9.6 Community Orders, Fines & Discharges
Key Takeaways
- Section 202 of the Sentencing Code governs whether a community order is available (offender aged 18 or over on conviction, offence punishable with imprisonment), while section 204(2) states the community threshold itself: the offence, or the combination of offences, must have been serious enough to warrant the making of such an order.
- The section 201 community order requirements table lists sixteen requirement types, each detailed in a Part of Schedule 9, including unpaid work (40 to 300 hours), the rehabilitation activity requirement, and a curfew of 2 to 20 hours a day capped at 112 hours a week for up to 2 years.
- Fines are calculated using the Sentencing Council banded system (Bands A to F, from 50 to 600 per cent of relevant weekly income); section 125 requires the court to take the offender's financial circumstances into account so far as known, and section 126 lets it determine those circumstances as it thinks fit where the offender fails to provide information.
- Absolute and conditional discharges (sections 79–81 Sentencing Code) are non-punitive orders available where punishment is inexpedient; a conditional discharge operates for up to 3 years.
- Upon a formal breach of a Community Order under Schedule 10, the court may make requirements more onerous, extend the order, impose a fine up to £2,500, or revoke the order and re-sentence for the original offence.
9.6 Community Orders, Fines & Discharges
Non-custodial penalties form the foundation of criminal disposition for offences that do not cross the severe statutory custodial threshold. Under the Sentencing Code (Sentencing Act 2020), courts possess a flexible suite of non-custodial options: Community Orders incorporating tailored statutory requirements, income-adjusted Financial Penalties (Fines), and non-punitive Discharges. Advocates must understand the statutory thresholds governing these orders, the 13 statutory community requirements, the fine band calculation methodology, and the formal procedures for enforcing breaches.
1. Availability (s.202) and the Community Threshold (s.204)
Two separate sections must be kept apart, and candidates routinely conflate them.
Section 202 — availability. A community order is available only where the offender was aged 18 or over when convicted and the offence is punishable with imprisonment by that court. It is not available where a mandatory sentence requirement applies (s.202(3), referring to s.399).
Section 204 — exercise of the power. This is where the community threshold itself sits. Just as section 230 states the custodial threshold, section 204(2) states the community threshold:
"The court must not make a community order unless it is of the opinion that— (a) the offence, or (b) the combination of the offence and one or more offences associated with it, was serious enough to warrant the making of such an order."
Note what the statutory test does not say. The wording is "serious enough to warrant the making of such an order" — it is not phrased as "so serious that a fine alone or a discharge cannot be justified", which is a common paraphrase but not the statutory language. Two further subsections matter in practice:
- s.204(3): in forming that opinion the court must take into account all the information available to it about the circumstances of the offence (and any associated offences), including any aggravating or mitigating factors.
- s.204(5): crossing the threshold never obliges the court to make a community order — a fine or a discharge may still be the right sentence.
Statutory Principles Governing the Requirements (s.208):
- Suitability: the requirement, or combination of requirements, must be the most suitable for the offender (s.208(3)).
- Commensurate restriction on liberty: the restrictions on liberty imposed by the requirements must be commensurate with the seriousness of the offence, or of the offence and one or more associated offences (s.208(6)).
- Avoidance of conflict: requirements must, so far as practicable, avoid conflict with the offender's religious beliefs and with the requirements of any other court order, and avoid interfering with the times at which the offender normally works or attends school or any other educational establishment (s.208(13)).
- Punitive element: the court must normally include at least one requirement imposed for the purpose of punishment, unless it also imposes a fine or exceptional circumstances would make that unjust (s.208).
A community order must specify an end date not more than three years after the day the order takes effect (s.209).
