issue of summons or warrant by justice of of the peace | |
5 (1) If at any time while a suspended sentence order made by a magistrates’ | |
court is in force in respect of an offender it appears on information to a | 40 |
justice of the peace acting 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— | |
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(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 | |
arrest. | |
(2) Any summons or warrant issued under this paragraph must direct the | 5 |
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, | |
(b) in any other case, before a magistrates’ court acting for the petty | |
sessions area concerned. | 10 |
(3) 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 | 15 |
6 (1) If at any time while a suspended sentence order made by the Crown Court | |
is in force in respect of an offender 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 | 20 |
time specified in it, or | |
(b) if the information is in writing and on oath, issue a warrant for his | |
arrest. | |
(2) Any summons or warrant issued under this paragraph must direct the | |
offender to appear or be brought before the Crown Court. | 25 |
(3) Where a summons issued under sub-paragraph (2)(a) requires the offender | |
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 | 30 |
7 (1) This paragraph applies where— | |
(a) it is proved to the satisfaction of a court before which an offender | |
appears or is brought under paragraph 5 or 6 or by virtue of section | |
173(5) that he has failed without reasonable excuse to comply with | |
any of the community requirements of the suspended sentence | 35 |
order, or | |
(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 | 40 |
paragraph 10 to deal with him in respect of the suspended | |
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— | 45 |
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(a) the court may order that the suspended sentence is to take effect with | |
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 | 5 |
complying with section 163(2), and | |
(ii) the substitution for the original custodial period of a lesser | |
custodial period complying with section 163(5) and (6), | |
(c) the court may amend the order by doing any one or more of the | |
following— | 10 |
(i) imposing more onerous community requirements which the | |
court could include if it were then making the order, | |
(ii) subject to subsection (3) of section 170, extending the | |
supervision period, or | |
(iii) subject to that subsection, extending the operational period. | 15 |
(3) The court must make an order under sub-paragraph (1)(a) or (b) unless it is | |
of the opinion that it would be unjust to do so in view of all the | |
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— | 20 |
(a) the extent to which the offender has complied with the community | |
requirements of the suspended sentence order, and | |
(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 (1) in respect of | 25 |
a suspended sentence, the appropriate officer of the court must notify the | |
appropriate officer of the court which passed the sentence of the method | |
adopted. | |
Further provisions as to order that suspended sentence is to take effect | |
8 (1) When making an order under paragraph 7(2)(a) or (b) that a sentence is to | 30 |
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 | |
(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 | 35 |
of imprisonment passed on the offender by that or another court. | |
(2) The power to make an order under sub-paragraph (1)(b) has effect subject to | |
section 84 of the Sentencing Act (restriction on consecutive sentences for | |
released prisoners). | |
(3) In proceedings for dealing with an offender in respect of a suspended | 40 |
sentence which takes place before the Crown Court, 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. | |
(4) For the purpose of any enactment conferring rights of appeal in criminal | 45 |
cases, any order made by the court under paragraph 7(2)(a) or (b) is to be | |
treated as a sentence passed on the offender by that court for the offence for | |
which the suspended sentence was passed. | |
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Exclusion from paragraph 7(1)(a) | |
9 An offender who is required by any of the following community | |
requirements of a suspended sentence order— | |
(a) a mental health treatment requirement, | |
(b) a drug rehabilitation requirement, or | 5 |
(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 7(1)(a) as having failed to comply with that requirement on the | |
ground only that he had refused to undergo any surgical, electrical or other | 10 |
treatment if, in the opinion of the court, his refusal was reasonable having | |
regard to all the circumstances. | |
Court by which suspended sentence may be dealt with under paragraph 7(1)(b) | |
10 (1) An offender may be dealt with under paragraph 7(1)(b) in respect of a | |
suspended sentence by the Crown Court or, where the sentence was passed | 15 |
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— | 20 |
(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. | |
(3) For the purposes of this paragraph and of paragraph 11, a suspended | 25 |
sentence passed on an offender on appeal is to be treated as having been | |
passed by the court by which he was originally sentenced. | |
Procedure where court convicting of further offence does not deal with suspended sentence | |
11 (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 | 30 |
jurisdiction in accordance with that sub-paragraph— | |
(a) that an offender has been convicted in Great Britain of an offence | |
committed during the operational period of a suspended sentence, | |
and | |
(b) that he has not been dealt with in respect of the suspended sentence, | 35 |
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. | |
(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 | 40 |
court; | |
(b) if it was passed by a magistrates’ court, by a justice acting for the area | |
for which that court acted. | |
(3) Where— | |
(a) an offender is convicted in Scotland of an offence, and | 45 |
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(b) the court is informed that the offence was committed during the | |
operational period of a suspended sentence passed in England or | |
Wales, | |
the court must give written notice of the conviction to the appropriate officer | |
of the court by which the suspended sentence was passed. | 5 |
(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 | |
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 | 10 |
offender to appear or be brought before the court by which the suspended | |
sentence was passed. | |
(6) In relation to a suspended sentence passed on appeal, this paragraph is to be | |
read in accordance with paragraph 10(3). | |
Part 3 | 15 |
Amendment of suspended sentence order | |
Cancellation of community requirements of suspended sentence order | |
12 (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 | |
officer that, having regard to the circumstances which have arisen since the | 20 |
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 | |
responding satisfactorily to supervision. | 25 |
(3) No application may be made by the offender under sub-paragraph (1) while | |
an appeal against the suspended sentence is pending. | |
(4) 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, | 30 |
(b) in the case of a suspended sentence order made by the Crown Court, | |
the Crown Court, and | |
(c) in any other case, a magistrates’ court acting for the petty sessions | |
area concerned. | |
Amendment by reason of change of residence | 35 |
13 (1) This paragraph applies where, at any time during the term of imprisonment | |
to which a suspended sentence order relates, the appropriate court is | |
satisfied that the offender proposes to change, or has changed, his residence | |
during the licence period from that petty sessions area to another petty | |
sessions area. | 40 |
(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. | |
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