A more recent version of these Community Penalties And Payment By Results notes – written by Oxford students – is available here.
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OVERVIEW OF STATUTORY REGIME CRIMINAL JUSTICE ACT 2003 Halliday Report (2001)-
Existing law was too complex o Too many different types of community orders with different restrictions Difficult to place in the hierarchy o Viewed as being less serious than imprisonment, but had very onerous conditions and breach could result in custody o Community sentences could only be used under CJA 1991 if the offence was too serious for fines Difficult to rank the "punitive weight" of different community sentences in order to ensure proportionality Viewed by the public as "insufficiently punitive or protective of communities"
The single Community SentenceCJA 2003 introduced a single sentence with different requirements that can be imposed
S148(1): the offence (or in combination with associated offences) must be serious enough to warrant a community sentence o Shouldn't be used for minor cases, which can be dealt with via discharge or fine o BUT allows for fines to be used even where the threshold for community sentences is passed o Sentencing guidelines usually divide them into low, medium and high community orders based on seriousness of the offence S151: court can impose a community sentence on an offender who has been fined on 3 or more occasions since the age of 16 even if the current offence doesn't meet the threshold o If it is in the interests of justice to impose a community sentence
12 POSSIBLE REQUIREMENTS-
Unpaid work requirement (s199) o Required to perform 40-300 hours of work to be carried out within 12 months o Principles
? Cheaper alternative to imprisonment
? Symbolic reparation to the community
? Allows them to be supported within the community during the sentence o Type of work is determined by probation service o Most common single requirement used in 2007 community orders
? Usually for offenders with fewer problems (e.g. addictions and disorders) Activity requirement (s201)
Offender can be required to participate in specified activities for up to 60 days, usually at a community rehabilitation centre o Only if the probation officer has been consulted and court satisfied that compliance is feasible Programme requirement (s202) o Offender can be required to participate in an accredited programme o Only if a probation officer has recommended the programme as being suitable
? e.g. Reasoning and Rehabilitation, Think First, anger management o 3rd most frequently used requirement in 2007, usually combined with others Prohibited activity requirement (s203) o Prohibits the offender from participating in specified activities for a certain period or on specific days (e.g. banned from driving) o Probation officer must be consulted o Hardly used Curfew requirement (s204) o Maximum period of 6 months o Must be imposed with an electronic monitoring requirement unless an exception applies (e.g. inappropriate in these circumstances)
? Useful in disrupting "pattern offending" o Hucklesby (2008): curfews can be rehabilitative
? Of limited incapacitative effect
? Combined with supervision requirement, can help offenders to disengage from habits and criminal networks (although difficult to align curfews with employment hours) Exclusion requirement (s205) o Offender banned from entering a specific place for up to 2 years (similar to ASBO) Residence requirement (s206) o Can only specify a hostel or institution if recommended by a probation officer o Could be required to stay at home or with a relative Mental health treatment requirement (s207-208) Drug rehabilitation requirement (s209-211) o Offender required to submit to drug treatment and testing for at least 6 months o Only applicable if offender has a treatable dependency on drugs o Might be used for rehabilitative purposes even if the custody threshold is passed Alcohol treatment requirement (s212) o Similar to drug rehabilitation requirement except without testing o Treatment programmes usually funded by NHS so not widely available Supervision requirement (s213) o Effectively replaces the probation order o Most used requirement (>1/3) in 2007, can be combined with other requirements o Usually used for offenders with past convictions who were unemployed o National Probation Service will categorise offenders into 4 tiers according to their degree of risk, with stricter and more frequent supervision for the higher tiers Attendance centre requirement (s214) o Offender can be required to attend at an attendance centre for between 12-36 hrs o Can only be used for offenders under 25 o----
PROPORTIONALITY WHEN IMPOSING REQUIREMENTS--
S148(2): restrictions on liberty must be "commensurate with the seriousness of the offence" o The requirements must also be the "most suitable" for the offender Courts should ask for a pre-sentence report after deciding to give a community sentence o Court has an obligation to indicate the purpose(s) it seeks to achieve (e.g. rehabilitation, punishment, protection of the public) Low range orders are most appropriate for offences below the s148 threshold o i.e. those imposed via s151 Medium range community sentences are primarily for theft offences High range community sentences are appropriate for offences around the custody threshold o SGC (2004): can be imposed "for an offence that passes the custody threshold where the court considers that to be appropriate" Offenders can be given more than one successive community sentence o Having completed a community sentence doesn't make them ineligible for further community sentences (especially since different requirements can be imposed)
DEALING WITH BREACH (SCH 8)--
Offender Manager can choose to give a warning instead of initiating breach proceedings on the first breach, but must initiate proceedings for the second breach SGC guidelines: primary objective of the Court in breach proceedings is to ensure that sentence requirements are finished o Can either amend the community order to add more onerous requirements or revoke the order and sentence for the original offence o If there was wilful and persistent lack of compliance, must impose prison sentence of up to 51 weeks (taking into account any part performance) Custody should be a last resort, but is permitted in all breach cases and is compulsory for wilful and persistent breach o ISSUE: the original offence may not have been imprisonable In 2007, 47% of community orders were completed
ISSUE (Ashworth): CJA 2003 has resulted in up-tariffingOffenders who would have received fines or discharges now receive community sentences
TRENDS IN USE OF COMMUNITY ORDERS Most COs are made in magistrates' courts52% are for summary offences (increased use compared to previous community sentences) Since 2005, the average length of community orders has decreased from 22 to
14.9 months 85% have between 1 and 2 requirements, average of 1.7 requirements per order o Suspended sentences are used for more serious offences and have an average of 1.9 o No sign of overloading of requirements
Use of requirements-
Supervision and accredited programmes have decreased Unpaid work and curfew orders have increased Supervision, unpaid work, accreditation programme, drug treatment and curfew requirements make up 95% or requirements used in Community Orders o Some of the other requirements (e.g. mental health, alcohol treatment) may not be available locally and cannot be used o Pre-sentencing reports: probation officers may prefer to recommend familiar requirements or may not even know of new ones that are available Lack of consistency in assigning requirements amongst geographical areas
Increase in prison population suggests that there was no diversion from custody-
No significant decrease in use of short (<12 months) custodial orders o Even though this was the category of custodial orders the CO was meant to replace Number of Tier 1 community orders has been increasing IMPLICTION: possible that this indicates up-tariffing for minor offenders instead of replacing borderline custodial cases?
COMPLIANCE LIQUID LEGITIMACY AND COMMUNITY SANCTIONS, MCNEILL AND ROBINSON, 2013-
Offenders' views of community sanctions shift over time, hence it is "liquid legitimacy" In order to be effective, community sentences require compliance from the offender o They are less likely to comply if they do not see the sentences as legitimate Probation officers and social workers are key players in their interactions with offenders
Hucklesby: non-compliance by offenders isn't always plannedThey need a "multi-dimensional and individualized approach to help them develop the life skills to comply"
Family and friends play a role in encouraging compliance
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