Commentary Release and supervision of offenders sentenced to less than 2 years Section 3: Breach of supervision requirements
28.Section 3 amends Chapter 6 of Part 12 of the 2003 Act by inserting a new section 256AC. The new section 256AC deals with breach of supervision requirements imposed under new section 256AA.
29.Subsection (1) of new section 256AC provides that where it appears to the court that an offender has failed to comply with a supervision requirement, the court may issue a summons for the offender to appear or a warrant for the offender’s arrest.
30.Subsection (2) makes clear that where a summons or warrant is issued it must direct the offender to appear at a magistrates’ court in the local justice area in which the offender resides or, if unknown, where the summons or warrant was issued. Subsection (3) provides that where a summons is issued, but the offender does not appear, the court may issue a warrant for the offender’s arrest.
31.Subsection (4) of new section 256AC sets out the sanctions available to the court where it is proved to the satisfaction of the court that the offender has without reasonable excuse failed to comply with a requirement during the supervision period. The sanctions available to the court are:
	Committal to prison for a period not exceeding 14 days.
	A fine not exceeding level 3 on the standard scale.
	A “supervision default order” imposing either an unpaid work requirement or a curfew requirement.
32.Subsection (5) of new section 256AC provides that where a court imposes a curfew as part of a supervision default order, it is obliged also to impose electronic monitoring, unless it is unable to because suitable arrangements for monitoring cannot be made or it considers it inappropriate to do so (see section 177(3) of the 2003 Act).
33.Subsection (6) of new section 256AC means that where a court deals with a breach of supervision requirement by either committing an offender to prison, imposing a fine or imposing a supervision default order, it must revoke any existing supervision default order.
34.Subsection (7) relates to offenders under the age of 21 where an order is made under subsection (4)(a) – that is, committal to prison. The person must be committed to a young offender institution, but subsection (7)(b) makes clear that the Secretary of State can direct that such a person can be detained in a prison or remand centre instead. Subsection (8) makes clear that a person committed to custody in a young offender institution is to be regarded as being in legal custody.
35.Subsection (9) provides that a fine imposed under subsection (4)(b) is to be treated as being a sum adjudged to be paid by a conviction, meaning that the normal enforcement procedures will apply. Subsection (11) provides that a person may appeal to the Crown Court against an order under subsection (4), that is, against the imposition of a sanction for an unreasonable failure to comply with a supervision requirement.
36.Section 3(2) introduces Schedule 2 to the Act, which inserts new Schedule 19A into the 2003 Act. The new Schedule 19A relates to supervision default orders with Part 1 dealing with the unpaid work and curfew requirements and Part 2 dealing with breach, revocation and amendment of supervision default orders.
37.The new Schedule 19A relates to supervision default orders: that is, where an offender has failed without reasonable excuse to comply with their supervision requirements and the court has imposed either unpaid work or a curfew for that breach. Schedule 19A applies the provisions of the 2003 Act that relate to unpaid work and curfews when imposed as part of a community order or suspended sentence order to those requirements when imposed as part of a supervision default order. Schedule 19A also makes a number of modifications to the provisions to reflect the different nature of community order requirements and supervision default order requirements.
38.Paragraph 3 of Schedule 19A sets out the modifications. These include limits on the imposition of unpaid work so that the minimum period is no less than 20 hours and the maximum no more than 60 hours. Paragraph 3(3) also makes clear that the work must be performed by the end of the supervision period.
39.Paragraph 3(4) also provides that, for a supervision default order, a curfew should be no less than 2 hours per day but no more than 16 hours per day. The curfew period must be at least 20 days in duration but cannot fall outside the supervision period.
40.Sections 217(1) and (2) of the 2003 Act, which require a court to avoid setting requirements which would conflict with an offender’s religious beliefs or with times when offenders would normally be in work or education, apply in relation to setting supervision default orders as they do to community orders. Paragraph 4 of Schedule 19A makes clear that the order-making power in section 217(3), which allows the Secretary of State to impose further restrictions by order, applies in relation to supervision default orders. Paragraph 5 extends the Secretary of State’s powers to make rules for regulating the supervision of offenders subject to community orders to supervision default orders. Paragraph 6 provides that the Secretary of State may by order amend the number of hours or days specified in relation to unpaid work and curfews imposed as part of a supervision default order.
41.Part 2 of Schedule 19A deals with the breach, revocation and amendment of supervision default orders. Paragraphs 7 and 8 provide that where an offender’s supervisor is satisfied that that the offender has failed, without reasonable excuse, to comply with requirements of their supervision default order and that the failure should be dealt with by the court, then the offender’s supervisor must refer the matter to an enforcement officer. The enforcement officer must then consider the case and if appropriate cause an information to be laid before a justice of the peace. Paragraph 7(4) makes clear that an enforcement officer is a public sector provider of probation services.
42.Paragraph 8 provides that if the court is satisfied that an offender has failed to comply with a supervision default order, it may issue a summons requiring the person to appear or issue a warrant for the person’s arrest.
43.Paragraph 9 of Schedule 19A sets out the powers of magistrates to deal with a breach of the supervision default order. If the court is satisfied that an offender has, without reasonable excuse, failed to comply with the supervision default order, the court may revoke the supervision default order and deal with the failure in the same way it could deal with the original breach of the supervision requirements (that is, by committal to prison, imposing a fine or a by a new supervision default order). Paragraph 9(3) makes clear that the court must take account of the extent to which the offender complied with the supervision default order and paragraph 9(4) provides for an appeal to the Crown Court against the order made by the court.
44.Paragraph 10 of Schedule 19A provides that an officer of a provider of probation services or the offender may make an application to the court to revoke or amend a supervision default order or to revoke it and deal with the offender in any way he could have been dealt with had the order never been made (i.e. by committing him to prison, imposing a fine or imposing a new supervision default order). Paragraph 10(2) provides that when it is amending an order under this power the court may not increase the number of days or hours specified in the order, but it may reduce them provided that it does not reduce them below the minimum of 20 hours for unpaid work and 2 hours per day for at least 20 days for curfew. Paragraph 10 also provides that the court in exercising its powers must take into account the extent to which the offender has complied with the supervision default order. Paragraph 10(4) provides for a right of appeal to the Crown Court. Paragraphs 10(5) and (6) provide that where a court proposes to exercise its powers on an application by an officer of a provider of probation services, unless it proposes only to reduce the number of days or hours specified in the order, it must summon the offender to appear before the court, and if he does not appear the court may issue a warrant for his arrest. Paragraph 10(7) provides that where the application to amend or revoke is made by the offender, the court may only hear the application if it is satisfied that adequate notice has been given to relevant officers of a provider of probation services. Paragraph 10(8) provides that an application to amend or revoke may not be made while an appeal against a supervision default order is pending.
45.Paragraph 11 provides powers to the court to amend the supervision default order to specify a new local justice area, where it is satisfied that the offender proposes to change or has changed his address from the local justice area specified in the order.
46.Paragraph 12 requires a court to revoke a supervision default order if the person who is subject to the order is convicted of an offence and the court dealing with that new offence imposes a sentence of imprisonment or detention (other than a suspended sentence order). If the court imposes a community order or a suspended sentence order it may revoke the supervision default order and deal with the person under section 256AC(4) in any way it could have dealt with him had the supervision default order not been made (that is, by committing him to prison, imposing a fine or imposing a new supervision default order). Paragraph 13 provides that where a court orders that a suspended sentence is to take effect in respect of someone who is subject to a supervision default order, the court must revoke the supervision default order.