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Powers of Criminal Courts (Sentencing) Act 2000

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Part IE+W POWERS EXERCISABLE BEFORE SENTENCE

Deferment of sentenceE+W

1 Deferment of sentence.E+W

(1)The Crown Court or a magistrates’ court may defer passing sentence on an offender for the purpose of enabling the court, or any other court to which it falls to deal with him, to have regard in dealing with him to—

(a)his conduct after conviction (including, where appropriate, the making by him of reparation for his offence); or

(b)any change in his circumstances;

but this is subject to subsections (2) and (3) below.

(2)The power conferred by subsection (1) above shall be exercisable only if—

(a)the offender consents; and

(b)the court is satisfied, having regard to the nature of the offence and the character and circumstances of the offender, that it would be in the interests of justice to exercise the power.

(3)Any deferment under this section shall be until such date as may be specified by the court, not being more than six months after the date on which the deferment is announced by the court; and, subject to section 2(7) below, where the passing of sentence has been deferred under this section it shall not be further so deferred.

(4)Notwithstanding any enactment, a court which under this section defers passing sentence on an offender shall not on the same occasion remand him.

(5)Where the passing of sentence on an offender has been deferred by a court under this section, the court’s power under this section to deal with the offender at the end of the period of deferment—

(a)is power to deal with him, in respect of the offence for which passing of sentence has been deferred, in any way in which it could have dealt with him if it had not deferred passing sentence; and

(b)without prejudice to the generality of paragraph (a) above, in the case of a magistrates’ court includes the power conferred by section 3 below to commit him to the Crown Court for sentence.

(6)Nothing in this section or section 2 below shall affect—

(a)the power of the Crown Court to bind over an offender to come up for judgment when called upon; or

(b)the power of any court to defer passing sentence for any purpose for which it may lawfully do so apart from this section.

2 Further powers of courts where sentence deferred under section 1.E+W

(1)A court which under section 1 above has deferred passing sentence on an offender may deal with him before the end of the period of deferment if during that period he is convicted in Great Britain of any offence.

(2)Subsection (3) below applies where a court has under section 1 above deferred passing sentence on an offender in respect of one or more offences and during the period of deferment the offender is convicted in England or Wales of any offence (“the later offence”).

(3)Where this subsection applies, then (without prejudice to subsection (1) above and whether or not the offender is sentenced for the later offence during the period of deferment), the court which passes sentence on him for the later offence may also, if this has not already been done, deal with him for the offence or offences for which passing of sentence has been deferred, except that—

(a)the power conferred by this subsection shall not be exercised by a magistrates’ court if the court which deferred passing sentence was the Crown Court; and

(b)the Crown Court, in exercising that power in a case in which the court which deferred passing sentence was a magistrates’ court, shall not pass any sentence which could not have been passed by a magistrates’ court in exercising that power.

(4)Where—

(a)a court which under section 1 above has deferred passing sentence on an offender proposes to deal with him, whether on the date originally specified by the court or by virtue of subsection (1) above before that date, or

(b)the offender does not appear on the date so specified,

the court may issue a summons requiring him to appear before the court, or may issue a warrant for his arrest.

(5)In deferring the passing of sentence under section 1 above a magistrates’ court shall be regarded as exercising the power of adjourning the trial conferred by section 10(1) of the M1Magistrates’ Courts Act 1980, and accordingly sections 11(1) and 13(1) to (3A) and (5) of that Act (non-appearance of the accused) apply (without prejudice to subsection (4) above) if the offender does not appear on the date specified under section 1(3) above.

(6)Any power of a court under this section to deal with an offender in a case where the passing of sentence has been deferred under section 1 above—

(a)is power to deal with him, in respect of the offence for which passing of sentence has been deferred, in any way in which the court which deferred passing sentence could have dealt with him; and

(b)without prejudice to the generality of paragraph (a) above, in the case of a magistrates’ court includes the power conferred by section 3 below to commit him to the Crown Court for sentence.

(7)Where—

(a)the passing of sentence on an offender in respect of one or more offences has been deferred under section 1 above, and

(b)a magistrates’ court deals with him in respect of the offence or any of the offences by committing him to the Crown Court under section 3 below,

the power of the Crown Court to deal with him includes the same power to defer passing sentence on him as if he had just been convicted of the offence or offences on indictment before the court.

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Marginal Citations

Committal to Crown Court for sentenceE+W

3 Committal for sentence on summary trial of offence triable either way.E+W

(1)Subject to subsection (4) below, this section applies where on the summary trial of an offence triable either way a person aged 18 or over is convicted of the offence.

(2)If the court is of the opinion—

(a)that the offence or the combination of the offence and one or more offences associated with it was so serious that greater punishment should be inflicted for the offence than the court has power to impose, or

(b)in the case of a violent or sexual offence, that a custodial sentence for a term longer than the court has power to impose is necessary to protect the public from serious harm from him,

the court may commit the offender in custody or on bail to the Crown Court for sentence in accordance with section 5(1) below.

(3)Where the court commits a person under subsection (2) above, section 6 below (which enables a magistrates’ court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly.

(4)This section does not apply in relation to an offence as regards which this section is excluded by section 33 of the M2Magistrates’ Courts Act 1980 (certain offences where value involved is small).

(5)The preceding provisions of this section shall apply in relation to a corporation as if—

(a)the corporation were an individual aged 18 or over; and

(b)in subsection (2) above, paragraph (b) and the words “in custody or on bail” were omitted.

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Marginal Citations

4 Committal for sentence on indication of guilty plea to offence triable either way.E+W

(1)This section applies where—

(a)a person aged 18 or over appears or is brought before a magistrates’ court (“the court”) on an information charging him with an offence triable either way (“the offence”);

(b)he or his representative indicates that he would plead guilty if the offence were to proceed to trial; and

(c)proceeding as if section 9(1) of the M3Magistrates’ Courts Act 1980 were complied with and he pleaded guilty under it, the court convicts him of the offence.

(2)If the court has committed the offender to the Crown Court for trial for one or more related offences, that is to say, one or more offences which, in its opinion, are related to the offence, it may commit him in custody or on bail to the Crown Court to be dealt with in respect of the offence in accordance with section 5(1) below.

(3)If the power conferred by subsection (2) above is not exercisable but the court is still to inquire, as examining justices, into one or more related offences—

(a)it shall adjourn the proceedings relating to the offence until after the conclusion of its inquiries; and

(b)if it commits the offender to the Crown Court for trial for one or more related offences, it may then exercise that power.

(4)Where the court—

(a)under subsection (2) above commits the offender to the Crown Court to be dealt with in respect of the offence, and

(b)does not state that, in its opinion, it also has power so to commit him under section 3(2) above,

section 5(1) below shall not apply unless he is convicted before the Crown Court of one or more of the related offences.

(5)Where section 5(1) below does not apply, the Crown Court may deal with the offender in respect of the offence in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence.

(6)Where the court commits a person under subsection (2) above, section 6 below (which enables a magistrates’ court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly.

(7)For the purposes of this section one offence is related to another if, were they both to be prosecuted on indictment, the charges for them could be joined in the same indictment.

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Marginal Citations

5 Power of Crown Court on committal for sentence under sections 3 and 4.E+W

(1)Where an offender is committed by a magistrates’ court for sentence under section 3 or 4 above, the Crown Court shall inquire into the circumstances of the case and may deal with the offender in any way in which it could deal with him if he had just been convicted of the offence on indictment before the court.

(2)In relation to committals under section 4 above, subsection (1) above has effect subject to section 4(4) and (5) above.

6 Committal for sentence in certain cases where offender committed in respect of another offence.E+W

(1)This section applies where a magistrates’ court (“the committing court”) commits a person in custody or on bail to the Crown Court under any enactment mentioned in subsection (4) below to be sentenced or otherwise dealt with in respect of an offence (“the relevant offence”).

(2)Where this section applies and the relevant offence is an indictable offence, the committing court may also commit the offender, in custody or on bail as the case may require, to the Crown Court to be dealt with in respect of any other offence whatsoever in respect of which the committing court has power to deal with him (being an offence of which he has been convicted by that or any other court).

(3)Where this section applies and the relevant offence is a summary offence, the committing court may commit the offender, in custody or on bail as the case may require, to the Crown Court to be dealt with in respect of—

(a)any other offence of which the committing court has convicted him, being either—

(i)an offence punishable with imprisonment; or

(ii)an offence in respect of which the committing court has a power or duty to order him to be disqualified under section 34, 35 or 36 of the M4Road Traffic Offenders Act 1988 (disqualification for certain motoring offences); or

(b)any suspended sentence in respect of which the committing court has under section 120(1) below power to deal with him.

(4)The enactments referred to in subsection (1) above are—

(a)the M5Vagrancy Act 1824 (incorrigible rogues);

(b)sections 3 and 4 above (committal for sentence for offences triable either way);

(c)section 13(5) below (conditionally discharged person convicted of further offence);

(d)section 116(3)(b) below (offender convicted of offence committed during currency of original sentence); and

(e)section 120(2) below (offender convicted during operational period of suspended sentence).

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Marginal Citations

7 Power of Crown Court on committal for sentence under section 6.E+W

(1)Where under section 6 above a magistrates’ court commits a person to be dealt with by the Crown Court in respect of an offence, the Crown Court may after inquiring into the circumstances of the case deal with him in any way in which the magistrates’ court could deal with him if it had just convicted him of the offence.

(2)Subsection (1) above does not apply where under section 6 above a magistrates’ court commits a person to be dealt with by the Crown Court in respect of a suspended sentence, but in such a case the powers under section 119 below (power of court to deal with suspended sentence) shall be exercisable by the Crown Court.

(3)Without prejudice to subsections (1) and (2) above, where under section 6 above or any enactment mentioned in subsection (4) of that section a magistrates’ court commits a person to be dealt with by the Crown Court, any duty or power which, apart from this subsection, would fall to be discharged or exercised by the magistrates’ court shall not be discharged or exercised by that court but shall instead be discharged or may instead be exercised by the Crown Court.

(4)Where under section 6 above a magistrates’ court commits a person to be dealt with by the Crown Court in respect of an offence triable only on indictment in the case of an adult (being an offence which was tried summarily because of the offender’s being under 18 years of age), the Crown Court’s powers under subsection (1) above in respect of the offender after he attains the age of 18 shall be powers to do either or both of the following—

(a)to impose a fine not exceeding £5,000;

(b)to deal with the offender in respect of the offence in any way in which the magistrates’ court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months.

Remission for sentence: young offenders etc.E+W

8 Power and duty to remit young offenders to youth courts for sentence.E+W

(1)Subsection (2) below applies where a child or young person (that is to say, any person aged under 18) is convicted by or before any court of an offence other than homicide.

(2)The court may and, if it is not a youth court, shall unless satisfied that it would be undesirable to do so, remit the case—

(a)if the offender was committed for trial or sent to the Crown Court for trial under section 51 of the M6Crime and Disorder Act 1998, to a youth court acting for the place where he was committed for trial or sent to the Crown Court for trial;

(b)in any other case, to a youth court acting either for the same place as the remitting court or for the place where the offender habitually resides;

but in relation to a magistrates’ court other than a youth court this subsection has effect subject to subsection (6) below.

(3)Where a case is remitted under subsection (2) above, the offender shall be brought before a youth court accordingly, and that court may deal with him in any way in which it might have dealt with him if he had been tried and convicted by that court.

(4)A court by which an order remitting a case to a youth court is made under subsection (2) above—

(a)may, subject to section 25 of the M7Criminal Justice and Public Order Act 1994 (restrictions on granting bail), give such directions as appear to be necessary with respect to the custody of the offender or for his release on bail until he can be brought before the youth court; and

(b)shall cause to be transmitted to the justices’ chief executive for the youth court a certificate setting out the nature of the offence and stating—

(i)that the offender has been convicted of the offence; and

(ii)that the case has been remitted for the purpose of being dealt with under the preceding provisions of this section.

(5)Where a case is remitted under subsection (2) above, the offender shall have no right of appeal against the order of remission, but shall have the same right of appeal against any order of the court to which the case is remitted as if he had been convicted by that court.

(6)Without prejudice to the power to remit any case to a youth court which is conferred on a magistrates’ court other than a youth court by subsections (1) and (2) above, where such a magistrates’ court convicts a child or young person of an offence it must exercise that power unless the case falls within subsection (7) or (8) below.

(7)The case falls within this subsection if the court would, were it not so to remit the case, be required by section 16(2) below to refer the offender to a youth offender panel (in which event the court may, but need not, so remit the case).

(8)The case falls within this subsection if it does not fall within subsection (7) above but the court is of the opinion that the case is one which can properly be dealt with by means of—

(a)an order discharging the offender absolutely or conditionally, or

(b)an order for the payment of a fine, or

(c)an order (under section 150 below) requiring the offender’s parent or guardian to enter into a recognizance to take proper care of him and exercise proper control over him,

with or without any other order that the court has power to make when absolutely or conditionally discharging an offender.

(9)In subsection (8) above “care” and “control” shall be construed in accordance with section 150(11) below.

(10)A document purporting to be a copy of an order made by a court under this section shall, if it purports to be certified as a true copy by the justices’ chief executive for the court, be evidence of the order.

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Marginal Citations

9 Power of youth court to remit offender who attains age of 18 to magistrates’ court other than youth court for sentence.E+W

(1)Where a person who appears or is brought before a youth court charged with an offence subsequently attains the age of 18, the youth court may, at any time after conviction and before sentence, remit him for sentence to a magistrates’ court (other than a youth court) acting for the same petty sessions area as the youth court.

(2)Where an offender is remitted under subsection (1) above, the youth court shall adjourn proceedings in relation to the offence, and—

(a)section 128 of the M8Magistrates’ Courts Act 1980 (remand in custody or on bail) and all other enactments, whenever passed, relating to remand or the granting of bail in criminal proceedings shall have effect, in relation to the youth court’s power or duty to remand the offender on that adjournment, as if any reference to the court to or before which the person remanded is to be brought or appear after remand were a reference to the court to which he is being remitted; and

(b)subject to subsection (3) below, the court to which the offender is remitted (“the other court”) may deal with the case in any way in which it would have power to deal with it if all proceedings relating to the offence which took place before the youth court had taken place before the other court.

(3)Where an offender is remitted under subsection (1) above, section 8(6) above (duty of adult magistrates’ court to remit young offenders to youth court for sentence) shall not apply to the court to which he is remitted.

(4)Where an offender is remitted under subsection (1) above he shall have no right of appeal against the order of remission (but without prejudice to any right of appeal against an order made in respect of the offence by the court to which he is remitted).

(5)In this section—

(a)enactment” includes an enactment contained in any order, regulation or other instrument having effect by virtue of an Act; and

(b)bail in criminal proceedings” has the same meaning as in the M9Bail Act 1976.

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Marginal Citations

10 Power of magistrates’ court to remit case to another magistrates’ court for sentence.E+W

(1)Where a person aged 18 or over (“the offender”) has been convicted by a magistrates’ court (“the convicting court”) of an offence to which this section applies (“the instant offence”) and—

(a)it appears to the convicting court that some other magistrates’ court (“the other court”) has convicted him of another such offence in respect of which the other court has neither passed sentence on him nor committed him to the Crown Court for sentence nor dealt with him in any other way, and

(b)the other court consents to his being remitted under this section to the other court,

the convicting court may remit him to the other court to be dealt with in respect of the instant offence by the other court instead of by the convicting court.

(2)This section applies to—

(a)any offence punishable with imprisonment; and

(b)any offence in respect of which the convicting court has a power or duty to order the offender to be disqualified under section 34, 35 or 36 of the M10Road Traffic Offenders Act 1988 (disqualification for certain motoring offences).

(3)Where the convicting court remits the offender to the other court under this section, it shall adjourn the trial of the information charging him with the instant offence, and—

(a)section 128 of the M11Magistrates’ Courts Act 1980 (remand in custody or on bail) and all other enactments, whenever passed, relating to remand or the granting of bail in criminal proceedings shall have effect, in relation to the convicting court’s power or duty to remand the offender on that adjournment, as if any reference to the court to or before which the person remanded is to be brought or appear after remand were a reference to the court to which he is being remitted; and

(b)subject to subsection (7) below, the other court may deal with the case in any way in which it would have power to deal with it if all proceedings relating to the instant offence which took place before the convicting court had taken place before the other court.

(4)The power conferred on the other court by subsection (3)(b) above includes, where applicable, the power to remit the offender under this section to another magistrates’ court in respect of the instant offence.

(5)Where the convicting court has remitted the offender under this section to the other court, the other court may remit him back to the convicting court; and the provisions of subsections (3) and (4) above (so far as applicable) shall apply with the necessary modifications in relation to any remission under this subsection.

(6)The offender, if remitted under this section, shall have no right of appeal against the order of remission (but without prejudice to any right of appeal against any other order made in respect of the instant offence by the court to which he is remitted).

(7)Nothing in this section shall preclude the convicting court from making any order which it has power to make under section 148 below (restitution orders) by virtue of the offender’s conviction of the instant offence.

(8)In this section—

(a)conviction” includes a finding under section 11(1) below (remand for medical examination) that the person in question did the act or made the omission charged, and “convicted” shall be construed accordingly;

(b)enactment” includes an enactment contained in any order, regulation or other instrument having effect by virtue of an Act; and

(c)bail in criminal proceedings” has the same meaning as in the M12Bail Act 1976.

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Marginal Citations

Remand by magistrates’ court for medical examinationE+W

11 Remand by magistrates’ court for medical examination.E+W

(1)If, on the trial by a magistrates’ court of an offence punishable on summary conviction with imprisonment, the court—

(a)is satisfied that the accused did the act or made the omission charged, but

(b)is of the opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined,

the court shall adjourn the case to enable a medical examination and report to be made, and shall remand him.

(2)An adjournment under subsection (1) above shall not be for more than three weeks at a time where the court remands the accused in custody, nor for more than four weeks at a time where it remands him on bail.

(3)Where on an adjournment under subsection (1) above the accused is remanded on bail, the court shall impose conditions under paragraph (d) of section 3(6) of the M13Bail Act 1976 and the requirements imposed as conditions under that paragraph shall be or shall include requirements that the accused—

(a)undergo medical examination by a registered medical practitioner or, where the inquiry is into his mental condition and the court so directs, two such practitioners; and

(b)for that purpose attend such an institution or place, or on such practitioner, as the court directs and, where the inquiry is into his mental condition, comply with any other directions which may be given to him for that purpose by any person specified by the court or by a person of any class so specified.

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Marginal Citations

Part IIE+W+S ABSOLUTE AND CONDITIONAL DISCHARGE

12 Absolute and conditional discharge.E+W

(1)Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law or falls to be imposed under section 109(2), 110(2) or 111(2) below) is of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment, the court may make an order either—

(a)discharging him absolutely; or

(b)if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified in the order.

(2)Subsection (1)(b) above has effect subject to section 66(4) of the M14Crime and Disorder Act 1998 (effect of reprimands and warnings).

(3)An order discharging a person subject to such a condition as is mentioned in subsection (1)(b) above is in this Act referred to as an “order for conditional discharge”; and the period specified in any such order is in this Act referred to as “the period of conditional discharge”.

(4)Before making an order for conditional discharge, the court shall explain to the offender in ordinary language that if he commits another offence during the period of conditional discharge he will be liable to be sentenced for the original offence.

(5)If (by virtue of section 13 below) a person conditionally discharged under this section is sentenced for the offence in respect of which the order for conditional discharge was made, that order shall cease to have effect.

(6)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 shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 130, 143 or 148 below (compensation orders, deprivation orders and restitution orders).

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Modifications etc. (not altering text)

C1S. 12 restricted (28.8.2000) by 1989 c. 37, s. 14A(5) (as substituted (28.8.2000) by 2000 c. 25, s. 1, Sch. 1 para. 2; S.I. 2000/2125, art. 2)

Marginal Citations

13 Commission of further offence by person conditionally discharged.E+W

(1)If it appears to the Crown Court, where that court has jurisdiction in accordance with subsection (2) below, or to a justice of the peace having jurisdiction in accordance with that subsection, that a person in whose case an order for conditional discharge has been made—

(a)has been convicted by a court in Great Britain of an offence committed during the period of conditional discharge, and

(b)has been dealt with in respect of that offence,

that court or justice may, subject to subsection (3) below, issue a summons requiring that person to appear at the place and time specified in it or a warrant for his arrest.

