Office of Public Sector Information
SCHEDULE 7 continued
40 In section 11 of the 1991 Act (orders combining probation and community service), after subsection (1) there shall be inserted the following subsection—
“(1A) The reference in subsection (1) above to an offence punishable with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment on the imprisonment of young offenders.”
41 (1) In subsection (5)(c) of section 12 of the 1991 Act (curfew orders), for the words “supervising officer” there shall be substituted the words “responsible officer”.
(2) After subsection (6A) of that section there shall be inserted the following subsection—
“(6B) The court by which a curfew order is made shall give a copy of the order to the offender and to the person responsible for monitoring the offender’s whereabouts during the curfew periods specified in the order.”
(3) After subsection (7) of that section there shall be added the following subsection—
“(8) References in this section to the offender’s being under the age of sixteen years are references to his being under that age on conviction.”
42 In section 31(1) of the 1991 Act (interpretation of Part I), in paragraph (b) of the definition of “custodial sentence”, for the words “section 53” there shall be substituted the words “section 53(3)”.
43 (1) In subsection (3) of section 40 of the 1991 Act (convictions during currency of original sentences), for the words from “for sentence” to the end there shall be substituted the words “to be dealt with under subsection (3A) below”.
(2) After that subsection there shall be inserted the following subsections—
“(3A) Where a person is committed to the Crown Court under subsection (3) above, the Crown Court may order him to be returned to prison for the whole or any part of the period which—
(a) begins with the date of the order; and
(b) is equal in length to the period between the date on which the new offence was committed and the date mentioned in subsection (1) above.
(3B) Subsection (3)(b) above shall not be taken to confer on the magistrates' court a power to commit the person to the Crown Court for sentence for the new offence, but this is without prejudice to any such power conferred on the magistrates' court by any other enactment.”
(3) In subsection (4) of that section, for the words “subsection (2)” there shall be substituted the words “subsection (2) or (3A)”.
44 In each of subsections (3)(b) and (4)(a) of section 57 of the 1991 Act (responsibility of parent or guardian for financial penalties), for the words “section 35(4)(a)” there shall be substituted the words “section 35(4)”.
45 In section 58 of the 1991 Act (binding over of parent or guardian), after subsection (8) there shall be added the following subsection—
“(9) For the purposes of this section—
(a) “guardian” has the same meaning as in the 1933 Act; and
(b) taking “care” of a person includes giving him protection and guidance and “control” includes discipline.”
46 (1) In paragraph 1 of Schedule 2 to the 1991 Act (enforcement etc. of community orders), after sub-paragraph (4) there shall be added the following sub-paragraph—
“(5) Where a probation order, community service order, combination order or curfew order has been made on appeal, for the purposes of this Schedule it shall be deemed—
(a) if it was made on an appeal brought from a magistrates' court, to have been made by a magistrates' court;
(b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court.”
(2) In each of paragraphs 3(1) and 4(1) of that Schedule, for paragraph (c) there shall be substituted the following paragraph—
“(c) where—
(i) the relevant order is a probation order and the offender is under the age of twenty-one years, or
(ii) the relevant order is a curfew order and the offender is under the age of sixteen years,
and the court has been notified as required by subsection (1) of section 17 of the 1982 Act, it may (subject to paragraph 6(6) below) make in respect of him an order under that section (attendance centre orders); or”.
(3) In paragraph 4(1) of that Schedule—
(a) after the word “failed” there shall be inserted the words “without reasonable excuse”; and
(b) in paragraph (d), for the words “by or before the court” there shall be substituted the words “before the Crown Court”.
(4) In paragraph 6 of that Schedule, in sub-paragraph (1), for the words “or (b)” there shall be substituted the words “, (b) or (c)”.
(5) After sub-paragraph (3) of that paragraph there shall be inserted the following sub-paragraph—
“(3A) A community service order shall not be made under paragraph 3(1)(b) or 4(1)(b) above in respect of a person who is under the age of sixteen years.”
