Section 2 and Schedule 2: Breach, revocation or amendment of youth rehabilitation orders.

144.     This section introduces Schedule 2 which sets out procedures relating to the enforcement, revocation or amendment of YROs.

145.     Paragraph 1(2) of Schedule 2 provides that a breach of attendance centre rules counts as a breach of a YRO which imposes an attendance centre requirement. Part 2 of Schedule 2 deals with breaches of the requirements of a YRO. Under paragraph 3(1) of Schedule 2, if an offender's responsible officer is of the opinion that the offender has failed to comply with a YRO without reasonable excuse, he or she must give the offender a warning or start enforcement proceedings. Paragraph 3(2) sets out the contents of this warning, i.e. a description of the failure and that it is unacceptable, and that two further breaches during the "warned period" of 12 months from the date of the warning will make the offender liable to enforcement proceedings. Paragraph 3(4) defines the "warned period" as a period of 12 months beginning with the date on which the warning was given.

146.     Paragraph 4(1) of Schedule 2 requires the responsible officer to start court enforcement proceedings if the offender has failed to comply with the requirements of the order and has been given two previous warnings during a 12 month period. However, paragraph 4(2) states that the responsible officer may stay breach proceedings in exceptional circumstances even where two previous warnings have already been given. Paragraph 4(3) states that the responsible officer may start court enforcement proceedings without having previously issued warnings to the offender if, for example, the breach is particularly serious.

147.     Paragraph 5 of Schedule 2 sets out the procedure for a justice of the peace to issue a summons requiring the attendance of the offender at court (or a warrant for his arrest) if it appears that he has failed to comply with any of the requirements of a YRO. Failure to answer a summons can lead to the issue of a warrant for the offender's arrest (paragraph 5(7)).

148.     Paragraph 6 of Schedule 2 sets out the ways in which a youth court or other magistrates' court may deal with a breach when satisfied that the offender has failed to comply with the YRO. It may deal with him or her in one of those ways if the order is still in force. It can order him to pay a fine not exceeding £250 for offenders under the age of 14, or £1,000 in any other case. It can amend the order by adding or substituting requirements subject to the limitations set out in sub-paragraphs (6) to (9). It can deal with the offender in respect of the offence for which the order was made, in any way in which the court could have originally dealt with the offender. The court must take into account the extent to which the offender has complied with the order. The court may not, if it amends the YRO (rather than re-sentences the offender) impose an order with intensive supervision and surveillance or with fostering if the order did not already impose such a requirement.

149.     If the court decides to re-sentence, it must revoke the original order if it is still in force. If the court is re-sentencing and the offender has wilfully and persistently failed to comply with a YRO, the court may under sub-paragraphs (13) to (15) be able to impose a YRO with intensive supervision and surveillance or a custodial sentence, even if it could not have done so for the original offence. An offender can appeal where the court re-sentences for the original offence.

150.     Paragraph 7 of Schedule 2 sets out magistrates' court powers to refer offenders in breach of a YRO to the Crown Court. If the YRO was made by a Crown Court, the magistrates' court may refer the offender to a Crown Court. The offender can be remanded in custody until brought before the Crown Court. In these cases the magistrates' court must send the Crown Court details of the failure to comply with the order.

151.     Paragraph 8 of Schedule 2 sets out the Crown Court's powers to deal with failure to comply with a relevant YRO, whether dealt with directly or on committal from a magistrates' court under paragraph 7.

152.     Paragraph 9 of Schedule 2 provides that reasonable refusal to undergo surgical, electrical or other treatment as part of mental health or drug treatment requirement or an intoxicating substance treatment is not to be treated as a breach of the order.

153.     Paragraph 10 of Schedule 2 confers on the Secretary of State order-making powers to amend the maximum limit of fines specified in paragraphs 6 and 8 for breach of an order to take account of inflation. An order made under this paragraph is subject to the negative resolution procedure.

154.     Part 3 of Schedule 2 deals with the revocation of a YRO. Under paragraph 11 either the offender or the responsible officer may apply to a youth court or other magistrates' court to have the order revoked, due to circumstances that have arisen since the order was made. An example might be if the offender has become very ill and is unable to complete the requirements. The court can revoke the order or revoke it and re-sentence the offender as if he has just been convicted. If the court re-sentences it must take into account the extent to which the offender complied with the original order and the offender can appeal.

155.     Paragraph 12 of Schedule 2 gives similar powers to the Crown Court in the case of orders it has made which do not contain a direction that further proceedings are to be in the magistrates' court.

