Sentencing Principles and Non-Custodial Offences (W16)

Question 1

E1.27 - Pre-sentence reports

Answer 1

• Normal requirement is that the court should obtain a PSR before making a decision to impose a custodial or community sentence.
• The court has discretion to dispense with this requirement where it appears to the court to be unnecessary to obtain one.
• The discretion is narrowed with respect to offenders under 18.
• The failure to obtain one will not invalidate a sentence but an appellate court must obtain and consider one.

Question 2

E1.27 of Supplement - Criteria to be applied by justices in deciding whether to order a report in a case in which a guilty plea has been entered or indicated in the lower court prior to being sent to the Crown Court

Answer 2

A report should be ordered if the court considers that (a) there is a realistic alternative to a custodial sentence, or (b) the defendant may satisfy the criteria for a dangerous offender, or (c) there is some other appropriate reason for doing so.

Question 3

E1.30 - Victim personal statements

Answer 3

• properly formulated statements provide real assistance for the court. They provide a practical way of ensuring that the court will consider the evidence of the victim about the personal impact of the offence.
• Victims must be provided with information which makes it clear that they may make a statement but are under no obligation to do so. A judge must not assume that the absence of a victim personal statement indicates an absence of harm.

Question 4

E1.33 - Mentally Disordered Offenders

Answer 4

• in any case where an offender is or appears to be suffering from a mental disorder, the court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law.
• This is subject to s. 232(2), which states that the court need not order such a report if, in the circumstances of the case, it is of the opinion that it is unnecessary to do so.
• A medical report is distinct from a pre-sentence report, and s. 232(7) clearly states that the ordering of a medical report does not displace the need to order a pre-sentence report under s. 30, or limit the requirement for a court to take into account all information that is available to it about the circumstances of the offence, including any aggravating or mitigating factors.
• The younger the offender, and the more serious the offence, the more likely it was that the court would need the assistance of expert reports. It was important, when such reports were commissioned, that the issues to which they were relevant should be clearly identified.

Question 5

D20.1 - Sentencing procedure

Answer 5

(1) there is a need to ascertain the basis of facts, which is of particular importance where the offender has pleaded guilty and the court has therefore not had the opportunity to form a view of the evidence at trial.
(2) there is a need to consider the character of the offender, to obtain such pre-sentence reports as are appropriate, and to consider such mitigation as is advanced on the offender’s behalf, before either sentencing or adjourning sentence.

Question 6

D20.2 - Ascertaining the facts of the offence

Answer 6

• Where the offender pleads guilty, the first stage of a sentencing hearing is for prosecuting counsel to summarise the facts of the offence.
• It will normally be unnecessary for the facts to be opened at the conclusion of a contested trial. However, in the event of split pleas by co-defendants, the sentencing of the offender who pleaded guilty will normally be adjourned until the conclusion of the trial of the accused who pleaded not guilty. If the latter is convicted, the facts will still have to be summarised for the benefit of the one who pleaded guilty.

Question 7

D20.3 - Duties of the Prosecutor in Relation to Sentencing

Answer 7

• By convention, the prosecution adopt a neutral attitude at the sentencing stage, not seeking to influence the court in favour of a heavy sentence.
• (a) Prosecution counsel can only provide evidence of the impact on the victim of the offence for which the offender is to be sentenced if it accords with the relevant guidelines.
• (b) Where the possibility arises of the court making an ancillary order in conjunction with the main sentence, counsel is required to address this.
• (c) Prosecution counsel is under a general duty to assist the court to avoid appealable error. According to the standards applicable to criminal cases, this goes beyond ensuring that the judge does not exceed the court’s maximum powers and extends to ensuring the court is aware of all relevant statutory provisions, sentencing guidelines and additional guidance from the Court of Appeal.
• (d) Prosecution counsel will in some cases prepare a ‘plea and sentence document’ which identifies the aggravating and mitigating factors of the offence and the relevant statutory provisions and sentencing guidelines.
• these obligations are not limited to the prosecution. While ultimately the sentencing judge is responsible for ensuring that the sentence passed met all relevant technical requirements, it is also the duty of all counsel to provide appropriate assistance.

Question 8

D20.4 - Victim Personal Statements

Answer 8

• The court is frequently provided with an account from the victim of the offence for which the offender is to be sentenced, which can then be taken into account by the court when it passes sentence.
• ‘[i]n all cases it will be appropriate for a VPS to be referred to in the course of the sentencing hearing and/or in the sentencing remarks’.

Question 9

D20.5 - Code of Practice for Victims of Crime (the ‘Victims’ Code’)

Answer 9

• The Code entitles the victim to give and receive information that is relevant to sentence, affords victims of crime the opportunity to prepare a victim personal statement which they may either read or have read, subject to the discretion of the court, and also an entitlement to be informed promptly of the outcome of the sentence and whether any aspect of the case is the subject of an appeal.

Question 10

D20.6 - Counsel’s Duty to Assist the Court

Answer 10

• All counsel appearing in sentence cases must make themselves aware of any legal limitations on the court’s sentencing powers and any relevant guidelines as to sentence so as to be in a position to assist the judge if necessary.
• There is a positive obligation on counsel, both for the prosecution and the defence, to ensure that no order is made which the court has no power to make.

Question 11

D20.8 - Disagreement as to factual basis and Newton Hearings

Answer 11

• It is in certain circumstances possible to obtain the answer to the problem from a jury. For example, when it is a question of whether the conviction should be under section 18 or section 20 of the Offences against the Person Act 1861, the jury can determine the issue on a trial under section 18 by deciding whether or not the necessary intent has been proved by the prosecution.
• The second method which could be adopted by the judge in these circumstances is himself to hear the evidence on one side and another, and come to his own conclusion, acting so to speak as his own jury on the issue which is the root of the problem.
• The third possibility in these circumstances is for him to hear no evidence but to listen to the submissions of counsel and then come to a conclusion. But if he does that, … where there is a substantial conflict between the two sides, he must come down on the side of the defendant.

