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Clause 2 and Schedule 2: Breach, revocation or amendment of youth rehabilitation orders.
108. This clause introduces Schedule 2 which sets out procedures relating to the enforcement, revocation or amendment of YROs.
109. Paragraph 1(2) of Schedule 2 provides that a breach of attendance centre rules counts as a breach of a YRO which imposes an attendance centre requirement. Part 2 of Schedule 2deals with breaches of the requirements of a YRO. Under paragraph 3(1) of Schedule 2, if an offender's responsible officer is of the opinion that the offender has failed to comply with a YRO without reasonable excuse, he or she must give the offender a warning or start enforcement proceedings. Paragraph 3(2) sets out the contents of this warning, i.e. a description of the failure and that it is unacceptable, and that two further breaches during the "warned period" of 12 months from the date of the warning will make the offender liable to enforcement proceedings. Paragraph 3(4) defines the "warned period" as a period of 12 months beginning with the date on which the warning was given.
110. Paragraph 4 of Schedule 2 requires the responsible officer to start court enforcement proceedings if the offender has failed to comply with the requirements of the order and has been given two previous warnings during a 12 month period. However, the responsible officer may start court enforcement proceedings without having previously issued warnings to the offender if, for example, the breach is particularly serious.
111. Paragraph 5 of Schedule 2 sets out the procedure for a justice of the peace to issue a summons requiring the attendance of the offender at court (or a warrant for his arrest) if it appears that he has failed to comply with any of the requirements of a YRO. Failure to answer a summons can lead to the issue of a warrant for the offender's arrest (paragraph 5(7))
112. Paragraph 6 of Schedule 2 sets out the ways in which a youth court or other magistrates' court when dealing is satisfied that the offender has failed to comply with the YRO. It must deal with him or her in one of those ways if the order is still in force. It can order him to pay a fine not exceeding £250 for offenders under the age of 14, or £1,000 in any other case. It can amend the order by adding or substituting requirements subject to the limitations set out in sub paragraphs (6) to (9). It can deal with the offender in respect of the offence for which the order was made, in any way in which the court could have originally dealt with the offender. The court must take into account the extent to which the offender has complied with the order. The court may not, if it amends the YRO (rather than re-sentencing the offender) impose an order with intensive supervision and surveillance or with fostering if the order did not already impose such a requirement.
113. If the court decides to re-sentence, it must revoke the original order if it is still in force. If the court is re-sentencing and the offender has wilfully and persistently failed to comply with a YRO, the court may under sub paragraphs (13) to (15), be able to impose a YRO with intensive supervision and surveillance or a custodial sentence, even if it could not have done so for the original offence. An offender can appeal where the court re-sentences for the original offence.
114. Paragraph 7 of Schedule 2 sets out magistrates' court powers to refer offenders in breach of a YRO to Crown Court. If the YRO was made by a Crown Court, the magistrates' court may refer the offender to a Crown Court. The offender can be remanded in custody until being brought before the Crown Court. In these cases the magistrates' court must send the Crown Court details of the failure to comply with the order.
115. Paragraph 8 of Schedule 2 sets out the Crown Court's powers to deal with failure to comply with a relevant YRO whether dealt with directly or on committal from a magistrates' court under paragraph 7.
116. Paragraph 9 of Schedule 2 provides that reasonable refusal to undergo surgical, electrical or other treatment as part of mental health or drug treatment requirement. It is not to be treated as a breach of the order.
117. Paragraph 10 of Schedule 2 gives the Secretary of State order making powers to amend the maximum limit of fines specified in paragraphs 6 and 8 for breach of an order to take account of inflation. An order under this power will be subject to the negative resolution procedure.
118. Part 3 of Schedule 2 deals with the revocation of a YRO. Under paragraph 12 either the offender or the responsible officer may apply to a youth court or other magistrates' court to have the order revoked, due to circumstances that have arisen since the order was made. An example might be if the offender has become very ill and is unable to complete the requirements. The court can revoke the order or revoke it and re-sentence the offender as if he has just been convicted. If the court re-sentences it must take into account the extent to which the offender complied with the original order and the offender can appeal.