156.     Part 4 of Schedule 2 deals with the amendment of YROs. Paragraph 13 enables YROs to be amended by youth courts and other magistrates' courts. A change of residence may necessitate amendment of the order to refer to an alternative local justice area. The change may be made on application by either the offender or his responsible officer. The appropriate court may generally amend or cancel any requirements of the order and where the offender moves, must do so for requirements that are not available in the area to which he or she is to move. The appropriate court will be the youth court in the local justice area specified in the YRO or if the offender is over 18 at the time a magistrates court in that area.

157.     Paragraph 14 of Schedule 2 gives similar powers to the Crown Court in the case of orders it has made which do not contain a direction that further proceedings are to be in the magistrates' court.

158.     Paragraph 15 of Schedule 2 limits the court's power to amend the requirements of a YRO on change of the offender's address, to ensure that any new requirements can be complied with in the offender's new area of residence.

159.     Paragraph 16 of Schedule 2 deals with the possible effects of amendments to requirements on other parts of the order. If the court substitutes a new fostering requirement, the new requirement can last for 18 months from the date of the original fostering requirement instead of 12. The court may not amend the YRO by imposing a mental health treatment requirement, drug testing or drug treatment requirement without the offender's expression of willingness to comply with the requirement. If the offender fails to express his willingness to comply with any of the above three requirements, the court may either revoke the order or re-sentence - in either case the court must take into account the extent to which the offender has complied with the requirements of the order.

160.     Under paragraph 17 of Schedule 2 the court may, on application by the offender or responsible officer, extend the maximum 12 month period in which any unpaid work has to be performed if it appears to be in the interests of justice to do so having regard to changes in circumstances.

161.     Part 5 of Schedule 2 deals with the powers of courts in relation to a YRO where the offender is subsequently convicted for another offence. Paragraph 18 sets out what a youth court or magistrates' court convicting for the subsequent offence can do in this situation. It may, if it appears to the court to be in the interests of justice, revoke the order and re-sentence the offender for the original offence as if he had just been convicted of it. If it re-sentences him, the court must take into account the extent to which the offender complied with the order. The offender has a right of appeal if the court re-sentences. If the youth court or magistrates' court convicting for the subsequent offence is dealing with the new offence but the YRO was made in the Crown Court, it can refer the offender to the Crown Court.

162.     Paragraph 19 makes similar provision in relation to the powers of a Crown Court following conviction of a subsequent offence.

163.     Part 6 of Schedule 2 contains supplementary provisions about the court's powers and duties under Parts 2-5 of that Schedule including bringing the offender before the court; powers to remand and adjourn; and the provision of copies

164.     Paragraph 25 of Schedule 2 gives the Secretary of State power to amend the maximum length of a fostering requirement. An order under this paragraph is subject to the affirmative resolution procedure.

Section 3 and Schedule 3: transfer of youth rehabilitation orders to Northern Ireland.

165.     Section 3 introduces Schedule 3, which sets out the procedure for transferring YROs to Northern Ireland.

166.     Part 1 of Schedule 3 concerns the making or amendment of a YRO where an offender resides or will reside in Northern Ireland.

167.     Paragraphs 1 and 2 of Schedule 3 define the circumstances in which a court may make or amend a YRO where the offender resides or proposes to reside in Northern Ireland. The court must be satisfied that the requirements of the YRO do not exceed the requirements that may be imposed in a corresponding order made by a court in Northern Ireland. The court must also be satisfied that suitable arrangements for the offender's supervision can be made in Northern Ireland and, where appropriate, that provision can be made for the offender to comply with the requirements of the YRO in the locality in Northern Ireland where he proposes to live. The court may not require a local authority residence requirement or a fostering requirement to be complied with in Northern Ireland.

168.     Under paragraph 3 of Schedule 3 when an order is made or amended where the offender resides or proposes to reside in Northern Ireland, the order must specify the petty sessions district in Northern Ireland in which the offender resides or will be residing when the order or amendment is made.

169.     A YRO made or amended under Part 1 of Schedule 3 will have effect as if it were a corresponding order made by a court in Northern Ireland (see paragraph 9). The YRO must specify the corresponding Northern Ireland order and, before making the YRO, the court must explain to the offender the requirements of Northern Ireland law relating to the corresponding order and the relevant powers of the courts.