(2)Jurisdiction for the purposes of subsection (1) above may be exercised—

(a)if the order for conditional discharge was made by the Crown Court, by that court;

(b)if the order was made by a magistrates’ court, by a justice acting for the petty sessions area for which that court acts.

(3)A justice of the peace shall not issue a summons under this section except on information and shall not issue a warrant under this section except on information in writing and on oath.

(4)A summons or warrant issued under this section shall direct the person to whom it relates to appear or to be brought before the court by which the order for conditional discharge was made.

(5)If a person in whose case an order for conditional discharge has been made by the Crown Court is convicted by a magistrates’ court of an offence committed during the period of conditional discharge, the magistrates’ court—

(a)may commit him to custody or release him on bail until he can be brought or appear before the Crown Court; and

(b)if it does so, shall send to the Crown Court a copy of the minute or memorandum of the conviction entered in the register, signed by the justices’ chief executive by whom the register is kept.

(6)Where it is proved to the satisfaction of the court by which an order for conditional discharge was made that the person in whose case the order was made has been convicted of an offence committed during the period of conditional discharge, the court may deal with him, for the offence for which the order was made, in any way in which it could deal with him if he had just been convicted by or before that court of that offence.

(7)If a person in whose case an order for conditional discharge has been made by a magistrates’ court—

(a)is convicted before the Crown Court of an offence committed during the period of conditional discharge, or

(b)is dealt with by the Crown Court for any such offence in respect of which he was committed for sentence to the Crown Court,

the Crown Court may deal with him, for the offence for which the order was made, in any way in which the magistrates’ court could deal with him if it had just convicted him of that offence.

(8)If a person in whose case an order for conditional discharge has been made by a magistrates’ court is convicted by another magistrates’ court of any offence committed during the period of conditional discharge, that other court may, with the consent of the court which made the order, deal with him, for the offence for which the order was made, in any way in which the court could deal with him if it had just convicted him of that offence.

(9)Where an order for conditional discharge has been made by a magistrates’ court in the case of an offender under 18 years of age in respect of an offence triable only on indictment in the case of an adult, any powers exercisable under subsection (6), (7) or (8) above by that or any other court in respect of the offender after he attains the age of 18 shall be powers to do either or both of the following—

(a)to impose a fine not exceeding £5,000 for the offence in respect of which the order was made;

(b)to deal with the offender for that offence in any way in which a magistrates’ court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months.

(10)The reference in subsection (6) above to a person’s having been convicted of an offence committed during the period of conditional discharge is a reference to his having been so convicted by a court in Great Britain.

14 Effect of discharge.E+W+S

(1)Subject to subsection (2) below, a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above.

(2)Where the offender was aged 18 or over at the time of his conviction of the offence in question and is subsequently sentenced (under section 13 above) for that offence, subsection (1) above shall cease to apply to the conviction.

(3)Without prejudice to subsections (1) and (2) above, the conviction of an offender who is discharged absolutely or conditionally under section 12 above shall in any event be disregarded for the purposes of any enactment or instrument which—

(a)imposes any disqualification or disability upon convicted persons; or

(b)authorises or requires the imposition of any such disqualification or disability.

(4)Subsections (1) to (3) above shall not affect—

(a)any right of an offender discharged absolutely or conditionally under section 12 above to rely on his conviction in bar of any subsequent proceedings for the same offence;

(b)the restoration of any property in consequence of the conviction of any such offender; or

(c)the operation, in relation to any such offender, of any enactment or instrument in force on 1st July 1974 which is expressed to extend to persons dealt with under section 1(1) of the M15Probation of Offenders Act 1907 as well as to convicted persons.

(5)In subsections (3) and (4) above—

  • enactment” includes an enactment contained in a local Act; and

  • instrument” means an instrument having effect by virtue of an Act.

(6)Subsection (1) above has effect subject to section 50(1A) of the M16Criminal Appeal Act 1968 and section 108(1A) of the M17Magistrates’ Courts Act 1980 (rights of appeal); and this subsection shall not be taken to prejudice any other enactment that excludes the effect of subsection (1) or (3) above for particular purposes.

(7)Without prejudice to paragraph 1(3) of Schedule 11 to this Act (references to provisions of this Act to be construed as including references to corresponding old enactments), in this section—

(a)any reference to an order made under section 12 above discharging an offender absolutely or conditionally includes a reference to an order which was made under any provision of Part I of the M18Powers of Criminal Courts Act 1973 (whether or not reproduced in this Act) discharging the offender absolutely or conditionally;

(b)any reference to an offender who is discharged absolutely or conditionally under section 12 includes a reference to an offender who was discharged absolutely or conditionally under any such provision.

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Modifications etc. (not altering text)

C2S. 14 restricted (28.8.2000) by 1989 c. 37, s. 14A(5) (as substituted (28.8.2000) by 2000 c. 25, s. 1, Sch. 1 para. 2; S.I. 2000/2125, art. 2)

Marginal Citations

15 Discharge: supplementary.E+W

(1)The Secretary of State may by order direct that subsection (1) of section 12 above shall be amended by substituting, for the maximum period specified in that subsection as originally enacted or as previously amended under this subsection, such period as may be specified in the order.

(2)Where an order for conditional discharge has been made on appeal, for the purposes of section 13 above it shall be deemed—

(a)if it was made on an appeal brought from a magistrates’ court, to have been made by that magistrates’ court;

(b)if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court.

(3)In proceedings before the Crown Court under section 13 above, any question whether any person in whose case an order for conditional discharge has been made has been convicted of an offence committed during the period of conditional discharge shall be determined by the court and not by the verdict of a jury.

Part IIIE+W MANDATORY AND DISCRETIONARY REFERRAL OF YOUNG OFFENDERS

Referral ordersE+W

16 Duty and power to refer certain young offenders to youth offender panels.E+W

(1)This section applies where a youth court or other magistrates’ court is dealing with a person aged under 18 for an offence and—

(a)neither the offence nor any connected offence is one for which the sentence is fixed by law;

(b)the court is not, in respect of the offence or any connected offence, proposing to impose a custodial sentence on the offender or make a hospital order (within the meaning of the M19Mental Health Act 1983) in his case; and

(c)the court is not proposing to discharge him absolutely in respect of the offence.

(2)If—

(a)the compulsory referral conditions are satisfied in accordance with section 17 below, and

(b)referral is available to the court,

the court shall sentence the offender for the offence by ordering him to be referred to a youth offender panel.

(3)If—

(a)the discretionary referral conditions are satisfied in accordance with section 17 below, and

(b)referral is available to the court,

the court may sentence the offender for the offence by ordering him to be referred to a youth offender panel.

(4)For the purposes of this Part an offence is connected with another if the offender falls to be dealt with for it at the same time as he is dealt with for the other offence (whether or not he is convicted of the offences at the same time or by or before the same court).

(5)For the purposes of this section referral is available to a court if—

(a)the court has been notified by the Secretary of State that arrangements for the implementation of referral orders are available in the area in which it appears to the court that the offender resides or will reside; and

(b)the notice has not been withdrawn.

(6)An order under subsection (2) or (3) above is in this Act referred to as a “referral order”.

(7)No referral order may be made in respect of any offence committed before the commencement of section 1 of the M20Youth Justice and Criminal Evidence Act 1999.

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Marginal Citations

17 The referral conditions.E+W

(1)For the purposes of section 16(2) above the compulsory referral conditions are satisfied in relation to an offence if the offender—

(a)pleaded guilty to the offence and to any connected offence;

(b)has never been convicted by or before a court in the United Kingdom of any offence other than the offence and any connected offence; and

(c)has never been bound over in criminal proceedings in England and Wales or Northern Ireland to keep the peace or to be of good behaviour.

(2)For the purposes of section 16(3) above the discretionary referral conditions are satisfied in relation to an offence if—

(a)the offender is being dealt with by the court for the offence and one or more connected offences;

(b)although he pleaded guilty to at least one of the offences mentioned in paragraph (a) above, he also pleaded not guilty to at least one of them;

(c)he has never been convicted by or before a court in the United Kingdom of any offence other than the offences mentioned in paragraph (a) above; and

(d)he has never been bound over in criminal proceedings in England and Wales or Northern Ireland to keep the peace or to be of good behaviour.

(3)The Secretary of State may by regulations make such amendments of this section as he considers appropriate for altering in any way the descriptions of offenders in the case of which the compulsory referral conditions or the discretionary referral conditions fall to be satisfied for the purposes of section 16(2) or (3) above (as the case may be).

(4)Any description of offender having effect for those purposes by virtue of such regulations may be framed by reference to such matters as the Secretary of State considers appropriate, including (in particular) one or more of the following—

(a)the offender’s age;

(b)how the offender has pleaded;

(c)the offence (or offences) of which the offender has been convicted;

(d)the offender’s previous convictions (if any);

(e)how (if at all) the offender has been previously punished or otherwise dealt with by any court; and

(f)any characteristics or behaviour of, or circumstances relating to, any person who has at any time been charged in the same proceedings as the offender (whether or not in respect of the same offence).

(5)For the purposes of this section an offender who has been convicted of an offence in respect of which he was conditionally discharged (whether by a court in England and Wales or in Northern Ireland) shall be treated, despite—

(a)section 14(1) above (conviction of offence for which offender so discharged deemed not a conviction), or

(b)Article 6(1) of the M21Criminal Justice (Northern Ireland) Order 1996 (corresponding provision for Northern Ireland),

as having been convicted of that offence.

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Marginal Citations

18 Making of referral orders: general.E+W

(1)A referral order shall—

(a)specify the youth offending team responsible for implementing the order;

(b)require the offender to attend each of the meetings of a youth offender panel to be established by the team for the offender; and

(c)specify the period for which any youth offender contract taking effect between the offender and the panel under section 23 below is to have effect (which must not be less than three nor more than twelve months).

(2)The youth offending team specified under subsection (1)(a) above shall be the team having the function of implementing referral orders in the area in which it appears to the court that the offender resides or will reside.

(3)On making a referral order the court shall explain to the offender in ordinary language—

(a)the effect of the order; and

(b)the consequences which may follow—

(i)if no youth offender contract takes effect between the offender and the panel under section 23 below; or

(ii)if the offender breaches any of the terms of any such contract.

(4)Subsections (5) to (7) below apply where, in dealing with an offender for two or more connected offences, a court makes a referral order in respect of each, or each of two or more, of the offences.

(5)The orders shall have the effect of referring the offender to a single youth offender panel; and the provision made by them under subsection (1) above shall accordingly be the same in each case, except that the periods specified under subsection (1)(c) may be different.

(6)The court may direct that the period so specified in either or any of the orders is to run concurrently with or be additional to that specified in the other or any of the others; but in exercising its power under this subsection the court must ensure that the total period for which such a contract as is mentioned in subsection (1)(c) above is to have effect does not exceed twelve months.

(7)Each of the orders mentioned in subsection (4) above shall, for the purposes of this Part, be treated as associated with the other or each of the others.

19 Making of referral orders: effect on court’s other sentencing powers.E+W

(1)Subsections (2) to (5) below apply where a court makes a referral order in respect of an offence.

(2)The court may not deal with the offender for the offence in any of the prohibited ways.

(3)The court—

(a)shall, in respect of any connected offence, either sentence the offender by making a referral order or make an order discharging him absolutely; and

(b)may not deal with the offender for any such offence in any of the prohibited ways.

(4)For the purposes of subsections (2) and (3) above the prohibited ways are—

(a)imposing a community sentence on the offender;

(b)ordering him to pay a fine;

(c)making a reparation order in respect of him; and

(d)making an order discharging him conditionally.

(5)The court may not make, in connection with the conviction of the offender for the offence or any connected offence—

(a)an order binding him over to keep the peace or to be of good behaviour;

(b)an order under section 150 below (binding over of parent or guardian); or

(c)a parenting order under section 8 of the M22Crime and Disorder Act 1998.

(6)Subsections (2), (3) and (5) above do not affect the exercise of any power to deal with the offender conferred by paragraph 5 (offender referred back to court by panel) or paragraph 14 (powers of a court where offender convicted while subject to referral) of Schedule 1 to this Act.

(7)Where section 16(2) above requires a court to make a referral order, the court may not under section 1 above defer passing sentence on him, but section 16(2) and subsection (3)(a) above do not affect any power or duty of a magistrates’ court under—

(a)section 8 above (remission to youth court, or another such court, for sentence);

(b)section 10(3) of the M23Magistrates’ Courts Act 1980 (adjournment for inquiries); or

(c)section 35, 38, 43 or 44 of the M24Mental Health Act 1983 (remand for reports, interim hospital orders and committal to Crown Court for restriction order).

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Marginal Citations

20 Making of referral orders: attendance of parents etc.E+W

(1)A court making a referral order may make an order requiring—

(a)the appropriate person, or

(b)in a case where there are two or more appropriate persons, any one or more of them,

to attend the meetings of the youth offender panel.

(2)Where an offender is aged under 16 when a court makes a referral order in his case—

(a)the court shall exercise its power under subsection (1) above so as to require at least one appropriate person to attend meetings of the youth offender panel; and

(b)if the offender falls within subsection (6) below, the person or persons so required to attend those meetings shall be or include a representative of the local authority mentioned in that subsection.

(3)The court shall not under this section make an order requiring a person to attend meetings of the youth offender panel—

(a)if the court is satisfied that it would be unreasonable to do so; or

(b)to an extent which the court is satisfied would be unreasonable.

(4)Except where the offender falls within subsection (6) below, each person who is a parent or guardian of the offender is an “appropriate person” for the purposes of this section.

(5)Where the offender falls within subsection (6) below, each of the following is an “appropriate person” for the purposes of this section—

(a)a representative of the local authority mentioned in that subsection; and

(b)each person who is a parent or guardian of the offender with whom the offender is allowed to live.

(6)An offender falls within this subsection if he is (within the meaning of the M25Children Act 1989) a child who is looked after by a local authority.

(7)If, at the time when a court makes an order under this section—

(a)a person who is required by the order to attend meetings of a youth offender panel is not present in court, or

(b)a local authority whose representative is so required to attend such meetings is not represented in court,

the court must send him or (as the case may be) the authority a copy of the order forthwith.

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Marginal Citations

Youth offender panelsE+W

21 Establishment of panels.E+W

(1)Where a referral order has been made in respect of an offender (or two or more associated referral orders have been so made), it is the duty of the youth offending team specified in the order (or orders)—

(a)to establish a youth offender panel for the offender;

(b)to arrange for the first meeting of the panel to be held for the purposes of section 23 below; and

(c)subsequently to arrange for the holding of any further meetings of the panel required by virtue of section 25 below (in addition to those required by virtue of any other provision of this Part).

(2)A youth offender panel shall—

(a)be constituted,

(b)conduct its proceedings, and

(c)discharge its functions under this Part (and in particular those arising under section 23 below),

in accordance with guidance given from time to time by the Secretary of State.

(3)At each of its meetings a panel shall, however, consist of at least—

(a)one member appointed by the youth offending team from among its members; and

(b)two members so appointed who are not members of the team.

(4)The Secretary of State may by regulations make provision requiring persons appointed as members of a youth offender panel to have such qualifications, or satisfy such other criteria, as are specified in the regulations.

(5)Where it appears to the court which made a referral order that, by reason of either a change or a prospective change in the offender’s place or intended place of residence, the youth offending team for the time being specified in the order (“the current team”) either does not or will not have the function of implementing referral orders in the area in which the offender resides or will reside, the court may amend the order so that it instead specifies the team which has the function of implementi g such orders in that area (“the new team”).

(6)Where a court so amends a referral order—

(a)subsection (1)(a) above shall apply to the new team in any event;

(b)subsection (1)(b) above shall apply to the new team if no youth offender contract has (or has under paragraph (c) below been treated as having) taken effect under section 23 below between the offender and a youth offender panel established by the current team;

(c)if such a contract has (or has previously under this paragraph been treated as having) so taken effect, it shall (after the amendment) be treated as if it were a contract which had taken effect under section 23 below between the offender and the panel being established for the offender by the new team.

(7)References in this Part to the meetings of a youth offender panel (or any such meeting) are to the following meetings of the panel (or any of them)—

(a)the first meeting held in pursuance of subsection (1)(b) above;

(b)any further meetings held in pursuance of section 25 below;

(c)any progress meeting held under section 26 below; and

(d)the final meeting held under section 27 below.

22 Attendance at panel meetings.E+W

(1)The specified team shall, in the case of each meeting of the panel established for the offender, notify—

(a)the offender, and

(b)any person to whom an order under section 20 above applies,

of the time and place at which he is required to attend that meeting.

(2)If the offender fails to attend any part of such a meeting the panel may—

(a)adjourn the meeting to such time and place as it may specify; or

(b)end the meeting and refer the offender back to the appropriate court;

and subsection (1) above shall apply in relation to any such adjourned meeting.

(3)One person aged 18 or over chosen by the offender, with the agreement of the panel, shall be entitled to accompany the offender to any meeting of the panel (and it need not be the same person who accompanies him to every meeting).

(4)The panel may allow to attend any such meeting—

(a)any person who appears to the panel to be a victim of, or otherwise affected by, the offence, or any of the offences, in respect of which the offender was referred to the panel;

(b)any person who appears to the panel to be someone capable of having a good influence on the offender.

(5)Where the panel allows any such person as is mentioned in subsection (4)(a) above (“the victim”) to attend a meeting of the panel, the panel may allow the victim to be accompanied to the meeting by one person chosen by the victim with the agreement of the panel.

Youth offender contractsE+W

23 First meeting: agreement of contract with offender.E+W

(1)At the first meeting of the youth offender panel established for an offender the panel shall seek to reach agreement with the offender on a programme of behaviour the aim (or principal aim) of which is the prevention of re-offending by the offender.

(2)The terms of the programme may, in particular, include provision for any of the following—

(a)the offender to make financial or other reparation to any person who appears to the panel to be a victim of, or otherwise affected by, the offence, or any of the offences, for which the offender was referred to the panel;

(b)the offender to attend mediation sessions with any such victim or other person;

(c)the offender to carry out unpaid work or service in or for the community;

(d)the offender to be at home at times specified in or determined under the programme;

(e)attendance by the offender at a school or other educational establishment or at a place of work;

(f)the offender to participate in specified activities (such as those designed to address offending behaviour, those offering education or training or those assisting with the rehabilitation of persons dependent on, or having a propensity to misuse, alcohol or drugs);

(g)the offender to present himself to specified persons at times and places specified in or determined under the programme;

(h)the offender to stay away from specified places or persons (or both);

(i)enabling the offender’s compliance with the programme to be supervised and recorded.

(3)The programme may not, however, provide—

(a)for the electronic monitoring of the offender’s whereabouts; or

(b)for the offender to have imposed on him any physical restriction on his movements.

(4)No term which provides for anything to be done to or with any such victim or other affected person as is mentioned in subsection (2)(a) above may be included in the programme without the consent of that person.

(5)Where a programme is agreed between the offender and the panel, the panel shall cause a written record of the programme to be produced forthwith—

(a)in language capable of being readily understood by, or explained to, the offender; and

(b)for signature by him.

(6)Once the record has been signed—

(a)by the offender, and

(b)by a member of the panel on behalf of the panel,

the terms of the programme, as set out in the record, take effect as the terms of a “youth offender contract” between the offender and the panel; and the panel shall cause a copy of the record to be given or sent to the offender.

24 First meeting: duration of contract.E+W

(1)This section applies where a youth offender contract has taken effect under section 23 above between an offender and a youth offender panel.

(2)The day on which the contract so takes effect shall be the first day of the period for which it has effect.

(3)Where the panel was established in pursuance of a single referral order, the length of the period for which the contract has effect shall be that of the period specified under section 18(1)(c) above in the referral order.

(4)Where the panel was established in pursuance of two or more associated referral orders, the length of the period for which the contract has effect shall be that resulting from the court’s directions under section 18(6) above.

