Section 76: Alcohol abstinence and monitoring requirement
412.Section 76 inserts new section 212A into the 1991 Act. This has the effect of creating a new alcohol abstinence and monitoring requirement which may be imposed as a requirement of a community order or suspended sentence order.
413.Under new section 212A(1)(a) a court has the power to order an offender either to abstain from consuming alcohol for a specified period or not to consume alcohol so that during a specified period they have a level of alcohol higher than a level specified by the order in their body. An offender on whom such a requirement is imposed would have to submit to monitoring for the purposes of ascertaining whether they were complying with the requirement under new section 212A(1)(a).
414.New section 212A(2) limits the maximum period of the new requirement to 120 days. (However, subsection (7) of section 76 amends section 223(3) of the 1991 Act with the effect that the Secretary of State has a power to amend the maximum period. This power would be exercisable subject to the affirmative resolution procedure, and is common to a number of other requirements.)
415.New section 212A(3) gives the Secretary of State a power to prescribe a minimum period for the requirement.
416.New section 212A(4) gives the Secretary of State a power to prescribe the level of alcohol an offender must not exceed under a requirement set out under new section 212A(1)(a)(ii). Such a requirement may not be imposed unless an order has been made to prescribe alcohol levels. An order which prescribes alcohol levels may do so by reference to the proportion of alcohol in the offender’s breath, blood, urine or sweat, or by some other means.
417.New section 212A(6) gives the Secretary of State a power by order to prescribe arrangements for monitoring of compliance with the requirement. Such an order may prescribe arrangements for monitoring by electronic or other means.
418.New section 212A(8) to (12) makes provision about the conditions for imposing the new requirement. There are four conditions.
419.The first is that consumption of alcohol must be an element of the offence before the court, or the court must be satisfied that consumption of alcohol was a contributing factor to the commission of the offence.
420.The second is that the court must be satisfied that the offender is not dependent on alcohol.
421.The third is that the court must not include an alcohol treatment requirement (under section 212 of the 1991 Act) in the order.
422.The fourth is that the court must have been notified by the Secretary of State that arrangements for monitoring have been made in the local justice area.
423.Subsections (2) to (11) of section 76 make further amendments to the 1991 Act and the Armed Forces Act 2006 as a consequence of the creation of the new requirement. Subsection (6) amends section 215 of the 1991 Act to prevent the court from imposing an electronic monitoring requirement in respect of the new requirement. This is because electronic monitoring provisions may be included in the new requirement itself (see new section 212A(7)(a)).
