Criminal law

Breach proceedings

The number of occasions on which defendants are breached for failure to comply with community orders is one of the principal reasons for the increase in the grant rate of representation orders.

It is important to identify the powers of a court in the event of a breach of a particular community order.

In most cases this amounts to a power to impose a defined new penalty while maintaining the existing order or to re-sentence for the original offence.

Only in two cases where there has been a wilful and persistent breach of the terms of a community order is there power to impose a custodial sentence for the breach itself (rather than technically for the original offence).

Particular care needs to be paid to the situation where the court is proposing to re-sentence for the original crime.

In normal circumstances, the court would have ruled out a custodial sentence at the time of the original hearing.

Therefore, it cannot impose a custodial sentence on breach as a crime cannot become more serious because a community penalty is not observed.

However, attention needs to be paid to the decision of the Court of Appeal in R v Oliver and Little [1993] 2 ALL ER 9.

In that case, the defendants had originally received community penalties but on breach a custodial sentence was imposed.

The defence argued, on appeal, that this must be wrong as the case had not been so serious that only a custodial sentence would suffice.

However, the court held that in the particular circumstances of the case, the facts had passed the custodial threshold and it was only the strong personal mitigation which enabled the court initially to pass a community penalty.

The benefit of that personal mitigation was lost on breach of the community order.

The court was then empowered to impose the custodial sentence which had always been appropriate.

Solicitors will need to pay particular attention to the words used by a court at the time the sentence was originally imposed.

If the court had at any time ruled out custody, or not held open the possibility, it would not be possible to impose a custodial sentence on breach.

In all situations on breach, the court is required to have regard to the reasons for breach which may present mitigating factors and the extent to which the defendant has already complied with the community order as this must be reflected in the eventual sentence imposed.

The powers of the courts on breach are set out in the schedules to the Powers of Criminal Courts (Sentencing) Act 2000.

They may be summarised as follows: schedule 1 (youth referral orders) - power to re-sentence.

Schedule 3 (curfew) community rehabilitation - community punishment - community punishment and rehabilitation and drug treatment and testing orders:

- Fine - not exceeding 1,000;

- In defined circumstances, a community punishment order;

- In defined circumstances, an attendance centre order;

- Power to re-sentence.

However, in this case if there is a wilful and persistent failure to comply with the requirements of any such order the court may impose a custodial sentence but only if the original offence was imprisonable.

Schedule 5 (attendance centre orders):

- A fine not exceeding 1,000;

- To re-sentence.

In this case also, if the offender wilfully and persistently fails to comply with the order a custodial sentence may be imposed.

Schedule 7 (supervision orders and schedule 8) action plan orders and reparation orders:

- Fine not exceeding 1,000;

- A curfew order;

- An attendance centre order;

- Power to re-sentence.

By Anthony Edwards, TV Edwards, London