(6) For sub-paragraph (5) of that paragraph there shall be substituted the following sub-paragraph—
“(5) Where the provisions of this Schedule have effect as mentioned in sub-paragraph (4) above in relation to a community service order under paragraph 3(1)(b) or 4(1)(b) above—
(a) the power conferred on the court by each of paragraphs 3(1)(d) and 4(1)(d) above and paragraph 7(2)(a)(ii) below to deal with the offender for the offence in respect of which the order was made shall be construed as a power to deal with the offender, for his failure to comply with the original order, in any manner in which the court could deal with him if that failure to comply had just been proved to the satisfaction of the court;
(b) the reference in paragraph 7(1)(b) below to the offence in respect of which the order was made shall be construed as a reference to the failure to comply in respect of which the order was made; and
(c) the power conferred on the court by paragraph 8(2)(b) below to deal with the offender for the offence in respect of which the order was made shall be construed as a power to deal with the offender, for his failure to comply with the original order, in any manner in which the court which made the original order could deal with him if that failure had just been proved to the satisfaction of that court;
and in this sub-paragraph “the original order” means the relevant order the failure to comply with whose requirements led to the making of the community service order under paragraph 3(1)(b) or 4(1)(b).”
(7) After sub-paragraph (5) of that paragraph there shall be added the following sub-paragraph—
“(6) The provisions of sections 17 to 19 of the 1982 Act (making, discharge, variation and breach of attendance centre order) shall apply for the purposes of paragraphs 3(1)(c) and 4(1)(c) above but as if there were omitted—
(a) subsection (13) of section 17;
(b) from subsection (4A) of section 18 and subsections (3) and (5) of section 19, the words “, for the offence in respect of which the order was made,” and “for that offence”.”
(8) After paragraph 6 of that Schedule there shall be inserted the following paragraph—
“6A (1) Where a relevant order was made by a magistrates' court in the case of an offender under 18 years of age in respect of an offence triable only on indictment in the case of an adult, any powers exercisable under paragraph 3(1)(d) above by that or any other court in respect of the offender after he has attained the age of 18 years shall be powers to do either or both of the following—
(a) to impose a fine not exceeding £5,000 for the offence in respect of which the order was made;
(b) to deal with the offender for that offence in any way in which a magistrates' court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding six months.
(2) In sub-paragraph (1)(b) above any reference to an offence punishable with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment on the imprisonment of young offenders.”
(9) In paragraph 7(5) of that Schedule, after the word “above” there shall be inserted the words “for an offence”.
(10) In paragraph 8(2) of that Schedule, for paragraph (b) there shall be substituted the following paragraph—
“(b) revoke the order and deal with the offender, for the offence in respect of which the order was made, in any manner in which the court which made the order could deal with him if he had just been convicted of that offence by or before the court which made the order.”
(11) After paragraph 8 of that Schedule there shall be inserted the following paragraph—
“8A (1) This paragraph applies where a probation order is in force in respect of any offender and on the application of the offender or the responsible officer it appears to a magistrates' court acting for the petty sessions area concerned that, having regard to circumstances which have arisen since the order was made, it would be in the interests of justice—
(a) for the probation order to be revoked; and
(b) for an order to be made under section 1A(1)(b) of the 1973 Act discharging the offender conditionally for the offence for which the probation order was made.
(2) No application may be made under paragraph 7 above for a probation order to be revoked and replaced with an order for conditional discharge under section 1A(1)(b) of the 1973 Act; but otherwise nothing in this paragraph shall affect the operation of paragraphs 7 and 8 above.
(3) Where this paragraph applies and the probation order was made by a magistrates' court—
(a) the magistrates' court dealing with the application may revoke the probation order and make an order under section 1A(1)(b) of the 1973 Act discharging the offender in respect of the offence for which the probation order was made, subject to the condition that he commits no offence during the period specified in the order under section 1A(1)(b); and
(b) the period specified in the order under section 1A(1)(b) shall be the period beginning with the making of that order and ending with the date when the probation period specified in the probation order would have ended.
