(1) When a court makes an enforcement order, it shall grant a warrant for civil diligence in the form prescribed by Act of Adjournal.
(2) A warrant granted under subsection (1) above authorises a FEO to execute the types of diligence mentioned in subsection (3) below for the purpose mentioned in subsection (4) below.
(3) The types of diligence are—
(a) arrestment of earnings; and
(b) arrestment of funds standing in accounts held at any bank or other financial institution.
(4) The purpose is of obtaining the amount of a relevant penalty which has not been paid in accordance with an enforcement order.
(5) The types of diligence mentioned in subsection (3) above may (whatever the amount of the relevant penalty concerned) be executed by an FEO in the same manner as if authorised by a warrant granted by the sheriff in a summary cause.
(6) However, the power of FEOs to execute the types of diligence mentioned in subsection (3) above is subject to such provision as the Scottish Ministers may by regulations make.
(7) Provision in regulations under subsection (6) above may, in particular—
(a) specify circumstances in which the types of diligence mentioned in subsection (3) above are (or are not) to be executed by a FEO;
(b) modify the application of any enactment (including subsection (5) above) or rule of law applying in relation to those types of diligence in so far as they may be executed by a FEO.
(8) Regulations under subsection (6) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament.
(1) A FEO may refer an enforcement order to the relevant court where—
(a) the FEO believes that payment of a relevant penalty, or any remaining part of a relevant penalty, to which an enforcement order relates is unlikely to be obtained;
(b) for any other reason (including failure of the offender to co-operate with the FEO) the FEO considers it expedient to do so.
(2) A FEO may make a reference under subsection (1) above at any time from the day after the enforcement order is made.
(3) When making a reference under subsection (1) above, the FEO shall provide the court with a report on the circumstances of the case.
(4) A report under subsection (3) above shall include, in particular—
(a) a copy of any report from a supervising officer received by the FEO under section 217(9) of this Act; and
(b) information about—
(i) the steps taken by the enforcement officer to obtain payment of or towards the relevant penalty; and
(ii) any effort (or lack of effort) made by the offender to make payment of or towards the penalty.
(5) Where a reference is made under subsection (1) above, the relevant court shall enquire of the offender as to the reason why the relevant penalty (or an instalment of it) has not been paid.
(6) Subsection (5) above does not apply where the offender is in prison.
(7) Subsections (3) to (7) of section 216 of this Act apply in relation to subsection (5) above as they apply in relation to subsection (1) of that section.
(8) After the court has considered—
(a) the report provided by the FEO under subsection (3) above; and
(b) any information obtained by enquiry under subsection (5) above,
the court may dispose of the case as mentioned in subsection (9) below.
(9) That is, the court may—
(a) revoke the enforcement order and deal with the offender as if the enforcement order had never been made;
(b) vary the enforcement order;
(c) confirm the enforcement order as previously made;
(d) direct the FEO to take specified steps to secure payment of or towards the relevant penalty in accordance with the enforcement order (including as varied under paragraph (b) above);
(e) make such other order as it thinks fit.
(1) The offender may apply to the relevant court for review—
(a) in relation to an enforcement order—
(i) of any variation under section 226C(1) of this Act;
(ii) of any refusal of an application for variation under that section;
(b) of the making of a seizure order under section 226D(1) of this Act.
(2) An application under subsection (1) above requires to be made within 7 days of notification under section 226C(4) of this Act or (as the case may be) section 226D(4) of this Act.
(3) On an application under subsection (1) above, the relevant court may—
(a) confirm, vary or quash the decision of the FEO;
(b) make such other order as it thinks fit.
(1) In this section and sections 226A to 226H of this Act—
...
...
...
...
“ enforcement order ” is to be construed in accordance with section 226B(1) and (4) to (6) of this Act;
“ FEO ” means a fines enforcement officer;
...
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“ offender ” means the person who is liable to pay a relevant penalty;
“relevant court”—
in the case of a fine or compensation order, means—
the court which imposed the penalty; or
where the penalty is transferred to another court, that other court;
in the case of another relevant penalty (apart from a penalty specified by order for the purposes of this section), means—
the court whose clerk is specified in the notice to the offender; or
where the penalty is transferred to another court, that other court;
in the case of a penalty specified by order for the purposes of this section, means—
the court whose clerk is specified in the notice to the offender;
where the penalty is transferred to another court, that other court; or
such other court as the order may specify for those purposes.
...
“ relevant penalty ” means—
a fine;
a compensation order imposed under section 249 of this Act;
a fixed penalty offer made under section 302(1) of this Act;
a compensation offer made under section 302A(1) of this Act;
a fixed penalty notice given under section 54 (giving notices for fixed penalty offences) or section 62 (fixing notices to vehicles) of the Road Traffic Offenders Act 1988 (c. 53);
a fixed penalty notice given under section 129 (fixed penalty notices) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8);
such other penalty as the Scottish Ministers may by order specify for the purposes of this section.
(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) An order specifying a penalty or a court for the purpose of this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.
Where a person is convicted on indictment of an offence (other than an offence the sentence for which is fixed by law) the court may, instead of or in addition to imposing a fine or a period of imprisonment, ordain the accused to find caution for good behaviour for a period not exceeding 12 months and to such amount as the court considers appropriate.
(1) Where a person (the “offender”) is convicted of an offence punishable by imprisonment, the court may, instead of imposing a sentence of imprisonment, impose a community payback order on the offender.
(2) A community payback order is an order imposing one or more of the following requirements—
(a) an offender supervision requirement,
(b) a compensation requirement,
(c) an unpaid work or other activity requirement,
(d) a programme requirement,
(e) a residence requirement,
(f) a mental health treatment requirement,
(g) a drug treatment requirement,
(h) an alcohol treatment requirement,
(i) a conduct requirement.
(j) a restricted movement requirement.
(3) Subsection (4) applies where—
(a) a person (the “offender”) is convicted of an offence punishable by a fine (whether or not it is also punishable by imprisonment), and
(b) where the offence is also punishable by imprisonment, the court decides not to impose—
(i) a sentence of imprisonment, or
(ii) a community payback order under subsection (1) instead of a sentence of imprisonment.