170.     Paragraph 5 of Schedule 3 modifies the provisions in Part 1 of the Act so that they are relevant to Northern Ireland. In particular, it provides that references to the responsible officer have effect as references to the person who is to be responsible for the offender's supervision under the order, ie. for the performance of supervisory, enforcement or other related functions under the relevant Northern Ireland legislation (see paragraph 6)

171.     Part 2 of Schedule 3 applies where an order has been made or amended under Part 1. Paragraph 9 sets out the effect of a YRO in Northern Ireland and paragraph 10 has the effect that the offender must keep in touch with the person responsible for his or her supervision in Northern Ireland.

172.     Paragraph 11 of Schedule 3 provides the Crown Court in Northern Ireland with the power to direct that proceedings in Northern Ireland be before the appropriate court of summary jurisdiction in Northern Ireland where the YRO has been made or amended by the Crown Court.

173.     Paragraph 12 provides that, where a YRO has been transferred to Northern Ireland, the court in Northern Ireland (the "home court") may, subject to a number of exceptions, exercise any power which it could exercise in relation to a corresponding order in Northern Ireland. Paragraph 13 gives the home court the power to require an offender to appear before the relevant court in England or Wales. The power may be exercised if it appears to the home court that the offender has failed to comply with one or more of the requirements of the order, in which case the home court must send a certificate specifying the failure, together with other details of the case, to the court in England and Wales (see paragraph 14). The power may also be exercised if the home court considers that it would be in the interests of justice for the court in England and Wales to exercise its powers under Schedule 2 to revoke or amend the order.

174.     Paragraph 15 of Schedule 3 sets out the powers available to a court in England or Wales where an offender is required to appear before it by virtue of paragraph 13. The court may issue a warrant for the offender's arrest and it may exercise any power which it could exercise under the YRO if the offender resided in England or Wales. Paragraph 16 provides that the court in England and Wales cannot amend the YRO unless provision can be made for the offender to comply with the amended provisions in Northern Ireland and that arrangements for supervision can be made.

175.     Paragraph 17 of Schedule 3 provides that, if the law in Northern Ireland changes to make further types of orders available to courts in Northern Ireland dealing with offenders aged under 18 at the time of conviction, the Secretary of State may by order (subject to the negative resolution procedure) make appropriate amendments to Schedule 3

Section 4: Meaning of "the responsible officer"

176.     This section defines who the responsible officer is in relation to a YRO. Under subsection (1), where the order only imposes a curfew requirement or exclusion requirement together with an electronic monitoring requirement, the responsible officer will be the person responsible for the electronic monitoring. In a case where the only requirement is an attendance centre requirement the responsible officer will be the officer in charge of the attendance centre. In any other case the responsible officer will be a member of a youth offending team or an officer of a local probation board or an officer of a provider of probation services. Subsection (3) gives the Secretary of State order-making powers (subject to the affirmative resolution procedure) to amend subsections (1) and (2) and, where necessary or expedient, make any consequential changes as a result to other provisions of Part 1 of this Act or Chapter 1 of Part 12 of the 2003 Act (general provisions about sentencing). Subsection (4) provides that such an order may provide for the court to decide in individual cases which description of "responsible officer" is to apply. Any such order is subject to the affirmative resolution procedure

Section 5: Responsible officer and offender: duties in relation to the other

177.     Section 5 establishes the statutory duties of the responsible officer and offender in relation to each other. Under subsection (1) the responsible officer must make any necessary arrangements for the offender to fulfil the requirements of the order, promote the offender's compliance with the requirements, and take enforcement action in the case of non-compliance. Subsection (2) makes an exception for responsible officers who are electronic monitoring providers. Subsection (3) provides that in giving instructions in relation to the YRO the responsible officer must ensure, as far as practicable, that any instruction avoids any conflict with an offender's religious beliefs, with his attendance at school or at any other educational establishment or with the requirements of any other YRO to which he is subject. Subsection (4) provides the Secretary of State with an order-making power (subject to the negative resolution procedure) to add to the restrictions in subsection (3). Under subsection (5) an offender must keep in touch with his responsible officer, in accordance with any instructions in that regard from the responsible officer. The offender must also notify the responsible officer of any change of residence. Under subsection (6), if the offender does not keep in touch as required, or if he changes his residence without notifying the responsible officer, he or she is liable to breach proceedings.

