Criminal Justice Act 2003

Part 2 E+W Breach of requirement of order

Duty to give warning E+W

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— E+W

(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.

Modifications etc. (not altering text)

C1 Sch. 8 para. 5(1)(b) modified (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 181, 184, 383, Sch. 5 paras. 2, 12; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Commencement Information

I1 Sch. 8 wholly in force at 4.4.2009; Sch. 8 not in force at Royal Assent, see s. 336(3); Sch. 8 in force for certain purposes at 4.4.2005 and otherwise in force at 4.4.2009 by S.I. 2005/950, art. 2, Sch. 1 para. 32 (subject to Sch. 2) (as amended by S.I. 2007/391, art. 2)

Breach of order after warning E+W

6 (1) If— E+W

(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.

Modifications etc. (not altering text)

C2 Sch. 8 para. 6(1) modified (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 181, 184, 383, Sch. 5 paras. 2, 12; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Commencement Information

I2 Sch. 8 wholly in force at 4.4.2009; Sch. 8 not in force at Royal Assent, see s. 336(3); Sch. 8 in force for certain purposes at 4.4.2005 and otherwise in force at 4.4.2009 by S.I. 2005/950, art. 2, Sch. 1 para. 32 (subject to Sch. 2) (as amended by S.I. 2007/391, art. 2)

Issue of summons or warrant by justice of the peace E+W

7 (1) This paragraph applies to— E+W

(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.

F1 (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 F2 . . . 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

[F3 (b) in any other case, before a magistrates' court [F4 acting in the local justice area] in which the offender resides or, if it is not known where he resides, 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.

Textual Amendments

F1 By The Courts Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/886), art. 2, Sch. para. 106(b), it is provided (1.4.2005) that in Sch. 8 para. 7(2) for the words "acting for the petty sessions area" there be substituted the words "acting in the local justice area"

F2 Words in Sch. 8 para. 7(2) omitted (31.3.2005) by virtue of Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 29, 60, Sch. 5 para. 7(2); S.I. 2005/579, art. 3(d)

F3 Sch. 8 para. 7(3)(b) substituted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 29, 60, Sch. 5 para. 7(3); S.I. 2005/579, art. 3(d)

F4 Words in Sch. 8 para. 7(3)(b) substituted (1.4.2005) by The Courts Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/886), art. 2, Sch. para. 106(b)

Commencement Information

I3 Sch. 8 wholly in force at 4.4.2009; Sch. 8 not in force at Royal Assent, see s. 336(3); Sch. 8 in force for certain purposes at 4.4.2005 and otherwise in force at 4.4.2009 by S.I. 2005/950, art. 2, Sch. 1 para. 32 (subject to Sch. 2) (as amended by S.I. 2007/391, art. 2)

Issue of summons or warrant by Crown Court E+W

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. E+W

(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.

Modifications etc. (not altering text)

C3 Sch. 8 para. 8 modified (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 181, 184, 383, Sch. 5 paras. 3, 13; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Commencement Information

I4 Sch. 8 wholly in force at 4.4.2009; Sch. 8 not in force at Royal Assent, see s. 336(3); Sch. 8 in force for certain purposes at 4.4.2005 and otherwise in force at 4.4.2009 by S.I. 2005/950, art. 2, Sch. 1 para. 32 (subject to Sch. 2) (as amended by S.I. 2007/391, art. 2)

Powers of magistrates' court E+W

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.

[F5 (5A) Where a magistrates' court dealing with an offender under sub-paragraph (1)(a) would not otherwise have the power to amend the community order under paragraph 16 (amendment by reason of change of residence), that paragraph has effect as if the references to the appropriate court were references to the court dealing with the offender.]

(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.

Textual Amendments

F5 Sch. 8 para. 9(5A) inserted (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), ss. 29, 60, Sch. 5 para. 7(4); S.I. 2005/579, art. 3(d)

Commencement Information

I5 Sch. 8 wholly in force at 4.4.2009; Sch. 8 not in force at Royal Assent, see s. 336(3); Sch. 8 in force for certain purposes at 4.4.2005 and otherwise in force at 4.4.2009 by S.I. 2005/950, art. 2, Sch. 1 para. 32 (subject to Sch. 2) (as amended by S.I. 2007/391, art. 2)

Powers of Crown Court E+W

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.

Modifications etc. (not altering text)

C4 Sch. 8 para. 10 modified (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 181, 184, 383, Sch. 5 para. 14 (as amended (31.10.2009) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 145, 153, Sch. 25 para. 32; S.I. 2009/1028, art. 2(b)); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4; S.I. 2009/1028, art. 2(b)

C5 Sch. 8 para. 10(1)(b) modified (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 181, 383, Sch. 5 para. 8; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

C6 Sch. 8 para. 10(4) modified (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 181, 383, Sch. 5 para. 8(4); S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Commencement Information

I6 Sch. 8 wholly in force at 4.4.2009; Sch. 8 not in force at Royal Assent, see s. 336(3); Sch. 8 in force for certain purposes at 4.4.2005 and otherwise in force at 4.4.2009 by S.I. 2005/950, art. 2, Sch. 1 para. 32 (subject to Sch. 2) (as amended by S.I. 2007/391, art. 2)

Restriction of powers in paragraphs 9 and 10 where treatment required E+W

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

(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.

Commencement Information

I7 Sch. 8 wholly in force at 4.4.2009; Sch. 8 not in force at Royal Assent, see s. 336(3); Sch. 8 in force for certain purposes at 4.4.2005 and otherwise in force at 4.4.2009 by S.I. 2005/950, art. 2, Sch. 1 para. 32 (subject to Sch. 2) (as amended by S.I. 2007/391, art. 2)

Supplementary E+W

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.

Commencement Information

I8 Sch. 8 wholly in force at 4.4.2009; Sch. 8 not in force at Royal Assent, see s. 336(3); Sch. 8 in force for certain purposes at 4.4.2005 and otherwise in force at 4.4.2009 by S.I. 2005/950, art. 2, Sch. 1 para. 32 (subject to Sch. 2) (as amended by S.I. 2007/391, art. 2)