119. Paragraph 13 of Schedule 2 gives similar powers to the Crown Court in the case of orders it has made which do not contain a direction that further proceedings are to be in the magistrates' court.
120. Part 4 of Schedule 2 deals with the amendment of YROs. Paragraph 13 enables YROS to be amended by youth courts and other magistrates' courts. A change of residence may necessitate amendment of the order to refer to an alternative local justice area. The change may be made on application by either the offender or his responsible officer. The appropriate court may generally amend or cancel any requirements of the order and where the offender moves, must do so for requirements that are not available in the area to which he or she is to move. The appropriate court will be the youth court in the local justice area specified in the YRO or if the offender is over 18 at the time a magistrates court in that area.
121. Paragraph 14 of Schedule 2 gives similar powers to the Crown Court in the case of orders it has made which do not contain a direction that further proceedings are to be in the magistrates' court.
122. Paragraph 15 of Schedule 2 limits the court's power to amend the requirements of a YRO on change of the offender's address, to ensure that any new requirements can be complied with in the offender's new area of residence.
123. Paragraph 16 of Schedule 2 deals with the possible effects of amendments to requirements on other parts of the order. If the court substitutes a new fostering requirement, the new requirement can last for 18 months from the date of the original fostering requirement instead of 12. If the offender is aged 14 or over, the court may not amend the YRO by imposing a mental health treatment requirement, drug testing or drug treatment requirement without the offender's expression of willingness to comply with the requirement. If the offender fails to express his willingness to comply with any of the above three requirements, the court may either revoke the order or re-sentence - in either case the court must take into account the extent to which the offender has complied with the requirements of the order.
124. Under paragraph 17 of Schedule 2 the court may, on application by the offender or responsible officer, extend the maximum 12 month period in which any unpaid work has to be performed if it appears to be in the interests of justice to do so having regard to changes in circumstances.
125. Part 5 of Schedule 2 deals with the powers of courts in relation to a YRO where the offender is subsequently convicted for another offence. Paragraph 18 sets out what a youth court or magistrates' court convicting for the subsequent offence can do in this situation. It may, if it appears to the court to be in the interests of justice, revoke the order and re-sentence the offender for the original offence as if he had just been convicted of it. If it re-sentences him, the court must take into account the extent to which the offender complied with the order. The offender has the right of appeal if the court re-sentences. If the youth court or magistrates' court convicting for the subsequent offence is dealing with the new offence but the YRO was made in the Crown Court, it can refer the offender to the Crown Court.
126. Paragraph 19 makes similar provision in relation to the powers of a Crown Court following conviction of a subsequent offence.
127. Paragraph 25 of Schedule 2 gives the Secretary of State power to amend the maximum length of a fostering requirement. An order under this paragraph will be subject to the affirmative resolution procedure.
128. Part 6 of Schedule 2 contains supplementary provisions about the court's powers and duties under Parts 2-4 of that Schedule including bringing the offender before the court; powers to remand and adjourn; and the provision of copies
Clause 3 and Schedule 3: transfer of the youth rehabilitation order to Northern Ireland.
129. Clause 3 introduces Schedule 3 which sets out the procedure for transferring YROs to Northern Ireland.
130. Part 1 of Schedule 3 concerns the making or amendment of a YRO where an offender resides or will reside in Northern Ireland.
131. Paragraphs 1 and 2 of Schedule 3 define the circumstances in which a court may make or amend a YRO where the offender resides or proposes to reside in Northern Ireland. The court must be satisfied that the requirements of the YRO do not exceed the requirements that may be imposed in a corresponding order made by a court in Northern Ireland. The court must also be satisfied that suitable arrangements for the offender's supervision can be made in Northern Ireland and, where appropriate, that provision can be made for the offender to comply with the requirements of the YRO in the locality in Northern Ireland where he proposes to live. The court may not require a local authority residence requirement or a fostering requirement to be complied with in Northern Ireland.
