Criminal Justice Act 2003

Section 179

SCHEDULE 8 Breach, revocation or amendment of community order

Part 1 Preliminary

Interpretation

1 In this Schedule—

• “the offender”, in relation to a community order, means the person in respect of whom the order is made;

• “the petty sessions area concerned”, in relation to a community order, means the petty sessions area for the time being specified in the order;

• “the responsible officer” has the meaning given by section 197.

2 In this Schedule—

(a) references to a drug rehabilitation requirement of a community order being subject to review are references to that requirement being subject to review in accordance with section 210(1)(b);

(b) references to the court responsible for a community order imposing a drug rehabilitation requirement which is subject to review are to be construed in accordance with section 210(2).

3 For the purposes of this Schedule—

(a) a requirement falling within any paragraph of section 177(1) is of the same kind as any other requirement falling within that paragraph, and

(b) an electronic monitoring requirement is a requirement of the same kind as any requirement falling within section 177(1) to which it relates.

Orders made on appeal

4 Where a community order has been made on appeal, it is to be taken for the purposes of this Schedule to have been made by the Crown Court.

Part 2 Breach of requirement of order

Duty to give warning

5 (1) If the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the requirements of a community order, the officer must give him a warning under this paragraph unless—

(a) the offender has within the previous twelve months been given a warning under this paragraph in relation to a failure to comply with any of the requirements of the order, or

(b) the officer causes an information to be laid before a justice of the peace in respect of the failure.

(2) A warning under this paragraph must—

(a) describe the circumstances of the failure,

(b) state that the failure is unacceptable, and

(c) inform the offender that, if within the next twelve months he again fails to comply with any requirement of the order, he will be liable to be brought before a court.

(3) The responsible officer must, as soon as practicable after the warning has been given, record that fact.

(4) In relation to any community order which was made by the Crown Court and does not include a direction that any failure to comply with the requirements of the order is to be dealt with by a magistrates' court, the reference in sub-paragraph (1)(b) to a justice of the peace is to be read as a reference to the Crown Court.

Breach of order after warning

6 (1) If—

(a) the responsible officer has given a warning under paragraph 5 to the offender in respect of a community order, and

(b) at any time within the twelve months beginning with the date on which the warning was given, the responsible officer is of the opinion that the offender has since that date failed without reasonable excuse to comply with any of the requirements of the order,

the officer must cause an information to be laid before a justice of the peace in respect of the failure in question.

(2) In relation to any community order which was made by the Crown Court and does not include a direction that any failure to comply with the requirements of the order is to be dealt with by a magistrates' court, the reference in sub-paragraph (1) to a justice of the peace is to be read as a reference to the Crown Court.

Issue of summons or warrant by justice of the peace

7 (1) This paragraph applies to—

(a) a community order made by a magistrates' court, or

(b) any community order which was made by the Crown Court and includes a direction that any failure to comply with the requirements of the order is to be dealt with by a magistrates' court.

(2) If at any time while a community order to which this paragraph applies is in force 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.

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

(a) in the case of a community order imposing a drug rehabilitation requirement which is subject to review, before the magistrates' court responsible for the order, or

(b) in any other case, before a magistrates' court acting for the petty sessions area concerned.

(4) Where a summons issued under sub-paragraph (2)(a) requires the offender to appear before a magistrates' court and the offender does not appear in answer to the summons, the magistrates' court may issue a warrant for the arrest of the offender.

Issue of summons or warrant by Crown Court

8 (1) This paragraph applies to a community order made by the Crown Court which does not include a direction that any failure to comply with the requirements of the order is to be dealt with by a magistrates' court.

(2) If at any time while a community order to which this paragraph applies is in force it appears on information to the Crown Court that the offender has failed to comply with any of the requirements of the order, the Crown Court 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.

(3) Any summons or warrant issued under this paragraph must direct the offender to appear or be brought before the Crown Court.

(4) Where a summons issued under sub-paragraph (2)(a) requires the 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

9 (1) If it is proved to the satisfaction of a magistrates' court before which an offender appears or is brought under paragraph 7 that he has failed without reasonable excuse to comply with any of the requirements of the community order, the court must deal with him in respect of the failure in any one of the following ways—

(a) by amending the terms of the community order so as to impose more onerous requirements which the court could include if it were then making the order;

(b) where the community 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 the court could deal with him if he had just been convicted by it of the offence;

(c) where—

(i) the community order was made by a magistrates' court,

(ii) the offence in respect of which the order was made was not an offence punishable by imprisonment,

(iii) the offender is aged 18 or over, and

(iv) the offender has wilfully and persistently failed to comply with the requirements of the order,

by dealing with him, in respect of that offence, by imposing a sentence of imprisonment for a term not exceeding 51 weeks.