Question 12

D20.9 - General approach set out in Newton

Answer 12

(1) Offender should be sentenced as far as possible on a basis that accurately reflects the facts of the individual case.
(2) If the resolution of the facts in dispute may matter to the sentencing decision, the responsibility for alerting the prosecutor to the areas of dispute rests with the defence.
(3) Prosecution should not be taken by surprise and should be given time to reflect.
(4) Whatever view is taken by the prosecution on any proposed basis of plea is deemed to be conditional on the judge’s acceptance of it.
(5) Prosecution may agree with offender’s account. If so, this should be put in writing and signed by both advocates.
(6) The agreement should be available to the court before the prosecution’s opening and if possible before the judge is invited to approve the acceptance of plea or in any event before the sentencing hearing begins.
(7) If the agreed basis of plea is not signed by advocates for both sides, or it is not legible, the judge is entitled to ignore it
(8) If the prosecution rejects D’s version, the areas of dispute should be identified in a document that focuses the attention of the court on the precise facts which are in dispute.
(9) The most difficult situation arises when the prosecution lack the evidence positively to dispute D’s account.
(a) In many cases, for example, the matter in issue is outside the knowledge of the prosecution. The prosecution’s position may be that they have no evidence to contradict the defence assertions, but that does not mean that the truth of matters outside their own knowledge should be agreed.
(b) Neither the prosecution nor the judge is bound to agree facts merely because the prosecution cannot gainsay D’s account (a situation sometimes referred to as a ‘reverse Newton’). In those circumstances, particularly if the facts relied upon by D arise from personal knowledge and depend on D’s own account of the facts, the prosecution should only positively agree that account if it is supported by other material.
(c) Where the issue arises from facts that are within D’s exclusive knowledge, the defence should be willing to call their client. An adjournment for these purposes is often unnecessary, since D will be present at the hearing. If D does not give evidence, the judge may draw appropriate inferences, subject to any explanation put forward.
(d) where D relies on extraneous mitigation there is usually, in practice, considerable deference to the submissions of counsel but the position in principle is that there is a burden on the defence to establish relevant facts to the civil standard.
(10) Even where the basis of plea is agreed between the parties, the judge is not bound by any such agreement, and is entitled to insist that any evidence relevant to the facts in dispute should be called. In such a case the judge is entitled to expect the assistance of prosecuting counsel in presenting evidence, and in testing any evidence called by the defence. The agreement which the prosecution have previously entered into with the defence must be viewed as conditional on the approval of the judge. If the judge’s approval is not forthcoming, the defence cannot seek to hold the prosecution to the agreement. However, before embarking on the trial of an issue, the judge might consider whether, in fairness to D, there is any part of the agreement by which the prosecution should be bound.
(11) A Newton hearing has the following limitations:
(a) some issues require a verdict from a jury, e.g., intent
(b) a judge cannot make findings of fact and then sentence on a basis that is inconsistent with the pleas to the counts on the indictment;
(c) where a number of persons are charged with a joint enterprise, the seriousness and context are always relevant;
(d) matters of mitigation are not normally dealt with in a Newton hearing, but where there is no evidence to support D’s account other than D’s own assertions, the judge is entitled to invite defence counsel to call their client.
(12) If issues on a Newton hearing are resolved in the offender’s favour, the credit due for a guilty plea should not be reduced.
(13) If the offender is disbelieved or obliges the prosecution to clal evidence from a witness causing unnecessary and inappropriate distress, the judge may reduce the discount for a guilty plea.
(14) There might be an exceptional case in which the normal entitlement to credit for a guilty plea is wholly dissipated by the Newton hearing, in which case the judge should give reasons.

Question 13

D20.10 - Duty of the offender’s legal representatives

Answer 13

• It is the responsibility of defence solicitors and counsel to notify the prosecution and the court that a plea of guilty will be put forward on the basis that the offender disputes the prosecution version of the facts.
• The court should then be informed, not merely that there is a dispute but that the defence wish to see it resolved in a Newton hearing.
• CoA would not normally consider an argument that the sentencer had failed to order a hearing unless the possibility of such a hearing was raised unequivocally and expressly in the Crown Court.

Question 14

D20.11 - Power of court to direct a hearing

Answer 14

• Ultimately the decision as to whether or not a Newton hearing is required is for the court. Therefore, such a hearing may arise even where the prosecution and defence are agreed on the basis of plea.
• Court is entitled to decline to hear evidence at a Newton hearing where D’s version of events is absurd or clearly unreliable.
• Crown Court has the power to hold a Newton even where such a hearing has already taken place in the mags which committed the offender for sentence.

Question 15

D20.14 - Written basis of plea

Answer 15

• An offender who pleads guilty on a particular basis (e.g. accepting only a limited version of the allegations made by the prosecution) should set out the basis of the plea in a written form so that it is unequivocal and unambiguous. If it is not, the judge is entitled to ignore it.
• Where the court does not accept a basis of plea, it must make this clear before proceeding to sentence.

Question 16

D20.18 - Insignificant disputes

Answer 16

• The principles in Newton apply only where the dispute between prosecution and defence is ‘substantial’.
• where the judge’s sentence would be the same whichever version of the facts was accepted, there is no obligation on the judge to hear evidence but a decision can be made one way or the other simply on the basis of counsel’s representations.
• If it makes no difference to sentence, a judge should sentence on the assumption that the defence version is correct, and expressly say so.

Question 17

D20.20 - Defence Version Manifestly Absurd

Answer 17

The guidance in Newton requires a sentencer either to hear evidence about a significant dispute as to the facts of the offence or to accept the defence version ‘so far as possible’. The implication is that the defence account may be so implausible that a judge ought not to be obliged to waste time by hearing evidence before rejecting it.

Question 18

D20.23 - Burden and standard of proof

Answer 18

In a Newton hearing, the burden of proof is on the prosecution to satisfy the judge beyond reasonable doubt that their version of events is the correct one.

Question 19

D20.24 - Calling evidence

Answer 19

• Once the judge has decided that there should be a Newton hearing, the hearing itself follows normal adversarial lines.
• The parties are given the opportunity to call such evidence as they wish and to cross-examine the witnesses called by the other side.

Question 20

D20.25 - Role of the prosecution in a Newton hearing

Answer 20

• Where the basic facts are not in dispute, the prosecution are not obliged to call any evidence, and the judge is then entitled to draw any appropriate inferences, provided that any findings are expressed to be in accordance with the burden and standard of proof.
• The prosecution are still required to participate, whether or not they have material to dispute the defence account.
• in questioning the offender, the prosecutor should adopt the role of amicus curiae, exploring matters which the court wished to be explored. The prosecution should not leave the questioning to the judge.

Question 21

D20.26 - Role of the defence in a Newton hearing

Answer 21

• On the other hand, the defence cannot be forced to call evidence or otherwise participate, but may simply observe while the prosecution seek to establish their version to the judge’s satisfaction.
• D cannot, however, by declining to give evidence, frustrate the exercise which the judge has undertaken so as to ground a subsequent complaint that there has been no Newton hearing.

Question 22

D20.27 - Role of the court in a Newton hearing

Answer 22

• In order for the judge to avoid giving the impression of having come to conclusions in advance, it will be preferable for judicial questioning to wait until the offender has been examined by defence counsel, and cross-examined by counsel for the prosecution.
• In assessing the evidence, the judge must, as the tribunal of fact, observe the directions which would have been given to the jury for their guidance.
• The judge should approach the matter and direct himself as if he were a jury. In particular this requires the court:
  (a) to go through the steps which Turnbull required the judge to set out when directing a jury;
  (b) to consider the admissibility of identification evidence which breached the PACE 1984 codes of practice; and
  (c) to consider the reliability of other aspects of the evidence, e.g., discrepancies between the contemporaneous descriptions and D’s appearance.
• in the context of a Newton hearing: (a) the rules of evidence should be strictly followed, and (b) the judge should clearly express and apply appropriate legal directions as the trier of fact.

Question 23

D20.30 - Disputes about the facts following a verdict of guilty

Answer 23

• Where D is convicted following a trial, it is for the sentencer to form a view as to the facts of the offence established by the evidence, and to sentence accordingly.
• In general, the jury should not be asked to supplement a verdict of guilty by stating the factual basis on which they reached their decision.
• There is a recognised exception to this principle, relating to a verdict of guilty of manslaughter.

Question 24

D20.45 - Requirement for Evidence of Character and Antecedents

Answer 24

After the prosecution summary of the facts, or immediately after the jury’s verdict of guilty if it was a not guilty plea, it is the responsibility of the prosecution to adduce evidence about the offender’s character and antecedents.

