Crime and Disorder Act 1998 (c. 37)

(The document as of February, 2008)

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(2) Everything that the Crown Court is required to do under the following provisions of this paragraph must be done with the accused present in court.

(3) The court shall cause to be read to the accused each count of the indictment that charges an offence triable either way.

(4) The court shall then explain to the accused in ordinary language that, in relation to each of those offences, he may indicate whether (if it were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty the court must proceed as mentioned in sub-paragraph (6) below.

(5) The court shall then ask the accused whether (if the offence in question were to proceed to trial) he would plead guilty or not guilty.

(6) If the accused indicates that he would plead guilty the court shall proceed as if he had been arraigned on the count in question and had pleaded guilty.

(7) If the accused indicates that he would plead not guilty, or fails to indicate how he would plead, the court shall consider whether the offence is more suitable for summary trial or for trial on indictment.

(8) Subject to sub-paragraph (6) above, the following shall not for any purpose be taken to constitute the taking of a plea--

(a) asking the accused under this paragraph whether (if the offence were to proceed to trial) he would plead guilty or not guilty;

(b) an indication by the accused under this paragraph of how he would plead.

8 (1) Subject to paragraph 13 below, this paragraph applies in a case where--

(a) a person has been sent for trial under section 51 of this Act but has not been arraigned;

(b) he is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason) includes no offence that is triable only on indictment;

(d) the Crown Court considers that by reason of his disorderly conduct before the court it is not practicable for proceedings under paragraph 7 above to be conducted in his presence; and

(e) the court considers that it should proceed in his absence.

(2) In such a case--

(a) the court shall cause to be read to the representative each count of the indictment that charges an offence triable either way;

(b) the court shall ask the representative whether (if the offence in question were to proceed to trial) the accused would plead guilty or not guilty;

(c) if the representative indicates that the accused would plead guilty the court shall proceed as if the accused had been arraigned on the count in question and had pleaded guilty;

(d) if the representative indicates that the accused would plead not guilty, or fails to indicate how the accused would plead, the court shall consider whether the offence is more suitable for summary trial or for trial on indictment.

(3) Subject to sub-paragraph (2)(c) above, the following shall not for any purpose be taken to constitute the taking of a plea--

(a) asking the representative under this section whether (if the offence were to proceed to trial) the accused would plead guilty or not guilty;

(b) an indication by the representative under this paragraph of how the accused would plead.

9 (1) This paragraph applies where the Crown Court is required by paragraph 7(7) or 8(2)(d) above to consider the question whether an offence is more suitable for summary trial or for trial on indictment.

(2) Before considering the question, the court shall afford first the prosecutor and then the accused an opportunity to make representations as to which mode of trial would be more suitable.

(3) In considering the question, the court shall have regard to--

(a) any representations made by the prosecutor or the accused;

(b) the nature of the case;

(d) whether the punishment which a magistrates' court would have power to impose for it would be adequate; and

(e) any other circumstances which appear to the court to make it more suitable for the offence to be dealt tried in one way rather than the other.

10 (1) This paragraph applies (unless excluded by paragraph 15 below) where the Crown Court considers that an offence is more suitable for summary trial.

(2) The court shall explain to the accused in ordinary language--

(a) that it appears to the court more suitable for him to be tried summarily for the offence, and that he can either consent to be so tried or, of he wishes, be tried by a jury; and

(b) that if he is tried summarily and is convicted by the magistrates' court, he may be committed for sentence to the Crown Court under section 38 of the 1980 Act if the convicting court is of such opinion as is mentioned in subsection (2) of that section.

(3) After explaining to the accused as provided by sub-paragraph (2) above the court shall ask him whether he wishes to be tried summarily or by a jury, and--

(a) if he indicates that he wishes to be tried summarily, shall remit him for trial to a magistrates' court acting for the place where he was sent to the Crown Court for trial;

(b) if he does not give such an indication, shall retain its functions in relation to the offence and proceed accordingly.

11 If the Crown Court considers that an offence is more suitable for trial on indictment, the court--

(a) shall tell the accused that it has decided that it is more suitable for him to be tried for the offence by a jury; and

(b) shall retain its functions in relation to the offence and proceed accordingly.

12 (1) Where the prosecution is being carried on by the Attorney General, the Solicitor General or the Director of Public Prosecutions and he applies for an offence which may be tried on indictment to be so tried--

(a) sub-paragraphs (4) to (8) of paragraph 7, sub-paragraphs (2)(b) to (d) and (3) of paragraph 8 and paragraphs 9 to 11 above shall not apply; and

(b) the Crown Court shall retain its functions in relation to the offence and proceed accordingly.