Section 6 and Schedule 4: Abolition of certain youth orders and related amendments

178.     Section 6 abolishes five existing community sentences for young offenders namely, curfew orders, attendance centre orders, exclusion orders, supervision orders and action plan orders, which will be replaced by the YRO. The section also introduces Schedule 4, which makes consequential amendments to other legislation. Paragraph 80 of Schedule 4 amends section 174 of the 2003 Act imposing an additional requirement on the courts when passing a custodial sentence on an offender aged under 18. The court is already required, when imposing a discretionary custodial sentence, to explain why it is of the opinion that the matter is so serious that neither a fine alone nor a community sentence can be justified for the offence. This additional requirement means that when passing a discretionary custodial sentence on an offender under the age of 18, the court must also include a statement that it is of the opinion that the imposition of a youth rehabilitation order with intensive supervision and surveillance or fostering cannot be justified, and why it is of that opinion.

Section 7: Youth rehabilitation orders: interpretation

179.     This section defines various terms for the purposes of Part 1.

Section 8: Isles of Scilly

180.     This section provides for Part 1 to have effect in the Isles of Scilly with such exceptions, adaptations and modifications as the Secretary of State may specify by order (subject to the negative resolution procedure).

Part 2: Sentencing

Section 9: Purposes etc of sentencing: offenders under 18

181.     This section complements section 142 of the 2003 Act which sets out the purposes of adult sentencing.

182.     Subsection (1) inserts a new section 142A into the 2003 Act setting out the purposes of sentencing for offenders under the age of 18 years. The new section requires the court when dealing with an offender to have regard to:

• the principal aim of the youth justice system (which is to prevent offending or re-offending by persons aged under 18),

• the welfare of the offender in accordance with section 44 of the Children and Young Persons Act 1933, and

• the following purposes of sentencing:

• the punishment of offenders,

• the reform and rehabilitation of offenders,

• the protection of the public, and

• the making of reparation by offenders to persons affected by their offences.

183.     New section 142A(4) sets out the circumstances in which that section does not apply, namely:

• where the sentence for the offence is fixed by law (eg a mandatory sentence of detention imposed for murder);

• where offences require certain custodial sentences (i.e certain firearms offences; in certain offences of using someone to mind a weapon; and certain serious, violent or sexual offences to which sections 226 or 228 of the 2003 Act applies); and

• where certain orders are made under the Mental Health Act 1983.

184.     Subsection (2) amends section 142 of the 2003 Act to ensure that where young people reach their 18th birthday before being sentenced the courts have regard to the adult purposes of sentencing.

185.     Subsection (3) amends section 44 of the Children and Young People Act 1933, which requires courts to have regard to the welfare of a child or young person brought before it, so that the court also has regard to the other matters mentioned in the new section 142A of the 2003 Act.

186.     Subsection (4) amends section 42(1) of the 1998 Act, (interpretation of Part 3 of the Act) to include a definition of offending as including re-offending.

Section 10: Effect of restriction on imposing community sentences

187.     Section 10 amends section 148 of the 2003 Act, which makes provision as to when it is appropriate to impose a community sentence. It provides that nothing in section 148 requires the court to impose a community sentence even though the offence is serious enough to justify such a sentence. It similarly provides that there is no requirement to impose restrictions on liberty as part of such a sentence just because section 148 provides a power to do so.

Section 11: Restriction on power to make a community order

188.     This section provides that the community order is available to the courts as a sentencing option only for offences where the court can impose imprisonment or for persistent offenders who have previously been fined three or more times, even though the current offence does not justify a community sentence.

189.     Subsection (1) adds a new section 150A to the 2003 Act. A court may make a community order only where the offence is punishable with imprisonment or where section 151(2) of the Act as amended by the section confers such a power. Section 151(2) provides a power to make a community order where an offender has, since the age of 16, received three or more sentences comprising only a fine. Section 150A also provides that for these purposes an either-way offence is to be regarded as punishable with imprisonment if the sentencing court has the power to impose custody for the offence.

190.     Subsections (2) to (7) amend section 151 of the 2003 Act. Read together with amendments to section 151 in Schedule 4 related to youth rehabilitation orders, the restriction on making community orders in cases where the current offence is not imprisonable is limited to persons over the age of 18.

191.     Subsection (3) adds a new subsection (A1) to section 151 making it clear that section 151(2) operates in two cases: where the particular offence before the court is imprisonable, but not serious enough to warrant a community sentence; and where the offence is not imprisonable. In neither case would a community order be available without the operation of section 151 in future.

192.     Subsection (4) amends section 151(1) so that it operates on imprisonable offences and subsection (5) adds a new subsection 151(1A) which makes corresponding provision for non-imprisonable offences.

