23. Non-custodial sentences

Question 1

When is an absolute discharge available?

Answer 1

An absolute discharge is available for any offence where there is not a mandatory sentence that applies

AND

it is of the opinion that it is inexpedient to inflict punishment, having regard to the nature of the offence and character of the offender.

Doing so does not affect the ability of the court to give other sentences too (i.e. costs, compensation, disqual. e.c.t.)

However, No football banning order can be made for absolute discharges nor can it be combined with other types of sentence except where these other sentences are for other separate offences.

Question 2

Where can a conditional discharge be applied?

Answer 2

A conditional discharge is available for any offence where there is not a mandatory sentence that applies

AND

it is of the opinion that it is inexpedient to inflict punishment, having regard to the nature of the offence and character of the offender.

For a maximum of three years from day of order. Security can be given for good behaviour, but it must be stated from what behaviour the offender is to refrain.

The only condition that can be given is the offender cannot commit any other offence.

A football banning order is available here.

However, it can not be combined with other types of sentence except where these other sentences are for other separate offences.

Question 3

When is a conditional discharge breached?

Answer 3

A conditional discharge is breached only by conviction of the offender within the time limit.

Question 4

What can the court do in respect of a breach of a conditional discharge?

Answer 4

It may sentence the offender for the original offence in the same manner as if he had just been convicted at that hearing, but a Crown Court dealing with a Magistrates’ Conditional Discharge is limited to the Mags’ powers.

One magistrates’ court may deal with another mags’ court conditional discrhage but only with consent of that court.

For an offender under 18, the court can only sentence as it would’ve done at the age of the breacher was when originally convicted.

Resentencing the offence terminates the discharge but not any compensation or costs order.

Question 5

When are fines available to a sentencing court in the Crown in respect of a person convicted on indictment?

Answer 5

A fine is available to the Crown Court for conviction on indictment instead of or in addition to dealing with the offender in any other way that is available except where:
* It is murder
* For another mandatory life sentence
* Serious terrorism offences
* The minimum sentence for third domestic burglary
* in combination with a conditional discharge

Question 6

What is the maximum fine in the Crown?

Answer 6

Where a person convicted on indictment of any offence (whether triable only on indictment or either way) would, apart from that subsection, be liable to a fine not exceeding a specified amount, the person shall by virtue of that subsection be liable to a fine of any amount.

Question 7

Can a Crown Court make a person go on a payment plan?

Answer 7

A crown court may make an order allowing time for payment or directing payment by installments by dates and amounts.

Question 8

What order should a Crown Court fix to a fine it gives?

Answer 8

For a person who has been fined by the crown as a court of first instance or by the CoA/Supreme Court, the court must make an order (a term in default of order) fixing a term of imprisonment or detention which the defendant is to undergo if any sum the offender is liable to pay is not paid or recovered.

A failure to fix this does not invalidate the fine.

The term to be fixed should relate for the whole sum.

Question 9

Where are fines available in the mags’ court?

Answer 9

A fine is available to a mags’ court for any offence where the provisions specify a fine is a punishment, except where they are expressly prohibited to be combined with certain other orders or are subject to limits in respect of young offenders.

Question 10

What is the maximum amount of a mags’ fine?

Answer 10

For those convicted in the mags who are liable to a fine, the offender is liable for either a specified amount or a fine not more than a specified amount whereby in the latter case the fine must not be more than that amount but may be less than that amount (unless otherwise expressly provided).

A fine is available to a mags’ court for any offence where the provisions specify a fine is a punishment, except where they are expressly prohibited to be combined with certain other orders or are subject to limits in respect of young offenders. Where an offence specifies an excess of £5000 (as a holdover from previous law), it is now an unlimited fine.

It is also available where the court has power to sentence to imprisonment but has no express fining powers, unless otherwise provided. If doing it in this second way, the maximum fine is a Level 3 fine and the default term must not be longer than the term the offender is liable for in imprisonment.

