“234B Drug treatment and testing order.

(1)

This section applies where a person of 16 years of age or more is convicted of an offence, other than one for which the sentence is fixed by law, committed on or after the date on which section 89 of the Crime and Disorder Act 1998 comes into force.

(2)

Subject to the provisions of this section, the court by or before which the offender is convicted may, if it is of the opinion that it is expedient to do so instead of sentencing him, make an order (a “drug treatment and testing order”) which shall—

(a)

have 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)

include the requirements and provisions mentioned in section 234C of this Act.

(3)

A court shall not make a drug treatment and testing order unless it—

(a)

has been notified by the Secretary of State that arrangements for implementing such orders are available in the area of the local authority proposed to be specified in the order under section 234C(6) of this Act and the notice has not been withdrawn;

(b)

has obtained a report by, and if necessary heard evidence from, an officer of the local authority in whose area the offender is resident about the offender and his circumstances; and

(c)

is satisfied that—

(i)

the offender is dependent on, or has a propensity to misuse, drugs;

(ii)

his dependency or propensity is such as requires and is susceptible to treatment; and

(iii)

he is a suitable person to be subject to such an order.

(4)

For the purpose of determining for the purposes of subsection (3)(c) 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.

(5)

A drug treatment and testing order or an order under subsection (4) above shall not be made unless the offender expresses his willingness to comply with its requirements.

(6)

The Secretary of State may by order—

(a)

amend paragraph (a) of subsection (2) above by substituting a different period for the minimum or the maximum period for the time being specified in that paragraph; and

(b)

make such transitional provisions as appear to him necessary or expedient in connection with any such amendment.

(7)

The power to make an order under subsection (6) above shall be exercisable by statutory instrument; but no such order shall be made unless a draft of the order has been laid before and approved by resolution of each House of Parliament.

(8)

A drug treatment and testing order shall be as nearly as may be in the form prescribed by Act of Adjournal.”

“234C Requirements and provisions of drug treatment and testing orders.

(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 made for the treatment intended to be specified in the order (including arrangements for the reception of the offender where he is 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 provide during that period, at such times and in such circumstances as may (subject to the provisions of the order) be determined by the treatment provider, 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.

(6)

A drug treatment and testing order shall specify the local authority in whose area the offender will reside when the order is in force and require that authority to appoint or assign an officer (a “supervising officer”) for the purposes of subsections (7) and (8) below.

(7)

A drug treatment and testing order shall—

(a)

provide that, for the treatment and testing period, the offender shall be under the supervision of a supervising officer;

(b)

require the offender to keep in touch with the supervising 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

(c)

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 supervising officer.

(8)

Supervision by the supervising 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 appropriate court;

(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 variation or revocation of the order.”

“234D Procedural matters relating to drug treatment and testing orders.

(1)

Before making a drug treatment and testing order, a 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 section 234G of this Act if he fails to comply with any of those requirements;

(c)

that the court has power under section 234E of this Act to vary or revoke the order on the application of either the offender or the supervising officer; and

(d)

that the order will be periodically reviewed at intervals provided for in the order.

(2)

Upon making a drug treatment and testing order the court shall—

(a)

give, or send by registered post or the recorded delivery service, a copy of the order to the offender;

(b)

send a copy of the order to the treatment provider;

(c)

send a copy of the order to the chief social work officer of the local authority specified in the order in accordance with section 234C(6) of this Act; and

(d)

where it is not the appropriate court, send a copy of the order (together with such documents and information relating to the case as are considered useful) to the clerk of the appropriate court.

(3)

Where a copy of a drug treatment and testing order has under subsection (2)(a) been sent by registered post or by the recorded delivery service, an acknowledgment or certificate of delivery of a letter containing a copy order issued by the Post Office shall be sufficient evidence of the delivery of the letter on the day specified in such acknowledgement or certificate.”

“234E Amendment of drug treatment and testing order.

(1)

Where a drug treatment and testing order is in force either the offender or the supervising officer may apply to the appropriate court for variation or revocation of the order.

(2)

Where an application is made under subsection (1) above by the supervising officer, the court shall issue a citation requiring the offender to appear before the court.