(5)Subsections (3) and (4) above have effect subject to—

(a)any order under paragraph 11 or 12 of Schedule 1 to this Act extending the length of the period for which the contract has effect; and

(b)subsection (6) below.

(6)If the referral order, or each of the associated referral orders, is revoked (whether under paragraph 5(2) of Schedule 1 to this Act or by virtue of paragraph 14(2) of that Schedule), the period for which the contract has effect expires at the time when the order or orders is or are revoked unless it has already expired.

25 First meeting: failure to agree contract.E+W

(1)Where it appears to a youth offender panel to be appropriate to do so, the panel may—

(a)end the first meeting (or any further meeting held in pursuance of paragraph (b) below) without having reached agreement with the offender on a programme of behaviour of the kind mentioned in section 23(1) above; and

(b)resume consideration of the offender’s case at a further meeting of the panel.

(2)If, however, it appears to the panel at the first meeting or any such further meeting that there is no prospect of agreement being reached with the offender within a reasonable period after the making of the referral order (or orders)—

(a)subsection (1)(b) above shall not apply; and

(b)instead the panel shall refer the offender back to the appropriate court.

(3)If at a meeting of the panel—

(a)agreement is reached with the offender but he does not sign the record produced in pursuance of section 23(5) above, and

(b)his failure to do so appears to the panel to be unreasonable,

the panel shall end the meeting and refer the offender back to the appropriate court.

26 Progress meetings.E+W

(1)At any time—

(a)after a youth offender contract has taken effect under section 23 above, but

(b)before the end of the period for which the contract has effect,

the specified team shall, if so requested by the panel, arrange for the holding of a meeting of the panel under this section (“a progress meeting”).

(2)The panel may make a request under subsection (1) above if it appears to the panel to be expedient to review—

(a)the offender’s progress in implementing the programme of behaviour contained in the contract; or

(b)any other matter arising in connection with the contract.

(3)The panel shall make such a request if—

(a)the offender has notified the panel that—

(i)he wishes to seek the panel’s agreement to a variation in the terms of the contract; or

(ii)he wishes the panel to refer him back to the appropriate court with a view to the referral order (or orders) being revoked on account of a significant change in his circumstances (such as his being taken to live abroad) making compliance with any youth offender contract impractical; or

(b)it appears to the panel that the offender is in breach of any of the terms of the contract.

(4)At a progress meeting the panel shall do such one or more of the following things as it considers appropriate in the circumstances, namely—

(a)review the offender’s progress or any such other matter as is mentioned in subsection (2) above;

(b)discuss with the offender any breach of the terms of the contract which it appears to the panel that he has committed;

(c)consider any variation in the terms of the contract sought by the offender or which it appears to the panel to be expedient to make in the light of any such review or discussion;

(d)consider whether to accede to any request by the offender that he be referred back to the appropriate court.

(5)Where the panel has discussed with the offender such a breach as is mentioned in subsection (4)(b) above—

(a)the panel and the offender may agree that the offender is to continue to be required to comply with the contract (either in its original form or with any agreed variation in its terms) without being referred back to the appropriate court; or

(b)the panel may decide to end the meeting and refer the offender back to that court.

(6)Where a variation in the terms of the contract is agreed between the offender and the panel, the panel shall cause a written record of the variation to be produced forthwith—

(a)in language capable of being readily understood by, or explained to, the offender; and

(b)for signature by him.

(7)Any such variation shall take effect once the record has been signed—

(a)by the offender; and

(b)by a member of the panel on behalf of the panel;

and the panel shall cause a copy of the record to be given or sent to the offender.

(8)If at a progress meeting—

(a)any such variation is agreed but the offender does not sign the record produced in pursuance of subsection (6) above, and

(b)his failure to do so appears to the panel to be unreasonable,

the panel may end the meeting and refer the offender back to the appropriate court.

(9)Section 23(2) to (4) above shall apply in connection with what may be provided for by the terms of the contract as varied under this section as they apply in connection with what may be provided for by the terms of a programme of behaviour of the kind mentioned in section 23(1).

(10)Where the panel has discussed with the offender such a request as is mentioned in subsection (4)(d) above, the panel may, if it is satisfied that there is (or is soon to be) such a change in circumstances as is mentioned in subsection (3)(a)(ii) above, decide to end the meeting and refer the offender back to the appropriate court.

27 Final meeting.E+W

(1)Where the compliance period in the case of a youth offender contract is due to expire, the specified team shall arrange for the holding, before the end of that period, of a meeting of the panel under this section (“the final meeting”).

(2)At the final meeting the panel shall—

(a)review the extent of the offender’s compliance to date with the terms of the contract; and

(b)decide, in the light of that review, whether his compliance with those terms has been such as to justify the conclusion that, by the time the compliance period expires, he will have satisfactorily completed the contract;

and the panel shall give the offender written confirmation of its decision.

(3)Where the panel decides that the offender’s compliance with the terms of the contract has been such as to justify that conclusion, the panel’s decision shall have the effect of discharging the referral order (or orders) as from the end of the compliance period.

(4)Otherwise the panel shall refer the offender back to the appropriate court.

(5)Nothing in section 22(2) above prevents the panel from making the decision mentioned in subsection (3) above in the offender’s absence if it appears to the panel to be appropriate to do that instead of exercising either of its powers under section 22(2).

(6)Section 22(2)(a) above does not permit the final meeting to be adjourned (or re-adjourned) to a time falling after the end of the compliance period.

(7)In this section “the compliance period”, in relation to a youth offender contract, means the period for which the contract has effect in accordance with section 24 above.

Further court proceedingsE+W

28 Offender referred back to court or convicted while subject to referral order.E+W

Schedule 1 to this Act, which—

(a)in Part I makes provision for what is to happen when a youth offender panel refers an offender back to the appropriate court, and

(b)in Part II makes provision for what is to happen when an offender is convicted of further offences while for the time being subject to a referral order,

shall have effect.

SupplementaryE+W

29 Functions of youth offending teams.E+W

(1)The functions of a youth offending team responsible for implementing a referral order include, in particular, arranging for the provision of such administrative staff, accommodation or other facilities as are required by the youth offender panel established in pursuance of the order.

(2)During the period for which a youth offender contract between a youth offender panel and an offender has effect—

(a)the specified team shall make arrangements for supervising the offender’s compliance with the terms of the contract; and

(b)the person who is the member of the panel referred to in section 21(3)(a) above shall ensure that records are kept of the offender’s compliance (or non-compliance) with those terms.

(3)In implementing referral orders a youth offending team shall have regard to any guidance given from time to time by the Secretary of State.

30 Regulations under Part III.E+W

(1)Any power of the Secretary of State to make regulations under section 17(3) or 21(4) above or paragraph 13(8) of Schedule 1 to this Act shall be exercisable by statutory instrument.

(2)A statutory instrument containing any regulations under section 21(4) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3)No regulations shall be made under—

(a)section 17(3), or

(b)paragraph 13(8) of Schedule 1,

unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.

(4)Any regulations made by the Secretary of State under section 17(3) or 21(4) or paragraph 13(8) of Schedule 1 may make different provision for different cases, circumstances or areas and may contain such incidental, supplemental, saving or transitional provisions as the Secretary of State thinks fit.

31 Rules of court.E+W

(1)Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Part (and nothing in this section shall be taken to affect the generality of any enactment conferring power to make such rules).

(2)In this section “rules of court” means—

(a)Magistrates’ Courts Rules;

(b)Crown Court Rules;

(c)Criminal Appeal Rules.

32 Definitions for purposes of Part III.E+W

In this Part—

  • the appropriate court” shall be construed in accordance with paragraph 1(2) of Schedule 1 to this Act;

  • associated”, in relation to referral orders, shall be construed in accordance with section 18(7) above;

  • connected”, in relation to offences, shall be construed in accordance with section 16(4) above;

  • meeting”, in relation to a youth offender panel, shall be construed in accordance with section 21(7) above;

  • the specified team”, in relation to an offender to whom a referral order applies (or two or more associated referral orders apply), means the youth offending team for the time being specified in the order (or orders).

Part IVE+W+S+N.I.Community orders and reparation orders

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Modifications etc. (not altering text)

C3Pt. IV applied (with modifications) (25.8.2000) by 1997 c. 43, s. 35(4)(b)(5) (as substituted (25.8.2000) by 2000 c. 6, ss. 165, 168(1), Sch. 9 para. 184(3))

Chapter IE+WCommunity orders: general provisions

33 Meaning of “community order” and “community sentence”.E+W

(1)In this Act, “community order” means any of the following orders—

(a)a curfew order;

(b)a [F1community rehabilitation order];

(c)a [F2community punishment order];

(d)a [F3community punishment and rehabilitation order];

(e)a drug treatment and testing order;

[F4(ee)a drug abstinence order]

(f)an attendance centre order;

(g)a supervision order;

(h)an action plan order.

(2)In this Act, “community sentence” means a sentence which consists of or includes one or more community orders.

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Amendments (Textual)

F2Words in s. 33(1)(c) substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 2(1)(a)(2)

F3Words in s. 33(1)(d) substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 3(1)(a)(2)

F4S. 33(1)(e) inserted (20.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 161(b); S.I. 2001/2232, art. 2(k)(m)(iii)

34 Community orders not available where sentence fixed by law etc.E+W

None of the powers to make community orders which are conferred by this Part is exercisable in respect of an offence for which the sentence—

(a)is fixed by law; or

(b)falls to be imposed under section 109(2), 110(2) or 111(2) below (requirement to impose custodial sentences for certain repeated offences committed by offenders aged 18 or over).

35 Restrictions on imposing community sentences.E+W

(1)A court shall not pass a community sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence.

(2)In consequence of the provision made by section 51 below with respect to [F5community punishment and rehabilitation orders], a community sentence shall not consist of or include both a [F6community rehabilitation order] and a [F7community punishment order].

(3)Subject to subsection (2) above and to section 69(5) below (which limits the community orders that may be combined with an action plan order), where a court passes a community sentence—

(a)the particular order or orders comprising or forming part of the sentence shall be such as in the opinion of the court is, or taken together are, the most suitable for the offender; and

(b)the restrictions on liberty imposed by the order or orders shall be such as in the opinion of the court are commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.

(4)Subsections (1) and (3)(b) above have effect subject to section 59 below (curfew orders and [F7community punishment orders] for persistent petty offenders).

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Amendments (Textual)

36 Procedural requirements for community sentences: pre-sentence reports etc.E+W

(1)In forming any such opinion as is mentioned in subsection (1) or (3)(b) of section 35 above, a court shall take into account all such information as is available to it about the circumstances of the offence or (as the case may be) of the offence and the offence or offences associated with it, including any aggravating or mitigating factors.

(2)In forming any such opinion as is mentioned in subsection (3)(a) of that section, a court may take into account any information about the offender which is before it.

(3)The following provisions of this section apply in relation to—

(a)a [F8community rehabilitation order] which includes additional requirements authorised by Schedule 2 to this Act;

(b)a [F9community punishment order];

(c)a [F10community punishment and rehabilitation order];

(d)a drug treatment and testing order;

(e)a supervision order which includes requirements authorised by Schedule 6 to this Act.

(4)Subject to subsection (5) below, a court shall obtain and consider a pre-sentence report before forming an opinion as to the suitability for the offender of one or more of the orders mentioned in subsection (3) above.

(5)Subsection (4) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report.

(6)In a case where the offender is aged under 18 and the offence is not triable only on indictment and there is no other offence associated with it that is triable only on indictment, the court shall not form such an opinion as is mentioned in subsection (5) above unless—

(a)there exists a previous pre-sentence report obtained in respect of the offender; and

(b)the court has had regard to the information contained in that report, or, if there is more than one such report, the most recent report.

(7)No community sentence which consists of or includes such an order as is mentioned in subsection (3) above shall be invalidated by the failure of a court to obtain and consider a pre-sentence report before forming an opinion as to the suitability of the order for the offender, but any court on an appeal against such a sentence—

(a)shall, subject to subsection (8) below, obtain a pre-sentence report if none was obtained by the court below; and

(b)shall consider any such report obtained by it or by that court.

(8)Subsection (7)(a) above does not apply if the court is of the opinion—

(a)that the court below was justified in forming an opinion that it was unnecessary to obtain a pre-sentence report; or

(b)that, although the court below was not justified in forming that opinion, in the circumstances of the case at the time it is before the court, it is unnecessary to obtain a pre-sentence report.

(9)In a case where the offender is aged under 18 and the offence is not triable only on indictment and there is no other offence associated with it that is triable only on indictment, the court shall not form such an opinion as is mentioned in subsection (8) above unless—

(a)there exists a previous pre-sentence report obtained in respect of the offender; and

(b)the court has had regard to the information contained in that report, or, if there is more than one such report, the most recent report.

(10)Section 156 below (disclosure of pre-sentence report to offender etc.) applies to any pre-sentence report obtained in pursuance of this section.

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Amendments (Textual)

[F1136A Pre-sentence drug testing.E+W

(1)Where a person aged 18 or over is convicted of an offence and the court is considering passing a community sentence, it may make an order under subsection (2) below for the purpose of ascertaining whether the offender has any specified Class A drug in his body.

(2)The order shall require the offender to provide, in accordance with the order, samples of any description specified in the order.

(3)If it is proved to the satisfaction of the court that the offender has, without reasonable excuse, failed to comply with the order it may impose on him a fine of an amount not exceeding level 4.

  • In this subsection, “level 4” means the amount which, in relation to a fine for a summary offence, is level 4 on the standard scale.

(4)The court shall not make an order under subsection (2) above unless it has been notified by the Secretary of State that the power to make such orders is exercisable by the court and the notice has not been withdrawn.]

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Amendments (Textual)

F11S. 36A inserted (20.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, s. 48; S.I. 2001/2232, art. 2(b)

[F1236B Electronic monitoring of requirements in community orders.E+W

(1)Subject to subsections (2) to (4) below, a community order may include requirements for securing the electronic monitoring of the offender’s compliance with any other requirements imposed by the order.

(2)A court shall not include in a community order a requirement under subsection (1) above unless the court—

(a)has been notified by the Secretary of State that electronic monitoring arrangements are available in the relevant areas specified in subsections (7) to (10) below; and

(b)is satisfied that the necessary provision can be made under those arrangements.

(3)Where—

(a)it is proposed to include in an exclusion order a requirement for securing electronic monitoring in accordance with this section; but

(b)there is a person (other than the offender) without whose co-operation it will not be practicable to secure the monitoring,

the requirement shall not be included in the order without that person’s consent.

(4)Where—

(a)it is proposed to include in a community rehabilitation order or a community punishment and rehabilitation order a requirement for securing the electronic monitoring of the offender’s compliance with a requirement such as is mentioned in paragraph 8(1) of Schedule 2 to this Act; but

(b)there is a person (other than the offender) without whose co-operation it will not be practicable to secure the monitoring,

the requirement shall not be included in the order without that person’s consent.

(5)An order which includes requirements under subsection (1) above shall include provision for making a person responsible for the monitoring; and a person who is made so responsible shall be of a description specified in an order made by the Secretary of State.

(6)The Secretary of State may make rules for regulating—

(a)the electronic monitoring of compliance with requirements included in a community order; and

(b)without prejudice to the generality of paragraph (a) above, the functions of persons made responsible for securing the electronic monitoring of compliance with requirements included in the order.

(7)In the case of a curfew order or an exclusion order, the relevant area is the area in which the place proposed to be specified in the order is situated.

  • In this subsection, “place”, in relation to an exclusion order, has the same meaning as in section 40A below.

(8)In the case of a community rehabilitation order or a community punishment and rehabilitation order, the relevant areas are each of the following—

(a)where it is proposed to include in the order a requirement for securing compliance with a requirement such as is mentioned in sub-paragraph (1) of paragraph 7 of Schedule 2 to this Act, the area mentioned in sub-paragraph (5) of that paragraph;

(b)where it is proposed to include in the order a requirement for securing compliance with a requirement such as is mentioned in sub-paragraph (1) of paragraph 8 of that Schedule, the area mentioned in sub-paragraph (5) of that paragraph;

(c)where it is proposed to include in the order a requirement for securing compliance with any other requirement, the area proposed to be specified under section 41(3) below.

(9)In the case of a community punishment order, a drug treatment and testing order, a drug abstinence order, a supervision order or an action plan order, the relevant area is the petty sessions area proposed to be specified in the order.

(10)In the case of an attendance centre order, the relevant area is the petty sessions area in which the attendance centre proposed to be specified in the order is situated.]

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Amendments (Textual)

F12S. 36B inserted (20.6.2001 for specified purposes and 2.7.2001 for further specified purposes otherwiseprosp.) by 2000 c. 43, ss. 52, 80(1); S.I. 2001/2232, art. 2(e)

Chapter IIE+WCommunity orders available for offenders of any age

Curfew ordersE+W

37 Curfew orders.E+W

(1)Where a person is convicted of an offence, the court by or before which he is convicted may (subject to sections 34 to 36 above) make an order requiring him to remain, for periods specified in the order, at a place so specified.

(2)An order under subsection (1) above is in this Act referred to as a “curfew order”.

(3)A curfew order may specify different places or different periods for different days, but shall not specify—

(a)periods which fall outside the period of six months beginning with the day on which it is made; or

(b)periods which amount to less than two hours or more than twelve hours in any one day.

(4)In relation to an offender aged under 16 on conviction, subsection (3)(a) above shall have effect as if the reference to six months were a reference to three months.

(5)The requirements in a curfew order shall, as far as practicable, be such as to avoid—

(a)any conflict with the offender’s religious beliefs or with the requirements of any other community order to which he may be subject; and

(b)any interference with the times, if any, at which he normally works or attends school or any other educational establishment.

(6)A curfew order shall include provision for making a person responsible for monitoring the offender’s whereabouts during the curfew periods specified in the order; and a person who is made so responsible shall be of a description specified in an order made by the Secretary of State.

(7)A court shall not make a curfew order unless the court has been notified by the Secretary of State that arrangements for monitoring the offender’s whereabouts are available in the area in which the place proposed to be specified in the order is situated and the notice has not been withdrawn.

(8)Before making a curfew order, the court shall obtain and consider information about the place 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).

(9)Before making a curfew order in respect of an offender who on conviction is under 16, the court shall obtain and consider information about his family circumstances and the likely effect of such an order on those circumstances.

(10)Before making a curfew order, the court shall explain to the offender in ordinary language—

(a)the effect of the order (including any additional requirements proposed to be included in the order in accordance with [F13section 36B above] (electronic monitoring));

(b)the consequences which may follow (under Part II of Schedule 3 to this Act) if he fails to comply with any of the requirements of the order; and

(c)that the court has power (under Parts III and IV of that Schedule) to review the order on the application either of the offender or of the responsible officer.

(11)The court by which a curfew order is made shall give a copy of the order to the offender and to the responsible officer.

(12)In this Act, “responsible officer”, in relation to an offender subject to a curfew order, means the person who is responsible for monitoring the offender’s whereabouts during the curfew periods specified in the order.

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Amendments (Textual)

F13Words in s. 37(10)(a) substituted (20.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 162; S.I. 2001/2232, art. 2(k)(m)(iv)

Modifications etc. (not altering text)

C4S. 37(1)(3)(5)-(8)(10)-(12) applied (with modifications) (25.8.2000) by 1997 c. 43, s. 35(7)(8) (as substituted (25.8.2000) by 2000 c. 6, ss. 165, 168(1), Sch. 9 para. 184(4))

F1438. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
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Amendments (Textual)

F14S. 38 repealed (20.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, ss. 74, 75, Sch. 7 Pt. II para. 163, Sch. 8; S.I. 2001/2232, art. 2(k)(m)(iv)(n)

39 Breach, revocation and amendment of curfew orders.E+W

Schedule 3 to this Act (which makes provision for dealing with failures to comply with the requirements of certain community orders, for revoking such orders with or without the substitution of other sentences and for amending such orders) shall have effect so far as relating to curfew orders.

