Powers of Courts Lecture – Adult Offenders

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Powers of Courts Lecture – Adult Offenders

Note that the relevant law has now been consolidated in the Powers of

Criminal Courts (Sentencing) Act 2000. Powers are presented here in sectional

order as they appear in the 2000 Act.

1. DEFERRED SENTENCE

The court may defer passing sentence on an offender for the purpose of

enabling the court to have regard in dealing with him to (a) his conduct

after conviction (including, where appropriate, the making by him of

reparation for his offence); or (b) any change in his circumstances.

Sentencing may be deferred for up to six months only if the court is

satisfied, having regard to the nature of the offence and the character and

circumstances of the offender, that it would be in the interests of justice

to exercise the power:s1.

2. CONDITIONAL AND ABSOLUTE DISCHARGE

An order for conditional discharge means that no punishment is imposed

on condition that the defendant commits no further offence during a

specified period of up to 3 years. If a further offence is committed, the

defendant may also be sentenced for the original offence: s12.

With an absolute discharge, the effect is that the defendant, though

guilty, is not punished.

3. COMMUNITY SENTENCES

Note: some of the community orders were renamed by the Criminal Justice and

Court Services Act 2000.

A community order is (a) a curfew order; (b) an exclusion order; (c) a

probation order; (d) a community service order; (e) a combination order; (f)

a drug treatment and testing order; (g) drug abstinence order; (h) an

attendance centre order; (i) a supervision order; (j) an action plan order;

and may be imposed on offenders over the age of 16: s33

The offence must be serious enough to warrant such a sentence: s35(1).

The community sentence must be suitable for the offender and the

restrictions on liberty must be commensurate with the seriousness of the

offence: s35(3).

The court need not consider a pre-sentence report, except in the case of

an offender under 18 who has committed an indictable offence: s36.

(a) Curfew Order

The courts may pass curfew orders on an offender aged 16 or over,

requiring him to remain at a specified place for between 2 and 12 hours per

day, for up to six months: s37

Curfew orders may be enforced by electronic monitoring arrangements,

i.e., ‘tagging’: s38

(b) Exclusion Order

This order was introduced by s46 of the Criminal Justice and Court

Services Act 2000, which inserted a new s40A into the PCCSA 2000.

The court may make an order prohibiting an offender from entering a place

specified in the order for a period so specified of not more than two years.

The exclusion order will make a responsible officer responsible for

monitoring the offender’s whereabouts during the periods when the

prohibition operates.

The court has power to review the order on the application of the

offender, the responsible officer or any affected person.

(c) Community Rehabilitation Order (Probation Order)

Where a person aged 16 or over is convicted of an offence and the

court is of the opinion that his supervision is desirable in the interests

of (a) securing his rehabilitation, or (b) protecting the public from harm

from him or preventing the commission by him of further offences, the court

may make an order requiring him to be under supervision for a specified

period between six months and three years: s41.

The defendant will be placed under the supervision of a responsible

officer (ie, a probation officer or member of a Youth Offending Team:

s41(5)), with whom he must stay in regular .

The court can include in a probation order a range of additional

requirements: s42. For example, residence, attendance at a probation centre,

treatment for mental condition, and treatment for drug or alcohol dependency

(Schedule 2).

(d) Community Punishment Order (Community Service Order)

A community service order is an order that the defendant must perform

between 40 and 240 hours of unpaid work: s46.

The defendant must be aged 16 or over; and the court must be satisfied

that the defendant is a suitable person for this order: s46(4).

The defendant must keep in touch with the responsible officer: s47.

(e) Community Punishment and Rehabilitation Order (Combination Order)

A combination order requires an offender, aged 16 or over, to be

supervised by a responsible officer for between 12 months and 3 years and to

perform between 40 and 100 hours’ unpaid work: s51.

The making of a combination order must be desirable in the interests of

(a) securing the rehabilitation of the offender; or (b) protecting the

public from harm from him or preventing the commission by him of further

offences: s51(3)

(f) Drug Treatment and Testing Order

The court may make a drug treatment and testing order in respect of an

offender if it is satisfied (a) that he is dependent on or has a propensity

to misuse drugs; and (b) that his dependency or propensity is such as

requires and may be susceptible to treatment: s52(3).

The order lasts for between six months and three years: s52(1).

The offender must submit to treatment by a specified person having the

necessary qualifications or experience with a view to the reduction or

elimination of the offender’s dependency on or propensity to misuse drugs:

s53(1).

For the purpose of ascertaining whether the offender has any drug in his

body during the treatment and testing period, the offender must, at such

times as may be determined by the treatment provider, provide relevant

samples: s53(4).

During the treatment and testing period, the offender shall be under the

supervision of a probation officer: s54(2).

(g) Drug Abstinence Order

This order was introduced by s47 of the Criminal Justice and Court

Services Act 2000, which inserted a new s58A into the PCCSA 2000.

This order requires the offender (a) to abstain from misusing specified

Class A drugs; and (b) to provide, when instructed to do so by the

responsible officer, any sample mentioned in the instruction for the purpose

of ascertaining whether he has any specified Class A drug in his body.

