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CHAPTER 1. COMMUNITY ORDERS

Criminal Justice Act 2003

1.1 A Community Order made by a court in England & Wales may be transferred to a court (normally the sheriff court, even in indictment cases) in Scotland.

1.2 The term "Community Order" may best be regarded as a generic term which refers to any form of court made (adult) community supervision order. This means that in England & Wales there will no longer be individual, distinctive orders as such (ie: no separate "Probation Order" known in England as a "Community Rehabilitation Order"; or "Community Service Order" known as a "Community Punishment Order"; or "Drug Treatment and Testing Order" etc.) What there is instead is a Community Order the nature of which is entirely dependent upon which requirements a court imposes as part of the order. The nature of the Community Order is thus defined by these requirements. A single Community Order may contain any number of different requirements at the same time.

1.3 Before a Community Order may be transferred to Scotland, it has to be transformed into a distinctive, separate order or orders recognisable in Scotland (eg: Probation or Community Service or Drug Treatment and Testing Order etc.) It is desirable this distinctive order should be as close as possible to the nearest equivalent of the English requirement contained in the Community Order.

1.4 There follows a guide to the range of English requirements in Community Orders and their nearest corresponding Scottish orders. However, the transferring English court cannot transfer any of its Community Order requirements for which there is no corresponding provision in Scotland. The transferring court has a wide discretion, however, to cancel any requirements or to substitute or make any other requirement(s) from the list below. This means the transferring court may be able to make any available Scottish order or combination of Scottish orders even where they do not appear to correspond directly to the original requirements.

Notes

Note 1: Where a Community Order is made with both a supervision requirement (g) and an unpaid work requirement (a), then the nearest corresponding order in Scotland is a Probation Order with additional requirement of unpaid (ie: community service) work.

Note 2: Where a Community Order is made with both a supervision requirement (g) and a drug rehabilitation requirement (e), then the nearest corresponding order in Scotland is a Probation Order and a concurrent Drug Treatment and Testing Order.

Note 3: Where a Community Order is made with either a curfew requirement (i) or an exclusion requirement (j), then the norm is that they will be electronically monitored. The corresponding Scottish Order would be a Restriction of Liberty Order. If, rarely, the Community Order is made with either a curfew or exclusion requirement which is not to be electronically monitored, then the corresponding order in Scotland would be a Probation Order with a similar requirement.

Note 4: Where a Community Order is made with both a supervision requirement (g) and either or both a curfew requirement (i) or an exclusion requirement (j), which are to be supervised by means of electronic monitoring, then the transferring court has two options to choose from in determining the nearest corresponding orders in Scotland: either a Probation Order with additional requirement of electronic monitoring or a Probation Order and a concurrent Restriction of Liberty Order.

Note 5: Where a Community Order is made with both a supervision requirement (g) and an electronic monitoring requirement (i or j) and a drug rehabilitation requirement (e), then the transferring court has the following options in determining which are the nearest corresponding Scottish Orders: concurrent Probation, Restriction of Liberty and Drug Treatment and Testing Orders or concurrent Probation and Drug Treatment and Testing Orders (either or both of which may have an additional condition of electronic monitoring) or, most simply, a Probation Order with additional electronic monitoring & drug treatment requirements (though with this option the drug testing & court review element would have to be dropped.)

Note 6: Where a Community Order is made with both a drug rehabilitation requirement (e) and an electronic monitoring requirement (i or j), then there are two options for the nearest Scottish corresponding order: a Drug Treatment and Testing Order with an additional condition of electronic monitoring or a Drug Treatment and Testing Order and a concurrent Restriction of Liberty Order.

Note 7: Please note activity requirements under (b) above may not be accepted as transfers from England & Wales, since there is no corresponding Scottish order. This prohibition applies equally to the Scottish pilot areas trying out the new Scottish Community Reparation Orders since there is no equivalence between English requirements (given in days) and Scottish orders (given in hours).

Note 8: It is possible for a court in England & Wales to make a Community Order with a programme requirement (c). However, the programme requirement element is not generally speaking transferable to Scotland. This is because the court South of the Border may only make a programme requirement in relation to accredited programmes, that is to say accredited by the accreditation body. Orders will be transferable to Scotland where the corresponding Scottish accreditation body has accredited the equivalent programme that the court wishes transferred to Scotland. Probation with an additional requirement would be the corresponding Scottish order.

1.5 Where a Community Order is made with any of the following requirements - unpaid work, activity, programme, prohibited activity, residence, mental health, drug rehabilitation, alcohol treatment, supervision or attendance centre - then the court may also impose an electronic monitoring requirement.

1.6 When a Community Order is transferred to Scotland it must conform to the legislation governing the corresponding Scottish order. The length of orders may for example vary between both sides of the Border. Best practice would indicate that where such an order is made or transferred to Scotland, the length of time outstanding on that order should not exceed the maximum amount of time allowed for such an order in England or in Scotland, which ever is the shorter. Below is a Table summarising differences of length between the two jurisdictions:

Notes

* Order not transferable ** In relation to residential condition requiring stay in named place
***From October 2005 - Mental Health (Care & Treatment)(Scotland) Act 2003

Transfers to Scotland

Note: There are two statutory circumstances where an English Community Order may be transferred to Scotland: (a) at the time the Order is made, or (b) during the currency of the Order. These procedures apply equally to both sets of circumstances.

1.7 Where the English court considering the making of a Community Order or of amending a Community Order once made in order to allow transfer to Scotland, the transferring English court must be satisfied of the following criteria before it can transfer the Order:

1.7.1 that the offender resides in Scotland (or will reside there) when the order is made or amended;

1.7.2 that arrangements exist for transferred offenders to comply with such Community Order requirements (or their corresponding Scottish equivalents) in the Scottish locality in which the offender resides or intends to reside; and

1.7.3 that the Scottish local authority criminal justice social work service (and or the contracting officer where an electronic monitoring requirement is concerned) is able to supervise the corresponding order. (The supervising officer should be a qualified social worker where the Scottish National Standards governing the equivalent order requires a qualified social worker.)