40 Curfew orders: supplementary.E+W

(1)The Secretary of State may make rules for regulating—

(a)the monitoring of the whereabouts of persons who are subject to curfew orders F15. . .; and

(b)without prejudice to the generality of paragraph (a) above, the functions of the responsible officers of persons who are subject to curfew orders.

(2)The Secretary of State may by order direct—

(a)that subsection (3) of section 37 above shall have effect with the substitution, for any period there specified, of such period as may be specified in the order; or

(b)that subsection (5) of that section shall have effect with such additional restrictions as may be so specified.

[F16(3)An order under subsection (2)(a) above may make in paragraphs 2A(4) and (5) and 19(3) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order.]

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Amendments (Textual)

F15Words in s. 40(1)(a) repealed (1.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, ss. 74, 75, Sch. 7 Pt. II para. 164(a), Sch. 8; S.I. 2001/2232, art. 2(k)(m)(v)(n)

F16S. 40(3) inserted (20.6.2001 for certain purposes and 2.7.2001 for certain further purposes and otherwiseprosp.) by 2000 c. 43, ss. 74, 80(1), Sch. 7 Pt. II para. 164(b); S.I. 2001/2232, art. 2(m)(v)

Chapter IIIE+W+S+N.I.Community orders available only where offender aged 16 or over

Probation ordersE+W+S+N.I.

41[F17community rehabilitation orders].E+W

(1)Where a person aged 16 or over is convicted of an offence and the court by or before which he is convicted is of the opinion that his supervision is desirable in the interests of—

(a)securing his rehabilitation, or

(b)protecting the public from harm from him or preventing the commission by him of further offences,

the court may (subject to sections 34 to 36 above) make an order requiring him to be under supervision for a period specified in the order of not less than six months nor more than three years.

(2)An order under subsection (1) above is in this Act referred to as a [F18“community rehabilitation order”].

(3)A [F17community rehabilitation order] shall specify the petty sessions area in which the offender resides or will reside.

(4)If the offender is aged 18 or over at the time when the [F17community rehabilitation order] is made, he shall, subject to paragraph 18 of Schedule 3 to this Act (offender’s change of area), be required to be under the supervision of [F19an officer of a local probation board] appointed for or assigned to the petty sessions area specified in the order.

(5)If the offender is aged under 18 at that time, he shall, subject to paragraph 18 of Schedule 3, be required to be under the supervision of—

(a)[F19an officer of a local probation board] appointed for or assigned to the petty sessions area specified in the order; or

(b)a member of a youth offending team established by a local authority specified in the order;

and if an order specifies a local authority for the purposes of paragraph (b) above, the authority specified must be the local authority within whose area it appears to the court that the offender resides or will reside.

(6)In this Act, “responsible officer”, in relation to an offender who is subject to a [F17community rehabilitation order], means [F19the officer of a local probation board] or member of a youth offending team responsible for his supervision.

(7)Before making a [F17community rehabilitation order], the court shall explain to the offender in ordinary language—

(a)the effect of the order (including any additional requirements proposed to be included in the order in accordance with section 42 below);

(b)the consequences which may follow (under Part II of Schedule 3 to this Act) if he fails to comply with any of the requirements of the order; and

(c)that the court has power (under Parts III and IV of that Schedule) to review the order on the application either of the offender or of the responsible officer.

(8)On making a [F17community rehabilitation order], 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.

(9)The court by which a [F17community rehabilitation order] is made shall forthwith give copies of the order to—

(a)if the offender is aged 18 or over, [F19an officer of a local probation board] assigned to the court, or

(b)if the offender is aged under 18, [F19an officer of a local probation board] or member of a youth offending team so assigned,

and he shall give a copy to the offender, to the responsible officer and to the person in charge of any institution in which the offender is required by the order to reside.

(10)The court by which such an order is made shall also, except where it itself acts for the petty sessions area specified in the order, send to the [F20justices’ chief executive] for that area—

(a)a copy of the order; and

(b)such documents and information relating to the case as it considers likely to be of assistance to a court acting for that area in the exercise of its functions in relation to the order.

(11)An offender in respect of whom a [F17community rehabilitation order] is made shall keep in touch with the responsible officer in accordance with such instructions as he may from time to time be given by that officer, and shall notify him of any change of address.

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Amendments (Textual)

F17Words in s. 41(3)(4)(6)-(9)(11) and the sidenote substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 1(1)(2); S.I. 2001/919, art. 2(f)(i)

F18Words in s. 41(2) substituted (1.4.2001) by 2000 c. 43, s. 43(3)(a); S.I. 2001/919, art. 2(b)

F20Words in s. 41(10) substituted (1.4.2001) by S.I. 2001/618, art. 5(2)

Modifications etc. (not altering text)

42 Additional requirements which may be included in [F21community rehabilitation orders].E+W

(1)Subject to subsection (3) below, a [F21community rehabilitation order] may in addition require the offender to comply during the whole or any part of the [F22community rehabilitation period] with such requirements as the court, having regard to the circumstances of the case, considers desirable in the interests of—

(a)securing the rehabilitation of the offender; or

(b)protecting the public from harm from him or preventing the commission by him of further offences.

(2)Without prejudice to the generality of subsection (1) above,

[F23(a)]the additional requirements which may be included in a [F21community rehabilitation order] shall include the requirements which are authorised by Schedule 2 to this Act..

[F24(b)subject to subsections (2D) and (2F) below, the order shall, if the first set of conditions is satisfied, include a drug abstinence requirement and may include such a requirement if the second set of conditions is satisfied.

(2A)For the purposes of this Part of this Act, a drug abstinence requirement is a requirement for the offender—

(a)to abstain from misusing specified Class A drugs; and

(b)to provide, when instructed to do so by the responsible officer, any sample mentioned in the instruction for the purpose of ascertaining whether he has any specified Class A drug in his body.

(2B)The first set of conditions is—

(a)that the offender was aged 18 or over on the date of his conviction for the offence;

(b)that, in the opinion of the court, the offender is dependent on or has a propensity to misuse specified Class A drugs; and

(c)that the offence is a trigger offence.

(2C)The second set of conditions is—

(a)that the offender was aged 18 or over on the date of his conviction for the offence; and

(b)that, in the opinion of the court—

(i)the offender is dependent on or has a propensity to misuse specified Class A drugs; and

(ii)the misuse by the offender of any specified Class A drug caused or contributed to the offence.

(2D)The order may not include a drug abstinence requirement if—

(a)the community rehabilitation order includes any requirement in respect of drugs under paragraph 6 of Schedule 2 to this Act; or

(b)the community sentence includes a drug treatment and testing order or a drug abstinence order.

(2E)The function of giving instructions for the purposes of subsection (2A)(b) above shall be exercised in accordance with guidance given from time to time by the Secretary of State; and the Secretary of State may make rules for regulating the provision of samples in pursuance of such instructions.

(2F)The court shall not include a drug abstinence requirement in the order unless the court has been notified by the Secretary of State that arrangements for implementing such requirements are available in the area proposed to be specified under section 41(3) above and the notice has not been withdrawn.]

(3)Without prejudice to the power of the court under section 130 below to make a compensation order, the payment of sums by way of damages for injury or compensation for loss shall not be included among the additional requirements of a [F21community rehabilitation order].

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Amendments (Textual)

F21Words in s. 42 and the sidenote substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 1(1)(2); S.I. 2001/919, art. 2(f)(i)

F23Words in s. 42(2) renumbered as s. 42(2)(a) (20.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, s. 49(1)(a); S.I. 2001/2232, art. 2(c)

F24S. 42(2)(b)(2A)-(2F) inserted (20.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, s. 49(1)(b); S.I. 2001/2232, art. 2(c)

43 Breach, revocation and amendment of [F25community rehabilitation orders].E+W

Schedule 3 to this Act (which makes provision for dealing with failures to comply with the requirements of certain community orders, for revoking such orders with or without the substitution of other sentences and for amending such orders) shall have effect so far as relating to [F25community rehabilitation orders].

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Amendments (Textual)

F25Words in s. 43 and the sidenote substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 1(1)(b)(2); S.I. 2001/919, art. 2(f)(i)

44 Offenders residing in Scotland or Northern Ireland.E+W+S+N.I.

Schedule 4 to this Act (which makes provision for and in connection with the making and amendment in England and Wales of certain community orders relating to persons residing in Scotland or Northern Ireland) shall have effect so far as relating to [F26community rehabilitation orders].

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Amendments (Textual)

45[F27Community rehabilitation orders]: supplementary.E+W

(1)The Secretary of State may by order direct that subsection (1) of section 41 above shall be amended by substituting, for the minimum or maximum period specified in that subsection as originally enacted or as previously amended under this subsection, such period as may be specified in the order.

(2)An order under subsection (1) above may make in paragraph 19(2)(a) of Schedule 3 to this Act any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order.

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Amendments (Textual)

F27Words in the sidenote to s. 45 substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 1(1)(b)(2); S.I. 2001/919, art. 2(f)(i)

[F28Community punishment orders]E+W+S+N.I.

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Amendments (Textual)

F28Words in cross-heading substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 2(1)(b)(2); S.I. 2001/919, art. 2(f)(i)

46[F29Community punishment orders].E+W

(1)Where a person aged 16 or over is convicted of an offence punishable with imprisonment, the court by or before which he is convicted may (subject to sections 34 to 36 above) make an order requiring him to perform unpaid work in accordance with section 47 below.

(2)An order under subsection (1) above is in this Act referred to as a [F30“community punishment order”].

(3)The number of hours which a person may be required to work under a [F29community punishment order] shall be specified in the order and shall be in the aggregate—

(a)not less than 40; and

(b)not more than 240.

(4)A court shall not make a [F29community punishment order] in respect of an offender unless, after hearing (if the court thinks it necessary) an appropriate officer, the court is satisfied that the offender is a suitable person to perform work under such an order.

(5)In subsection (4) above “an appropriate officer” means—

(a)in the case of an offender aged 18 or over, [F31an officer of a local probation board] or social worker of a local authority social services department; and

(b)in the case of an offender aged under 18, [F31an officer of a local probation board], a social worker of a local authority social services department or a member of a youth offending team.

(6)A court shall not make a [F29community punishment order] in respect of an offender unless it is satisfied that provision for him to perform work under such an order can be made under the arrangements for persons to perform work under such orders which exist in the petty sessions area in which he resides or will reside.

(7)Subsection (6) above has effect subject to paragraphs 3 and 4 of Schedule 4 to this Act (transfer of order to Scotland or Northern Ireland).

(8)Where a court makes [F29community punishment orders] in respect of two or more offences of which the offender has been convicted by or before the court, the court may direct that the hours of work specified in any of those orders shall be concurrent with or additional to those specified in any other of those orders, but so that the total number of hours which are not concurrent shall not exceed the maximum specified in subsection (3)(b) above.

(9)A [F29community punishment order]

(a)shall specify the petty sessions area in which the offender resides or will reside; and

(b)where the offender is aged under 18 at the time the order is made, may also specify a local authority for the purposes of section 47(5)(b) below (cases where functions are to be discharged by member of a youth offending team);

and if the order specifies a local authority for those purposes, the authority specified must be the local authority within whose area it appears to the court that the offender resides or will reside.

(10)Before making a [F29community punishment order], the court shall explain to the offender in ordinary language—

(a)the purpose and effect of the order (and in particular the requirements of the order as specified in section 47(1) to (3) below);

(b)the consequences which may follow (under Part II of Schedule 3 to this Act) if he fails to comply with any of those requirements; and

(c)that the court has power (under Parts III and IV of that Schedule) to review the order on the application either of the offender or of the responsible officer.

(11)The court by which a [F29community punishment order] is made shall forthwith give copies of the order to—

(a)if the offender is aged 18 or over, [F31an officer of a local probation board] assigned to the court, or

(b)if the offender is aged under 18, [F31an officer of a local probation board] or member of a youth offending team so assigned,

and he shall give a copy to the offender and to the responsible officer.

(12)The court by which such an order is made shall also, except where it itself acts for the petty sessions area specified in the order, send to the [F32justices’ chief executive] for that area—

(a)a copy of the order; and

(b)such documents and information relating to the case as it considers likely to be of assistance to a court acting for that area in the exercise of its functions in relation to the order.

(13)In this section and Schedule 3 to this Act “responsible officer”, in relation to an offender subject to a [F29community punishment order], means the person mentioned in subsection (4) [F33. . .] or (5)(b) of section 47 below who, as respects the order, is responsible for discharging the functions conferred by that section.

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Amendments (Textual)

F30Words in s. 46(2) substituted (1.4.2001) by 2000 c. 43, s. 44(3)(a); S.I. 2001/919, art. 2(b)

F32Words in s. 46(12) substituted (1.4.2001) by S.I. 2001/618, art. 5(3)

Modifications etc. (not altering text)

C6S. 46(1) applied (with modifications) (25.8.2000) by 1997 c. 43, s. 35(4) (as substituted (25.8.2000) by 2000 c. 6, ss. 165, 168(1), Sch. 9 para. 184(3))

S. 46(1) amended (1.4.2001) by 2000 c. 43, s. 44(1); S.I. 2001/919, art. 2(b)

47 Obligations of person subject to [F34community punishment order].E+W

(1)An offender in respect of whom a [F34community punishment order] is in force shall—

(a)keep in touch with the responsible officer in accordance with such instructions as he may from time to time be given by that officer and notify him of any change of address; and

(b)perform for the number of hours specified in the order such work at such times as he may be instructed by the responsible officer.

(2)The instructions given by the responsible officer under this section shall, as far as practicable, be such as to avoid—

(a)any conflict with the offender’s religious beliefs or with the requirements of any other community order to which he may be subject; and

(b)any interference with the times, if any, at which he normally works or attends school or any other educational establishment.

(3)Subject to paragraph 22 of Schedule 3 to this Act (power to extend order), the work required to be performed under a [F34community punishment order] shall be performed during the period of twelve months beginning with the date of the order; but, unless revoked, the order shall remain in force until the offender has worked under it for the number of hours specified in it.

[F35(3A)Subject to subsection (3B) below, the community punishment order shall, if the set of conditions in section 42(2B) above is satisfied, include a drug abstinence requirement and may include such a requirement if the set of conditions in section 42(2C) above is satisfied.

(3B)The order may not include a drug abstinence requirement if the community sentence includes a drug treatment and testing order or a drug abstinence order.

(3C)Subsections (2E) and (2F) of section 42 above apply for the purposes of this section as they apply for the purposes of that.]

(4)If the offender is aged 18 or over at the time when the order is made, the functions conferred by this section on “the responsible officer” shall be discharged by [F36an officer of a local probation board appointed for or assigned to the petty sessions area specified in the order]

(5)If the offender is aged under 18 at that time, those functions shall be discharged by—

(a)a person mentioned in subsection (4) [F37(a) or (b)]above; or

(b)a member of a youth offending team established by a local authority specified in the order.

(6)The reference in subsection (4) above to the petty sessions area specified in the order and the reference in subsection (5) above to a local authority so specified are references to the area or an authority for the time being so specified, whether under section 46(9) above or by virtue of Part IV of Schedule 3 to this Act (power to amend orders).

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Amendments (Textual)

F34Words in s. 47(1)(3) and the sidenote substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 2(1)(a)(2); S.I. 2001/919, art. 2(f)(i)

F35S. 47(3A)-(3C) inserted (20.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, s. 49(2); S.I. 2001/2232, art. 2(c)

F36Words in s. 47(4) substituted (1.4.2001) for s. 47(4)(a)(b) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 169(a); S.I. 2001/919, art. 2(f)(ii)

48 Breach, revocation and amendment of [F38community punishment orders].E+W

Schedule 3 to this Act (which makes provision for dealing with failures to comply with the requirements of certain community orders, for revoking such orders with or without the substitution of other sentences and for amending such orders) shall have effect so far as relating to [F38community punishment orders].

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Amendments (Textual)

F38Words in s. 48 and sidenote substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 2(1)(b)(2); S.I. 2001/919, art. 2(f)(i)

49 Offenders residing in Scotland or Northern Ireland.E+W+S+N.I.

Schedule 4 to this Act (which makes provision for and in connection with the making and amendment in England and Wales of certain community orders relating to persons residing in Scotland or Northern Ireland) shall have effect so far as relating to [F39community punishment orders].

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Amendments (Textual)

50[F40Community punishment orders]: supplementary.E+W

The Secretary of State may by order direct that subsection (3) of section 46 above shall be amended by substituting, for the maximum number of hours for the time being specified in paragraph (b) of that subsection, such number of hours as may be specified in the order.

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Amendments (Textual)

F40Words in the sidenote to s. 50 substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 2(1)(b)(2); S.I. 2001/919, art. 2(f)(i)

[F41Community punishment and rehabilitation orders]E+W+S+N.I.

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Amendments (Textual)

F41Words in cross-heading substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 3(1)(b)(2); S.I. 2001/919, art. 2(f)(i)

51[F42Community punishment and rehabilitation orders].E+W+S+N.I.

F43(1)Where a person aged 16 or over is convicted of an offence punishable with imprisonment and the court by or before which he is convicted is of the opinion mentioned in subsection (3) below, the court may (subject to sections 34 to 36 above) make an order requiring him both—

(a)to be under supervision for a period specified in the order, being not less than twelve months nor more than three years; and

(b)to perform unpaid work for a number of hours so specified, being in the aggregate not less than 40 nor more than 100.

(2)An order under subsection (1) above is in this Act referred to as a [F44“community punishment and rehabilitation order”].

(3)The opinion referred to in subsection (1) above is that the making of a [F42community punishment and rehabilitation order] is desirable in the interests of—

(a)securing the rehabilitation of the offender; or

(b)protecting the public from harm from him or preventing the commission by him of further offences.

(4)Subject to subsection (1) above, sections 41, 42, 46 and 47 above and Schedule 2 to this Act shall apply in relation to [F42community punishment and rehabilitation orders]

(a)in so far as those orders impose such a requirement as is mentioned in paragraph (a) of subsection (1) above, as if they were [F45community rehabilitation orders]; and

(b)in so far as they impose such a requirement as is mentioned in paragraph (b) of that subsection, as if they were [F46community punishment orders].

(5)Schedule 3 to this Act (which makes provision for dealing with failures to comply with the requirements of certain community orders, for revoking such orders with or without the substitution of other sentences and for amending such orders) shall have effect so far as relating to [F42community punishment and rehabilitation orders].

(6)Schedule 4 to this Act (which makes provision for and in connection with the making and amendment in England and Wales of certain community orders relating to persons residing in Scotland or Northern Ireland) shall have effect so far as relating to [F42community punishment and rehabilitation orders].

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Amendments (Textual)

F42Words in s. 51(3)-(6) and sidenote substituted (1.4.2001) by 2000 c. 43, s. 74, Sch. 7 Pt. I para. 3(1)(2); S.I. 2001/919, art. 2(f)(i)

F43S. 51(1) amended (E.W.) (1.4.2001) by 2000 c. 43, s. 45(1); S.I. 2001/919, art. 2(b)

F44Words in s. 51(2) substituted (E.W.) (1.4.2001) by 2000 c. 43, s. 45(3)(a); S.I. 2001/919, art. 2(b)

Drug treatment and testing ordersE+W

52 Drug treatment and testing orders.E+W

(1)Where a person aged 16 or over is convicted of an offence, the court by or before which he is convicted may (subject to sections 34 to 36 above) make an order which—

(a)has effect for a period specified in the order of not less than six months nor more than three years (“the treatment and testing period”); and

(b)includes the requirements and provisions mentioned in sections 53 and 54 below;

but this section does not apply in relation to an offence committed before 30th September 1998.

(2)An order under subsection (1) above is in this Act referred to as a “drug treatment and testing order”.

(3)A court shall not make a drug treatment and testing order in respect of an offender unless it is satisfied—

(a)that he is dependent on or has a propensity to misuse drugs; and

(b)that his dependency or propensity is such as requires and may be susceptible to treatment.

(4)For the purpose of ascertaining for the purposes of subsection (3) above whether the offender has any drug in his body, the court may by order require him to provide samples of such description as it may specify; but the court shall not make such an order unless the offender expresses his willingness to comply with its requirements.

