Part 8: Anti-social behaviour

58.     Section 118 and Schedule 20 introduce powers for the courts to close, on a temporary basis, premises associated with significant and persistent disorder or persistent serious nuisance to members of the public. They set out the procedure for the issue of closure notices by the police and local authorities and for the making of applications for closure orders; and make provision for the enforcement (including by making breach of an order a criminal offence), extension and discharge of closure orders and for appeals against the grant or refusal of an order. Practitioners considering applying for a closure order under these provisions where there has been persistent disorder or nuisance would be required to consider any statutory guidance issued by the Secretary of State.

59.     Sections 119 to 122 and Schedule 21 create a new offence of causing nuisance or disturbance on NHS premises in England and Wales (and HSS premises in Northern Ireland) and confer powers on a constable or an authorised member of NHS staff to remove a person reasonably suspected of committing the offence from the premises concerned. Provision is made for the Secretary of State (or Welsh Ministers in respect of hospital premises in Wales) to issue guidance on the exercise, by NHS staff, of the removal powers.

60.     Section 123 provides for the annual review of Anti-Social Behaviour Orders, including orders made under section 1B or 1C of the Crime and Disorder Act 1998 (ASBOs) made against a child or young person under the age of 17. Section 124 requires a court to consider making an individual support order in all cases where an ASBO is made in respect of a child or young person.

61.     Section 125 extends the list of local authorities in England which may enter into a parenting contract or apply for a parenting order.

Part 9: Policing

62.     Sections 126 and 127 and Schedules 22 and 23 amend the procedures for dealing with matters in respect of the conduct and performance of police officers and special constables and in respect of the investigation of complaints and incidents of police misconduct.

63.     Section 128 amends section 57 of the Police Act 1996 to amplify the powers of the Secretary of State to provide financial assistance to organisations which promote the efficiency or effectiveness of the police.

64.     Section 129 extends the functions of Her Majesty's Inspectorate of Constabulary (HMIC) so that it may inspect the full range of police authority functions or any particular function.

Part 10: Special immigration status

65.     Part 10 (sections 130 to 137) makes provision for a new immigration status for designated foreign nationals who have committed terrorism or other serious criminal offences and who cannot currently be removed from the UK because of the operation of section 6 of the Human Rights Act 1998. Provision is made as to the effect of a designation on a person's immigration status, the conditions that may be imposed on a person so designated, appeals and support.

Part 11: Miscellaneous

66.     Section 138 reintroduces a statutory prohibition on the inducement of industrial action or breaches of discipline by prison officers in England and Wales and Scotland. Industrial action is defined for the purposes of section 127 of the Criminal Justice and Public Order Act 1994 as "the withholding of services as a prison officer" or "any action that would be likely to put at risk the safety of any person". Section 139 also provides a power for the Secretary of State to suspend or later revive the operation of the statutory prohibition by order.

67.     Section 140 and Schedule 24 place a duty on MAPPA authorities (police, prison and probation services) to consider, in each case, disclosure to members of the public of information in its possession relating to the convictions of any child sex offender being managed by it.

68.     Section 141 amends the criteria necessary for Sexual Offences Prevention Orders to be made.

69.     Section 142 amends the Sexual Offences Act 2003 in order to allow the Secretary of State to add, through secondary legislation, to the notification requirements placed on those convicted or cautioned of relevant sexual offences or otherwise subject to the sex offender notification requirements.

70.     Section 143 enables a magistrates' court to impose a restricted premises order or a restricted sales order on those who have persistently sold tobacco to under 18s.

71.     Section 144 inserts new sections 55A to 55E into the Data Protection Act 1998. These new sections create a framework for the Information Commissioner to serve a monetary penalty notice on a data controller.

72.     Section 145 gives effect to Schedule 25, which makes changes to armed forces legislation similar to certain provisions of the Act.

73.     Section 146 provides that the Secretary of State does not have to deport a person automatically where he thinks this would be contrary to the United Kingdom's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings.

Part 12: General

74.     Part 12 (sections 147 to 154 and Schedules 26 to 28) deals with the making of orders and regulations under the Act, contains consequential amendments and repeals of existing legislation, and provides for the commencement and extent of the Act.

BACKGROUND

Part 1 - Youth rehabilitation orders

75.     In September 2003, the Government published "Youth Justice - the next steps" (available at www.homeoffice.gov.uk/documents/cons-youth-justice-next-steps/) a companion document to the Green Paper "Every Child Matters". This paper set out possible reforms to the Youth Justice System. A summary of the responses to this consultation together with the Government's response was published in March 2004 (available at www.homeoffice.gov.uk/documents/cons-youth-jus-next-steps-summ/). Part 1 of the Act gives effect to the proposals to create a YRO.