2. The Statutory Community Requirements (s.201 and Schedule 9)
Section 201 of the Sentencing Code sets out the community order requirements table, and the detailed conditions for each requirement sit in the corresponding Part of Schedule 9. The table lists sixteen requirement types — the drug testing requirement was added on 28 June 2022 by the Police, Crime, Sentencing and Courts Act 2022. Do not learn the old CJA 2003 list: the activity requirement and supervision requirement were abolished in 2015 and replaced by the rehabilitation activity requirement.
| # | Requirement | Sch. 9 Part | Key parameters and restrictions |
|---|---|---|---|
| 1 | Unpaid work | Part 1 | Aggregate 40–300 hours, normally completed within 12 months |
| 2 | Rehabilitation activity (RAR) | Part 2 | Court specifies the maximum number of days; probation directs the activities |
| 3 | Programme | Part 3 | Accredited programme for a specified number of days |
| 4 | Prohibited activity | Part 4 | Refrain from specified activities on specified days or for a specified period |
| 5 | Curfew | Part 5 | 2–20 hours a day, max 112 hours in any 7 days, for up to 2 years (16 hours a day and 12 months for convictions before 28 June 2022); electronic monitoring normally required |
| 6 | Exclusion | Part 6 | Up to 2 years |
| 7 | Residence | Part 7 | Reside at a specified place, e.g. an approved hostel |
| 8 | Foreign travel prohibition | Part 8 | Up to 12 months |
| 9 | Mental health treatment | Part 9 | Needs the evidence of a registered medical practitioner and the offender's expressed willingness to comply |
| 10 | Drug rehabilitation | Part 10 | Dependency or propensity to misuse; treatment plus testing; offender's expressed willingness |
| 11 | Drug testing | Part 10A | Added 28 June 2022; restrictions in s.207(3A) |
| 12 | Alcohol treatment | Part 11 | Dependency; offender's expressed willingness |
| 13 | Alcohol abstinence and monitoring (AAMR) | Part 12 | Abstinence monitored by a "sobriety tag" for up to 120 days; restrictions in s.207(1)–(2) |
| 14 | Attendance centre | Part 13 | Aggregate 12–36 hours; offender must be aged under 25 (s.207(3)) |
| 15 | Electronic compliance monitoring | Part 14 | Monitors compliance with other requirements (s.207(4)) |
| 16 | Electronic whereabouts monitoring | Part 14 | Tracks the offender's location |
3. Enforcement and Breach of Community Orders (Schedule 10)
Compliance with Community Orders is managed by the Probation Service under Schedule 10 to the Sentencing Code.
The Warning Procedure
If an offender fails to comply with a requirement without reasonable excuse, probation issues a formal written warning. If a second failure occurs within 12 months of the first warning, the probation officer must initiate court breach proceedings by issuing a summons or warrant.
Court Powers on Finding a Breach:
Upon finding that the offender has breached a Community Order without reasonable excuse, the court has three primary options:
- Amend the Order: Make the existing requirements more onerous (e.g., adding 40 hours of unpaid work or extending a curfew).
- Impose a Financial Penalty: Order the offender to pay a breach fine of up to £2,500.
- Revoke and Re-sentence: Revoke the Community Order entirely and re-sentence the offender for the original offence as if newly convicted. Crucially, if the offender has willfully and persistently failed to comply, the court may pass a custodial sentence even if the original offence did not cross the custodial threshold.
4. Financial Penalties (Fines) & Banded Structure
A fine is a financial penalty payable to the Crown. The fine provisions sit in Part 7, Chapter 1 of the Sentencing Code (ss.118–132).
Fixing the Amount: s.125, and How Means Reach the Court
Section 125 ( Exercise of court's powers to impose fine and fix amount ) requires the court to fix a fine that reflects the seriousness of the offence and to take into account the financial circumstances of the offender so far as they are known to, or appear to, the court — whether that has the effect of increasing or reducing the fine.
Be precise about the mechanism, because the common shorthand "a duty to inquire" overstates s.125. Three provisions work together:
- s.35 empowers the court to make a financial circumstances order requiring the offender to give a statement of assets and other financial circumstances. In practice means are captured on the MC100 means form.
- s.125 requires the court to take those circumstances into account so far as known or apparent.
- s.126 applies where the offender was convicted in absence or has failed to provide the information: the court may then make such determination of the offender's financial circumstances as it thinks fit.