Question 25

D20.52 - Sentencing for Matters of which the Offender Has Not Been Convicted

Answer 25

• It is a basic principle of sentencing to sentence only for those crimes of which the offender has been convicted and not for anything else.
• There are three identifiable exceptions to this principle where a sentencer may properly be influenced by other offences not officially before the court. These are as follows:
  (a) taking into account a less serious secondary offence which has not been charged but the commission of which is implicit in, and represents an aggravating feature of, the more serious primary offence
  (b) if the offender expressly asks for the other offences to be taken into consideration
  (c) if the prosecution case is that the offences on the indictment are merely samples of a continuing course of conduct and the defence accept that to be so.

Question 26

D20.53 - Taking Other Offences into Consideration

Answer 26

• This is a common practice.
• The police are enabled to clear up numerous offences which might otherwise remain unsolved. The offender is able to ‘wipe the slate completely clean’ at a minimal cost in terms of increased sentence.
• The overarching sentencing guideline, Offences Taken into Consideration, applies in relation to all offenders whose cases are dealt with on or after 11 June 2012.

Question 27

D20.56 - Sample offences

Answer 27

• As an alternative to following strictly the procedure for taking other offences into consideration, the prosecution may invite the judge to treat the offences on the indictment of which the offender has been convicted, or to which the offender has pleaded guilty, as samples of a continuing course of conduct.
• This is an attractive course where the offender appears to have committed a large number of similar offences over a protracted period.

Question 28

D20.59 - Reports on the offender

Answer 28

• After the prosecution summary of the facts and antecedents evidence, the court considers any reports that have been prepared on the offender. These may include pre-sentence reports, medical and psychiatric reports and assessments for suitability for a community sentence.
• In many cases, it will have been necessary to delay sentencing to allow such reports to be prepared

Question 29

D20.66 - PSR

Answer 29

A report which:

(a) with a view to assisting the court in determining the most suitable method of dealing with the offender, is made or submitted by an appropriate officer; and
(b) contains information as to such matters as may be prescribed by rules made by the SoS.
- Usually in writing but may be given orally in court in certain circumstances.

Question 30

D20.67 - Preparation of the Report

Answer 30

• Pre-sentence reports on adults are compiled by probation officers. - In the cases of children under 13, reports are prepared by local authority social workers.
• In the cases of those aged 13 to 16 inclusive, responsibility is shared between the probation service and social services, precise arrangements varying from area to area

Question 31

D20.68 - Circumstances in which a report must be obtained

Answer 31

• CJA 2003 places an obligation on the court to obtain a PSR in two circumstances:
  (a) the court ‘shall obtain and consider a pre-sentence report’ in determining whether a custodial sentence should be imposed. This is not obligatory where the offender is over the age of 18 and the court is of the opinion that it is unnecessary. In the case of a young offender, a PSR is obligatory unless the court considers it unnecessary and in reaching that decision has considered any existing PSR relating to the offender and taken into account info in it.
  (b) The court is required to obtain and consider a PSR before forming an opinion as to the suitability of an offender for various types of community sentence.

Question 32

D20.72 - Power to Remand to Obtain a Report

Answer 32

A magistrates’ court has various powers in relation to obtaining such a report:

(a) When remanding an offender in custody the court may, in appropriate cases, request the prison medical service to prepare a report.
(b) If a magistrates’ court is satisfied that the offender ‘did the act or made the omission charged’, it has the power to remand the offender for up to three weeks in custody or four weeks on bail for a medical examination to be made and report prepared. A remand may be ordered notwithstanding that the offender is unconvicted. If the offender is granted bail, co-operation in the preparation of the reports must be made a condition of the bail.
- No specific provisions govern the obtaining of medical reports by the Crown Court. If none have been prepared as a result of proceedings in the court below, the court may exercise its inherent power to adjourn so as to give the opportunity for a report to be made.

Question 33

D20.76 - Mitigation of sentence

Answer 33

• The final stage in the sentencing process before the sentence is pronounced is the presentation of defence mitigation.
• before passing sentence the court must give the offender an opportunity to make representations and introduce evidence relevant to sentence and, where the offender is under 18, the court may give parents, guardians or other supporting adults, if present, such an opportunity as well.
• The plea in mitigation usually consists solely of a speech by defence counsel. As a matter of discretion, counsel may additionally call witnesses to speak to the offender’s generally good character or to explain why, in their view, the offender’s criminal conduct occurred.

Question 34

D20.92 - Pronouncement of sentence

Answer 34

• After the defence mitigation, the judge pronounces sentence.
• This is often done immediately upon the close of defence counsel’s address, but the judge may retire briefly to consider the appropriate sentence and the expression of sentencing remarks.
• In complex or difficult cases there is likely to be a delay, or even an adjournment, between hearing mitigation and pronouncing sentence, especially where written sentencing remarks are to be made available to media representatives, the public or the parties.

Question 35

D20.93 - Giving Reasons

Answer 35

• s.174 CJA 2003 creates an obligation on the judge to give reasons for, and explain the effects of, the sentence passed, save where the sentence is fixed by law or is otherwise mandatory.
• The court must explain in non-technical terms its reasons for deciding on the sentence passed.
• The court must explain the effect of the sentence, and the consequences of non-compliance.
• Statutory obligations to give reasons are also imposed by:
• PCC(S)A 2000, s.130(3) - a court with power to make a compensation order in an offender’s case must explain its reasons for not doing so.
• RTOA 1988, s. 47(1) — where the court does not order disqualification or endorsement on account of special reasons or hardship.
• When the court has taken into account all the evidence, info and report available, the court must–
  (a) as a general rule pass sentence at the earliest opportunity
  (b) when passing sentence:
  (i) explain the reasons
  (ii) explain to the defendant its effect, the consequence of any failure to comply, and any power the court may have to vary or review the sentence, unless the defendant is absent or the defendant’s ill health or disorderly conduct make such an explanation impracticable, and
  (iii) give any explanation in terms the defendant can understand and
  (c) deal with any confiscation, costs and behaviour orders.

Question 36

D20.103 - Purpose of deferring sentence

Answer 36

• Under the PCC(S)A 2000, the purpose for which sentence may be deferred is to enable the court, when it does deal with the offender, to have regard to:
  (a) the offender’s conduct after conviction (including, where appropriate, the offender’s making reparation for the offence), or
  (b) any change in the offender’s circumstances.
• The court must fix the date to which sentence is deferred, the maximum period allowed being six months.
• Subject to an exception mentioned below, sentence may be deferred only once.
• Deferment requires the offender’s consent and the court must be satisfied that exercise of the power would be in the interests of justice. The court dealing with the offender after the period of deferment may exercise any power that the deferring court could have done (save to defer again—subject to the exception that where a magistrates’ court defers sentence and then commits for sentence, the Crown Court may also defer sentence.
• Where there is a requirement to make a referral order on a young offender, the court may not defer passing sentence.

Question 37

D23.1 - Sentencing in the Magistrates

Answer 37

• Sentencing procedure in the magistrates’ courts follows the same basic pattern as in the Crown.
• The duty on the court, under the CAJA 2009, s. 125, to follow any relevant sentencing guidelines, unless satisfied that it would be contrary to the interests of justice to do so, applies to all courts.

Question 38

D23.2 - Adjournments prior to sentence

Answer 38

Magistrates’ Courts Act 1980, s. 10
‘A magistrates’ court may, for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case, exercise its power to adjourn after convicting the accused and before sentencing him or otherwise dealing with him; but, if it does so, the adjournment shall not be for more than four weeks at a time unless the court remands the accused in custody and, where it so remands him, the adjournment shall not be for more than three weeks at a time.’

