Legislation Criminal Justice Act 2003 s 177
Who can get one? 18 years +
Rehabilitation period 5 years (Rehabilitation of Offenders Act 1974 s 5(4a))
Youths The Youth Community Order was replaced in 2009 by the Youth Rehabilitation Order.
A Community Order is a non-custodial sentence available to over 18s. The orders typically include a number of requirements with which the offender must comply. The requirements can be punitive, e.g. Unpaid work (what many people know as ‘Community Service’), preventive, e.g. an exclusion requirement (requiring the offender to stay out of a pre-defined area) or rehabilitative, e.g. a course aimed at curbing and treating a drug addiction.
Power to order
The order may be made upon conviction, by the Crown Court or the Magistrates’ Court. The court must impose at least one requirement. (CJA 2003 s 177(1)).
The offence must carry imprisonment. (CJA 2003 s 150A)
Exclusions a) sentences fixed by law, b) required sentences under FA 1968 s 51A(2) and PCC(S)A 2000 ss 110-111, c) required sentences under VCRA 2006 s 29(4) or (6), d) sentences of IPP or DPP. (CJA 2003 s 150(1))
Multiple offences Where the defendant falls to be sentenced for multiple offences, careful consideration needs to be given to what eventual sentence will be imposed. Guidance should be sought from the Totality Guideline 2012, recently issued by the Sentencing Council.
The court may only impose a community order if it is of the opinion that the offence(s) is serious enough to warrant such a sentence. (CJA 2003 s 148(1))
Any restrictions on liberty must be commensurate with the seriousness of the offence(s). (CJA 2003 s 148(2))
The types of order
Persistent petty offending, some public order offences, some thefts from shops etc. Where the defendant’s previous convictions mean a discharge or a fine are inappropriate.
Suitable requirements might be: 40-80 hours of unpaid work, curfew requirement within the lowest range, exclusion requirement lasting a few months, prohibited activity or attendance centre requirements.
Handling stolen goods worth less than £1,000, some burglaries in commercial premises, some obtaining property by deception, some TWOC (taking a vehicle without consent) cases.
Suitable requirements might be: 80-150 hours unpaid work, activity requirement in the middle range (20-30 days), curfew requirement up to 12 hours for 2-3 days, exclusion requirement around 5 months, prohibited activity requirement.
For offences which only just fall short of the custody threshold, or where the threshold is crossed by a community sentence is more appropriate. An example might be a standard domestic burglary by a first-time offender.
Suitable requirements might be: 150-300 hours of unpaid work, a 60-day activity requirement, a 12-month exclusion order, a curfew requirement of 12 hours per day for 4-6 months.
Must be suitable The requirements must be tailored to the particular offender. (CJA 2003 s 148(2))
List of available requirements
Attendance centre (18-25)
Mental health treatment
Imposing requirements Requirements are imposed on a case by case basis; that is, the judge (Crown Court), or the district judge or magistrates (Magistrates’ Court) will assess what is the most appropriate way in which to deal with the offender.
Examples A shop-lifter who steals to fund his drug habit may be suitable for a combination of supervision, drug treatment and unpaid work. The unpaid work will act as a punishment and attempt to establish some routine and consistency in the offender’s life, the drug treatment will address the motivation for offending, and the supervision acts as a method of monitoring the offender’s progress.
A man who has pleaded to cultivation of cannabis may be suitable for punishment and supervision. He may receive 240 hours unpaid work and supervision. With the absence of a drug-addiction (the motivation for the offending being financial), drug treatment would be unnecessary.
Length of the order
Maximum length 3 years (CJA 2003 s 177(5))
Requirements Some or all of the requirements may be imposed for a period shorter than that of the order, or may be completed before the termination of the order. (CJA 2003 s 177(5))
Discount for time spent in custody
Restrictions on liberty Regard may be had to time spent in custody when considering the restrictions to be placed on the defendant’s liberty by the Community Order (CJA 2003 s 149)
General rule Although the statute states that the court may have regard to the period on remand, it is generally accepted that the court ought to do so. (see e.g. R v Rakib 2011 EWCA Crim 870 and New Sentences: Criminal Justice Act 2003 Guideline 2004)
Period on remand not the determinative factor R v Rakib 2011 EWCA Crim 870 held that where the defendant had spent a significant period on remand, but the court considers a community order to be the appropriate sentence, the period spent on remand is not and cannot be a necessarily determinative factor in deciding what the correct sentence is (as R v Hemmings suggests). It may be that the period served on remand is such that the court considers no further punishment is necessary. Where the defendant has served a period on remand equivalent to the maximum sentence, there is still a discretion to impose a community order, even if that includes substantial restrictions on liberty.