Question 11

What must a court do before fining someone?

Answer 11

Before fining someone, the court must inquire into the offenders financial circumstances. While a fine must reflect the seriousness of the case, it must take into account the defendant’s financial circumstances.

A magistrates or crown court may make a financial circumstances order, which is an order requiring the relevant individual to give the court before the end of the specified period such a statement of their assets and financial circumstances as the court may require. Failing to comply without reasonable excuse means a person is liable to a fine not exceeding level 3, and if lying/failing to disclose, they are liable to a level 4 fine.

Question 12

What are some relevant factors in considering the proportionality of a fine?

Answer 12

The key principle in relation to the use of the fine is that the selection of a fine and determination of the level is that it should reflect the seriousness. This applies to corporations as well as individuals. A fine is an inappropriate sentence where immediate custody is appropriate, or where the offence is not serious enough. The level of a fine may be reduced where a person has spent a significant amount of time in custody/bail under a qualifying curfew.

Question 13

How may an offender’s wealth impact sentence?

Answer 13

Where an offender lacks the means to pay the level of fine which is proportionate, a custodial sentence should not be instituted instead.

Where the offender is well-off and paying a fine would cause little inconvenience, a custodial sentence should not be instituted instead. Instead, it may be appropriate to raise the fine slightly but only so much as is still proportionate.

A fine should be adjusted upwards or downwards based upon the offender’s means to pay.

An offender who is well off should not be given the opportunity to pay a substantial fine instead of going to prison where a less-well-off person would have done so. The principle that a rich offender must not be permitted to buy his way out of prison is a fundamental one.

In the case of a very wealthy individual/company, the fine should be paid immediately or within a few days unless cogent evidence showed more time was required.

A financial circumstances order is appropriate for very wealthy individuals.

The court should not assume someone else is paying for them.

Question 14

By when should the fine be paid back by?

Answer 14

A fine should be of an amount capable being paid back in 12 months, though there may be exceptions to this.

The maximum time is not limited to 12 months. Could be as long as three years, depending upon the nature of the offender and of the offence.

There is also an exception in relation to corporate defendants, where the fine ay be payable over a longer period.

Question 15

Is there a restriction on combining fines with imprisonment?

Answer 15

Except for the cases in which a fine is not allowed to be combined with certain custodial offences, there is no formal restriction on combining fines with imprisonment or other custodial sentences, whether in respect of the same offence or other offences being sentenced on the same occasion, though this often will not be desirable as incarceration will limit the ability of the defendant to pay. Will be wrong esp where it will likely result in the default term being imposed.

Question 16

What should a court do when considering whether to impose a community sentence?

Answer 16

When a court is considering whether to impose a community sentence and what restrictions to put on, the court must take into account all information available to it. The sentencing court must usually obtain a PSR except where it considers it unnecessary to do so.

Question 17

What conditions can a court put on a community sentence?

Answer 17

A court may give the following requirements:
unpaid work requirement (sch. 9, part 1);

rehabilitation activity requirement (sch. 9, part 2);

programme requirement (sch. 9, part 3);

prohibited activity requirement (sch. 9, part 4);

curfew requirement (sch. 9, part 5);

exclusion requirement (sch. 9, part 6);

residence requirement (sch. 9, part 7);

foreign travel prohibition order requirement (sch. 9, part 8);

mental health treatment requirement (sch. 9, part 9);

drug rehabilitation requirement (sch. 9, part 10);

drug testing requirement (sch. 9, part 10A);

alcohol treatment requirement (sch. 9, part 11);

alcohol abstinence and monitoring requirement (sch. 9, part 12);

attendance centre requirement (sch. 9, part 13);

electronic compliance monitoring requirement (sch. 9, part 14);

electronic whereabouts monitoring requirement (sch. 9, part 14).

Question 18

What hours should be given for unpaid work?