Sentencing Council Fine Bands (Relevant Weekly Income [RWI])
Fines are calculated by selecting an offence fine band and applying it to the offender's Relevant Weekly Income (RWI) — actual weekly income after deduction of tax and National Insurance, disregarding tax credits, housing benefit and child benefit:
| Fine band | Starting point | Range |
|---|---|---|
| Band A | 50% of RWI | 25–75% of RWI |
| Band B | 100% of RWI | 75–125% of RWI |
| Band C | 150% of RWI | 125–175% of RWI |
| Band D | 250% of RWI | 200–300% of RWI |
| Band E | 400% of RWI | 300–500% of RWI |
| Band F | 600% of RWI | 500–700% of RWI |
Offence guidelines normally express fines as Band A, B or C; Bands D–F may be used even where the community or custody threshold has been passed. Two default figures are worth memorising: where the offender's only income is state benefit, or earned income after tax and NI is below £120 a week, RWI is deemed to be £120; where there is no information at all on which a determination can be made, the court proceeds on an assumed RWI of £440.
Statutory maxima still bite where an offence is expressed by reference to the standard scale: level 1 £200, level 2 £500, level 3 £1,000, level 4 £2,500, and level 5 unlimited for offences committed after 13 March 2015.
Payment Terms: Courts routinely grant time to pay or allow structured weekly/monthly instalment plans. Non-payment without reasonable excuse triggers enforcement action, including attachment of earnings, distress warrants, or default imprisonment.
5. Absolute and Conditional Discharges (Sections 79–81 Sentencing Code)
Under sections 79–81 of the Sentencing Code, a discharge is a non-punitive court disposition available where a conviction is recorded, but the court is of the opinion that it is inexpedient to inflict punishment having regard to the nature of the offence and the character of the offender.
Types of Discharge:
- Absolute Discharge (Section 79): The offender is released with no penalty whatsoever. The conviction is recorded, but no fine, community, or custodial penalty is imposed. Reserved for technical breaches, minimal culpability, or extraordinary mitigating circumstances.
- Conditional Discharge (Section 80): The offender is released subject to the condition that they commit no further offence during a specified operational period fixed by the court (up to a maximum of 3 years).
Breach of a Conditional Discharge:
If an offender is convicted of a new offence committed during the operational period of a conditional discharge, they are in breach. The court dealing with the new offence (or the original court) may re-sentence the offender for the original offence in addition to sentencing for the new offence.
Summary of Non-Custodial Options & Parameters
| Penalty Type | Statutory Threshold / Basis | Key Parameters & Boundaries |
|---|---|---|
| Community Order | Available under s.202 (18+, imprisonable offence); threshold in s.204(2) — offence serious enough to warrant the order | Draws on the 16 requirements in the s.201 table / Sch. 9; end date up to 3 years (s.209). |
| Unpaid Work | Sch. 9 Part 1 | 40 to 300 hours; normally completed within 12 months. |
| Curfew Requirement | Sch. 9 Part 5 | 2 to 20 hours per day; max 112 hours per week; up to 2 years; electronic monitoring. |
| Community Breach | Sched 10 Sentencing Code; failure after warning | Court can amend order, fine up to £2,500, or revoke and re-sentence for original offence. |
| Fine Bands (A–F) | s.125 Sentencing Code; based on Relevant Weekly Income | Band A (50% RWI) to Band F (600% RWI); £120 deemed RWI on low income, £440 assumed where no information. |
| Conditional Discharge | ss.79–81 Sentencing Code; inexpedient to punish | Operational period up to 3 years; reoffending triggers re-sentencing on original offence. |
A defendant with no previous convictions pleads guilty to theft of foodstuffs valued at £15 from a supermarket. The court finds that while an offence was committed, the offender was in acute economic distress and the store suffered no financial loss. The court considers it inexpedient to inflict punishment. What order should the court make under sections 79–81 of the Sentencing Code?
An offender is sentenced to a Community Order incorporating an Unpaid Work Requirement of 120 hours. After successfully completing 40 hours, the offender fails to attend three consecutive work sessions without a medical certificate or reasonable excuse. Following a formal warning, the Probation Service summons the offender back to court under Schedule 10 to the Sentencing Code. What powers may the court exercise upon finding a willful breach?
When imposing a financial penalty on an individual offender, how does the court determine the appropriate fine amount under the Sentencing Council Definitive Guidelines and section 125 of the Sentencing Code?