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Schedule 8: Revocation or amendment of custody plus orders and amendment of intermittent custody orders
594. This Schedule makes provision for revoking custody plus orders, and amending custody plus and intermittent custody orders. In both cases the prison sentence itself will not be revoked or amended. Paragraph 3 provides for the court to revoke custody plus orders and remove requirements as to licence conditions from intermittent custody orders on application of the offender or responsible officer and where it deems it to be in the interests of justice to do so. Paragraph 4 provides for the court to amend the order to refer to another petty sessions area if the offender proposes to change, or has changed, his residence. If a requirement is not available in the new area the court may cancel that requirement or substitute it for another which can be complied with in the new area. Specifically, a programme requirement cannot be imposed on amendment unless it is available in the new area.
595. Under paragraph 5, the court may, on application of the offender or the responsible officer, amend a custody plus or intermittent custody order by cancelling a requirement or replacing it with another of the same kind (that is, if it is in the same paragraph of clause 164(1)). New requirements are subject to the same restrictions as they would have been if the order was being made. Paragraph 6 provides that the court may, on application of the offender or the responsible officer, amend the licence periods of an intermittent custody order, if suitable prison accommodation is available.
596. Paragraphs 7 to 9 contain supplementary provisions. No application under this Schedule can be made if an appeal against the order is pending. Where a court is amending an order, and the application is not by the offender, the court must summon the offender to appear before the court and may issue a warrant if he does not appear. This does not apply if the court is cancelling a requirement. Paragraph 9 sets out procedural arrangements for sending copies of the order to relevant parties.
Schedule 9: Breach, revocation and amendment of suspended sentence order, and effect of further conviction
597. Part 1 of this Schedule and paragraphs 3 and 4, on statutory warnings, make similar provision to that dealing with community orders in Schedule 7. Paragraph 5 provides that a magistrates' court can issue a summons for an offender to appear before a court (or a warrant for his arrest) if the offender has failed to comply with any community requirements of the order in cases where the suspended sentence order was made by a magistrates' court. The summons will specify the court reviewing the order if the order contains provision for review. If the offender does not appear in response to a summons the court can issue a warrant for his arrest. Paragraph 6 provides for the Crown Court to issue a summons or warrant for the offender to appear before it where the order was made by the Crown Court. If the offender does not appear in response to a summons, a warrant for his arrest can be issued.
598. Paragraph 7 sets out the magistrates' court's powers where an offender breaches a suspended sentence by failing to comply with a community requirement or by committing a further offence. The presumption is that the suspended sentence will be activated, unless the court finds that it would be unjust to do so. If it activates the suspended sentence the court can set a shorter term or custodial period for the offender to serve if it wishes. If the court finds that it would be unjust to activate the suspended sentence it can keep the sentence suspended but amend the order to make the community requirements more onerous or to extend either the supervision or operational periods. The court must state the reasons for choosing this option. It must also take into account the extent to which the offender complied with the requirements of the order and the facts of the subsequent offence.
599. Under paragraph 8 when the suspended sentence is activated, the court must make a custody plus order. That is, it has to set the licence conditions that will apply on the offender's release from custody at the end of custodial period of his sentence. The court may decide whether the new sentence is to take effect immediately or after any other sentence that the offender is serving (subject to the rules affecting consecutive sentences). Under sub-paragraph (3), if the proceedings occur in the Crown Court the determination of breach is to be made by the court and not a jury. Sub-paragraph (5) provides that an activated suspended sentence counts as having been imposed by the court which originally imposed the suspended sentence.
600. Under paragraph 9, if an offender has refused to comply with a mental health, drug or alcohol treatment requirement, and the refusal is believed by the court to be reasonable under the circumstances, it is not to count as breach. Paragraph 10 sets out which court deals with the suspended sentence if the offender is convicted of a further offence. Where the original sentence was passed by the Crown Court and the subsequent offence by a magistrates' court, the latter can remand the offender in custody or on bail to the Crown Court or give written notice to the Crown Court of the subsequent conviction. A suspended sentence on appeal is to count as having been passed by the court at which he was originally sentenced.