(4) The court may, instead of or as well as imposing a fine, impose a community payback order on the offender imposing one or more of the following requirements—
(a) an offender supervision requirement,
(b) a level 1 unpaid work or other activity requirement,
(c) a conduct requirement.
(5) A justice of the peace court may only impose a community payback order imposing one or more of the following requirements—
(a) an offender supervision requirement,
(b) a compensation requirement,
(c) an unpaid work or other activity requirement,
(d) a residence requirement,
(e) a conduct requirement.
(6) Subsection (5)(c) is subject to section 227J(4).
(7) The Scottish Ministers may by order made by statutory instrument amend subsection (5) so as to add to or omit requirements that may be imposed by a community payback order imposed by a justice of the peace court.
(8) An order is not to be made under subsection (7) unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament.
(9) In this section and sections 227B to 227ZK, except where the context requires otherwise—
“ court ” means the High Court, the sheriff or a justice of the peace court,
“ imprisonment ” includes detention.
227B Community payback order: procedure prior to imposition
(1) This section applies where a court is considering imposing a community payback order on an offender.
(2) The court must not impose the order unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant the imposition of such an order.
(3) Before imposing a community payback order imposing two or more requirements, the court must consider whether, in the circumstances of the case, the requirements are compatible with each other.
(4) The court must not impose the order unless it has obtained, and taken account of, a report from an officer of a local authority containing information about the offender and the offender's circumstances.
(5) An Act of Adjournal may prescribe—
(a) the form of a report under subsection (4), and
(b) the particular information to be contained in it.
(6) Subsection (4) does not apply where the court is considering imposing a community payback order—
(a) imposing only a level 1 unpaid work or other activity requirement, or
(b) under section 227M(2).
(7) The clerk of the court must give a copy of any report obtained under subsection (4) to—
(a) the offender,
(b) the offender's solicitor (if any), and
(c) the prosecutor.
(8) Before imposing the order, the court must explain to the offender in ordinary language—
(a) the purpose and effect of each of the requirements to be imposed by the order,
(b) the consequences which may follow if the offender fails to comply with any of the requirements imposed by the order, and
(c) where the court proposes to include in the order provision under section 227X for it to be reviewed, the arrangements for such a review.
(9) The court must not impose the order unless the offender has, after the court has explained those matters, confirmed that the offender—
(a) understands those matters, and
(b) is willing to comply with each of the requirements to be imposed by the order.
(10) Subsection (9)(b) does not apply where the court is considering imposing a community payback order under section 227M(2).
(1) This section applies where a court imposes a community payback order on an offender.
(2) The court must, in imposing the order—
(a) specify the locality in which the offender resides or will reside for the duration of the order,
(b) require the local authority within whose area that locality is situated to nominate, within two days of its receiving a copy of the order, an officer of the authority as the responsible officer for the purposes of the order,
(c) require the offender to comply with any instructions given by the responsible officer—
(i) about keeping in touch with the responsible officer, or
(ii) for the purposes of subsection (3),
(d) require the offender to report to the responsible officer in accordance with instructions given by that officer,
(e) require the offender to notify the responsible officer without delay of—
(i) any change of the offender's address, and
(ii) the times, if any, at which the offender usually works (or carries out voluntary work) or attends school or any other educational establishment, and
(f) where the order imposes an unpaid work or other activity requirement, require the offender to undertake for the number of hours specified in the requirement such work or activity as the responsible officer may instruct, and at such times as may be so instructed.
(3) The responsible officer is responsible for—
(a) making any arrangements necessary to enable the offender to comply with each of the requirements imposed by the order,
(b) promoting compliance with those requirements by the offender,
(c) taking such steps as may be necessary to enforce compliance with the requirements of the order or to vary, revoke or discharge the order.
(4) References in this Act to the responsible officer are, in relation to an offender on whom a community payback order has been imposed, the officer for the time being nominated in pursuance of subsection (2)(b).
(5) In reckoning the period of two days for the purposes of subsection (2)(b), no account is to be taken of a Saturday or Sunday or any day which is a local or public holiday in the area of the local authority concerned.
(1) Where a community payback order is imposed on an offender, the order is to be taken for all purposes to be a sentence imposed on the offender.
(2) On imposing a community payback order, the court must state in open court the reasons for imposing the order.
(3) The imposition by a court of a community payback order on an offender does not prevent the court imposing a fine or any other sentence (other than imprisonment), or making any other order, that it would be entitled to impose or make in respect of the offence.
(4) Where a court imposes a community payback order on an offender, the clerk of the court must ensure that—
(a) a copy of the order is given to—
(i) the offender, and
(ii) the local authority within whose area the offender resides or will reside, and
(b) a copy of the order and such other documents and information relating to the case as may be useful are given to the clerk of the appropriate court (unless the court imposing the order is that court).
(5) A copy of the order may be given to the offender—
(a) by being delivered personally to the offender, or
(b) by being sent—
(i) by a registered post service (as defined in section 125(1) of the Postal Services Act 2000 (c.26)), or
(ii) by a postal service which provides for the delivery of the document to be recorded.
(6) A community payback order is to be in such form, or as nearly as may be in such form, as may be prescribed by Act of Adjournal.
227E Requirement to avoid conflict with religious beliefs, work etc.
(1) In imposing a community payback order on an offender, the court must ensure, so far as practicable, that any requirement imposed by the order avoids—
(a) a conflict with the offender's religious beliefs,
(b) interference with the times, if any, at which the offender normally works (or carries out voluntary work) or attends school or any other educational establishment.
(2) The responsible officer must ensure, so far as practicable, that any instruction given to the offender avoids such a conflict or interference.
227F Payment of offenders' travelling and other expenses
(1) The Scottish Ministers may by order made by statutory instrument provide for the payment to offenders of travelling or other expenses in connection with their compliance with requirements imposed on them by community payback orders.
(2) An order under subsection (1) may—
(a) specify expenses or provide for them to be determined under the order,
(b) provide for the payments to be made by or on behalf of local authorities,
(c) make different provision for different purposes.
