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National Objectives for Social Work Services in the Criminal Justice System: Standards - Probation
CHAPTER 5: ENFORCEMENT AND TRANSFER
ENFORCEMENT IN THE EVENT OF NON-COMPLIANCE
78.One of the main tasks of probation supervision is to supervise compliance with the requirements of the Order. A consistent and fair approach to this aspect of the work helps the offender to understand that probation operates within a clear framework of legally enforceable requirements and helps to maintain the credibility of the disposal.
79.In approaching the task of enforcement (including the initiation of breach proceedings) supervisors must use their judgement to decide the seriousness of the non-compliance in any particular case. A distinction should be drawn between convictions for a further offence which automatically lead to breach proceedings and failure to comply with a requirement or requirements in the Order where there is some room for the exercise of discretion.
80.Any failure to comply with a requirement in the Order must be followed up quickly (normally within 2 working days) and wherever possible, the offender should be interviewed to establish the reasons for it.
The Place of Action Plans
81.Expectations regarding tasks to be undertaken and the contact to be maintained at each phase in the probation order will be set out in the action plan and subsequent reviews prepared by the supervising social worked and agreed with the offender. The extent to which enforcement will be necessary will depend on whether the offender meets these expectations. If the offender fails to meet any specific aspect of an action plan (whether or not it is specified and supported in the order through the attachment of an additional requirement) the failure may constitute a breach and should be followed up in the normal way.
Acceptable Reasons for Non-compliance with a Requirement
82.The following may be considered acceptable reasons for the offender's non-compliance with a requirement:
82.1an explanation provided in advance by the offender and agreed with the supervisor;
82.2ill-health (the offender must obtain a medical certificate);
82.3unforeseen requirements placed on the offender by an employer;
82.4an unforeseen crisis arising from other responsibilities or circumstances.
Enforcing Compliance
83.Where the failure has been investigated and the reason offered by the offender is not acceptable, the supervisor must decide what action to take. The options available to enforce compliance are either to warn the offender with the aim of encouraging compliance or to apply to the court for a breach of probation. In the latter case, the purpose of the application may not necessarily be to terminate the Order but to use the court appearance as a means of enforcing compliance and recommending that the Order be continued. In the event of a breach, the court always retains the capacity to sentence the offender for the original offence.
Warnings
84.There is no legislative provision for and no entitlement to warnings. Nevertheless, common sense suggests that supervisors should be able to exercise a limited discretion in their approach to enforcement. This discretion must be used sparingly. Serious failures to comply with a requirement must always result in an immediate application for breach, eg. the commission of a further offence or a failure to reside at an address specified in the order. Other less serious failures to comply, eg. a failure to report as directed by the supervisor, may, depending on the circumstances, be dealt with either by an application for breach or a warning. No offender should be warned more than twice before an application for breach is made. All warnings must be put in writing to the offender and recorded in the case file. They should also be mentioned in the final report which is sent to the court. Evidence that the offender has been warned for a previous failure to comply with a requirement will add force to an application for breach on a subsequent occasion.
Responsibility for Enforcing Compliance
85.When in the context of either a standard order or an order with an additional requirement(s) the probationer must meet a commitment involving the oversight/support/assistance of a third party, eg. the performance of unpaid work, residence in supported accommodation, participation in an intensive day programme, there must be clear agreement at the outset between local authority managers responsible for probation practice and the project/service on procedures for dealing with non-compliance, using these national standards as a baseline. Where no formal arrangements are possible, the procedures agreed by the supervisor must be endorsed by the supervisor's line manager.
86.The supervisor must retain overall responsibility for enforcing compliance whilst allowing some scope for third parties to specify the circumstances in which the offender is no longer acceptable to the programme and to respond to individual failures to comply as they arise. Wherever possible, courts should be made aware of the standards and rules applied by particular programmes at the point of sentence. All failures to comply should be reported to the supervisor and recorded in the case file along with a note of the action taken. The supervisor has responsibility for initiating breach proceedings. Under section 232 of the 1995 Act the term supervisor in this context includes (a) the Director of Social Work/Chief Social Work Officer or (b) another officer appointed by him/her to act on his/her behalf.
