Schedule 12: Breach, revocation and amendment of suspended sentence order, and effect of further conviction
797.Part 1 of this Schedule and paragraphs 3 and 4, on statutory warnings, make similar provision to that dealing with community orders in Schedule 8. Paragraph 6 provides that a magistrates’ court can issue a summons for an offender to appear before a court (or a warrant for his arrest) if the offender has failed to comply with any community requirements of the order in cases where the suspended sentence order was made by a magistrates’ court or which was made by the Crown Court and includes a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates court. The summons will specify the court reviewing the order if the order contains provision for review. If the offender does not appear in response to a summons the court can issue a warrant for his arrest. Paragraph 7 provides for the Crown Court to issue a summons or warrant for the offender to appear before it where the order was made by the Crown Court and does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court. If the offender does not appear in response to a summons, a warrant for his arrest can be issued.
798.Paragraph 8 sets out the magistrates’ court’s powers where an offender breaches a suspended sentence by failing to comply with a community requirement or by committing a further offence anywhere in the United Kingdom. The presumption is that the suspended sentence will be activated, unless the court finds that it would be unjust to do so. If it activates the suspended sentence the court can set a shorter term or custodial period for the offender to serve if it wishes. If the court finds that it would be unjust to activate the suspended sentence it can keep the sentence suspended but amend the order to make the community requirements more onerous or to extend either the supervision or operational periods. The court must state the reasons for choosing this option. It must also take into account the extent to which the offender complied with the requirements of the order and the facts of the subsequent offence. A magistrates' court can commit the offender to the Crown Court, including orders which were made by the Crown Court and include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court. If the proceedings occur in the Crown Court the determination of breach is to be made by the court and not a jury.
799.Under paragraph 9 when the suspended sentence is activated, the court must make a custody plus order. That is, it has to set the licence conditions that will apply on the offender’s release from custody at the end of custodial period of his sentence. The court may decide whether the new sentence is to take effect immediately or after any other sentence that the offender is serving (subject to the rules affecting consecutive sentences). Sub-paragraph (3) provides that an activated suspended sentence counts as having been imposed by the court which originally imposed the suspended sentence.
800.Under paragraph 10, if an offender has refused to comply with a mental health, drug or alcohol treatment requirement, and the refusal is believed by the court to be reasonable under the circumstances, it is not to count as breach. Also, the offender's consent must be obtained before amending a mental health, drug or alcohol treatment requirement in response to breach. Paragraph 11 sets out which court deals with the suspended sentence if the offender is convicted of a further offence. Where the original sentence was passed by the Crown Court and the subsequent offence by a magistrates’ court, the latter can remand the offender in custody or on bail to the Crown Court or give written notice to the Crown Court of the subsequent conviction.
801.Under paragraph 12, if it becomes apparent that the court has not dealt with the suspended sentence in cases where the offender has committed a new offence, a court with jurisdiction may issue a summons or warrant to the offender to appear before a court. A court with jurisdiction refers to the Crown Court if the suspended sentence was passed by the Crown Court, or a justice acting for the area if the suspended sentence was passed by the magistrates’ court. A magistrates’ court may not issue a summons except on information and may not issue a warrant except on information in writing and on oath. If the subsequent offence is committed in Scotland or Northern Ireland, and the original suspended sentence was passed in England or Wales, the Scottish or Northern Ireland court must give written notice of the conviction to the court that passed the suspended sentence. Summonses and warrants must direct the offender to appear before the court that imposed the suspended sentence.
802.Part 3 deals with amending suspended sentence orders. Paragraph 13 provides that the appropriate court can cancel the community requirements of a suspended sentence order on application of the offender or responsible officer. This may occur if the offender becomes very ill and cannot undertake the requirements. The appropriate court is explained in sub-paragraph (4). Paragraph 14 provides that the appropriate court can amend the suspended sentence order by substituting a new petty sessions area if the offender proposes to or has changed residence. The court may, and on the application of the responsible officer must, cancel or change any requirements of the order that are not available in the area to which the offender wishes to move. In particular, a programme requirement cannot be amended if it is not available in the new area. The appropriate court is the same as in paragraph 12.
803.Under paragraph 15 an offender or his responsible officer can apply to have the community requirements of an order amended. The appropriate court can cancel a requirement or replace it with another requirement of the same kind, for example to alter the hours of a curfew or substitute one activity for another. The court cannot amend a mental health, drug or alcohol treatment requirement unless the offender consents. If the offender fails to consent, the court can revoke the order and re-sentence the offender. If it re-sentences him the court must take into account the extent to which the offender complied with the requirements of the order. The appropriate court has the same meaning as in paragraph 12. Paragraph 16 provides that, where a community order includes a drug rehabilitation, alcohol treatment or mental health treatment requirement and the medical practitioner or other person responsible for the treatment is of the opinion that the treatment should be extended beyond the period specified in the order, that the offender should receive different treatment, that the offender is not susceptible to treatment or that the offender does not require further treatment, he must make a report to the responsible officer. He can also report that he is unwilling to continue to treat (or direct the treatment) of the offender for any reason. The responsible officer must then apply to the court to have the requirement amended or cancelled.
804.Paragraph 17 provides for the responsible officer to apply to the court to change a review without a hearing to a review with a hearing, and vice versa, in the case where a suspended sentence order contains a drug rehabilitation requirement.
805.The offender or the responsible officer can apply to the appropriate court (as defined in paragraph 13) under paragraph 18 to extend the 12 months limit on unpaid work if it is in the interests of justice to do so. This might occur if the offender fell ill during the 12 months and was unable to finish all of his hours of unpaid work in time.
806.Paragraphs 19 to 22 contain supplementary provisions. No application to cancel or amend the requirements a suspended sentence order, can be made if an appeal against the order is pending, except in the case of treatment requirements which the responsible officer has applied to the court to amend. Where a court is amending an order, and the application is not by the offender, the court must summon the offender to appear before the court and may issue a warrant if he does not appear. This does not apply if the court is cancelling a requirement. In amending any requirement the court must keep to the restrictions on the requirements that apply if the court was then making the order. Paragraph 22 sets out arrangements for sending copies of the order to relevant parties.