(4) Where this paragraph applies and the probation order was made by the Crown Court, the magistrates' court may send the application to the Crown Court to be heard by that court, and if it does so shall also send to the Crown Court such particulars of the case as may be desirable.
(5) Where an application under this paragraph is heard by the Crown Court by virtue of sub-paragraph (4) above—
(a) the Crown Court may revoke the probation order and make an order under section 1A(1)(b) of the 1973 Act discharging the offender in respect of the offence for which the probation order was made, subject to the condition that he commits no offence during the period specified in the order under section 1A(1)(b); and
(b) the period specified in the order under section 1A(1)(b) shall be the period beginning with the making of that order and ending with the date when the probation period specified in the probation order would have ended.
(6) For the purposes of sub-paragraphs (3) and (5) above, subsection (1) of section 1A of the 1973 Act shall apply as if—
(a) for the words from the beginning to “may make an order either” there were substituted the words “Where paragraph 8A of Schedule 2 to the [1991 c. 53.] Criminal Justice Act 1991 applies, the court which under sub-paragraph (3) or (5) of that paragraph has power to dispose of the application may (subject to the provisions of that sub-paragraph) make an order in respect of the offender”; and
(b) paragraph (a) of that subsection were omitted.
(7) An application under this paragraph may be heard in the offender’s absence if—
(a) the application is made by the responsible officer; and
(b) that officer produces to the court a statement by the offender that he understands the effect of an order for conditional discharge and consents to the making of the application;
and where the application is so heard section 1A(3) of the 1973 Act shall not apply.
(8) No application may be made under this paragraph while an appeal against the probation order is pending.
(9) Without prejudice to paragraph 11 below, on the making of an order under section 1A(1)(b) of the 1973 Act by virtue of this paragraph the court shall forthwith give copies of the order to the responsible officer, and the responsible officer shall give a copy to the offender.
(10) Each of sections 1(11), 2(9) and 66(4) of the Crime and Disorder Act 1998 (which prevent a court from making an order for conditional discharge in certain cases) shall have effect as if the reference to the court by or before which a person is convicted of an offence there mentioned included a reference to a court dealing with an application under this paragraph in respect of the offence.”
(12) After paragraph 11 of that Schedule there shall be inserted the following paragraphs—
“11A Paragraph 6A above shall apply for the purposes of paragraphs 7 and 8 above as it applies for the purposes of paragraph 3 above, but as if in paragraph 6A(1) for the words “powers exercisable under paragraph 3(1)(d) above” there were substituted the words “powers to deal with the offender which are exercisable under paragraph 7(2)(a)(ii) or 8(2)(b) below”.
11B Where under this Part of this Schedule a relevant order is revoked and replaced by an order for conditional discharge under section 1A(1)(b) of the 1973 Act and—
(a) the order for conditional discharge is not made in the circumstances mentioned in section 1B(9) of the 1973 Act (order made by magistrates' court in the case of an offender under eighteen in respect of offence triable only on indictment in the case of an adult), but
(b) the relevant order was made in those circumstances,
section 1B(9) of the 1973 Act shall apply as if the order for conditional discharge had been made in those circumstances.”
47 Section 1 of the 1997 Act (conditions relating to mandatory and minimum custodial sentences) shall cease to have effect.
48 (1) In subsection (2) of section 3 of the 1997 Act (minimum of seven years for third class A drug trafficking offence)—
(a) for the words “specific circumstances” there shall be substituted the words “particular circumstances”; and
(b) for the words “the prescribed custodial sentence unjust” there shall be substituted the words “it unjust to do so”.
(2) In subsection (3) of that section, for the words “specific circumstances” there shall be substituted the words “particular circumstances”.