(3) An order under subsection (1) is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(1) In this Act, an “offender supervision requirement” is, in relation to an offender, a requirement that, during the specified period, the offender must attend appointments with the responsible officer or another person determined by the responsible officer, at such time and place as may be determined by the responsible officer, for the purpose of promoting the offender's rehabilitation.
(2) On imposing a community payback order, the court must impose an offender supervision requirement if—
(a) the offender is under 18 years of age at the time the order is imposed, or
(b) the court, in the order, imposes—
(i) a compensation requirement,
(ii) a programme requirement,
(iii) a residence requirement,
(iv) a mental health treatment requirement,
(v) a drug treatment requirement,
(vi) an alcohol treatment requirement, ...
(vii) a conduct requirement, or
(viii) a restricted movement requirement.
(3) The specified period must be at least 6 months and not more than 3 years.
(4) Subsection (3) is subject to subsections (4A) and (5).
(4A) Where an offender supervision requirement is imposed because of the imposition of a restricted movement requirement—
(a) the minimum period in subsection (3) does not apply,
(b) the court must ensure that the specified period does not expire before the expiry of the period during which the restricted movement requirement has effect by virtue of section 227ZF(5)(b).
(5) In the case of an offender supervision requirement imposed on a person aged 16 or 17 along with only a level 1 unpaid work or other activity requirement, the specified period must be no more than whichever is the greater of—
(a) the specified period under section 227L in relation to the level 1 unpaid work or other activity requirement, and
(b) 3 months.
(6) In this section, “ specified ”, in relation to an offender supervision requirement, means specified in the requirement.
(1) In this Act, a “compensation requirement” is, in relation to an offender, a requirement that the offender must pay compensation for any relevant matter in favour of a relevant person.
(2) In subsection (1)—
“ relevant matter ” means any personal injury, loss, damage or other matter in respect of which a compensation order could be made against the offender under section 249 of this Act, and
“ relevant person ” means a person in whose favour the compensation could be awarded by such a compensation order.
(3) A compensation requirement may require the compensation to be paid in a lump sum or in instalments.
(4) The offender must complete payment of the compensation before the earlier of the following—
(a) the end of the period of 18 months beginning with the day on which the compensation requirement is imposed,
(b) the beginning of the period of 2 months ending with the day on which the offender supervision requirement imposed under section 227G(2) ends.
(5) The following provisions of this Act apply in relation to a compensation requirement as they apply in relation to a compensation order, and as if the references in them to a compensation order included a compensation requirement—
(a) section 249(3), (4), (5) and (8) to (10),
(b) section 250(2),
(c) section 251(1), (1A) and (2)(b), ...
(d) section 253.
(e) section 253C,
(f) section 253D, and
(g) section 253H.
(1) In this Act, an “unpaid work or other activity requirement” is, in relation to an offender, a requirement that the offender must, for the specified number of hours, undertake—
(a) unpaid work, or
(b) unpaid work and other activity.
(2) Whether the offender must undertake other activity as well as unpaid work is for the responsible officer to determine.
(3) The nature of the unpaid work and any other activity to be undertaken by the offender is to be determined by the responsible officer.
(4) The number of hours that may be specified in the requirement must be (in total)—
(a) at least 20 hours, and
(b) not more than 300 hours.
(5) An unpaid work or other activity requirement which requires the work or activity to be undertaken for a number of hours totalling no more than 100 is referred to in this Act as a “level 1 unpaid work or other activity requirement”.
(6) An unpaid work or other activity requirement which requires the work or activity to be undertaken for a number of hours totalling more than 100 is referred to in this Act as a “level 2 unpaid work or other activity requirement”.
(7) The Scottish Ministers may by order made by statutory instrument substitute another number of hours for any of the numbers of hours for the time being specified in subsections (4) to (6).
(8) An order under subsection (7) may only substitute for the number of hours for the time being specified in a provision mentioned in the first column of the following table a number of hours falling within the range set out in the corresponding entry in the second column.
Provision | Range
No fewer than | No more than
Subsection (4)(a) | 10 hours | 40 hours
Subsection (4)(b) | 250 hours | 350 hours
Subsections (5) and (6) | 70 hours | 150 hours
(9) An order under subsection (7) is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(10) In this section, “ specified ”, in relation to an unpaid work or other activity requirement, means specified in the requirement.
227J Unpaid work or other activity requirement: further provision
(1) A court may not impose an unpaid work or other activity requirement on an offender who is under 16 years of age.
(2) A court may impose such a requirement on an offender only if the court is satisfied, after considering the report mentioned in section 227B(4), that the offender is a suitable person to undertake unpaid work in pursuance of the requirement.
(3) Subsection (2) does not apply where the court is considering imposing a community payback order—
(a) imposing only a level 1 unpaid work or other activity requirement, or
(b) under section 227M(2).
(4) A justice of the peace court may impose a level 2 unpaid work or other activity requirement only if—
(a) the Scottish Ministers by regulations made by statutory instrument so provide, and
(b) the requirement is imposed in such circumstances and subject to such conditions as may be specified in the regulations.
(5) Regulations are not to be made under subsection (4) unless a draft of the statutory instrument containing them has been laid before and approved by resolution of the Scottish Parliament.
227K Allocation of hours between unpaid work and other activity
(1) Subject to subsection (2), it is for the responsible officer to determine how many out of the number of hours specified in an unpaid work or other activity requirement are to be allocated to undertaking, respectively—
(a) unpaid work, and
(b) any other activity to be undertaken.
(2) The number of hours allocated to undertaking an activity other than unpaid work must not exceed whichever is the lower of—
(a) 30% of the number of hours specified in the requirement, and
(b) 30 hours.
(3) The Scottish Ministers may by order made by statutory instrument—
(a) substitute another percentage for the percentage for the time being specified in subsection (2)(a),
(b) substitute another number of hours for the number of hours for the time being specified in subsection (2)(b).
(4) An order is not to be made under subsection (3) unless a draft of the statutory instrument containing the order has been laid before and approved by resolution of the Scottish Parliament.
