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National Objectives for Social Work Services in the Criminal Justice System: Standards - Social Enquiry Reports and associated Court Services
APPENDIX III: REVIEWING COMMUNITY-BASED SENTENCING OPTIONS THE RANGE OF AVAILABLE DISPOSALS
1.This Appendix describes the range of community-based disposals currently available and offers guidance on what to take into account when reviewing their appropriateness in a particular case.
ADMONITION
2.The power to admonish is almost always used only for offenders convicted of minor offences. It registers society's disapproval of the offender's criminal behaviour without imposing a punishment. An admonition is therefore likely to be most appropriate where the offence is not serious and the risk of re-offending low. An admonition is frequently, but not exclusively, used for first or early offenders and can be combined with an offer of voluntary social work support.
THE FINE
3.The fine is the most frequent court disposal and is used for a wide range of offenders and offences. It is intended as a punishment and the amount of the fine must be related to the seriousness of the offence and the financial circumstances of the offender. Where a fine is imposed, the court must consider the offender's means, using any available information. If the offender does not pay, the court can impose a Supervised Attendance Order or imprisonment in default.
4.A social enquiry report must include information about the subject's current income and necessary outgoings, if possible verified. In reviewing the fine option, social enquiry report writers should consider whether, on the information available, the offender is in a position to pay. They should also consider whether the seriousness of the current offence and/or the seriousness and frequency of any previous offending and the circumstances of the offender suggest a higher tariff disposal, eg a Probation or Community Service Order.
SUPERVISED ATTENDANCE ORDER
5.This court disposal is intended as an alternative to prison or detention for offenders who do not pay their fines and involves undertaking structured and constructive activities for between 10 and 100 hours. The consent of the offender is not necessary. In the case of 16 and 17 year olds, the disposal can be imposed at first instance where the court considers that a fine is the most appropriate disposal but that the offender would be unable to pay within 28 days. However this section of the legislation is not currently being implemented.
6.In courts where the Supervised Attendance Order scheme has been extended to cover this age group, report writers should review the option of a Supervised Attendance Order where their assessment is that the offender would be unable to pay a fine.
COMPENSATION ORDER
7.The court can make a Compensation Order (either instead of or in addition to dealing with the offender in any other way) which requires the offender to compensate the victim financially for any offence which causes loss, damage or personal injury. Such orders are most frequent where the amount of damage or loss is clear and where there is no doubt that it has arisen from the offence in question. As with the fine, the court must consider the offender's means. An order need not be for the full amount of the damage or loss. The offender must pay the clerk of court who forwards the money to the victim. Full payment must be possible within a reasonable period. Where the offender's means are limited and the court is considering either a fine or compensation, compensation must take precedence.
8. Failing to pay compensation can lead to imprisonment and the alternative of a Supervised Attendance Order does not apply
9.In reviewing the option of compensation, report writers must consider whether the offender is in a position to pay. Paying compensation can also be an additional requirement in a Probation Order (see para 31 of National Standards for Probation).
DEFERRED SENTENCE
10.A Deferred Sentence postpones a sentencing decision and, as a general rule, is used as a way of taking the offender's conduct into account at sentence. A deferment has a general condition "to be of good behaviour" and more specific conditions can be added, e.g. to make restitution to the victim or to attend an alcohol education programme.
11.Deferred Sentence and Probation Orders should not be confused. The main differences are that:
- a Deferred Sentence does not normally provide for the regular supervision of the offender except on a voluntary basis;
- the means of enforcing compliance with any conditions are limited;
- the offender is subject to sentence at the end of the period of deferment.
When reviewing a deferred sentence as a possible option, report writers should consider:
- the proposed purpose of the deferment;
- the appropriate time period;
- what will be expected of the offender during the period and what service, if any, the social work authority or other agency would provide;
- whether a supplementary report could be provided if requested by the court.
Report writers should remember, when reviewing sentencing options, that a Deferred Sentence should not serve simply to avoid a difficult decision.
PROBATION
12.Probation is competent for any offence where the penalty is not fixed by law. The court must take into account the nature and circumstances of the offence and the character of the offender. The main purpose of probation is to work with offenders to prevent or reduce their offending by combining oversight and control with help to learn new behaviours and to deal with problems associated with offending. The court must obtain the informed consent of the offender before making an Order. The offender can be placed on probation for a period of between 6 months and 3 years.
13.The national standards for probation outline the various types of Probation Order and the considerations for report writers to take into account when reviewing their feasibility in a particular case.
COMMUNITY SERVICE
14.The law restricts Community Service Orders to offences which would otherwise have resulted in imprisonment or detention. A Community Service Order requires the offender to carry out unpaid work of benefit to the community for between 80 and 240 hours in summary proceedings and 300 hours in solemn proceedings. The court must obtain the informed consent of the offender before making an order.
15.The criteria for reviewing an offender's suitability for this disposal are contained in the national standards for Community Service.