Answer 18

The number of hours must not be less than 40 and not more than 300.
If about to insert an unpaid work requirement, the court must, if thought necessary, hear from an appropriate officer (probation) that the offender is a suitable person to perform work under that requirement and that local arrangements exist to enable the offender to carry out that sentence.
If the court makes a community order on two or more offences at the same time, the court can order they run consecutively or concurrently, but the total should not exceed 300 hours.

Question 19

How long is a CO active?

Answer 19

Any unpaid work should normally be completed within 12 months.
A community order with a single requirement of unpaid work is always a CO for 12 months.
The completion of the hours of unpaid work before the 12 months does not affect the legal status of the order.
Unless revoked, the CO remains active until the unpaid work is completed, meaning failing to complete it within this time frame will either result in probation asking for an extension or breaching the defendant.
The court can extend irrespective of whether the end date has passed or if the 12 month period has passed.

Question 20

What is a rehabilitation activity requirement day?

Answer 20

A RAR day is a requirement that an offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both. The relevant period includes either the period for which a community order is in force or the supervision period on a suspended sentence.
The court does not prescribe the activities to be undertaken but must specify the maximum number of days the offender must complete. For any requirement where a person other than the offender would be involved, the probation officer must obtain the consent of the person to be involved (like a victim).

Question 21

What is a programme requirement?

Answer 21

A programme requirement is a requirement that the offender must participate in an accredited programme at a particular place on a number of days as specified in the order upon instruction of the relevant officer. Such programmes include anger management, domestic violence, sex offending, substance misuse e.c.t. failure to specify that a programme needed to be complied with and to specify the number of days rendered the order unlawful.

Question 22

What is a prohibited activity requirement?

Answer 22

A prohibited activity requirement is where the court orders a defendant to refrain from participating in certain activities, on a specified day or days or over a specified period of time. The order may include forbidding contact, or possessing/carrying a firearm.
Before inserting a prohibited activity requirement, the court must consult a probation officer.
The order should be proportionate to the aim of reducing the risk of further offending.

Question 23

What is a curfew requirement?

Answer 23

A curfew requirement is a requirement that an offender must remain at a place specified by the court for certain periods of time.
These periods of time must be not less than two hours and not more than 16 hours. Where an offender is convicted on or after 28 June 2022, that is not more than 20 hours, with no more than 112 hours in any period of seven days.
A curfew requirement within a CO must not specify periods which fall outside of the 12 months beginning with the date the order was made except for convictions after 28th June 2022, where it could be for two years.
Before making such an order, the court should inquire the places proposed to be specified in the order, including information as to the attitude of person likely to be affected by the enforced presence there of the offender.
Where it does make a CO with a curfew requirement, it must also impose an electronic monitoring requirement unless the court considers it inappropriate to do so.
The duration of such an order must be related to culpability and need.
A probation officer can vary, with consent of the offender, the start time/place of the curfew periods via written notice.

Question 24

What is an exclusion requirement?

Answer 24

An exclusion requirement is a requirement which prohibits an offender from entering a specified prohibited place(s) or area during a period specified. The order can exclude the offender from different places for different periods of time. It may also be used as a means of keeping the offender away from a specified person, in which case the person for whom the order is made for their protection should be given a copy of the requirement.
This cannot last longer than two years.
For a CO with an exclusion requirement, the court must normally impose electronic monitoring unless the court considers it inappropriate to do so.
Such an order should be proprionate to the risk of further offending.
It is unlawful to try and expel someone from the uk using these provisions.

Question 25

What is a residence requirement?

Answer 25

A residence requirement is a requirement that an offender resides at a place specified in the order for a specified period of time. The order may permit the offender to reside at some other place with the prior approval of the responsible officer. A court may not specify residence at a hostel or other institution except on the recommendation of the probation officer. Before making such an order, the court must consider the home surroundings of the offender.

Question 26

What is a mental health treatment requirement?