(5)A court shall not make a drug treatment and testing order unless it has been notified by the Secretary of State that arrangements for implementing such orders are available in the area proposed to be specified in the order under section 54(1) below and the notice has not been withdrawn.

(6)Before making a drug treatment and testing order, the court shall explain to the offender in ordinary language—

(a)the effect of the order and of the requirements proposed to be included in it;

(b)the consequences which may follow (under Part II of Schedule 3 to this Act) if he fails to comply with any of those requirements;

(c)that the order will be periodically reviewed at intervals as provided for in the order (by virtue of section 54(6) below); and

(d)that the order may be reviewed (under Parts III and IV of Schedule 3) on the application either of the offender or of the responsible officer;

and “responsible officer” here has the meaning given by section 54(3) below.

(7)A court shall not make a drug treatment and testing order unless the offender expresses his willingness to comply with its requirements.

53 The treatment and testing requirements.E+W

(1)A drug treatment and testing order shall include a requirement (“the treatment requirement”) that the offender shall submit, during the whole of the treatment and testing period, to treatment by or under the direction of a specified person having the necessary qualifications or experience (“the treatment provider”) with a view to the reduction or elimination of the offender’s dependency on or propensity to misuse drugs.

(2)The required treatment for any particular period shall be—

(a)treatment as a resident in such institution or place as may be specified in the order; or

(b)treatment as a non-resident in or at such institution or place, and at such intervals, as may be so specified;

but the nature of the treatment shall not be specified in the order except as mentioned in paragraph (a) or (b) above.

(3)A court shall not make a drug treatment and testing order unless it is satisfied that arrangements have been or can be made for the treatment intended to be specified in the order (including arrangements for the reception of the offender where he is to be required to submit to treatment as a resident).

(4)A drug treatment and testing order shall include a requirement (“the testing requirement”) that, for the purpose of ascertaining whether he has any drug in his body during the treatment and testing period, the offender shall during that period, at such times or in such circumstances as may (subject to the provisions of the order) be determined by the treatment provider, provide samples of such description as may be so determined.

(5)The testing requirement shall specify for each month the minimum number of occasions on which samples are to be provided.

54 Provisions of order as to supervision and periodic review.E+W

(1)A drug treatment and testing order shall include a provision specifying the petty sessions area in which it appears to the court making the order that the offender resides or will reside.

(2)A drug treatment and testing order shall provide that, for the treatment and testing period, the offender shall be under the supervision of [F47an officer of a local probation board] appointed for or assigned to the petty sessions area specified in the order.

(3)In this Act “responsible officer”, in relation to an offender who is subject to a drug treatment and testing order, means [F47the officer of a local probation board] responsible for his supervision.

(4)A drug treatment and testing order shall—

(a)require the offender to keep in touch with the responsible officer in accordance with such instructions as he may from time to time be given by that officer, and to notify him of any change of address; and

(b)provide that the results of the tests carried out on the samples provided by the offender in pursuance of the testing requirement shall be communicated to the responsible officer.

(5)Supervision by the responsible officer shall be carried out to such extent only as may be necessary for the purpose of enabling him—

(a)to report on the offender’s progress to the court responsible for the order;

(b)to report to that court any failure by the offender to comply with the requirements of the order; and

(c)to determine whether the circumstances are such that he should apply to that court for the revocation or amendment of the order.

(6)A drug treatment and testing order shall—

(a)provide for the order to be reviewed periodically at intervals of not less than one month;

(b)provide for each review of the order to be made, subject to section 55(6) below, at a hearing held for the purpose by the court responsible for the order (a “review hearing”);

(c)require the offender to attend each review hearing;

(d)provide for the responsible officer to make to the court responsible for the order, before each review, a report in writing on the offender’s progress under the order; and

(e)provide for each such report to include the test results communicated to the responsible officer under subsection (4)(b) above and the views of the treatment provider as to the treatment and testing of the offender.

(7)In this section references to the court responsible for a drug treatment and testing order are references to—

(a)where a court is specified in the order in accordance with subsection (8) below, that court;

(b)in any other case, the court by which the order is made.

(8)Where the area specified in a drug treatment and testing order made by a magistrates’ court is not the area for which the court acts, the court may, if it thinks fit, include in the order provision specifying for the purposes of subsection (7) above a magistrates’ court which acts for the area specified in the order.

(9)Where a drug treatment and testing order has been made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, for the purposes of subsection (7)(b) above it shall be deemed to have been made by the Crown Court.

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Amendments (Textual)

55 Periodic reviews.E+W

(1)At a review hearing (within the meaning given by subsection (6) of section 54 above) the court may, after considering the responsible officer’s report referred to in that subsection, amend any requirement or provision of the drug treatment and testing order.

(2)The court—

(a)shall not amend the treatment or testing requirement unless the offender expresses his willingness to comply with the requirement as amended;

(b)shall not amend any provision of the order so as to reduce the treatment and testing period below the minimum specified in section 52(1) above, or to increase it above the maximum so specified; and

(c)except with the consent of the offender, shall not amend any requirement or provision of the order while an appeal against the order is pending.

(3)If the offender fails to express his willingness to comply with the treatment or testing requirement as proposed to be amended by the court, the court may—

(a)revoke the order; and

(b)deal with him, for the offence in respect of which the order was made, in any way in which it could deal with him if he had just been convicted by the court of the offence.

(4)In dealing with the offender under subsection (3)(b) above, the court—

(a)shall take into account the extent to which the offender has complied with the requirements of the order; and

(b)may impose a custodial sentence (where the order was made in respect of an offence punishable with such a sentence) notwithstanding anything in section 79(2) below.

(5)Where the order was made by a magistrates’ court in the case of an offender under 18 years of age in respect of an offence triable only on indictment in the case of an adult, any powers exercisable under subsection (3)(b) above in respect of the offender after he attains the age of 18 shall be powers to do either or both of the following—

(a)to impose a fine not exceeding £5,000 for the offence in respect of which the order was made;

(b)to deal with the offender for that offence in any way in which the court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months.

(6)If at a review hearing the court, after considering the responsible officer’s report, is of the opinion that the offender’s progress under the order is satisfactory, the court may so amend the order as to provide for each subsequent review to be made by the court without a hearing.

(7)If at a review without a hearing the court, after considering the responsible officer’s report, is of the opinion that the offender’s progress under the order is no longer satisfactory, the court may require the offender to attend a hearing of the court at a specified time and place.

(8)At that hearing the court, after considering that report, may—

(a)exercise the powers conferred by this section as if the hearing were a review hearing; and

(b)so amend the order as to provide for each subsequent review to be made at a review hearing.

(9)In this section any reference to the court, in relation to a review without a hearing, shall be construed—

(a)in the case of the Crown Court, as a reference to a judge of the court;

(b)in the case of a magistrates’ court, as a reference to a justice of the peace acting for the commission area for which the court acts.

56 Breach, revocation and amendment of drug treatment and testing orders.E+W

Schedule 3 to this Act (which makes provision for dealing with failures to comply with the requirements of certain community orders, for revoking such orders with or without the substitution of other sentences and for amending such orders) shall have effect so far as relating to drug treatment and testing orders.

57 Copies of orders.E+W

(1)Where a drug treatment and testing order is made, the court making the order shall (subject to subsection (3) below) forthwith give copies of the order to [F48an officer of a local probation board] assigned to the court.

(2)Where such an order is amended under section 55(1) above, the court amending the order shall [F49(subject to subsection (3A) below)] forthwith give copies of the order as amended to [F48an officer of a local probation board] so assigned.

(3)Where a drug treatment and testing order is made by a magistrates’ court and another magistrates’ court is responsible for the order (within the meaning given by section 54(7) above) by virtue of being specified in the order in accordance with section 54(8)—

(a)the court making the order shall not give copies of it as mentioned in subsection (1) above but shall forthwith send copies of it to the court responsible for the order; and

(b)that court shall, as soon as reasonably practicable after the order is made, give copies of it to [F48an officer of a local probation board] assigned to that court.

[F50(3A)Where—

(a)a magistrates’ court amends a drug treatment and testing order under section 55(1) above; and

(b)the order as amended provides for a magistrates’ court other than that mentioned in paragraph (a) above to be responsible for the order;

the court amending the order shall not give copies of the order as amended as mentioned in subsection (2) above but shall forthwith send copies of it to the court responsible for the order and that court shall, as soon as reasonably practicable after the order is amended, give copies to an officer of a local probation board assigned to that court.]

(4)[F48an officer of a local probation board] to whom copies of an order are given under this section shall give a copy to—

(a)the offender;

(b)the treatment provider; and

(c)the responsible officer.

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Amendments (Textual)

58 Drug treatment and testing orders: supplementary.E+W

The Secretary of State may by order amend subsection (1) of section 52 above by substituting a different period for the minimum or maximum period for the time being specified in that subsection.

[F51 Drug abstinence orders]E+W

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Amendments (Textual)

F51Ss. 58A, 58B and cross-heading inserted (20.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, s. 47; S.I. 2001/2232, art. 2(a)

F5258A[ Drug abstinence orders.]E+W

(1)Where a person aged 18 or over is convicted of an offence, the court by or before which he is convicted may (subject to sections 34 to 36 above) make an order which requires the offender—

(a)to abstain from misusing specified Class A drugs; and

(b)to provide, when instructed to do so by the responsible officer, any sample mentioned in the instruction for the purpose of ascertaining whether he has any specified Class A drug in his body.

(2)An order under subsection (1) above is in this Act referred to as a “drug abstinence order”.

(3)The court shall not make a drug abstinence order in respect of an offender unless—

(a)in the opinion of the court, the offender is dependent on, or has a propensity to misuse, specified Class A drugs; and

(b)the offence in question is a trigger offence or, in the opinion of the court, the misuse by the offender of any specified Class A drug caused or contributed to the offence in question.

(4)A drug abstinence order shall provide that, for the period for which the order has effect, the offender shall be under the supervision of a person, being a person of a description specified in an order made by the Secretary of State.

(5)In this Act, “responsible officer”, in relation to an offender who is subject to a drug abstinence order, means the person who is responsible for his supervision.

(6)The function of giving instructions for the purposes of subsection (1)(b) above shall be exercised in accordance with guidance given from time to time by the Secretary of State.

(7)A drug abstinence order shall have effect for a period specified in the order of not less than six months nor more than three years.

(8)The Secretary of State may make rules for regulating the provision of samples in pursuance of such instructions.

(9)A court shall not make a drug abstinence order unless the court has been notified by the Secretary of State that arrangements for implementing such orders are available in the area proposed to be specified in the order under section 54(1) above (as applied by section 58B(2) below) and the notice has not been withdrawn.

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Amendments (Textual)

F52Ss. 58A, 58B and cross-heading inserted (20.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, s. 47; S.I. 2001/2232, art. 2(a)

[F5358B Drug abstinence orders: supplementary.E+W

(1)Before making a drug abstinence order, the court shall explain to the offender in ordinary language—

(a)the effect of the order and of the requirements proposed to be included in it;

(b)the consequences which may follow (under Part II of Schedule 3 to this Act) if he fails to comply with any of those requirements; and

(c)that the order may be reviewed (under Parts III and IV of that Schedule) on the application either of the offender or of the responsible officer.

(2)Section 54 above (except subsections (2), (3) and (6)) and section 57 above (except subsections (2), (3A) and (4)(b)) shall apply for the purposes of section 58A above and this section as if references to drug treatment and testing orders were references to drug abstinence orders.

(3)Schedule 3 to this Act (which makes provision for dealing with failures to comply with the requirements of certain community orders, for revoking such orders with or without the substitution of other sentences and for amending such orders) shall have effect so far as relating to drug abstinence orders.]

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Amendments (Textual)

F53Ss. 58A, 58B anmd cross-heading inserted (20.6.2001 for specified purposes otherwise 2.7.2001) by 2000 c. 43, s. 47; S.I. 2001/2232, art. 2(a)

Orders for persistent petty offendersE+W

59 Curfew orders and [F54community punishment orders] for persistent petty offenders.E+W

(1)This section applies where—

(a)a person aged 16 or over is convicted of an offence;

(b)the court by or before which he is convicted is satisfied that each of the conditions mentioned in subsection (2) below is fulfilled; and

(c)if it were not so satisfied, the court would be minded to impose a fine in respect of the offence.

(2)The conditions are that—

(a)one or more fines imposed on the offender in respect of one or more previous offences have not been paid; and

(b)if a fine were imposed in an amount which was commensurate with the seriousness of the offence, the offender would not have sufficient means to pay it.

(3)The court may—

(a)subject to subsections (5) and (7) below, make a curfew order under section 37(1) above, or

(b)subject to subsections (6) and (7) below, make a [F54community punishment order] under section 46(1) above,

in respect of the offender instead of imposing a fine.

(4)Subsection (3) above applies notwithstanding anything in subsections (1) and (3)(b) of section 35 above (restrictions on imposing community sentences).

(5)Section 37(1) above (curfew orders) shall apply for the purposes of subsection (3)(a) above as if for the words from the beginning to “make” there were substituted “ Where section 59 below applies, the court may make in respect of the offender ”; and—

(a)section 37(3), (5) to (8) and (10) to (12), and

(b)so far as applicable, the other provisions of this Part relating to curfew orders,

have effect in relation to a curfew order made by virtue of this section as they have effect in relation to any other curfew order.

(6)Section 46(1) above ([F54community punishment orders]) shall apply for the purposes of subsection (3)(b) above as if for the words from the beginning to “make” there were substituted “ Where section 59 below applies, the court may make in respect of the offender ”; and—

(a)section 46(3) and (4), and

(b)so far as applicable, the following provisions of section 46 and the other provisions of this Part relating to [F54community punishment orders],

have effect in relation to a [F54community punishment order] made by virtue of this section as they have effect in relation to any other community service order.

(7)A court shall not make an order by virtue of subsection (3)(a) or (b) above unless the court has been notified by the Secretary of State that arrangements for implementing orders so made are available in the relevant area and the notice has not been withdrawn.

(8)In subsection (7) above “the relevant area” means—

(a)in relation to a curfew order, the area in which the place proposed to be specified in the order is situated;

(b)in relation to a [F54community punishment order], the area proposed to be specified in the order.

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Amendments (Textual)

Chapter IVE+WAttendance centre orders: offenders under 21 and defaulters

60 Attendance centre orders.E+W

(1)Where—

(a)(subject to sections 34 to 36 above) a person aged under 21 is convicted by or before a court of an offence punishable with imprisonment, or

(b)a court would have power, but for section 89 below (restrictions on imprisonment of young offenders and defaulters), to commit a person aged under 21 to prison in default of payment of any sum of money or for failing to do or abstain from doing anything required to be done or left undone, or

(c)a court has power to commit a person aged at least 21 but under 25 to prison in default of payment of any sum of money,

the court may, if it has been notified by the Secretary of State that an attendance centre is available for the reception of persons of his description, order him to attend at such a centre, to be specified in the order, for such number of hours as may be so specified.

(2)An order under subsection (1) above is in this Act referred to as an “attendance centre order”.

(3)The aggregate number of hours for which an attendance centre order may require a person to attend at an attendance centre shall not be less than 12 except where—

(a)he is aged under 14; and

(b)the court is of the opinion that 12 hours would be excessive, having regard to his age or any other circumstances.

(4)The aggregate number of hours shall not exceed 12 except where the court is of the opinion, having regard to all the circumstances, that 12 hours would be inadequate, and in that case—

(a)shall not exceed 24 where the person is aged under 16; and

(b)shall not exceed 36 where the person is aged 16 or over but under 21 or (where subsection (1)(c) above applies) under 25.

(5)A court may make an attendance centre order in respect of a person before a previous attendance centre order made in respect of him has ceased to have effect, and may determine the number of hours to be specified in the order without regard—

(a)to the number specified in the previous order; or

(b)to the fact that that order is still in effect.

(6)An attendance centre order shall not be made unless the court is satisfied that the attendance centre to be specified in it is reasonably accessible to the person concerned, having regard to his age, the means of access available to him and any other circumstances.

(7)The times at which a person is required to attend at an attendance centre shall, as far as practicable, be such as to avoid—

(a)any conflict with his religious beliefs or with the requirements of any other community order to which he may be subject; and

(b)any interference with the times, if any, at which he normally works or attends school or any other educational establishment.

(8)The first time at which the person is required to attend at an attendance centre shall be a time at which the centre is available for his attendance in accordance with the notification of the Secretary of State, and shall be specified in the order.

(9)The subsequent times shall be fixed by the officer in charge of the centre, having regard to the person’s circumstances.

(10)A person shall not be required under this section to attend at an attendance centre on more than one occasion on any day, or for more than three hours on any occasion.

(11)Where a court makes an attendance centre order, the [F55justices’ chief executive for] the court shall—

(a)deliver or send a copy of the order to the officer in charge of the attendance centre specified in it; and

(b)deliver a copy of the order to the person in respect of whom it is made or send a copy by registered post or the recorded delivery service addressed to his last or usual place of abode.

(12)Where a person (“the defaulter”) has been ordered to attend at an attendance centre in default of the payment of any sum of money—

(a)on payment of the whole sum to any person authorised to receive it, the attendance centre order shall cease to have effect;

(b)on payment of a part of the sum to any such person, the total number of hours for which the defaulter is required to attend at the centre shall be reduced proportionately, that is to say by such number of complete hours as bears to the total number the proportion most nearly approximating to, without exceeding, the proportion which the part bears to the whole sum.

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Amendments (Textual)

F55Words in s. 60(11) substituted (1.4.2001) by S.I. 2001/618, art. 5(4)

61 Breach, revocation and amendment of attendance centre orders.E+W

Schedule 5 to this Act (which makes provision for dealing with failures to comply with attendance centre orders, for revoking such orders with or without the substitution of other sentences and for amending such orders) shall have effect.

62 Provision, regulation and management of attendance centres.E+W

(1)The Secretary of State may continue to provide attendance centres.

(2)In this Act “attendance centre” means a place at which offenders aged under 21 may be required to attend and be given under supervision appropriate occupation or instruction in pursuance of attendance centre orders.

(3)The Secretary of State may make rules for the regulation and management of attendance centres.

(4)For the purpose of providing attendance centres, the Secretary of State may make arrangements with any local authority or police authority for the use of premises of that authority.

Chapter VE+WCommunity orders available only where offender aged under 18

Supervision ordersE+W

63 Supervision orders.E+W

(1)Where a child or young person (that is to say, any person aged under 18) is convicted of an offence, the court by or before which he is convicted may (subject to sections 34 to 36 above) make an order placing him under the supervision of—

(a)a local authority designated by the order;

(b)[F56an officer of a local probation board]; or

(c)a member of a youth offending team.

(2)An order under subsection (1) above is in this Act referred to as a “supervision order”.

(3)In this Act “supervisor”, in relation to a supervision order, means the person under whose supervision the offender is placed or to be placed by the order.

(4)Schedule 6 to this Act (which specifies requirements that may be included in supervision orders) shall have effect.

(5)A court shall not make a supervision order unless it is satisfied that the offender resides or will reside in the area of a local authority; and a court shall be entitled to be satisfied that the offender will so reside if he is to be required so to reside by a provision to be included in the order in pursuance of paragraph 1 of Schedule 6 to this Act.

(6)A supervision order—

(a)shall name the area of the local authority and the petty sessions area in which it appears to the court making the order (or to the court amending under Schedule 7 to this Act any provision included in the order in pursuance of this paragraph) that the offender resides or will reside; and

(b)may contain such prescribed provisions as the court making the order (or amending it under that Schedule) considers appropriate for facilitating the performance by the supervisor of his functions under section 64(4) below, including any prescribed provisions for requiring visits to be made by the offender to the supervisor;

and in paragraph (b) above “prescribed” means prescribed by rules under section 144 of the M26Magistrates’ Courts Act 1980.

(7)A supervision order shall, unless it has previously been revoked, cease to have effect at the end of the period of three years, or such shorter period as may be specified in the order, beginning with the date on which the order was originally made.

