Criminal Justice (Sentencing etc) Bill

Activation of sentence and amendment of order etc.

Breach or amendment of suspended sentence order, and effect of further conviction

14. Schedule 2 makes provision about—

(a) the effect of any further conviction where an offender is subject to a suspended sentence order;

(b) breach or amendment of the requirements of a suspended sentence order.

SCHEDULE 2

Section 14.

SUSPENDED SENTENCE ORDERS: BREACH OR AMENDMENT OF ORDER AND EFFECT OF FURTHER CONVICTION

PART 1

PRELIMINARY

Interpretation

1.—(1) In this Schedule, in relation to a suspended sentence order, any reference (however expressed) to breach of a requirement of the order is a reference to any failure of the offender to comply with a requirement imposed by the order.

(2) In this Schedule, in relation to a suspended sentence order, “the appropriate court” means—

(a) in the case of an order which was made by the Crown Court, the Crown Court,

(b) in the case of an order which was made by a magistrates’ court, a magistrates’ court.

Orders made on appeal

2. For the purposes of this Schedule, a suspended sentence order made on or in relation to an offender on appeal is to be taken as having been passed by the court by which the offender was originally tried. 

PART 2 BREACH OF REQUIREMENT OF ORDER OR CONVICTION FOR FURTHER OFFENCE

Breach of requirement: issue of summons or warrant by lay magistrate

3.—(1) This paragraph applies where, during the supervision period of a suspended sentence order, it appears on complaint to a lay magistrate that the offender has breached any requirement of the order.

(2) The magistrate may—

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

(b) if the complaint is in writing and on oath, issue a warrant for the offender’s arrest, but this is subject to sub-paragraphs (3) and (4).

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

(a) in the case of an order made by the Crown Court, before that court;(b) if the case of an order made by a magistrates' court, before a court of summary jurisdiction.

(4) If— (a) a warrant is issued under this paragraph requiring an offender to be brought before the Crown Court, and

(b) the offender cannot forthwith be brought before the Crown Court because it is not being held, the warrant has effect as if it directed the offender to be brought before a magistrates' court.

(5) Where an offender is brought before a magistrates' court in pursuance of sub-paragraph (4), that court must commit the offender in custody or on bail to the Crown Court.

Magistrates’ court: breach of requirement

4.—(1) This paragraph applies where—

(a) under paragraph 3 the offender is brought or appears before a magistrates' court in relation to a suspended sentence order, and

(b) it is proved to the satisfaction of the court that the offender has breached a requirement of the order without reasonable excuse.

(2) The court must deal with the case under paragraph 8.

Magistrates’ court: further conviction

5.—(1) Where—

(a) an offender is convicted of an imprisonable offence committed during the operational period of a suspended sentence order, 

(b) the suspended sentence order—

(i) was made by a magistrates’ court, and

(ii) has not already taken effect, and

(c) the offender—

(i) was convicted of that other offence by a magistrates’ court, or

(ii) subsequently appears or is brought before a magistrates’ court, that court must deal with the case under paragraph 8.

(2) Where an offender is convicted by a magistrates' court of an imprisonable offence which the court is satisfied was committed during the operational period of a suspended sentence order made by the Crown Court, the court—

(a) may commit the offender in custody or on bail to the Crown Court to be dealt with in respect of the suspended sentence order, and

(b) if it does not, must give written notice of the conviction to the appropriate officer of the Crown Court.

Crown Court: breach of requirement

6.—(1) This paragraph applies where—

(a) an offender to whom a suspended sentence order relates is brought or appears before the Crown Court, and

(b) it is proved to the satisfaction of the court that the offender has breached a requirement of the order without reasonable excuse.

(2) The court must deal with the case under paragraph 8.

(3) In proceedings before the Crown Court under this paragraph, any question whether the offender has breached a requirement of the suspended sentence order is to be determined by the court and not by the verdict of a jury.