FINES SUPERVISION
16.The court can place an offender who has been allowed time to pay a fine under supervision "for the purpose of assisting and advising the offender in regard to payment of the fine". This must be done where an offender under 21 has been allowed time to pay and is facing custody unless the court is satisfied that supervision is impractical.
REMITTAL TO CHILDREN'S HEARINGS
17.The court must remit for advice from the Children's Hearings all offenders currently on a Supervision Order. Depending on this advice, the court may also remit the case for disposal. The court also has the power to remit any offender under 17 years and 6 months for advice and possible disposal.
18.Young people should be dealt with by the children's hearings for as long as possible, particularly when their welfare needs are extensive. In such cases, the report writer should consider whether there are any factors in the offender's current circumstances, life experience or personal maturity which suggest that he or she is dealt with more appropriately by the Children's Hearings. Particular factors to be borne in mind include:
- whether the subject was recently in residential care;
- the general stability of the subject's life;
- the extent to which the offender can accept and learn from the higher level of individual responsibility for his or her behaviour inherent in the expectations of the court.
Report writers should always bear in mind the option of remittal to a Children's Hearings for advice/disposal in the circumstances outlined above. They should also take account of any co-ordinated policy for providing services to the criminal justice system and the Children's Hearings for 16 and 17 year olds which has been developed in their area.
SUPERVISION AND TREATMENT ORDERS
19.The purpose of a Supervision and Treatment Order is to secure access to supervision and assistance in the community, including medical treatment, for persons who are unfit to stand trial but who have been found to have committed the act with which they are charged or who are acquitted on the grounds that they were insane at the time of the act. The order was introduced on 1 April 1996.
20.Before making an order, the court needs to know that the offender is suffering from a treatable mental illness (this requires the evidence of a specialist and at least one other doctor). The illness must not be so serious as to require a hospital or guardianship order. The court must also know that the local authority is willing to supervise the order. The law does not require a written report from the social work department although recent central government guidance suggests that this is good practice and that a report should normally be prepared.
21.Consideration of this option is only likely when the court is already aware that the offender has mental health problems and requests advice from the psychiatric and social work services about how to deal with the offender. The assessment of the offender's suitability by the social worker should consider:
- the risk which the offender may pose (together with the medical specialist);
- whether the offender is likely to comply with the conditions of the order;
- the satisfactoriness of the home surroundings;
- whether a condition of residence (or residence in a hospital) may be necessary;
For more detailed guidance on the supervision and treatment order and its implications for social work, see Central Government Circular No SWSG4/98.
HOSPITAL ORDERS
22.In cases where the accused is found guilty of an offence punishable by imprisonment the High and Sheriff Courts can make a Hospital Order requiring compulsory admission to hospital where:
- the person is suffering from mental disorder as defined in the Mental Health (Scotland) Act 1984;
- the person requires medical treatment in hospital for such disorder;
- the person needs to be detained in hospital in the interests of his or her own safety or for the protection of others in order to receive treatment.
23.In criminal proceedings, a Hospital Order can be made on the written or oral evidence of two medical practitioners that the above criteria are met. If dealt with under summary procedures an Order can be made without proceeding to conviction. When, in the process of preparing a report, the social worker considers that the mental state of the offender may indicate the need for compulsory admission to be considered, he or she should contact the relevant mental health services and seek their advice. This could be a Designated Mental Health Officer and/or a local forensic psychiatric service.
HOSPITAL DIRECTION
24.In addition to imposing a prison sentence, the court may make a Hospital Direction. This allows an offender convicted on indictment and sentenced to imprisonment to be sent straight to hospital if he or she is considered to be suffering from mental illness and needs hospital attention. A person placed on Hospital Direction is detained in hospital for treatment until his or her responsible medical officer considers that this is no longer necessary. The offender is then transferred to prison to serve any remaining balance of the sentence. The direction ceases on the expiry of the prison sentence. The offender may then be liable to be detained in hospital under the civil procedures part 5 of the 1984 Mental Health (Scotland) Act if his or her mental condition has not improved.
25.As with the Hospital Order, a Hospital Direction requires the written or oral evidence of two medical practitioners. Where the social worker preparing a report on an offender facing possible imprisonment considers that the offender may be suffering from mental disorder which requires hospital treatment, he or she should bring this to the court's attention and suggest a full psychiatric assessment, if one has not already been requested by the court.
GUARDIANSHIP
26.High and Sheriff Courts can make a Guardianship Order in respect of an offender, placing him or her under the guardianship of a local authority or person approved by a local authority. If dealt with under summary procedures, an order can be made without proceeding to conviction. The purpose of guardianship is to provide care, protection and treatment for persons living in the community and suffering from mental disorder. Any treatment requires the offender's consent
27.Guardianship Orders are made relatively infrequently, usually in the case of people with learning disabilities. If the author of a social enquiry report thinks that the subject of a report should be considered for such an option he or she should, in the first instance, consult the department's mental health service which has the responsibility for co-ordinating a medical and social assessment of suitability.