Part 2 - Sentencing

76.     Section 9 gives effect to the proposal to set out the purpose of juvenile sentencing which was set out in "Youth Justice - the next steps".

77.     In May 2007 the Government published "Penal Policy - a background paper" (available at http://www.justice.gov.uk/penalpolicy.htm). The paper set out the Government's commitment to use prison and probation resources to best effect to protect the public, punish the offender and reduce re-offending. The paper set out new arrangements for the recall of non-dangerous offenders who breach the terms of their licence. Sections 29 and 30 give effect to these provisions.

78.     In December 2007, Lord Carter published his Review of Prisons: Securing the Future (available at www.justice.gov.uk/publications/securing_the_future.htm) Sections 11, 13-18, 21-23, 25-26, 28, 51 and 52 give effect to certain recommendations to manage the use of custody.

Part 3 - Appeals

79.     Concerns were expressed in recent judgments of the Court of Appeal, and in the response of the senior judiciary to the consultation paper "Quashing convictions" (available at www.cjsonline.gov.uk/downloads/application/pdf/quashing_convictions_consult.pdf), about cases where the Court of Appeal had found itself obliged to quash convictions that were valid according to the law at the time of the trial. The problem had arisen where an appeal turned on a development in the law since the date of conviction and the case had been referred by the CCRC. The Court's usual practice is to refuse an extension of time in which to appeal in "change of law" cases, but that solution is not available in cases referred by the CCRC since they are not subject to a leave requirement. Sections 42 and 43 respond to these concerns.

Part 4 - Other criminal justice provisions

80.     The Home Office issued a consultation on extending the ambit of the Rehabilitation of Offenders Act 1974 to cautions in 1999 (available at www.homeoffice.gov.uk/documents/cons-1999-rehab-offenders). Section 49 amends the 1974 Act to this end.

81.     The Home Office consultation "Reform of the Prevention of Corruption Acts and SFO Powers in Cases of Bribery of Foreign Officials," published in December 2005, included a proposal to extend investigatory powers (under section 2 of the Criminal Justice Act 1987) of the Serious Fraud Office (SFO) to the vetting stage in cases involving allegations of bribery or corruption of overseas officials. The consultation paper and the Government's response are available at www.homeoffice.gov.uk/documents/cons-2005-bribery/. Section 59 gives effect to this proposal.

82.     In a Written Ministerial Statement in April 1996 the then Home Secretary announced a number of changes to the way in which applications for compensation following a miscarriage of justice were handled. Section 61 of this Act gives effect to the legislative proposals announced in April 2006 and the changes impact mainly on the way in which the amount of compensation is assessed by the independent Assessor.

83.     Section 8 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 requires the Secretary of State to lay before Parliament at least once every year a report on the working of the Act. The terrorism provisions (in sections 1-4) of that Act have been repealed and incorporated in the Terrorism Act 2000 leaving only the conspiracy provisions (in sections 5-7) under which agreements to commit acts that are criminal offences in a foreign jurisdiction can be tried as criminal conspiracies in the UK. The conspiracy provisions have been used in a small number of cases and deemed to fulfil their intended purpose satisfactorily but successive reviewers have concluded that annual review of these provisions adds nothing of real value to the scrutiny through the judicial process of the working of the Act. On 10 December 2002 the then Home Secretary (David Blunkett) announced in a written statement (Hansard, column 12WS-14WS) that, on the recommendation of the then reviewer (Lord Carlile of Berriew QC), the requirement to conduct an annual review would be abolished when a legislative opportunity occurred. Section 62 gives effect to this decision.

Part 5 - Criminal law

84.     A joint Home Office/Scottish Executive consultation on extreme pornographic material was published in August 2005. A summary of the responses to this consultation together with the Government's response was published in August 2006 (available at www.homeoffice.gov.uk/documents/cons-extreme-porn-3008051/). Sections 63 to 67 give effect to these proposals.

85.     The offences introduced by section 75 and Schedule 17 are needed in order to facilitate UK ratification of amendments made in 2005 to the Convention on the Physical Protection of Nuclear Material (CPPNM). The original CPPNM was concluded under the auspices of the International Atomic Energy Agency in 1980. It entered into force in 1987, and there are currently 130 Parties. The UK is a Party, having signed the Convention in 1980 and ratified it in 1991.

