11.Section 1 amends section 243A of the 2003 Act, which relates to the duty to release offenders serving a fixed-term sentence of less than 12 months unconditionally at the halfway point in their sentence.
12.The amendments mean that the only offenders who will be released unconditionally at the halfway point of the sentence will be offenders serving a custodial sentence of 1 day, offenders serving a custodial sentence of more than 1 day but less than 12 months who are aged under 18 at the halfway point in their sentence, and offenders serving a sentence of less than 12 months imposed for an offence committed before section 1 comes into force. Other offenders serving sentences of more than 1 day and less than 12 months will now be subject to release on licence when they reach the halfway point in their sentence. That means, for example, that an offender sentenced to a custodial sentence of 6 months will be released at three months and spend three months on licence in the community.
13.Section 2 amends Chapter 6 of Part 12 of the 2003 Act. It inserts a new section 256AA into the 2003 Act. The new section 256AA creates a new period of supervision for offenders serving custodial sentences of more than 1 day but less than 2 years. This period of post-sentence supervision will apply to a sentence imposed in respect of an offence committed on or after the provisions of this Act come into force.
14.The supervision period begins at the end of the sentence and ends on the expiry of 12 months from the date of release. This means that an offender serves half of their custodial sentence in custody, the second half under licence in the community, with the post-sentence supervision period then applying until the offender has spent 12 months in the community since their automatic release date.
15.The following are illustrative examples of how these provisions apply for different sentence lengths, compared with sentences under the law before amendment.
| Sentence imposed by court | Current custodial period before the provisions of the Act are in force | Custodial period once the provisions of the Act are in force | Current arrangements on release before the provisions of the Act are in force | Arrangements on release once the provisions of the Act are in force |
|---|---|---|---|---|
| 6 month sentence | 3 months | 3 months | 3 months in community, but with no licence conditions or supervision | 3 months’ licence |
| 9 months’ post-sentence supervision | ||||
| Total supervision 12 months | ||||
| 10 month sentence | 5 months | 5 months | 5 months in community, but with no licence conditions or supervision | 5 months’ licence |
| 7 months’ post-sentence supervision | ||||
| Total supervision 12 months | ||||
| 18 month sentence | 9 months | 9 months | 9 months’ licence | 9 months’ licence |
| 3 months’ post-sentence supervision | ||||
| Total supervision 12 months |
16.Subsection (2) of new section 256AA requires offenders to comply with requirements during the supervision period. Subsection (4) defines the supervision period as beginning at the expiry of the sentence and ending 12 months after the halfway point of the sentence (the automatic release date). The requirements are to be specified in a notice given to the offender by the Secretary of State (subsection (3)). Subsection (5) makes clear that the purpose of the supervision period is the rehabilitation of the offender and subsection (6) requires the Secretary of State to have regard to that purpose when setting the requirements. Subsection (7) requires the supervisor of the offender to have regard to that purpose when carrying out functions in relation to the requirements. Subsection (8) defines “supervisor” for the purposes of this section. Subsection (9) provides that for a person subject to a sentence under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 who is over 18 at the date of release, the supervisor must be an officer of a provider of probation services or a member of a Youth Offending Team (YOT). Subsection (10) provides that for any other person subject to post-sentence supervision the supervisor must be an officer of a provider of probation services, which may be a public or private sector provider.
17.Section 2(4) introduces Schedule 1 to the Act. Schedule 1 is in two parts. The first part deals with the requirements which may be specified in the new supervision period. The second part sets out further provision relating to drug testing and drug appointments requirements during the supervision period.
18.Part 1 of Schedule 1 amends the 2003 Act to insert a new section 256AB after new section 256AA. This section sets out ten requirements of the offender that may be specified by the Secretary of State during the supervision period. They are:
Subsection (1)(a): to be of good behaviour and not behave in a way that undermines the rehabilitative purpose of the supervision period.
Subsection (1)(b): not to commit any offences.
Subsection (1)(c): to keep in touch with the supervisor.
Subsection (1)(d): to receive visits from the supervisor.
Subsection (1)(e): to reside permanently at an address approved by the supervisor and to obtain prior permission for any stay of one or more nights at another address.
Subsection (1)(f): not to undertake work, or a particular type of work, unless it is approved by the supervisor and to notify the supervisor of any proposal to undertake work.
Subsection (1)(g): not to travel outside the British Islands except with prior permission of the supervisor or to comply with a legal obligation (for example, deportation or extradition).
Subsection (1)(h): to participate in activities in accordance with instructions given by the supervisor.
Subsection (1)(i): a drug testing requirement (see paragraphs 21 and 22 below).
Subsection (1)(j): a drug appointment requirement (see paragraphs 23 to 27 below).
19.Subsection (2) of new section 256AB provides that where an offender is subject to a requirement to participate in activities under subsection (1)(h) then provisions under new section 200A(5) to (10) apply. New section 200A creates a new rehabilitation activity requirement for community orders and suspended sentence orders and is inserted by section 15 of the Act and described at paragraphs 111 to 118 below.
20.Subsection (4) of new section 256AB provides the Secretary of State with a power, by order, to add to, remove or amend the requirements for the supervision period and to make provision for instructions regarding these requirements.
21.Part 2 of Schedule 1 relates to drug testing and drug appointment requirements. It inserts a new section 256D into the 2003 Act. Section 256D provides that an offender subject to a drug testing requirement during the supervision period must provide a sample to ascertain whether the offender has a specified Class A or Class B drug in his or her body. Subsection (2) provides that a drug testing requirement can only be imposed when the Secretary of State is satisfied that the requirements in subsection (3) are met, and the testing requirement is imposed for the purpose of checking whether the offender is complying with any other supervision requirement. Subsection (3) provides that the matters that the Secretary of State must be satisfied are met in order for the testing requirement to be imposed are:
That the misuse of a specified Class A or B drug by the offender caused or contributed to a past offence or is likely to cause or contribute to further offending; and
That the offender is dependent on, or has a propensity to misuse, a specified Class A or Class B drug.