Breach Proceedings
87.There are 2 types of breach of probation, breach by further offence ( section 233) and breach of requirements ( section 232). The requirements are those listed in the standard probation order and any additional requirements inserted by the court (paragraphs 19 to 46).
Standards of Proof
88.Whilst in most cases offenders placed on probation do not contest an application for breach, the standards of proof should be taken to be the same as for any other case brought before the court. Before applying to the court Supervising Officers should check with their local Procurator Fiscal if they are in any doubt about the standard of proof necessary in a particular case. A specific concern may be the extent of the corroborated evidence required. The general requirement of Scots Law that essential facts be corroborated by evidence from two independent sources has been relaxed in relation to proof that an offender has failed to comply with a probation order for the purposes of section 230(1). In such proceedings the evidence of a single witness that a probationer has failed to comply with a requirement of a probation order will be sufficient.
Initiating Breach Proceedings
89.For a breach to be proved at a later stage, there are a number of steps which require to be taken from the outset:
89.1.the Supervising Officer must ensure that the offender has read and signed and that he/she has countersigned the action plan prepared when the order is made setting out what the offender is expected to do. This procedure must also be followed when the plan has been revised following the required periodic reviews;
89.2the Supervising Officer must also ensure that the offender signs the probation order which records his/her address at the time order is made and that he/she has countersigned the order. Any subsequent change of address must be recorded in the case file, signed by the offender, and countersigned by the Supervising Officer.
The Powers of the Court in the Event that a Breach is Proved
90.Where the offender is convicted of a further offence whilst on probation the court may take no action or otherwise sentence the offender for the original offence, thereby terminating the order. For other types of breach the powers of the court are as follows:
90.1to impose a fine for the breach up to level 3 on the standard scale (i.e. £1,000 in 1995) and to follow the order to remain in force;
90.2vary any requirement of the order. The court may use this power to extend the order, by not beyond 3 years from when it was first imposed;
90.3to impose a Community Service order in addition to the probation order, if the conditions for making a CSO are satisfied;
90.4terminate the probation order and sentence the offender for the original offence.
91.Once a breach has been proved the decision about what will be done lies with the court but it may be influenced by the views of the Supervising Officer as to the most appropriate course of action.
90.Where an order has been transferred from a court in England or Wales, the court in Scotland may not exercise any power under sections 232(2)(b) or 233 of, or paragraph 1 of Schedule 6 to, the Criminal Procedure (Scotland) Act 1995, i.e. any power to sentence the offender for the offence for which the order was originally made (either for failure to company with a requirement of the order or for the commission of a further offence) or to discharge the order. If the offender fails to comply with such an order or the court in Scotland is of the opinion that it is in the interests of justice that the order should be revoked under paragraph 7 or 8 of Schedule 2 to the Criminal Justice Act 1991, then the court in Scotland may require the offender to appear before the court which made the order.
Breach by Further Offence
92.Where there is information that the offender has been convicted of a further offence committed during the period of the probation order, there are always sufficient grounds to initiate breach proceedings and this step should always follow. Wherever possible, court duty social workers should check the list of cases to be heard in court for persons currently under probation supervision and, if the defendant is found guilty, notify the Supervising Officer. The Supervising Officer must then inform the court holding the probation order of the commission of a further offence during the period of probation.
Breach of a Requirement
93.The requirements of a standard probation order and the additional requirements available to the courts which are set out in legislation, are listed at paragraph 19-46. The following paragraphs give practical guidance on what is likely to be necessary to obtain sufficient evidence to meet the required standard of proof where these requirements are breached, in particular cases of doubt social worked should consult the Procurator Fiscal:
Breach for failure to confirm to the discretion of the Supervising Officer
93.1the most common failure arising from this requirement is the failure to attend as instructed. Any breach for failure on these grounds must have:
93.1.1proof that instructions were given and received; and
93.1.2proof that the subject failed to attend.
