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Legal Aid, Sentencing and Punishment of Offenders Act 2012

Requirements under community orders and suspended sentence orders
Section 70: Programme requirement

396.Section 70 amends section 202 of the 2003 Act which makes provision in relation to “programme requirements”. These may be imposed as part of a community order or a suspended sentence order with a view to addressing particular aspects of offender behaviour such as treatment of alcohol or drug addiction and poor cognitive skills.

397.Subsection (4) amends section 202(1) of the 2003 Act by reducing the number of matters the court must specify when imposing a programme requirement. It removes the requirement for a court to specify (a) the particular accredited programme in which the offender must participate, and (b) the place at which the offender must participate in an accredited programme. It retains the requirement for a court to specify the number of days on which the offender must take part in an accredited programme. By the amendments to section 202(6) of the 2003 Act, it will be for the responsible officer to determine those matters.

398.Subsection (5) repeals section 202(4) and (5) of the 2003 Act, which specify a number of conditions that have to be met before a court may impose a programme requirement. These conditions currently require a court to include only certain accredited programmes, and prevent the court from including a programme requirement if compliance with that requirement would involve the co-operation of someone other than the offender and the responsible officer, unless that person has consented. The effect of subsection (5) is that those conditions will no longer apply.

Section 71: Curfew requirement

399.Section 71 amends section 204 of the 2003 Act, which makes provision in relation to curfew requirements.

400.Subsection (2) amends section 204(2) by increasing the maximum period in any day for which the court may impose a curfew requirement from twelve to sixteen hours.

401.Subsection (3) amends section 204(3) by increasing the maximum period for which a curfew requirement may be imposed from six to twelve months from the date on which the community order is made.

402.It remains the case that, before imposing a curfew requirement, the court must obtain and consider the effect that the curfew might have on other people living at the curfew address. Compliance with a curfew requirement is normally monitored electronically by the offender wearing a ‘tag’.

Section 72: Foreign travel prohibition requirement

403.Section 72 amends sections 177 and 190 of the 2003 Act to enable a court to impose a prohibition on foreign travel as a requirement in a community order or suspended sentence order. The effect of the new requirement is to prohibit travel to a country or countries (or territory or territories) outside the British Islands (the United Kingdom, the Channel Islands and the Isle of Man).

404.Currently courts can already impose a number of requirements that restrict offenders’ movements in some way. These include curfews, residence requirements, and exclusion requirements. However, there is no requirement which gives courts an express power to prohibit an offender from travelling outside the British Islands.

Section 73: Mental health treatment requirement

405.Section 73 amends section 207 of the 2003 Act which makes provision about mental health treatment requirements in community orders or suspended sentence orders.

406.Currently, a court cannot make a mental health treatment requirement unless it is satisfied on the evidence of a registered medical practitioner approved for the purposes of section 12 of the Mental Health Act 1983 that the mental condition of the offender requires treatment and may be susceptible to it, and other disposals under the Mental Health Act 1983 are not warranted.

407.Section 73 removes the condition that a court can only impose a mental health treatment requirement on the evidence of a registered mental health practitioner approved for the purposes of section 12. It remains the case that the court may not include a mental health treatment requirement unless the offender has expressed willingness to comply with it.

Section 74: Drug rehabilitation requirement

408.Section 74 amends section 209 of the 2003 Act, which makes provision in relation to drug rehabilitation requirements.

409.It removes the requirement that the treatment and testing period of a drug rehabilitation requirement must be at least six months. The effect of this is that there will be no minimum treatment and testing period. The change provides the court with greater discretion in determining the appropriate length of the requirement.

Section 75: Alcohol treatment requirement

410.Section 75 amends section 212 of the 2003 Act, which makes provision in relation to alcohol treatment requirements.

411.It removes the requirement that the period of an alcohol treatment requirement must be at least six months. The effect of this is that there will be no minimum period. The change provides the court with greater discretion in determining the appropriate length of the requirement.

Section 76: Alcohol abstinence and monitoring requirement

412.Section 76 inserts new section 212A into the 2003 Act. This has the effect of creating a new alcohol abstinence and monitoring requirement which may be imposed as a requirement of a community order or suspended sentence order.