22.Subsection (4) requires instructions for drug testing to be in accordance with any guidance given by the Secretary of State and subsection (5) confers a power on the Secretary of State to make rules in relation to the provision of drug testing samples.
23.Part 2 of Schedule 1 also inserts new section 256E into the 2003 Act. New section 256E enables an offender to be made subject to a drug appointment requirement as part of their supervision. This requires an offender, in accordance with instructions, to attend appointments designed to address the offender’s dependency on, or propensity to misuse, a controlled drug.
24.Subsection (2) provides that the requirement can only be imposed where it has been recommended by the supervisor and where the Secretary of State is satisfied of a number of matters connected with the offender’s dependency on or propensity to misuse drugs. Subsection (3) sets out those matters. It provides that the offender’s misuse of controlled drugs must have either contributed to an offence for which the offender has been convicted or is likely to cause or contribute to further offending. It goes on to require that the Secretary of State is satisfied that the offender’s dependency or propensity to misuse drugs is susceptible to treatment and that arrangements have been or can be made for the offender to be treated.
25.Subsection (4) provides that the supervision requirement must set out where and with whom the offender is required to meet.
26.Subsection (5) provides that the person with whom the offender is required to meet to address his or her drug problems must have the necessary qualifications or experience. Subsection (6) makes clear that the only instructions that may be given by the supervisor are the duration of each appointment and when each appointment takes place.
27.Subsection (7) makes clear that the offender is not required to submit to medical treatment at the appointment. The offender will only be treated as breaching his supervision condition if he fails to attend or remain at the appointment for the duration instructed by his supervisor.
28.Section 3 amends Chapter 6 of Part 12 of the 2003 Act by inserting a new section 256AC. The new section 256AC deals with breach of supervision requirements imposed under new section 256AA.
29.Subsection (1) of new section 256AC provides that where it appears to the court that an offender has failed to comply with a supervision requirement, the court may issue a summons for the offender to appear or a warrant for the offender’s arrest.
30.Subsection (2) makes clear that where a summons or warrant is issued it must direct the offender to appear at a magistrates’ court in the local justice area in which the offender resides or, if unknown, where the summons or warrant was issued. Subsection (3) provides that where a summons is issued, but the offender does not appear, the court may issue a warrant for the offender’s arrest.
31.Subsection (4) of new section 256AC sets out the sanctions available to the court where it is proved to the satisfaction of the court that the offender has without reasonable excuse failed to comply with a requirement during the supervision period. The sanctions available to the court are:
Committal to prison for a period not exceeding 14 days.
A fine not exceeding level 3 on the standard scale.
A “supervision default order” imposing either an unpaid work requirement or a curfew requirement.
32.Subsection (5) of new section 256AC provides that where a court imposes a curfew as part of a supervision default order, it is obliged also to impose electronic monitoring, unless it is unable to because suitable arrangements for monitoring cannot be made or it considers it inappropriate to do so (see section 177(3) of the 2003 Act).
33.Subsection (6) of new section 256AC means that where a court deals with a breach of supervision requirement by either committing an offender to prison, imposing a fine or imposing a supervision default order, it must revoke any existing supervision default order.
34.Subsection (7) relates to offenders under the age of 21 where an order is made under subsection (4)(a) – that is, committal to prison. The person must be committed to a young offender institution, but subsection (7)(b) makes clear that the Secretary of State can direct that such a person can be detained in a prison or remand centre instead. Subsection (8) makes clear that a person committed to custody in a young offender institution is to be regarded as being in legal custody.
35.Subsection (9) provides that a fine imposed under subsection (4)(b) is to be treated as being a sum adjudged to be paid by a conviction, meaning that the normal enforcement procedures will apply. Subsection (11) provides that a person may appeal to the Crown Court against an order under subsection (4), that is, against the imposition of a sanction for an unreasonable failure to comply with a supervision requirement.
36.Section 3(2) introduces Schedule 2 to the Act, which inserts new Schedule 19A into the 2003 Act. The new Schedule 19A relates to supervision default orders with Part 1 dealing with the unpaid work and curfew requirements and Part 2 dealing with breach, revocation and amendment of supervision default orders.
37.The new Schedule 19A relates to supervision default orders: that is, where an offender has failed without reasonable excuse to comply with their supervision requirements and the court has imposed either unpaid work or a curfew for that breach. Schedule 19A applies the provisions of the 2003 Act that relate to unpaid work and curfews when imposed as part of a community order or suspended sentence order to those requirements when imposed as part of a supervision default order. Schedule 19A also makes a number of modifications to the provisions to reflect the different nature of community order requirements and supervision default order requirements.
38.Paragraph 3 of Schedule 19A sets out the modifications. These include limits on the imposition of unpaid work so that the minimum period is no less than 20 hours and the maximum no more than 60 hours. Paragraph 3(3) also makes clear that the work must be performed by the end of the supervision period.
39.Paragraph 3(4) also provides that, for a supervision default order, a curfew should be no less than 2 hours per day but no more than 16 hours per day. The curfew period must be at least 20 days in duration but cannot fall outside the supervision period.
40.Sections 217(1) and (2) of the 2003 Act, which require a court to avoid setting requirements which would conflict with an offender’s religious beliefs or with times when offenders would normally be in work or education, apply in relation to setting supervision default orders as they do to community orders. Paragraph 4 of Schedule 19A makes clear that the order-making power in section 217(3), which allows the Secretary of State to impose further restrictions by order, applies in relation to supervision default orders. Paragraph 5 extends the Secretary of State’s powers to make rules for regulating the supervision of offenders subject to community orders to supervision default orders. Paragraph 6 provides that the Secretary of State may by order amend the number of hours or days specified in relation to unpaid work and curfews imposed as part of a supervision default order.
