- 23 Subsections (1) and (3) of section 245C of the Criminal Procedure (Scotland) Act 1995 (c. 46) (provision of remote monitoring) have effect as if they included a reference to the electronic monitoring of the requirements of a custody plus order made in accordance with paragraph 2 or a custody plus order or intermittent custody order made in accordance with paragraph 3.
- 24
- (1) Section 4 of the Summary Jurisdiction (Process) Act 1881 (c. 24) (which provides, among other things, for service in England and Wales of Scottish citations or warrants) applies to any citation or warrant issued under paragraph 17(2)(a) as it applies to a citation or warrant granted under section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46).
- (2) A summons issued by a court in Northern Ireland under paragraph 17(2)(b) may, in such circumstances as may be prescribed by rules of court, be served in England and Wales or Scotland."
§ On Question, amendment agreed to.
§ Clause 181 [Suspended sentences of imprisonment]:
§ [Amendment No.]79ZB not moved.]
§ Clause 181 agreed to.
§ Clause 182 [Imposition of requirements by suspended sentence order]:
§ [Amendments Nos. 179A and 179AA not moved] Clause 182 agreed to. Clauses 183 to 185 agreed to.
§ Baroness Scotland of Asthal moved Amendment No. 179AAA:
After Clause 185, insert the following new clause—
§ "TRANSFER OF SUSPENDED SENTENCE ORDERS TO SCOTLAND OR NORTHERN IRELAND
Schedule (Transfer of suspended sentence orders to Scotland or Northern Ireland) shall have effect."
§ The noble Baroness said: In moving this amendment I shall speak also to Amendments Nos. 254A and 179AX. These amendments enable offenders to serve their suspended sentence orders in Scotland or Northern Ireland.
§ A court can transfer a suspended sentence order at the point of sentence, or it can be amended to transfer. The court may not transfer an order unless it appears that arrangements exist for the offender to comply 394 with the requirements of the order in the area of Scotland or Northern Ireland that he wishes to transfer to, and that his supervision can be arranged. In practice, an officer of the local probation board attached to the court making the transfer phones their counterparts in the relevant area of Scotland or Northern Ireland. The receiving jurisdiction can refuse a transfer for any reason.
§ A copy of the order to transfer is sent to the local authority in Scotland or the Probation Board for Northern Ireland, which will be supervising the offender, and to the local court in the area. The local Scottish or Northern Irish court has the power to amend the order in the same way as an English or Welsh court has for ordinary suspended sentences.
§ If an offender does not comply with a requirement of their suspended sentence order, the local court in Scotland or Northern Ireland will hold a breach hearing and determine if there has been a breach. If there has, it will send a breach certificate to the court in England and Wales that made the transfer. The local court also has the option to ask the transferring court in England and Wales to determine if there has been a breach. In either case, it is the transferring court in England and Wales that deals with the breach. It cannot re-examine the question of whether a breach has occurred. The court has all the powers in Schedule 10 available to it in the case of breach, just as for ordinary suspended sentences. In most cases, the response to a breach will be the activation of the suspended sentence of imprisonment. I beg to move.
Lord RentonI am rather puzzled. Amendment No. 179AX seeks to insert a new schedule after Schedule 10 which relates to the transfer of suspended sentence orders to Scotland or Northern Ireland. That presumably means a transfer from a court in England or Wales to Scotland or Northern Ireland. It states that where the court in England or Wales considering the making of a suspended sentence order,
is satisfied that the offender resides in Scotland, or will reside there when the order comes into force, the court may not make a suspended sentence order in respect of the offender unless it appears to the court—and this is the point that worries me—
(a) in the case of an order imposing a requirement mentioned in sub-paragraph (2)"—that is the next paragraph in the new schedule—
that arrangements exist for persons to comply with such a requirement in the locality in Scotland in which the offender resides, or will be residing when the order comes into force, and that provision can be made for him to comply with the requirement under those arrangements".It seems to me that a court in England or Wales will have to make inquiry into the circumstances in perhaps a very remote part of Scotland. That is an unusual and a rather difficult task for a court in England and Wales.I should be grateful if the noble Baroness could indicate, first, whether I have raised a point of practical possibility—I think it must be—and, if it is, how the English court will inquire into the 395 circumstances in Scotland? Presumably it must get in touch with the Scottish courts or the Scottish police. What will happen?
§ Baroness Scotland of AsthalI hoped that I had made that clear in my initial response. However, I am very happy to repeat it. The benefits of the telephone have never been in greater evidence than in this case. I said that what will happen in practice is that an officer of the local probation board attached to the court making the transfer would phone his counterpart in the relevant area of Scotland or Northern Ireland and make inquiry as to whether there are appropriate facilities available for him to discharge his duty. The transfer does not have to be accepted. It is clear that the receiving jurisdiction can refuse a transfer for any reason, but appropriate attempts can be made to ascertain that fact.
This is designed to assist the position, which often occurs, where someone who has hitherto been resident in this country—but who may hail from Scotland or Northern Ireland, or may have family commitments there or may get a job there—wishes to transfer to live in either Scotland or Northern Ireland and seeks assistance so to do. It is a practical matter. We have brought forward Amendments Nos. 179AAA, 179AX and 254 to put in place the practical arrangements to ensure that these transfers are achieved with the greatest amount of ease.
On Question, amendment agreed to.
Schedule 10 [Breach or amendment of suspended sentence order, and effect of further conviction]:
§ Baroness Scotland of Asthal moved Amendment No. 179AB:
Page 241, line 21, at end insert—
§
"Orders made on appeal
2A Where a suspended sentence order is made on appeal it is to be taken for the purposes of this Schedule to have been made by the Crown Court."