(2) The power of the Director of Public Prosecutions under this paragraph to apply for an offence to be tried on indictment shall not be exercised except with the consent of the Attorney General.

13 (1) This paragraph applies, in place of paragraphs 7 to 12 above, in the case of a child or young person who--

(a) has been sent for trial under section 51 of this Act but has not been arraigned; and

(b) is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason) includes no offence that is triable only on indictment.

(2) The Crown Court shall remit the child or young person for trial to a magistrates' court acting for the place where he was sent to the Crown Court for trial unless--

(a) he is charged with such an offence as is mentioned in subsection (2) of section 53 of the 1933 Act (punishment of certain grave crimes) and the Crown Court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section; or

(b) he is charged jointly with an adult with an offence triable either way and the Crown Court considers it necessary in the interests of justice that they both be tried for the offence in the Crown Court.

(3) In sub-paragraph (2) above "adult" has the same meaning as in section 51 of this Act.

Procedure for determining whether offences of criminal damage etc. are summary offences

14 (1) This paragraph applies where the Crown Court has to determine, for the purposes of this Schedule, whether an offence which is listed in the first column of Schedule 2 to the 1980 Act (offences for which the value involved is relevant to the mode of trial) is a summary offence.

(2) The court shall have regard to any representations made by the prosecutor or the accused.

(3) If it appears clear to the court that the value involved does not exceed the relevant sum, it shall treat the offence as a summary offence.

(4) If it appears clear to the court that the value involved exceeds the relevant sum, it shall treat the offence as an indictable offence.

(5) If it appears to the court for any reason not clear whether the value involved does or does not exceed the relevant sum, the court shall ask the accused whether he wishes the offence to be treated as a summary offence.

(6) Where sub-paragraph (5) above applies--

(a) if the accused indicates that he wishes the offence to be treated as a summary offence, the court shall so treat it;

(b) if the accused does not give such an indication, the court shall treat the offence as an indictable offence.

(7) In this paragraph "the value involved" and "the relevant sum" have the same meanings as in section 22 of the 1980 Act (certain offences triable either way to be tried summarily if value involved is small).

Power of Crown Court, with consent of legally-represented accused, to proceed in his absence

15 (1) The Crown Court may proceed in the absence of the accused in accordance with such of the provisions of paragraphs 9 to 14 above as are applicable in the circumstances if--

(a) the accused is represented by a legal representative who signifies to the court the accused's consent to the proceedings in question being conducted in his absence; and

(b) the court is satisfied that there is good reason for proceeding in the absence of the accused.

(2) Sub-paragraph (1) above is subject to the following provisions of this paragraph which apply where the court exercises the power conferred by that sub-paragraph.

(3) If, where the court has considered as required by paragraph 7(7) or 8(2)(d) above, it appears to the court that an offence is more suitable for summary trial, paragraph 10 above shall not apply and--

(a) if the legal representative indicates that the accused wishes to be tried summarily, the court shall remit the accused for trial to a magistrates' court acting for the place where he was sent to the Crown Court for trial;

(b) if the legal representative does not give such an indication, the court shall retain its functions and proceed accordingly.

(4) If, where the court has considered as required by paragraph 7(7) or 8(2)(d) above, it appears to the court that an offence is more suitable for trial on indictment, paragraph 11 above shall apply with the omission of paragraph (a).

(5) Where paragraph 14 above applies and it appears to the court for any reason not clear whether the value involved does or does not exceed the relevant sum, sub-paragraphs (5) and (6) of that paragraph shall not apply and--

(a) the court shall ask the legal representative whether the accused wishes the offence to be treated as a summary offence;

(b) if the legal representative indicates that the accused wishes the offence to be treated as a summary offence, the court shall so treat it;

(c) if the legal representative does not give such an indication, the court shall treat the offence as an indictable offence.

Section 64(5).

SCHEDULE 4 Enforcement etc. of drug treatment and testing orders

Preliminary

1 Schedule 2 to the 1991 Act (enforcement etc. of community orders) shall be amended as follows.

Meaning of "relevant order" etc.