(3)

On an application made under subsection (1) above and after hearing both the offender and the supervising officer, the court may by order, if it appears to it in the interests of justice to do so—

(a)

vary the order by—

(i)

amending or deleting any of its requirements or provisions;

(ii)

inserting further requirements or provisions; or

(iii)

subject to subsection (4) below, increasing or decreasing the treatment and testing period; or

(b)

revoke the order.

(4)

The power conferred by subsection (3)(a)(iii) above shall not be exercised so as to increase the treatment and testing period above the maximum for the time being specified in section 234B(2)(a) of this Act, or to decrease it below the minimum so specified.

(5)

Where the court, on the application of the supervising officer, proposes to vary (otherwise than by deleting a requirement or provision) a drug treatment and testing order, sections 234B(5) and 234D(1) of this Act shall apply to the variation of such an order as they apply to the making of such an order.

(6)

If an offender fails to appear before the court after having been cited in accordance with subsection (2) above, the court may issue a warrant for his arrest.

234F Periodic review of drug treatment and testing order.

(1)

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 subsection (5) below, at a hearing held for the purpose by the appropriate court (a “review hearing”);

(c)

require the offender to attend each review hearing;

(d)

provide for the supervising officer to make to the court, 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 supervising officer under section 234C(7)(c) of this Act and the views of the treatment provider as to the treatment and testing of the offender.

(2)

At a review hearing the court, after considering the supervising officer’s report, may amend any requirement or provision of the order.

(3)

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 reduce the treatment and testing period below the minimum specified in section 234B(2)(a) of this Act 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.

(4)

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 revoke the order.

(5)

If at a review hearing the court, after considering the supervising 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 without a hearing.

(6)

A review without a hearing shall take place in chambers without the parties being present.

(7)

If at a review without a hearing the court, after considering the supervising officer’s report, is of the opinion that the offender’s progress is no longer satisfactory, the court may issue a warrant for the arrest of the offender or may, if it thinks fit, instead of issuing a warrant in the first instance, issue a citation requiring the offender to appear before that court as such time as may be specified in the citation.

(8)

Where an offender fails to attend—

(a)

a review hearing in accordance with a requirement contained in a drug treatment and testing order; or

(b)

a court at the time specified in a citation under subsection (7) above,

the court may issue a warrant for his arrest.

(9)

Where an offender attends the court at a time specified by a citation issued under subsection (7) above—

(a)

the court may exercise the powers conferred by this section as if the court were conducting a review hearing; and

(b)

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

“234G Breach of drug treatment testing order.

(1)

If at any time when a drug treatment and testing order is in force it appears to the appropriate court that the offender has failed to comply with any requirement of the order, the court may issue a citation requiring the offender to appear before the court at such time as may be specified in the citation or, if it appears to the court to be appropriate, it may issue a warrant for the arrest of the offender.

(2)

If it is proved to the satisfaction of the appropriate court that the offender has failed without reasonable excuse to comply with any requirement of the order, the court may by order—

(a)

without prejudice to the continuation in force of the order, impose a fine not exceeding level 3 on the standard scale;

(b)

vary the order; or

(c)

revoke the order.

(3)

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

(4)

A fine imposed under this section in respect of a failure to comply with the requirements of a drug treatment and testing 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.

234H Disposal on revocation of drugs treatment and testing order.

(1)

Where the court revokes a drugs treatment and testing order under section 234E(3)(b), 234F(4) or 234G(2)(c) of this Act, it may dispose of the offender in any way which would have been competent at the time when the order was made.

(2)

In disposing of an offender under subsection (1) above, the court shall have regard to the time for which the order has been in operation.

(3)

Where the court revokes a drug treatment and testing order as mentioned in subsection (1) above and the offender is subject to—

(a)

a probation order, by virtue of section 234J of this Act; or

(b)

a restriction of liberty order, by virtue of section 245D of this Act; or

(c)

a restriction of liberty order and a probation order, by virtue of the said section 245D,

the court shall, before disposing of the offender under subsection (1) above—

(i)

where he is subject to a probation order, discharge that order;

(ii)

where he is subject to a restriction of liberty order, revoke that order; and

(iii)

where he is subject to both such orders, discharge the probation order and revoke the restriction of liberty order.”