Crown Court: further conviction

7.—(1) This paragraph applies where—

(a) an offender is convicted of an imprisonable offence committed during the operational period of a suspended sentence order, (and the suspended sentence has not already taken effect), and

(b) the offender—

(i) was convicted of that other offence before the Crown Court, or

(ii) subsequently appears or is brought before the Crown Court.

(2) The court must deal with the case under paragraph 8.

(3) In proceedings before the Crown Court under this paragraph, any question whether the offender has been convicted during the operational period of the suspended sentence, is to be determined by the court and not by the verdict of a jury. 

Powers of court to deal with offender on breach of requirement or subsequent conviction

8.—(1) Where a court deals with a case under this paragraph, the court must deal with the offender in one or more of the following ways—

(a) the court may order that the suspended sentence is to take effect with the original term unaltered;

(b) the court may order that the suspended sentence is to take effect with the substitution of a lesser term for the original term;

(c) the court may order the offender to pay a fine of an amount not exceeding £1,000;

(d) in the case of a suspended sentence order that imposes one or more community requirements, the court may amend the order by doing any one or more of the following—

(i) cancelling any community requirement of the order;

(ii) inserting in the order (either in addition to or in substitution for any such requirement) one or more community requirements (but see paragraph 12);

(iii) subject to section 5(4), extending the supervision period;

(iv) subject to section 5(2), extending the operational period;

(e) in the case of a suspended sentence order that does not impose any community requirements, the court may amend the order by doing any one or more of the following—

(i) inserting in the order one or more community requirements (but see paragraph 12);

(ii) subject to section 5(2), extending the operational period;

(f) the court may make no order with respect to the suspended sentence.

(2) Where a court other than the court which passed the suspended sentence deals with an offender under sub-paragraph (1), the appropriate officer of the court that deals with the offender must notify the appropriate officer of the court which passed the suspended sentence of the method adopted.

(3) Where a court considers a case and makes no order with respect to a suspended sentence, the appropriate officer of the court must record that fact.

(4) An order made by a magistrates' court under sub-paragraph (1) is, for the purposes of Article 140 of the Magistrates' Courts (Northern Ireland) Order 1981 (right of appeal), to be treated as a sentence passed on conviction upon a plea of guilty and the period of fourteen days specified in Article 144(1) of that Order is to be taken to commence on the date when the order under paragraph (1) was made.

Exercise of power in paragraph 8: duty to activate suspended sentence where not unjust

9.—(1) Where the court deals with the case under paragraph 8, it must make an order under paragraph 8(1)

(a) unless it is of the opinion that it would be unjust to do so in view of all the circumstances, including the matters mentioned in sub-paragraph (2).

(2) The matters referred to in sub-paragraph (1) are—

(a) the extent to which the offender has complied with any requirements of the suspended sentence order;

(b) in a case falling within paragraph 5 or 7 (conviction of further offence during operational period), the facts of the subsequent offence.

(3) Where the court is of the view that it would be unjust to make an order under paragraph 8(1)(a) it must state its reasons.

Activation of suspended sentence: further provision

10.—(1) Where the court orders that a suspended sentence is to take effect under paragraph 8(1)(a) or (b), the order may provide for—

(a) the suspended sentence to take effect immediately, or

(b) the term of the sentence to begin on the expiry of another custodial sentence passed on the offender.

(2) Sub-paragraph (1) has effect notwithstanding section 5(5) and (6) of the Treatment of Offenders Act (Northern Ireland) 1968 and Article 56 of the Magistrates’ Courts (Northern Ireland) Order 1981 (restrictions on consecutive sentences).

(3) Where the court orders that a sentence of detention in a young offenders centre is to take effect under paragraph 8(1)(a) or (b)—

(a) if the offender is aged 21 or over, the court must order that the sentence of detention is to be treated as a sentence of imprisonment;

(b) if the offender will be aged 21 or over when the order takes effect, the court may order that the sentence of detention is to be treated as a sentence of imprisonment.

