Complainers: Mitchell; Virgil Crawford, Stirling

Respondent: Erroch AD; Crown Agent

15 June 2012

[1] On 15 June 2012 the court passed two Bills of Suspension brought by Cummings Kirk and Andrew Hunter by suspending simpliciter a requirement in community payback orders made against them to the effect "requires the offender, for the period of 12 months from the date of this requirement to refrain from committing any criminal offence". In the case of the first named complainer the order in question was imposed by the Sheriff at Stirling on 29 February 2012 and in the case of the second named complainer the Sheriff at Stirling imposed the order on 22 February 2012. Both of these requirements were referred to in the relevant orders as "conduct requirements". A "conduct requirement" is defined in section 227W of the Criminal Procedure (Scotland) Act 1995 in relation to community payback orders.

[2] After considering the terms of the bills and submissions made by Miss Mitchell, counsel for both of the complainers, we reached the conclusion that the imposition of such a requirement as had been imposed in both these cases was incompetent in terms of the relevant legislation. We were advised that there were a number of outstanding cases where such requirements had been imposed in relation to community payback orders made in the Sheriff Court. We were informed, on behalf of the Crown, that its position was neutral with regard to the challenge as to the competency of the terms of the orders made in these cases. In passing the Bills we said that we would give written reasons for doing so in due course which we now do.

[3] The passing of section 227A of the 1995 Act, which introduced community payback orders has resulted in such orders replacing probation, community service and supervised attendance orders. It appears that the legislative intent in bringing into effect this form of sentencing disposal was to provide for community sentencing options in a package which is tailored for the particular needs and circumstances of the particular offender. The structure of the legislation relating to these orders refers, in section 227A, to types of requirements that may be made of the offender in the order itself which requirements are further specified and defined - see sections 227G, 227H, 227I, 227S, 227Q, 227R, 227U, 227V. Section 227W which is headed "Conduct requirement" is in the following terms:

"(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 defender, or

(b) preventing further offending by the offender.

(3) The specified period must be not more than three 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."

There are detailed provisions in the legislation as to the consequences of an offender in respect of whom a community payback order has been made breaching a requirement contained therein - see section 227ZC and 227ZD.

[4] Counsel for the complainers submitted that, having regard to the legislative intention in providing for community payback orders there could not be embraced in the definition of "conduct requirement" a general requirement to be of good behaviour or to refrain from further criminal offending. The purpose of these orders was, to a large extent, to enable the offender to repay his debt to the community for his offence and to assist him in keeping out of trouble in the future. A conduct requirement was intended to promote the aims of securing or promoting good behaviour by the offender or preventing further offending by him. The Scottish Parliament had in this legislation deliberately departed from the position that obtained in relation to the previous regime of probation orders under section 228(5)(b) of the 1995 Act which provided:

"Before making a probation order, the court shall explain to the offender in ordinary language -

(b) that if he fails to comply with the order or commits another offence during the probation period he will be liable to be sentenced for the original offence or may be dealt with under the powers provided for in section 42(4) of the Criminal Justice (Scotland) Act 2003 (powers of drugs courts)"

Had the Parliament intended that the sentencing judge, in imposing a community payback order, should be entitled to make a requirement in terms of what had appeared in that provision or words to that effect, they would have surely provided for that expressly in the new legislation. A failure to do so was a clear indication that they did not consider that a requirement in such terms should be imposed in relation to a community payback order.

[5] Our attention was drawn to a statement by the Justice Minister in moving the amendments which became the provisions regarding the imposition of a "conduct requirement", before the Justice Committee on 16 March 2010 when he said:

"Amendments 201, 204, 207, 236 and 275 provide for a court at any level that is imposing a community payback order to include within that order a conduct requirement. In a conduct requirement, the court may require that the offender must do or refrain from doing specified things in a way that is conducive to achieving the outcome of promoting good behaviour or preventing further offending. The provision is similar to the power of the court in relation to probation orders in section 229 of the Criminal Procedure (Scotland) Act 1995."

See Justice Committee Official Report of 16 March 2011 Col 2771. It should be noted that nothing was said in section 229 of the 1995 Act about the offender being required to be of good behaviour or not to re-offend. That statement showed, it was submitted, that it was not the intention of the Scottish Parliament to replicate entirely, the position previously obtaining in relation to probation orders. The committing of a new offence was not something which constituted expressly a breach of the community payback order under the legislation. For these reasons the imposition by the sheriffs in these cases of conduct requirements in the terms pronounced by them did not fall within their powers under the new legislation.

[6] We considered that these submissions were sound. It appeared to us that, having regard to the statutory language employed, the Scottish Parliament had, in providing for conduct requirements, as specified in section 227W(2) done so expressly for the purpose of seeking or promoting the good behaviour of the offender or preventing further offending by him. In other words any such requirement is to be seen as providing a means which the court considers necessary to achieve the end of good behaviour on the part of the offender. To impose a requirement to be of good behaviour or to refrain generally from committing criminal offences would be to impose the end as a requirement, not to impose a requirement to seek or promote that end. It is noteworthy that the terms of section 227W(1) defines "conduct requirement" as, "in relation to an offender, a requirement that the offender must, during the specified period, do or refrain from doing specified things". The imposition of a condition to stay out of trouble or refrain from committing another criminal offence would be a requirement of generality and not specificity. We note also the provisions of section 227G(1) and (2)which are in the following terms:

"(1) In this Act, an "offender's 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 eighteen years of age at the time that the order is imposed, or

(b) the court, in the order, imposes -

(vii) a conduct requirement."

That wording, we consider, supports the approach to the matter we have taken in emphasising the rehabilitative nature of the requirement imposed. Our approach to the construction of the statutory provisions in question, is also supported by the contrast as to what was provided for expressly in section 228(5) of the 1995 Act and the statement of the Minister of Justice referred to above. Any offending behaviour during the currency of the community payback order will now require to be dealt with simply, and separately, by the criminal process.

[7] It is to be noted that the conclusions we have reached on the matter mean that we consider the views expressed in relation to "conduct requirements" at para 3.9 of the Judicial Studies Committee Briefing Paper on Community Payback Orders (February 2011) are unsound.

[8] Lastly the complainers sought originally to raise, inappropriately, the issues just discussed by way of Notes of Appeal. In the event it was conceded that these appeals should be refused for want of insistence.