413.Under new section 212A(1)(a) a court has the power to order an offender either to abstain from consuming alcohol for a specified period or not to consume alcohol so that during a specified period they have a level of alcohol higher than a level specified by the order in their body. An offender on whom such a requirement is imposed would have to submit to monitoring for the purposes of ascertaining whether they were complying with the requirement under new section 212A(1)(a).

414.New section 212A(2) limits the maximum period of the new requirement to 120 days. (However, subsection (7) of section 76 amends section 223(3) of the 2003 Act with the effect that the Secretary of State has a power to amend the maximum period. This power would be exercisable subject to the affirmative resolution procedure, and is common to a number of other requirements.)

415.New section 212A(3) gives the Secretary of State a power to prescribe a minimum period for the requirement.

416.New section 212A(4) gives the Secretary of State a power to prescribe the level of alcohol an offender must not exceed under a requirement set out under new section 212A(1)(a)(ii). Such a requirement may not be imposed unless an order has been made to prescribe alcohol levels. An order which prescribes alcohol levels may do so by reference to the proportion of alcohol in the offender’s breath, blood, urine or sweat, or by some other means.

417.New section 212A(6) gives the Secretary of State a power by order to prescribe arrangements for monitoring of compliance with the requirement. Such an order may prescribe arrangements for monitoring by electronic or other means.

418.New section 212A(8) to (12) makes provision about the conditions for imposing the new requirement. There are four conditions.

419.The first is that consumption of alcohol must be an element of the offence before the court, or the court must be satisfied that consumption of alcohol was a contributing factor to the commission of the offence.

420.The second is that the court must be satisfied that the offender is not dependent on alcohol.

421.The third is that the court must not include an alcohol treatment requirement (under section 212 of the 2003 Act) in the order.

422.The fourth is that the court must have been notified by the Secretary of State that arrangements for monitoring have been made in the local justice area.

423.Subsections (2) to (11) of section 76 make further amendments to the 2003 Act and the Armed Forces Act 2006 as a consequence of the creation of the new requirement. Subsection (6) amends section 215 of the 2003 Act to prevent the court from imposing an electronic monitoring requirement in respect of the new requirement. This is because electronic monitoring provisions may be included in the new requirement itself (see new section 212A(7)(a)).

Section 77: Piloting of alcohol abstinence and monitoring requirements

424.Section 77 requires the provisions creating the new alcohol abstinence and monitoring requirement to be commenced initially for the purposes of a pilot. Subsection (1) allows the Secretary of State (after having made a piloting order or orders) to make a general commencement order. Under subsection (5)(a) an order made by the Secretary of State may amend the alcohol abstinence and monitoring requirement provisions under section 76 to enable the provisions to be brought into force generally with amendments, and subsection (5)(b) would allow the Secretary of State to amend other provisions of the Act in consequence of these changes. Subsection (6)(a) makes it clear that subsection (5)(a) includes a power to confer order or rule making powers on the Secretary of State.

425.Subsection (7) contains a power exercisable by the Secretary of State, after having made a piloting order or orders, to make an order to repeal section 76, to amend the 2003 Act to reverse the effect of that section on that Act or to make other consequential amendments or repeals.

426.Subsection (9) provides for an order under the new section to be made by statutory instrument. Subsection (10) provides that a general commencement order, or an order to amend or to repeal section 76, may not be made unless the order has been laid before and approved by each House of Parliament.

Section 78: Overseas community orders and service community orders

427.Section 78 makes amendments to provisions of the Armed Forces Act 2006 relating to both service and overseas community orders which can be made by service courts. These amendments flow from changes made to the 2003 Act by Chapter 1 of Part 3 of the Act.

428.Subsections (2) and (3) provide that the foreign travel prohibition requirement introduced by section 67 of the Act and the alcohol abstinence and monitoring requirement introduced by section 76 are not available for inclusion as a requirement in an overseas community order.

429.Subsection (4) makes provision which applies in the Services context the Act provisions about the duration of community orders made by civilian courts. Subsections (6) and (8) make a change to the provisions about overseas and service community orders that is consequential on section 66(5).

430.Subsections (5) and (9) make provision in relation to the imposition of fines for breaches of overseas community orders.

431.Subsection (10) makes provision which makes a change in the service context which results from the provisions in section 74 to disapply the minimum term of a drug rehabilitation requirement.

432.As with other amendments made to armed forces legislation, this section is designed to ensure that sentencing law and practice of service courts is, where practicable, aligned with the law and practice of civilian courts in England and Wales.

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