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National Objectives for Social Work Services in the Criminal Justice System: Standards - Probation
CHAPTER 3: TYPES OF PROBATION ORDER
18.Probation combined control in the form of obligations placed on offenders which will include restrictions on their personal freedom, with opportunities and assistance for them to address problems and issues associated with their offending behaviour. It can incorporate reparation by requiring the offender to make financial amends to the victim and/or undertake work or service of benefit to the victim or community.
Legal Requirements Common to all Probation Orders
19.Probation orders are made under section 228 of the Criminal Procedure (Scotland) Act 1995 All probation orders have the following legal requirements:
19.1the order requires the offender to take responsibility for being of good behaviour; to conform to the directions of the Supervising Officer; and to inform the Supervising Officer at once of any change in residence or employment;
19.2the order requires the Supervising Officer to face the offender with his/her responsibility to live within the law; to supervise the offender's compliance with the requirements of the order, and to provide the offender with advice, guidance, and assistance.
Action Plans
20These legal requirements should be incorporated into an initial action plan developed with each offender by the author of the SER and informed by service objectives and standards. Where it is not intended that the author of the SER will supervise the probation order, this initial plan should, wherever possible, be discussed with the person who will supervise the order. The plan should set out what will be done during the course of the order to address problems and issues associated with offending behaviour with the aim of reducing the risk of re-offending. Depending on the circumstances, the plan may identify ways of tackling behavioural difficulties, personal and family problems, and may identify resources which will be used to assist the social re-integration of the offender with particular reference to such areas as education, employment and employment training, accommodation, and financial management/support.
Recommending Probation
21.Probation orders should be recommended to the court where the author of an SER considers:
21.1that the offender could make use of and benefit from the experience of probation and that the circumstances warrant the use of probation as opposed to other community based options;
21.2that a less restrictive option is unlikely to meet the court's requirement for an element of supervision and control.
Distinguishing Features
22.Two features in particular may distinguish orders from one another. These are the attachment of additional requirements and the duration of the order.
The Attachment of Additional Requirements
23.The law makes it possible for the court to attach additional requirements to a probation order if they are considered "conducive to securing the good conduct of the offender or for preventing a repetition by him of the offence or the commission of other offences" (section 229 of the Criminal Procedure (Scotland) Act 1995). Courts may therefore select from a range of additional requirements to suit the particular circumstances of a case.
24Additional requirements may be recommended and used for a number of purposes, for example:
24.1to reinforce aspects of the action plan outlined in an SER. They are likely to be recommended either where the author of the SER is not convinced that the offender will keep to the terms of the agreed action plan without an additional requirement or where the offender's willingness to comply is not in question but the demands made by elements in the action plan are considerable, e.g. an intensive day programme;
24.2to ensure that an element of reparation to the victim or the community is incorporated in the order;
24.3to reflect the court's concern about the seriousness of the current offence or the offending history and the ensuring need for a more specific plan of action within a tighter framework of control as a means of continuing to deal with the offender in the community. The court may also wish to give public emphasis to an aspect of a proposed action plan e.g. to make financial amends to the victim;
24.4to provide the court with options which will enable the disposal of the case to reflect a balance between the interests of the offender and the interests of the victim and wider community for example by undertaking unpaid work in the community.
25From the perspective of the author of an SER, additional requirements should be recommended primarily as a means of assisting offenders to deal with their offending behaviour and not simply as a punishment or restriction. Sentencers may however attach additional requirements for other reasons relating to their wider sentencing concerns.
26There may be particular circumstances where a combination of additional requirements, for example to pay compensation, to undertake unpaid work in the community, and to live at a specified address (or any other combination) may enable courts to release into the community serious offenders who would otherwise undoubtedly have received a custodial sentence. Combined orders incorporating substantial degrees of control, reparation, and assistance are likely to be attractive to sentencers in cases of this kind but authors of SERs should be cautious about recommending the attachment of too great a number of additional requirements which may be both out of proportion with the seriousness of the offence and impose a burden on the offender which may be beyond his/her capacity and which may therefore result in failure.
The Duration of a Probation Order
27.Probation orders can be made for periods ranging from a minimum of 6 months to a maximum of 3 years.