(4) An order made by the Crown Court under paragraph 8(1)(a) or (b) is, for the purposes of section 9(2) of the Criminal Appeal (Northern Ireland) Act 1980 (appeal in other cases dealt with by Crown Court), to be treated as a sentence passed on the offender by the court for the offence for which the suspended sentence was passed.

Power under paragraph 8 to fine

11. A fine imposed under paragraph 8(1)(c) is to be treated for the purposes of any statutory provision as being a sum adjudged to be paid by a conviction.

Power under paragraph 8 to amend community requirements: further provision

12.—(1) This paragraph applies where a court is dealing with an offender under paragraph 8 by amending a suspended sentence order to impose a community requirement of order or conviction for further offence requirement under sub-paragraph (1)(d)(ii) or (e)(i) (powers to vary or impose requirements).

(2) The court may only impose a community requirement if the court could have included the requirement when the offender was convicted by or before it of the offence in respect of which the suspended sentence order was made and it were then making the order.

(3) The power to impose a community requirement is subject to any provision that applies to the court in making a suspended sentence order as if the court were making the order.

(4) But where—

(a) a suspended sentence order does not contain an unpaid work requirement, and

(b) the court inserts an unpaid work requirement, the number of hours which the offender may be required to work must be specified in the order and must not exceed 60 in the aggregate.

Exclusion: refusal to undergo certain treatment

13.—(1) Sub-paragraph (2) applies where the offender—

(a) is subject to a treatment requirement imposed by a suspended sentence order, and

(b) has refused to undergo any surgical, electrical or other treatment which forms part of that treatment requirement.

(2) The offender is not to be treated for the purposes of paragraph 4(1)(b) or 6(1)(b) as having breached that requirement on the ground only of that refusal if, in the opinion of the court, the refusal was reasonable having regard to all the circumstances.

(3) In this paragraph, “treatment requirement” means—

(a) a requirement as to treatment for a mental condition authorised under paragraph 4 of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996, or

(b) a requirement as to treatment for drug or alcohol dependency authorised under paragraph 5 of that Schedule.

Issue of summons or warrant where court convicting of further offence does not deal with suspended sentence

14.—(1) This paragraph applies where it appears to a lay magistrate that an offender—

(a) has been convicted in Northern Ireland of an imprisonable offence committed during the operational period of a suspended sentence order, and

(b) has not been dealt with in respect of the suspended sentence.

(2) The magistrate may issue—

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

(b) a warrant for the offender’s arrest, but this is subject to sub-paragraphs (3) and (4).

(3) A magistrate—

(a) may not issue a summons except on complaint;

(b) may not issue a warrant under this paragraph except on complaint in writing and on oath.

(4) A summons or warrant issued under this paragraph must direct the offender to appear or be brought before the court by which the suspended sentence was passed.

(5) If—

(a) a warrant is issued under this paragraph requiring an offender to be brought before the Crown Court, and

(b) the offender cannot forthwith be brought before the Crown Court because it is not being held, the warrant has effect as if it directed the offender to be brought before a magistrates' court.

(6) Where an offender is brought before a magistrates' court in pursuance of sub-paragraph (2), that court must commit the offender in custody or on bail to the Crown Court.

PART 3 AMENDMENT OF SUSPENDED SENTENCE ORDER

Application of Part

15. This Part of this Schedule applies during the supervision period of a suspended sentence order that imposes one or more community requirements. Cancellation of requirements

16.—(1) This paragraph applies where an application is made to the appropriate court by—

(a) the offender, or

(b) the responsible officer, for the requirements of the suspended sentence order to be cancelled.

(2) If it appears to the court to be in the interests of justice to do so, having regard to circumstances which have arisen since the order was made, the court may cancel the requirements of the suspended sentence order.