86.     A joint Crown Prosecution Service/Association of Chief Police Officers leaflet was published in February 2005 (available at www.cps.gov.uk/Publications/docs/intruder_leaflet2005.pdf). This aimed to set out in plain language what householders' rights are and the level of force they can use when confronted by an intruder. In September 2007 the Justice Secretary announced the Government's intention to review the law on self-defence to address the issue of public understanding, which is still apparent. Section 76 clarifies the law on the use of force in self-defence or the prevention of crime.

87.     The provisions (in section 77) to amend the Data Protection Act 1998 to allow for custodial sanctions for those convicted of offences under section 55 of that Act were set out in a consultation paper in July 2006 "Increasing penalties for deliberate and wilful misuse of personal data". The Government's response was published in February 2007. Both documents are available at www.dca.gov.uk/consult/misuse_data/cp0906.htm.

Part 6 -International co-operation in relation to criminal justice matters

88.     Sections 80 to 92 implement the Council Framework Decision on the application of the principle of mutual recognition to financial penalties (2005/214/JHA), which was adopted in 2005. The Framework Decision allows a financial penalty imposed on an offender in one European Union Member State to be transferred to another Member State for enforcement. Responsibility for the enforcement of financial penalties received from another Member State will rest with the magistrates' court where the offender is located and its designated Fines Officer, in line with their responsibilities for enforcement of fines imposed domestically.

Part 7 - Violent offender orders

89.     The Government announced its intention to introduce violent offender orders in "Rebalancing the criminal justice system in favour of the law-abiding majority" published in July 2006 (available at www.homeoffice.gov.uk/documents/CJS-review.pdf/CJS-review-english.pdf). A consultation paper was subsequently issued by the Home Office in April 2007 and a summary of the response published in June 2007 ("Stakeholder consultation on Violent Offender Orders: Summary of responses and next steps" available at www.homeoffice.gov.uk/documents/response-violent-offender.pdf).

Part 8 - Anti-social behaviour

90.     The Government published its consultation paper "Strengthening powers to tackle anti-social behaviour" in November 2006 (available at www.homeoffice.gov.uk/documents/cons-asb-powers/). A summary of the responses to this consultation together with the Government's response was published in May 2007 and is available at www.homeoffice.gov.uk/documents/response-asb-powers?version=1. Section 118 gives effect to the proposals to introduce premises closure orders.

91.     The Department of Health published a consultation paper "Tackling nuisance or disturbance behaviour on NHS healthcare premises in June 2006 (available at www.dh.gov.uk/Consultations/ClosedConsultations/ClosedConsultationsArticle/fs/en?CONTENT_ID=4138711&chk=mE2N5d). The consultation document proposed new powers for NHS health bodies to deal with individuals causing a nuisance or disturbance on NHS premises. A summary of the responses to this consultation together with the Government's response was published in November 2006 (available at www.dh.gov.uk/Consultations/ResponsesToConsultations/ResponsesToConsultationsDocumentSummary/fs/en?CONTENT_ID=4140248&chk=Z%2B9but). Sections 119 to 121 give effect to these proposals.

Part 9 - Policing

92.     A fundamental review of the police officer disciplinary arrangements was published in January 2005. The report is available at press.homeoffice.gov.uk/documents/police-disciplinary-arrangements/. Sections 126 to 127 and Schedules 22 and 23 give effect to those recommendations which require primary legislation.

Part 10 - Special immigration status

93.     Part 10 gives effect to the Home Secretary's commitment to legislate to deny leave to enter or remain to certain foreign nationals who can not be removed from the UK compatibly with the United Kingdom's obligations under the European Convention on Human Rights (ECHR). The commitment was made following the judgment of the Court of Appeal in S and others vs Secretary of State for the Home Department in August 2006.

Part 11 - Miscellaneous

94.     Section 127 of the Criminal Justice and Public Order Act 1994 enabled the Secretary of State (or in Scotland, Scottish Ministers) to bring an action against any person who causes loss or damage by inducing a prison officer to withhold his services as such an officer or to commit a breach of discipline. It also enabled actions to be brought where there was an anticipated contravention of the section. The effect of the Regulatory Reform (Prison Officers) (Industrial Action) Order 2005 (the 2005 Order) was that section 127 no longer applied in relation to such an inducement in respect of a prison officer in England and Wales, or in Scotland, although it continued to apply in respect of prison officers in Northern Ireland as well as custody officers in private sector prisons.