227L Time limit for completion of unpaid work or other activity
(1) The number of hours of unpaid work and any other activity that the offender is required to undertake in pursuance of an unpaid work or other activity requirement must be completed by the offender before the end of the specified period beginning with the imposition of the requirement.
(2) The “specified period” is—
(a) in relation to a level 1 unpaid work or other activity requirement, 3 months or such longer period as the court may specify in the requirement,
(b) in relation to a level 2 unpaid work or other activity requirement, 6 months or such longer period as the court may specify in the requirement.
(1) This section applies where—
(a) a fine has been imposed on an offender in respect of an offence,
(b) the offender fails to pay the fine or an instalment of the fine,
(c) the offender is not serving a sentence of imprisonment, and
(d) apart from this section, the court would have imposed a period of imprisonment on the offender under section 219(1) of this Act in respect of the failure to pay the fine or instalment.
(2) Instead of imposing a period of imprisonment under section 219(1) of this Act, the court—
(a) where the amount of the fine or the instalment does not exceed level 2 on the standard scale, must impose a community payback order on the offender imposing a level 1 unpaid work or other activity requirement,
(b) where the amount of the fine or the instalment exceeds that level, may impose such a community payback order.
(3) The court, in imposing a community payback order under subsection (2) on a person aged 16 or 17, must also impose an offender supervision requirement.
(4) Where the amount of the fine or the instalment does not exceed level 1 on the standard scale, the number of hours specified in the requirement must not exceed 50.
(5) On completion of the hours of unpaid work and any other activity specified in an unpaid work or other activity requirement imposed under this section, the fine in respect of which the requirement was imposed is discharged (or, as the case may be, the outstanding instalments of the fine are discharged).
(6) If, after a community payback order is imposed on an offender under this section, the offender pays the fine or the full amount of any outstanding instalments, the appropriate court must discharge the order.
(7) Subsection (2) is subject to sections 227J(1) and 227N(2), (3) and (7).
(8) In this section, “ court ” does not include the High Court.
227N Offenders subject to more than one unpaid work or other activity requirement
(1) This section applies where—
(a) a court is considering imposing an unpaid work or other activity requirement on an offender (referred to as the “ new requirement ”), and
(b) at the time the court is considering imposing the requirement, there is already in effect one or more of the following orders—
(i) a community payback order imposing such a requirement on the same offender;
(ii) a community service order under this Act in relation to the same offender;
(iii) a probation order under this Act imposing an unpaid work requirement on the same offender;
(iv) a supervised attendance order under this Act in relation to the same offender.
(1A) In this section references to an “existing requirement” are—
(a) in relation to a community payback order, to the unpaid work or other activity requirement imposed on the offender by the order;
(b) in relation to a community service order or a probation order, to the unpaid work requirement imposed on the offender by the order;
(c) in relation to a supervised attendance order, to the requirement imposed on the offender by the order by virtue of section235(2) of this Act.
(2) The court may, in imposing the new requirement, direct that it is to be concurrent with any existing requirement.
(3) Where the court makes a direction under subsection (2), hours of unpaid work or other activity undertaken after the new requirement is imposed count for the purposes of compliance with that requirement and the existing requirement.
(4) Subsection (5) applies where the court does not make a direction under subsection (2).
(5) The maximum number of hours which may be specified in the new requirement is the number of hours specified in section 227I(4)(b) less the aggregate of the number of hours ... still to be completed under each existing requirement at the time the new requirement is imposed.
(6) In calculating that aggregate, if any existing requirement is concurrent with another (by virtue of a direction under subsection (2)), hours that count for the purposes of compliance with both (or, as the case may be, all) are to be counted only once.
(7) Where that maximum number is less than the minimum number of hours that can be specified by virtue of section 227I(4)(a), the court must not impose the new requirement.
(1) The Scottish Ministers may make rules by statutory instrument for or in connection with the undertaking of unpaid work and other activities in pursuance of unpaid work or other activity requirements.
(2) Rules under subsection (1) may in particular make provision for—
(a) limiting the number of hours of work or other activity that an offender may be required to undertake in any one day,
(b) reckoning the time spent undertaking unpaid work or other activity,
(c) the keeping of records of unpaid work and any other activity undertaken.
(3) Rules under subsection (1) may—
(a) confer functions on responsible officers,
(b) contain rules about the way responsible officers are to exercise functions under this Act.
(4) Rules under subsection (1) are subject to annulment in pursuance of a resolution of the Scottish Parliament.
(1) In this Act, a “programme requirement” is, in relation to an offender, a requirement that the offender must participate in a specified programme, at the specified place and on the specified number of days.
(2) In this section, “ programme ” means a course or other planned set of activities, taking place over a period of time, and provided to individuals or groups of individuals for the purpose of addressing offending behavioural needs.
(3) A court may impose a programme requirement on an offender only if the specified programme is one which has been recommended by an officer of a local authority as being suitable for the offender to participate in.
(4) If an offender's compliance with a proposed programme requirement would involve the co-operation of a person other than the offender, the court may impose the requirement only if the other person consents.
(5) A court may not impose a programme requirement that would require an offender to participate in a specified programme after the expiry of the period specified in the offender supervision requirement to be imposed at the same time as the programme requirement (by virtue of section 227G(2)(b)).
(6) Where the court imposes a programme requirement on an offender, the requirement is to be taken to include a requirement that the offender, while attending the specified programme, complies with any instructions given by or on behalf of the person in charge of the programme.
(7) In this section, “ specified ”, in relation to a programme requirement, means specified in the requirement.
(1) In this Act, a “residence requirement” is, in relation to an offender, a requirement that, during the specified period, the offender must reside at a specified place.
(2) The court may, in a residence requirement, require an offender to reside at a hostel or other institution only if the hostel or institution has been recommended as a suitable place for the offender to reside in by an officer of a local authority.
(3) The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the residence requirement (by virtue of section 227G(2)(b)).
(4) In this section, “ specified ”, in relation to a residence requirement, means specified in the requirement.
(1) In this Act, a “mental health treatment requirement” is, in relation to an offender, a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a registered medical practitioner or a registered psychologist (or both) with a view to improving the offender's mental condition.