2 (1) In sub-paragraph (1) of paragraph 1 (preliminary)--

(a) after the words "a probation order," there shall be inserted the words "a drug treatment and testing order,"; and

(b) in paragraph (a), for the words "probation or community service order" there shall be substituted the words "probation, community service or drug treatment and testing order".

(2) After sub-paragraph (3) of that paragraph there shall be inserted the following sub-paragraph--

" (4) In this Schedule, references to the court responsible for a drug treatment and testing order shall be construed in accordance with section 62(9) of the Crime and Disorder Act 1998. "

Breach of requirements of order

3 In sub-paragraph (2) of paragraph 2 (issue of summons or warrant), for the words "before a magistrates' court acting for the petty sessions area concerned" there shall be substituted the following paragraphs--

" (a) except where the relevant order is a drug treatment and testing order, before a magistrates' court acting for the petty sessions area concerned;

(b) in the excepted case, before the court responsible for the order. "

4 In sub-paragraph (1) of paragraph 4 (powers of Crown Court), after the word "Where" there shall be inserted the words "under paragraph 2 or".

5 In sub-paragraph (2) of paragraph 5 (exclusions), for the words "is required by a probation order to submit to treatment for his mental condition, or his dependency on drugs or alcohol," there shall be substituted the following paragraphs--

" (a) is required by a probation order to submit to treatment for his mental condition, or his dependency on or propensity to misuse drugs or alcohol; or

(b) is required by a drug treatment and testing order to submit to treatment for his dependency on or propensity to misuse drugs, " .

Revocation of order

6 (1) In sub-paragraph (1) of paragraph 7 (revocation of order by magistrates' court), after the words "the petty sessions area concerned" there shall be inserted the words "or, where the relevant order is a drug treatment and testing order for which a magistrates' court is responsible, to that court".

(2) In sub-paragraph (3) of that paragraph--

(a) after the words "a probation order" there shall be inserted the words "or drug treatment and testing order"; and

(b) after the word "supervision" there shall be inserted the words "or, as the case may be, treatment".

7 (1) After sub-paragraph (1) of paragraph 8 (revocation of order by Crown Court) there shall be inserted the following sub-paragraph--

" (1A) This paragraph also applies where--

(a) a drug treatment and testing order made by the Crown Court is in force in respect of an offender; and

(b) the offender or the responsible officer applies to the Crown Court for the order to be revoked or for the offender to be dealt with in some other manner for the offence in respect of which the order was made. "

(2) In sub-paragraph (3) of that paragraph--

(a) after the words "a probation order" there shall be inserted the words "or drug treatment and testing order"; and

(b) after the word "supervision" there shall be inserted the words "or, as the case may be, treatment".

8 In sub-paragraph (1) of paragraph 9 (revocation of order following custodial sentence), for paragraph (a) there shall be substituted the following paragraph--

" (a) an offender in respect of whom a relevant order is in force is convicted of an offence--

(i) by a magistrates' court other than a magistrates' court acting for the petty sessions area concerned; or

(ii) where the relevant order is a drug treatment and testing order, by a magistrates' court which is not responsible for the order; and " .

Amendment of order

9 In sub-paragraph (1) of paragraph 12 (amendment by reason of change of residence), after the words "a relevant order" there shall be inserted the words "(other than a drug treatment and testing order)".

10 After paragraph 14 there shall be inserted the following paragraph--

" Amendment of drug treatment and testing order

14A (1) Without prejudice to the provisions of section 63(2), (7) and (9) of the Crime and Disorder Act 1998, the court responsible for a drug treatment and testing order may by order--

(a) vary or cancel any of the requirements or provisions of the order on an application by the responsible officer under sub-paragraph (2) or (3)(a) or (b) below; or

(b) amend the order on an application by that officer under sub-paragraph (3)(c) below.

(2) Where the treatment provider is of the opinion that the treatment or testing requirement of the order should be varied or cancelled--

(a) he shall make a report in writing to that effect to the responsible officer; and

(b) that officer shall apply to the court for the variation or cancellation of the requirement.

(3) Where the responsible officer is of the opinion--

(a) that the treatment or testing requirement of the order should be so varied as to specify a different treatment provider;

(b) that any other requirement of the order, or a provision of the order, should be varied or cancelled; or

(c) that the order should be so amended as to provide for each subsequent review under section 63 of the Crime and Disorder Act 1998 to be made without a hearing instead of at a review hearing, or vice versa,

he shall apply to the court for the variation or cancellation of the requirement or provision or the amendment of the order.