§ The noble Baroness said: In moving Amendment No. 179AB, I shall speak also to the other amendments standing in my name in relation to Schedule 10, which concerns the breach, amendment and revocation of suspended sentence orders. These are a set of minor and technical amendments. Amendment No. 179AB provides that an order made on appeal is to be considered to be made by the Crown Court. This is normal practice and replaces the provision for community sentences. Amendments Nos. 179AC and 179AD are consequential amendments to Amendment No. 179AB.
§ Amendments Nos. 179AC to 179AH, 179AL and 179AT correct a drafting oversight which had ignored the possibility of a Crown Court making a suspended sentence order but directing that any failure to comply should be dealt with by a magistrates' court. Therefore, a number of references to an order which is made by the Crown Court need to be changed to an order,
"which is made by the Crown Court and does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court".396
§ Amendment No. 179AL allows the magistrates’ court to commit the offender to the Crown Court in a case of breach.
§ Amendment No. 179AJ corrects a drafting error. A reference to an incorrect subsection number has been corrected.
§ Amendment No. 179AK concerns the powers available to the court on breach of a suspended sentence. Amendments Nos. 179AM and 179AN correct another oversight; they ensure that if an offender breaches a suspended sentence by not complying with the requirement, the breach is determined by the court and not a jury if the breach is heard in a Crown Court. As drafted, this applied only to a case where an offender breached by committing a new offence.
§ Amendment No. 179AP corrects another oversight; it ensures that amendments to treatment requirements have to be made with the consent of the offender. Amendment No. 179AS omits a duplicated provision. Amendments Nos. 179AB and 179AJ slightly change the definition of the court to which the application must be made to extend an unpaid work requirement beyond 12 months. It is changed from,
"a magistrates’ court acting for the petty sessions area concerned"
§ to "the appropriate court" so that it can also apply to suspended sentences orders transferred to Scotland and Northern Ireland, in which case the appropriate court is the local Scottish or Northern Irish court.
§ Amendment No. 179AF replicates a provision in the community orders schedule, such that applications can be made by the responsible officer to amend treatment requirements while an appeal against the order is pending. No other amendment applications can be made while an appeal against the order is pending. I beg to move.
§ On Question, amendment agreed to.
§ Baroness Scotland of Asthal moved Amendments Nos. 179AC to 179AW:
Page 242, line 1, leave out "made by the Crown Court" and insert "which is made by the Crown Court and does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court"
Page 242, line 15, leave out "made by the Crown Court" and insert "which is made by the Crown Court and does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court"
Page 242, line 18, at end insert—
"( ) This paragraph applies to—
- (a) a suspended sentence order made by a magistrates' court, or
- (b) any suspended sentence order which was made by the Crown Court and includes a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court."
Page 242, line 19, leave out from "order" to "it" in line 20 and insert "to which this paragraph applies is in force"
Page 242, line 38, at end insert—397
"( ) This paragraph applies to a suspended sentence order made by the Crown Court which does not include a direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates’ court."
Page 242. line 39, leave out from "order" to "it" in line 40 and insert "to which this paragraph applies is in force"
Page 243, line 13, leave out "184(5)" and insert "184(6)"
Page 243, line 37, leave out paragraphs (ii) and (iii) and insert—
- "(ii) subject to subsections (3) and (4) of section 181, extending the supervision period, or
- (iii) subject to subsection (3) of that section, extending the operational period."
Page 244, line 4, at end insert—
- "(6) Where a suspended sentence order was made by the Crown Court and a magistrates’ court would (apart from this sub-paragraph) be required to deal with the offender under sub-paragraph (2)(a), (b) or (c) it may instead commit him to custody or release him on bail until he can be brought or appear before the Crown Court.
- (7) A magistrates’ court which deals with an offender's case under sub-paragraph (6) must send to the Crown Court—
- (a) a certificate signed by a justice of the peace certifying that the offender has failed to comply with the requirements of the community order in the respect specified in the certificate, and
- (b) such other particulars of the case as may be desirable;
- and a certificate purporting to be so signed is admissible as evidence of the failure before the Crown Court."
Page 244, line 4, at end insert—
- "(8) In proceedings before the Crown Court under this paragraph any question whether the offender has failed to comply with the requirements of the suspended sentence order and any question whether the offender has been convicted of an offence committed during the operational period of the suspended sentence is to be determined by the court and not by the verdict of a jury."
Page 244, line 15, leave out sub-paragraph (3).
Page 244, line 35, at end insert—
"(2) A court may not under paragraph 7(2)(c)(i) amend a mental health treatment requirement, a drug rehabilitation requirement or an alcohol treatment requirement unless the offender expresses his willingness to comply with the requirement as amended."
Page 245, line 3, leave out sub-paragraph (3).
Page 245, line 37, leave out sub-paragraph (6).
Page 246, line 6, leave out sub-paragraph (3).
Page 246, line 11, leave out "made by the Crown Court" and insert "which was made by the Crown Court and does not include any direction that any failure to comply with the community requirements of the order is to be dealt with by a magistrates' court"
Page 248, line 13, leave out from "to" to "that" in line 14 and insert "the appropriate court"
Page 248, line 17, at end insert—
"(2) In this paragraph "the appropriate court" has the same meaning as in paragraph 12."
Page 248, line 21, at end insert—
"(2) Sub-paragraph (1) does not apply to an application under paragraph 14 which—
- (a) relates to a mental health treatment requirement, a drug rehabilitation requirement or an alcohol treatment requirement, and
- (b) is made by the responsible officer with the consent of the offender."
§ On Question, amendments agreed to. Schedule 10, as amended, agreed to.
§ Baroness Scotland of Asthal moved Amendment No. 179 AX: After Schedule 10, insert the following new schedule—
§ "TRANSFER OF SUSPENDED SENTENCE ORDERS TO SCOTLAND OR NORTHERN IRELAND