Schedule 13 – Transfer of suspended sentence orders to Scotland or Northern Ireland
807.Schedule 13 enables suspended sentence orders to be complied with in Scotland and Northern Ireland. It contains four Parts. The first two relate to Scotland and Northern Ireland, respectively, and the third contains general provisions applicable to both. Part 4 is a small supplementary Part.
Parts 1 and 2
808.Parts 1 and 2 are very similar. Paragraphs 1 and 6 enable the court to make the transfer. Sub-paragraph (1) of each paragraph requires the court to ensure that the requirements of the order can be complied with and supervision arranged in the area of Scotland or NI that the offender is transferring to. In practice this is done by the probation officer attached to the court in England and Wales which is making the transfer telephoning their equivalents in Scotland or Northern Ireland. The Scottish or Northern Ireland counterparts can turn down the transfer for any reason.
809.Sub-paragraph (2) is not a complete list of requirements available for transfer, it only contains those which have arrangements associated with them that the court has to confirm are available. These arrangements involve third parties, whose co-operation must be obtained before imposing them. For example, supervision does not need further arrangements because it only concerns the offender and the probation officer. A programme requirement, however, requires a place to be available on a suitable course.
810.Sub-paragraph (3) enables the court to require the order to be complied with in Scotland or Northern Ireland. Sub-paragraph (4) is a technical provision, such that any arrangements referred to above only have to be in place from when the order is transferred, not when it was first made. Paragraph 1(5) prevents the court from imposing an attendance centre requirement as part of transferred orders because they do not exist in Scotland.
811.Paragraphs 1(6) and 6(5) prevent transferred orders from containing a provision for court review, either as part of a drug rehabilitation requirement or of the suspended sentence order as a whole. As Scottish or Northern Ireland courts will not have the power to impose a suspended sentence, they will not have any training as to what the purpose of review is, and thus it is inappropriate to ask them to review it. Neither jurisdiction currently has any form of suspended sentence.
812.Paragraphs 2 and 7 provide for the equivalent of the local probation board in Scotland or Northern Ireland to be specified in the order, and the equivalent of a responsible officer assigned. Accordingly, the requirement for the order to specify a petty sessions area (in England and Wales) is disapplied.
813.Paragraphs 3 and 8 ensure the equivalent of the local probation board in Scotland or Northern Ireland and the local court in that area receive a copy of the order.
814.Paragraphs 4 and 9 modify Chapter 4 of paragraph 23, the chapter which provides all of the requirements available as part of a suspended sentence order, such that it can apply to Scotland or Northern Ireland, respectively. Sub-paragraph (3) omits all of the provisions which state that the provider of a certain requirement have to be specified by the Secretary of State. This needs to be omitted because it would not include providers in Scotland and Northern Ireland, and thus those requirements would not be able to form part of a transferred order.
815.Paragraph 5 is an interpretive provision.
Part 3
816.Part 3 contains provisions for breach and amendment of transferred suspended sentence orders. In general terms, if an offender breaches a requirement of a transferred suspended sentence, the local Scottish or Northern Ireland court will determine whether or not the order has been breached. If it has, that court will require the offender to appear before the original court in England and Wales to deal with the consequences, as Scottish and Northern Ireland courts will not have any training or experience in suspended sentences. In most cases the response to breach will consist of activating the suspended prison sentence, which is a sentence of custody plus, of which Scottish and Northern Ireland courts will also have no experience. The home court can also send the case to the England and Wales court to determine breach as well as deal with the consequences if, for example, the case is for some reason complicated.
817.Paragraph 10 applies Part 3 of the Schedule to such orders. Paragraph 11 is an interpretive provision. Paragraph 12 adapts Schedule 12, which covers breach, revocation and amendment of suspended sentence orders, so that it applies to suspended sentence orders that have been transferred to Scotland or Northern Ireland. Except for sub-paragraph (3) which concerns orders transferred to Scotland or Northern Ireland which are then transferred back to England and Wales. Sub-paragraph (8) prevents courts in England and Wales from dealing with the offender until it has been required to do so by the Scottish or Northern Ireland court. It is the “home” court, i.e. the Scottish or Northern Ireland court that will initially deal with the breach or amendment of a transferred suspended sentence order.
818.Paragraph 13 provides for instigating court procedures in case of breach. This is equivalent to an information being laid at a magistrates’ court in England and Wales. Paragraph 14 provides court procedures which follow an information being laid. Sub-paragraph (1)(b) allows that court to require the original court to hear the breach as well as deal with the consequences. Sub-paragraph (2) deals with what happens after the Scotland or Northern Ireland court has certified a breach. It must require the offender to appear before the original court in England and Wales in order to have the breach dealt with. Subsection (2)(b) makes it clear that at the original court the breach certified in the Scottish or Northern Ireland court cannot be challenged again.
819.Sub-paragraph (3) is a provision that replicates a similar provision in Schedule 12. If the offender “breaches” by not complying with a treatment requirement, the court can determine that the non-compliance was reasonable, and thus the “breach” is not really a breach.
820.Paragraph 15 provides for Scottish or Northern Ireland courts to amend transferred suspended sentence orders. These courts have all the powers that a court in England and Wales has over non-transferred suspended sentences, except that it cannot revoke the order and re-sentence the offender if he refused to comply with an amendment to a treatment requirement. In that case the Scottish or Northern Ireland court has to send the case back to the original court to deal with. Sub-paragraphs (3) and (4) require the offender to appear before the Scottish or Northern Ireland court if the responsible officer has applied to substitute one requirement for another. This is to give the offender the opportunity to object. It does not include occasions where the offender has himself made the application or where the application is just to cancel a requirement. It is assumed the offender has no objections in these cases.
821.Paragraph 16 gives the Scotland or Northern Ireland court the option to decline to amend the order and send it back to the original court to deal with. Paragraph 17 requires the court to ensure that any amendments to a transferred suspended sentence order can be complied with in the area of Scotland or Northern Ireland in which the offender lives. Paragraph 18 applies the Schedule to any amended order as it applies to an unamended order. Paragraph 19 set out the provides arrangements distributing copies of the amended order.
822.Paragraph 20 provides for suspended sentence orders transferred to Scotland or Northern Ireland to be transferred back to England and Wales. This functions similarly to the original transfer, in that the court has to ensure that the requirements can be complied with and supervision arranged in the area of England and Wales that the offender is moving to.
Part 4
823.Paragraph 21 ensures the Scottish legal provisions which concern electronic monitoring apply to offenders on suspended sentence orders. Paragraph 22 ensures that summonses issued in Northern Ireland and citations and warrants issued in Scotland can be executed anywhere in the UK.
