Criminal Justice Act 2003

Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

125 For Schedule 3 (breach revocation and amendment of certain community orders) there is substituted—

“SCHEDULE 3 Breach, revocation and amendment of curfew orders and exclusion orders

Part 1 Preliminary

Definitions

1 In this Schedule—

• “the petty sessions area concerned” means—

  (a)

  in relation to a curfew order, the petty sessions area in which the place for the time being specified in the order is situated; and

  (b)

  in relation to an exclusion order, the petty sessions area for the time being specified in the order;

• “relevant order” means a curfew order or an exclusion order.

Orders made on appeal

2 Where a relevant order has been made on appeal, for the purposes of this Schedule it shall be deemed—

(a) if it was made on an appeal brought from a magistrates' court, to have been made by a magistrates' court;

(b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court.

Part 2 Breach of requirement of order

Issue of summons or warrant

3 (1) If at any time while a relevant order is in force in respect of an offender it appears on information to a justice of the peace acting for the petty sessions area concerned that the offender has failed to comply with any of the requirements of the order, the justice may—

(a) issue a summons requiring the offender to appear at the place and time specified in it; or

(b) if the information is in writing and on oath, issue a warrant for his arrest.

(2) Any summons or warrant issued under this paragraph shall direct the offender to appear or be brought—

(a) in the case of any relevant order which was made by the Crown Court and included a direction that any failure to comply with any of the requirements of the order be dealt with by the Crown Court, before the Crown Court; and

(b) in the case of a relevant order which is not an order to which paragraph (a) above applies, before a magistrates' court acting for the petty sessions area concerned.

(3) Where a summons issued under sub-paragraph (1)(a) above requires an offender to appear before the Crown Court and the offender does not appear in answer to the summons, the Crown Court may issue a further summons requiring the offender to appear at the place and time specified in it.

(4) Where a summons issued under sub-paragraph (1)(a) above or a further summons issued under sub-paragraph (3) above requires an offender to appear before the Crown Court and the offender does not appear in answer to the summons, the Crown Court may issue a warrant for the arrest of the offender.

Powers of magistrates' court

4 (1) This paragraph applies if it is proved to the satisfaction of a magistrates' court before which an offender appears or is brought under paragraph 3 above that he has failed without reasonable excuse to comply with any of the requirements of the relevant order.

(2) The magistrates' court may deal with the offender in respect of the failure in one of the following ways (and must deal with him in one of those ways if the relevant order is in force)—

(a) by making a curfew order in respect of him (subject to paragraph 7 below);

(b) by making an attendance centre order in respect of him (subject to paragraph 8 below); or

(c) where the relevant order was made by a magistrates' court, by dealing with him, for the offence in respect of which the order was made, in any way in which he could have been dealt with for that offence by the court which made the order if the order had not been made.

(3) In dealing with an offender under sub-paragraph (2)(c) above, a magistrates' court—

(a) shall take into account the extent to which the offender has complied with the requirements of the relevant order; and

(b) in the case of an offender who has wilfully and persistently failed to comply with those requirements, may impose a custodial sentence (where the relevant order was made in respect of an offence punishable with such a sentence) notwithstanding anything in section 152(2) of the Criminal Justice Act 2003.

(4) Where a magistrates' court deals with an offender under sub-paragraph (2)(c) above, it shall revoke the relevant order if it is still in force.

(5) Where a relevant order was made by the Crown Court and a magistrates' court has power to deal with the offender under sub-paragraph (2)(a) or (b) above, it may instead commit him to custody or release him on bail until he can be brought or appear before the Crown Court.

(6) A magistrates' court which deals with an offender’s case under sub-paragraph (5) above shall send to the Crown Court—

(a) a certificate signed by a justice of the peace certifying that the offender has failed to comply with the requirements of the relevant order in the respect specified in the certificate; and

(b) such other particulars of the case as may be desirable;

and a certificate purporting to be so signed shall be admissible as evidence of the failure before the Crown Court.

(7) A person sentenced under sub-paragraph (2)(c) above for an offence may appeal to the Crown Court against the sentence.

Powers of Crown Court

5 (1) This paragraph applies where under paragraph 3 or by virtue of paragraph 4(5) above an offender is brought or appears before the Crown Court and it is proved to the satisfaction of that court that he has failed without reasonable excuse to comply with any of the requirements of the relevant order.