41.Part 2 of Schedule 19A deals with the breach, revocation and amendment of supervision default orders. Paragraphs 7 and 8 provide that where an offender’s supervisor is satisfied that that the offender has failed, without reasonable excuse, to comply with requirements of their supervision default order and that the failure should be dealt with by the court, then the offender’s supervisor must refer the matter to an enforcement officer. The enforcement officer must then consider the case and if appropriate cause an information to be laid before a justice of the peace. Paragraph 7(4) makes clear that an enforcement officer is a public sector provider of probation services.
42.Paragraph 8 provides that if the court is satisfied that an offender has failed to comply with a supervision default order, it may issue a summons requiring the person to appear or issue a warrant for the person’s arrest.
43.Paragraph 9 of Schedule 19A sets out the powers of magistrates to deal with a breach of the supervision default order. If the court is satisfied that an offender has, without reasonable excuse, failed to comply with the supervision default order, the court may revoke the supervision default order and deal with the failure in the same way it could deal with the original breach of the supervision requirements (that is, by committal to prison, imposing a fine or a by a new supervision default order). Paragraph 9(3) makes clear that the court must take account of the extent to which the offender complied with the supervision default order and paragraph 9(4) provides for an appeal to the Crown Court against the order made by the court.
44.Paragraph 10 of Schedule 19A provides that an officer of a provider of probation services or the offender may make an application to the court to revoke or amend a supervision default order or to revoke it and deal with the offender in any way he could have been dealt with had the order never been made (i.e. by committing him to prison, imposing a fine or imposing a new supervision default order). Paragraph 10(2) provides that when it is amending an order under this power the court may not increase the number of days or hours specified in the order, but it may reduce them provided that it does not reduce them below the minimum of 20 hours for unpaid work and 2 hours per day for at least 20 days for curfew. Paragraph 10 also provides that the court in exercising its powers must take into account the extent to which the offender has complied with the supervision default order. Paragraph 10(4) provides for a right of appeal to the Crown Court. Paragraphs 10(5) and (6) provide that where a court proposes to exercise its powers on an application by an officer of a provider of probation services, unless it proposes only to reduce the number of days or hours specified in the order, it must summon the offender to appear before the court, and if he does not appear the court may issue a warrant for his arrest. Paragraph 10(7) provides that where the application to amend or revoke is made by the offender, the court may only hear the application if it is satisfied that adequate notice has been given to relevant officers of a provider of probation services. Paragraph 10(8) provides that an application to amend or revoke may not be made while an appeal against a supervision default order is pending.
45.Paragraph 11 provides powers to the court to amend the supervision default order to specify a new local justice area, where it is satisfied that the offender proposes to change or has changed his address from the local justice area specified in the order.
46.Paragraph 12 requires a court to revoke a supervision default order if the person who is subject to the order is convicted of an offence and the court dealing with that new offence imposes a sentence of imprisonment or detention (other than a suspended sentence order). If the court imposes a community order or a suspended sentence order it may revoke the supervision default order and deal with the person under section 256AC(4) in any way it could have dealt with him had the supervision default order not been made (that is, by committing him to prison, imposing a fine or imposing a new supervision default order). Paragraph 13 provides that where a court orders that a suspended sentence is to take effect in respect of someone who is subject to a supervision default order, the court must revoke the supervision default order.
47.Section 4 makes provision in relation to:
Offenders serving sentences of less than 12 months detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (which for these purposes includes a term of detention under section 209 of the Armed Forces Act 2006) who are under 18 when released;
Offenders serving section 91 sentences of less than 12 months imposed for pre-commencement offences; and
Offenders serving sentences under section 96 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention in a young offender institution) imposed for pre-commencement offences.
48.A sentence under section 91 may be imposed on offenders under the age of 18 in respect of certain serious offences. A sentence under section 96 may be imposed on offenders aged at least 18 but under 21.
49.Section 4 amends section 256B of the 2003 Act, which relates to supervision of young offenders after release from a section 91 or a section 96 sentence. Before the commencement of relevant provisions in this Act, section 256B would provide for a 3 month period of supervision to be applied to an offender who is released from a sentence under section 91 or section 96 of less than 12 months. The amendments made by section 4 have the effect that section 256B now relates only to offenders serving sentences described in paragraph 47 above. In other words, those offenders serving section 91 or section 96 sentences in relation to post-commencement offences, who are 18 or over on the last day of the custodial period, will no longer be subject to supervision under section 256B, but will be subject instead to the same arrangements as apply to an adult sentenced to a custodial sentence of less than 12 months. The amendments also have the effect that section 256B continues to apply in any case where the offence for which the sentence was imposed was committed before the commencement of section 1.
50.Section 4(3) amends subsection (2)(c) of section 256B of the 2003 Act to provide that an offender released from a section 91 sentence can be supervised by a member of a Youth Offending Team (YOT) if the offender is over 18 on release. After commencement of the Act this would only affect offenders who have committed offences before the commencement of section 1 of the Act, and who receive a sentence of under 12 months (see new subsection (1A) of section 256B inserted by section 4(2)).
51.Section 256B of the 2003 Act currently provides for drug testing requirements relating to certain Class A drugs to be imposed where the offender is 18 or over. This Act also enables drug testing requirements relating to certain Class B drugs to be imposed (see new section 256D of the 2003 Act, which is inserted by Schedule 1 to this Act). Section 256B is also amended so that, for those released under this section when the offender is aged 18 or over, the supervision period requirements may include drug appointment requirements (see new section 256E of the 2003 Act, which is inserted by Schedule 1 to this Act).