132. Under paragraph 3 of Schedule 3 when an order is made or amended where the offender resides or proposes to reside in Northern Ireland, the order must specify the petty sessions district in Northern Ireland in which the offender resides or will be residing when the order or amendment is made.
133. A YRO made or amended under Part 1 of Schedule 3 will have effect as if it were a corresponding order made by a court in Northern Ireland (see paragraph 9). The YRO must specify the corresponding Northern Ireland order and, before making the YRO, the court must explain to the offender the requirements of Northern Ireland law relating to the corresponding order and the relevant powers of the courts.
134. Paragraph 5 of Schedule 3 modifies the provisions in Part 1 of the Bill so that they are relevant to Northern Ireland. In particular, it provides that references to the responsible officer have effect as references to the person who is to be responsible for the offender's supervision under the order, ie. for the performance of supervisory, enforcement or other related functions under the relevant Northern Ireland legislation (see paragraph 6)
135. Part 2 of Schedule 3 applies where an order has been made or amended under Part 1. Paragraph 9 sets out the effect of a YRO in Northern Ireland and paragraph 10 has the effect that the offender must keep in touch with the person responsible for his or her supervision in Northern Ireland.
136. Paragraph 11 of Schedule 3 provides the Crown Court in Northern Ireland with the power to direct that proceedings in Northern Ireland be before the appropriate court of summary jurisdiction in Northern Ireland where the YRO has been made or amended by the Crown Court.
137. Paragraph 12 provides that, where a YRO has transferred, the home court may," substitute "where a YRO has been transferred to Northern Ireland, the court in Northern Ireland (the "home court") may, subject to a number of exceptions, exercise any power which it could exercise in relation to a corresponding order in Northern Ireland. Paragraph 13 gives the home court the power to require an offender to appear before the relevant court in England or Wales. The power may be exercised if it appears to the home court that the offender has failed to comply with one or more of the requirements of the order, in which case the home court must send a certificate specifying the failure, together with other details of the case, to the court in England and Wales (see paragraph 14). The power may also be exercised if the home court considers that it would be in the interests of justice for the court in England and Wales to exercise its powers under Schedule 2 to revoke or amend the order.
138. Paragraph 15 of Schedule 3 sets of the powers available to a court in England or Wales where an offender is required to appear before it by virtue of paragraph 13. The court may issue a warrant for the offender's arrest and it may exercise any power which it could exercise under the YRO if the offender resided in England or Wales. Paragraph 16 provides that the court in England and Wales cannot amend the YRO unless provision can be made for the offender to comply with the amended provisions in Northern Ireland and that arrangements for supervision can be made.
139. Paragraph 17 of Schedule 3 provides that, if the law in Northern Ireland changes to make further types of orders available to courts in Northern Ireland dealing with offenders aged under 18 at the time of conviction, the Secretary of State may by order subject to the negative resolution procedure make appropriate amendments to Schedule 3
Clause 4: Meaning of "the responsible officer"
140. This clause defines who the responsible officer is in relation to a YRO. Under subsection (1), where the order only imposes a curfew requirement or exclusion requirement together with an electronic monitoring requirement, the responsible officer will be the person responsible for the electronic monitoring. In a case where the only requirement is an attendance centre requirement the responsible officer will be the officer in charge of the attendance centre. In any other case it will be the qualifying officer. Under subsection (2) a qualifying officer will be a member of a youth offending team or an officer of a local probation board. Subsection (3) gives the Secretary of State order making powers to amend subsections (1) and (2) and, where necessary or expedient, make any consequential changes as a result to other provisions of Part 1 of this Bill or Chapter 1 of Part 12 of the 2003 Act (general provisions about sentencing). Subsection (4) provides that such an order may provide for the court to decide in individual cases which description of "responsible officer" is to apply. Any such order will be subject to the affirmative resolution procedure
Clause 5: Responsible officer and offender: duties in relation to the other
141. Clause 5 establishes the statutory duties of the responsible officer and offender in relation to each other. Under subsection (1) the responsible officer must make any necessary arrangements for the offender to fulfil the requirements of the order, promote the offender's compliance with the requirements, and take enforcement action in the case of non-compliance. Subsection (2) makes an exception for responsible officers who are electronic monitoring providers. Subsection (3) provides that in giving instructions in relation to the YRO the responsible officer must ensure, as far as practicable, that any instruction avoids any conflict with an offender's religious beliefs, with his attendance at school or at any other educational establishment or with the requirements of any other YRO to which he is subject. Subsection (4) provides the Secretary of State with an order making power subject to the negative resolution procedure to add to the restrictions in subsection (3). Under subsection (5) an offender must keep in touch with his responsible officer, in accordance with any instructions in that regard from the responsible officer. The offender must also notify the responsible officer of any change of residence. Under subsection (6), if the offender does not keep in touch as required, or if he changes his residence without notifying the responsible officer, he or she is liable to breach proceedings.