(2) The Crown Court may deal with the offender in respect of the failure in one of the following ways (and must deal with him in one of those ways if the relevant order is in force)—

(a) by making a curfew order in respect of him (subject to paragraph 7 below);

(b) by making an attendance centre order in respect of him (subject to paragraph 8 below); or

(c) by dealing with him, for the offence in respect of which the order was made, in any way in which he could have been dealt with for that offence by the court which made the order if the order had not been made.

(3) In dealing with an offender under sub-paragraph (2)(c) above, the Crown Court—

(a) shall take into account the extent to which the offender has complied with the requirements of the relevant order; and

(b) in the case of an offender who has wilfully and persistently failed to comply with those requirements, may impose a custodial sentence (where the relevant order was made in respect of an offence punishable with such a sentence) notwithstanding anything in section 152(2) of the Criminal Justice Act 2003.

(4) Where the Crown Court deals with an offender under sub-paragraph (2)(c) above, it shall revoke the relevant order if it is still in force.

(5) In proceedings before the Crown Court under this paragraph any question whether the offender has failed to comply with the requirements of the relevant order shall be determined by the court and not by the verdict of a jury.

Exclusions from paragraphs 4 and 5

6 Without prejudice to paragraphs 10 and 11 below, an offender who is convicted of a further offence while a relevant order is in force in respect of him shall not on that account be liable to be dealt with under paragraph 4 or 5 in respect of a failure to comply with any requirement of the order.

Curfew orders imposed for breach of relevant order

7 (1) Section 37 of this Act (curfew orders) shall apply for the purposes of paragraphs 4(2)(a) and 5(2)(a) above as if for the words from the beginning to “make” there were substituted “Where a court has power to deal with an offender under Part 2 of Schedule 3 to this Act for failure to comply with any of the requirements of a relevant order, the court may make in respect of the offender”.

(2) The following provisions of this Act, namely—

(a) section 37(3) to (12), and

(b) so far as applicable, sections 36B and 40 and this Schedule so far as relating to curfew orders;

have effect in relation to a curfew order made by virtue of paragraphs 4(2)(a) and 5(2)(a) as they have effect in relation to any other curfew order, subject to sub-paragraph (3) below.

(3) This Schedule shall have effect in relation to such a curfew order as if—

(a) the power conferred on the court by each of paragraphs 4(2)(c), 5(2)(c) and 10(3)(b) to deal with the offender for the offence in respect of which the order was made were a power to deal with the offender, for his failure to comply with the relevant order, in any way in which the appropriate court could deal with him for that failure if it had just been proved to the satisfaction of the court;

(b) the reference in paragraph 10(1)(b) to the offence in respect of which the order was made were a reference to the failure to comply in respect of which the curfew order was made; and

(c) the power conferred on the Crown Court by paragraph 11(2)(b) to deal with the offender for the offence in respect of which the order was made were a power to deal with the offender, for his failure to comply with the relevant order, in any way in which the appropriate court (if the relevant order was made by the magistrates' court) or the Crown Court (if that order was made by the Crown Court) could deal with him for that failure if it had just been proved to its satisfaction.

(4) For the purposes of the provisions mentioned in paragraphs (a) and (c) of sub-paragraph (3) above, as applied by that sub-paragraph, if the relevant order is no longer in force the appropriate court’s powers shall be determined on the assumption that it is still in force.

(5) Sections 148 and 156 of the Criminal Justice Act 2003 (restrictions and procedural requirements for community sentences) do not apply in relation to a curfew order made by virtue of paragraph 4(2)(a) or 5(2)(a) above.

Attendance centre orders imposed for breach of relevant order

8 (1) Section 60(1) of this Act (attendance centre orders) shall apply for the purposes of paragraphs 4(2)(b) and 5(2)(b) above as if for the words from the beginning to “the court may,” there were substituted “Where a court has power to deal with an offender under Part 2 of Schedule 3 to this Act for failure to comply with any of the requirements of a relevant order, the court may,”.