52.Section 5 relates to arrangements for release of offenders serving consecutive terms of imprisonment. It amends section 264 of the 2003 Act and inserts new section 264B to the same Act. New section 264B modifies the effect of section 264 when an offender is serving one or more sentences imposed for offences committed before commencement.
53.Section 5(2) amends section 264 to insert new subsections (3B) to (3E).
54.New section 264(3B) preserves unconditional release at the halfway point of sentence where the aggregate of the consecutive terms is less than 12 months and where, in respect of each of those terms, section 243A requires unconditional release (i.e. the categories referred to above in the explanation of section 1 of this Act). This subsection also imposes a licence period in every other case where an offender is released under section 264.
55.New section 264(3C) determines the period of licence and supervision under new section 256AA when all of the sentences are imposed for offences committed after commencement. New section 264(3C)(a) imposes a licence period equal to the aggregate of the remainder of the terms of imprisonment imposed. New section 264(3C)(b) imposes a supervision period under new section 256AA if it is required by at least one of the sentences and the aggregate length of the terms of imprisonment is less than 2 years.
56.New section 264(3D) determines the starting point of the supervision period under new section 256AA. The supervision period begins on expiry of the total licence period determined under new section 264(3C)(a). The end point of the supervision period is 12 months from the end of the requisite custodial period (under new section 256AA(4)(b)). The requisite custodial period for consecutive sentences is the aggregate of the custodial periods for the consecutive sentences as determined by sections 244(3)(d) and 264(2).
57.New section 264(3E) requires that an offender with a number of sentences imposed consecutively is subject to supervision under section 256B (supervision of certain young offenders after release from detention) if at least one of the sentences attracts supervision under section 256B. The period of supervision applies for three months from release of the offender (see section 256B(5)).
58.Subsections (3) and (3A) of section 264 are deleted. These subsections are no longer required as they are replaced by new provisions dealing with unconditional release and release on licence from aggregated sentences
59.Section 5(3) inserts new section 264B. The new section applies when an offender is released on licence under Chapter 6 of Part 12 of the 2003 Act, the aggregate length of the consecutive terms of imprisonment that were imposed is less than 12 months and at least one of the terms was imposed for an offence committed before the new provisions are commenced (a “short transitional term”) with at least one term imposed for an offence committed on or after the day of commencement.
60.New section 264B(2) determines the length of the licence period when there is at least one short transitional term to be served consecutively with one other term. The licence period is to be the aggregate of the remainder of each term of imprisonment that is not a short transitional term, following deduction of the relevant custodial period for each of those terms (as determined by section 264(6)). The licence period is to be served after the aggregate of the custodial periods for the sentences has been served.
61.Section 5(4) makes a consequential amendment to section 249 of the 2003 Act (which governs the length of a licence period).
62.Section 5(5) makes a consequential amendment to section 250 of the 2003 Act (which governs the conditions imposed under licence).
63.Sections 5(6) to (8) amend Schedule 20B to the 2003 Act to establish the date from which the supervision period is calculated under new section 256AA(4)(b) (the end of the requisite custodial period) for offenders with sentences subject to supervision under new section 256AA that are ordered to be served consecutively to sentences governed by Schedule 20B.
64.Section 5(7) inserts new sub-paragraph (3A) into paragraph 22 of Schedule 20B. Under new sub-paragraph (3A) the requisite custodial period is the period ending with the release of the offender.
65.Section 5(8) inserts new sub-paragraph (4) into paragraph 33 of Schedule 20B. Under new sub-paragraph (4) the requisite custodial period is the period ending with the release of the offender.
66.Section 6 relates to offenders in respect of whom Detention and Training Orders (DTO) have been made, who are 18 or over when they reach the halfway point of the order.
67.Section 6(3) amends section 103 of the Powers of Criminal Courts (Sentencing) Act 2000 so that the power of the Secretary of State to vary by order when the period of supervision of a DTO will end does not apply where an order is made and the offender is aged 18 or over at the halfway point of the term of the DTO.
68.Section 6(4) inserts new section 106B of the Powers of Criminal Courts (Sentencing) Act 2000. Subsection (1) of new section 106B sets out the circumstances where further supervision applies, that is: where the offender is aged 18 or over at the halfway point of their DTO, the DTO is of less than 24 months and the DTO was imposed for an offence committed on or after the day on which section 6(4) comes into force.
69.Subsection (2) of section 106B applies sections 256AA(2) to (11), 256B, 256AC, 256D and 256E of, and Schedule 19A to, the 2003 Act (that is, the new sections inserted by this Act introducing supervision for sentences of less than 2 years) but with the modifications set out in subsections (3) to (5) of section 106B.
70.Subsection (3) of section 106B defines the supervision period for a young offender who turns 18 before the halfway point in their sentence. The supervision period for these offenders begins at the end of their detention and training order and ends 12 months after the halfway point of the detention and training order.
71.In this way an offender serving a DTO of 10 months would currently spend (subject to certain exceptions) half of the sentence (i.e. 5 months) in custody and half subject to supervision in the community. Once the Act is in force, such an offender would be subject to an additional supervision period (to start once the DTO comes to an end) of 7 months.
72.Subsection (4) of section 106B provides that the supervisor of offenders subject to further supervision must be either an officer of a provider of probation services or a member of a Youth Offending Team (YOT). Subsection (5) extends the power under new section 256AB(4) of the 2003 Act so that it includes a power to make provision about the supervision requirements that can be imposed by virtue of new section 106B.
73.Section 7 introduces Schedule 3 to the Act, which contains a number of amendments consequential to sections 1 to 6.