Clause 6 and Schedule 4: Abolition of certain youth orders and related amendments
142. Clause 6 abolishes five existing community sentences for young offenders namely, curfew orders, attendance centre orders, exclusion orders, supervision orders and action plan orders, which will be replaced by the YRO. The clause also introduces Schedule 4 which makes consequential amendments to other legislation.
Clause 7: Youth rehabilitation orders; interpretation
143. This clause defines various terms for the purposes of Part 1.
Clause 8: Isles of Scilly
144. This clause provides for Part 1 to have effect in the Isles of Scilly with such exceptions, adaptations and modifications as the Secretary of State may specify by order subject to the negative resolution procedure.
Part 2: Sentencing
Clause 9: Purposes etc of sentencing: offenders aged under 18
145. This clause sets out that the principal aim of the courts in sentencing young offenders must be as the prevention of offending, reflecting the principal statutory aim of the youth justice system as a whole as set out in section 37 of the Crime and Disorder Act 1998. The clause complements section 142 of the 2003 Act which sets out the purposes of adult sentencing.
146. Subsection (1) inserts a new section 142A into the 2003 Act setting out the purposes of sentencing for offenders under the age of 18 years. The new section requires the court when dealing with an offender to have regard primarily to the principal aim of preventing offending by children and young people. It also requires the court to have regard to the following purposes of sentencing:
- the punishment of offenders,
- the reform and rehabilitation of offenders,
- the protection of the public, and
- the making of reparation by offenders to persons affected by their offences.
147. In addition the court must also have regard to the welfare of the offender, as required by the Children and Young Persons Act 1933.
148. New section 142A(5) sets out the circumstances in which that section does not apply, namely:
- where the sentence for the offence is fixed by law (eg a mandatory sentence of detention imposed for murder);
- where offences require certain custodial sentences (i.e certain firearms offences; in certain offences of using someone to mind a weapon; and certain serious, violent or sexual offences to which sections 226 or 228 of the 2003 Act applies); and
- where certain orders are made under the Mental Health Act 1983
149. Subsection (2) amends section 142 of the 2003 Act to ensure that where young people reach their 18th birthday before being sentenced the courts have regard to the adult purposes of sentencing.
150. Subsection (3) amends section 44 of the Children and Young People Act 1933, which requires courts to have regard to the welfare of a child or young person brought before it, so that that requirement is subject to the duty on the court introduced by the new section 142A of the 2003 Act.
151. Subsection (4) amends section 37 of the Crime and Disorder Act 1998, which sets out the aim of the youth justice system and places a duty on the courts (amongst others) to take account of that aim, so that that duty is subject to the duty on the court introduced by the new section 142A of the 2003 Act.