Answer 26

When sentencing someone to a mental health treatment requirement, the sentencing offenders with mental disorders, developmental disorders, or neurological impairments applies. This requirement is a requirement that an offender must, during a period(s) specified in the order, submit to mental health treatment (in-patient, out-patient, or practitioner based) by or under the direction of a registered medical practitioner/psychologist. The inpatient care may take place in a hospital (but not special hospital) or care home. Before inserting such a requirement, the court must be satisfied that arrangements have been made or can be made for the treatment specified in the order and that the offender is willing to comply. The supervising officer will supervise only to the extend necessary for revoking or amending the order. The place for treatment can be changed via the doctor notifying the responsible officer in advance and with the consent of the offender.

Question 27

What is a drug rehabilitation requirement?

Answer 27

The court may insert a drug rehabilitation requirement, which includes drug treatment and testing. It requires that during a specified period, the offender must submit to treatment by or under the direction of a specified person and must give samples where requested to determine whether they had a drug in their body. Before imposing such a requirement, the court must be satisfied that the offender is dependent on or has a propensity to misuse any controlled drug and that such dependency or propensity requires and may be susceptible to treatment. There court must be satisfied that arrangements have or can be made for the proposed treatment and that this has been recommended to the court as being suitable by probation. The offender must be willing to submit. There is no minimum period for the order, and can take the form of residency in a specified institution or treatment as a non-resident. The secretary of state may by order amend the periods of time which can be specified.

Question 28

What is an alcohol treatment requirement?

Answer 28

A court may also insert an alcohol treatment requirement. It would require that, during a period specified, the offender must submit to treatment by or under the direction of a specified person having the necessary qualifications or experience with a view to reduction or elimination of the offender’s dependency on alcohol. Before imposing such a requirement the court must be satisfied that the offender is dependent on alcohol and that the dependency requires and is susceptible to treatment. The court must also be satisfied that arrangements have been made or can be made to fulfil the order. The offender must also be willing. There is no minimum period. Can be as resident or not.

Question 29

What is eletronic compliance monitoring?

Answer 29

A court passing a relevant order can require the electronic monitoring of the offender’s compliance with one or more of the other requirements in the order. Where a court makes a relevant order which includes curfew or exclusion, the relevant area is the area in which the proposed place to be specified in the order is situated. The periods of electronic monitoring can be specified by the court in the order, or set by the responsible officer. If the court is proposing the include such a requirement but there is a person, other than the offender, without whose co-operation it will not be practicable to secure the monitoring, the requirement cannot be included without that person’s consent. The court must ensure that electronic monitoring are available and necessary provision can be made. Electronic compliance monitoring may not be included in the order for the purposes of monitoring compliance with an alcohol abstinence and monitoring requirement, unless the electronic compliance monitoring is in place for the purpose of monitoring compliance with a different requirement in the order.

Question 30

What is eletronic whereabouts monitoring?

Answer 30

Electronic whereabouts monitoring may be ordered, otherwise than for the purpose of securing compliance with any other requirement in the order. This means this can be done as a free standing requirement of a community order. The court must specify the duration of the period within the term of the order and if there is a person without whose cooperation it will not be practicable to secure the monitoring the order cannot be included without the consent of that person. The court must ensure it is available locally.

Question 31

How may a community order be enforced?

Answer 31

There are provisions for dealing with breach, revocation, and amendment of community orders, and the effect of an offender being convicted of a further offence. There are sentencing guidelines for this.

Question 32

What are the first steps where an offender may have breached their CO?

Answer 32

Where a responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the requirements of a CO, the officer must give a warning describing the circumstances of the failure, stating it is unacceptable, and a warning that if it were to happen again within the next 12 months they will be brought back before the court. A warning need not be given if it has happened already within the past 12 months. At such a point the responsible officer would refer this to the enforcement officer. This officer is then under a duty to consider the matter and, where appropriate, to cause an information to be laid.

Question 33

Who deals with breaches?

Answer 33

The Crown may include in a CO that any breach is to be dealt with by the Mags. If no such order is made, it will be dealt with by the crown.