(4) The court--

(a) shall not amend the treatment or testing requirement unless the offender expresses his willingness to comply with the requirement as amended; and

(b) shall not amend any provision of the order so as to reduce the treatment and testing period below the minimum specified in section 61(2) of the Crime and Disorder Act 1998 or to increase it above the maximum so specified.

(5) If the offender fails to express his willingness to comply with the treatment or testing requirement as proposed to be amended by the court, the court may--

(a) revoke the order; and

(b) deal with him, for the offence in respect of which the order was made, in any manner in which it could deal with him if he had just been convicted by the court of the offence.

(6) In dealing with the offender under sub-paragraph (5)(b) above, the court--

(a) shall take into account the extent to which the offender has complied with the requirements of the order; and

(b) may impose a custodial sentence notwithstanding anything in section 1(2) of this Act.

(7) Paragraph 6A above shall apply for the purposes of this paragraph as it applies for the purposes of paragraph 3 above, but as if for the words "paragraph 3(1)(d) above" there were substituted the words "paragraph 14A(5)(b) below".

(8) In this paragraph--

"review hearing" has the same meaning as in section 63 of the Crime and Disorder Act 1998;
"the treatment requirement" and "the testing requirement" have the same meanings as in Chapter I of Part IV of that Act. "

11 In paragraph 16 (order not to be amended pending appeal), after the words "paragraph 13 or 15 above" there shall be inserted the words "or, except with the consent of the offender, under paragraph 14A above".

12 (1) In sub-paragraph (1) of paragraph 18 (notification of amended order), after the words "a relevant order" there shall be inserted the words "(other than a drug treatment and testing order)".

(2) After that sub-paragraph there shall be inserted the following sub-paragraph--

" (1A) On the making under this Part of this Schedule of an order amending a drug treatment and testing order, the clerk to the court shall forthwith give copies of the amending order to the responsible officer. "

(3) In sub-paragraph (2) of that paragraph, after the words "sub-paragraph (1)" there shall be inserted the words "or (1A)".

Sections 68(3) and 70(5).

SCHEDULE 5 Enforcement etc. of reparation and action plan orders

Preliminary

1 In this Schedule--

"the appropriate court", in relation to a reparation order or action plan order, means the youth court acting for the petty sessions area for the time being named in the order in pursuance of section 67(9) or, as the case may be, section 69(9) of this Act;
"local authority accommodation" means accommodation provided by or on behalf of a local authority (within the meaning of the 1989 Act).

General power to discharge or vary order

2 (1) If while a reparation order or action plan order is in force in respect of an offender it appears to the appropriate court, on the application of the responsible officer or the offender, that it is appropriate to make an order under this sub-paragraph, the court may make an order discharging the reparation order or action plan order or varying it--

(a) by cancelling any provision included in it; or

(b) by inserting in it (either in addition to or in substitution for any of its provisions) any provision that could have been included in the order if the court had then had power to make it and were exercising the power.

(2) Where an application under this paragraph for the discharge of a reparation order or action plan order is dismissed, no further application for its discharge shall be made under this paragraph by any person except with the consent of the appropriate court.

Failure to comply with order

3 (1) This paragraph applies where a reparation order or action plan order is in force and it is proved to the satisfaction of the appropriate court, on the application of the responsible officer, that the offender has failed to comply with any requirement included in the order.

(2) The court--

(a) whether or not it also makes an order under paragraph 2 above, may order the offender to pay a fine of an amount not exceeding £1,000, or make an attendance centre order or curfew order in respect of him; or

(b) if the reparation order or action plan order was made by a youth court, may discharge the order and deal with him, for the offence in respect of which the order was made, in any manner in which he could have been dealt with for that offence by the court which made the order if the order had not been made; or

(c) if the reparation order or action plan order was made by the Crown Court, may commit him in custody or release him on bail until he can be brought or appear before the Crown Court.

(3) For the purposes of sub-paragraph (2)(b) and (c) above, a reparation order or action plan order made on appeal from a decision of a magistrates' court or the Crown Court shall be treated as if it had been made by a magistrates' court or the Crown Court, as the case may be.

(4) Where a court deals with an offender under sub-paragraph (2)(c) above, it shall send to the Crown Court a certificate signed by a justice of the peace giving--

(a) particulars of the offender's failure to comply with the requirement in question; and

(b) such other particulars of the case as may be desirable;

and a certificate purporting to be so signed shall be admissible as evidence of the failure before the Crown Court.