601. Under paragraph 11, if it becomes apparent that the court has not dealt with the suspended sentence in cases where the offender has committed a new offence, a court with jurisdiction may issue a summons or warrant to the offender to appear before a court. A court with jurisdiction refers to the Crown Court if the suspended sentence was passed by the Crown Court, or a justice acting for the area if the suspended sentence was passed by the magistrates' court. A magistrates' court may not issue a summons except on information and may not issue a warrant except on information in writing and on oath. If the subsequent offence is committed in Scotland, and the original suspended sentence was passed in England or Wales, the Scottish court must give written notice of the conviction to the court that passed the suspended sentence. Summonses and warrants must direct the offender to appear before the court that imposed the suspended sentence. A suspended sentence on appeal is to count as having been passed by the court at which he was originally sentenced.
602. Part 3 deals with amending suspended sentence orders. Paragraph 12 provides that the appropriate court can cancel the community requirements of a suspended sentence order on application of the offender or responsible officer. This may occur if the offender becomes very ill and cannot undertake the requirements but the court feels it would still be of benefit to have the suspended sentence in place. No application can be made if an appeal against the order is pending. The appropriate court is explained in sub-paragraph (4). Paragraph 13 provides that the appropriate court can amend the suspended sentence order by substituting a new petty sessions area if the offender proposes to or has changed residence. The court may, and on the application of the responsible officer must, cancel or change any requirements of the order that are not available in the area to which the offender wishes to move. In particular, a programme requirement cannot be amended if it is not available in the new area. The appropriate court is the same as in paragraph 12.
603. Under paragraph 14 an offender or his responsible officer can apply to have the requirements of an order amended. The appropriate court can cancel a requirement or replace it with another requirement of the same kind, for example to alter the hours of a curfew or substitute one activity for another. The court cannot amend a mental health, drug or alcohol treatment requirement unless the offender consents. If the offender fails to consent, the court can revoke the order and re-sentence the offender. If it re-sentences him the court must take into account the extent to which the offender complied with the requirements of the order. The appropriate court has the same meaning as in paragraph 12. Paragraph 15 provides that, where a community order includes a drug rehabilitation, alcohol treatment or mental health treatment requirement and the medical practitioner or other person responsible for the treatment is of the opinion that the treatment should be extended beyond the period specified in the order, that the offender should receive different treatment, that the offender is not susceptible to treatment or that the offender does not require further treatment, he must make a report to the responsible officer. He can also report that he is unwilling to continue to treat (or direct the treatment) of the offender for any reason. The responsible officer must then apply to the court to have the requirement amended or cancelled.
604. Paragraph 16 provides for the responsible officer to apply to the court to change a review without a hearing to a review with a hearing, and vice versa, in the case where a suspended sentence order contains a drug rehabilitation requirement.
605. The offender or the responsible officer can apply to the court under paragraph 17 to extend the 12 months limit on unpaid work if it is in the interests of justice to do so. This might occur if the offender fell ill during the 12 months and was unable to finish all of his hours of unpaid work in time.
606. Paragraphs 18 to 21 contain supplementary provisions. No application to cancel or amend the requirements a suspended sentence order, or to extend an unpaid work requirement can be made if an appeal against the order is pending. Where a court is amending an order, and the application is not by the offender, the court must summon the offender to appear before the court and may issue a warrant if he does not appear. This does not apply if the court is cancelling a requirement. In amending any requirement the court must keep to the restrictions on the requirements that apply if the court was then making the order. Paragraph 21 sets out procedural arrangements for sending copies of the order to relevant parties.
