LEGAL AID, SENTENCING AND PUNISHMENT OF OFFENDERS BILL
ADDENDUM MEMORANDUM ON ALCOHOL ABSTINENCE
AND MONITORING REQUIREMENT AND FINES
Requirements under community orders and suspended sentence orders
After Clause 72: Alcohol abstinence and monitoring requirement
Power conferred on:
Secretary of State
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary Procedure:
Negative Resolution
A new clause (to be inserted after cl. 72) inserts new s. 212A into the Criminal
Justice Act 2003. New s. 212A(3) gives the Secretary of State a power to prescribe
the minimum period for which a court may impose an alcohol abstinence and
monitoring requirement as part of a community order or suspended sentence order.
This power is designed to enable the Secretary of State to specify a minimum period
for which an alcohol abstinence and monitoring requirement can be imposed if it
becomes clear that such a minimum period is essential for the effective operation of
the requirement. (It is anticipated that the proposed pilot will assist in making this
clear.) Minimum periods are also set for other community order and suspended
sentence order requirements such as unpaid work, curfew and the alcohol, drugs and
mental health treatment requirements.
The maximum period for the requirement is set out in new section 212A(2).
The power to set the minimum period is exercisable subject to the negative resolution
procedure.
After Clause 72: Alcohol abstinence and monitoring requirement
Power conferred on:
Secretary of State
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary Procedure:
Affirmative Resolution
A new clause (to be inserted after cl. 72) inserts new s. 212A into the Criminal
Justice Act 2003. New clause, subs. (7) gives the Secretary of State a power by
order to amend the maximum period for which a court may impose an alcohol
abstinence and monitoring requirement as part of a community order or suspended
sentence order. The maximum period is 120 days (see new s. 212A(2).
This power is designed to enable the Secretary of State to specify a maximum period
for which an alcohol abstinence and monitoring requirement can be imposed if it
becomes clear that a different maximum is appropriate for the effective operation of
the requirement. There is a power to amend maximum periods for other community
order and suspended sentence order requirements (unpaid work and curfew
requirements).
The power to set the minimum period is exercisable subject to the affirmative
resolution procedure.
After Clause 72: Alcohol abstinence and monitoring requirement
Power conferred on:
Secretary of State
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary Procedure:
Negative Resolution
A new clause (to be inserted after cl. 72) inserts new s. 212A into the Criminal
Justice Act 2003 to provide for an alcohol abstinence and monitoring requirement,
which may be imposed as part of a community order or suspended sentence order.
New s. 212A(6) gives the Secretary of State a power to prescribe arrangements for
monitoring compliance with a requirement under new s. 212A(1).
These arrangements may include arrangements about the method of monitoring (see
s. 212A(7)).
This power is designed to enable the details of the arrangements of testing to be in
secondary legislation.
The alcohol abstinence and monitoring requirement may not be imposed until an
order setting out these detailed arrangements is in force.
The arrangements in issue would relate to the details of what the offender is to be
required to do to comply with the requirement (e.g. where and when the offender
must attend for monitoring (if at all), as well as methods of monitoring).
It is appropriate to provide in secondary legislation for the methods of monitoring,
since various methods of monitoring are available and may be used, and
technological changes may well make further methods available. It is also to be
noted that the pilot will give the Government evidence as to which methods are most
effective, and may therefore be used following general commencement (if the
provisions are generally commenced).
The Government considers, nonetheless, that this is not something which it is
appropriate to leave to the discretion of the responsible officer (cf. aspects of the
unpaid work and certain other requirements).
The power to make arrangements is exercisable subject to the negative resolution
procedure.
After Clause 72: Alcohol abstinence and monitoring requirement
Power conferred on:
Secretary of State
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary Procedure:
Negative Resolution
A new clause (to be inserted after cl. 72) inserts new s. 212A into the Criminal
Justice Act 2003 to provide for an alcohol abstinence and monitoring requirement,
which may be imposed as part of a community order or suspended sentence order.
New s. 212A(4) gives the Secretary of State a power to prescribe the level of alcohol
which an offender may not have in the offender’s body (see new s. 212A(1)(a)(ii)).
New s. 212A(5) supplements new subs. (4) by setting out the means by reference to
which the level may be prescribed.
This power allows the Secretary of State to set a level of alcohol above which an
offender cannot have in their body for the purposes of this requirement.
The setting of a minimum level is designed to allow for low levels of alcohol to be
permissible without the offender breaching the terms of the order. In effect, the
exercise of the power will enable the court to impose a requirement which does not
amount to abstinence from consumption of any alcohol, but rather restricts the
consumption of alcohol.
It is appropriate to provide in secondary legislation for the levels of alcohol, since the
levels will depend to a large extent on the methods of monitoring which are to be
used (see above). Similarly, the methods of monitoring might involve the analysis of
different substances (e.g. blood, sweat, urine, breath), and it is therefore appropriate
to make the provision in new s. 212A(5).
The power to make arrangements is exercisable subject to the negative resolution
procedure.
After Clause 72: Piloting of alcohol abstinence and monitoring requirements
Power conferred on:
Secretary of State
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary Procedure:
Piloting order – none
General commencement order – affirmative
resolution
A new clause (to be inserted after cl. 72) makes provision for the commencement of
alcohol abstinence and monitoring requirements, which may be imposed as part of a
community order or suspended sentence order. .