RESTRICTION OF LIBERTY ORDERS
28.Orders which restrict the offender's liberty can be imposed by the court, with the offender's agreement. The offender may be restricted to a particular place or places for up to 12 hours a day for up to 12 months or from a particular place or places for up to 12 months. Compliance with the order will be electronically monitored by a commercial contractor. The court is not required to obtain a social enquiry report before making a Restriction of Liberty Order, although in practice this is likely to occur.
29.Whilst the Restriction of Liberty Order is free-standing, a Probation Order and/or a Drug Treatment and Testing Order can be made concurrently for the same offence. Restriction of Liberty Orders will be piloted until March 2001 at 3 Sheriff Courts (Aberdeen, Peterhead, Hamilton) and their usefulness evaluated through independent research.
DRUG TREATMENT AND TESTING ORDERS
30.A Drug Treatment and Testing Order is a free-standing order which can run in parallel with a Probation Order and/or a Restriction of Liberty Order. Its aim is to enable courts to deal more effectively with offenders who are dependent on or misuse drugs. It gives the court powers to impose drug treatment and testing for a specified period and to review the offender's progress at regular pre-determined court hearings. Regular, random mandatory drug testing is an integral part of the treatment.
31.Any offender who is 16 or over and is shown to the court's satisfaction to be dependant on or to misuse drugs is eligible unless convicted of an offence for which the sentence is fixed by law ie murder. The order is aimed at drug misusers who are prepared to undergo treatment, subject to the assessment and agreement of the treatment provider. The court cannot make an order unless it has obtained a social enquiry report and the offender agrees to comply. The order will include the treatment provider, the location of treatment (whether residential or non-residential) and its length and intensity.
32.The order is supervised by an officer of the local authority whose role is to maintain overall control of the order, keeping abreast of the treatment side to report on progress to the court and ensure that work is being done to tackle other issues related to the subject's offending. The order is now available on a pilot basis in Glasgow Sheriff Court.
SUPERVISED RELEASE ORDERS
33.Where a person is convicted of an offence committed before 30 September 1998 and is sentenced to imprisonment for a term of not less than 12 months but less than 4 years the court can require a period of supervision on release by means of a Supervised Release Order if it considers that it is necessary to do so to protect the public from serious harm. As from 30 September 1998 the court can also make a Supervised Release Order in indictment cases for offences other than sexual offences when the offender is sentenced to less than 4 years (ie no lower limit of 12 months). However a Supervised Release Order cannot be imposed in indictment cases where an extended sentence (which allows longer supervision than the Supervised Release Order) could be imposed. The court will make a Supervised Release Order after considering a social enquiry report. The Supervised Release Order can be for up to 12 months from release but cannot exceed the date of expiry of the custodial sentence.
CUSTODY
34.The court may ask for a report on any offender facing custody but must do so in the case of those under 21 and those facing custody for the first time. In the latter case, the content of the legislation suggests that report writers should explore the feasibility of a community-based disposal, recognising that the court must take wider considerations into account when sentencing. In the former case, particularly where custody appears virtually inevitable, the court may wish for comments on the appropriateness of a Supervised Release Order or Extended Sentence.
EXTENDED SENTENCES
35.The Crime and Disorder Act 1998 introduces provisions for Scotland to allow courts to impose additional post-release supervision on licence where they consider that any existing supervision would not be enough to protect the public from serious harm to the offender. The Extended Sentence can be imposed in indictment cases in respect of violent or sexual offences committed after 30 September 1998:
- on sex offenders who receive a determinate custodial sentence of any length;
- on violent offenders who would have received a determinate custodial sentence of 4 years or more.
36.The Extended Sentence is not available in cases where the court intends to impose an indeterminate custodial sentence because such an offender would be on life licence. There is no age limit.
37.The Extended Sentence has two parts - the custodial sentence the offender would have received for the offence (the "custodial term") and the additional period of supervision (the "extension period") which is in addition to any licence period to which a prisoner may be subject by virtue of the custodial term. The maximum length of the extension period is 10 years for sex offenders and 5 years for violent offenders.
EXAMPLES
38. Example 1 - a custodial term of less than 4 years: if the court wants to impose a custodial sentence of 2 years for a sex offence but considers that in addition 6 years supervision is needed for public protection, it would impose an Extended Sentence of 8 years. This would be made up of a custodial term of 2 years and an extension period of 6 years. The offender would serve one year in custody and would then be released on licence for 6 years.
39. Example 2 - a custodial term of 4 years of more: if the court wants to impose a custodial sentence of 6 years for a sex offence but considers that an additional 8 years supervision is needed for public protection, it would impose an Extended Sentence of 14 years. This would be made up of a custodial term of 6 years and an extension period of 8 years. The offender would serve 3 or 4 years in custody depending on whether or not he/she got parole and then would be released on licence which would last for 10 or 11 years.
40.The court must obtain a social enquiry report before imposing an extended sentence and may obtain other reports. Social enquiry reports therefore have an essential role to play in assisting the court reach a view about future risk and whether an additional period of supervision on licence would help to contain and address this. The national framework for assessing risk (currently in draft) should assist with this assessment.
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