(8)A court which makes a supervision order shall forthwith send a copy of its order—

(a)to the offender and, if the offender is aged under 14, to his parent or guardian;

(b)to the supervisor;

(c)to any local authority who are not entitled by virtue of paragraph (b) above to such a copy and whose area is named in the supervision order in pursuance of subsection (6) above;

(d)where the offender is required by the order to reside with an individual or to undergo treatment by or under the direction of an individual or at any place, to the individual or the person in charge of that place; and

(e)where a petty sessions area named in the order in pursuance of subsection (6) above is not that for which the court acts, to the justices’ chief executive for the petty sessions area so named;

and, in a case falling within paragraph (e) above, shall also send to the justices’ chief executive in question such documents and information relating to the case as the court considers likely to be of assistance to them.

(9)If a court makes a supervision order while another such order made by any court is in force in respect of the offender, the court making the new order may revoke the earlier order (and paragraph 10 of Schedule 7 to this Act (supplementary provision) shall apply to the revocation).

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Amendments (Textual)

Marginal Citations

64 Selection and duty of supervisor and certain expenditure of his.E+W

(1)A court shall not designate a local authority as the supervisor by a provision of a supervision order unless—

(a)the authority agree; or

(b)it appears to the court that the offender resides or will reside in the area of the authority.

(2)Where a provision of a supervision order places the offender under the supervision of [F57an officer of a local probation board], the supervisor shall be [F57an officer of a local probation board] appointed for or assigned to the petty sessions area named in the order in pursuance of section 63(6) above F58. . ..

(3)Where a provision of a supervision order places the offender under the supervision of a member of a youth offending team, the supervisor shall be a member of a team established by the local authority within whose area it appears to the court that the offender resides or will reside.

(4)While a supervision order is in force, the supervisor shall advise, assist and befriend the offender.

(5)Where a supervision order—

(a)requires compliance with directions given by virtue of paragraph 2(1) of Schedule 6 to this Act, or

(b)includes by virtue of paragraph 3(2) of that Schedule a requirement which involves the use of facilities for the time being specified in a scheme in force under section 66 below for an area in which the offender resides or will reside,

any expenditure incurred by the supervisor for the purposes of the directions or requirements shall be defrayed by the local authority whose area is named in the order in pursuance of section 63(6) above.

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Amendments (Textual)

65 Breach, revocation and amendment of supervision orders.E+W

Schedule 7 to this Act (which makes provision for dealing with failures to comply with supervision orders and for revoking and amending such orders) shall have effect.

66 Facilities for implementing supervision orders.E+W

(1)A local authority shall, acting either individually or in association with other local authorities, make arrangements with such persons as appear to them to be appropriate for the provision by those persons of facilities for enabling—

(a)directions given by virtue of paragraph 2(1) of Schedule 6 to this Act to persons resident in their area, and

(b)requirements that (because of paragraph 3(7) of that Schedule) may only be included in a supervision order by virtue of paragraph 3(2) of that Schedule if they are for the time being specified in a scheme,

to be carried out effectively.

(2)The authority or authorities making any arrangements in accordance with subsection (1) above shall consult each relevant [F59local probation board] as to the arrangements.

(3)Any such arrangements shall be specified in a scheme made by the authority or authorities making them.

(4)A scheme shall come into force on a date to be specified in it.

(5)The authority or authorities making a scheme shall send copies of it to the justices’ chief executive for each petty sessions area of which any part is included in the area to which the scheme relates.

(6)A copy of the scheme shall be kept available at the principal office of every authority who are a party to it for inspection by members of the public at all reasonable hours; and any such authority shall on demand by any person supply him with a copy of the scheme free of charge.

(7)The authority or authorities who made a scheme may at any time make a further scheme altering the arrangements or specifying arrangements to be substituted for those previously specified.

(8)A scheme which specifies arrangements to be substituted for those specified in a previous scheme shall revoke the previous scheme.

(9)The powers conferred by subsection (7) above shall not be exercisable by an authority or authorities unless they have first consulted each relevant [F59local probation board].

(10)The authority or authorities who made a scheme shall send to the justices’ chief executive for each petty sessions area of which any part is included in the area for which arrangements under this section have been specified in the scheme notice of any exercise of a power conferred by subsection (7) above, specifying the date for the coming into force, and giving details of the effect, of the new or altered arrangements; and the new or altered arrangements shall come into force on that date.

(11)Arrangements shall not be made under this section for the provision of any facilities unless the facilities are approved or are of a kind approved by the Secretary of State for the purposes of this section.

(12)In this section “relevant [F59local probation board]” means a [F59local probation board] for an area of which any part is included in the area to which a scheme under this section relates.

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Amendments (Textual)

67 Meaning of “local authority”, “reside” and “parent”.E+W

(1)Unless the contrary intention appears, in sections 63 to 66 above and Schedules 6 and 7 to this Act—

  • local authority” means the council of a county or of a county borough, metropolitan district or London borough or the Common Council of the City of London;

  • reside” means habitually reside, and cognate expressions shall be construed accordingly except in paragraph 6(2) and (3) of Schedule 6.

(2)In the case of a child or young person—

(a)whose father and mother were not married to each other at the time of his birth, and

(b)with respect to whom a residence order is in force in favour of the father,

any reference in sections 63 to 66 and Schedules 6 and 7 to the parent of the child or young person includes a reference to the father.

(3)In subsection (2) above “residence order” has the meaning given by section 8(1) of the M27Children Act 1989, and subsection (2) above is without prejudice to the operation of section 1(1) of the M28Family Law Reform Act 1987 (construction of references to relationships) in relation to the provisions of this Act other than those mentioned in subsection (2).

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Marginal Citations

68 Isles of Scilly.E+W

(1)In their application to the Isles of Scilly, the following provisions of this Act, namely—

(a)sections 63 to 67 and Schedules 6 and 7, and

(b)section 163 (definitions) in its application to those sections and Schedules,

shall have effect with such modifications as the Secretary of State may by order specify.

(2)An order under this section may—

(a)make different provision for different circumstances;

(b)provide for exemptions from any provisions of the order; and

(c)contain such incidental and supplemental provisions as the Secretary of State considers expedient for the purposes of the order.

Action plan ordersE+W

69 Action plan orders.E+W

(1)Where a child or young person (that is to say, any person aged under 18) is convicted of an offence and the court by or before which he is convicted is of the opinion mentioned in subsection (3) below, the court may (subject to sections 34 to 36 above) make an order which—

(a)requires the offender, for a period of three months beginning with the date of the order, to comply with an action plan, that is to say, a series of requirements with respect to his actions and whereabouts during that period;

(b)places the offender for that period under the supervision of the responsible officer; and

(c)requires the offender to comply with any directions given by the responsible officer with a view to the implementation of that plan;

and the requirements included in the order, and any directions given by the responsible officer, may include requirements authorised by section 70 below.

(2)An order under subsection (1) above is in this Act referred to as an “action plan order”.

(3)The opinion referred to in subsection (1) above is that the making of an action plan order is desirable in the interests of—

(a)securing the rehabilitation of the offender; or

(b)preventing the commission by him of further offences.

(4)In this Act “responsible officer”, in relation to an offender subject to an action plan order, means one of the following who is specified in the order, namely—

(a)[F60an officer of a local probation board];

(b)a social worker of a local authority social services department;

(c)a member of a youth offending team.

(5)The court shall not make an action plan order in respect of the offender if—

(a)he is already the subject of such an order; or

(b)the court proposes to pass on him a custodial sentence or to make in respect of him a [F61community rehabilitation order], a [F62community punishment order], a [F63community punishment and rehabilitation order], an attendance centre order, a supervision order or a referral order.

(6)Before making an action plan order, the court shall obtain and consider—

(a)a written report by [F60an officer of a local probation board], a social worker of a local authority social services department or a member of a youth offending team indicating—

(i)the requirements proposed by that person to be included in the order;

(ii)the benefits to the offender that the proposed requirements are designed to achieve; and

(iii)the attitude of a parent or guardian of the offender to the proposed requirements; and

(b)where the offender is aged under 16, information about the offender’s family circumstances and the likely effect of the order on those circumstances.

(7)The court shall not make an action plan order unless it has been notified by the Secretary of State that arrangements for implementing such orders are available in the area proposed to be named in the order under subsection (8) below and the notice has not been withdrawn.

(8)An action plan order shall name the petty sessions area in which it appears to the court making the order (or to the court amending under Schedule 8 to this Act any provision included in the order in pursuance of this subsection) that the offender resides or will reside.

(9)Where an action plan order specifies [F60an officer of a local probation board] under subsection (4) above, the officer specified must be an officer appointed for or assigned to the petty sessions area named in the order.

(10)Where an action plan order specifies under that subsection—

(a)a social worker of a local authority social services department, or

(b)a member of a youth offending team,

the social worker or member specified must be a social worker of, or a member of a youth offending team established by, the local authority within whose area it appears to the court that the offender resides or will reside.

(11)Before making an action plan order, the court shall explain to the offender in ordinary language—

(a)the effect of the order and of the requirements proposed to be included in it;

(b)the consequences which may follow (under Schedule 8 to this Act) if he fails to comply with any of those requirements; and

(c)that the court has power (under that Schedule) to review the order on the application either of the offender or of the responsible officer.

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Amendments (Textual)

70 Requirements which may be included in action plan orders and directions.E+W

(1)Requirements included in an action plan order, or directions given by a responsible officer, may require the offender to do all or any of the following things, namely—

(a)to participate in activities specified in the requirements or directions at a time or times so specified;

(b)to present himself to a person or persons specified in the requirements or directions at a place or places and at a time or times so specified;

(c)subject to subsection (2) below, to attend at an attendance centre specified in the requirements or directions for a number of hours so specified;

(d)to stay away from a place or places specified in the requirements or directions;

(e)to comply with any arrangements for his education specified in the requirements or directions;

(f)to make reparation specified in the requirements or directions to a person or persons so specified or to the community at large; and

(g)to attend any hearing fixed by the court under section 71 below.

(2)Subsection (1)(c) above applies only where the offence committed by the offender is an offence punishable with imprisonment.

(3)In subsection (1)(f) above “make reparation”, in relation to an offender, means make reparation for the offence otherwise than by the payment of compensation.

(4)A person shall not be specified in requirements or directions under subsection (1)(f) above unless—

(a)he is identified by the court or (as the case may be) the responsible officer as a victim of the offence or a person otherwise affected by it; and

(b)he consents to the reparation being made.

(5)Requirements included in an action plan order and directions given by a responsible officer shall, as far as practicable, be such as to avoid—

(a)any conflict with the offender’s religious beliefs or with the requirements of any other community order to which he may be subject; and

(b)any interference with the times, if any, at which he normally works or attends school or any other educational establishment.

71 Action plan orders: power to fix further hearings.E+W

(1)Immediately after making an action plan order, a court may—

(a)fix a further hearing for a date not more than 21 days after the making of the order; and

(b)direct the responsible officer to make, at that hearing, a report as to the effectiveness of the order and the extent to which it has been implemented.

(2)At a hearing fixed under subsection (1) above, the court—

(a)shall consider the responsible officer’s report; and

(b)may, on the application of the responsible officer or the offender, amend the order—

(i)by cancelling any provision included in it; or

(ii)by inserting in it (either in addition to or in substitution for any of its provisions) any provision that the court could originally have included in it.

72 Breach, revocation and amendment of action plan orders.E+W

Schedule 8 to this Act (which makes provision for dealing with failures to comply with action plan orders and reparation orders and for revoking and amending such orders) shall have effect so far as relating to action plan orders.

Chapter VIE+WReparation orders for young offenders

73 Reparation orders.E+W

(1)Where a child or young person (that is to say, any person aged under 18) is convicted of an offence other than one for which the sentence is fixed by law, the court by or before which he is convicted may make an order requiring him to make reparation specified in the order—

(a)to a person or persons so specified; or

(b)to the community at large;

and any person so specified must be a person identified by the court as a victim of the offence or a person otherwise affected by it.

(2)An order under subsection (1) above is in this Act referred to as a “reparation order”.

(3)In this section and section 74 below “make reparation”, in relation to an offender, means make reparation for the offence otherwise than by the payment of compensation; and the requirements that may be specified in a reparation order are subject to section 74(1) to (3).

(4)The court shall not make a reparation order in respect of the offender if it proposes—

(a)to pass on him a custodial sentence; or

(b)to make in respect of him a [F64community punishment order], a [F65community punishment and rehabilitation order], a supervision order which includes requirements authorised by Schedule 6 to this Act, an action plan order or a referral order.

(5)Before making a reparation order, a court shall obtain and consider a written report by [F66an officer of a local probation board], a social worker of a local authority social services department or a member of a youth offending team indicating—

(a)the type of work that is suitable for the offender; and

(b)the attitude of the victim or victims to the requirements proposed to be included in the order.

(6)The court shall not make a reparation order unless it has been notified by the Secretary of State that arrangements for implementing such orders are available in the area proposed to be named in the order under section 74(4) below and the notice has not been withdrawn.

(7)Before making a reparation order, the court shall explain to the offender in ordinary language—

(a)the effect of the order and of the requirements proposed to be included in it;

(b)the consequences which may follow (under Schedule 8 to this Act) if he fails to comply with any of those requirements; and

(c)that the court has power (under that Schedule) to review the order on the application either of the offender or of the responsible officer;

and “responsible officer” here has the meaning given by section 74(5) below.

(8)The court shall give reasons if it does not make a reparation order in a case where it has power to do so.

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Amendments (Textual)

74 Requirements and provisions of reparation order, and obligations of person subject to it.E+W

(1)A reparation order shall not require the offender—

(a)to work for more than 24 hours in aggregate; or

(b)to make reparation to any person without the consent of that person.

(2)Subject to subsection (1) above, requirements specified in a reparation order shall be such as in the opinion of the court are commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.

(3)Requirements so specified shall, as far as practicable, be such as to avoid—

(a)any conflict with the offender’s religious beliefs or with the requirements of any community order to which he may be subject; and

(b)any interference with the times, if any, at which he normally works or attends school or any other educational establishment.

(4)A reparation order shall name the petty sessions area in which it appears to the court making the order (or to the court amending under Schedule 8 to this Act any provision included in the order in pursuance of this subsection) that the offender resides or will reside.

(5)In this Act “responsible officer”, in relation to an offender subject to a reparation order, means one of the following who is specified in the order, namely—

(a)[F67an officer of a local probation board];

(b)a social worker of a local authority social services department;

(c)a member of a youth offending team.

(6)Where a reparation order specifies [F67an officer of a local probation board] under subsection (5) above, the officer specified must be an officer appointed for or assigned to the petty sessions area named in the order.

(7)Where a reparation order specifies under that subsection—

(a)a social worker of a local authority social services department, or

(b)a member of a youth offending team,

the social worker or member specified must be a social worker of, or a member of a youth offending team established by, the local authority within whose area it appears to the court that the offender resides or will reside.

(8)Any reparation required by a reparation order—

(a)shall be made under the supervision of the responsible officer; and

(b)shall be made within a period of three months from the date of the making of the order.

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Amendments (Textual)

75 Breach, revocation and amendment of reparation orders.E+W

Schedule 8 to this Act (which makes provision for dealing with failures to comply with action plan orders and reparation orders and for revoking and amending such orders) shall have effect so far as relating to reparation orders.

Part VE+W CUSTODIAL SENTENCES ETC.

Chapter IE+WGeneral provisions

Meaning of “custodial sentence”E+W

76 Meaning of “custodial sentence”.E+W

(1)In this Act “custodial sentence” means—

(a)a sentence of imprisonment (as to which, see section 89(1)(a) below);

(b)a sentence of detention under section 90 or 91 below;

(c)a sentence of custody for life under section 93 or 94 below;

(d)a sentence of detention in a young offender institution (under section 96 below or otherwise); or

(e)a detention and training order (under section 100 below).

(2)In subsection (1) above “sentence of imprisonment” does not include a committal for contempt of court or any kindred offence.

Liability to imprisonment on conviction on indictmentE+W

77 Liability to imprisonment on conviction on indictment.E+W

Where a person is convicted on indictment of an offence against any enactment and is for that offence liable to be sentenced to imprisonment, but the sentence is not by any enactment either limited to a specified term or expressed to extend to imprisonment for life, the person so convicted shall be liable to imprisonment for not more than two years.

General limit on magistrates’ courts’ powersE+W

78 General limit on magistrates’ court’s power to impose imprisonment or detention in a young offender institution.E+W

(1)A magistrates’ court shall not have power to impose imprisonment, or detention in a young offender institution, for more than six months in respect of any one offence.

(2)Unless expressly excluded, subsection (1) above shall apply even if the offence in question is one for which a person would otherwise be liable on summary conviction to imprisonment or detention in a young offender institution for more than six months.

(3)Subsection (1) above is without prejudice to section 133 of the M29Magistrates’ Courts Act 1980 (consecutive terms of imprisonment).

(4)Any power of a magistrates’ court to impose a term of imprisonment for non-payment of a fine, or for want of sufficient distress to satisfy a fine, shall not be limited by virtue of subsection (1) above.

(5)In subsection (4) above “fine” includes a pecuniary penalty but does not include a pecuniary forfeiture or pecuniary compensation.

(6)In this section “impose imprisonment” means pass a sentence of imprisonment or fix a term of imprisonment for failure to pay any sum of money, or for want of sufficient distress to satisfy any sum of money, or for failure to do or abstain from doing anything required to be done or left undone.

(7)Section 132 of the M30Magistrates’ Courts Act 1980 contains provision about the minimum term of imprisonment which may be imposed by a magistrates’ court.

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Marginal Citations

General restrictions on discretionary custodial sentencesE+W

79 General restrictions on imposing discretionary custodial sentences.E+W

(1)This section applies where a person is convicted of an offence punishable with a custodial sentence other than one—

(a)fixed by law; or

(b)falling to be imposed under section 109(2), 110(2) or 111(2) below.

(2)Subject to subsection (3) below, the court shall not pass a custodial sentence on the offender unless it is of the opinion—

(a)that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only such a sentence can be justified for the offence; or

(b)where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him.

(3)Nothing in subsection (2) above shall prevent the court from passing a custodial sentence on the offender if he fails to express his willingness to comply with—

(a)a requirement which is proposed by the court to be included in a [F68community rehabilitation order] or supervision order and which requires an expression of such willingness; or

(b)a requirement which is proposed by the court to be included in a drug treatment and testing order or an order under section 52(4) above (order to provide samples).

(4)Where a court passes a custodial sentence, it shall—

(a)in a case not falling within subsection (3) above, state in open court that it is of the opinion that either or both of paragraphs (a) and (b) of subsection (2) above apply and why it is of that opinion; and

(b)in any case, explain to the offender in open court and in ordinary language why it is passing a custodial sentence on him.

(5)A magistrates’ court shall cause a reason stated by it under subsection (4) above to be specified in the warrant of commitment and to be entered in the register.

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Amendments (Textual)

80 Length of discretionary custodial sentences: general provision.E+W

(1)This section applies where a court passes a custodial sentence other than one fixed by law or falling to be imposed under section 109(2) below.

(2)Subject to sections 110(2) and 111(2) below, the custodial sentence shall be—

(a)for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or

(b)where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender.

(3)Where the court passes a custodial sentence for a term longer than is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it, the court shall—

(a)state in open court that it is of the opinion that subsection (2)(b) above applies and why it is of that opinion; and

(b)explain to the offender in open court and in ordinary language why the sentence is for such a term.

(4)A custodial sentence for an indeterminate period shall be regarded for the purposes of subsections (2) and (3) above as a custodial sentence for a term longer than any actual term.

(5)Subsection (3) above shall not apply in any case where the court passes a custodial sentence falling to be imposed under subsection (2) of section 110 or 111 below which is for the minimum term specified in that subsection.

Procedural requirements for imposing discretionary custodial sentencesE+W

81 Pre-sentence reports and other requirements.E+W

(1)Subject to subsection (2) below, a court shall obtain and consider a pre-sentence report before forming any such opinion as is mentioned in subsection (2) of section 79 or 80 above.

(2)Subsection (1) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report.