27.1The court makes an initial decision on the duration of the order having regard to the seriousness of the offence, the protection of the public, and the proposals outline in the action plan. The authors of SERs should include in any recommendations a view about how long the order should be, taking account of the following:
27.1.1.1the length of time considered necessary to complete the tasks identified in the action plan; and
27.1.2evidence relating to the effectiveness of short term, intensive, well-focused intervention.
27.2A recommendation for the early discharge of a probation order may be put to the court where the supervisor considers that good progress has been made in addressing problems and issues associated with offending behaviour and that the help associated with the order is no longer required. An order may also be discharged where supervision is impractical for example where the offender is working abroad. The option of applying to the court for early discharge on the grounds of good progress should be used wherever the circumstances justify it. (See paragraphs 67 and 68).
The "Tailoring" of Probation Orders
28.The distinguishing features outline above suggest consideration be given to how the requirements of individual probation orders might vary to meet the concerns of sentencers, the needs of offenders, and what can realistically be achieved in individual cases. This section outlines various types of probation order and suggests the circumstances in which they might be recommended to and considered by the court.
The Standard Probation Order
29.The standard probation order incorporating the elements set out in paragraph 19 above is intended to assist the offender to address problems and issues related to his/her offending behaviour according to an agreed action plan and to offer a measure of control as a further means of seeking to reduce the risk of re-offending. It provides a means of access to resources within or outside the social work department which may assist in harnessing the motivation of the offender to take responsibility for and change his/her behaviour. Such resources might include alcohol education programmes or programmes to increase skills in literacy and numeracy. Whilst a standard order does not reinforce aspects of the agreed action plan by the attachment of additional requirements (paragraph 24.1), the action plan is binding on the offender and where he/she does not keep his/her part of the commitment, breach proceedings can follow because the offender has failed to conform to the directions of the Supervising Officer. Action plans should therefore be signed by the offender and countersigned by the Supervising Officer and where the offender is highly motivated to seek help.
30.The standard order should be recommended to the court where the author of the SER considers that its requirements, without any additional requirements, are sufficient to meet the court's needs for supervision and control. A standard order may therefore be appropriate in a serious case where there are extenuating circumstances and where the offender is highly motivated to seek help.
Probation with a Requirement to Pay Compensation
31.The payment of compensation as a requirement of a probation order enables the making of financial amends to the victim to be combined with probation (section 229)6) of the Criminal Procedure (Scotland) Act 1995). Where probation orders with a requirement to pay compensation are made, the supervisor has the responsibility to the court to make a probation order which included such a requirement should take account of the following:
31.1the victim is clearly identifiable;
31.2the offender is suitable for probation and is assessed as having the means to pay compensations;
31.3there is a need to bring home to the offender the financial costs of the offence and the consequences for the victim
Probation with a Requirement to Lodge Security
32.Until 1/4/1996, the court may require the offender to lodge a sum of money for a period of not longer than one year as security for good behaviour. This is being abolished by the Criminal Justice (Scotland) Act 1995 with effect from 1.4.1996. The money must be paid in a lump sum within a specified period. It is returned (with interest) to the offender at the end of the period, provided that the offender has not breached the conditions of the order.
33.Any recommendation to the court to make an order which includes this requirement should account of the following:
33.1the offender is suitable for probation and has the means to lodge security;
33.2it is considered that the particular circumstances are more suited to the lodging of security than to the attachment of a requirement to pay compensation to any victim. The offender should be able to benefit from the explicit financial discipline and incentive which the option provides.
34Whilst the option has been available to the court for many years it is now very rarely used in conjunction with probation. If authors of SERs are considering recommending to the courts that security is lodged as a requirement of probation, they should first consider whether the attachment of a requirement to compensate the victim is more appropriate. Security may be appropriate where no victim is identifiable or where any victim is an associate of the offender and may also have been involved in criminal activities.
Probation with a Requirement to Attend for Psychiatric Treatment
35.A requirement to undertake treatment either as an in-patient or an out-patient for a mental condition may be added to a probation order (section 230). Evidence from a registered and approved medical practitioner must show:
35.1that the mental condition both requires and is susceptible to treatment; and
35.2the condition is not such as to warrant detention on a hospital order.
The treatment required by the order must not exceed 12 months or go beyond the end of the order.