(2) In dealing with an offender under sub-paragraph (1), a magistrates' court must take into account the extent to which the offender has complied with the requirements of the community order.

(3) In dealing with an offender under sub-paragraph (1)(a), the court may extend the duration of particular requirements (subject to any limit imposed by Chapter 4 of Part 12 of this Act) but may not extend the period specified under section 177(5).

(4) In dealing with an offender under sub-paragraph (1)(b), the court may, in the case of an offender who has wilfully and persistently failed to comply with the requirements of the community order, impose a custodial sentence (where the order was made in respect of an offence punishable with such a sentence) notwithstanding anything in section 152(2).

(5) Where a magistrates' court deals with an offender under sub-paragraph (1)(b) or (c), it must revoke the community order if it is still in force.

(6) Where a community order was made by the Crown Court and a magistrates' court would (apart from this sub-paragraph) be required to deal with the offender under sub-paragraph (1)(a), (b) or (c), it may instead commit him to custody or release him on bail until he can be brought or appear before the Crown Court.

(7) A magistrates' court which deals with an offender’s case under sub-paragraph (6) must 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 community 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 is admissible as evidence of the failure before the Crown Court.

(8) A person sentenced under sub-paragraph (1)(b) or (c) for an offence may appeal to the Crown Court against the sentence.

Powers of Crown Court

10 (1) Where under paragraph 8 or by virtue of paragraph 9(6) an offender appears or is brought 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 community order, the Crown Court must deal with him in respect of the failure in any one of the following ways—

(a) by amending the terms of the community order so as to impose more onerous requirements which the Crown Court could impose if it were then making the order;

(b) 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;

(c) where—

(i) the offence in respect of which the order was made was not an offence punishable by imprisonment,

(ii) the offender is aged 18 or over,

(iii) the offender has wilfully and persistently failed to comply with the requirements of the order,

by dealing with him, in respect of that offence, by imposing a sentence of imprisonment for a term not exceeding 51 weeks.

(2) In dealing with an offender under sub-paragraph (1), the Crown Court must take into account the extent to which the offender has complied with the requirements of the community order.

(3) In dealing with an offender under sub-paragraph (1)(a), the court may extend the duration of particular requirements (subject to any limit imposed by Chapter 4 of Part 12 of this Act) but may not extend the period specified under section 177(5).

(4) In dealing with an offender under sub-paragraph (1)(b), the Crown Court may, in the case of an offender who has wilfully and persistently failed to comply with the requirements of the community order, impose a custodial sentence (where the order was made in respect of an offence punishable with such a sentence) notwithstanding anything in section 152(2).

(5) Where the Crown Court deals with an offender under sub-paragraph (1)(b) or (c), it must revoke the community order if it is still in force.

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

Restriction of powers in paragraphs 9 and 10 where treatment required

11 (1) An offender who is required by any of the following requirements of a community order—

(a) a mental health treatment requirement,

(b) a drug rehabilitation requirement, or

(c) an alcohol treatment requirement,

to submit to treatment for his mental condition, or his dependency on or propensity to misuse drugs or alcohol, is not to be treated for the purposes of paragraph 9 or 10 as having failed to comply with that requirement on the ground only that he had 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.

(2) A court may not under paragraph 9(1)(a) or 10(1)(a) amend a mental health treatment requirement, a drug rehabilitation requirement or an alcohol treatment requirement unless the offender expresses his willingness to comply with the requirement as amended.

Supplementary

12 Where a community order was made by a magistrates' court in the case of an offender under 18 years of age in respect of an offence triable only on indictment in the case of an adult, any powers exercisable under paragraph 9(1)(b) in respect of the offender after he attains the age of 18 are powers to do either or both of the following—

(a) to impose a fine not exceeding £5,000 for the offence in respect of which the order was made;

(b) to deal with the offender for that offence in any way in which a magistrates' court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding 51 weeks.