(3) The circumstances in which requirements of the order may be cancelled under sub-paragraph (2) include the offender’s— (a) making good progress, or 

(b) responding satisfactorily to supervision.

(4) No application may be made under this paragraph while an appeal against the suspended sentence is pending. Amendment of community requirements 

17.—(1) The appropriate court may, on the application of the offender or the responsible officer, amend the suspended sentence order—

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

(b) by inserting in the order (either in addition to or in substitution for any such requirement) any community requirement which the court could include if the offender had just been convicted by or before it of the offence in respect of which the order was made and it were then making the order;

(c) subject to section 5(4), by extending the supervision period.

(2) Sub-paragraph (1)(b) is subject to any provision that applies to the court in making a suspended sentence order as if the court were making the order.

(3) Where—

(a) a suspended sentence order does not contain an unpaid work requirement, and

(b) the court inserts an unpaid work requirement under sub-paragraph (1)(b), the number of hours which the offender may be required to work must be specified in the order and must not exceed 60 in the aggregate.

(4) The appropriate court must not amend a suspended sentence order under sub-paragraph (1) by inserting in it a treatment requirement unless the amending order is made within 3 months after the date of the original order.

(5) No application may be made under this paragraph while an appeal against the suspended sentence is pending.

(6) Before exercising its powers under this paragraph, the court must summon the offender to appear before the court, unless—

(a) the application was made by the offender,

(b) the order would cancel a community requirement of the suspended sentence order, or

(c) the order would reduce the period of any such requirement.

(7) If the offender fails to appear in answer to a summons under sub-paragraph (5) the court may issue a warrant for the offender’s arrest.

(8) In this paragraph, “treatment requirement” means—

(a) a requirement as to treatment for a mental condition authorised under paragraph 4 of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996, or

(b) a requirement as to treatment for drug or alcohol dependency authorised under paragraph 5 of that Schedule.

Amendment of suspended sentence order Amendment of treatment requirement on report of practitioner

18.—(1) This paragraph applies where the suspended sentence order contains a treatment requirement under which the offender is being treated and the treatment practitioner— 

(a) is of the opinion that—

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

(ii) the offender needs different treatment,

(iii) the offender is not susceptible to treatment, or

(iv) the offender does not require further treatment, or

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

(2) The treatment practitioner must make a report in writing to that effect to the responsible officer.

(3) The responsible officer must cause an application to be made under paragraph 17 to the appropriate court for the requirement to be replaced or cancelled.

(4) For the purposes of this paragraph—

(a) “treatment requirement” means—

(i) a requirement as to treatment for a mental condition authorised under paragraph 4 of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996, or

(ii) a requirement as to treatment for drug or alcohol dependency authorised under paragraph 5 of that Schedule.

(b) the treatment practitioner is—

(i) the medical practitioner or other person specified in the order as the person by whom, or under whose direction, the offender is being treated in pursuance of the requirement, or

(ii) if no such person is specified, the person by whom, or under whose direction, the offender is being treated in pursuance of the requirement.

Extension of unpaid work requirement

19.—(1) This paragraph applies where the suspended sentence order imposes an unpaid work requirement.

(2) The appropriate court may, in relation to the order, extend the period of 1 year specified in paragraph 1(2) of Schedule 1.

(3) The power in sub-paragraph (2) is exercisable only where—

(a) an application is made by—

(i) the offender, or

(ii) the responsible officer, and

(b) it appears to the court that it would be in the interests of justice to exercise it in the way proposed having regard to circumstances which have arisen since the order was made.

(4) No application may be made under this paragraph while an appeal against the suspended sentence is pending.

PART 4 SUPPLEMENTARY

Provision of copies of orders etc

20.—(1) This paragraph applies on the making by a court of an order under this Schedule amending a suspended sentence order.

(2) The court must provide copies of the amending order to the responsible officer.

(3) That responsible officer must give a copy to—

(a) the offender;

(b) the person in charge of any institution in which the offender is or was required by the order to reside.