There is, as usual, a power to commence the provisions. But the new clause
requires the Secretary of State to commence the provisions in two stages.
First, he may make a piloting order, whereby the provisions come into force in
relation to specific areas and for specific periods.
After that period, he may make a general commencement order (see subs. (5)).
Alternatively, he may decide not to do so (see subs. (7)) and may by order repeal the
new section in the LASPO Act, amend the 2003 Act to reverse the effect of that
section on the 2003 Act, and make other consequential amendments or repeals.
The obligation to pilot the requirement before it can be generally commenced allows
for initial pilot schemes to be undertaken which will test the processes and
practicalities of abstinence schemes, and help build the confidence of the courts
which impose them and the responsible officers who operate them. It will also test
the effectiveness, enforceability and cost of the key elements of the requirement
(including monitoring equipment). The powers allow for further piloting or general
commencement, or alternatively for repeal of the section relating to the requirement.
A general commencement order and an ancillary order under subs. (5) or (7) are to
be made subject to the affirmative resolution procedure.
A piloting order is to be made subject to the negative resolution procedure.
Fines
Clause 80: Removal of limit on certain fines on conviction by the magistrates’
court
Power conferred on:
Secretary of State
Power exercisable by:
Regulations made by Statutory Instrument
Parliamentary Procedure:
Affirmative Resolution
The Government wishes to draw the Committee’s attention to a particular effect of cl.
80(1) and (2).
The Regulatory Enforcement and Sanctions Act 2008, Part 3 gives a Minister of the
Crown powers to make provision by order about fixed monetary penalties (see in
particular s. 39) and discretionary requirements, which include variable monetary
penalties (see in particular s. 42). It is envisaged that orders will establish schemes
in relation to different subject matters. The only order to have been made so far is
the Environmental Civil Sanctions (England) Order 2010 (SI 2010/1175).
The penalty schemes are to enable a regulator to impose monetary penalties on
persons who have committed relevant criminal offences. The regulator must be
satisfied beyond reasonable doubt that the person has committed the relevant
offence. See ss. 39(2) and 42(2).
The legislation identifies the maximum penalty amounts which may be imposed
under the schemes in different ways. In summary:
In relation to fixed monetary penalties, the order establishing the scheme sets the
amount which the regulator may impose.
Where the offence is triable summarily (including where it is triable either
way), and is punishable on summary conviction by a fine, the penalty amount
set in the order may not be more than the maximum amount payable on
conviction.
Where the offence is indictable only, there is no limit on the penalty amount
which may be set in the order.
In relation to variable monetary penalties, the order establishing the scheme may (nut
need not) set the maximum amount which the regulator may impose.
Where the offence is triable summarily only, and is punishable by a fine, the
penalty amount set in the order may nonetheless not be more than the
maximum amount payable on conviction.
Where the offence is indictable only or triable either way, there is no limit on
the penalty amount which may be imposed by a regulator (subject to any limit
set by the order).
The Committee is aware that the effect of cl. 80(1) is that offences which are
punishable by a maximum fine of £5,000 (however expressed) will become
punishable by a fine of any amount. By virtue of cl. 80(2) powers to create such
offences will be enlarged so that they become powers to create offences punishable
by a fine of any amount. This will have the following effects in relation to the
schemes described above:
The amount which a Minister of the Crown may set when making provision about
fixed monetary penalties under s. 36(1)(a) will not be subject to any limitation where
the offence in issue becomes capable on summary conviction of attracting a fine of
any amount. It remains the case, of course, that the Minister must set an amount.
The amount which a regulator may impose by way of a variable monetary penalty
under an order made under s. 36(1)(b) will not be subject to any limitation where the
offence in issue becomes capable on summary conviction of attracting a fine of any
amount. An order may itself impose a limitation on the amount of a variable
monetary penalty (see e.g. the Environmental Civil Sanctions (England) Order 2010,
Sch. 2, para. 1(5)).
The Committee is also aware that cll. 81 and 82 contain powers to alter certain
maximum fines on summary conviction. The effect of these provisions is that the
maximum penalty amounts for the purposes of orders under s. 36(1)(a) (read with s.
39(4)) and s. 36(1)(b) (read with s. 42(6)) will be altered.
Clauses 80-82 will also have substantially the same effect on any scheme set up by
virtue of the Political Parties, Elections and Referendums Act 2000, s. 147 and Sch.
19C.
The Government notes that where an offence is under current legislation punishable
by a fine of any amount (i.e. for the purposes of fixed monetary penalties, if it is
indictable only; and for the purposes of variable monetary penalties, if it indictable
only or triable either way), there is currently no limitation on either the amount which
may be set out as the fixed monetary penalty, or on the amount which a regulator
may impose as a variable monetary penalty. The provisions in cll. 80-82 remove the
maximum amounts of certain fines and create powers to amend the maximum
amounts of certain fines. The removal of the maximum amounts of certain fines
aligns the maximums with those which can be imposed following a conviction on
indictment. It is right that the effect of cll. 80-82 should ‘flow through’ to the 2000 and
2008 Acts.
The Government further notes that schemes for fixed and variable monetary
penalties are established by order made by a Minister of the Crown. Such an order
is subject to the affirmative resolution procedure; Parliament is therefore required to
approve any draft orders before they can be made and brought into force.
It also notes – as mentioned above – that it is possible, in respect of variable
monetary penalties, to impose a maximum penalty amount.