• although the maximum period for adjournment after conviction is four weeks on bail or three weeks in custody, the court is not obliged to sentence at the end of the first such adjournment but may, if necessary, adjourn again.
• Where an offender is granted bail for a post-conviction adjournment, the court may impose a condition that the offender be available for the purpose of enabling inquiries or a report to be made to assist the court in dealing with the offender for the offence.

Question 39

D23.6 - Presenting facts, character and antecedents

Answer 39

• The procedure to be followed before sentence is passed in a magistrates’ court is essentially the same as in the Crown Court.
• the offender must provide details of financial circumstances.
• The court which passes sentence need not be composed of the justices who convicted the offender but, where the court which is to pass sentence consists of, or includes, justices who were not sitting when the offender was convicted, the court must ‘make such inquiry into the facts and circumstances of the case as will enable the justices who were not sitting when the offender was convicted to be fully acquainted with those facts and circumstances’.

Question 40

D23.7 - Newton hearings in the mags

Answer 40

• an accused who pleads guilty but wants to be sentenced on a different basis to the facts put forward by the prosecution must set out that basis in writing
• The court may invite the parties to make representations about whether the dispute is material to sentence
• If the court decides that it is a material dispute, the court will invite ‘such further representations or evidence as it may require’ and then decide the dispute.
• magistrates should follow the procedure laid down in Newton and (if they are unwilling simply to accept the defence version of events) hear evidence (i.e. hold a Newton hearing) and then make findings of fact and sentence accordingly.
• Where there are co-accused, and one pleads not guilty and the other pleads guilty but on a factual basis that the prosecution do not accept, the magistrates should ‘almost invariably’ adopt the procedure applicable in the Crown Court, namely for the Newton hearing in respect of the person who has pleaded guilty to take place after the conclusion of the trial of the accused who pleaded not guilty.

Question 41

D23.8 - Majority decision in mags

Answer 41

• the decision as to sentence may be by a majority of those sitting.
• In the event of an equal division, the court should adjourn under the MCA 1980, s. 10 (adjournments after conviction and before sentence), for the matter to be reconsidered at the resumed hearing.

Question 42

D23.9 - Reasons and explanation in the mags

Answer 42

• when passing sentence, the court must (unless neither the offender nor any member of the public is present) explain the reasons for deciding on that sentence.
• Unless the offender is absent, or the offender’s ill-health or disorderly conduct makes it impracticable to do so, the court must also explain the effect of the sentence, the consequences of failing to comply with any requirements imposed, and any power that the court has to vary or review the sentence.
• The court must identify any relevant definitive sentencing guidelines and explain how it has discharged its duty to follow those guidelines; where the court did not follow any such guidelines because it was satisfied that it would be contrary to the interests of justice to do so, it must state why.

Question 43

D23.14 - Offences triable either way in the mags

Answer 43

• The maximum sentence that magistrates may currently impose upon an offender summarily convicted of an either-way offence is six months’ imprisonment and/or a fine of any amount.
• The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (SI 2015 No. 664) make specific provision for maximum fines for a large number of specific offences.

Question 44

D23.16 - Summary offences

Answer 44

• The maximum sentence of imprisonment (if any) for a summary offence is six months or that prescribed by the statute creating the offence, whichever is the less.
• this is subject to the six-month ceiling being expressly overridden by any other enactment.
• fines are usually fixed by reference to a level on the standard scale of fines rather than by reference to a specific sum of money
• there is no restriction on the aggregate fine that may be imposed.

Question 45

D23.17 - Aggregate Prison Terms

Answer 45

• Magistrates sentencing an offender for several offences and imposing imprisonment for two or more of them may make the terms concurrent or consecutive.
• This is subject to the maximum aggregate term that a magistrates’ court may impose on one occasion for more than one summary offence, which is six months.
• Where a magistrates’ court is sentencing for two or more either-way offences, the maximum aggregate term of imprisonment becomes 12 months.
• Where magistrates have power to deal with an offender for breach of a suspended sentence, they may (if they choose to activate part or all of the suspended term) make it run consecutively to any term of imprisonment they impose for the offences that put the offender in breach.
• In such a case, the aggregate of the suspended term and the terms for the present offences may exceed the aggregate normally permitted.
• e.g. if the offender is in breach of a six-month suspended sentence and has been convicted of two either-way offences, the magistrates’ court could impose six months on each ‘breach’ offence to run consecutively, and activate the suspended sentence, also to run consecutively, thereby making a total aggregate sentence of 18 months.

Question 46

D23.19 - Compensation orders

Answer 46

Where the offender has attained the age of 18, there is no limit on the amount of compensation that a magistrates’ court may order.

Question 47

D23.20 - Detention in a Young Offender Institution

Answer 47

• A magistrates’ court may impose a sentence of detention in a young offender institution on an offender aged 18 to 20.
• The court’s powers are limited to the same extent as are their powers to imprison offenders who have attained the age of 21.
• Where the offender is under the age of 18 (at the date of conviction), a youth court may impose a detention and training order, for which the maximum duration is 24 months (12 months’ custody and 12 months’ supervision in the community).

Question 48

D23.21 - Non-custodial Sentences

Answer 48

The powers of magistrates’ courts as regards non-custodial sentences, including community orders, are identical to those of the Crown Court.

Question 49

D23.30 - Committal under the PCC(S)A 2000, s3

Answer 49

• applies where a magistrates’ court has convicted an offender of one or more either-way offences and the court takes the view that the seriousness of the offence(s) is such that its sentencing powers are inadequate.
• In such a case, the magistrates’ court may commit the offender (in custody or on bail) to the Crown Court to be sentenced. The Crown Court can then pass sentence on the offender as if convicted on indictment, and so the limitations on the magistrates’ sentencing powers do not apply.

Question 50

D23.42 - Committal for sentencing under the PCC(S)A 2000, s.4

Answer 50

• where the accused has indicated a guilty plea to an either-way offence (and so is deemed to have pleaded guilty to it) and is also sent for trial for one or more related offences, the magistrates may commit the offender to the Crown Court for sentence in respect of the either-way offence to which he or she has pleaded guilty.
• For the purposes of these provisions, one offence is related to another if the charges for them could be joined in the same indictment if both charges were to be tried in the Crown Court. Thus, the two charges must be founded on the same facts or must be, or be part of, a series of offences of the same or a similar character.
• where the magistrates’ court has committed an offender for sentence pursuant to s.4, the Crown Court can exceed the sentencing powers of the magistrates’ court in respect of the either-way offence so committed only if either:
  (a) the magistrates stated that they considered their sentencing powers were inadequate to deal with the offender for that offence.
  (and so they also had power to commit the offender for sentence under s.3)
  (b) the offender is convicted by the Crown Court of one or more of the related offences.

Question 51

D23.55 - Committal under PCC(S)A 2000, s.6

Answer 51

• gives a power to commit for sentence which may be used to supplement a committal under the provisions listed in s.6(4), which include committal for sentence under ss.3-4, committal for sentence in respect of the breach of a conditional discharge imposed by the Crown Court, and committal where the offender commits a further offence during the operational period of a suspended sentence imposed by the Crown Court. These committal powers are referred to below as ‘primary’ committal powers.
• By virtue of the PCC(S)A 2000 s.6(2), when a magistrates’ court exercises a ‘primary’ committal power in respect of an indictable offence (in this context, an either-way offence), it may also commit the offender to the Crown Court to be dealt with in respect of any other offence of which he or she stands convicted (whether summary or indictable).
• The reason a committal under s.3 would be inappropriate is that, because the offence is not sufficiently serious, the magistrates’ powers of sentencing for it are adequate.