93.2it is therefore necessary to keep copies of letters sent (by recorded delivery if necessary) and to ensure that the failure to attend is witnessed;
93.3where the offender is required to attend a programme designated in the action plan but not the subject of an additional requirement in the probation order, the action plan, signed by the offender and countersigned by the Supervising Officer may be used as supporting evidence along with the evidence that the offender received instructions and failed to attend:
Breach for Failure to Reside at an Address Designated in the Probation Order
93.4any breach on these grounds must have:
93.4.1proof that the offender has agreed to reside at the address. Since it is crucial that the offender has agreed it would be helpful if the offender has signed the order which designates the address; and
93.4.2proof that the offender was absent from the address overnight without prior or subsequent approval.
Breach for Failure to Reside where Directed by the Supervising Officer
93.5any breach on these grounds must have:
93.5.1proof that the offender has been directed to reside at the address. The offender must therefore have signed the case record where the address is recorded and the Supervising Officer must have countersigned; and
93.5.2proof that the offender was absent from the address overnight without prior or subsequent approval
Breach for Failure to Notify at Once a Change of Residence
93.6any breach on these grounds must have:
93.6.1proof that the original address that he/she was living at when the order was made. In this connection it would be helpful if the Supervising Officer ensures that the offender signed the probation order which records his/her current address and that the Supervising Officer countersigned. Any subsequent change of address must be recorded in the case file, signed by the offender and countersigned by the Supervising Officer; and
93.6.2proof that the offender is no longer living at the given address. This can be obtained by:
93.7visiting and obtaining information from other residents (family, friends, or tenants) that he/she is no longer living there;
93.8visiting at least twice if the offender is living alone and leaving a contact card or sending at least two letters by recorded delivery (it is essential to retain the receipts of sending and the returned envelopes stamped by the post office);
93.9as a guideline, the phrase "at once" should be taken as meaning that the offender must notify the Supervising Officer of any change in residence at the latest by the date of his/her next appointment;
Breach for Failure to Pay Compensation
93.10any breach for failure to pay compensation must have:
93.10.1proof that the offender has been directed to pay compensation including the total amount ordered, the amount to be paid in each instalment, and the intervals at which the compensation was to have been paid. The offender's witnessed signature on the probation order is sufficient for this purpose, and
93.10.2evidence in the form of a certificate from the sheriff clerk of the amount of any compensation that has been paid, the date on which is was paid, and the amount outstanding;
Breach for Unsatisfactory Performance at Work ("Section 7" Orders) or Whilst Undertaking A Day Programme
93.11any breach on these counts requires that:
93.11.1the conduct complained of it witnessed by a person (who may be a member of staff); and
93.11.2similar conduct is witnessed by a member of staff;
Breach for Failure to Notify at Once a Change in Employment
93.12although this is technically possible, it is most unlikely that Supervising Officers will need to use these grounds alone when applying to the court.
Procedures for Instituting Breach of Probation
94It is for Supervising Officers to institute breach proceedings. This should be done in the following way:
94.1Supervising Officers should apply to the court whose task it is to decide whether proceedings should be taken, providing any relevant information;
95.Supervising Officers must then pass all the appropriate papers to the clerk of the court who will arrange for the arrest of the offender.
96.Where they do not already exist, it will be necessary to set in place appropriate liaison arrangements at local level with procurators fiscal and sheriff clerks in order to expedite applications for breach.
Note that it is not necessary for the court dealing with the breach to have the principal copy of the indictment, minute of proceedings or note of previous convictions, provided that is has copies of these documents certified as true copies by the clerk of the court which made the order.
TRANSFER OF PROBATION ORDERS
97.The legislation governing transfers of probation orders within Scotland is contained in Schedule 6 to the Criminal Procedure (Scotland) Act 1995.
98.There is no impediment in law to a probationer, subject to a Standard Probation Order, changing his/her residence provided the probationer advises the Supervising Officer at once if he/she changes residence.