95.     The 2005 Order followed the signing of the Joint Industrial Relations Partnership Agreement (JIRPA) between the Prison Service and POA which included an express undertaking by the POA not to "induce, authorise or support any form of industrial action by any of its members employed in the Prison Service relating to a dispute concerning any matter, whether covered by this agreement or otherwise". A similar Voluntary Agreement was signed by the Scottish Prison Service and POA. The POA subsequently gave notice of their withdrawal from the JIRPA which expired on 8 May 2008. The POA in Scotland has not withdrawn from their equivalent agreement.

96.     Section 138 reintroduces a statutory prohibition on inducing prison officers in England and Wales and Scotland to take industrial action or commit a breach of discipline.

97.     The "Review of the Protection of Children from Sex Offenders" was commissioned by the Home Secretary in June 2006 and was published in June 2007 (available at www.homeoffice.gov.uk/documents/CSOR/chid-sex-offender-review-130607?view=Binary). Sections 140 to 142 give effect to some of the recommendations of the review.

98.     In the 2004 Choosing Health White Paper, the Government signalled its intention to introduce preventative orders to deal more effectively with those who repeatedly sell tobacco products to under-age children. The implementation of the scheme was the subject of public consultation in July. A summary of the responses to this consultation together with the Government's response was published in February 2007 (available at www.dh.gov.uk/en/Consultations/Responsestoconsultations/DH_065350). Section 143 gives effect to the scheme.

99.     The Home Secretary announced in January 2008 the Government's intention to ratify the Council of Europe Convention against trafficking during 2008. A copy of the Convention is available at http://www.coe.int/t/dg2/trafficking/campaign/Source/PDF_Conv_197_Trafficking_E.pdf. Section 146 ensures that the UK can comply with the Convention once it has been ratified.

TERRITORIAL EXTENT

100.     In the main the Act's provisions extend to England and Wales only, but certain provisions also extend to Scotland or Northern Ireland, or both. In relation to Scotland, Wales and Northern Ireland, the Act addresses both devolved and non-devolved matters.

101.     The provisions of the Act relating to the following reserved matters extend to Scotland:

• the new offences relating to nuclear material and nuclear facilities together with the other related amendments to the 1983 Act and the Customs and Excise Management Act 1979 (section 75 and Schedule 17);

• the power of the Secretary of State to make an order altering the maximum penalty for unlawfully obtaining etc. personal data (section 77) and the new defence in respect of an offence under section 55 of the Data Protection Act 1998 (section 78);

• the amendments to the Ministry of Defence Police Act 1987 and the Railways and Transport Safety Act 2003 in relation to the misconduct and performance procedures for Ministry of Defence Police and British Transport Police officers (Parts 2 and 3 of Schedule 22);

• the new special immigration status for certain foreign nationals (Part 10);

• industrial action by prison officers (sections 138 and 139);

• power to require data controllers to pay monetary penalty (section 144); and

• the amendments to the UK Borders Act 2007 in relation to trafficking (section 146).

102.     The Scottish Parliament's consent was sought for the provisions in the Act that trigger the Sewel Convention. These provisions relate to sections 59 (SFO's pre-investigatory powers in relation to bribery and corruption), 93 to 96 (repatriation of prisoners) and 113 (offences in respect of VOOs). The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. The consent was given on 30 January 2008. (see Official Report at www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-08/sor0130-02.htm#Col5627.

103.     The provisions of the Act relating to the following excepted or reserved matters also extend to Northern Ireland:

• YROs to the extent that the provisions allow for such Orders made in England and Wales to be enforced in Northern Ireland and for certain orders made in Northern Ireland to be enforced by means of arrangements for YROs in England and Wales (section 3 and Schedule 3);

• youth default orders, to the extent that the provisions allows for such orders made in England and Wales to be enforced in Northern Ireland (section 39)

• the provisions relating to appeals and unduly lenient sentences (sections 43, 45, 46 and Part 2 of Schedule 8);

• the amendments to the compensation for miscarriages of justice regime in the Criminal Justice Act 1998 (section 61);

• the repeal of the requirement to undertake an annual review of the operation of Criminal Justice (Terrorism and Conspiracy) Act 1998 (section 62);

• the new offence of possession of extreme pornographic material and amendment to the definition of an indecent photograph in the Protection of Children (Northern Ireland) Order 1998 (sections 63 to 68 and 70);

