Sentencing Act 2020

Section 219

SCHEDULE 11 Transfer of community orders to Scotland or Northern Ireland

PART 1 Scotland

Making of community order where offender will reside in Scotland

1 (1) This paragraph applies where—

(a) a community order is available to a court dealing with an offender, and

(b) the court is satisfied that the offender—

(i) resides in Scotland, or

(ii) if a community order is made, will reside there when the order comes into force.

(2) The court may make a community order only if—

(a) it appears to the court that suitable arrangements for the offender’s supervision can be made by the local council in Scotland, and

(b) the order will satisfy paragraphs 4 and 5.

Amendment of community order where offender will reside in Scotland

2 (1) This paragraph applies where—

(a) a community order is in force,

(b) the appropriate court (within the meaning of Schedule 10) is satisfied that the offender—

(i) resides in Scotland, or

(ii) proposes to reside there, and

(c) it appears to the court that suitable arrangements for the offender’s supervision can be made by the local council in Scotland.

(2) The power of the appropriate court to amend the order under Part 4 of Schedule 10 (“the amendment power”) includes power to amend the order by requiring—

(a) the order to be complied with in Scotland, and

(b) the offender to be supervised in accordance with the arrangements referred to in sub-paragraph (1)(c).

(3) But the appropriate court may exercise the amendment power in that way only if the order (as amended) will satisfy paragraphs 4 and 5.

Requirements: availability and restrictions

3 Paragraphs 4 and 5 apply where a court makes or amends a community order in accordance with this Part of this Schedule.

4 The order must not impose—

(a) an alcohol abstinence and monitoring requirement,

(b) an attendance centre requirement, or

(c) an electronic whereabouts monitoring requirement.

5 (1) The order must not impose a locally based requirement unless it appears to the court that—

(a) arrangements exist for persons to comply with such a requirement in the locality in Scotland in which the offender resides, or will be residing at the relevant time, and

(b) provision can be made for the offender to comply with the requirement under those arrangements.

(2) For the purposes of this paragraph, “locally based requirement” means any of the following—

(a) an unpaid work requirement;

(b) a rehabilitation activity requirement;

(c) a programme requirement;

(d) a mental health treatment requirement;

(e) a drug rehabilitation requirement;

(f) an alcohol treatment requirement;

(g) an electronic compliance monitoring requirement.

Modifications of requirements etc where court exercises powers by virtue of this Part of this Schedule

6 Where a court makes or amends a community order in accordance with this Part of this Schedule, Schedule 9 (requirements) has effect as if—

(a) any reference to the responsible officer were a reference to the local authority officer concerned;

(b) the following provisions were omitted—

(i) paragraph 13(3) (residence requirement: hostel or institution not to be specified except on recommendation);

(ii) paragraph 31(2) (responsible person to be of prescribed description);

(iii) paragraph 34 (requirement not to be imposed unless Secretary of State has notified arrangements);

(c) in paragraph 16 (mental health treatment requirement), in sub-paragraph (2), for the definition of “in-patient treatment” there were substituted—

• ““in-patient treatment” means treatment as a resident patient in a hospital within the meaning of the Mental Health (Care and Treatment) (Scotland) Act 2003, not being a State hospital within the meaning of that Act;”.

PART 2 Northern Ireland

Making of community order where offender will reside in Northern Ireland

7 (1) This paragraph applies where—

(a) a community order is available to a court dealing with an offender, and

(b) the court is satisfied that the offender—

(i) resides in Northern Ireland, or

(ii) if a community order is made, will reside there when the order comes into force.

(2) The court may make a community order only if—

(a) it appears to the court that suitable arrangements for the offender’s supervision can be made by the Probation Board for Northern Ireland, and

(b) paragraphs 10 to 12 will be satisfied in relation to the order.

Amendment of community order where offender will reside in Northern Ireland

8 (1) This paragraph applies where—

(a) a community order is in force,

(b) the appropriate court (within the meaning of Schedule 10) is satisfied that the offender—

(i) resides in Northern Ireland, or

(ii) proposes to reside there, and

(c) it appears to the court that suitable arrangements for the offender’s supervision can be made by the Probation Board for Northern Ireland.

(2) The power of the appropriate court to amend the order under Part 4 of Schedule 10 (“the amendment power”) includes power to amend the order by requiring—

(a) the order to be complied with in Northern Ireland, and

(b) the offender to be supervised in accordance with the arrangements referred to in sub-paragraph (1)(c).

(3) But the appropriate court may exercise the amendment power in that way only if the order (as amended) will satisfy paragraphs 10 to 12.

Requirements: availability and restrictions

9 Paragraphs 10 to 12 apply where a court makes or amends a community order in accordance with this Part of this Schedule.