49 (1) In subsection (2) of section 4 of the 1997 Act (minimum of three years for third domestic burglary)—
(a) for the words “specific circumstances” there shall be substituted the words “particular circumstances”; and
(b) for the words “the prescribed custodial sentence unjust” there shall be substituted the words “it unjust to do so”.
(2) In subsection (3) of that section, for the words “specific circumstances” there shall be substituted the words “particular circumstances”.
50 (1) In subsection (2)(a) of section 35 of the 1997 Act (community sentences for fine defaulters), for the words “and (11)” there shall be substituted the words “, (10) and (11)”.
(2) In subsection (5) of that section, paragraph (c) shall cease to have effect.
(3) In that subsection, the word “and” at the end of paragraph (d) shall cease to have effect and after paragraph (e) there shall be added the following paragraphs—
“(f) the reference in paragraph 7(1)(b) of that Schedule to the offence in respect of which the order was made shall be construed as a reference to the default in respect of which the order was made;
(g) the power conferred by paragraph 7(2)(a)(ii) of that Schedule to deal with an offender for the offence in respect of which the order was made shall be construed as a power to deal with the person in respect of whom the order was made for his default in paying the sum in question; and
(h) paragraph 8(2)(b) of that Schedule shall not apply.”
(4) In subsection (7) of that section, for the words “section 12(5)” there shall be substituted the words “section 12(6)”.
(5) In subsection (8) of that section, the word “and” at the end of paragraph (a) shall cease to have effect and after paragraph (b) there shall be added the following paragraphs—
“(c) the reference in paragraph 7(1)(b) of that Schedule to the offence in respect of which the order was made shall be construed as a reference to the default in respect of which the order was made;
(d) the power conferred by paragraph 7(2)(a)(ii) of that Schedule to deal with an offender for the offence in respect of which the order was made shall be construed as a power to deal with the person in respect of whom the order was made for his default in paying the sum in question; and
(e) paragraph 8(2)(b) of that Schedule shall not apply.”
(6) In subsection (10) of that section, for the words “subsection (2)(b)” there shall be substituted the words “subsection (2)(a) or (b)”.
51 (1) In subsection (3) of section 37 of the 1997 Act (community sentences for persistent petty offenders)—
(a) in paragraph (a), for the words “(4) and (6)” there shall be substituted the words “(4), (5A) and (6)”; and
(b) in paragraph (b), for the words “(5) and (6)” there shall be substituted the words “(5), (5A) and (6)”.
(2) For subsections (4) and (5) of that section there shall be substituted the following subsections—
“(4) In this section “community service order” has the same meaning as in the 1973 Act and—
(a) section 14(2) of that Act; and
(b) so far as applicable, the other provisions of that Act relating to community service orders and the provisions of Part I of the 1991 Act so relating,
shall have effect in relation to an order under subsection (3)(a) above as they have effect in relation to a community service order made under the 1973 Act in respect of an offender.
(5) In this section “curfew order” has the same meaning as in Part I of the 1991 Act and—
(a) section 12(6) of that Act; and
(b) so far as applicable, the other provisions of that Part relating to curfew orders,
shall have effect in relation to an order under subsection (3)(b) above as they have effect in relation to a curfew order made under that Act in respect of an offender.
(5A) A court shall not make an order under subsection (3)(a) or (b) above in respect of a person who on conviction is under 16.”
52 In section 50 of the 1997 Act (disclosure of pre-sentence reports), after subsection (6) there shall be added the following subsection—
“(7) In this section “guardian” has the same meaning as in the 1933 Act.”
53 In section 54 of the 1997 Act (general interpretation), after subsection (3) there shall be added the following subsection—
“(4) For the purposes of any provision of this Act which requires the determination of the age of a person by the court, his age shall be deemed to be that which it appears to the court to be after considering any available evidence.”
54 In section 55(2) of the 1997 Act (interpretation of minor and consequential amendments), for the words “in any case where” (in both places where they occur) there shall be substituted the word “and”.
Crime and Disorder Act 1998