Part 3 Revocation of order

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

13 (1) This paragraph applies where a community order, other than an order made by the Crown Court and falling within paragraph 14(1)(a), is in force 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) 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 it could deal with him if he had just been convicted by the court of the offence.

(3) The circumstances in which a community order may be revoked under sub-paragraph (2) include the offender’s making good progress or his responding satisfactorily to supervision or treatment (as the case requires).

(4) In dealing with an offender under sub-paragraph (2)(b), a magistrates' court must take into account the extent to which the offender has complied with the requirements of the community order.

(5) A person sentenced under sub-paragraph (2)(b) 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 must 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) In this paragraph “the appropriate magistrates' court” means—

(a) in the case of an order imposing a drug rehabilitation requirement which is subject to review, the magistrates' court responsible for the order, and

(b) in the case of any other community order, a magistrates' court acting for the petty sessions area concerned.

Revocation of order with or without re-sentencing: powers of Crown Court

14 (1) This paragraph applies where—

(a) there is in force a community order made by the Crown Court which does not include a direction that any failure to comply with the requirements of the order is to be dealt with by a magistrates' court, and

(b) 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.

(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) The circumstances in which a community order may be revoked under sub-paragraph (2) include the offender’s making good progress or his responding satisfactorily to supervision or treatment (as the case requires).

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

(5) Where the Crown Court proposes to exercise its powers under this paragraph otherwise than on the application of the offender, it must 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.

Supplementary

15 Paragraph 12 applies for the purposes of paragraphs 13 and 14 as it applies for the purposes of paragraph 9 above, but as if for the words “paragraph 9(1)(b)” there were substituted “paragraph 13(2)(b)(ii) or 14(2)(b)(ii)”.

Part 4 Amendment of order

Amendment by reason of change of residence

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

(2) Subject to sub-paragraphs (3) and (4), the appropriate court may, and on the application of the responsible officer must, amend the community order by substituting the other petty sessions area for the area specified in the order.

(3) The court may not under this paragraph amend a community 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 17, 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.

(4) The court may not amend under this paragraph a community order imposing a programme requirement unless it appears to the court that the accredited programme specified in the requirement is available in the other petty sessions area.

(5) In this paragraph “the appropriate court” means—

(a) in relation to any community order imposing a drug rehabilitation requirement which is subject to review, the court responsible for the order,

(b) in relation to any community order which was made by the Crown Court and does not include any direction that any failure to comply with the requirements of the order is to be dealt with by a magistrates' court, the Crown Court, and

(c) in relation to any other community order, a magistrates' court acting for the petty sessions area concerned.

Amendment of requirements of community order

17 (1) The appropriate court may, on the application of the offender or the responsible officer, by order amend a community order—

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

(b) by replacing any of those requirements with a requirement of the same kind, which the court could include if it were then making the order.

(2) The court may not under this paragraph amend a mental health treatment requirement, a drug rehabilitation requirement or an alcohol treatment requirement unless the offender expresses his willingness to comply with the requirement as amended.

(3) If the offender fails to express his willingness to comply with a mental health treatment requirement, drug rehabilitation requirement or alcohol treatment requirement as proposed to be amended by the court under this paragraph, the court may—

(a) revoke the community order, and

(b) deal 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.

(4) In dealing with the offender under sub-paragraph (3)(b), the court—

(a) must take into account the extent to which the offender has complied with the requirements of the order, and

(b) may impose a custodial sentence (where the order was made in respect of an offence punishable with such a sentence) notwithstanding anything in section 152(2).

(5) Paragraph 12 applies for the purposes of this paragraph as it applies for the purposes of paragraph 9, but as if for the words “paragraph 9(1)(b)” there were substituted “paragraph 17(3)(b)”.

(6) In this paragraph “the appropriate court” has the same meaning as in paragraph 16.

Amendment of treatment requirements of community order on report of practitioner

18 (1) Where the medical practitioner or other person by whom or under whose direction an offender is, in pursuance of any requirement to which this sub-paragraph applies, being treated for his mental condition or his dependency on or propensity to misuse drugs or alcohol—

(a) is of the opinion mentioned in sub-paragraph (3), or

(b) is for any reason unwilling to continue to treat or direct the treatment of the offender,

he must make a report in writing to that effect to the responsible officer and that officer must apply under paragraph 17 to the appropriate court for the variation or cancellation of the requirement.