10 The order must not impose an alcohol abstinence and monitoring requirement.

11 The order must not impose an electronic whereabouts monitoring requirement unless it appears to the court that—

(a) any necessary provision can be made in the offender’s case under arrangements that exist for persons resident in Northern Ireland, and

(b) arrangements are generally operational throughout Northern Ireland (even if not always operational everywhere there) under which the offender’s whereabouts can be electronically monitored.

12 (1) The order must not impose a locally based requirement unless it appears to the court that—

(a) arrangements exist for persons to comply with such a requirement in Northern Ireland, and

(b) provision can be made for the offender to comply with the requirement under those arrangements.

(2) For the purposes of this paragraph, “locally based requirement” means any of the following—

(a) an unpaid work requirement;

(b) a rehabilitation activity requirement;

(c) a programme requirement;

(d) a mental health treatment requirement;

(e) a drug rehabilitation requirement;

(f) an alcohol treatment requirement;

(g) an attendance centre requirement;

(h) an electronic compliance monitoring requirement.

Further provision where offender resides or will reside in Northern Ireland

13 Where a court makes or amends a community order in accordance with this Part of this Schedule, Schedule 9 (requirements) has effect as if—

(a) any reference to the responsible officer were a reference to the probation officer concerned;

(b) the following provisions were omitted—

(i) paragraph 13(3) (residence requirement: hostel or institution not to be specified except on recommendation);

(ii) paragraph 31(2) (responsible person to be of prescribed description);

(iii) paragraphs 34 and 35 (electronic requirements not to be imposed unless Secretary of State has notified arrangements etc);

(c) in paragraph 16 (mental health treatment requirement), in sub-paragraph (2), for the definition of “in-patient treatment” there were substituted—

• ““in-patient treatment” means treatment (whether as an in-patient or an out-patient) at such hospital as may be specified in the order, being a hospital within the meaning of the Health and Personal Social Services (Northern Ireland) Order 1972, approved by the Department of Health for the purposes of paragraph 4(3) of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24));”;

(d) in Part 13 of that Schedule (attendance centre requirement), any reference to an attendance centre were to a day centre, as defined by paragraph 3(6) of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)).

PART 3 Making or amendment of order in accordance with Part 1 or 2 of this Schedule

Application

14 This Part of this Schedule applies in a case where a court in England and Wales makes or amends a community order in accordance with Part 1 or 2 of this Schedule.

Explanation to be given by court before order is made or amended

15 Before making or amending the community order, the court must explain to the offender in ordinary language—

(a) the effect of paragraph 20 (order to be treated as corresponding order),

(b) the requirements of the legislation relating to corresponding orders which has effect in Scotland or Northern Ireland (as the case may be),

(c) the powers of the home court under that legislation, as modified by Part 4 of this Schedule, and

(d) its own powers in relation to the community order (see Part 4 of this Schedule).

Matters to be specified in the order

16 (1) The community order must specify—

(a) the locality in Scotland in which the offender resides or will be residing at the relevant time, or

(b) that the offender resides in Northern Ireland or will be residing there at the relevant time.

(2) Sub-paragraph (1) has effect in place of section 210 (offender’s home local justice area to be specified).

(3) The community order must specify an order as the corresponding order for the purposes of this Schedule.

(4) The corresponding order must be an order that may be made—

(a) in the case of a Scottish community order, by a court in Scotland;

(b) in the case of a Northern Ireland community order, by a court in Northern Ireland.

(5) A Scottish community order which specifies as the corresponding order a community payback order within the meaning of section 227A of the Criminal Procedure (Scotland) Act 1995 must also specify the appropriate court for the purposes of sections 227A to 227ZK of that Act.

(6) That court—

(a) must be a court of summary jurisdiction having jurisdiction in the locality specified under sub-paragraph (1)(a), and

(b) must, in the case of an offender convicted on indictment, be the sheriff court.

Provision of copies

17 (1) The court which makes or amends the community order must—

(a) forthwith provide the offender with a copy of the order as made or amended, and

(b) provide the home court with—

(i) a copy of the order as made or amended, and

(ii) such other documents and information relating to the case as it considers likely to be of assistance to the home court.

(2) Where the court—

(a) makes a community order which imposes a requirement specified in column 1 of the table in sub-paragraph (3), or

(b) amends a community order so as to impose or amend such a requirement,

it must also forthwith provide the person specified in the corresponding entry in column 2 of the table with a copy of so much of the community order or amending order as relates to that requirement.