The court shall not make a drug abstinence order in respect of an

offender unless (a) in the opinion of the court, the offender is dependent

on, or has a propensity to misuse, specified Class A drugs; and (b) the

offence in question is a trigger offence or, in the opinion of the court,

the misuse by the offender of any specified Class A drug caused or

contributed to the offence in question.

(h) Attendance Centre Order

This sentence is available for offenders aged 10-20. For details, see

“Powers of Courts – Young Offenders”.

(i) Supervision Order

This sentence is available for offenders aged 16-18. For details, see

“Powers of Courts – Young Offenders”.

(j) Action Plan Order

This sentence is available only for young offenders.

4. IMPRISONMENT

Offenders over the age of 21 may be imprisoned.

The offence must be so serious that a prison sentence is justified for

the offence; or the offence is a violent or sexual one and prison would

protect the public from serious harm from him: s80(2).

Minimum sentences will be imposed on offenders over 18 for certain

offences, unless there are exceptional circumstances: ss109-111.

Prisoners serving less than four years will be released on completing

half of their sentence and longer-term prisoners will be released on serving

two-thirds of their sentence (Part II Criminal Justice Act 1991).

Mandatory and discretionary life prisoners may be released on licence

after they have served the tariff (Part II Criminal Justice Act 1991).

5. SUSPENDED PRISON SENTENCES

A prison sentence of up to two years may be suspended for between one

and two years: s118.

If the defendant does not commit an imprisonable offence during that

period, the suspended sentence is not brought into effect.

If the defendant does commit an imprisonable offence during the period,

the sentence may be brought into effect unless it would be unjust to do so.

The case must be one where imprisonment would have been appropriate but a

suspended sentence can be justified by the exceptional circumstances of the

case: s118(4).

The court has to consider whether the circumstances of the case warrant

in addition a fine or the making of a compensation order: s118(5).

Where a court passes a suspended sentence for a term of more than six

months for a single offence, the court may make a suspended sentence

supervision order, ie, an order placing the offender under the supervision

of a supervising officer for a period which is specified in the order and

does not exceed the operational period of the suspended sentence: s122.

6. FINES

The Crown Court can fine a defendant instead of or in addition to

passing a sentence of imprisonment: s127. The Crown Court’s fining power is

unlimited.

The magistrates may impose a fine of up to £5,000 if the relevant

statute states that they may.

The court must inquire into the offender’s financial circumstances before

fixing the amount of a fine: s128(1). The fine should reflect the

seriousness of the offence: s128(2).

7. COMPENSATION ORDERS

The court, instead of or in addition to dealing with an offender in

any other way, may make an order requiring him (a) to pay compensation for

any personal injury, loss or damage resulting from that offence(s); or (b)

to make payments for funeral expenses or bereavement in respect of a death

resulting from any such offence, other than a death due to an accident

arising out of the presence of a motor vehicle on a road (subject to

exceptions): s130(1).

A court shall give reasons, on passing sentence, if it does not make a

compensation order in a case where this section empowers it to do so:

s130(3).

In determining the amount to be paid, the court must take into account

the defendant’s means: s130(11). The maximum amount of compensation a

magistrates’ court can order is £5,000: s131(1).

8. DEPRIVATION AND FORFEITURE ORDERS

A court can order an offender to be deprived of property he has used

or intended to use to commit an offence: s143.

Where the court makes a deprivation order in a case where the offender

has been convicted of an offence which has resulted in a person suffering

personal injury, loss or damage, the court may also make an order that any

proceeds which arise from the disposal of the property and which do not

exceed a sum specified by the court shall be paid to that person: s145.

The courts can take from criminals all profits from crime for up to six

years before conviction by virtue of the Proceeds of Crime Act 1995.

9. DISQUALIFICATION

The court may, instead of or in addition to dealing with an offender

in any other way, order him to be disqualified, for such period as it thinks

fit, from holding or obtaining a driving licence: s146 (Driving

disqualification for any offence).

If the Crown Court (or magistrates’ court dealing with an offence

involving assault) is satisfied that a motor vehicle was used (by the person

convicted or by anyone else) for the purpose of committing, or facilitating

the commission of, the offence in question, the court may order the person

convicted to be disqualified, for such period as the court thinks fit, for

holding or obtaining a driving licence: s147(3) (Driving disqualification

where vehicle used for purposes of crime).

10. RESTITUTION

A restitution order requires that the defendant return any property

obtained from the victim.

Where goods have been stolen and a person is convicted, the court may:

(a) order anyone having possession or control of the stolen goods to restore

them to any person entitled to recover them from him; or (b) on the

application of a person entitled to recover from the person convicted any

other goods directly or indirectly representing the stolen goods (as being

the proceeds of any disposal or realisation of the whole or part of them or

of goods so representing them), the court may order those other goods to be

delivered or transferred to the applicant; or (c) order that a sum not

exceeding the value of the stolen goods shall be paid, out of any money of

the person convicted which was taken out of his possession on his

apprehension, to any person who, if those goods were in the possession of

the person convicted, would be entitled to recover them from him: s148.

11. BINDING OVER TO BE OF GOOD BEHAVIOUR

A person can be bound over to be of good behaviour, even if they have

not committed a crime, for up to one year. They enter into a bond or

recognisance to perform or abstain from performing an act (s115 Magistrates’

Courts Act 1980).

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