(2) The treatment to which an offender may be required to submit under a mental health treatment requirement is such of the kinds of treatment described in subsection (3) as is specified; but otherwise the nature of the treatment is not to be specified.
(3) Those kinds of treatment are—
(a) treatment as a resident patient in a hospital (other than a State hospital) within the meaning of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (“ the 2003 Act ”),
(b) treatment as a non-resident patient at such institution or other place as may be specified, or
(c) treatment by or under the direction of such registered medical practitioner or registered psychologist as may be specified.
(4) A court may impose a mental health treatment requirement on an offender only if the court is satisfied—
(a) on the written or oral evidence of an approved medical practitioner (within the meaning of the 2003 Act), that Condition A is met,
(b) on the written or oral evidence of the registered medical practitioner or registered psychologist by whom or under whose direction the treatment is to be provided, that Condition B is met, and
(c) that Condition C is met.
(5) Condition A is that—
(a) the offender suffers from a mental condition,
(b) the condition requires, and may be susceptible to, treatment, and
(c) the condition is not such as to warrant the offender's being subject to—
(i) a compulsory treatment order under section 64 of the 2003 Act, or
(ii) a compulsion order under section 57A of this Act.
(6) Condition B is that the treatment proposed to be specified is appropriate for the offender.
(7) Condition C is that arrangements have been made for the proposed treatment including, where the treatment is to be of the kind mentioned in subsection (3)(a), arrangements for the offender's reception in the hospital proposed to be specified in the requirement.
(8) The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the mental health treatment requirement (by virtue of section 227G(2)(b)).
(9) In this section, “ specified ”, in relation to a mental health treatment requirement, means specified in the requirement.
227S Mental health treatment requirements: medical evidence
(1) For the purposes of section 227R(4)(a) or (b), a written report purporting to be signed by an approved medical practitioner (within the meaning of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)) may be received in evidence without the need for proof of the signature or qualifications of the practitioner.
(2) Where such a report is lodged in evidence otherwise than by or on behalf of the offender, a copy of the report must be given to—
(a) the offender, and
(b) the offender's solicitor (if any).
(3) The court may adjourn the case if it considers it necessary to do so to give the offender further time to consider the report.
(4) Subsection (5) applies where the offender is—
(a) detained in a hospital under this Act, or
(b) remanded in custody.
(5) For the purpose of calling evidence to rebut any evidence contained in a report lodged as mentioned in subsection (2), arrangements may be made by or on behalf of the offender for an examination of the offender by a registered medical practitioner.
(6) Such an examination is to be carried out in private.
(1) This section applies where—
(a) a mental health treatment requirement has been imposed on an offender, and
(b) the registered medical practitioner or registered psychologist by whom or under whose direction the offender is receiving the treatment to which the offender is required to submit in pursuance of the requirement is of the opinion mentioned in subsection (2).
(2) That opinion is—
(a) that the offender requires, or that it would be appropriate for the offender to receive, a different kind of treatment (whether in whole or in part) from that which the offender has been receiving, or
(b) that the treatment (whether in whole or in part) can be more appropriately given in or at a different hospital or other institution or place from that where the offender has been receiving treatment.
(3) The practitioner or, as the case may be, psychologist may make arrangements for the offender to be treated accordingly.
(4) Subject to subsection (5), the treatment provided under the arrangements must be of a kind which could have been specified in the mental health treatment requirement.
(5) The arrangements may provide for the offender to receive treatment (in whole or in part) as a resident patient in an institution or place even though it is one that could not have been specified for that purpose in the mental health treatment requirement.
(6) Arrangements may be made under subsection (3) only if—
(a) the offender and the responsible officer agree to the arrangements,
(b) the treatment will be given by or under the direction of a registered medical practitioner or registered psychologist who has agreed to accept the offender as a patient, and
(c) where the treatment requires the offender to be a resident patient, the offender will be received as such.
(7) Where arrangements are made under subsection (3)—
(a) the responsible officer must notify the court of the arrangements, and
(b) the treatment provided under the arrangements is to be taken to be treatment to which the offender is required to submit under the mental health treatment requirement.
(1) In this Act, a “drug treatment requirement” is, in relation to an offender, a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a specified person with a view to reducing or eliminating the offender's dependency on, or propensity to misuse, drugs.
(2) The treatment to which an offender may be required to submit under a drug treatment requirement is such of the kinds of treatment described in subsection (3) as is specified (but otherwise the nature of the treatment is not to be specified).
(3) Those kinds of treatment are—
(a) treatment as a resident in such institution or other place as is specified,
(b) treatment as a non-resident at such institution or other place, and at such intervals, as is specified.
(4) The specified person must be a person who has the necessary qualifications or experience in relation to the treatment to be provided.
(5) The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the drug treatment requirement (by virtue of section 227G(2)(b)).
(6) A court may impose a drug treatment requirement on an offender only if the court is satisfied that—
(a) the offender is dependent on, or has a propensity to misuse, any controlled drug (as defined in section 2(1)(a) of the Misuse of Drugs Act 1971 (c.38)),
(b) the dependency or propensity requires, and may be susceptible to, treatment, and
(c) arrangements have been, or can be, made for the proposed treatment including, where the treatment is to be of the kind mentioned in subsection (3)(a), arrangements for the offender's reception in the institution or other place to be specified.
(7) In this section, “ specified ”, in relation to a drug treatment requirement, means specified in the requirement.
(1) In this Act, an “alcohol treatment requirement” is, in relation to an offender, a requirement that the offender must submit, during the specified period, to treatment by or under the direction of a specified person with a view to the reduction or elimination of the offender's dependency on alcohol.
(2) The treatment to which an offender may be required to submit under an alcohol treatment requirement is such of the kinds of treatment described in subsection (3) as is specified (but otherwise the nature of the treatment is not to be specified).
(3) Those kinds of treatment are—
(a) treatment as a resident in such institution or other place as is specified,
(b) treatment as a non-resident at such institution or other place, and at such intervals, as is specified,
(c) treatment by or under the direction of such person as is specified.