Schedule 10 - Persons to whom copies of requirements to be provided in particular cases
607. This Schedule sets out who is to receive copies of each different requirement.
Schedule 14: Release of prisoners serving sentences of imprisonment for public protection
608. This Schedule amends the provisions of the Crime (Sentences) Act 1997 relating to the release of prisoners serving life sentences. Paragraph 2 inserts a new section 31A, which provides that after 10 years has elapsed following the release of an offender serving a sentence of imprisonment for public protection (see clause 205), the offender may apply to the Parole Board for his licence to be terminated. If the Parole Board is satisfied that no further risk is posed then it must recommend to the Secretary of State that the licence be terminated. If the Parole Board conclude that the offender continues to pose a risk then it must reject the application and the offender may not submit another application for his licence to be terminated until at least 12 months has elapsed.
Schedule 15: The Parole Board: supplementary provisions
609. The Schedule re-enacts Schedule 5 to the Criminal Justice Act 1991, which contains supplementary provisions about the Parole Board. The members of the Board must include representatives from certain professional fields. The Schedule also contains provisions about the payment of members, the funding of the Board and the keeping of proper records and accounts.
Schedule 16 - Deferment of sentence
610. This Schedule inserts new provisions about deferment of sentence into the Powers of Criminal Courts (Sentencing) Act 2000. In most cases, a court will pass sentence on an offender immediately after his conviction for the offence or offences for which he is before the court. However, the court also has the power to defer sentencing. As at present, the new provisions allow the court to defer sentencing for the purpose of enabling the court to have regard to the conduct of the offender and any change in his circumstances. However, it strengthens the deferred sentence by providing for reparative and other activity to be undertaken during the period of deferment, and extends "conduct" to include reference to how well the offender complies with such requirements. Progress will continue to act as a mitigating factor in the final sentence passed, including imposing a community sentence in lieu of a custodial one when clear progress against undertakings has been made. Sentencing can be deferred only if the offender consents and undertakes to comply with any requirements set out by the court, and only where the court considers that deferment is in the interests of justice. The court cannot remand an offender if it also defers his sentence. As currently, sentence cannot be deferred for more than six months. The court has the power to issue a summons or a warrant to arrest the offender if he does not appear on the date for sentencing specified by the court. Sub-section (5) of the new section prescribes who should receive a copy of the order deferring the passing of sentence.
611. Under new section 1A The court can include requirements regarding the offender's residence. If an offender is to undertake requirements the court may appoint a supervisor to monitor the offender's compliance with the requirements. The supervisor can be an officer of the local probation board or anyone else the court thinks appropriate. The person must consent to being a supervisor. The supervisor must provide the court with information as to the offender's compliance with the requirements, as it wishes.
612. Under new section 1B the court may deal with the offender before the end of the period of deferment if it is satisfied that the offender has failed to comply with one or more requirements. Currently, as there are no requirements attached to deferred sentences, the offender can only be returned to court early for sentencing if he commits another offence. Subsection (2) sets out the circumstances in which he can be returned to court early clear. Subsection (3) gives the court the power to issue a summons or warrant for the offender to appear before it.
613. Under new section 1C the court may deal with an offender before the end of the period of deferment if he commits another offence. Subsections (2) and (3) set out the powers of the Crown and magistrates' courts in these cases. If the offender is convicted of another offence during the period of deferment, the court may deal with the original deferred sentence at the same time as sentencing the offender for the new offence. If the original sentence was deferred by a Crown Court, it must be a Crown Court that passes sentence for both the offences. If the original sentence was deferred by a magistrates court, and the offender is brought before a Crown Court to be sentenced for the two offences, the Court cannot pass a sentence greater than a magistrates court could have passed. That is, it cannot pass a sentence of greater than 12 months. The court the power to issue a summons or a warrant for the offender to appear before it.
