Criminal Procedure (Scotland) Act 1995

232 Probation orders: failure to comply with requirement. S

(1) If, on [F1 the basis of a report made to it by]—

(a) the officer supervising the probationer;

(b) the chief social work officer of the local authority whose officer is supervising the probationer; or

(c) an officer appointed by the chief social work officer to act on his behalf for the purposes of this subsection,

it appears to the court which made the probation order or to the appropriate court that the probationer has failed to comply with any requirement of the order, that court may issue a warrant for the arrest of the probationer, or may, if it thinks fit, instead of issuing such a warrant in the first instance, issue a citation requiring the probationer to appear before the court at such time as may be specified in the citation.

[F2 (1A) A copy of a report made under subsection (1) above shall be served on the probationer in such manner as may be prescribed by Act of Adjournal; and a written execution purporting to be signed by the person who served the copy, together with, where appropriate, a receipt issued by the postal operator shall be sufficient evidence of service of the copy.]

(2) If it is proved to the satisfaction of the court before which a probationer appears or is brought in pursuance of subsection (1) above [F3 or of section 229A of this Act] that he has failed to comply with a requirement of the probation order, the court may—

(a) except in the case of a failure to comply with a requirement to pay compensation and without prejudice to the continuance in force of the probation order, impose a fine not exceeding level 3 on the standard scale; or

(b) sentence the offender for the offence for which the order was made; or

(c) vary any of the requirements of the probation order, so however that any extension of the probation period shall terminate not later than three years from the date of the probation order [F4 and any extension to the period of a requirement imposed by virtue of section 230A of this Act shall not increase that period above the maximum mentioned in subsection (1) of that section] ; or

(d) without prejudice to the continuance in force of the probation order, in a case where the conditions required by sections 238 to 244 of this Act are satisfied, make a community service order, and those sections shall apply to such an order as if the failure to comply with the requirement of the probation order were the offence in respect of which the order had been made.

[F5 (2A) Subsections (6) and (11) of section 245A of this Act apply to the variation, under paragraph (c) of subsection (2) above, of a requirement such as is mentioned in that paragraph as they apply to the making of a restriction of liberty order.]

(3) For the purposes of subsection (2) above, evidence of one witness shall be sufficient evidence.

[F6 (3A) Where the court intends to sentence an offender under subsection (2)(b) above, and the offender is by virtue of section 245D of this Act subject to

[F7 (a) a restriction of liberty order; or

(b) a restriction of liberty order and a drug treatment and testing order,]

it shall, before sentencing the offender under that paragraph, revoke the restriction of liberty order [F8 or, as the case may be, the restriction of liberty order and the drug treatment and testing order.].]

[F9 (3B) Where the court intends to sentence an offender under subsection (2)(b) above and the offender is by virtue of section 234J of this Act subject to a drug treatment and testing order, it shall, before sentencing the offender under that paragraph, revoke the drug treatment and testing order.]

(4) A fine imposed under this section in respect of a failure to comply with the requirements of a probation order shall be deemed for the purposes of any enactment to be a sum adjudged to be paid by or in respect of a conviction or a penalty imposed on a person summarily convicted.

(5) A probationer who is required by a probation order to submit to treatment for his mental condition shall not be deemed for the purpose of this section to have failed to comply with that requirement on the ground only that he has refused to undergo any surgical, electrical or other treatment if, in the opinion of the court, his refusal was reasonable having regard to all the circumstances.

(6) Without prejudice to section 233 of this Act, a probationer who is convicted of an offence committed during the probation period shall not on that account be liable to be dealt with under this section for failing to comply with any requirement of the probation order.

[F10 (7) The unified citation provisions apply in relation to a citation under this section as they apply in relation to a citation under section 216(3)(a) of this Act.]

[F11 (8) This section is subject to section 42(9) of the Criminal Justice (Scotland) Act 2003 (asp 7)(powers of drugs court).]

Textual Amendments

F1 Words in s. 232(1) substituted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 57(1)(a), 84; S.S.I. 2007/479, art.3(1), Sch. (as amended by S.S.I. 2007/527)

F2 S. 232(1A) inserted (10.12.2007) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 57(1)(b), 84; S.S.I. 2007/479, art.3(1), Sch. (as amended by S.S.I. 2007/527)

F3 Words in s. 232(2) inserted (8.2.2006) by Management of Offenders etc. (Scotland) Act 2005 (asp 14), ss. 12(3), 24; S.S.I. 2006/48, art. 3(1) Sch. Pt. 1 (subject to art. 3(3))

F4 Words in s. 232(2)(c) added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 46(3)(a), 89; S.S.I. 2003/288, art. 2, Sch.

F5 S. 232(2A) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 46(3)(b), 89; S.S.I. 2003/288, art. 2, Sch.

F6 S. 232(3A) inserted (1.7.1998) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(28); S.I. 1997/2323, art. 5(2)

F7 S. 232(3A): sub-paras. (a) and (b) substituted (30.9.1998) for words in s. 232(3A) by 1998 c. 37, s. 94(2), Sch. 6 Pt. I para. 2(2)(a); S.I. 1998/2327, art. 2(1)(s)

F8 Words in s. 232(3A) added (30.9.1998) by 1998 c. 37, s. 94(2), Sch. 6 Pt. I para. 2(2)(b); S.I. 1998/2327, art. 2(1)(s)

F9 S. 232(3B) inserted (30.9.1998) by 1998 c. 37, s. 94(2), Sch. 6 Pt. I para. 2(3); S.I. 1998/2327, art. 2(1)(s)

F10 S. 232(7) substituted (27.10.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 60(1)(a), 89; S.S.I. 2003/475, art. 2, Sch.

F11 S. 232(8) added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 42(11)(b), 89; S.S.I. 2003/288, art. 2, Sch.