(5) Where--

(a) by virtue of sub-paragraph (2)(c) above the offender is brought or appears before the Crown Court; and

(b) it is proved to the satisfaction of the court that he has failed to comply with the requirement in question,

that court may deal with him, for the offence in respect of which the order was made, in any manner in which it could have dealt with him for that offence if it had not made the order.

(6) Where the Crown Court deals with an offender under sub-paragraph (5) above, it shall revoke the reparation order or action plan order if it is still in force.

(7) A fine imposed under this paragraph shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.

(8) In dealing with an offender under this paragraph, a court shall take into account the extent to which he has complied with the requirements of the reparation order or action plan order.

Presence of offender in court, remands etc.

4 (1) Where the responsible officer makes an application under paragraph 2 or 3 above to the appropriate court, he may bring the offender before the court and, subject to sub-paragraph (9) below, the court shall not make an order under that paragraph unless the offender is present before it.

(2) Without prejudice to any power to issue a summons or warrant apart from this sub-paragraph, the court to which an application under paragraph 2 or 3 above is made may issue a summons or warrant for the purpose of securing the attendance of the offender before it.

(3) Subsections (3) and (4) of section 55 of the 1980 Act (which among other things restrict the circumstances in which a warrant may be issued) shall apply with the necessary modifications to a warrant under sub-paragraph (2) above as they apply to a warrant under that section and as if in subsection (3) after the word "summons" there were inserted the words "cannot be served or".

(4) Where the offender is arrested in pursuance of a warrant under sub-paragraph (2) above and cannot be brought immediately before the appropriate court, the person in whose custody he is--

(a) may make arrangements for his detention in a place of safety for a period of not more than 72 hours from the time of the arrest (and it shall be lawful for him to be detained in pursuance of the arrangements); and

(b) shall within that period bring him before a youth court.

(5) Where an offender is, under sub-paragraph (4) above, brought before a youth court other than the appropriate court, that court may--

(a) direct that he be released forthwith; or

(b) subject to sub-paragraph (6) below, remand him to local authority accommodation.

(6) Where the offender is aged 18 or over at the time when he is brought before the court, he shall not be remanded to local authority accommodation but may instead be remanded--

(a) to a remand centre, if the court has been notified that such a centre is available for the reception of persons under this sub-paragraph; or

(b) to a prison, if it has not been so notified.

(7) Where an application is made to a court under paragraph 2(1) above, the court may remand (or further remand) the offender to local authority accommodation if--

(a) a warrant has been issued under sub-paragraph (2) of this paragraph for the purpose of securing the attendance of the offender before the court; or

(b) the court considers that remanding (or further remanding) him will enable information to be obtained which is likely to assist the court in deciding whether and, if so, how to exercise its powers under paragraph 2(1) above.

(8) A court remanding an offender to local authority accommodation under this paragraph shall designate, as the authority who are to receive him, the local authority for the area in which the offender resides or, where it appears to the court that he does not reside in the area of a local authority, the local authority--

(a) specified by the court; and

(b) in whose area the offence or an offence associated with it was committed.

(9) A court may make an order under paragraph 2 above in the absence of the offender if the effect of the order is one or more of the following, that is to say--

(a) discharging the reparation order or action plan order;

(b) cancelling a requirement included in the reparation order or action plan order;

(d) changing the responsible officer.

Supplemental

5 (1) The provisions of section 17 of the 1982 Act (attendance centre orders) shall apply for the purposes of paragraph 3(2)(a) above but as if--

(a) in subsection (1), for the words from "has power" to "probation order" there were substituted the words "considers it appropriate to make an attendance centre order in respect of any person in pursuance of paragraph 3(2) of Schedule 5 to the Crime and Disorder Act 1998"; and

(b) subsection (13) were omitted.

(2) Sections 18 and 19 of the 1982 Act (discharge and variation of attendance centre order and breach of attendance centre orders or attendance centre rules) shall also apply for the purposes of that paragraph but as if there were omitted--

(a) from subsection (4A) of section 18 and subsections (3) and (5) of section 19, the words ", for the offence in respect of which the order was made," and "for that offence"; and

(b) from subsection (4B) of section 18 and subsection (6) of section 19, the words "for an offence".