Section 12: Pre-sentence reports

193.     Section 12 inserts a new subsection (1A) and (1B) into section 158 of the 2003 Act, which defines what a pre-sentence report is. New subsection (1A) makes it clear that, subject to any rules made by the Secretary of State under section (1)(b) of section 158, the court may accept an oral pre-sentence report. However, where a pre-sentence report relates to an offender under 18 years of age and the court is required to obtain and consider a pre-sentence report before the court forms an opinion under section 156(3)(a) - as to whether a discretionary custodial sentence should be imposed - new subsection (1B) provides that such a pre-sentence report must be in writing.

Section 13: Sentences of imprisonment for public protection

194.     Section 13 amends section 225 of the 2003 Act (life sentence or imprisonment for public protection for serious offences). Section 225 applies to those 18 or over. The amendments have the following effect.

• They give the court a power, rather than a duty, to impose a sentence of imprisonment for public protection.

• They provide that this power may only be exercised where either of two conditions is met: either the immediate offence would attract a notional minimum term of at least 2 years; or the offender has on a previous occasion been convicted of one of the offences listed in the new Schedule 15A to the 2003 Act (inserted by Schedule 5 to the Act).

195.     In the notes on this section and sections 14 to 18, the term "immediate offence" is used to refer to the offence for which the person is being sentenced.

196.     New subsection (3C) defines what is meant by notional minimum term. The court should follow the usual practice for setting tariffs for sentences of imprisonment for public protection (in accordance with section 82A(2) of the 2000 Act), except that it should not credit periods of time on remand (in custody or on bail) in arriving at the minimum term.

Section 14: Sentences of detention for public protection

197.     Section 14 amends section 226 of the 2003 Act (detention for life or detention for public protection). Section 226 applies to those under 18. The amendments have the following effect.

• They give the court a power, rather than a duty, to impose a sentence of detention for public protection: currently it has an obligation to do so unless it considers an extended sentence adequate;

• They provide that this power may only be exercised where the immediate offence would attract a notional minimum term of at least 2 years.

198.     Subsection (3A) defines what is meant by notional minimum term. The court should follow the usual practice for setting tariffs for sentences of detention for public protection (in accordance with section 82A(2) of the 2000 Act), except that it should not credit periods on remand (in custody or on bail) in arriving at the minimum term.

Section 15: Extended sentences for certain violent or sexual offences: persons 18 or over

199.     Section 15 amends section 227 of the 2003 Act (extended sentence for certain violent or sexual offences: persons 18 or over)

200.     Subsection (2) amends section 227(1) to allow extended sentences to be given for "serious" violent and sexual offences i.e. offences in Schedule 15 which carry a maximum penalty of 10 years or more. The power to give extended sentences for violent or sexual offences carrying a maximum penalty of less than 10 years is left intact.

201.     Subsections (3) and (4) amend section 227(2) and insert new subsections (2A) and (2B). The amendments have the following effect.

• They give the court a power rather than a duty to impose an extended sentence;

• They provide that this power may only be exercised where either of two conditions is met: either the immediate offence would attract an "appropriate custodial term" of at least 4 years; or the offender has on a previous occasion been convicted of one of the offences listed in Schedule 15A.

202.     Subsection (4) also inserts a new subsection (2C) which sets out the structure of the extended sentence: it consists of an "appropriate custodial term" followed by a further licence period. This simply reproduces the definition of extended sentence of imprisonment which is currently in section 227(2).

203.     Subsection (5) is consequential and preserves the current position whereby (a) the custodial period of the extended sentence is set according to the seriousness of the offence; (b) if the seriousness of the offence would normally warrant a custodial period of less than 12 months, the court must impose a custodial period of 12 months. (The provision mentioned at (b) may continue to be relevant in cases where the court is imposing an extended sentence on the basis that the condition in section 227(2A) ) is met (i.e., that the offender has on a previous occasion been convicted of one of the offences specified in Schedule 15A).

204.     Subsection (6) gives the Secretary of State an order-making power to amend the custodial period of 4 years specified in new subsection (2B). This is because the intention is that the condition should be met only if the offence warrants that the offender spend a minimum period of 2 years in custody. This currently means that a custodial period of at least 4 years should be imposed, as release on licence from an extended sentence occurs at the halfway point (under section 247 of the 2003 Act, as amended by section 25 of this Act). The proportion of sentence served prior to release on licence may be changed, however, by secondary legislation. If this were to happen, the figure of 4 years would need to be changed accordingly, to retain the 2 year threshold.