(4) The person specified under subsection (1) or (3)(c) must be a person who has the necessary qualifications or experience in relation to the treatment to be provided.
(5) The specified period must not be longer than the period specified in the offender supervision requirement to be imposed at the same time as the alcohol treatment requirement (by virtue of section 227G(2)(b)).
(6) A court may impose an alcohol treatment requirement on an offender only if the court is satisfied that—
(a) the offender is dependent on alcohol,
(b) the dependency requires, and may be susceptible to, treatment, and
(c) arrangements have been, or can be, made for the proposed treatment, including, where the treatment is to be of the kind mentioned in subsection (3)(a), arrangements for the offender's reception in the institution or other place to be specified.
(7) In this section, “ specified ”, in relation to an alcohol treatment requirement, means specified in the requirement.
(1) In this Act, a “conduct requirement” is, in relation to an offender, a requirement that the offender must, during the specified period, do or refrain from doing specified things.
(2) A court may impose a conduct requirement on an offender only if the court is satisfied that the requirement is necessary with a view to—
(a) securing or promoting good behaviour by the offender, or
(b) preventing further offending by the offender.
(3) The specified period must be not more than 3 years.
(4) The specified things must not include anything that—
(a) could be required by imposing one of the other requirements listed in section 227A(2), or
(b) would be inconsistent with the provisions of this Act relating to such other requirements.
(5) In this section, “ specified ”, in relation to a conduct requirement, means specified in the requirement.
(1) On imposing a community payback order on an offender, the court may include in the order provision for the order to be reviewed at such time or times as may be specified in the order.
(2) A review carried out in pursuance of such provision is referred to in this section as a “ progress review ”.
(3) A progress review may be carried out by the court which imposed the community payback order or (if different) the appropriate court, and, where those courts are different, the court must specify in the order which of those courts is to carry out the reviews.
(4) A progress review is to be carried out in such manner as the court carrying out the review may determine.
(5) Before each progress review, the responsible officer must give the court a written report on the offender's compliance with the requirements imposed by the community payback order in the period to which the review relates.
(6) The offender must attend each progress review.
(7) If the offender fails to attend a progress review, the court may—
(a) issue a citation requiring the offender's attendance, or
(b) issue a warrant for the offender's arrest.
(8) The unified citation provisions apply in relation to a citation under subsection (7)(a) as they apply in relation to a citation under section 216(3)(a) of this Act.
(9) Subsections (10) and (11) apply where, in the course of carrying out a progress review in respect of a community payback order, it appears to the court that the offender has failed to comply with a requirement imposed by the order.
(10) The court must—
(a) provide the offender with written details of the alleged failure,
(b) inform the offender that the offender is entitled to be legally represented, and
(c) inform the offender that no answer need be given to the allegation before the offender—
(i) has been given an opportunity to take legal advice, or
(ii) has indicated that the offender does not wish to take legal advice.
(11) The court must then—
(a) if it is the appropriate court, appoint another hearing for consideration of the alleged failure in accordance with section 227ZC, or
(b) if it is not the appropriate court, refer the alleged failure to that court for consideration in accordance with that section.
(12) On conclusion of a progress review in respect of a community payback order, the court may vary, revoke or discharge the order in accordance with section 227Z.
227Y Applications to vary, revoke and discharge community payback orders
(1) The appropriate court may, on the application of either of the persons mentioned in subsection (2), vary, revoke or discharge a community payback order in accordance with section 227Z.
(2) Those persons are—
(a) the offender on whom the order was imposed,
(b) the responsible officer in relation to the offender.
227Z Variation, revocation and discharge: court's powers
(1) This section applies where a court is considering varying, revoking or discharging a community payback order imposed on an offender.
(2) The court may vary, revoke or discharge the order only if satisfied that it is in the interests of justice to do so having regard to circumstances which have arisen since the order was imposed.
(3) Subsection (2) does not apply where the court is considering varying the order under section 227ZC(7)(d).
(4) In varying an order, the court may, in particular—
(a) add to the requirements imposed by the order,
(b) revoke or discharge any requirement imposed by the order,
(c) vary any requirement imposed by the order,
(d) include provision for progress reviews under section 227X,
(e) where the order already includes such provision, vary that provision.
(5) In varying a requirement imposed by the order, the court may, in particular—
(a) extend or shorten any period or other time limit specified in the requirement,
(b) in the case of an unpaid work or other activity requirement, increase or decrease the number of hours specified in the requirement,
(c) in the case of a compensation requirement, vary the amount of compensation or any instalment.
(6) The court may not, under subsection (5)(b), increase the number of hours beyond the appropriate maximum.
(7) The appropriate maximum is the number of hours specified in section 227I(4)(b) at the time the unpaid work or other activity requirement being varied was imposed less the aggregate of the number of hours of unpaid work or other activity still to be completed under each other unpaid work or other activity requirement (if any) in effect in respect of the offender at the time of the variation (a “current requirement”).
(8) In calculating that aggregate, if any current requirement is concurrent with another (by virtue of a direction under section 227N(2)), hours that count for the purposes of compliance with both (or, as the case may be, all) are to be counted only once.
(9) The court may not, under subsection (5)(c), increase the amount of compensation beyond the maximum that could have been awarded at the time the requirement was imposed.
(10) Where the court varies a restricted movement requirement imposed by a community payback order, the court must give a copy of the order making the variation to the person responsible for monitoring the offender's compliance with the requirement.
(11) Where the court revokes a community payback order, the court may deal with the offender in respect of the offence in relation to which the order was imposed as it could have dealt with the offender had the order not been imposed.
(12) Subsection (11) applies in relation to a community payback order imposed under section 227M(2) as if the reference to the offence in relation to which the order was imposed were a reference to the failure to pay in respect of which the order was imposed.
(13) Where the court is considering varying, revoking or discharging the order otherwise than on the application of the offender, the court must issue a citation to the offender requiring the offender to appear before the court (except where the offender is required to appear by section 227X(6)) or 227ZC(2)(b).
(14) If the offender fails to appear as required by the citation, the court may issue a warrant for the arrest of the offender.