36Recommendations involving a requirement to attend for psychiatric treatment should always be discussed and agreed with the medical practitioner or chartered psychologist concerned. The need for a requirement to undertake treatment suggests that the offender may be unwilling to seek and sustain treatment on a wholly voluntary basis and that a measure of control and encouragement is necessary. Orders of this kind require inter-disciplinary work, combining medical or psychiatric expertise with the skills and resources of the supervising social worker. All parties must therefore be clear as to how the responsibility for the order will be shared. Decisions relating to this must be clearly spelt out to the offender, if possible, by joint interview.
37From the court's perspective, such orders may provide a measure of assurance that the offender attends for and will receive appropriate treatment which is related to his/her offending behaviour. If, for any reason (failure to attend or successful completion of treatment or for other reasons) this treatment is discontinued, the court must be informed.
Probation with a Residential Requirement
38There are tow ways in law to include a residential requirement in a probation order. The first is to designate the residence with a requirement that the offender lives at the designated address for a period of not more than 12 months (section 229(3)(b)) and the second is to add a requirement to the order which states the offender "shall reside where approved by his/her Supervising Officer" (section 229). In the first instance the accommodation designated will normally be a specialist resource intended to assist the offender to live within the law by providing varying degrees of support/education and control. In the second instance there may simply be a concern to keep the offender away from a particular address without the need for any additional assistance/control to be made available.
39In considering a recommendation to the court which involved a probation order with a residential requirement, report writers should take account of the following:
39.1priority in the use of designated accommodation should be given wherever possible to those offenders at serious risk of a custodial sentence;
39.2the current living situation of the offender is considered to be unstable and likely to precipitate further offending;
39.3the offender leads a disorganised life and needs assistance with learning the life skills associated with independent living away from his/her immediate environment;
39.4that in order to prevent the likelihood of further offending some additional restrictions on the personal freedom of the offender may be necessary e.g. a requirement to be at a residence during specified hours, particularly overnight;
39.5such accommodation requirements should not be used to deal with a problem of homelessness alone.
40.From the perspective of the court a residential requirement is likely to reinforce the element of supervision and control and to provide some assurance that the offender will be living in a more stable environment with access to appropriate guidance and assistance to address problems and issues relating to his/her offending behaviour.
Probation with a Requirement to Undertake Unpaid Work of Benefit to the Community
41.Under section 229(4) of the 1995 Act, a requirement to perform unpaid work may be included in an order. (Such orders are commonly referred to as "Section 7" orders.) Probation orders with such a requirement contain all the elements associated with a standard probation order, with the added requirement that the offender must perform unpaid work of benefit to the community.
42.The legislation makes it clear that Community Service should only be used by the court where the alternative would have been imprisonment. ( section 238 of the 1995 Act) When recommending an additional requirement of this kind authors of SERs should satisfy themselves:
42.1that the offender can benefit from the supervision, assistance and control which a probation order offers and is there suitable for probation;
42.2that the offender is suitable for Community Service and a work placement is available;
42.3that neither probation without a requirement to undertake unpaid work not a Community Service order alone is likely to be acceptable to the court, given the seriousness of the offence and the circumstances surrounding it.
Probation with a Requirement to Attend an Intensive Programme
43.This option requires the offender's participation in intensive programmes focused on dealing with offending behaviour. Such programmes are demanding in time, involve systematic and rigorous supervision, and place heavy commitments and strict standards of behaviour on the offender. They also involve a considerable investment of resources. When recommending additional requirements of this kind SER writers should satisfy themselves:
43.1that the offender is at serious risk of a custodial sentence;
43.2that other disposals including probation and Community Service (including "Section 7" probation orders) have been tried and/or are not considered appropriate; and
43.3that the offender has been assessed as suitable for the project.
44.From the perspective of the sentencer, a requirement of this kind is likely to reflect a view about the seriousness of the offence and the need to reinforce obligations which the order places on the offender both to behave and to tackle his/her offending behaviour.
Probation with Additional Requirements not specifically cited in Legislation
45.Courts are not restricted in the attachment of additional requirements to those cited in the legislation, and changes in the wording of the relevant legislation introduced by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 have the effect of broadening this scope by enabling the attachment of additional requirements where the court considers that they are "conducive to securing the good conduct of the offender or for preventing a repetition by him/her of the offence or the commission of other offences".
46.Where the court has attached a requirement which proves to be unworkable, steps should be taken by the Supervising Officer to draw this to the attention of the court.
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