#10399 - Non Custodial Sentences - BPC Criminal Litigation (formerly BPTC) 2024/2025

ABSOLUTE DISCHARGE

• all criminal courts, all ages of offender, all offences

• court decides inappropriate to inflict punishment (e.g. D not culpable)

CONDITIONAL DISCHARGE

• all criminal courts, all ages of offender, most offences

• sole condition = non-commission of offences during period fixed by court (up to 3 years)

• CANNOT combine with punitive measure for same offence

• does NOT count as conviction

Breach of conditional discharge

• only by conviction for further offence in period

• if court dealing with breach made the conditional discharge, can sentence offender for original offence as if just convicted (mags' made, CC limited to mags' powers)

• one mags' can deal with an order made by another only with consent

• mags' CANNOT re-sentence for breach of conditional discharge imposed by CC, must commit to CC

FINES

CROWN COURT

• can impose fine in addition to any other punishment except:

  • hospital order

  • conditional discharge for same offence

  • s224A, s225, s226 CJA

• must fix term of imprisonment (21+) OR detention in YOI (18-20) in default:

Maximum term in default

1-200 7 days

201-500 14 days

501-1000 28 days

1001-2500 45 days

2501-5000 3 months

5001-10,000 6 months

10,001-20,000 12 months

20,001-50,000 18 months

50,001-100,000 2 years

100,001-250,000 3 years

250,001-1 million 5 years

over 1 million 10 years

MAGS'

Adults

• summary offences

  • Maximum and guideline fines 18+

Level Max fine

1 200

2 500

3 1000

4 2500

5 5000

• either way offences (summary conviction)

  • mags' may fine up to 5000 (the prescribed sum), or whichever is greater if offence prescribes maximum penalty

• limits are per offence

  • 5 x summary offence = 25,000

Fining juveniles (under 18)

• 14 - 18 - max = 1000

• under 14 - max = 250

Financial circumstances order

1. must inquire into financial circumstances and take them into account before fixing fine (hardship OK, beyond means NOT)

2. amount must be proportionate to seriousness of offence

3. if court has insufficient financial info, may make such determination as it thinks fit (offender convicted in absence / fails to comply with financial circumstances order)

Enforcement of fines

• local mags' do all enforcement for fines imposed in mags' and CC

• payment

  • becomes due as soon as imposed

  • if offender does not have means to pay mags' may

    • allow time for payment

    • order instalments

• failure to pay

  • mags issue summons requiring offender to appear before court and produce evidence of income

  • mags' may

    • grant extra time / instalments / reduce instalments

    • remit whole or part of fine if offender's circumstances have changed OR fine imposed with inadequate info about means (need CC's consent if imposed by them)

    • order immediate imprisonment for default term (or if none, according to max period table (capped at 18 months)) if:

      • defaulter already serving custodial sentence; OR

      • imprisonable offence + means inquiry shows has means to pay immediately; OR

      • default due to wilful refusal / culpable neglect proved BRD AND repeat default

    • order suspended imprisonment, conditional on regular payments

    • order attachment of earnings / benefits - money comes out of wages / benefits

SURCHARGES

• when sentencing offender must order him to pay surcharge unless:

  • compensation order appropriate, but O has insufficient means; OR

  • absolute discharge granted

• money raised spent on V services

BIND OVER

Bind over to keep the peace

• mags, CC or CA

• D, W before court OR complainant can be bound over

• person bound over promises to pay specified sum in event of misbehaving during specified period

• court must fix: period for which person will be bound over AND amount to be forfeited in the event of default

Bind over to come up for judgment

• CC only

• D can be bound over to come up for judgment, need D's consent

• bound over on surety

• if breach, sentence kicks in AND may forfeit surety

COMMUNITY ORDERS

IMPOSING A COMMUNITY ORDER

Definition

• community order = order imposed on an offender aged 18+ for an offence committed on or after 4 April 2005, imposing 1+ community requirement

Restrictions

• can only impose if:

  1. community threshold passed: court must NOT pass unless offence(s) "serious enough to warrant"

  2. offence is punishable with imprisonment

• can impose even if custody threshold passed

• before imposing community order, court must obtain PSR unless "unnecessary" (rare)

• requirements must NOT conflict with one another

• order must:

  1. be suitable for offender;

  2. be proportionate to seriousness of offence

  3. specify local justice area in which offender resides / will reside

  4. specify end date (max 3 years after order)