(2) The following provisions of this Act, namely—

(a) subsections (3) to (11) of section 60, and

(b) so far as applicable, section 36B and Schedule 5,

have effect in relation to an attendance centre order made by virtue of paragraph 4(2)(b) or 5(2)(b) above as they have effect in relation to any other attendance centre order, but as if there were omitted from each of paragraphs 2(1)(b), 3(1) and 4(3) of Schedule 5 the words “, for the offence in respect of which the order was made,” and “for that offence”.

(3) Sections 148 and 156 of the Criminal Justice Act 2003 (restrictions and procedural requirements for community sentences) do not apply in relation to an attendance centre order made by virtue of paragraph 4(2)(b) or 5(2)(b) above.

Supplementary

9 Any exercise by a court of its powers under paragraph 4(2)(a) or (b) or 5(2)(a) or (b) above shall be without prejudice to the continuance of the relevant order.

Part 3 Revocation of order

Revocation of order with or without re-sentencing: powers of magistrates' court

10 (1) This paragraph applies where a relevant order made by a magistrates' court is in force in respect of any offender and on the application of the offender or the responsible officer it appears to the appropriate magistrates' court that, having regard to circumstances which have arisen since the order was made, it would be in the interests of justice—

(a) for the order to be revoked; or

(b) for the offender to be dealt with in some other way for the offence in respect of which the order was made.

(2) In this paragraph “the appropriate magistrates' court” means a magistrates' court acting for the petty sessions area concerned.

(3) The appropriate magistrates' court may—

(a) revoke the order; or

(b) both—

(i) revoke the order; and

(ii) deal with the offender for the offence in respect of which the order was made, in any way in which he could have been dealt with for that offence by the court which made the order if the order had not been made.

(4) In dealing with an offender under sub-paragraph (3)(b) above, a magistrates' court shall take into account the extent to which the offender has complied with the requirements of the relevant order.

(5) A person sentenced under sub-paragraph (3)(b) above for an offence may appeal to the Crown Court against the sentence.

(6) Where a magistrates' court proposes to exercise its powers under this paragraph otherwise than on the application of the offender, it shall summon him to appear before the court and, if he does not appear in answer to the summons, may issue a warrant for his arrest.

(7) No application may be made by the offender under sub-paragraph (1) above while an appeal against the relevant order is pending.

Revocation of order with or without re-sentencing: powers of Crown Court on conviction etc.

11 (1) This paragraph applies where—

(a) a relevant order made by the Crown Court is in force in respect of an offender and the offender or the responsible officer applies to the Crown Court for the order to be revoked or for the offender to be dealt with in some other way for the offence in respect of which the order was made; or

(b) an offender in respect of whom a relevant order is in force is convicted of an offence before the Crown Court or, having been committed by a magistrates' court to the Crown Court for sentence, is brought or appears before the Crown Court.

(2) If it appears to the Crown Court to be in the interests of justice to do so, having regard to circumstances which have arisen since the order was made, the Crown Court may—

(a) revoke the order; or

(b) both—

(i) revoke the order; and

(ii) deal with the offender for the offence in respect of which the order was made, in any way in which he could have been dealt with for that offence by the court which made the order if the order had not been made.

(3) In dealing with an offender under sub-paragraph (2)(b) above, the Crown Court shall take into account the extent to which the offender has complied with the requirements of the relevant order.

Revocation following custodial sentence by magistrates' court unconnected with order

12 (1) This paragraph applies where—

(a) an offender in respect of whom a relevant order is in force is convicted of an offence by a magistrates' court unconnected with the order;

(b) the court imposes a custodial sentence on the offender; and

(c) it appears to the court, on the application of the offender or the responsible officer, that it would be in the interests of justice to exercise its powers under this paragraph having regard to circumstances which have arisen since the order was made.

(2) In sub-paragraph (1) above “a magistrates' court unconnected with the order” means a magistrates' court not acting for the petty sessions area concerned.

(3) The court may—

(a) if the order was made by a magistrates' court, revoke it;

(b) if the order was made by the Crown Court, commit the offender in custody or release him on bail until he can be brought or appear before the Crown Court.

(4) Where the court deals with an offender’s case under sub-paragraph (3)(b) above, it shall send to the Crown Court such particulars of the case as may be desirable.

13 Where by virtue of paragraph 12(3)(b) above an offender is brought or appears before the Crown Court and it appears to the Crown Court to be in the interests of justice to do so, having regard to circumstances which have arisen since the relevant order was made, the Crown Court may revoke the order.