Question 52

E2.1 - Order for absolute discharge

Answer 52

• ‘order for absolute discharge’ means an order discharging an offender absolutely in respect of an offence.
• An order for absolute discharge is available to a court dealing with an offender for an offence where—
  (a) the offender is convicted by or before the court, and
  (b) the offence is not one in relation to which a mandatory sentence requirement applies.
• Where it is available, the court may make an order for absolute discharge if it is of the opinion that it is inexpedient to inflict punishment, having regard to the circumstances, including—
  (a) the nature of the offence, and
  (b) the character of the offender.
• Nothing in this section is to be taken to prevent a court, on discharging an offender absolutely in respect of an offence, from—
  (b) making any of the following orders in respect of the offence—
  (i) a compensation order
  (ii) deprivation orders
  (iii) a restitution order
  (iv) an unlawful profit order under s.4 of the Prevention of Social Housing Fraud Act 2013
  (c) making an order under section 46 (criminal courts charge), or
  (d) making an order for costs against the offender.

Question 53

E2.2 - Use of Absolute Discharge

Answer 53

• The power to grant an absolute discharge is available to all criminal courts whatever the age of the offender and whatever the offence committed.
• An absolute discharge is not a community sentence. Its imposition may reflect the triviality of the offence, the circumstances in which it came to be prosecuted, or special factors relating to the offender.
• Where an offence is dealt with by way of an absolute discharge, no surcharge is payable.
• An absolute discharge cannot be combined with a punitive measure for the same offence except where permitted by statute.
• If, however, an offender is given an absolute discharge for one of a number of offences, the court is free to exercise its normal powers of sentence with respect to the other offences.
• An absolute discharge may be combined with an order to disqualify a person from acting as a company director or with a recommendation for deportation.
• a football banning order cannot be made where the offence has been dealt with by way of an absolute discharge.
• a confiscation order can be made on an offender who has been sentenced by way of a discharge.

Question 54

E2.3 - Order for Conditional Discharge

Answer 54

• ‘order for conditional discharge’ means an order discharging an offender for an offence subject to the condition that the offender commits no offence during the period specified in the order
• An order for conditional discharge is available to a court dealing with an offender for an offence where—
  (a) the offender is convicted by or before the court, and
  (b) the offence is not one in relation to which a mandatory sentence requirement applies.
• But see the following for circumstances where an order for conditional discharge is not available—
  (a) section 66ZB(6) of the Crime and Disorder Act 1998 (effect of youth cautions);
  (b) section 66F of that Act (youth conditional cautions);
  (c) section 103I(4) of the Sexual Offences Act 2003 (breach of sexual harm prevention order and interim sexual harm prevention order etc);
  (d) section 339(3) (breach of criminal behaviour order);
  (e) section 354(5) (breach of sexual harm prevention order);
  (f) section 39(6) of the Domestic Abuse Act 2021 (breach of domestic abuse protection order).
• Where it is available, the court may make an order for conditional discharge if it is of the opinion that it is inexpedient to inflict punishment, having regard to the circumstances, including—
  (a) the nature of the offence, and
  (b) the character of the offender.
• The period of conditional discharge specified in an order for conditional discharge must be a period of not more than 3 years beginning with the day on which the order is made.
• On making an order for conditional discharge, the court may, if it thinks it expedient for the purpose of the offender’s reformation, allow any person who consents to do so to give security for the good behaviour of the offender.
• (7) Nothing in this section prevents a court, on making an order for conditional discharge in respect of an offence, from—
  (a) imposing any disqualification on the offender,
  (b) making any of the following orders in respect of the offence—
  (i) a compensation order (see section 133),
  (ii) an order under section 152 (deprivation orders), or
  (iii) a restitution order (see section 147), or
  (iv) an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013,
  (c) making an order under section 46 (criminal courts charge), or
  (d) making an order for costs against the offender.

Question 55

E2.4 - Conditional discharges

Answer 55

• When a discharge is conditional, the sole condition is that the offender should commit no further offence during the period of the conditional discharge. No other condition or requirement may be inserted.
• The period of the conditional discharge is fixed by the court but must not exceed three years.
• The power to grant a conditional discharge is available to all criminal courts whatever the age of the offender and whatever the offence committed.
• A conditional discharge cannot be combined with a punitive measure for the same offence except where permitted by statute.
• permits the combination of a conditional discharge with ‘any disqualification’. Thus, for example, a conditional discharge may be combined with an order for disqualification from driving.
• A conditional discharge may be combined with an order to disqualify a person from acting as a company director, an exclusion order under the Licensed Premises (Exclusion of Certain Persons) Act 1980, a serious crime prevention order, a criminal behaviour order, or with a recommendation for deportation. A football banning order can be made where the offence has been dealt with by way of a conditional (but not an absolute) discharge.
• confiscation order can be made on an offender who has been sentenced by way of a discharge.
• any court may, on making an order for conditional discharge, allow any person who consents to do so to give security for the good behaviour of the offender. When making such an order the court should specify the type of conduct from which the offender is to refrain.

Question 56

E2.5 - Breach of Conditional Discharge

Answer 56

• A conditional discharge can be breached only by the conviction of the offender of a further offence committed during the period of the discharge.
• A court dealing with the breach (the Crown Court if it made the conditional discharge, or the magistrates’ court if it made it) may sentence the offender for the original offence in any manner in which it could have done if the offender had just been convicted before the court for that offence, but the Crown Court dealing with a person conditionally discharged by a magistrates’ court is limited to the lower court’s powers.
• One magistrates’ court may deal with breach of a conditional discharge imposed by a different magistrates’ court, but only with the consent of the original magistrates’ court.
• in relation to an offender who was aged under 18 when first convicted, the court may re-sentence that offender in any way in which it could deal with the offender if he or she were the same age as when convicted.
• Sentencing for the original offence always terminates the conditional discharge itself, but any order for compensation or costs made at the time of the discharge remains valid.

Question 57

E5.1 - Powers of Crown Court to Impose Fines

Answer 57

• A fine is available to the Crown Court where it is dealing with an offender who is convicted on indictment for an offence—
  (a) instead of, or
  (b) in addition to,
  dealing with the offender in any other way which is available to the court.(a) instead of, or
  (b) in addition to,
  dealing with the offender in any other way which is available to the court.
• does not apply where the offence is one in relation to which a mandatory sentence requirement applies by virtue of any of the following provisions of section 399—
  (i) paragraph (a) (life sentence for murder etc),
  (ii) paragraph (b) (other mandatory life sentences), or
  (iii) paragraph (c)(iv) (minimum sentence for third domestic burglary offence),
  (b) is subject to any other enactment requiring the offender to be dealt with in a particular way, and
  (c) does not apply if the court is precluded from sentencing the offender by its exercise of some other power.
• A fine cannot be combined with a hospital order nor with an absolute or conditional discharge when sentencing for a single offence.