(3) The table is—

The requirement	The person to whom a copy must be provided
An exclusion requirement imposed for the purpose (or partly for the purpose) of protecting a person from being approached by the offender	The person intended to be protected
A residence requirement relating to residence in an institution	The person in charge of the institution
A mental health treatment requirement	The person specified under paragraph 16(3)(b)(iii) of Schedule 9 or the person in charge of the institution or place specified under paragraph 16(3)(b)(i) or (ii) of that Schedule
A drug rehabilitation requirement	The person in charge of the institution or place specified under paragraph 19(5)(b) or (c) of Schedule 9
An alcohol treatment requirement	The person in charge of the institution or place specified under paragraph 23(5)(c) or (d) of Schedule 9 or, in the case of practitioner-based treatment, the person specified under paragraph 23(5)(a) of that Schedule
An electronic monitoring requirement	Any person who by virtue of paragraph 31(1) of Schedule 9 will be responsible for the electronic monitoring
	Any person without whose consent the requirement could not be included in the order.

(4) This paragraph has effect in place of section 212 (provision of copies of relevant orders).

PART 4 Effect of order made or amended in accordance with Part 1 or 2 of this Schedule

Application

18 This Part of this Schedule applies where a community order has effect as made or amended in accordance with Part 1 or 2 of this Schedule.

Duty to keep in touch with responsible officer

19 (1) The offender must keep in touch—

(a) with the local authority officer concerned, in the case of a Scottish community order, or

(b) with the probation officer concerned, in the case of a Northern Ireland community order,

in accordance with such instructions as the officer may give the offender from time to time.

(2) That obligation is enforceable as if it were a requirement imposed by the community order.

(3) This paragraph has effect in place of section 215.

Order to be treated as corresponding order in certain circumstances

20 (1) The community order is to be treated as if it were a corresponding order.

(2) The relevant home legislation applies accordingly.

(3) In this Schedule, “relevant home legislation”—

(a) in relation to a Scottish community order, means the legislation relating to corresponding orders that has effect in Scotland;

(b) in relation to a Northern Ireland community order, means the legislation relating to corresponding orders that has effect in Northern Ireland.

(4) This paragraph is subject to the following provisions of this Part of this Schedule.

Exercise by home court of powers relating to corresponding orders

21 (1) The home court may exercise any relevant local power in relation to the community order, subject to the following restrictions.

(2) A “relevant local power” means a power which the home court could exercise in relation to a corresponding order by virtue of the relevant home legislation.

(3) The home court may not discharge or revoke the order.

(4) But that does not prevent the home court from exercising a power to revoke the order where—

(a) the offender has been convicted of a further offence, and

(b) the court has imposed a custodial sentence (and section 222(1) (meaning of “custodial sentence”) does not apply for this purpose).

(5) The home court may not deal with the offender for the offence in respect of which the community order was made.

(6) If the order imposes an unpaid work requirement, the home court may not vary the order so as to specify a greater number of hours in relation to the requirement than the court which made the order could specify, applying the relevant assumptions.

(7) If the order imposes a curfew requirement, the home court may not vary the order so as to specify curfew periods (within the meaning of paragraph 9 of Schedule 9) that the court which made the order could not specify, applying the relevant assumptions.

(8) For the purposes of sub-paragraphs (6) and (7), the relevant assumptions are that—

(a) the court which made the order is now making the community order, and

(b) the offender has just been convicted by or before it of the offence in respect of which the community order was made.

Power of home court to require offender to appear before court in England and Wales

22 (1) Where the home court is of the opinion that—

(a) the offender has breached any of the requirements of the order, or

(b) it would be in the interests of justice for a power conferred by Part 3 of Schedule 10 (revocation of order with or without re-sentencing) to be exercised,

the home court may require the offender to appear before the court which made the order or which last amended the order in England and Wales.

(2) The court may form an opinion within sub-paragraph (1)(a) for the purposes of this paragraph only—

(a) on information from the local authority officer concerned, if the home court is in Scotland, or

(b) upon a complaint being made to a lay magistrate, if the home court is in Northern Ireland.

(3) The court may form an opinion within sub-paragraph (1)(b) for the purposes of this paragraph only on the application—

(a) of the offender, or

(b) of—

(i) the local authority officer concerned, if the home court is in Scotland;

(ii) the probation officer concerned, if the home court is in Northern Ireland.

Home court to certify breach of requirement

23 (1) Where the home court requires the offender to appear before a court in England and Wales by virtue of paragraph 22(1)(a) (breach of a requirement of the order), the home court must send the court in England and Wales—

(a) a certificate certifying that the offender has breached a requirement of the community order specified in the certificate, and

(b) such other particulars of the case as may be desirable.

(2) A certificate under sub-paragraph (1)(a) purporting to be signed by the clerk of the home court is admissible as evidence of the breach before the court in England and Wales.

Powers of court in England and Wales where offender required to appear under paragraph 22

24 (1) This paragraph applies where under paragraph 22 the home court requires the offender to appear before a court in England and Wales.