• CAN'T impose community order if:

  1. sentence is fixed by law (murder)

  2. required custodial sentences for certain firearms offences

  3. life sentence for second listed offence

  4. dangerous offender

Community order requirements

• general requirements of order

• specific requirements (s177):

  1. unpaid work requirement (s199)

     • 40 - 300 hours

     • usually completed within 12 months, but remains in place till completed

     • probation: offender suitable to perform work AND local arrangements

  2. activity requirement (s201(1))

     • present self and / or take part in specified activity for certain number of days e.g. reparative activities (contact with offenders and people affected

     • max 60 days

     • probation: offender compliance feasible AND local arrangements

     • if involves co-op of another person, must get their consent first

  3. programme requirement (s202(2))

     • participation in accredited, systematic programme at specific place on certain number of days

     • address offending behaviour e.g. anger management, sex offending

  4. prohibited activity requirement (s203(1))

     • refrain from doing certain activities on specified day(s) or over specified period of time e.g. non-contact, don't carry gun

     • must first consult probation officer

  5. curfew requirement (s204) + electronic tag

     • 2 - 16 hours per day, BUT can be between 5pm - 9am

     • CANNOT go beyond period 12 months from date of order

     • must impose electronic tag too, unless court thinks inappropriate

  6. exclusion requirement (s205) + electronic tag

     • prohibits offender entering specified place(s) / area(s) during specified period

     • max 2 years

     • must impose electronic tag too, unless court thinks inappropriate

  7. residence requirement (s206(2))

     • court must first consider offender's home surroundings

     • court may not specify hostel except on probation officer's recommendation

  8. foreign travel prohibition requirement

     • cannot go beyond period or exceed 12 months from date of order

  9. mental health treatment requirement (s207)

     • resident patient in hospital or care home / non-resident patient

     • court must be satisfied

       • mental condition of offender requires and may be susceptible to treatment BUT is does NOT warrant hospital order; AND

       • arrangements (can be) made for specified treatment; AND

       • offender has expressed willingness to comply

  10. drug rehab requirement (DTTO) (s209)

      • submit to treatment and testing during specified period

      • no minimum period

      • can be resident or non-resident treatment

      • court must be satisfied

        • offender dependent on / has propensity to misuse any controlled drug; AND

        • offender requires and may be susceptible to treatment i.e. realistic prospect of reducing drug addiction; AND

        • arrangements (can be) made for treatment; AND

        • probation officer recommends suitable AND

        • offender has expressed willingness to comply; AND

        • clear evidence offender determined to get clean

      • review hearings

        • court may (must if treatment and testing period 12 months+) order offender to attend review hearings in court responsible for order in intervals of not less than one month

        • probation officer provides advance written report including results of tests, progress

        • if progress satisfactory, can order paper future reviews

        • if progress unsatisfactory and offender not present, can require attendance in future

        • on consideration of report, court can amend requirement with offender's consent

        • if offender doesn't consent court can revoke order an re-sentence as if just convicted, taking into account compliance with order

  11. alcohol treatment requirement (s212)

      • treatment with a view to reduction or elimination of alcohol dependency

      • no minimum period

      • resident or non-resident

      • court must be satisfied:

        • offender requires and may be susceptible to treatment; AND

        • arrangements (can be) made for treatment; AND

        • offender has expressed willingness to comply

  12. supervision requirement (s213)

      • attend appointments with probation officer for full duration of community order at time and place determined by officer, with view to promoting offender's rehab

  13. attendance centre requirement (s214)

      • only offenders under 25

      • 12 - 36 hours total; NOT more than once on any day or for more than 3 hours on any occasion

  14. electronic monitoring requirement (s215)

      • currently NOT freestanding

      • may be used in conjunction with any of above

      • must impose for curfew / exclusion requirements

Credit for time spent on remand

• court may give credit for time spent on remand before sentence

• should say whether or not credit given when sentence and explain why

ENFORCEMENT OF COMMUNITY ORDERS

Breach

• = failure without reasonable excuse to comply

• 1 breach warning (describe circumstances of failure, state unacceptable, inform if breaches again within next 12 months, will be brought back before court)

• warning + another breach within 12 months lay info before mags' or CC in respect of second breach

• powers of mags'

  • if breach proved to satisfaction of court, court must do one of following

    1. amend order to make more onerous, as if just making order (BUT can extend 6 months beyond end date even if exceeds 3...