Question 34

What happens where a person is brought back before a court for breach of a Community order in the Magistrates' Court?

Answer 34

For the mags, a breacher must be sentenced on the basis of his or her age when the original order was made. Any breach must be formally admitted or proved to the requisite criminal standard and the prosecution should be in a position to put before the court the facts of the original offence, at least in outline, as well as those of the breach. When dealing with an offender where a breach has been admitted/proved, the court MUST deal with the offender in one of the following ways: (a) By ordering the offender to pay a fine no more than £2.5k (b) By amending the order to be more onerous requirements that the court could have imposed when sentencing originally (c) If the community order qualifies for special procedures (a CO made in the mags’ court where the breach is wilful and persistent), a custodial sentence can be given for no more than 28 days (d) Where the court is dealing with a Mags’ CO, resentencing There is no power to take no action on breach. The court must take into account the amount the offender has complied. The court may extend the requirements. The court may extend the duration of the order for up to six months beyond the originally end date even if that take it over three years. Such an extension may be exercised only once. If the court resentences, it must revoke the community order if still in force. If the breach report indicated that probation wished to continue working with the offender, that should be given considerable weight.

Question 35

What happens where a person is brought back before a court for breach of a Community order in the Crown Court?

Answer 35

For breaches in the crown, the offender must be sentenced on the basis of his or her age. Any breach should be admitted formally or proven. Prosecution should outline facts of original offence and breach. If proven, the crown can do one of the following: (a) by ordering the offender to pay a fine of an amount not exceeding £2,500; (b) giving more onerous requirements within the powers that a court would have if the defendant was just convicted here; (ba) if the community order qualifies for special procedures (wilful and persistent breaches), a custodial sentence not exceeding 28 days; (c) by re-sentencing the offender for the offence in respect of which the order was made. No power to take no action. Has to take into account the compliance level. The court may extend particular requirements (subject to statutory limits on the maximum duration of particular requirements). Court may extend the duration of the order for up to six month beyond the original end date even if taken over to three years (can be done once). If resentencing, the original CO must be revoked. Since time served on remand is deducted automatically from custodial sentences, the judge cannot direct such time to not apply to any custodial sentence he gives. There is a sentencing guideline. The court must always consider nature of breach and compliance of order. If probation wished to continue working with him, this must be given considerable weight.

Question 36

What powers of revocation does the court have?

Answer 36

1. On application of an offender or probation service officer, having regard to changed circumstances since the order was made, it is in the interests of justice to revoke the order or revoke and deal with them in another way. These circumstances include the offender making good progress or responding satisfactorily. 2. A court can revoke where the offender has committed a further offence during the currency of a CO so long as the order is still in force. The power is not exercisable if, even though the offence was committed when it was current, the order has expired. 3. Where it is in the interests of justice to do so and the CO was made by mags, having regard to circumstances which have arisen since the order was made, the mags’ may revoke the CO or both revoke the order and resentence. If resentencing, the court must take into account compliance. If a crown court CO, the mags may commit to crown with D in custody/bailed, but if that course is taken the magistrates should ensure that the offender is also committed in respect of the new offence. 4. If the Crown is dealing with the subsequent offence, because the offender is subject to a CO is convicted of an offence by the Crown or is committed either generally or for a new offence, the Crown may revoke the CO or revoke and resentence. Compliance should be taken into account

Question 37

What powers of amendment does the court have re Community Orders?

Answer 37

Amendment to a CO can be made by an appropriate court on application by the offender or probation officer: (a) because of a change in the offender's residence (paras. 16 and 17), or (b) for amendment of requirements in the order (para. 18), or (c) to change a treatment requirement on the report of a medical practitioner (para. 19), or (d) for amending the order by substituting a later end date than that originally specified, which may have the effect of extending the order beyond the normal maximum of three years but not so as to extend the order by more than six months from the end date originally specified (para. 20), and (e) to extend the period of 12 months for completion of an unpaid work requirement (para. 21).