614. New section 1D clarifies some of the legal detail surrounding the deferment of sentences. Deferment of sentence is to be regarded as an adjournment, and if the offender does not appear before the court when required to he is to be dealt with accordingly. When the court deals with an offender at the end of the period of deferment (or earlier if he does not comply with the requirements or commits another offence) it has the same powers as if the offence had just been committed. This includes committing him for sentence to the Crown Court. The court may issue a summons to someone appointed as a supervisor if that person refuses to appear before the court when the court wants to consider an offender's failure to comply with the requirements of the deferment or anything to do with the original offence.
Schedule 17: Inclusion of drug treatment and testing requirement in supervision order or action plan order
615. This Schedule amends section 70 of the Powers of Criminal Courts (Sentencing) Act 2000. It introduces drug treatment, which may include testing, as a requirement available for inclusion in an action plan order. The Schedule also amends Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000 to allow drug treatment, which may include testing, as a requirement available for inclusion in a supervision order.
616. The new requirement is available where the court is satisfied that the young offender is dependent on, or has a propensity to misuse drugs and that this dependency or propensity may be susceptible to treatment. The Schedule strengthens the existing interventions available to the court to assist young offenders with a drug misuse problem to address both their drug misuse and offending behaviour. The testing element of the requirement can only apply to those aged 14 years and over and can be included in an action plan order or supervision order only if the offender consents and the court has been notified by the Secretary of State that arrangements are in place for implementation.
Schedule 18: Summary offences no longer punishable with imprisonment
617. Schedule 18 provides a list of summary offences which are to cease to be punishable with imprisonment. (The new community order is not limited to imprisonable offences and so will be available for these offences.) Part 2 of Schedule 21 also makes consequential amendments to enactments which are required. Part 7 of Schedule 26 contains associated repeals.
Schedule 19: Increase in maximum term for certain summary offences
618. Schedule 19 makes amendments in respect of summary offences to increase the maximum penalty from a term of imprisonment of four months or less to a term of 51 weeks.
Schedule 20: Increase in penalties for drug-related offences
619. The drug trafficking offence provisions in the Bill increase the maximum penalty for trafficking controlled drugs which are Class C under the Misuse of Drugs Act 1971 from 5 years' to 14 years' imprisonment. This will enable the courts to continue to impose substantial sentences on cannabis traffickers after the proposed reclassification of the drug from Class B to Class C. Other Class C drugs include benzodiazepines and anabolic steroids. Trafficking includes, among other things, unlawful importing, supply and possession with intent to supply. This provision will also enable the United Kingdom Government to meet its obligations in connection with establishing minimum levels for drug trafficking penalties across the European Union.
Schedule 22 - Jury service
620. Schedule 22 amends the principal statute governing jury service, the Juries Act 1974, to abolish (except in the case of mentally disordered persons) the categories of ineligibility for, and excusal "as of right" from, jury service, currently set out in Parts 1 and 3 of Schedule 1 to that Act. This means that certain groups of people who currently must not, or need not, do jury service will, when these provisions are brought into force, be required to do so unless they can show good reason not to. Schedule 22 also makes amendments to the category of those disqualified from jury service, as set out in Part 2 of Schedule 1 to the Juries Act 1974, to reflect developments in sentencing legislation, including those made by the Bill itself.
Paragraphs 2, 3, 14 and 15:
621. These provisions have the effect of removing the status of "ineligibility" for jury service, and entitlement to "excusal as of right" from jury service, from a number of people; they will, as a result, in future be regarded in all cases as potential jurors. Under the Juries Act 1974, as it currently stands, the judiciary, others concerned with the administration of justice, and the clergy, are "ineligible" for jury service and therefore barred from serving as jurors. That bar will be lifted. Others, including people over 65, members of parliament, medical professionals and members of certain religious bodies, are currently entitled to refuse to serve as jurors. That entitlement will be removed. If any person affected by these changes does not wish to serve as a juror, he or she will now be required to apply for excusal or deferral under section 9 or 9A of the 1974 Act, showing "good reason" why he or she should not serve as summoned.