(15) The unified citation provisions apply in relation to a citation under subsection (13) as they apply in relation to a citation under section 216(3)(a) of this Act.
227ZA Variation of community payback orders: further provision
(1) This section applies where a court is considering varying a community payback order imposed on an offender.
(2) The court must not make the variation unless it has obtained, and taken account of, a report from the responsible officer containing information about the offender and the offender's circumstances.
(3) An Act of Adjournal may prescribe—
(a) the form of a report under subsection (2), and
(b) the particular information to be contained in it.
(4) Subsection (2) does not apply where the court is considering varying a community payback order—
(a) so that it imposes only a level 1 unpaid work or other activity requirement, or
(b) imposed under section 227M(2).
(5) The clerk of the court must give a copy of any report obtained under subsection (2) to—
(a) the offender,
(b) the offender's solicitor (if any).
(6) Before making the variation, the court must explain to the offender in ordinary language—
(a) the purpose and effect of each of the requirements to be imposed by the order as proposed to be varied,
(b) the consequences which may follow if the offender fails to comply with any of the requirements imposed by the order as proposed to be varied, and
(c) where the court proposes to include in the order as proposed to be varied provision for a progress review under section 227X, or to vary any such provision already included in the order, the arrangements for such a review.
(7) The court must not make the variation unless the offender has, after the court has explained those matters, confirmed that the offender—
(a) understands those matters, and
(b) is willing to comply with each of the requirements to be imposed by the order as proposed to be amended.
(8) Where the variation would impose a new requirement—
(a) the court must not make the variation if the new requirement is not a requirement that could have been imposed by the order when it was imposed,
(b) if the new requirement is one which could have been so imposed, the court must, before making the variation take whatever steps the court would have been required to take before imposing the requirement had it been imposed by the order when it was imposed.
(9) Subsection (8)(a) does not prevent the imposition of a restricted movement requirement under section 227ZC(7)(d).
(10) In determining for the purpose of subsection (8)(a) whether an unpaid work or other activity requirement is a requirement that could have been imposed by the order when the order was imposed, the effect of section 227N(7) is to be ignored.
(11) Where the variation would vary any requirement imposed by the order, the court must not make the variation if the requirement as proposed to be varied could not have been imposed, or imposed in that way, by the order when it was imposed.
(12) Subsections (4) and (5) of section 227D apply, with the necessary modifications, where a community payback order is varied as they apply where such an order is imposed.
227ZB Change of offender's residence to new local authority area
(1) The section applies where—
(a) the offender on whom a community payback order has been imposed proposes to change, or has changed, residence to a locality (“the new locality”) situated in the area of a different local authority from that in which the locality currently specified in the order is situated, and
(b) the court is considering varying the order so as to specify the new local authority area in which the offender resides or will reside.
(2) The court may vary the order only if satisfied that arrangements have been, or can be, made in the local authority area in which the new locality is situated for the offender to comply with the requirements imposed by the order.
(3) If the court considers that a requirement (“the requirement concerned”) imposed by the order cannot be complied with if the offender resides in the new locality, the court must not vary the order so as to specify the new local authority area unless it also varies the order so as to—
(a) revoke or discharge the requirement concerned, or
(b) substitute for the requirement concerned another requirement that can be so complied with.
(4) Where the court varies the order, the court must also vary the order so as to require the local authority for the area in which the new locality is situated to nominate an officer of the authority to be the responsible officer for the purposes of the order.
(1) This section applies where it appears to the appropriate court that an offender on whom a community payback order has been imposed has failed to comply with a requirement imposed by the order.
(2) The court may—
(a) issue a warrant for the offender's arrest, or
(b) issue a citation to the offender requiring the offender to appear before the court.
(3) If the offender fails to appear as required by a citation issued under subsection (2)(b), the court may issue a warrant for the arrest of the offender.
(4) The unified citation provisions apply in relation to a citation under subsection (2)(b) as they apply in relation to a citation under section 216(3)(a) of this Act.
(5) The court must, before considering the alleged failure—
(a) provide the offender with written details of the alleged failure,
(b) inform the offender that the offender is entitled to be legally represented, and
(c) inform the offender that no answer need be given to the allegation before the offender—
(i) has been given an opportunity to take legal advice, or
(ii) has indicated that the offender does not wish to take legal advice.
(6) Subsection (5) does not apply if the offender has previously been provided with those details and informed about those matters under section 227X(10) of this Act.
(7) Where the order was imposed under section 227A, if the court is satisfied that the offender has failed without reasonable excuse to comply with a requirement imposed by the order, the court may—
(a) impose on the offender a fine not exceeding level 3 on the standard scale,
(b) where the order was imposed under section 227A(1), revoke the order and deal with the offender in respect of the offence in relation to which the order was imposed as it could have dealt with the offender had the order not been imposed,
(c) where the order was imposed under section 227A(4), revoke the order and impose on the offender a sentence of imprisonment for a term not exceeding—
(i) where the court is a justice of the peace court, 60 days,
(ii) in any other case, 3 months,
(d) vary the order so as to impose a new requirement, vary any requirement imposed by the order or revoke or discharge any requirement imposed by the order, or
(e) both impose a fine under paragraph (a) and vary the order under paragraph (d).
(8) Where the order was imposed under section 227M(2), if the court is satisfied that the offender has failed without reasonable excuse to comply with a requirement imposed by the order, the court may—
(a) revoke the order and impose on the offender a period of imprisonment for a term not exceeding—
(i) where the court is a justice of the peace court, 60 days,
(ii) in any other case, 3 months, or
(b) vary—
(i) the number of hours specified in the level 1 unpaid work or other activity requirement imposed by the order, and
(ii) where the order also imposes an offender supervision requirement, the specified period under section 227G in relation to the requirement.
(9) Where the court revokes a community payback order under subsection (7)(b) or (c) and the offender is, in respect of the same offence, also subject to—
(a) a drug treatment and testing order, by virtue of section 234J, or
(b) a restriction of liberty order, by virtue of section 245D(3),
the court must, before dealing with the offender under subsection (7)(b) or (c), revoke the drug treatment and testing order or, as the case may be, restriction of liberty order.