Question 58

E5.2 - Order for payment of fine

Answer 58

When the Crown Court imposes a fine on an offender, it may make an order—

(a) allowing time for the payment of the fine, or
(b) directing payment of the fine by instalments of the amounts and on the dates specified in the order.

Question 59

E5.3 - Duty of Crown Court to Fix Term in Default

Answer 59

• applies when the Crown Court imposes a fine on an offender who is aged 18 or over when convicted of the offence.
• does not apply in relation to a fine imposed by the Crown Court on appeal against a decision of a magistrates’ court.
• also applies in relation to a fine imposed on such an offender—
  (a) by the criminal division of the Court of Appeal, or
  (b) by the Supreme Court on appeal from that division.
• The court must make an order (a ‘term in default order’) fixing a term—
  (a) of imprisonment, or
  (b) of detention under section 108 of the Powers of Criminal Courts (Sentencing) Act 2000, which the offender is to undergo if any sum which the offender is liable to pay is not duly paid or recovered.

Question 60

E5.8 - Fines in the magistrates

Answer 60

• A fine is available to a magistrates’ court dealing with an offender for an offence if under the relevant offence provision a person who is convicted of that offence is liable to a fine.
• If under the relevant offence provision the offender is liable to—
  (a) a fine of a specified amount,
  (b) a fine of not more than a specified amount,
  the amount of the fine—
  (i) must not be more than that amount, but
  (ii) may be less than that amount.
• This is subject to—
  (a) section 121 (availability: fines not to be combined with certain other orders);
  (b) section 123 (limit on fines imposed by magistrates’ courts in respect of young offenders).
• The magistrates’ court may impose a fine instead of sentencing the offender to imprisonment or other detention
• In the case of an offence which—
  (a) is triable either way, and
  (b) was committed before 12 March 2015,
  a fine imposed under the above may not exceed the prescribed sum (within the meaning of section 32 of the Magistrates’ Courts Act 1980).
• In the case of such a fine for a summary offence- (a) the amount of the fine may not exceed level 3 on the standard scale, and
  (b) the default term must not be longer than the term of imprisonment or detention to which the offender is liable on conviction of the offence.

Question 61

E5.14 - Sentencing principles for fines

Answer 61

• ‘Before fixing the amount of any fine to be imposed on an offender who is an individual, a court must inquire into the offender’s financial circumstances.’
• The court must always take into account the offender’s financial circumstances as well as the seriousness of the offence, and the circumstances of the case.
• where an individual has been convicted of an offence, the court may, before sentencing, make a ‘financial circumstances order’ with respect to the individual. Both magistrates’ courts and the Crown Court may make such an order. Where a magistrates’ court has been notified in accordance with the MCA 1980, s. 12(4), that an individual wishes to plead guilty without appearing before the court, the court also has power to make a financial circumstances order.
• A ‘financial circumstances order’ is an order requiring the relevant individual ‘to give to the court, before the end of the period specified in the order, such a statement of the individual’s assets and other financial circumstances as the court may require’.
• An individual who, without reasonable excuse, fails to comply with a financial circumstances order is liable on summary conviction to a fine not exceeding level 3.
• if such individual makes, in pursuance of a financial circumstances order, a statement which the individual knows to be false in a material particular, is reckless as to its falsity or knowingly fails to disclose any material fact, he or she is liable on summary conviction to a fine not exceeding level 4.

Question 62

E5.16 - Proportionality to Gravity of Offence

Answer 62

• a key principle in relation to the use of the fine, whether in the Crown Court or in magistrates’ courts, is that the selection of the fine as a sentence, and the determination of the appropriate level of any fine, should reflect the seriousness of the offence.
• in a particular case the effect of a guilty plea may be to reduce a community sentence to a fine, in which case there should normally be no further reduction of the fine to reflect the plea of guilty.
• The imposition of the maximum available fine should be reserved for the most serious instances of the offence which are reasonably likely to occur. The existence of significant mitigation, such as the offender’s guilty plea, should normally preclude the imposition of the maximum fine.

Question 63

E5.18 - Taking into Account Financial Circumstances of Offender

Answer 63

The imposition of a fine which is beyond the means of the offender is wrong in principle.

Question 64

E5.19 - Where offender lacks means to pay the fine

Answer 64

• Where the offender lacks the means to pay the level of fine which is proportionate to the seriousness of the offence, it is contrary to principle to impose a custodial sentence instead.
• Where the offender is well-off and paying the fine proportionate to the offence would cause little inconvenience, it is contrary to principle to impose a custodial sentence instead.
• it is appropriate to raise the level of the fine in such a case, so as to increase its impact on the offender, although there must remain some proportionality between the offence and the fine.
• The principle that a rich offender must not be permitted to ‘buy his way out of prison’ is a fundamental one, and it applies equally where the offender has family or friends who are able to meet a substantial fine.
• In the case of a very wealthy individual, as with a large company, the fine should be paid immediately, or within a few days, unless there was cogent evidence that more time was required.
• The requirement that the court should adjust the level of the fine in accordance with the offender’s means entails that the court should not assume that someone other than the offender will be paying the fine.

Question 65

E5.21 - Instalments Should Require Payment within a Reasonable Time

Answer 65

• The Magistrates’ Court Sentencing Guidelines state that ‘normally a fine should be of an amount that is capable of being paid within 12 months’ however, it was held by the Court of Appeal that the maximum time is not limited to 12 months.
• there is nothing wrong in principle in the period of payment being longer, indeed much longer than one year, providing it is not an undue burden and so too severe a punishment having regard to the nature of the offence and the nature of the offender.
• There is an exception in relation to corporate defendants, where the fine may be payable over a substantially longer period than for an individual.

Question 66

E5.22 - Combining Fines with Other Sentences or Orders

Answer 66

With some exceptions, there is no restriction on combining fines with imprisonment or other custodial sentences, whether in respect of the same offence or different offences sentenced on the same occasion, though this will not often be a desirable combination, since incarceration may well deprive the offender of the means to pay the fine.

Question 67

E12.2 - Criteria for the Imposition of Community Order

Answer 67

• The court must not make a community order unless it is of the opinion that—
  (a) the offence, or
  (b) the combination of the offence and one or more offences associated with it,
  was serious enough to warrant the making of such an order.
• the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors.
• The pre-sentence report requirements apply to the court in relation to forming that opinion.
• The fact that the court may make a community order does not require it to do so.

Question 68

E12.6 - Reports

Answer 68

• Whenever a court is considering whether to impose a community sentence, and what restrictions to put on the offender’s liberty as part of that sentence, the court must take into account all the information available to it, including information about the offence and about the offender. Before imposing a community sentence, the sentencing court must normally obtain a pre-sentence report but the court need not obtain such a report if it considers it ‘unnecessary’ to do so.
• Imposition of Community and Custodial Sentences guideline: ‘in many cases a pre-sentence report will be pivotal in helping the court to decide whether to impose a community order’.
• ‘ideally a pre-sentence report should be completed on the same day to avoid adjourning the case’.