622. Paragraph 2 of Schedule 22 replaces section 1 of the Juries Act 1974 with a new version, removing the status of ineligibility for jury service currently in section 1 of the 1974 Act, with a saving for mentally disordered persons only. Paragraph 15 substitutes a new version of Schedule 1 to the 1974 Act, and correspondingly removes the first three groups of persons ineligible (the judiciary, others concerned with the administration of justice, and the clergy), leaving only mentally disordered persons with that status. Paragraph 14 of Schedule 22 makes consequential provision to remove references to these groups of ineligible people in the context of the jury summoning offences in section 20 of the Juries Act 1974.
623. Paragraph 15 also replaces the categories of those who are disqualified from jury service with a new list for Part 2 of Schedule 1 to the Juries Act 1974. These are people who have served, or are serving, prison sentences or community orders of varying degrees of seriousness. The period of time during which they are to be disqualified varies accordingly. A number of amendments have been made to Part 2 to reflect recent and forthcoming developments in sentencing legislation. Juveniles sentenced under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 to detention for life, or for a term of five years or more, will be disqualified for life from jury service. People sentenced to imprisonment or detention for public protection, or to an extended sentence under clause 207 of the Bill, are to be disqualified for life from jury service. Anyone who has received a community order (as defined in clause 160 of the Bill) will be disqualified from jury service for ten years.
624. Paragraph 3 of Schedule 22 repeals section 9(1) of the Juries Act 1974. This subsection provided that certain groups of people listed in Part 3 of Schedule 1 to the 1974 Act should be "excused as of right" from jury service: that is, they were entitled to refuse to do jury service if they so wish. These groups include people over 65 years of age, members of parliament, members of medical and similar professions, people with religious objections to doing jury service, and (in specified circumstances) members of the armed forces. No-one will in future be entitled to excusal as of right from jury service, as is currently provided. Part 3 has been omitted from the substituted Schedule 1 in Paragraph 15.
Paragraphs 4 to 11:
625. These paragraphs make provision consequential on the repeal of Part 3 of Schedule 1 to the Juries Act 1974. Full-time serving members of the armed forces are at present entitled to excusal as of right from jury service if, but only if, their commanding officer certifies that their absence would be prejudicial to the efficiency of the service in question. With the abolition of excusal as of right, service personnel who do not wish to do jury service will, like everyone else, have to apply under section 9 or 9A of the 1974 Act and show "good reason" why they should not serve as summoned. A commanding officer's certificate is, however, to be regarded in future as conclusive evidence of good reason for the purposes of these provisions, so that on its production a jury service summons will be deferred; if there has already been a deferral or if the commanding officer certifies that absence would be prejudicial for a specified period of time, then service personnel will be excused altogether from the obligation imposed by the summons. But that is without prejudice to the position should a further summons be issued on a future occasion.
626. Paragraph 12: Sections 9A and 9 of the Juries Act 1974 deal, respectively, with discretionary deferral and excusal. If a person who has been summoned to do jury service can show that there is a "good reason" that his summons should be deferred or excused, then a discretion exists to defer or excuse. The discretion currently rests with the Jury Central Summoning Bureau, a part of the Lord Chancellor's Department, which administers the jury summoning system on behalf of the Crown Court in England and Wales. With the abolition of most of the categories of persons ineligible for jury service, and of the availability of excusal as of right, many of these cases will now fall to be dealt with as applications for excusal or deferral under sections 9 and 9A. New section 9AA, introduced by this paragraph, places a statutory duty on the Lord Chancellor (in whom responsibility for jury summoning is vested by section 2 of the 1974 Act) to publish and lay before Parliament guidelines relating to the exercise by the Jury Central Summoning Bureau of its functions in relation to discretionary deferral and excusal.