(3)In a case where the offender is aged under 18 and the offence is not triable only on indictment and there is no other offence associated with it that is triable only on indictment, the court shall not form such an opinion as is mentioned in subsection (2) above unless—

(a)there exists a previous pre-sentence report obtained in respect of the offender; and

(b)the court has had regard to the information contained in that report, or, if there is more than one such report, the most recent report.

(4)In forming any such opinion as is mentioned in subsection (2) of section 79 or 80 above, a court—

(a)shall take into account all such information as is available to it about the circumstances of the offence or (as the case may be) of the offence and the offence or offences associated with it, including any aggravating or mitigating factors; and

(b)in the case of any such opinion as is mentioned in paragraph (b) of that subsection, may take into account any information about the offender which is before it.

(5)No custodial sentence shall be invalidated by the failure of a court to obtain and consider a pre-sentence report before forming an opinion referred to in subsection (1) above, but any court on an appeal against such a sentence—

(a)shall, subject to subsection (6) below, obtain a pre-sentence report if none was obtained by the court below; and

(b)shall consider any such report obtained by it or by that court.

(6)Subsection (5)(a) above does not apply if the court is of the opinion—

(a)that the court below was justified in forming an opinion that it was unnecessary to obtain a pre-sentence report; or

(b)that, although the court below was not justified in forming that opinion, in the circumstances of the case at the time it is before the court, it is unnecessary to obtain a pre-sentence report.

(7)In a case where the offender is aged under 18 and the offence is not triable only on indictment and there is no other offence associated with it that is triable only on indictment, the court shall not form such an opinion as is mentioned in subsection (6) above unless—

(a)there exists a previous pre-sentence report obtained in respect of the offender; and

(b)the court has had regard to the information contained in that report, or, if there is more than one such report, the most recent report.

(8)Section 156 below (disclosure of pre-sentence report to offender etc.) applies to any pre-sentence report obtained in pursuance of this section.

82 Additional requirements in case of mentally disordered offender.E+W

(1)Subject to subsection (2) below, in any case where the offender is or appears to be mentally disordered, the court shall obtain and consider a medical report before passing a custodial sentence other than one fixed by law or falling to be imposed under section 109(2) below.

(2)Subsection (1) above does not apply if, in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a medical report.

(3)Before passing a custodial sentence, other than one fixed by law or falling to be imposed under section 109(2) below, on an offender who is or appears to be mentally disordered, a court shall consider—

(a)any information before it which relates to his mental condition (whether given in a medical report, a pre-sentence report or otherwise); and

(b)the likely effect of such a sentence on that condition and on any treatment which may be available for it.

(4)No custodial sentence which is passed in a case to which subsection (1) above applies shall be invalidated by the failure of a court to comply with that subsection, but any court on an appeal against such a sentence—

(a)shall obtain a medical report if none was obtained by the court below; and

(b)shall consider any such report obtained by it or by that court.

(5)In this section, “mentally disordered”, in relation to any person, means suffering from a mental disorder within the meaning of the M31Mental Health 83.

(6)In this section, “medical report” means a report as to an offender’s mental condition made or submitted orally or in writing by a registered medical practitioner who is approved for the purposes of section 12 of the M32Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder.

(7)Nothing in this section shall be taken as prejudicing the generality of section 81 above.

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Marginal Citations

[F69 Life sentences]E+W

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Amendments (Textual)

F69S. 82A and cross-heading inserted (30.11.2000) by 2000 c. 43, ss. 60(1), 80(3)

[F7082A Determination of tariffs.E+W

(1)This section applies if a court passes a life sentence in circumstances where—

(a)the sentence is not fixed by law; or

(b)the offender was aged under 18 when he committed the offence.

(2)The court shall, unless it makes an order under subsection (4) below, order that the provisions of section 28(5) to (8) of the M33Crime (Sentences) Act 1997 (referred to in this section as the “early release provisions”) shall apply to the offender as soon as he has served the part of his sentence which is specified in the order.

(3)The part of his sentence shall be such as the court considers appropriate taking into account—

(a)the seriousness of the offence, or of the combination of the offence and one or more offences associated with it;

(b)the effect of any direction which it would have given under section 87 below (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment; and

(c)the early release provisions as compared with sections 33(2) and 35(1) of the M34Criminal Justice Act 1991.

(4)If the court is of the opinion that, because of the seriousness of the offence or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2) above, the court shall order that, subject to subsection (5) below, the early release provisions shall not apply to the offender.

(5)If, in a case where an order under subsection (4) above is in force, the offender was aged under 18 when he committed the offence, the Secretary of State shall at the appropriate stage direct that the early release provisions shall apply to the offender as soon as he has served the part of his sentence which is specified in the direction.

(6)The appropriate stage, for the purposes of subsection (5) above, is when the Secretary of State has formed the opinion, having regard to any factors determined by him to be relevant for the purpose, that it is appropriate for him to give the direction.

(7)In this section—

  • court” includes a court-martial;

  • life sentence” has the same meaning as in Chapter II of Part II of the M35Crime (Sentences) Act 1997.

(8)So far as this section relates to sentences passed by a court-martial, section 167(1) below does not apply.]

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Amendments (Textual)

F70S. 82A and cross-heading inserted (30.11.2000) by 2000 c. 43, ss. 60(1), 80(3)

Modifications etc. (not altering text)

C7S. 82A modified (30.11.2000) by 2000 c. 43, ss. 60(4), 80(3)

Marginal Citations

Other restrictionsE+W

83 Restriction on imposing custodial sentences on persons not legally represented.E+W

(1)A magistrates’ court on summary conviction, or the Crown Court on committal for sentence or on conviction on indictment, shall not pass a sentence of imprisonment on a person who—

(a)is not legally represented in that court, and

(b)has not been previously sentenced to that punishment by a court in any part of the United Kingdom,

unless he is a person to whom subsection (3) below applies.

(2)A magistrates’ court on summary conviction, or the Crown Court on committal for sentence or on conviction on indictment, shall not—

(a)pass a sentence of detention under section 90 or 91 below,

(b)pass a sentence of custody for life under section 93 or 94 below,

(c)pass a sentence of detention in a young offender institution, or

(d)make a detention and training order,

on or in respect of a person who is not legally represented in that court unless he is a person to whom subsection (3) below applies.

(3)This subsection applies to a person if either—

(a)he was granted a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service but the right was withdrawn because of his conduct; or

(b)having been informed of his right to apply for such representation and having had the opportunity to do so, he refused or failed to apply.

(4)For the purposes of this section a person is to be treated as legally represented in a court if, but only if, he has the assistance of counsel or a solicitor to represent him in the proceedings in that court at some time after he is found guilty and before he is sentenced.

(5)For the purposes of subsection (1)(b) above a previous sentence of imprisonment which has been suspended and which has not taken effect under section 119 below or under section 19 of the M36Treatment of Offenders Act (Northern Ireland) 1968 shall be disregarded.

(6)In this section “sentence of imprisonment” does not include a committal for contempt of court or any kindred offence.

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Marginal Citations

84 Restriction on consecutive sentences for released prisoners.E+W

(1)A court sentencing a person to a term of imprisonment shall not order or direct that the term shall commence on the expiry of any other sentence of imprisonment from which he has been released under Part II of the M37Criminal Justice Act 1991 (early release of prisoners).

(2)Expressions used in this section shall be construed as if they were contained in that Part.

(3)Without prejudice to the generality of subsection (2) above, any reference in this section to imprisonment shall be construed in accordance with section 43 (young offenders) and section 45 (fine defaulters and contemnors) of that Act.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Sexual and violent offences: licences etc.E+W

85 Sexual or violent offences: extension of certain custodial sentences for licence purposes.E+W

(1)This section applies where a court—

(a)proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30th September 1998; and

(b)considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.

(2)Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of—

(a)the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section (“the custodial term”); and

(b)a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above.

(3)Where the offence is a violent offence, the court shall not pass an extended sentence the custodial term of which is less than four years.

(4)The extension period shall not exceed—

(a)ten years in the case of a sexual offence; and

(b)five years in the case of a violent offence.

(5)The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence.

(6)Subsection (2) of section 80 above (length of discretionary custodial sentences) shall apply as if the term of an extended sentence did not include the extension period.

(7)The Secretary of State may by order amend paragraph (b) of subsection (4) above by substituting a different period, not exceeding ten years, for the period for the time being specified in that paragraph.

(8)In this section “licence” means a licence under Part II of the M38Criminal Justice Act 1991 (early release of prisoners).

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Marginal Citations

86 Sexual offences committed before 30th September 1998.E+W

(1)Where, in the case of a long-term or short-term prisoner—

(a)the whole or any part of his sentence was imposed for a sexual offence committed before 30th September 1998, and

(b)the court by which he was sentenced for that offence, having had regard to the matters mentioned in section 32(6)(a) and (b) of the M39Criminal Justice Act 1991, ordered that this section should apply,

sections 33(3) and 37(1) of that Act shall each have effect as if for the reference to three-quarters of his sentence there were substituted a reference to the whole of that sentence.

(2)Expressions used in this section shall be construed as if they were contained in Part II of the M40Criminal Justice Act 1991.

(3)The reference in subsection (1) above to section 33(3) of the M41Criminal Justice Act 1991 is to section 33(3) as it has effect without the amendment made by section 104(1) of the M42Crime and Disorder Act 1998 (which substituted the words “ on licence ” for the word “unconditionally” and does not apply in relation to a prisoner whose sentence or any part of whose sentence was imposed for an offence committed before 30th September 1998).

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Prospective

Crediting of periods of remand in custodyE+W

87 Crediting of periods of remand in custody: terms of imprisonment and detention.E+W

(1)This section applies where—

(a)a court sentences an offender to imprisonment for a term in respect of an offence committed after the commencement of this section; and

(b)the offender has been remanded in custody (within the meaning given by section 88 below) in connection with the offence or a related offence, that is to say, any other offence the charge for which was founded on the same facts or evidence.

(2)It is immaterial for that purpose whether the offender—

(a)has also been remanded in custody in connection with other offences; or

(b)has also been detained in connection with other matters.

(3)Subject to subsection (4) below, the court shall direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence shall count as time served by him as part of the sentence.

(4)Subsection (3) above shall not apply if and to the extent that—

(a)rules made by the Secretary of State so provide in the case of—

(i)a remand in custody which is wholly or partly concurrent with a sentence of imprisonment; or

(ii)sentences of imprisonment for consecutive terms or for terms which are wholly or partly concurrent; or

(b)it is in the opinion of the court just in all the circumstances not to give a direction under that subsection.

(5)Where the court gives a direction under subsection (3) above, it shall state in open court—

(a)the number of days for which the offender was remanded in custody; and

(b)the number of days in relation to which the direction is given.

(6)Where the court does not give a direction under subsection (3) above, or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court—

(a)that its decision is in accordance with rules made under paragraph (a) of subsection (4) above; or

(b)that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.

(7)Rules under subsection (4)(a) above may make such incidental, supplemental and consequential provisions as may appear to the Secretary of State to be necessary or expedient.

(8)For the purposes of this section a suspended sentence—

(a)shall be treated as a sentence of imprisonment when it takes effect under section 119 below; and

(b)shall be treated as being imposed by the order under which it takes effect.

(9)For the purposes of this section, the definition of “sentence of imprisonment” in section 163 below shall apply as if for the words from the beginning of the definition to the end of paragraph (a) there were substituted—

sentence of imprisonment” does not include a committal—

(a)in default of payment of any sum of money, other than one adjudged to be paid by a conviction;;

and references in this section to sentencing an offender to imprisonment, and to an offender’s sentence, shall be construed accordingly.

(10)For the purposes of the reference in subsection (3) above to the term of imprisonment to which a person has been sentenced (that is to say, the reference to his “sentence”), consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term if—

(a)the sentences were passed on the same occasion; or

(b)where they were passed on different occasions, the person has not been released under Part II of the M43Criminal Justice Act 1991 (early release of prisoners) at any time during the period beginning with the first and ending with the last of those occasions.

(11)Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of subsection (1) above to have been committed on the last of those days.

(12)This section applies to—

(a)a determinate sentence of detention under section 91 below, [F71and

(b)a sentence of detention in a young offender institution,]

as it applies to an equivalent sentence of imprisonment.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F71S. 87(12)(b) and the word “and” immediately preceding it repealed (prosp.) by 2000 c. 43, ss. 74, 75, 80(1), Sch. 7 Pt. II para. 179, Sch. 8

Modifications etc. (not altering text)

Marginal Citations

88 Meaning of “remand in custody”.E+W

(1)References in section 87 above to an offender’s being remanded in custody are references to his being—

(a)held in police detention;

(b)remanded in or committed to custody by an order of a court;

(c)remanded or committed to local authority accommodation under section 23 of the M44Children and Young Persons Act 1969 and placed and kept in secure accommodation [F72or detained in a secure training centre pursuant to arrangements under subsection (7A) of that section]; or

(d)remanded, admitted or removed to hospital under section 35, 36, 38 or 48 of the M45Mental Health Act 1983.

(2)A person is in police detention for the purposes of subsection (1) above—

(a)at any time when he is in police detention for the purposes of the M46Police and Criminal Evidence Act 1984; and

(b)at any time when he is detained under [F73section 41 of the Terrorism Act 2000].

(3)In subsection (1) above, “secure accommodation” has the same meaning as in section 23 of the M47Children and Young Persons Act 1969.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F72Words in s. 88(1)(c) inserted (1.12.2001) by 2001 c. 16, s. 133(2); S.I. 2001/3736, art. 2(d)

Marginal Citations

Chapter IIE+WDetention and custody of young offenders

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C9Pt. 5 Ch. II: power to amend or repeal conferred (prosp.) by 2001 c. 19, ss. 31(1)(a)(3)(6)(7), 39(2)

Restriction on imposing imprisonment on persons under 21E+W

89 Restriction on imposing imprisonment on persons under 21.E+W

(1)Subject to subsection (2) below, no court shall—

(a)pass a sentence of imprisonment on a person for an offence if he is aged under 21 when convicted of the offence; or

(b)commit a person aged under 21 to prison for any reason.

(2)Nothing in subsection (1) above shall prevent the committal to prison of a person aged under 21 who is—

(a)remanded in custody;

(b)committed in custody for trial or sentence; or

(c)sent in custody for trial under section 51 of the M48Crime and Disorder Act 1998.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Detention at Her Majesty’s pleasure or for specified periodE+W

90 Offenders who commit murder [F74etc.] when under 18: duty to detain at Her Majesty’s pleasure.E+W

Where a person convicted of murder [F74or any other offence the sentence for which is fixed by law as life imprisonment] appears to the court to have been aged under 18 at the time the offence was committed, the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F74Words in s. 90 and the sidenote inserted (30.11.2000) by 2000 c. 43, s. 60(2)(3)

91 Offenders under 18 convicted of certain serious offences: power to detain for specified period.E+W

(1)Subsection (3) below applies where a person aged under 18 is convicted on indictment of—

(a)an offence punishable in the case of a person aged 21 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law; or

(b)an offence under section 14 of the M49Sexual Offences Act 1956 (indecent assault on a woman); or

(c)an offence under section 15 of that Act (indecent assault on a man) committed after 30th September 1997.

(2)Subsection (3) below also applies where a person aged at least 14 but under 18 is convicted of an offence under—

(a)section 1 of the M50Road Traffic Act 1988 (causing death by dangerous driving); or

(b)section 3A of that Act (causing death by careless driving while under influence of drink or drugs).

(3)If the court is of the opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in the sentence.

(4)Subsection (3) above is subject to (in particular) sections 79 and 80 above.

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Marginal Citations

92 Detention under sections 90 and 91: place of detention etc.E+W

(1)A person sentenced to be detained under section 90 or 91 above shall be liable to be detained in such place and under such conditions—

(a)as the Secretary of State may direct; or

(b)as the Secretary of State may arrange with any person.

(2)A person detained pursuant to the directions or arrangements made by the Secretary of State under this section shall be deemed to be in legal custody.

(3)A direction of the Secretary of State under this section may be signified only—

(a)under the hand of the Secretary of State or an Under-Secretary of State or an Assistant Under-Secretary; or

(b)under the hand of an authorised officer;

and arrangements of the Secretary of State under this section may be signified only as mentioned in paragraph (a) above.

Custody for lifeE+W

93 Duty to impose custody for life in certain cases where offender under 21.E+W

Where a person aged under 21 is convicted of murder or any other offence the sentence for which is fixed by law as imprisonment for life, the court shall sentence him to custody for life unless he is liable to be detained under section 90 above.

94 Power to impose custody for life in certain other cases where offender at least 18 but under 21.E+W

(1)Where a person aged at least 18 but under 21 is convicted of an offence—

(a)for which the sentence is not fixed by law, but

(b)for which a person aged 21 or over would be liable to imprisonment for life,

the court shall, if it considers that a sentence for life would be appropriate, sentence him to custody for life.

(2)Subsection (1) above is subject to (in particular) sections 79 and 80 above, but this subsection does not apply in relation to a sentence which falls to be imposed under section 109(2) below.

95 Custody for life: place of detention.E+W

(1)Subject to section 22(2)(b) of the M51Prison Act 1952 (removal to hospital etc.), an offender sentenced to custody for life shall be detained in a young offender institution unless a direction under subsection (2) below is in force in relation to him.

(2)The Secretary of State may from time to time direct that an offender sentenced to custody for life shall be detained in a prison or remand centre instead of a young offender institution.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Detention in a young offender institutionE+W

96 Detention in a young offender institution for other cases where offender at least 18 but under 21.E+W

Subject to sections 90, 93 and 94 above, where—

(a)a person aged at least 18 but under 21 is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and

(b)the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3),

the sentence that the court is to pass is a sentence of detention in a young offender institution.

97 Term of detention in a young offender institution, and consecutive sentences.E+W

(1)The maximum term of detention in a young offender institution that a court may impose for an offence is the same as the maximum term of imprisonment that it may impose for that offence.

(2)Subject to subsection (3) below, a court shall not pass a sentence for an offender’s detention in a young offender institution for less than 21 days.

(3)A court may pass a sentence of detention in a young offender institution for less than 21 days for an offence under section 65(6) of the M52Criminal Justice Act 1991 (breach of requirement imposed on young offender on his release from detention).

(4)Where—

(a)an offender is convicted of more than one offence for which he is liable to a sentence of detention in a young offender institution, or

(b)an offender who is serving a sentence of detention in a young offender institution is convicted of one or more further offences for which he is liable to such a sentence,

the court shall have the same power to pass consecutive sentences of detention in a young offender institution as if they were sentences of imprisonment.

(5)Subject to section 84 above (restriction on consecutive sentences for released prisoners), where an offender who—

(a)is serving a sentence of detention in a young offender institution, and

(b)is aged 21 or over,

is convicted of one or more further offences for which he is liable to imprisonment, the court shall have the power to pass one or more sentences of imprisonment to run consecutively upon the sentence of detention in a young offender institution.

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Marginal Citations

98 Detention in a young offender institution: place of detention.E+W

(1)Subject to section 22(2)(b) of the M53Prison Act 1952 (removal to hospital etc.), an offender sentenced to detention in a young offender institution shall be detained in such an institution unless a direction under subsection (2) below is in force in relation to him.

(2)The Secretary of State may from time to time direct that an offender sentenced to detention in a young offender institution shall be detained in a prison or remand centre instead of a young offender institution.

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Marginal Citations

Conversion of sentence of detention or custody to sentence of imprisonmentE+W

99 Conversion of sentence of detention or custody to sentence of imprisonment.E+W

(1)Subject to the following provisions of this section, where an offender has been sentenced to a term of detention in a young offender institution and either—

(a)he has attained the age of 21, or

(b)he has attained the age of 18 and has been reported to the Secretary of State by the board of visitors of the institution in which he is detained as exercising a bad influence on the other inmates of the institution or as behaving in a disruptive manner to the detriment of those inmates,

the Secretary of State may direct that he shall be treated as if he had been sentenced to imprisonment for the same term.

(2)An offender who by virtue of this section falls to be treated as if he had been sentenced to imprisonment instead of detention in a young offender institution shall not be so treated for the purposes of section 65 of the M54Criminal Justice Act 1991 (supervision of young offenders after release).

