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These provisions empower the courts hearing breach proceedings and revocation
proceedings with a very wide discretion when disposing of such cases. The sentencing
requirement under Section 2 of the Criminal Justice (Community Service) Act 1983 limits
the court to imposing a community service order to cases only where the court is minded
to impose an actual custodial sentence. However, when the issue of breach of the
community service order is examined this constraining effect is to all intents and purposes
abandoned. When breach of community service or revocation of community service are
separately considered under Sections 7, 8 and 11 of the Criminal Justice (Community
Service) Act 1983, the court is unfettered in its discretion to deal with the offender in any
manner the court might determine.
Notwithstanding these provisions, it is argued that the purpose of the community service
order under Section 3 is still integrally connected to the defining features of Section 2, to
restrict the making of the community service order to custodial cases only. However, the
unfettered discretion given to courts to deal with offenders who breach communityservice
orders appears to undermine the rationale contained explicitly in Section 2. Undoubtedly
the courts must be given some discretion when dealing with breach and revocation
proceedings, especially in respect of offenders who have substantially completed or
complied with a communityservice order. However, the discretion invested in the courts
under Sections 7, 8 and 11 of the Criminal Justice (Community Service) Act 1983 appears
to be totally disconnected with the original requirement that a real custodial sentence was
warranted before the community service order was firstly imposed. The genesis of this
wide discretion can be clearly traced to the seminal English statute which introduced
community service in that jurisdiction. Section 17(3) of the Criminal Justice Act 1972
(England) provided for exactly the same discretion in almost the exact same formula of
words. In the section, a fine not exceeding £50 maybe imposed for breach of community
service requirements or the court may revoke and deal with the offender in any manner
hadthe order not been made. 36
36 Criminal Justice Act 1972 – Section 17(3)
If it is proved to the satisfaction of the court before which an offender appears or is brought under this section that he has failed without reasonable excuse to
complywith anyof the requirements aforesaid, the court may, without prejudice to the continuance of the order, impose on him a fine not exceeding £50 or
may–
a)
if the community service order was made by a Magistrate’s Court, revoke the order and deal with the offender 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 hadnot been made;
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