• the new offences relating to nuclear material and nuclear facilities together with the other related amendments to the 1983 Act and the Customs and Excise Management Act 1979 (section 75 and Schedule 17);

• the clarification of the law on self defence (section 76);

• the power of the Secretary of State to make an order altering the maximum penalty for unlawfully obtaining etc. personal data (section 77) and the new defence in respect of an offence under section 55 of the Data Protection Act 1998 (section 78);

• the mutual recognition of financial penalties (sections 82, 83, 86 to 89, 90 and 92 and Schedules 18 and 19)

• mutual legal assistance in respect of revenue matters (section 97);

• the amendments to the Ministry of Defence Police Act 1987 in relation to the misconduct and performance procedures for Ministry of Defence Police officers (Part 2 of Schedule 22);

• the new special immigration status for certain foreign nationals (Part 10);

• industrial action by prison officers (sections 138 and 139); and

• power to require data controllers to pay monetary penalty (section 144).

104.     In addition, the Act contains provisions relating to one transferred matter, namely the new offence of causing nuisance or disturbance on HSS premises (section 122 and Schedule 21). These provisions extend to Northern Ireland only. The Northern Ireland Assembly agreed a Legislative Consent Motion in respect of these provisions on 3 December 2007 (see Official Report at http://www.niassembly.gov.uk/record/reports2007/071203.htm#3).

105.     In relation to Wales, the subject matter of the Act has not been transferred except for:

• YROs - to the extent that they draw on local authority or NHS services;

• Premises closure orders - to the extent that they confer powers or duties on local authorities;

• Nuisance or disturbance on NHS premises - to the extent they confer powers on NHS staff and

• Review of ASBOs - to the extent that they impose powers or duties on local authorities.

106.     Certain provisions of the Act extend, or may be extended, to the Channel Islands, Isle of Man etc. (see section 152(6) to (9)).

THE ACT

COMMENTARY ON SECTIONS

Part 1: Youth rehabilitation orders

Section 1 and Schedule 1: Youth rehabilitation orders

107.     Section 1 and Schedule 1 provide for YROs. This is the new community sentence for offenders aged under 18. It combines several existing community sentences into one new generic community sentence. When imposing a YRO, the court will be able to choose from a "menu" of different requirements that the offender must comply with.

108.     Subsection (1) provides that a YRO may impose on the offender one or more of the following requirements:

• an activity requirement;

• a supervision requirement;

• if the offender is aged 16 or 17, an unpaid work requirement;

• a programme requirement;

• an attendance centre requirement;

• a prohibited activity requirement;

• a curfew requirement;

• an exclusion requirement;

• a residence requirement;

• a local authority residence requirement;

• a mental health treatment requirement;

• a drug treatment requirement;

• a drug testing requirement;

• an intoxicating substance treatment requirement;

• an education requirement.

109.     Subsection (2) provides that a YRO may also impose an electronic monitoring requirement as described in paragraph 26 of Schedule 1. An electronic monitoring requirement must be imposed where a YRO imposes a curfew or exclusion requirement (paragraph 2 of Schedule 1) unless in the particular circumstances of the case, the court is satisfied it would be inappropriate to do so or it is not practicable for the reasons set out in paragraph 26(3) or (6).

110.     Subsections (3) and (4) and paragraphs 3 and 4 of Schedule 1 provide for a YRO with intensive supervision and surveillance and a YRO with fostering.

111.     Subsection (4) provides that a court may not impose a YRO with intensive supervision and surveillance or a YRO with fostering unless the offence is punishable with imprisonment and the court is satisfied that the offence (on its own or with others) is so serious that, but for the availability of these orders, a custodial sentence would be appropriate (or where the offender is under 12, would be appropriate if the offender had been 12). For offenders under the age of 15, the court must be satisfied that they are persistent offenders.

112.     Paragraph 3 of Schedule 1 provides that if the conditions in subsection (4) are met the order may impose an "extended activity requirement" (for a number of days between 90 and 180). An order containing such a requirement is "a YRO with intensive supervision and surveillance". Such an order must also impose a supervision requirement, a curfew requirement and an electronic monitoring requirement (unless inappropriate or impracticable) and may also impose other requirements.

113.     Paragraph 4 of Schedule 1 sets out additional conditions to those in subsection (4) of section 1 which must be met before a court can impose a YRO with fostering. The court has to be satisfied that the behaviour which constituted the offence was due to a significant extent to the circumstances in which the offender was living and that the imposition of such a requirement would assist in the offender's rehabilitation. The court must also consult the local authority and (where practicable) the parents or guardians of the offender prior to imposing this requirement. A YRO with fostering must also impose a supervision requirement. The offender must be given the opportunity of legal representation (paragraph 19).