74.Subsection (2) of section 7 provides the Secretary of State with a power to amend by order the Powers of Criminal Courts (Sentencing) Act 2000 and the 2003 Act to replace references to dates on which a provision of this Act comes into force with the actual date.
75.The most significant consequential amendments made by Schedule 3 are to Schedule 1 to the 1997 Act. Schedule 1 to the 1997 Act provides for transfers of licence and other forms of post-release supervision from one United Kingdom jurisdiction to another through two means:
Restricted: the sentencing provisions of the exporting jurisdiction are incorporated into the law of the receiving jurisdiction in relation to the transferred offender so that the offender can be managed in the receiving jurisdiction. The exporting jurisdiction retains overall control of the sentence.
Unrestricted: the offender transfers onto an equivalent sentence in the receiving jurisdiction’s legislation. The receiving jurisdiction assumes complete control of the offender.
76.Paragraphs 2 and 8 of Schedule 3 to this Act bring post-sentence supervision within the scope of Schedule 1 to the 1997 Act, permitting transfer of the post-sentence supervision period on a restricted or unrestricted basis.
77.Paragraph 3 of Schedule 3 to this Act amends Schedule 1 to the 1997 Act such that post-sentence supervision applies as part of Scots law to offenders transferred to Scotland when in custody, on licence or in the post-sentence supervision period. The amendment also provides a ‘gloss’ to certain England and Wales specific terms so that when incorporated into Scots law the terms are read as being the equivalent in Scotland. It also modifies the effect of the supervision provisions to account for the differences in Scots law. The modifications would provide for:
disapplication of post-sentence supervision when an offender is subject to certain licences particular to Scotland;
Scottish Ministers to be able to move offenders given custody for breach of post-sentence supervision between different types of custodial institution;
electronic monitoring to be tailored to Scottish circumstances;
supervisors in Scotland to be able to bring proceedings for breach of a Supervision Default Order; and
the Scottish court to be able to modify a supervision default order if another Scottish sentence is imposed.
78.The amendments to Schedule 1 to the 1997 Act made by paragraph 3 also provide further modifications where the post-sentence supervision in Scotland follows a DTO so that the supervisor is the officer of a Scottish local authority and Scottish Ministers are able to impose and modify supervision requirements (consistent with previous provisions in Schedule 1 for imposing DTO requirements on offenders transferred to Scotland).
79.Paragraph 4 of Schedule 3 to this Act amends Schedule 1 to the 1997 Act to provide that for an offender subject to a supervision default order transferred between Scotland and England and Wales the area in which the offender resides will determine the court with jurisdiction to manage the supervision default order before and after the transfer.
80.Paragraph 5 of Schedule 3 to this Act amends Schedule 1 to the 1997 Act to have the same effect in relation to Northern Ireland law as the amendments made by paragraph 3 have in relation to Scots law, but with the following differences:
The power for the court to impose a Supervision Default Order is not incorporated into Northern Ireland law;
The glossing provisions do not apply to supervision under section 256B of the 2003 Act; and
The power to impose supervision requirements on offenders subject to post-sentence supervision after a DTO is retained by the UK Secretary of State (consistent with existing provisions in Schedule 1 for imposing DTO requirements on offenders transferred to Northern Ireland).
81.Paragraph 6 of Schedule 3 to this Act amends Schedule 1 to the 1997 Act to provide that, for unrestricted transfers, Ministers in Scotland or Northern Ireland would be able to direct how the supervision period of an offender transferred on an unrestricted basis is to be dealt with if there is no equivalent form of supervision under the law of that jurisdiction.
82.Paragraph 7 of Schedule 3 to this Act amends Schedule 1 to the 1997 Act to provide for the service of court processes relating to post-sentence supervision issued in Scotland or in England and Wales in the other jurisdiction. It also provides for provisions in Scots law on electronic monitoring to apply to electronic monitoring imposed as part of a supervision default order enforced in Scotland.
83.Section 8 addresses an issue whereby, in very exceptional circumstances, it would be possible prior to commencement of this section for an offender who is considered dangerous by a court and sentenced to an extended determinate sentence to serve less than 12 months under supervision in the community.
84.Subsection (2) of section 8 amends section 226A of the 2003 Act to insert a new provision requiring the extension period of the extended determinate sentence to be at least 1 year. Subsection (3) of section 8 makes the same change to section 226B of the 2003 Act in regard to persons under 18 years of age sentenced to an extended determinate sentence.
85.Section 9 relates to the provisions for release of offenders who have been recalled to custody during their period of release on licence. Offenders serving custodial sentences of 12 months or more – who, prior to the commencement of relevant provisions of this Act, were the only prisoners who were released from custody subject to licence conditions – can be recalled until the end of their sentence or for a fixed period of 28 days.
86.Subsection (4) of section 9 amends the default period to be served by people who, while on licence, are recalled (under section 254 of the 2003 Act) and who are considered by the Secretary of State to be suitable for automatic release under section 255A of the 2003 Act. This is to take account of the introduction of licence periods (and, therefore, liability to recall to prison) for offenders with custodial sentences of less than 12 months. Subsection (4) of section 9 amends section 255A of the 2003 Act so that those offenders serving custodial sentences of less than 12 months who are recalled to custody for a fixed period are released after a period of 14 days from the day on which they return to custody (new subsection (9)(a) of section 255A). An offender serving a custodial sentence of 12 months or more who is recalled to custody will be released after a period of 28 days (new subsection (9)(b) of section 255A).