Clause 10: Abolition of suspended sentences for summary offences
152. This clause abolishes the power of the court to suspend a custodial sentence in accordance with Section 189 of the 2003 Act where it is passing a sentence of imprisonment for a summary-only offence or offences, except in the limited circumstances set out below. This applies to the Crown Court and the magistrates' courts. The power to suspend custodial sentences in accordance with Section 189 is unchanged as regards indictable and either-way offences.
153. The court retains the power to pass a suspended sentence for a summary-only offence where it is imposing a custodial sentence for a summary-only offence or offences at the same time as it passes a suspended sentence in respect of an indictable only or either-way offence or offences.
Clause 11: Restriction on imposing community sentences
154. Clause 11 amends section 148 of the 2003 Act, which makes provision as to when it is appropriate to impose a community sentence. It provides that nothing in section 148 requires the court to impose a community sentence even though the offence is serious enough to justify such a sentence.
Clause 12: Indeterminate Sentences: determination of tariffs
155. Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 requires a court determining the minimum period to be served in custody by an offender subject to a discretionary life sentence or indeterminate sentence for public protection to determine the tariff with reference to the period that the offender would have served in custody if sentenced to a determinate term. Section 82A(3) requires the court to determine the notional determinate term commensurate with the seriousness of the offence, to halve it to take account of the early release provisions and to give credit for time spent on remand.
156. This clause increases the courts' discretion when determining tariffs under section 82A in certain limited cases by giving courts discretion to reduce the notional determinate term by less than half in certain cases.
157. The discretion not to halve the notional determinate term applies in two sorts of case. The first case ('Case A') is limited to the tariff determination for discretionary life sentences and applies where the circumstances of the offence or offences make the crime exceptionally serious (without being serious enough to justify a whole-life tariff, which requires a very extreme degree of exceptionality), and the court is of the opinion that to halve the notional determinate term would not adequately reflect the seriousness of the offence(s). The court may then reduce the tariff by any amount ranging from one-half to nil, as is appropriate to reflect the seriousness of the case.
158. The second case ('Case B') applies to both discretionary life sentences and indeterminate sentences of imprisonment (or juvenile or young adult equivalents) for public protection. Case B preserves a power developed in case law (as referred to in R v Lang & Ors [2005] EWCA Crim 2864), which addresses a technical problem that occasionally arises: it allows a court not to apply the full 50 per cent reduction in exceptional cases when to do so would result in a situation where the offender would not serve any extra time in custody. This situation historically has arisen where the offender is already serving a determinate custodial sentence and the minimum term would expire before the offender is eligible for release, because tariffs of indeterminate sentences cannot be served consecutively with other custodial sentences. Where Case B applies, the court may reduce the notional determinate term by less than half but by no less than one third.
Clause 13: Consecutive terms of imprisonment
159. Clause 13 amends the 2003 Act in respect of consecutive custody plus and intermittent custody sentences and general restrictions on consecutive sentences for released prisoners.
160. Subsection (2) inserts a new subsection (7A) into section 181 of the 2003 Act which states that when calculating whether the aggregate length of consecutive terms of imprisonment is within the 65 week maximum limit for consecutive terms referred to in section 181(7)(a), account is to be taken only of all the custody periods and the longest of any licence periods.
161. Subsection (3) amends section 264A(3), (4)(b) and (5). The effect of these amendments is that where intermittent custody sentences are ordered by a court to be served consecutively the offender will be required to serve all the custody periods plus all the licence periods.
162. Subsection (4) amends section 265 to clarify the position on imposing consecutive sentences on different occasions. Subsection (4)(a) amends section 265(1), the effect of which is that if an offender has been released on licence under Part II of the Criminal Justice Act 1991 or Chapter 6 of Part 12 of the 2003 Act then a subsequent sentence may not be ordered to be served consecutively to the sentence from which he has already been released. Subsection (4)(b) inserts new subsections (1A) and (1B) into section 265, these provide that for the purposes of determining whether someone has already been released on licence, any temporary release on licence under section 183(1)(b)(i) in respect of an intermittent custody sentence is to be discounted.
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