(3)Where the Secretary of State gives a direction under subsection (1) above in relation to an offender, the portion of the term of detention in a young offender institution imposed by the sentence of detention in a young offender institution which he has already served shall be deemed to have been a portion of a term of imprisonment.

(4)Rules under section 47 of the M55Prison Act 1952 may provide that any award for an offence against discipline made in respect of an offender serving a sentence of detention in a young offender institution shall continue to have effect after a direction under subsection (1) above has been given in relation to him.

(5)This section applies to a person—

(a)who is detained under section 90 or 91 above, or

(b)who is serving a sentence of custody for life,

as it applies to a person serving a sentence of detention in a young offender institution.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Detention and training ordersE+W

100 Offenders under 18: detention and training orders.E+W

(1)Subject to sections 90, 91 and 93 above and subsection (2) below, where—

(a)a child or young person (that is to say, any person aged under 18) is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and

(b)the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3),

the sentence that the court is to pass is a detention and training order.

(2)A court shall not make a detention and training order—

(a)in the case of an offender under the age of 15 at the time of the conviction, unless it is of the opinion that he is a persistent offender;

(b)in the case of an offender under the age of 12 at that time, unless—

(i)it is of the opinion that only a custodial sentence would be adequate to protect the public from further offending by him; and

(ii)the offence was committed on or after such date as the Secretary of State may by order appoint.

(3)A detention and training order is an order that the offender in respect of whom it is made shall be subject, for the term specified in the order, to a period of detention and training followed by a period of supervision.

(4)On making a detention and training order in a case where subsection (2) above applies, it shall be the duty of the court (in addition to the duty imposed by section 79(4) above) to state in open court that it is of the opinion mentioned in paragraph (a) or, as the case may be, paragraphs (a) and (b)(i) of that subsection.

101 Term of order, consecutive terms and taking account of remands.E+W

(1)Subject to subsection (2) below, the term of a detention and training order made in respect of an offence (whether by a magistrates’ court or otherwise) shall be 4, 6, 8, 10, 12, 18 or 24 months.

(2)The term of a detention and training order may not exceed the maximum term of imprisonment that the Crown Court could (in the case of an offender aged 21 or over) impose for the offence.

(3)Subject to subsections (4) and (6) below, a court making a detention and training order may order that its term shall commence on the expiry of the term of any other detention and training order made by that or any other court.

(4)A court shall not make in respect of an offender a detention and training order the effect of which would be that he would be subject to detention and training orders for a term which exceeds 24 months.

(5)Where the term of the detention and training orders to which an offender would otherwise be subject exceeds 24 months, the excess shall be treated as remitted.

(6)A court making a detention and training order shall not order that its term shall commence on the expiry of the term of a detention and training order under which the period of supervision has already begun (under section 103(1) below).

(7)Where a detention and training order (“the new order”) is made in respect of an offender who is subject to a detention and training order under which the period of supervision has begun (“the old order”), the old order shall be disregarded in determining—

(a)for the purposes of subsection (4) above whether the effect of the new order would be that the offender would be subject to detention and training orders for a term which exceeds 24 months; and

(b)for the purposes of subsection (5) above whether the term of the detention and training orders to which the offender would (apart from that subsection) be subject exceeds 24 months.

(8)In determining the term of a detention and training order for an offence, the court shall take account of any period for which the offender has been remanded in custody in connection with the offence, or any other offence the charge for which was founded on the same facts or evidence.

(9)Where a court proposes to make detention and training orders in respect of an offender for two or more offences—

(a)subsection (8) above shall not apply; but

(b)in determining the total term of the detention and training orders it proposes to make in respect of the offender, the court shall take account of the total period (if any) for which he has been remanded in custody in connection with any of those offences, or any other offence the charge for which was founded on the same facts or evidence.

(10)Once a period of remand has, under subsection (8) or (9) above, been taken account of in relation to a detention and training order made in respect of an offender for any offence or offences, it shall not subsequently be taken account of (under either of those subsections) in relation to such an order made in respect of the offender for any other offence or offences.

(11)Any reference in subsection (8) or (9) above to an offender’s being remanded in custody is a reference to his being—

(a)held in police detention;

(b)remanded in or committed to custody by an order of a court;

(c)remanded or committed to local authority accommodation under section 23 of the M56Children and Young Persons Act 1969 and placed and kept in secure accommodation [F75or detained in a secure training centre pursuant to arrangements under subsection (7A) of that section]; or

(d)remanded, admitted or removed to hospital under section 35, 36, 38 or 48 of the M57Mental Health Act 1983.

(12)A person is in police detention for the purposes of subsection (11) above—

(a)at any time when he is in police detention for the purposes of the M58Police and Criminal Evidence Act 1984; and

(b)at any time when he is detained under [F76section 41 of the Terrorism Act 2000];

and in that subsection “secure accommodation” has the same meaning as in section 23 of the M59Children and Young Persons Act 1969.

(13)For the purpose of any reference in sections 102 to 105 below to the term of a detention and training order, consecutive terms of such orders and terms of such orders which are wholly or partly concurrent shall be treated as a single term if—

(a)the orders were made on the same occasion; or

(b)where they were made on different occasions, the offender has not been released (by virtue of subsection (2), (3), (4) or (5) of section 102 below) at any time during the period beginning with the first and ending with the last of those occasions.

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Amendments (Textual)

F75Words in s. 101(11)(c) inserted (1.12.2001) by 2001 c. 16, s. 133(3); S.I. 2001/3736, art. 2(d)

Marginal Citations

102 The period of detention and training.E+W

(1)An offender shall serve the period of detention and training under a detention and training order in such secure accommodation as may be determined by the Secretary of State or by such other person as may be authorised by him for that purpose.

(2)Subject to subsections (3) to (5) below, the period of detention and training under a detention and training order shall be one-half of the term of the order.

(3)The Secretary of State may at any time release the offender if he is satisfied that exceptional circumstances exist which justify the offender’s release on compassionate grounds.

(4)The Secretary of State may release the offender—

(a)in the case of an order for a term of 8 months or more but less than 18 months, one month before the half-way point of the term of the order; and

(b)in the case of an order for a term of 18 months or more, one month or two months before that point.

(5)If a youth court so orders on an application made by the Secretary of State for the purpose, the Secretary of State shall release the offender—

(a)in the case of an order for a term of 8 months or more but less than 18 months, one month after the half-way point of the term of the order; and

(b)in the case of an order for a term of 18 months or more, one month or two months after that point.

(6)An offender detained in pursuance of a detention and training order shall be deemed to be in legal custody.

103 The period of supervision.E+W

(1)The period of supervision of an offender who is subject to a detention and training order—

(a)shall begin with the offender’s release, whether at the half-way point of the term of the order or otherwise; and

(b)subject to subsection (2) below, shall end when the term of the order ends.

(2)The Secretary of State may by order provide that the period of supervision shall end at such point during the term of a detention and training order as may be specified in the order under this subsection.

(3)During the period of supervision, the offender shall be under the supervision of—

(a)[F77an officer of a local probation board];

(b)a social worker of a local authority social services department; or

(c)a member of a youth offending team;

and the category of person to supervise the offender shall be determined from time to time by the Secretary of State.

(4)Where the supervision is to be provided by [F77an officer of a local probation board], [F77the officer of a local probation board] shall be an officer appointed for or assigned to the petty sessions area within which the offender resides for the time being.

(5)Where the supervision is to be provided by—

(a)a social worker of a local authority social services department, or

(b)a member of a youth offending team,

the social worker or member shall be a social worker of, or a member of a youth offending team established by, the local authority within whose area the offender resides for the time being.

(6)The offender shall be given a notice from the Secretary of State specifying—

(a)the category of person for the time being responsible for his supervision; and

(b)any requirements with which he must for the time being comply.

(7)A notice under subsection (6) above shall be given to the offender—

(a)before the commencement of the period of supervision; and

(b)before any alteration in the matters specified in subsection (6)(a) or (b) above comes into effect.

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Amendments (Textual)

104 Breach of supervision requirements.E+W

(1)Where a detention and training order is in force in respect of an offender and it appears on information to a justice of the peace acting for a relevant petty sessions area that the offender has failed to comply with requirements under section 103(6)(b) above, the justice—

(a)may issue a summons requiring the offender to appear at the place and time specified in the summons before a youth court acting for the area; or

(b)if the information is in writing and on oath, may issue a warrant for the offender’s arrest requiring him to be brought before such a court.

(2)For the purposes of this section a petty sessions area is a relevant petty sessions area in relation to a detention and training order if—

(a)the order was made by a youth court acting for it; or

(b)the offender resides in it for the time being.

(3)If it is proved to the satisfaction of the youth court before which an offender appears or is brought under this section that he has failed to comply with requirements under section 103(6)(b) above, that court may—

(a)order the offender to be detained, in such secure accommodation as the Secretary of State may determine, for such period, not exceeding the shorter of three months or the remainder of the term of the detention and training order, as the court may specify; or

(b)impose on the offender a fine not exceeding level 3 on the standard scale.

(4)An offender detained in pursuance of an order under subsection (3)(a) above shall be deemed to be in legal custody.

(5)A fine imposed under subsection (3)(b) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.

(6)An offender may appeal to the Crown Court against any order made under subsection (3)(a) or (b) above.

105 Offences during currency of order.E+W

(1)This section applies to a person subject to a detention and training order if—

(a)after his release and before the date on which the term of the order ends, he commits an offence punishable with imprisonment in the case of a person aged 21 or over (“the new offence”); and

(b)whether before or after that date, he is convicted of the new offence.

(2)Subject to section 8(6) above (duty of adult magistrates’ court to remit young offenders to youth court for sentence), the court by or before which a person to whom this section applies is convicted of the new offence may, whether or not it passes any other sentence on him, order him to be detained in such secure accommodation as the Secretary of State may determine for the whole or any part of the period which—

(a)begins with the date of the court’s order; and

(b)is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1) above.

(3)The period for which a person to whom this section applies is ordered under subsection (2) above to be detained in secure accommodation—

(a)shall, as the court may direct, either be served before and be followed by, or be served concurrently with, any sentence imposed for the new offence; and

(b)in either case, shall be disregarded in determining the appropriate length of that sentence.

(4)Where the new offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this section to have been committed on the last of those days.

(5)A person detained in pursuance of an order under subsection (2) above shall be deemed to be in legal custody.

106 Interaction with sentences of detention in a young offender institution.E+W

(1)Where a court passes a sentence of detention in a young offender institution in the case of an offender who is subject to a detention and training order, the sentence shall take effect as follows—

(a)if the offender has been released by virtue of subsection (2), (3), (4) or (5) of section 102 above, at the beginning of the day on which it is passed;

(b)if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released by virtue of subsection (2), (3), (4) or (5) of section 102.

(2)Where a court makes a detention and training order in the case of an offender who is subject to a sentence of detention in a young offender institution, the order shall take effect as follows—

(a)if the offender has been released under Part II of the M60Criminal Justice Act 1991 (early release of prisoners), at the beginning of the day on which it is made;

(b)if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released under that Part.

(3)Subsection (1)(a) above has effect subject to section 105(3)(a) above and subsection (2)(a) above has effect subject to section 116(6)(b) below.

(4)Subject to subsection (5) below, where at any time an offender is subject concurrently—

(a)to a detention and training order, and

(b)to a sentence of detention in a young offender institution,

he shall be treated for the purposes of sections 102 to 105 above and of section 98 above (place of detention), Chapter IV of this Part (return to detention) and Part II of the M61Criminal Justice Act 1991 (early release) as if he were subject only to the one of them that was imposed on the later occasion.

(5)Nothing in subsection (4) above shall require the offender to be released in respect of either the order or the sentence unless and until he is required to be released in respect of each of them.

(6)Where, by virtue of any enactment giving a court power to deal with a person in a way in which a court on a previous occasion could have dealt with him, a detention and training order for any term is made in the case of a person who has attained the age of 18, the person shall be treated as if he had been sentenced to detention in a young offender institution for the same term.

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Marginal Citations

107 Meaning of “secure accommodation” and references to terms.E+W

(1)In sections 102, 104 and 105 above “secure accommodation” means—

(a)a secure training centre;

(b)a young offender institution;

(c)accommodation provided by a local authority for the purpose of restricting the liberty of children and young persons;

(d)accommodation provided for that purpose under subsection (5) of section 82 of the M62Children Act 1989 (financial support by the Secretary of State); or

(e)such other accommodation provided for the purpose of restricting liberty as the Secretary of State may direct.

(2)In sections 102 to 105 above references to the term of a detention and training order shall be construed in accordance with section 101(13) above.

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Marginal Citations

Detention of persons aged at least 18 but under 21 for default or contemptE+W

108 Detention of persons aged at least 18 but under 21 for default or contempt.E+W

(1)In any case where, but for section 89(1) above, a court would have power—

(a)to commit a person aged at least 18 but under 21 to prison for default in payment of a fine or any other sum of money, or

(b)to make an order fixing a term of imprisonment in the event of such a default by such a person, or

(c)to commit such a person to prison for contempt of court or any kindred offence,

the court shall have power, subject to subsection (3) below, to commit him to be detained under this section or, as the case may be, to make an order fixing a term of detention under this section in the event of default, for a term not exceeding the term of imprisonment.

(2)For the purposes of subsection (1) above, the power of a court to order a person to be imprisoned under section 23 of the M63Attachment of Earnings Act 1971 shall be taken to be a power to commit him to prison.

(3)No court shall commit a person to be detained under this section unless it is of the opinion that no other method of dealing with him is appropriate; and in forming any such opinion, the court—

(a)shall take into account all such information about the circumstances of the default or contempt (including any aggravating or mitigating factors) as is available to it; and

(b)may take into account any information about that person which is before it.

(4)Where a magistrates’ court commits a person to be detained under this section, it shall—

(a)state in open court the reason for its opinion that no other method of dealing with him is appropriate; and

(b)cause that reason to be specified in the warrant of commitment and to be entered in the register.

(5)Subject to section 22(2)(b) of the M64Prison Act 1952 (removal to hospital etc.), a person in respect of whom an order has been made under this section is to be detained—

(a)in a remand centre,

(b)in a young offender institution, or

(c)in any place in which a person aged 21 or over could be imprisoned or detained for default in payment of a fine or any other sum of money,

as the Secretary of State may from time to time direct.

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Marginal Citations

Chapter IIIE+WRequired custodial sentences for certain offences

109 Life sentence for second serious offence.E+W

(1)This section applies where—

(a)a person is convicted of a serious offence committed after 30th September 1997; and

(b)at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.

(2)The court shall impose a life sentence, that is to say—

(a)where the offender is 21 or over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment for life,

(b)where he is under 21 at that time, a sentence of custody for life under section 94 above,

unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.

(3)Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.

(4)An offence the sentence for which is imposed under subsection (2) above shall not be regarded as an offence the sentence for which is fixed by law.

(5)An offence committed in England and Wales is a serious offence for the purposes of this section if it is any of the following, namely—

(a)an attempt to commit murder, a conspiracy to commit murder or an incitement to murder;

(b)an offence under section 4 of the Offences Against the M65Person Act 1861 (soliciting murder);

(c)manslaughter;

(d)an offence under section 18 of the Offences Against the M66Person Act 1861 (wounding, or causing grievous bodily harm, with intent);

(e)rape or an attempt to commit rape;

(f)an offence under section 5 of the M67Sexual Offences Act 1956 (intercourse with a girl under 13);

(g)an offence under section 16 (possession of a firearm with intent to injure), section 17 (use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of the M68Firearms Act 1968; and

(h)robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Act.

(6)An offence committed in Scotland is a serious offence for the purposes of this section if the conviction for it was obtained on indictment in the High Court of Justiciary and it is any of the following, namely—

(a)culpable homicide;

(b)attempted murder, incitement to commit murder or conspiracy to commit murder;

(c)rape or attempted rape;

(d)clandestine injury to women or an attempt to cause such injury;

(e)sodomy, or an attempt to commit sodomy, where the complainer, that is to say, the person against whom the offence was committed, did not consent;

(f)assault where the assault—

(i)is aggravated because it was carried out to the victim’s severe injury or the danger of the victim’s life; or

(ii)was carried out with an intention to rape or to ravish the victim;

(g)robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of the M69Firearms Act 1968;

(h)an offence under section 16 (possession of a firearm with intent to injure), section 17 (use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of that Act;

(i)lewd, libidinous or indecent behaviour or practices; and

(j)an offence under section 5(1) of the M70Criminal Law (Consolidation) (Scotland) Act 1995 (unlawful intercourse with a girl under 13).

(7)An offence committed in Northern Ireland is a serious offence for the purposes of this section if it is any of the following, namely—

(a)an offence falling within any of paragraphs (a) to (e) of subsection (5) above;

(b)an offence under section 4 of the M71Criminal Law Amendment Act 1885 (intercourse with a girl under 14);

(c)an offence under Article 17 (possession of a firearm with intent to injure), Article 18(1) (use of a firearm to resist arrest) or Article 19 (carrying a firearm with criminal intent) of the M72Firearms (Northern Ireland) Order 1981; and

(d)robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Order.

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Marginal Citations

110 Minimum of seven years for third class A drug trafficking offence.E+W

(1)This section applies where—

(a)a person is convicted of a class A drug trafficking offence committed after 30th September 1997;

(b)at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of two other class A drug trafficking offences; and

(c)one of those other offences was committed after he had been convicted of the other.

(2)The court shall impose an appropriate custodial sentence for a term of at least seven years except where the court is of the opinion that there are particular circumstances which—

(a)relate to any of the offences or to the offender; and

(b)would make it unjust to do so in all the circumstances.

(3)Where the court does not impose such a sentence, it shall state in open court that it is of that opinion and what the particular circumstances are.

(4)Where—

(a)a person is charged with a class A drug trafficking offence (which, apart from this subsection, would be triable either way), and

(b)the circumstances are such that, if he were convicted of the offence, he could be sentenced for it under subsection (2) above,

the offence shall be triable only on indictment.

(5)In this section “class A drug trafficking offence” means a drug trafficking offence committed in respect of a class A drug; and for this purpose—

  • class A drug” has the same meaning as in the M73Misuse of Drugs Act 1971;

  • drug trafficking offence” means a drug trafficking offence within the meaning of the M74Drug Trafficking Act 1994, the M75Proceeds of Crime (Scotland)Act 95 or the M76Proceeds of Crime (Northern Ireland) Order 1996.

(6)In this section “an appropriate custodial sentence” means—

(a)in relation to a person who is 21 or over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment;

(b)in relation to a person who is under 21 at that time, a sentence of detention in a young offender institution.

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Marginal Citations

111 Minimum of three years for third domestic burglary.E+W

(1)This section applies where—

(a)a person is convicted of a domestic burglary committed after 30th November 1999;

(b)at the time when that burglary was committed, he was 18 or over and had been convicted in England and Wales of two other domestic burglaries; and

(c)one of those other burglaries was committed after he had been convicted of the other, and both of them were committed after 30th November 1999.

(2)The court shall impose an appropriate custodial sentence for a term of at least three years except where the court is of the opinion that there are particular circumstances which—

(a)relate to any of the offences or to the offender; and

(b)would make it unjust to do so in all the circumstances.

(3)Where the court does not impose such a sentence, it shall state in open court that it is of that opinion and what the particular circumstances are.

(4)Where—

(a)a person is charged with a domestic burglary which, apart from this subsection, would be triable either way, and

(b)the circumstances are such that, if he were convicted of the burglary, he could be sentenced for it under subsection (2) above,

the burglary shall be triable only on indictment.

(5)In this section “domestic burglary” means a burglary committed in respect of a building or part of a building which is a dwelling.

(6)In this section “an appropriate custodial sentence” means—

(a)in relation to a person who is 21 or over when convicted of the offence mentioned in subsection (1)(a) above, a sentence of imprisonment;

(b)in relation to a person who is under 21 at that time, a sentence of detention in a young offender institution.

112 Appeals where previous convictions set aside.E+W

(1)This section applies where—

(a)a sentence has been imposed on any person under subsection (2) of section 109, 110 or 111 above; and

(b)any previous conviction of his without which that section would not have applied has been subsequently set aside on appeal.

(2)