87.Section 9 also makes provision in relation to offenders who have been recalled to custody under section 254 for breach of a condition (other than the curfew condition) after having being released before the halfway point of sentence on home detention curfew (HDC) under section 246 of the 2003 Act. With one exception these offenders will be released at the point in their sentence when they would normally be released, had they not been released early under HDC or after a period of 14 days (if the sentence is less than 12 months) or 28 days (for sentences of 12 months or more) following their recall if that period gives a later release date. In other words, for breach of a condition other than the HDC curfew condition offenders recalled during their HDC period will serve either until their normal release date at the halfway point of sentence or until the end of the 14 day or 28 day period if that falls later. Offenders who will be released unconditionally at the expiry of the HDC period (under section 243A) are the exception. These offenders will be released at the expiry of the HDC period whether or not the end of the 14 day period is after the expiry of the HDC period.
88.Subsection (2) of section 9 clarifies that the provision in sections 255A to 255C about recall and subsequent release applies to prisoners released under section 248 (compassionate release).
89.Subsection (3) of section 9 amends section 255(1)(a) of the 2003 Act so that offenders released on HDC under section 246 may only be recalled under that paragraph for breach of the curfew condition required by section 250(3).
90.Section 10 amends section 3 of the Offender Management Act 2007 (the 2007 Act), which provides the Secretary of State with powers to make arrangements for probation provision either himself or by making contractual or other arrangements with any other person.
91.Section 10 inserts a new subsection (6A) in section 3 of the 2007 Act, which requires the Secretary of State to ensure that contracts or other arrangements providing for the supervision or rehabilitation of offenders must:
State that the Secretary of State has complied with the public sector equality duty in section 149 of the Equality Act 2010 as it relates to female offenders; and
Identify anything in the arrangements that is intended to meet the particular needs of female offenders.
92.This new duty applies where the Secretary of State enters into arrangements with any other person (under section 3(2) of the 2007 Act) and where he undertakes the provision himself (under section 3(5) of the 2007 Act). The new duty applies only in the context of arrangements for the supervision and rehabilitation of offenders, and requires the Secretary of State to record that he has complied with the public sector equality duty in the specific context of female offenders. As such, it does not affect the wider application of the public sector equality duty.
93.Section 11 amends section 64 of the Criminal Justice and Court Services Act 2000, which makes provision for the Secretary of State to impose a drug testing requirement on offenders aged 18 or over released from prison on licence.
94.Subsection (2) of section 11 removes the condition that an offender must have committed a specified trigger offence in order to have a drug testing requirement imposed as part of a licence. It substitutes a two-limbed test such that a requirement can only be imposed if the Secretary of State is satisfied that:
The misuse of a specified Class A or B drug by the offender caused or contributed to a past offence or is likely to cause or contribute to further offending; and
The offender is dependent on, or has a propensity to misuse, a specified Class A or Class B drug.
95.Subsections (2) and (3) of section 11 expand the categories of drugs that an offender can be tested for from Class A to Class A and Class B drugs.
96.Section 12 inserts new section 64A into the Criminal Justice and Court Services Act 2000, which provides the Secretary of State with a power to impose a new licence condition requiring offenders aged 18 or over on release from prison to attend, in accordance with instructions, appointments designed to address the offender’s dependency on or propensity to misuse a controlled drug.
97.Subsection (2) of new section 64A provides that the licence condition can only be imposed where it has been recommended by an officer of a provider of probation services, and where the Secretary of State is satisfied the offender is dependent on or has a propensity to misuse drugs; that the misuse has either contributed to an offence for which the offender has been convicted or is likely to cause or contribute to further offending; and the dependency or propensity is susceptible to treatment and arrangements have been or can be made for the offender to be treated.
98.Subsection (4) of new section 64A provides that the condition must set out where and with whom the offender is required to meet. Subsection (5) provides that the person with whom the offender is required to meet to address his or her drug problems must have the necessary qualifications or experience. Subsection (6) makes clear that the only instructions that may be given by the officer of a provider of probation services are the duration of each appointment and when each appointment takes place.
99.Subsection (7) makes clear that the offender is not required to submit to medical treatment at the appointment. The offender will only be treated as breaching his licence condition if he fails to attend or remain at the appointment for the duration instructed by the officer of a provider of probation services.
100.Section 13 amends Schedule 1 to the Crime (Sentences) Act 1997 to allow for drug testing and drug appointment conditions imposed under section 64 and new section 64A of the Criminal Justice and Court Services Act 2000 to be transferred to Scotland or Northern Ireland on a restricted basis.
101.Section 14 amends the 2003 Act to make changes to the meaning of “the responsible officer”, who is the officer responsible for implementing community orders and suspended sentence orders imposed by the court.
102.Subsection (1) of section 14 replaces section 197 of the 2003 Act. The new subsection (1) of section 197 defines the responsible officer as a person who is, for the time being, responsible for discharging the functions of the responsible officer in accordance with arrangements made by the Secretary of State. The new subsection (2) of section 197 provides that the responsible officer must be either an officer of a provider of probation services (which can be a public or a private sector provider) or a person responsible for monitoring an offender in accordance with an electronic monitoring requirement.
103.Subsection (2) of section 14 introduces Schedule 4 to the Act. Schedule 4 is in two parts.
104.Part 1 provides that certain functions of responsible officers are confined to the public sector. Paragraphs 1 to 5 amend provisions which confer a function on the responsible officer to provide assistance to a court carrying out a review of a community order or suspended sentence order, or of the offender’s progress under a drug rehabilitation requirement under such an order. Such functions will in the future be carried out by officers of providers of probation services, rather than the responsible officer. Under section 4 of the Offender Management Act 2007 (the 2007 Act), the Secretary of State may not arrange for private sector providers to perform functions that involve helping courts to make decisions about people convicted of offences. These functions have to be performed by an officer of a public sector provider (i.e. the Secretary of State or a probation trust or some other public body).