Supplementary

14 (1) On the making under this Part of this Schedule of an order revoking a relevant order, the proper officer of the court shall forthwith give copies of the revoking order to the responsible officer.

(2) In sub-paragraph (1) above “proper officer” means—

(a) in relation to a magistrates' court, the justices' chief executive for the court; and

(b) in relation to the Crown Court, the appropriate officer.

(3) A responsible officer to whom in accordance with sub-paragraph (1) above copies of a revoking order are given shall give a copy to the offender and to the person in charge of any institution in which the offender was required by the order to reside.

Part 4 Amendment of order

Amendment by reason of change of residence

15 (1) This paragraph applies where, at any time while a relevant order is in force in respect of an offender, a magistrates' court acting for the petty sessions area concerned is satisfied that the offender proposes to change, or has changed, his residence from that petty sessions area to another petty sessions area.

(2) Subject to sub-paragraph (3) below, the court may, and on the application of the responsible officer shall, amend the relevant order by substituting the other petty sessions area for the area specified in the order or, in the case of a curfew order, a place in that other area for the place so specified.

(3) The court shall not amend under this paragraph a curfew order which contains requirements which, in the opinion of the court, cannot be complied with unless the offender continues to reside in the petty sessions area concerned unless, in accordance with paragraph 16 below, it either—

(a) cancels those requirements; or

(b) substitutes for those requirements other requirements which can be complied with if the offender ceases to reside in that area.

Amendment of requirements of order

16 (1) Without prejudice to the provisions of paragraph 15 above but subject to the following provisions of this paragraph, a magistrates' court acting for the petty sessions area concerned may, on the application of an eligible person, by order amend a relevant order—

(a) by cancelling any of the requirements of the order; or

(b) by inserting in the order (either in addition to or in substitution for any of its requirements) any requirement which the court could include if it were then making the order.

(2) A magistrates' court shall not under sub-paragraph (1) above amend a curfew order by extending the curfew periods beyond the end of six months from the date of the original order.

(3) A magistrates' court shall not under sub-paragraph (1) above amend an exclusion order by extending the period for which the offender is prohibited from entering the place in question beyond the end of three months from the date of the original order.

(4) For the purposes of this paragraph the eligible persons are—

(a) the offender;

(b) the responsible officer; and

(c) in relation to an exclusion order, any affected person.

But an application under sub-paragraph (1) by a person such as is mentioned in paragraph (c) above must be for the cancellation of a requirement which was included in the order by virtue of his consent or for the purpose (or partly for the purpose) of protecting him from being approached by the offender, or for the insertion of a requirement which will, if inserted, be such a requirement.

Supplementary

17 No order may be made under paragraph 15 above, and no application may be made under paragraph 16 above, while an appeal against the relevant order is pending.

18 (1) Subject to sub-paragraph (2) below, where a court proposes to exercise its powers under this Part of this Schedule, otherwise than on the application of the offender, the court—

(a) shall summon him to appear before the court; and

(b) if he does not appear in answer to the summons, may issue a warrant for his arrest.

(2) This paragraph shall not apply to an order cancelling a requirement of a relevant order or reducing the period of any requirement, or to an order under paragraph 15 above substituting a new petty sessions area or a new place for the one specified in a relevant order.

19 (1) On the making under this Part of this Schedule of an order amending a relevant order, the justices' chief executive for the court shall forthwith—

(a) if the order amends the relevant order otherwise than by substituting, by virtue of paragraph 15 above, a new petty session area or a new place for the one specified in the relevant order, give copies of the amending order to the responsible officer;

(b) if the order amends the relevant order in the manner excepted by paragraph (a) above, send to the chief executive to the justices for the new petty sessions area or, as the case may be, for the petty sessions area in which the new place is situated—

(i) copies of the amending order; and

(ii) such documents and information relating to the case as he considers likely to be of assistance to a court acting for that area in the exercise of its functions in relation to the order;

and in a case falling within paragraph (b) above the chief executive of the justices for that area shall give copies of the amending order to the responsible officer.

(2) A responsible officer to whom in accordance with sub-paragraph (1) above copies of an order are given shall give a copy to the offender and to the person in charge of any institution in which the offender is or was required by the order to reside.”