(2) The court in England and Wales may issue a warrant for the offender’s arrest.

(3) The court in England and Wales may exercise any power which it could exercise in respect of the community order if the offender resided in England and Wales.

This is subject to paragraphs 25 and 26.

(4) Any enactment relating to the exercise of such powers has effect accordingly, with any reference in it to the responsible officer being read as a reference to—

(a) the local authority officer concerned, in the case of a Scottish community order;

(b) the probation officer concerned, in the case of a Northern Ireland community order.

25 (1) This paragraph applies where—

(a) a court in England and Wales is exercising a power in respect of a community order by virtue of paragraph 24(3), and

(b) the offender resides in Scotland.

(2) The court may not amend the community order unless, in relation to any requirement that it proposes to impose, it appears to the court that suitable arrangements for the offender’s supervision can be made by the local council in Scotland.

(3) The court may not impose—

(a) an alcohol abstinence and monitoring requirement,

(b) an attendance centre requirement, or

(c) an electronic whereabouts monitoring requirement;

(4) The court may not amend the community order to impose a locally based requirement unless it appears to the court that—

(a) arrangements exist for persons to comply with such a requirement in the locality in Scotland in which the offender resides, or will be residing at the relevant time, and

(b) provision can be made for the offender to comply with the requirement under those arrangements.

For the purposes of this paragraph, “locally based requirement” has the same meaning as it has for the purposes of paragraph 5.

(5) The following apply in relation to the amendment of the community order by virtue of paragraph 24(3) as they apply in relation to the amendment of an order in accordance with Part 1 of this Schedule—

(a) paragraph 6;

(b) paragraphs 14 to 23.

26 (1) This paragraph applies where—

(a) a court in England and Wales is exercising a power in respect of a community order by virtue of paragraph 24(3), and

(b) the offender resides in Northern Ireland.

(2) The court may not amend the community order unless, in relation to any requirement that it proposes to impose, it appears to the court that suitable arrangements for the offender’s supervision can be made by the Probation Board for Northern Ireland.

(3) The court may not impose an alcohol abstinence and monitoring requirement.

(4) The court may not amend the community order to impose an electronic whereabouts monitoring requirement unless it appears to the court that—

(a) any necessary provision can be made in the offender’s case under arrangements that exist for persons resident in Northern Ireland, and

(b) arrangements are generally operational throughout Northern Ireland (even if not always operational everywhere there) under which the offender’s whereabouts can be electronically monitored.

(5) The court may not amend the community order to impose a locally based requirement unless it appears to the court that—

(a) arrangements exist for persons to comply with such a requirement in Northern Ireland, and

(b) provision can be made for the offender to comply with the requirement under those arrangements.

For the purposes of this paragraph, “locally based requirement” has the same meaning as it has for the purposes of paragraph 12.

(6) The following apply in relation to the amendment of the community order by virtue of paragraph 24(3) as they apply in relation to the amendment of an order in accordance with Part 2 of this Schedule—

(a) paragraph 13;

(b) paragraphs 14 to 23.

PART 5 Interpretation

27 In this Schedule—

• “breach”, in relation to a requirement, means a failure to comply with it, and related expressions are to be read accordingly;

• “corresponding order”, in relation to a community order, means the order specified under paragraph 16(3);

• “home court” means—

  (a)

  if the offender resides in Scotland, or will be residing there at the relevant time, the sheriff court having jurisdiction in the locality in which the offender resides or proposes to reside, and

  (b)

  if the offender resides in Northern Ireland, or will be residing there at the relevant time, a court of summary jurisdiction;

• “the local authority officer concerned”, in relation to an offender, means the officer of a council constituted under section 2 of the Local Government etc (Scotland) Act 1994 responsible for—

  (a)

  the offender’s supervision, and

  (b)

  discharging in relation to the offender the functions of the responsible officer under sections 227A to 227ZK of the Criminal Procedure (Scotland) Act 1995;

• “the local council in Scotland” means the council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 in whose area the offender resides or will be residing at the relevant time;

• “Northern Ireland community order” means a community order made or amended in accordance with Part 2 of this Schedule;

• “the probation officer concerned”, in relation to an offender, means the probation officer responsible for—

  (a)

  the offender’s supervision, or

  (b)

  as the case may be, discharging in relation to the offender the functions conferred by Part 2 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24));

• “relevant home legislation” has the meaning given by paragraph 20(3);

• “the relevant time”, in relation to the making or amendment of an order in accordance with Part 1, 2 or 4 of this Schedule, means the time when the order or the amendment to it comes into force;

• “Scottish community order” means a community order made or amended in accordance with Part 1 of this Schedule.