105.The effect of the changes in paragraphs 1 to 5, coupled with section 4 of the 2007 Act, is that only public sector providers will in future be permitted to carry out the function of giving assistance to a court carrying out a review of a community order, a suspended sentence order or the offender’s progress under a drug rehabilitation requirement imposed under such an order. In some cases that public sector provider may be the responsible officer, but in those cases where the responsible officer is a private provider they will not be permitted to undertake these functions.
106.Paragraph 6 of Schedule 4 amends Schedule 8 to the 2003 Act – which deals with the breach, amendment or revocation of community orders – to add definitions of “enforcement officer” and “public sector provider”. Paragraphs 6(3) and 6(4) provide that if the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the requirements of his community order he must refer the matter to an enforcement officer. Paragraph 6(2) inserts a new definition of “enforcement officer” at paragraph 1A of Schedule 8, and makes clear that the enforcement function can only be carried out by an officer of a provider of probation services that is a public sector provider. In other words, only an officer of a public sector provider, defined as a probation trust, other public body or the Secretary of State, can be the officer responsible for enforcement action under a community order.
107.Paragraph 6(5) provides that the role of the enforcement officer is to consider the case, and where, appropriate cause an information to be laid. In this way, the enforcement officer, who will be a public sector provider, will be responsible for the decision whether or not to bring cases to court for a breach hearing.
108.Paragraph 6(6) amends the various powers in Parts 3 to 6 of Schedule 8 that allow the court to revoke or vary a community order, to provide that in the future the function of applying to the court to exercise such powers will be undertaken by an officer of a provider of probation services rather than the responsible officer. The same analysis applies as in paragraphs 1 to 5 of Schedule 4, and the effect of the changes will be that only public sector providers will be able to make applications to the court to revoke or amend the order. Paragraph 8 of Schedule 4 makes consequential amendments to section 4 of the 2007 Act to ensure that these powers are reserved to the public sector.
109.Paragraph 7 of Schedule 4 makes similar changes to Schedule 12 to the 2003 Act in relation to suspended sentence orders.
110.Part 2 of Schedule 4 makes further consequential amendments.
111.Section 15 amends the 2003 Act to create, for community orders and suspended sentence orders, a new “rehabilitation activity requirement”. The rehabilitation activity requirement replaces the existing “activity” and “supervision” requirements, which are repealed (see section 15(4)).
112.Subsection (3) of section 15 inserts a new section 200A into the 2003 Act, which sets out the details of the new rehabilitation activity requirement.
113.Subsection (1) of new section 200A provides that an offender subject to this requirement must comply with instructions given by the responsible officer to attend appointments or participate in activities, or both. Subsection (2) requires the court imposing the requirement to specify in the order the maximum number of days for which the offender may be instructed to participate in activities. Subsection (3) makes clear that the instructions given under this requirement must be given with a view to promoting the rehabilitation of the offender, although they may also serve other purposes.
114.Subsection (4) of new section 200A allows the responsible officer to instruct the offender to attend appointments with the responsible officer or someone else. Subsection (5) makes clear that instructions may require the offender to participate in specified activities or go to a specified place and comply with instructions given by the person in charge of the activities or that place. Subsection (6) provides that the instructions given under subsection (5) can include instructions given by anyone acting under the person in charge’s authority.
115.Subsection (7) of new section 200A clarifies that activities under the requirement may include accredited programmes as set out in section 202(2) of the 2003 Act or include activities whose purpose is reparative, such as restorative justice activities. Subsection (8) defines restorative justice activities in this context, based on the definition set out in section 1ZA(2) of the Powers of Criminal Courts (Sentencing) Act 2000. Subsection (9) defines victim in this context.
116.Subsection (10) of new section 200A requires the responsible officer to obtain the agreement of any person, other than the offender, whose co-operation is necessary to comply with the requirement.
117.Subsection (11) of new section 200A defines the “relevant period” for both community orders and suspended sentence orders so that the requirement must last for the whole of the order. This means that appointments and activities can take place at any time during the order.
118.Subsection (5) of section 15 introduces Schedule 5 to the Act, which contains consequential amendments.
119.Section 16 amends section 202 of the 2003 Act, which makes provision for an offender to be required to participate in an accredited programme as a requirement of a community order or suspended sentence order.
120.Subsection (2) of section 16 removes the provision from the 2003 Act that an offender can only participate in accredited programmes in places approved by the local probation board or local provider of probation services. Subsections (3) and (4) of section 16 make consequential amendments to Schedules 9 and 13 to the 2003 Act, which relate to transfers of community orders and suspended sentence orders to Scotland and Northern Ireland.
121.Section 17 amends section 214 of the 2003 Act, which makes provision for an offender aged under 25 to be required to attend an attendance centre as part of a community order or suspended sentence order.
122.Subsection (5) of section 17 amends section 214 to provide that the responsible officer, rather than the court, must notify the offender which attendance centre he or she is required to attend. The remainder of section 17 makes consequential amendments to give effect to the change at section 17(5).
123.Section 18 inserts a new section 220A into the 2003 Act to require an offender subject to a community order or suspended sentence order (which does not include a residence requirement under section 206 of the 2003 Act) to seek the permission of the responsible officer or the court before changing their place of residence.
124.New section 220A(1) provides that an offender subject to a community order or suspended sentence order must not change residence without permission of their responsible officer or a court. Subsection (2) provides that the offender may apply to the court to reconsider a decision by the responsible officer to refuse permission. Subsection (3) provides that the court may grant permission when it is considering whether an offender has breached his or her order, or whether to amend or revoke an order, under Schedule 8 (for community orders) or Schedule 12 (for suspended sentence orders) to the 2003 Act.