114.     Subsection (6) of section 1 applies the restrictions which apply to other community sentences under sections 148 and 150 of the 2003 Act to the YRO. The effect is that a YRO must not be imposed on an offender unless the court considers the offence or offences serious enough to warrant it; that the requirements forming part of the YRO must be the most suitable for the offender and the restrictions on liberty imposed by the order must be commensurate with the seriousness of the offence. A YRO will not be available in a case where the penalty is fixed by law, such as murder, or where there is a mandatory custodial sentence.

115.     Paragraph 5 of Schedule 1 provides that a YRO with intensive supervision and surveillance may not impose a fostering requirement. Paragraph 5 also provides that if the offender fails to comply with a pre-sentence drug testing order the court may impose a YRO with intensive supervision and surveillance. There is already existing provision in section 152(3)(b) of the 2003 Act which provides that if a juvenile or adult offender fails to comply with a pre-sentence drug testing order under section 161(2) of that Act, the court may pass a custodial sentence.

116.     Part 2 of Schedule 1 makes detailed provision about the requirements which may be imposed in a YRO. They are largely self explanatory and not all details are repeated here. Paragraphs 6 to 8 deal with the activity requirement. An offender may be required to participate in specified activities including residential exercises. Other than where intensive supervision and surveillance is imposed, an activity requirement cannot be for more than a total of 90 days.

117.     Paragraph 8(3) provides that the court may not include an activity requirement unless it has consulted a member of the youth offending team, or an officer of a local probation board or an officer of a provider of probation services and it is satisfied that it is feasible to secure compliance with the requirement. Paragraph 8(4) states that an activity requirement, which requires co-operation with anybody other than the offender and the responsible officer (defined in section 6 below) may only be included with that other person's consent.

118.     Paragraph 9 of Schedule 1 provides for a supervision requirement and reflects, with modifications, paragraph 2 of Schedule 6 to the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act). The offender may be required to attend appointments arranged by the responsible officer.

119.     Paragraph 10 of Schedule 1 provides for an unpaid work requirement and is modelled on section 199 of the 2003 Act. An unpaid work requirement may be for between 40 and 240 hours and could include, for example, graffiti cleaning, community artwork or work to repair or improve community facilities. Unpaid work is currently available, for 16 and 17 year olds, as part of the community punishment order.

120.     Paragraph 11 of Schedule 1 provides for a programme requirement. A programme requirement is a new requirement for juveniles and is designed to allow juvenile offenders to engage in programmes that will address their offending behaviour, teach life skills or other positive interventions. It is modelled on section 202 of the 2003 Act. Paragraph 11(1) defines a "programme requirement" as a requirement that the offender participates in a specified systematic set of activities, which may include a residential programme.

121.     Paragraph 12 provides for an attendance centre requirement which enables the court to require an offender to attend an attendance centre for up to 12 hours for an offender aged under 14, and for between 12 and 24 hours for an offender aged 14 or 15 and for between 12 and 36 hours for an offender aged 16 or over.

122.     Paragraph 13 provides for a prohibited activity requirement. It is modelled on section 203 of the 2003 Act. It allows the court to require an offender to refrain from participating in certain activities at specified times. Paragraph 13(3) makes it clear that the court can make a prohibited activity requirement which prohibits a defendant from possessing, using or carrying a firearm.

123.     Paragraph 14 provides for a curfew requirement. This paragraph re-enacts, with some modification, section 37 of the 2000 Act. A curfew requirement may require the offender to remain at a place specified by the court for between two hours and twelve hours in any given day. The order might, for example, require the offender to stay at home during the evening and night hours. Paragraph 14(3) limits the curfew period to a maximum of six months. Under paragraph 14(4) the court must obtain and consider information about the place specified in the order and the attitude of persons likely to be affected by the presence of the offender.

124.     Paragraph 15 of Schedule 1 provides for an exclusion requirement. This paragraph re-enacts, with modification, section 40A of the 2000 Act. An exclusion requirement may prohibit the offender from entering a place or area for up to 3 months. Paragraph 15(3) makes it clear that the order may stipulate that the prohibition may operate only for certain periods of time and may specify different places for different periods.