(3) The provisions of section 12 of the 1991 Act (curfew orders) shall apply for the purposes of paragraph 3(2)(a) above but as if--

(a) in subsection (1), for the words from the beginning to "before which he is convicted" there were substituted the words "Where a court considers it appropriate to make a curfew order in respect of any person in pursuance of paragraph 3(2)(a) of Schedule 5 to the Crime and Disorder Act 1998, the court"; and

(b) in subsection (8), for the words "on conviction" there were substituted the words "on the date on which his failure to comply with a requirement included in the reparation order or action plan order was proved to the court".

(4) Schedule 2 to the 1991 Act (enforcement etc. of community orders), so far as relating to curfew orders, shall also apply for the purposes of that paragraph but as if--

(a) the power conferred on the magistrates' court by each of paragraphs 3(1)(d) and 7(2)(a)(ii) to deal with the offender for the offence in respect of which the order was made were a power to deal with the offender, for his failure to comply with a requirement included in the reparation order or action plan order, in any manner in which the appropriate court could deal with him for that failure to comply if it had just been proved to the satisfaction of that court;

(b) the power conferred on the Crown Court by paragraph 4(1)(d) to deal with the offender for the offence in respect of which the order was made were a power to deal with the offender, for his failure to comply with such a requirement, in any manner in which that court could deal with him for that failure to comply if it had just been proved to its satisfaction;

(c) the reference in paragraph 7(1)(b) to the offence in respect of which the order was made were a reference to the failure to comply in respect of which the curfew order was made; and

(d) the power conferred on the Crown Court by paragraph 8(2)(b) to deal with the offender for the offence in respect of which the order was made were a power to deal with the offender, for his failure to comply with a requirement included in the reparation order or action plan order, in any manner in which the appropriate court (if that order was made by a magistrates' court) or the Crown Court (if that order was made by the Crown Court) could deal with him for that failure to comply if it had just been proved to the satisfaction of that court.

(5) For the purposes of the provisions mentioned in sub-paragraph (4)(a) and (d) above, as applied by that sub-paragraph, if the reparation order or action plan order is no longer in force the appropriate court's powers shall be determined on the assumption that it is still in force.

(6) If while an application to the appropriate court in pursuance of paragraph 2 or 3 above is pending the offender attains the age of 18 years, the court shall, subject to paragraph 4(6) above, deal with the application as if he had not attained that age.

(7) The offender may appeal to the Crown Court against--

(a) any order made under paragraphs 2 or 3 above, except an order made or which could have been made in his absence (by virtue of paragraph 4(9) above);

(b) the dismissal of an application under paragraph 2 above to discharge a reparation order or action plan order.

Section 94(2).

SCHEDULE 6 Drug treatment and testing orders: amendment of the 1995 Act

Part I Amendments relating to combination of orders

1 In section 228(1) (probation orders), for the words "section 245D" there shall be substituted the words "sections 234J and 245D".

2 (1) Section 232 (failure to comply with requirements of probation orders) shall be amended as follows.

(2) In subsection (3A)--

(a) for the words "a restriction of liberty order" there shall be substituted--

" (a) a restriction of liberty order; or

(b) a restriction of liberty order and a drug treatment and testing order, " ; and

(b) at the end there shall be added the words "or, as the case may be, the restriction of liberty order and the drug treatment and testing order."

(3) After that subsection there shall be inserted the following subsection--

" (3B) Where the court intends to sentence an offender under subsection (2)(b) above and the offender is by virtue of section 234J of this Act subject to a drug treatment and testing order, it shall, before sentencing the offender under that paragraph, revoke the drug treatment and testing order. "

3 For section 245D there shall be substituted the following section--

" 245D Combination of restriction of liberty order with other orders

(1) Subsection (3) applies where the court--

(a) intends to make a restriction of liberty order under section 245A(1) of this Act; and

(b) considers it expedient that the offender should also be subject to a probation order made under section 228(1) of this Act or to a drug treatment and testing order made under section 234B(2) of this Act or to both such orders.

(2) In deciding whether it is expedient to make a probation order or a drug treatment and testing order by virtue of paragraph (b) of subsection (1) above, the court shall--

(a) have regard to the circumstances, including the nature of the offence and the character of the offender; and

(b) obtain a report as to the circumstances and character of the offender.

(3) Where this subsection applies, the court, notwithstanding sections 228(1), 234B(2) and 245A(1) of this Act, may make a restriction of liberty order and either or both of a probation order and a drug treatment and testing order.

(4) Where the court makes a restriction of liberty order and a probation order by virtue of subsection (3) above, the clerk of the court shall send a copy of each order to--

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