"COMMUNITY ORDERS CAN LAST FOR UP TO 3 YEARS AND MUST INCLUDE AT LEAST ONE SPECIFIC REQUIREMENT"
Community orders can only be imposed for imprisonable offences. As such, if an offence does not carry a potential sentence of imprisonment, a court cannot impose a community order. Although community orders are available for most imprisonable offences, there are some exceptions such as murder (which requires a life sentence) or where mandatory minimum terms apply.
Community orders can last for up to 3 years and must include at least one specific requirement in the list below, but sometimes there can be a number of such requirements combined within a community order.
By s.148 of the Criminal Justice Act 2003, community orders can only be passed when the Judge/Magistrates consider that the offence (or the offence and an associated offence or offences) is ‘serious enough’ to justify the imposition of a community order. If it is not serious enough then a lesser penalty such as a fine or a conditional or absolute discharge should be imposed. Community orders must also be suitable for the particular defendant and the resulting restriction of liberty must be commensurate with the seriousness of the offence.
Community Order Requirements
At least one of the following requirements must be included in a community order:
- Rehabilitation activity requirement;
- Unpaid work requirement (40-300 hours over a maximum 12 month period);
- Programme requirement;
- Prohibited activity requirement;
- Curfew requirement (2-16 hours per day over a maximum 12 month period; usually electronically monitored with tag);
- Exclusion requirement (usually electronically monitored with tag);
- Residence requirement;
- Foreign travel prohibition requirement (up to maximum of 12 months);
- Mental health treatment requirement;
- Drug rehabilitation requirement;
- Alcohol treatment requirement;
- Alcohol abstinence and monitoring requirement;
- For defendants aged 18-24, an attendance centre requirement;
- Electronic monitoring requirement (usually required for curfew orders and exclusion orders and can also be used in conjunction with most other orders).
Any one or more of these requirements may also be attached to a suspended sentence.
BREACH OF COMMUNITY ORDERS
Breach of a Community Order Requirement
When a defendant fails without a reasonable excuse to carry out a community order requirement (such as failing without good reason to attend an unpaid work appointment) he/she will usually receive a warning stating that any further failure to comply within the next 12 months will mean the case will be brought back to court. A further failure to comply will result in the defendant being returned to court for breach of the community order.
Admitting the breach
Where a defendant is returned to court for breach of a community order requirement, he will be asked if he admits the breach. If not, a hearing will have to take place for the judge to decide whether he is in breach or not.
Options for the court
"IN DECIDING WHAT APPROACH TO TAKE, THE COURT WILL TAKE INTO ACCOUNT THE EXTENT TO WHICH THE DEFENDANT HAS ALREADY COMPLIED WITH THE ORDER"
If the defendant accepts the breach, or it is proved against him, the court has a number of options available to it. The court can:
- Add to the requirement by making it more onerous. For example, if a defendant had received an Unpaid Work Requirement of 240 hours, the court could add further hours to this requirement. Also, even in cases where there had not previously been an Unpaid Work Requirement, the court could mark the breach by adding a minimum of 20 hours of unpaid work.
- Revoke the requirement and sentence the defendant again (up tho the maximum available to the court that imposed the original requirement, i.e. usually 6 months in the Magistrates’ Court or the maximum available for the individual offence in the Crown Court).
- Impose a fine of up to £2,500.
Although community orders can only last for 3 years, if there is a breach the court is entitled to add up to 6 months to a community order even if this means it will extend beyond the usual 3 year limit.
"The court dealing with breach of a community sentence should have as its primary objective ensuring that the requirements of the sentence are finished"
In deciding what approach to take, the court will take into account the extent to which the defendant has already complied with the order.
A defendant who has successfully completed the majority of the requirements under the order is far more likely to be dealt with more leniently than a defendant who has failed to do much or anything at all.
The Sentencing Council ‘New Sentences: Criminal Justice Act 2003 Definitive Guideline’ provides that (para 1.1.45) ‘The court dealing with breach of a community sentence should have as its primary objective ensuring that the requirements of the sentence are finished, and this is important if the court is to have regard to the statutory purposes of sentencing. A court that imposes a custodial sentence for breach without giving adequate consideration to alternatives is in danger of imposing a sentence that is not commensurate with the seriousness of the original offence and is solely a punishment for breach. This risks undermining the purposes it has identified as being important. Nonetheless, courts will need to be vigilant to ensure that there is a realistic prospect of the purposes of the order being achieved.’
Application by the Defendant or Probation for Revocation or Re-Sentence
It is also possible for the defendant or the probation service to apply to revoke a community order (i.e. simply bring it to an end) or to ask for the defendant to be sentenced in another way. Such an application will be granted where, having regard to circumstances which have arisen since the order was made, the court considers it to be in the interests of justice to do so. The grounds upon which such an application can be made include where the defendant has made good progress or is responding satisfactorily to the requirements in the order. If the court decides to sentence in another way it must take into account the extent to which the defendant has complied with the original order.
Breach of Community Order by Committing a Further Offence
Being convicted of a further offence during a community order does not in itself amount to a breach of that order. However, if the defendant is convicted of a new offence a sentence will follow and this may interfere with the community order and the attached requirement(s).
For example, if the new offence is one that the court decides requires a sentence of immediate imprisonment, a defendant would not be able to continue with a community order for the original offence. As such, the court dealing with the new offence can (if it considers it is in the interests of justice to do so) revoke the original order and, if need be, re-sentence for the old offence as well as sentencing for the new offence.
If a Magistrates’ Court is dealing with the new offence and the community order was made in the Crown Court, it can commit the case for sentence to the Crown Court so that the case can be dealt with there.
When a court is dealing with a defendant in these circumstances, it must take into account the extent to which the original community order requirement(s) have been completed.