Question 69

E12.8 - Community Order Requirements

Answer 69

The requirements are:

(a) unpaid work requirement
(b) rehabilitation activity requirement ;
(c) programme requirement ;
(d) prohibited activity requirement;
(e) curfew requirement;
(f) exclusion requirement;
(g) residence requirement;
(h) foreign travel prohibition order requirement;
(i) mental health treatment requirement;
(j) drug rehabilitation requirement;
(k) alcohol treatment requirement;
(l) alcohol abstinence and monitoring requirement;
(m) attendance centre requirement;
(n) electronic compliance monitoring requirement;
(o) electronic whereabouts monitoring requirement.
- the alcohol abstinence and monitoring requirement is not available unless regulations are in force under para. 25(7) of sch. 9
- an attendance centre order is not available unless the offender is aged under 25 when convicted of the offence
- an electronic compliance monitoring requirement is not available unless the community order imposes at least one other requirement other than an alcohol abstinence and monitoring requirement or an electronic whereabouts monitoring requirement.

Question 70

E12.11 - Unpaid Work Requirement

Answer 70

• The number of hours of unpaid work which may be ordered by the court must be not less than 40 and not more than 300.
• Before inserting an unpaid work requirement into a community order, the court must, if it thinks necessary, hear from an appropriate officer that the offender is a suitable person to perform work under the requirement and that local arrangements exist for the requirement to be carried out.
• The appropriate officer is an officer of the local probation board or an officer of a provider of probation services.
• The best approach, if unpaid work was not available at the time of sentencing, was to order the work to be carried out within 12 months, as and when such work became available.
• If the court makes community orders on the offender in respect of two or more offences of which the offender has been convicted on the same occasion and includes unpaid work requirements in each of them, the court may direct that the hours of work run concurrently or consecutively, but the total number of hours must not exceed 300.
• The work required should normally be completed within 12 months.
• A community order with a single requirement of unpaid work is always a community order for 12 months and completion of the hours in less than 12 months does not affect the legal status of the order.
• Unless revoked, a community order imposing an unpaid work requirement remains in force until the offender has worked under it for the number of hours specified.
• a failure to complete the required number of hours within the normal 12 months places the offender in breach of the community order, and the probation service may then apply to the court either to initiate breach or to extend the 12-month period.
• The court may order an extension irrespective of whether the normal 12-month period has expired or whether the end date specified in the community order has passed.

Question 71

E12.12 - Rehabilitation Activity Requirement

Answer 71

• A rehabilitation activity requirement is a requirement that, during the relevant period, the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both.
• the relevant period means (i) in relation to a community order, the period for which the community order is in force, and (ii) in relation to a suspended sentence, the supervision period.
• The court does not prescribe the activities to be undertaken but must specify the maximum number of days the offender must complete.

Question 72

E12.13 - Programme Requirement

Answer 72

• a programme requirement is a requirement that the offender must in accordance with instructions given by the responsible officer participate in an accredited programme at a particular place on a number of days which must be specified in the order.
• ‘where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement can be a proper alternative to a short or moderate length custodial sentence’.
• failure to specify that a programme needed to be complied with, and to specify the number of days, renders the order unlawful.

Question 73

E12.14 - Prohibited Activity Requirement

Answer 73

• The court can require an offender to refrain from participating in certain activities, on a specified day or days (such as attending football matches), or over a specified period of time.
• Before inserting a prohibited activity requirement into a community sentence, the court must consult an officer of a local probation board or an officer of a provider of probation services.
• The primary purpose of a prohibited activity requirement is to prevent or reduce the risk of further offending, so the requirement should address, and be proportionate to, that risk.

Question 74

E12.15 - Curfew Requirement

Answer 74

• a curfew requirement is a requirement that the offender must remain at a place specified by the court for certain periods of time (curfew periods).
• These periods of time must be not less than two hours and not more than 16 hours in any given day.
• A curfew requirement within a community order may not specify periods which fall outside the period of 12 months beginning with the date on which the order was made.
• Before inserting a curfew requirement into a community order, the court must obtain and consider information about the place(s) proposed to be specified in the order, including information as to the attitude of persons likely to be affected by the enforced presence there of the offender.
• Where the court makes a community sentence which includes a curfew requirement, it must normally also impose an electronic monitoring requirement unless the court considers it inappropriate to do so.

Question 75

E12.16 - Exclusion Requirement

Answer 75

• an exclusion requirement is a requirement which prohibits an offender from entering a specified prohibited place, or places, or area (such as a specified town centre), during a period specified in the order.
• It may also be used as a means of keeping the offender away from a specified person, in which case the person for whose protection the order is made should be given a copy of the requirement made by the court.
• An exclusion requirement in a community order cannot last longer than two years.
• Where the court makes a community order which includes an exclusion requirement, it must normally also impose an electronic compliance monitoring requirement unless the court considers it inappropriate to do so.
• Since the primary purpose of an exclusion requirement is to prevent, or at least reduce the risk of, further offending, such a requirement should be proportionate to the risk of further offending.
• It has been held unlawful for a court to seek to expel an offender from the UK by way of an exclusion requirement within a community order.

Question 76

E12.17 - Residence Requirement

Answer 76

• A residence requirement is a requirement that the offender resides at a place specified in the order for a specified period of time.
• The order may in addition permit the offender to reside at some other place with the prior approval of the responsible officer.
• A court may not specify residence at a hostel or other institution except on the recommendation of an officer of a local probation board or an officer of a provider of probation services.
• Before making a residence requirement, the court must consider the home surroundings of the offender.

Question 77

E12.19 - Mental Health Treatment Requirement

Answer 77

• The mental health treatment requirement is a requirement that the offender must, during a period or periods specified in the order, submit to mental health treatment, in the form of in-patient treatment, out-patient treatment or practitioner-based treatment, by or under the direction of a registered medical practitioner or registered psychologist.
• Before the court can insert a mental health treatment requirement, it must be satisfied that the mental condition of the offender is such as requires and may be susceptible to treatment but is not such as to warrant the making of a hospital order or a guardianship order.
• The court must also be satisfied that arrangements have been made or can be made for the treatment to be specified in the order, and that the offender has expressed willingness to comply with such an order.
• The supervising officer will supervise the offender only to the extent necessary for revoking or amending the order.
• the registered medical practitioner or chartered psychologist may subsequently to change the place at which the offender is to receive treatment to a place where treatment can be better or more conveniently given.
• The registered medical practitioner or registered psychologist must notify in writing the responsible officer in advance, and the offender must consent to any such change.

Question 78

E12.20 - Drug Rehabilitation Requirement

Answer 78

• the court may insert into a relevant order a drug rehabilitation requirement, which includes drug treatment and testing. It requires that, during a period specified in the order (the treatment and testing period), the offender must submit to treatment by or under the direction of a specified person having the necessary qualifications or experience and must provide samples, at such times and in such circumstances as are requested, to determine whether the offender has any drug in his or her body during that period
• Before imposing a drug rehabilitation requirement, the court must be satisfied that the offender is dependent on, or has a propensity to misuse, any controlled drug and that the dependency or propensity is such as requires and may be susceptible to treatment.
• The court must also be satisfied that arrangements have been made or can be made for the proposed treatment and that the insertion of a drug rehabilitation requirement has been recommended to the court as being suitable for the offender by an officer of a provider of probation services.
• The offender must express willingness to comply with the requirement.
• There is no minimum period for the treatment and testing requirement.
• The Secretary of State may by order amend the periods of time which can be specified in a drug rehabilitation requirement.