(9A) Where under subsection(8)(a) the court revokes the order and imposes on the offender a period of imprisonment, liability to pay the fine in respect of which the order was imposed (or, as the case may be, any instalments of the fine that are unpaid on the date that the period of imprisonment is imposed) is discharged.
(10) If the court is satisfied that the offender has failed to comply with a requirement imposed by the order but had a reasonable excuse for the failure, the court may, subject to section 227Z(2), vary the order so as to impose a new requirement, vary any requirement imposed by the order or revoke or discharge any requirement imposed by the order.
(11) Subsections (7)(b) and (c) and (9) are subject to section 42(9) of the Criminal Justice (Scotland) Act 2003 (asp 7) (powers of drugs courts to deal with breach of community payback orders).
227ZD Breach of community payback order: further provision
(1) Evidence of one witness is sufficient for the purpose of establishing that an offender has failed without reasonable excuse to comply with a requirement imposed by a community payback order.
(2) Subsection (3) applies in relation to a community payback order imposing a compensation requirement.
(3) A document bearing to be a certificate signed by the clerk of the appropriate court and stating that the compensation, or an instalment of the compensation, has not been paid as required by the requirement is sufficient evidence that the offender has failed to comply with the requirement.
(4) The appropriate court may, for the purpose of considering whether an offender has failed to comply with a requirement imposed by a community payback order, require the responsible officer to provide a report on the offender's compliance with the requirement.
(A1) Despite the generality of sections 227Z(2) and 227ZC(7)(d) for variation of a community payback order—
(a) a restricted movement requirement put or kept in the order must be accompanied in the order by an offender supervision requirement, and
(b) the court must ensure that the offender supervision requirement does not cease to have effect before the restricted movement requirement ceases to have effect.
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(5) Where the court makes or varies a community payback order so as to impose a restricted movement requirement, the court must give a copy of the order imposing the requirement to the person responsible for monitoring the offender's compliance with the requirement.
(6) If during the period for which the restricted movement requirement is in effect it appears to the person responsible for monitoring the offender's compliance with the requirement that the offender has failed to comply with the requirement, the person must report the matter to the offender's responsible officer.
(7) On receiving a report under subsection (6), the responsible officer must report the matter to the court.
(1) In this Act, a “restricted movement requirement” is, in relation to an offender, a requirement restricting the offender's movements to such extent as is specified.
(2) A restricted movement requirement may in particular require the offender—
(a) to be in a specified place at a specified time or during specified periods, or
(b) not to be in a specified place, or a specified class of place, at a specified time or during specified periods.
(3) In imposing a restricted movement requirement containing provision under subsection (2)(a), the court must ensure that the offender is not required, either by the requirement alone or the requirement taken together with any other relevant requirement or order, to be at any place for periods totalling more than 12 hours in any one day.
(4) In subsection (3), “ other relevant requirement or order ” means—
(a) any other restricted movement requirement in effect in respect of the offender at the time the court is imposing the requirement referred to in subsection (3), and
(b) any restriction of liberty order under section 245A in effect in respect of the offender at that time.
(5) A restricted movement requirement—
(a) takes effect from the specified day, and
(b) has effect for such period as is specified.
(6) The period specified under subsection (5)(b) must be—
(a) not less than 14 days, and
(b) subject to subsections (7) and (8), not more than 12 months.
(7) Subsection (8) applies as follows in relation to a community payback order—
(a) in the case of any restricted movement requirement imposed by the order, where the offender was under 18 years of age at the time the order was imposed, or
(b) in the case of a restricted movement requirement imposed under section 227ZC(7)(d), where the only requirement (apart from the restricted movement requirement) imposed by the order is a level 1 unpaid work or other activity requirement.
(8) The period specified under subsection (5)(b) must be not more than—
(a) where the order was imposed by a justice of the peace court, 60 days, or
(b) in any other case, 3 months.
(9) A court imposing a restricted movement requirement must specify in it—
(a) the method by which the offender's compliance with the requirement is to be monitored, and
(b) the person who is to be responsible for monitoring that compliance.
(10) The Scottish Ministers may by regulations made by statutory instrument substitute—
(a) for the number of hours for the time being specified in subsection (3) another number of hours,
(b) for the number of months for the time being specified in subsection (6)(b) another number of months.
(11) Regulations are not to be made under subsection (10) unless a draft of the statutory instrument containing the regulations has been laid before and approved by resolution of the Scottish Parliament.
(12) In this section, “ specified ”, in relation to a restricted movement requirement, means specified in the requirement.
227ZG Restricted movement requirements: further provision
(1) A court may not impose a restricted movement requirement requiring the offender to be, or not to be, in a specified place unless it is satisfied that the offender's compliance with the requirement can be monitored by the method specified in the requirement.
(2) Before imposing a restricted movement requirement requiring the offender to be in a specified place, the appropriate court must obtain and consider a written report by an officer of the local authority in whose area the place is situated on—
(a) the place, and
(aa) the suitability of the place (particularly with a view to maximising the prospect of the offender's compliance with the requirement and minimising the risk of reoffending by the offender),
(b) the attitude of any person (other than the offender) likely to be affected by the enforced presence of the offender at the place.
(3) The court may, before imposing the requirement, hear the officer who prepared the report.
227ZH Variation of restricted movement requirement
(1) This section applies where—
(a) a community payback order which is in force in respect of an offender imposes a restricted movement requirement requiring the offender to be at a particular place specified in the requirement for any period, and
(b) the court is considering varying the requirement so as to require the offender to be at a different place (“the new place”).
(2) Before making the variation, the appropriate court must obtain and consider a written report by an officer of the local authority in whose area the new place is situated on—
(a) the new place, and
(aa) the suitability of the new place (particularly with a view to maximising the prospect of the offender's compliance with the requirement and minimising the risk of reoffending by the offender),
(b) the attitude of any person (other than the offender) likely to be affected by the enforced presence of the offender at the new place.
(3) The court may, before making the variation, hear the officer who prepared the report.