99.In such circumstances, the supervising social worker will wish to consider whether to seek transfer of the order or to take other appropriate action, such as an application for early discharge (eg. in circumstances where the offender has performed his/her order well and has a short period of time outstanding till completing the order). While probationers are not obliged to provide notification before they move, supervising social workers are advised to plan transfers in advance wherever circumstances permit, in order to achieve a smooth transfer and maintain good standards of supervision. There will, however, be occasions when probationers change their residence without notifying their supervising social worker in advance. In any event, applications for transfer should not be made to the court until the supervising social worker is satisfied that it is other than a temporary, short term move.
100.No social worker should supervise an order for a social worker in another local authority area without formal transfer of that order, other than for short periods in exceptional circumstances.
Procedures for Transfer
101.If a probationer moves to a new address outwith the area covered by the social work office or outwith the jurisdiction of the court holding the order, the Supervising Officer must consider applying for a transfer of the order.
102.If the change of residence is to an address outwith the jurisdiction of the court holding the order, when the order is transferred to another sheriff or district court in Scotland, all the powers of the court holding the order are transferred to the receiving court.
Where a Probationer Advises of a Pending Change of Address
103.When a probationer advises the Supervising Officer of an impending change of address to an area outwith the jurisdiction of the court holding the probation order, the officer should obtain the new address and any other relevant details eg. place of employment, and identify the appropriate social work office within the new area.
104.The Supervising Officer should make written contact with the social work office to which it is intended to transfer the order, enclosing the SER and such other information as may be required:
104.1advising of the likely move and the date on which the probationer intends to move to the new address;
104.2requesting that the probationer be interviewed with the view to confirming the probationer's arrival and intention to stay; and
104.3if it is so confirmed, requesting the new office to indicate a willingness to supervise the order and allocate a social worker.
105.The social work office in the "new" area should respond in writing to the above requests within 14 days. Where they have agreed to accept responsibility for the case, the name of the new Supervising Officer should be included. Where, however, it does not prove possible to contact the probationer at the new address, the Supervising Officer should be informed without delay so that consideration can be given to the appropriateness of initiating breach action.
106.Once confirmation of the name of the new supervising social worker has been received, the existing supervisor should make a written application to court for transfer of the order within 7 days.
107.The application to court for transfer of the order must contain the reason for the transfer, the offender's new address, the new social work office, the name of the new Supervising Officer, and confirmation that the new office is willing and able to supervise the transferred order. The application must always be accompanied by a brief report on the probationer's progress to date.
108.It is the responsibility of court social work staff to inform the Supervising Officer without delay of the outcome of the transfer application to court..
109.Once the court has agreed to transfer the order, all relevant case records should be forwarded without delay to the new Supervising Officer.
110.The new Supervising Officer must serve the transferred order in accordance with the procedures set out in paragraph 53.
111.In cases where there is insufficient time for the existing supervisor to make contact with the new area by letter, preliminary arrangements should be made by telephone and subsequently confirmed in writing.
112.If the probationer within a reasonable period of time (not exceeding one month) advises of the change of address, the Supervising Officer must within 7 days of being so advised write to the social work officer covering the area in which the probationer has moved enclosing a copy of the most recent SER and such other information as may be required and requesting the new area make contact with the probationer with a view to confirming the offender's new address and ascertaining his or her future plans.
113.If it appears to the social worker who makes these enquiries that the move to the new address has a degree of permanency, the existing Supervising Officer should be advised. The social work office undertaking these enquiries should also in these circumstances intimate in writing to the Supervising Officer their willingness to accept responsibility for supervising the order if transferred and the name of the officer that would be allocated to undertake the supervision.
114.On receipt of the information from the social work office undertaking the above enquiries, the Supervising Officer needs to decide whether to apply for a transfer of the case of to initiate alternative action (e.g. application for early discharge, breach, etc). Any application to court for transfer should be made within 7 days of receipt of the information from the social work office undertaking the enquiries.