(2) The requirements to which sub-paragraph (1) applies are—

(a) a mental health treatment requirement,

(b) a drug rehabilitation requirement, and

(c) an alcohol treatment requirement.

(3) The opinion referred to in sub-paragraph (1) is—

(a) that the treatment of the offender should be continued beyond the period specified in that behalf in the order,

(b) that the offender needs different treatment,

(c) that the offender is not susceptible to treatment, or

(d) that the offender does not require further treatment.

(4) In this paragraph “the appropriate court” has the same meaning as in paragraph 16.

Amendment in relation to review of drug rehabilitation requirement

19 Where the responsible officer is of the opinion that a community order imposing a drug rehabilitation requirement which is subject to review should be so amended as to provide for each subsequent periodic review (required by section 211) to be made without a hearing instead of at a review hearing, or vice versa, he must apply under paragraph 17 to the court responsible for the order for the variation of the order.

Extension of unpaid work requirement

20 (1) Where—

(a) a community order imposing an unpaid work requirement is in force in respect of any offender, and

(b) on the application of the offender or the responsible officer, it appears to the appropriate court that it would be in the interests of justice to do so having regard to circumstances which have arisen since the order was made,

the court may, in relation to the order, extend the period of twelve months specified in section 200(2).

(2) In this paragraph “the appropriate court” has the same meaning as in paragraph 16.

Part 5 Powers of court in relation to order following subsequent conviction

Powers of magistrates' court following subsequent conviction

21 (1) This paragraph applies where—

(a) an offender in respect of whom a community order made by a magistrates' court is in force is convicted of an offence by a magistrates' court, and

(b) it appears to the court 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 community order was made.

(2) The 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.

(3) In dealing with an offender under sub-paragraph (2)(b), a magistrates' court must take into account the extent to which the offender has complied with the requirements of the community order.

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

22 (1) Where an offender in respect of whom a community order made by the Crown Court is in force is convicted of an offence by a magistrates' court, the magistrates' court may commit the offender in custody or release him on bail until he can be brought before the Crown Court.

(2) Where the magistrates' court deals with an offender’s case under sub-paragraph (1), it must send to the Crown Court such particulars of the case as may be desirable.

Powers of Crown Court following subsequent conviction

23 (1) This paragraph applies where—

(a) an offender in respect of whom a community order is in force—

(i) is convicted of an offence by the Crown Court, or

(ii) is brought or appears before the Crown Court by virtue of paragraph 22 or having been committed by the magistrates' court to the Crown Court for sentence, and

(b) it appears to the Crown Court 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 community order was made.

(2) 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), the Crown Court must take into account the extent to which the offender has complied with the requirements of the community order.

Part 6 Supplementary

24 (1) No order may be made under paragraph 16, and no application may be made under paragraph 13, 17 or 20, while an appeal against the community order is pending.

(2) Sub-paragraph (1) does not apply to an application under paragraph 17 which—

(a) relates to a mental health treatment requirement, a drug rehabilitation requirement or an alcohol treatment requirement, and

(b) is made by the responsible officer with the consent of the offender.

25 (1) Subject to sub-paragraph (2), where a court proposes to exercise its powers under Part 4 or 5 of this Schedule, otherwise than on the application of the offender, the court—

(a) must 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 does not apply to an order cancelling a requirement of a community order or reducing the period of any requirement, or substituting a new petty sessions area or a new place for the one specified in the order.

26 Paragraphs 9(1)(a), 10(1)(a) and 17(1)(b) have effect subject to the provisions mentioned in subsection (2) of section 177, and to subsections (3) and (6) of that section.

27 (1) On the making under this Schedule of an order revoking or amending a community order, the proper officer of the court must—

(a) provide copies of the revoking or amending order to the offender and the responsible officer,

(b) in the case of an amending order which substitutes a new petty sessions area, provide a copy of the amending order to—

(i) the local probation board acting for that area, and

(ii) the magistrates' court acting for that area, and

(c) in the case of an amending order which imposes or amends a requirement specified in the first column of Schedule 14, provide a copy of so much of the amending order as relates to that requirement to the person specified in relation to that requirement in the second column of that Schedule.

(2) Where under sub-paragraph (1)(b) the proper officer of the court provides a copy of an amending order to a magistrates' court acting for a different area, the officer must also provide to that court such documents and information relating to the case as it considers likely to be of assistance to a court acting for that area in the exercise of its functions in relation to the order.

(3) In this paragraph “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.