125.     Paragraph 16 of Schedule 1 provides for a residence requirement. A residence requirement may require that an offender live with a specified individual (who must consent to the requirement by virtue of paragraph 16(2)) or, if the offender is 16 or over, at a specified place and is modelled on current powers available as part of the supervision order. Under paragraph 16(6), before making a residence requirement specifying a place, the court must consider the home surroundings of the offender. Paragraph 16(7) provides that the court must only specify a hostel or other institution as a place of residence on the recommendation of a member of a youth offending team, an officer of a local probation board, an officer of a provider of probation services, or a local authority social worker.

126.     Paragraph 17 of Schedule 1 provides for a local authority residence requirement and is modelled on paragraph 5 of Schedule 6 to the 2000 Act. The order may require the offender to live in accommodation provided by or on behalf of a specified local authority for up to 6 months and may also stipulate that the offender may not live with a specified person. The court may not impose a local authority residence requirement unless it is satisfied that the behaviour leading to the offence was due to a significant extent to the offender's living circumstances and that the requirement will assist in his rehabilitation. The court must consult the offender's parent or guardian (if practicable) and the local authority which is to receive the offender.

127.     Paragraph 18 of Schedule 1 provides for a fostering requirement and is modelled on current powers that are available as part of supervision order in paragraph 5A of Schedule 6 to the 2000 Act. An offender may be required to live with a local authority foster parent for a specified period, generally subject to a maximum of 12 months. Paragraph 18(6) makes it clear that this paragraph does not affect the power of a local authority to place an offender subject to a local authority residence requirement with a local authority foster parent.

128.     Paragraph 19 of Schedule 1 makes it a precondition for imposing a local authority residence requirement or fostering requirement that the offender has had the opportunity to be legally represented

129.     Paragraphs 20 and 21 of Schedule 1 provide for a mental health treatment requirement. Mental health treatment is currently available as part of the supervision order and is provided for in paragraph 6 of schedule 6 to the 2000 Act. The court may direct the offender to submit to mental health treatment under the treatment of a registered medical practitioner or chartered psychologist (or both). Treatment may be provided in a hospital or care home (but not a hospital where high security psychiatric services are provided), or as a non-resident patient. Under paragraph 20(3), before including a mental health treatment requirement, the court must be satisfied that the offender's mental condition requires treatment and is treatable, but is not such that it warrants making a hospital or guardianship order under the Mental Health Act 1983. The offender must be willing to comply with treatment.

130.     Paragraph 21 of Schedule 1 deals with mental health treatment at a place other than that specified in the order. Paragraph 21(1) allows the medical practitioner or chartered psychologist to vary the arrangements in a mental health treatment. Paragraph 21(2) makes clear that the offender must have expressed a willingness to comply with the varied arrangements.

131.     Paragraph 22 of Schedule 1 provides for a drug treatment requirement and paragraph 23 for a drug testing requirement. These are modelled upon those available to juveniles of all ages subject to an action plan order and supervision order in section 70 of and Schedule 6 to the 2000 Act. The offender may be required to undergo drug treatment by or under the direction of a specified person with the necessary qualifications or experience. The court must be satisfied that the offender is dependent on or has a propensity to misuse any drug and requires and may be susceptible to treatment. The treatment can be residential or non-residential, but the type of treatment cannot be specified. The offender must be willing to comply with the requirement.

132.     Paragraph 23(1) of Schedule 1 provides for a drug testing requirement which may require the offender to provide samples in accordance with instructions given by his responsible officer for drug testing purposes. A drug testing requirement may only be imposed with a drug treatment requirement and only for an offender who is willing to comply with that requirement.

133.     Paragraph 24 of Schedule 1 provides for an intoxicating substance treatment requirement. This is a new requirement and is designed to enable treatment for alcohol and other intoxicating substances. The offender may be required to undergo treatment by or under the direction of a specified person with the necessary qualifications or experience. The court must be satisfied that the offender is dependent on or has a propensity to misuse intoxicating substances. The treatment can be residential or non-residential, but otherwise the nature of the treatment cannot be specified. Paragraph 24(5) defines intoxicating substance as alcohol or any other substance (other than a drug) which is capable of being used for the purpose of causing intoxication. The offender must be willing to comply with the requirement.

134.     Paragraph 25 of Schedule 1 provides for an education requirement. An education requirement is currently available as part of a supervision order and action plan order under section 63 (read with paragraph 7 of Schedule 6) and section 70(1)(e) respectively of the 2000 Act. The order may require the offender to comply with approved education arrangements i.e. made by the offender's parent or guardian and approved by the local authority. The court must be satisfied that suitable arrangements exist for the offender's appropriate full-time education needs and that such a requirement is necessary for the offender's future good conduct or prevention of further offending.

