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But howhas this change in policycome about, especiallyas there has been no material
amendment or repeal of the Criminal Justice (CommunityService) Act 1983? It would
appear that those drafting the legislation andlegislators were minded to allowa limiteddecouplingof
the requirement that a communityservice order couldonlybe made where but
for the provisions of section 2 of the 1983 Act a custodial sentence wouldotherwise have
been imposed. Section 115(a) refers to section 3 of the 1983 Act which if read singularly
wouldappear to allowthe makingof a communityservice order as if the court is invested
with unrestrictedandwide discretion bythe use of the phrase “…insteadof dealingwith
himin anyother way, …”. However, section 2 of the 1983 Act is not repealed bythe
Children Act 2001. 59 Accordinglythe overarching requirement of section 2 of the 1983
Act that a communityservice order can onlybe made in direct substitution for an
immediatelycontemplated custodial sentence has not been displaced. This latter
requirement might be consideredthe sheet anchor of the decarcerative policyestablished
in the 1983 legislation. Unless section 2 of the 1983 Act is expresslyamended to alter
such policyor to allowan exception thereto in respect of 16 and17 year oldchildren, the
policyis deemed to continue in full force andeffect. As previouslystatedthe use of the
phrase “… insteadof dealingwith him in anyother way, …” in section 3 of the 1983 Act,
if anything, has the meaningof words of limitation when readin conjunction with section
2 of the 1983 Act, wherebya sentencingcourt mayimpose a communityservice order in
substitution for an immediate custodial penaltybut maynot impose anyother concomitant
penaltysuch as probation or a fine in conjunction with the communityservice order for
the one offence.
However, it wouldappear that section 115 of the Children Act 2001 seeks to put an expansive
interpretation on section 3 of the Act of 1983 which wouldempower the court to make
communitysanctions, includingcommunityservice orders without the restriction imposed
bysection 2 of the 1983 Act. It is arguedin this study, that the use of the phrase “…
insteadof dealingwith himin anyother way, …” in section 3 of the 1983 Act was mere
surplusage andin no respect alteredthe requirements of section 2 of the 1983 Act except to
limit the accretion of additional penalties such as fines or probation in respect of the one
penalty.
So where did the phrase come fromandwhywas it usedat all in section 3? To fullyexplore
this issue, it is necessaryto analyse the text of the 1983 Act andsection 15 of the English
Criminal Justice Act, 1972. If one examines the original legislation in EnglandandWales,
one finds the same phrase in section 15 of the Criminal Justice Act 1972. Section 15 of
that Act provides:
Section 15.-
1) Where a person who has attained the age of seventeen is convicted of an
offence punishable with imprisonment the court by or before which he is
convicted may, instead of dealing with him in any other way (but subject to
subsection (2) of this section), make an order (in this Act referred to as “a
community service order”) requiring him to perform unpaid work in
59 Section 154 Children Act 2001 amends Section 2 of the Children Act to allow community service to be given in respect of children detained in a Children Detention Centre or a
Children Detention School.
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