115.Paragraphs 93.4 to 93.7 should be applied thereafter.
Transfers to and from England and Wales
116.The legislation governing transfers from Scotland to England and Wales is to be found in section 234 of the Criminal Procedure (Scotland) Act 1995. The provisions for transfers from England and Wales to Scotland are to be found in the Powers of Criminal Courts Act 1973 and in Schedule 2 to the Criminal Justice Act 1991.
117.The same procedures as outlined in paragraphs 96 to 99 above should apply to cross-Border transfers as they would apply to transfers within Scotland.
118.Both the officer seeking the transfer and the new Supervising Officer should inform the probationer that the court transferring the order retains residual powers to deal with breach of the order. Only the court transferring the order can in such circumstances sentence the probationer for the original offence.
119.It is not possible to transfer a probation order on an offender younger that 16 years of age to England and Wales.
Changes of Address Within the Same Court Area
120.Where a probationer changes residence to an address still within the jurisdiction of the court holding the order, all that needs to be done is to notify the court of the new address and any change in Supervising Officer. No application should be made to court for a transfer.
121.It is a matter for each local authority to devise arrangements for ensuring continuity of supervision in the above circumstances.
Transfer of Orders which contain Additional Requirements (Other than of Residence)
122. Paragraph 2(4) of Schedule 5 to the Criminal Procedure (Scotland) Act 1995 lays down that a court shall not grant a transfer of an order "if the probation order contains requirements which in the opinion of the court cannot be complied with unless the probationer continues to reside in the local authority area named in the order . Unless it cancels those requirements or substitutes therefor other requirements which can be so complied with".
123.Where a probation order contains additional requirements (other than of residence), it is necessary for the Supervising Officer to establish from the social work office in whose area the probationer intends/has decided to reside whether facilities and arrangements exist in the "new" area for the continued compliance with the additional requirement(s):
123.1where such arrangements do exist and are available, the court should be so advised in the transfer application, and the procedures outlined in paragraphs 96 to 99 above should be followed;
123.2where such arrangements do not exist or are unavailable, the Supervising Officer wherever possible in collaboration with the probationer must make an assessment and decision whether to proceed with the transfer application with a recommendation to court to delete or alter the additional requirement(s) or whether to decline to apply for transfer of the order: in which case he/she must consider whether to insist on continued compliance with breach as a sanction in the event of default, or to apply to the court for an early discharge of the order.
Transfer of Order which contain a Residential Requirement
124.There are 2 sets of residential requirements which may be inserted into a probation order in Scotland. Arrangements for transfer depend on the type of requirement.
124.1.where a probation order contains a requirement specifying the address at which the offender must stay;
124.2where a change of residence is anticipated and needed from that specified in the order, application should first be made to court to amend the condition to enable any necessary transfer thereafter. The procedures outlined in paragraphs 96 to 99 should be followed, taking into account of those special circumstances;
124.3where a probation order contains a requirement specifying that the probationers must stay at an address approved by the Supervising Officer.
125.The transfer procedures as outlined in paragraphs 96 to 99 above should be followed in cases where the Supervising Officer approves of the new address. Where an offender moves to residence not approved by the Supervising Officer, then breach proceedings should be instituted.
126.It should be noted that any probationer whose order contains a residential requirement and who changes his/her residence without the prior agreement of the Supervising Officer is in breach of the order, and appropriate action must be taken to enforce compliance or initiate breach action.
International Transfers
127.At present there is no provision for the transfer of probation orders other than to England or Wales. Where the offender moves to an address outside Scotland, England or Wales and is unable to meet the requirements of supervision, supervisors must decide depending on the circumstances whether to apply to the court for either an early discharge or a breach of the order. In some cases it may be possible to arrange for voluntary support to be offered to the offender from an agency in the country to which he/she has moved. Advice on these matters and on any new legislation which may be passed which facilitates the international transfer of probation orders may be obtained from Social Work Services Group, Room 13, James Craig Walk, Edinburgh.
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