135.     Paragraph 26 of Schedule 1 provides for the electronic monitoring requirement. Electronic monitoring is currently available as a requirement of youth community orders under section 36B of the 2000 Act. Paragraph 26(3) provides that where it is proposed to include an electronic monitoring requirement as part of a YRO, this may only be done with the consent of any person (other than the offender) whose compliance would be required. For example this person might be the offender's parent or guardian. Paragraph 26(4) provides that this requirement must include provision for making a person responsible for monitoring and paragraph 26(5) provides that the person must be of a description specified in an order made by the Secretary of State (such an order is not subject to any parliamentary procedure).

136.     Under paragraph 27 the Secretary of State may by order amend the maximum number of hours which may be specified in an unpaid work or curfew requirement. The Secretary of State may also by order amend the time periods specified in relation to the curfew requirement, exclusion requirement, local authority residence requirement and fostering requirement. An order made under this paragraph is subject to the affirmative resolution procedure.

137.     Part 3 of the Schedule makes further provision for the procedure for making YROs. Under paragraph 28 prior to imposing a YRO, the court must obtain and consider information about the offender's family circumstances and the likely effect of such an order on those circumstances.

138.     Paragraph 29 of Schedule 1 requires a court to consider whether requirements are incompatible with each other. As far as practicable, the court must ensure that any requirement imposed is such as to avoid any conflict with the offender's religious beliefs and any interference with the times at which the offender works or attends school. The offender's responsible officer must also take steps to ensure that any instructions or directions given avoid any such conflict. Under paragraph 29(4) the Secretary of State has the power to add further restrictions by order (subject to the negative resolution procedure).

139.     Paragraph 30 of Schedule 1 provides for the operative date of YROs. Where a YRO is imposed on an offender who is already serving a detention and training order, the court may order that the YRO will commence either with the commencement of the period of supervision of the detention and training order, or on the expiry of the detention or training order or on the day after the order is made. In all other cases the YRO will commence the day after the day on which the order was made. A court may not make a YRO if the offender is already serving a similar order or a reparation order unless the existing order is revoked.

140.     Paragraph 31 of Schedule 1 makes provision for concurrent and consecutive orders. Where the court is dealing with an offender for two or more offences, it may impose more than one YRO but it may not impose YROs of different kinds (for example, it may not impose a YRO with intensive supervision and surveillance and any other YRO). If the court imposes more than one YRO with intensive supervision and surveillance or with fostering, under paragraph 31(3) they must begin at the same time. Under paragraph 31(4) the court must direct whether similar requirements in different orders are to be served concurrently or consecutively. Where they are to be served consecutively, the aggregate of the periods imposed for requirements of a particular kind must not exceed the maximum period for a single such requirement (see paragraph 31(6)). Under paragraph 31(5) two or more fostering requirements cannot be served consecutively.

141.     Part 4 of Schedule 1 makes further general provision for where the court makes a YRO. Paragraph 32 provides that the order must specify a date not more than 3 years after it is made by which the requirements must have been complied with. The order may also specify different dates for two or more requirements within the order. In relation to a YRO with intensive supervision and surveillance, the specified date must not be earlier than 6 months after the order takes effect.

142.     Paragraph 34 of Schedule 1 makes provision for copies of orders to be provided by the court to the offender and to other relevant persons depending on the circumstances. The court has to provide copies of the order it makes to certain people who are relevant to the carrying out of the order: to the offender, if the offender is under 14, to his parent or guardian (or, if the offender is in local authority care or accommodation, that authority), and to the youth offending team member, an officer of a local probation board assigned to the court or an officer of a provider of probation services. Under paragraph 34(3) if the order is made by any Crown Court or a magistrates' court outside the area in which the offender will be carrying out the order, the court must send a copy of the order, and any other documents and information relating to the case that the sentencing court thinks the second court would find of assistance, to the magistrates court and provide a copy of the order to the local probation board in that area or a provider of probation services operating in that area.

143.     Paragraph 35 of Schedule 1 enables the Secretary of State by order (subject to the affirmative resolution procedure) to make provision allowing or requiring YROs to be reviewed by the courts. It is intended that the decision to extend reviews to YROs would be based on consultation with the courts. An order under this paragraph may repeal or amend any provision of this Part 1 of the Act or Chapter 1 of Part 12 of the 2003 Act dealing with the general provisions about sentencing.