Question 79

E12.23 - Alcohol Treatment Requirement

Answer 79

• the court may insert into a community order an alcohol treatment requirement. It requires that, during a period specified in the order, the offender must submit to treatment by or under the direction of a specified person having the necessary qualifications or experience with a view to the reduction or elimination of the offender’s dependency on alcohol.
• Before imposing an alcohol treatment requirement, the court must be satisfied that the offender is dependent on alcohol and that the dependency is such as requires and may be susceptible to treatment.
• The court must also be satisfied that arrangements have been made or can be made for the proposed treatment.
• The offender must express willingness to comply with the requirement.
• Treatment may take the form of treatment as a resident in a specified institution or place, or treatment as a non-resident or treatment by or under the direction of such person having the necessary qualification or experience.

Question 80

E12.25 - Attendance Centre Requirement

Answer 80

• An attendance centre requirement is available only in respect of offenders aged under 25 years.
• the offender must attend at an attendance centre specified in the relevant order for a specified number of hours which must be not less than 12 nor more than 36.
• The offender must not be required to attend more than once on any single day or for more than three hours on any occasion.
• The court cannot make an attendance centre requirement unless satisfied that there is an attendance centre available locally and that the attendance centre order specified is reasonably accessible to the offender.
• The responsible officer will notify the offender of the date and time required for the first attendance, and subsequent hours are fixed by the officer in charge of the attendance centre.

Question 81

E12.26 - Electronic Monitoring Requirement

Answer 81

• There are two forms of electronic monitoring requirement: an electronic compliance monitoring requirement and an electronic whereabouts monitoring requirement.
• the court passing a relevant order may require the electronic monitoring of the offender’s compliance with any of the other requirements in the order.
• Where the court makes a relevant order which includes a curfew requirement or an exclusion requirement, the relevant area is the area in which the place proposed to be specified in the order is situated.
• The periods of electronic monitoring can be specified by the court in the order, or set by the responsible officer.
• If the court is proposing to include such a requirement but there is a person, other than the offender, without whose co-operation it will not be practicable to secure the monitoring, the requirement cannot be included without that person’s consent.
• may not be included in the order for the purposes of monitoring compliance with an alcohol abstinence and monitoring requirement, unless the electronic monitoring requirement is in place for the purpose of monitoring compliance with a different requirement in the order.
• electronic monitoring may be ordered as a free-standing requirement of a community order.

Question 82

E12.27 - Enforcement of Community Orders

Answer 82

• Conviction for a further offence does not constitute breach of a community order.
• 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 a warning describing the circumstances of the failure, stating that the failure is unacceptable, and informing the offender that if within the next 12 months he or she again fails to comply with any requirement of the order, he or she will be brought back before the court.
• The responsible officer need not give a warning if a previous warning was given within the preceding 12 months or if the matter is referred to an enforcement officer. If there has been a warning, and within 12 months there is a further failure without reasonable excuse to comply, the responsible officer must refer the matter to an enforcement officer.
• The enforcement officer is then under a duty ‘to consider the matter and, where appropriate, to cause an information to be laid’ in respect of the failure to comply.
• The mere fact that D has lodged an appeal against conviction or against sentence does not amount to a reasonable excuse for non-compliance with a community order.

Question 83

E12.29 - Breach of Community Order

Answer 83

• The Crown Court may have included in the community order a direction that any breach of the order is to be dealt with by the magistrates’ court. If no such direction has been made, any breach will be dealt with in the Crown Court.
• The offender must be sentenced on the basis of his or her age when the original order was made. Any breach should either be admitted by the offender or be formally proved to the criminal standard of proof.
• the prosecution should be in a position to put before the court the facts of the original offence, at least in outline, as well as the facts of the breach.
• If it is proved to the satisfaction of the court before which the offender is brought that he or she has failed without reasonable excuse to comply with any of the requirements of the community order, the court must deal with the offender in one of the following ways:
  (a) by ordering the offender to pay a fine not exceeding £2,500;
  (b) by amending the terms of the community order so as to impose more onerous requirements which the court could include if it had just convicted the offender of the offence in respect of which the order was made and were then making the order;
  (c) if the community order was made by a magistrates’ court, by re-sentencing the offender for the offence in respect of which the order was made.
• where the offender has wilfully and persistently breached the requirements of the community order, the court may impose a custodial sentence.
• The court must deal with the breach in one of the ways specified. There is no power to take ‘no action’ on breach.
• the magistrates’ court must take into account the extent to which the offender has complied with the requirements of the community order.
• the court may extend the duration of particular requirements (subject to statutory limitations on the maximum duration of particular requirements). The court may extend the duration of the order for up to six months beyond the original end date even if that involves the total duration of the order exceeding three years.
• Such an extension may be exercised only once.
• If the court proceeds to re-sentence the offender, it must revoke the community order if it is still in force.
• a court dealing with breach must always consider the nature of the breach and the extent of compliance with the order. If the breach report indicated that the probation service wished to continue working with the offender, that should be given considerable weight.

Question 84

E12.30 - powers of the Crown Court when dealing with a breach of a community order

Answer 84

• The offender must be sentenced on the basis of his or her age when the original order was made.
• Any breach should either be admitted by the offender or be formally proved to the criminal standard of proof.
• and the prosecution should be in a position to put before the court the facts of the original offence, at least in outline, as well as the facts of the breach.
• If it is proved to the satisfaction of the court before which the offender is brought that he or she has failed without reasonable excuse to comply with any of the requirements of the community order, the court must deal with the offender in one of the following ways:
  (a) by ordering the offender to pay a fine of an amount not exceeding £2,500;
  (b) by amending the terms of the community order so as to impose more onerous requirements which the Crown Court could include if the offender had just been convicted of the offence in respect of which the order was made and it were then making the order; or
  (c) by re-sentencing the offender for the offence in respect of which the order was made.
• where the offender has wilfully and persistently breached the requirements of the community order and the court is dealing with the offender, the court may impose a custodial sentence.
• The court must deal with the breach in one of the ways specified. There is no power to take ‘no action’ on breach.
• the Crown Court must take into account the extent to which the offender has complied with the requirements of the community order.
• Since time served on remand is deducted automatically from a custodial sentence, the judge dealing with an offender for breach of a community order by revoking the order and imposing custody has no power to direct that the time spent on remand shall not count.

Question 85

E12.31 - Revocation of Community Order

Answer 85

• powers of a magistrates’ court and the Crown Court considering revocation of a community order where, on application by the offender or by an officer of a provider of probation services, having regard to changed circumstances since the order was made, it is in the interests of justice to revoke the order or to revoke the order and deal with the offender for the offence in some other way
• These circumstances include the offender making good progress under the order or responding satisfactorily to the requirements in the order.
• if the community order was made by a magistrates’ court and if it appears to be in the interests of justice to do so, having regard to the circumstances which have arisen since the order was made, the magistrates’ court may (a) revoke the community order, or (b) both revoke the order and re-sentence the offender for the offence in respect of which the order was made.
• If the community order was made by the Crown Court, the magistrates’ court may instead commit the offender in custody or release the offender on bail to appear before the Crown Court.

Question 86

E12.32 - Amendment of Community Order

Answer 86

• various forms of amendment to requirements in a community order may be made by an appropriate court, on application by the offender or an officer of a provider of probation services:
  (a) because of a change in the offender’s residence, or
  (b) for amendment of requirements in the order, or
  (c) to change a treatment requirement on the report of a medical practitioner, or
  (d) for amending the order by substituting a later end date than that originally specified, which may have the effect of extending the order beyond the normal maximum of three years but not so as to extend the order by more than six months from the end date originally specified , and
  (e) to extend the period of 12 months for completion of an unpaid work requirement .