627 Paragraph 13: Section 19 of the Juries Act 1974 gives an entitlement to jurors to be paid, amongst other things, a subsistence allowance during the period they are serving on a court case. This paragraph will enable the Court Service of the Lord Chancellor's Department (which administers the Crown Court, and the payment of jurors' subsistence allowances) to pay this allowance otherwise than by means of cash. Some court facilities enable staff to obtain refreshments by non-monetary means, such as a voucher or an electronic 'swipe card'; this paragraph will enable them to extend the same means to jurors.
Schedule 23: Parenting Order attached to Referral Order
628. Schedule 23 makes provision about the interaction of parenting orders, made under sections 8 to 10 Crime and Disorder Act 1998 and referral orders made under Part 3 of the Powers of Criminal Courts (Sentencing) Act 2000.
629. Removal of restriction in Crime and Disorder Act 1998. This removes from section 8 of the Crime and Disorder Act 1998 the restriction currently on a court for the making of a Parenting Order alongside a Referral Order.
630. Supplemental provisions relating to Parenting Orders. This amends section 9 of the Crime and Disorder Act 1998 (which makes supplemental provision relating to Parenting Orders) so that it is possible to make a parenting order and a referral order in respect of the same offence.
631. Subparagraph (2) substitutes a new subsection (1) into section 9. The old subsection provided that a parenting order could not be made in respect of the same offence. The new subsection provides that the normal duty on the court to make a parenting order (or explain why it would not help to prevent the offender from committing another offence) where a person under the age of 16 is convicted of an offence does not apply where the court makes a referral order in respect of the offence.
632. Subparagraph (3) inserts a new subsection (2A) into section 9. This provides that where the court does decide to make a Parenting Order with a Referral Order, the court must obtain and consider a report by a probation officer, a local authority social worker, or a member of a youth offending team. The report should indicate what the requirements of the Parenting Order might include, the reasons why it would be desirable, and also, if the offender is under age 16 years, information about the family's circumstances and the likely effect of the Order on those circumstances.
633 Subparagraph (4) inserts a new subsection (7A) which defines a Referral Order an order imposed under section 16(2) or (3) Powers of Criminal Courts (Sentencing) Act 2000.
634. Removal of Restriction in Powers of Criminal Courts (Sentencing) Act 2000. This removes the restriction in section 19(5) of the Powers of Criminal Courts (Sentencing) Act 2000 preventing the court from imposing a parenting order and a referral order in respect of the same offence.
635. Panel to refer case back to Youth Court where parent or guardian fails to comply. This inserts a new subsection (2A) into section 22 of the Powers of Criminal Courts (Sentencing) Act 2000. A court making a referral order may require a parent or guardian to attending the meetings of the youth offender panel under Section 20 of the Powers of Criminal Courts (Sentencing) Act 2000. Where the parent or guardian fails to comply with such an order, the new subsection provides the power to the panel to refer the case back to the offender's youth court. This would then allow the court the opportunity to decide whether it should impose a Parenting Order.
636. Arrangements when a panel refers a parent or guardian to the youth court. These insert new provisions into section 28 and Schedule 1 Powers of Criminal Courts (Sentencing) Act 2000. These provisions set out the arrangements when a youth offender panel refers a parent or guardian to the appropriate youth court using the power set out in the new section 22(2A). The panel must make a report to the court explaining why the parent is being referred to it and the court can require the parent to appear before it by means of the issue of a summons, or a warrant for arrest. Where the parent then appears before the youth court, the court may make a Parenting Order if both of two conditions are satisfied. The first is that the court is satisfied that the parent has failed to comply with an order made by the court under section 20 to attend the youth referral panel, without reasonable excuse. The second is that the court believes that it is desirable in the interests of preventing further offences being committed by the offender. The provisions also state which of the provisions of the Crime and Disorder Act relating to parenting orders apply to a parenting order made in these circumstances and provide for a right of appeal to the Crown Court against the making of a parenting order in these circumstances.
|© Parliamentary copyright 2002||Prepared: 29 November 2002|