125.Subsection (4) of new section 220A sets out that the grounds for refusing an application to change residence are that the change is likely to prevent the offender from complying with a requirement of the order or that it would hinder the offender’s rehabilitation. Subsection (5) provides that the requirement to seek permission for a change in residence is enforceable as if it were a requirement imposed by the order. As such, an unreasonable failure to seek permission may be treated as a breach of the order. Subsection (6) disapplies the duty to seek permission for a change in residence in cases where the offender is subject to a residence requirement imposed by the court under section 206 of the 2003 Act.
126.Subsection (3) of section 18 omits the obligation in section 220(1)(b) of the 2003 Act for the offender to notify the responsible officer of any change of address, on the basis that this will no longer be relevant once the new duty to seek permission to change residence is in force.
127.Subsections (4) to (6) of section 18 simplify paragraph 16 of Schedule 8 to the 2003 Act, under which the court may (and in certain circumstances must) amend a community order where it is satisfied that the offender proposes to change, or has changed, his or her residence from the local justice area specified in the order to another local justice area. Where an offender has been allowed to change residence under section 220A the court must amend the order to specify the new local justice area in which the offender now resides. If the change of residence was agreed by the responsible officer rather than the court the responsible officer must apply to the court to have the order amended and the court must make that amendment.
128.Subsections (7) to (9) of section 18 make similar changes to those made to Schedule 8 to Schedule 12 to the 2003 Act, which deals with breach, revocation and amendment of suspended sentence orders.
129.Subsections (10) and (11) of section 18 disapply the new duty to seek permission to change residence from the regime governing breach of a default order (under which unpaid work, curfew or an attendance centre requirement may be imposed in lieu of a distress warrant for unpaid fines). They amend Schedule 31 to the 2003 Act to provide that the new section 220A will not apply in the context of default orders and to provide a power for the court to amend a default order where the person subject to the order moves out of the local justice area specified in the order. Subsection (12) amends Schedule A1 to the Children Act 1989 to disapply the new duty to seek permission to change residence from the regime governing enforcement orders (under which unpaid work can be imposed in respect of breach of a contact order under the Children Act 1989).
130.Section 19 gives effect to Schedule 6, which makes a number of amendments to the Armed Forces Act 2006 which are consequential on the other provisions of the Act.
131.Paragraph 2 of Schedule 6 is consequential on section 6 (supervision of certain young offenders after detention and training order).
132.Paragraph 3 is consequential on section 9 (recall and further release of offenders).
133.Paragraphs 4 to 11 relate to service community orders (community orders made by service courts in respect of offenders expected to reside in the United Kingdom), overseas community orders (made by service courts in respect of civilian offenders residing with the armed forces overseas), and suspended sentence orders with community requirements when made by service courts.
134.Paragraphs 4 to 7 are consequential on section 14 and Schedule 4 (officers responsible for implementing orders). Paragraphs 4 and 6 ensure that the new provisions relating to the enforcement of community orders do not apply to overseas community orders: as at present, the “responsible officer” is to be responsible for enforcement as well as supervision. Paragraph 5 relates to service community orders, and paragraph 7 to suspended sentence orders with community requirements made by service courts.
135.Paragraphs 8 to 11 are consequential on section 18 (duty to obtain permission before changing residence).
136.Section 20 provides for the Secretary of State, by order, to make consequential, supplementary or incidental amendments in relation to any provision of the Act. An order may make different provision for different purposes and amend, repeal or revoke legislation. An order may also make different provision for different areas where it relates to sections 1 to 7 of, and Schedules 1 to 3 to, the Act (that is, the provisions relating to the release and supervision of offenders sentenced to less than 2 years).
137.Section 21 introduces Schedule 7 to the Act, which contains details of cases to which the Act’s provisions apply. Subsections (2) to (4) confer power on the Secretary of State to make transitional, transitory and saving provision in connection with the commencement of provisions of the Act.
138.Section 22 provides that the substantive provisions of the Act will come into force on such day or days as the Secretary of State appoints. Subsection (3) allows for commencement on different days for different purposes; and in connection with the provisions relating to the release and supervision of offenders, it allows for commencement at different times for different areas.
139.Section 23 sets out the territorial extent of the Act. Subsection (1) provides that, except for armed forces amendments or repeals, a provision that amends or repeals another Act has the same extent as the amended or repealed provision. Subject to that, the Act extends to England and Wales, Scotland and Northern Ireland (see subsection (2)).
140.Subsection (3) provides that so far as sections 20, 21 or 22 of the Act confer powers relating to Schedule 1 to the Crime (Sentences) Act 1997, those powers also extend to the Channel Islands.
141.Subsection (4) provides that section 385 of the Armed Forces Act 2006 (the 2006 Act) does not apply to armed forces amendments or repeals. The 2006 Act extends to the whole of the United Kingdom, the Isle of Man and the British Overseas Territories. Where a provision of an Act is applied by or under the 2006 Act, section 385 of the 2006 Act ensures that the provision as thus applied has the same extent as the 2006 Act itself.
142.Subsection (5) of section 23, in conjunction with section 23(8), confers power to make an Order in Council in relation to the amendments of the 2006 Act made by Schedule 6, or, in the case of amendments or repeals of provisions applied by or under that Act, in relation to the provisions as so applied. Such an Order in Council can extend the provisions in question, with or without modifications, to any of the Channel Islands, the Isle of Man, or any of the British Overseas Territories.
143.Subsection (6) provides that the power in paragraph 19 of Schedule 1 to the Crime (Sentences) Act 1997, to extend the cross-border transfer provision in that Schedule to the Isle of Man, is exercisable in relation to any amendment of the Crime (Sentences) Act 1997 made by this Act.
144.Subsection (7) provides that the power in section 338 of the 2003 Act to extend provisions of that Act to the Channel Islands and the Isle of Man is exercisable in relation to any amendments of that Act made by this Act.
145.Section 24 gives the short title of the Act as the Offender Rehabilitation Act 2014.