Note: In 1.7.2, it would be valid if the Scottish locality had access to such a facility or resource even if this was not physically located in the relevant local authority area itself.

1.8 Where the English court is considering making a Community Order (as against amending an Order once made during the currency of the Order), and the offender resides in Scotland, then current procedures will continue in force in the normal way: that is to say, the relevant Scottish criminal justice office will prepare any requested pre-sentence Social Enquiry Report. That part of the SER which comments on possible disposals should at present provide sufficient information to the English court to enable it to (a) make an appropriate Community Order should they wish to do so; (b) convert that Order to an appropriate corresponding Scottish Order, and (c) transfer that Order to Scotland for implementation. There is no need to change existing SER practice as laid down in Scottish National Standards. (Note: An SER is normally required before a court may impose a Community Order.)

1.9 In all other cases (ie: where 1.8 above does not apply),the following procedures require to be carried out prior to any Community Order being transferred:

1.9.1 contact from the local Probation Service where the transferring court is located (or where the offender is being supervised) to the local criminal justice social work service intimating the possibility of a transfer being desired by the English court;

1.9.2 the local Probation service should provide the relevant Scottish criminal justice social work service with:

• the name & date of birth of the offender
• details of the offence, previous offences & sentences
• any available background information or recent reports
• the intended address that the offender is staying at in Scotland, or intends to stay at
• details of the community order made or intended (eg: type of requirement & length)
• record of progress to date if community order already made.

1.9.3 The Scottish criminal justice social work service on receipt of this information (in part or in whole) will:

(a) in relation to the given address:

• check out the given address to confirm that accommodation arrangements have indeed been made there;
• confirm the expected stay at the given address is not intended to be of a purely short, temporary or immediate term nature;
• consider the following questions:

• does the offender have close family or residential ties in the jurisdiction and area to which transfer is sought?
• does the offender intend to reside in the jurisdiction and area following completion of the community order?
• if not, are there strong compassionate or other compelling grounds to support the transfer request?

(b) in relation to the nearest Scottish corresponding order:

• determine with the referring Probation officer what the nearest corresponding Scottish orders would be to the English community order requirements, and thereafter determine:

• is such a service or facility available in (or accessible by) the locality?
• is there a place or vacancy available on that service or resource (if not, when is one likely to become available, if at all)?
• is the social work service able to provide a supervising officer for the order (or is the contractor able to accommodate any requirement for electronic monitoring)?

(c) in relation to public safety

• would the transfer have an adverse effect on the protection of the public, prevention of re-offending or the rehabilitation of the offender?

1.9.4 Once all information in 1.9.2 is received and considered and the work required under 1.9.3 has been undertaken, the Scottish local authority will then be in a position to indicate whether it is (a) able and (b) willing to accept the transfer.

1.9.5 Incoming requests for transfer should in principle be accepted where it is:

• viable to do so
• appropriate to do so
• there is an appropriate resource available
• there is (or soon will be) an ability for that resource or service to receive the offender
• the offender can be properly supervised
• the outcome of the professional assessment arising out of 1.9.2 and 1.9.3 is positive
• the intended move is other than temporary & is not deemed unsatisfactory in nature
• there is no adverse impact on public safety, re-offending or offender rehabilitation.

1.9.6 Decisions arising out of 1.9.5 above should be intimated to the referring Probation officer within 3 weeks of receipt of the transfer request.

1.9.7 Where the decision is made that the transfer would not fulfil the criteria in 1.9.5 above, no transfer of the order should be accepted.

1.9.8 Before a transfer involving electronic monitoring is accepted, the normal procedures should be carried out by the local authority in obtaining and considering information about any place or places where the offender is to remain during the specified periods, including the attitude of persons likely to be affected by the enforced presence there of the offender. However, social workers and contracting officers should note that there is a higher fence to be jumped before a transfer can take place. Where there is a person (other than the offender) without whose co-operation it will not be practicable to secure the monitoring, the requirement may not be transferred without that person's consent.

NOTE

Arrangements should be made with the sheriff clerk for the court not to accept any incoming transfer unless arrangements for that transfer have first been agreed by the local authority (and or the contracting officer where electronic monitoring is required.) On receipt of the papers from the English court, the sheriff clerk will send a written note to the local criminal justice social work service asking for confirmation that the local authority (and or contracting officer) have agreed to the transfer. A written reply should be returned to the sheriff clerk within two working days intimating agreement to acceptance has or has not been made.

Supervision of Community Orders in Scotland

1.10 Once a Community Order is transferred to Scotland and takes the form of the corresponding Scottish Order, otherwise than as indicated below, the Order is then proceeded with and supervised as if it originated and was made in Scotland.

1.11 The supervision of all orders will proceed by the application of Scottish national standards in the same way as if the order had originated and been made in Scotland.

1.12 In particular, the Scottish national standards in relation to disciplinary warnings are to be applied. They override the English statutory provision of warnings whereby only one formal warning may be permitted prior to breach initiation. However, Scottish supervising officers should take heed of any formal warning issued by the English authorities where that has occurred within the 12 months period prior to any subsequent warning issued by the Scottish authorities. Where this occurs, the Scottish warning should be taken as equivalent to the official second warning noted in our own national standards, unless the serious nature of the new failure to comply suggests immediate breach action. (In cases involving electronic monitoring, there is no change to existing practice or procedures for contractors.)

1.13 It is important to note that in some Scottish supervision orders, conviction of a further offence during the currency of the order is breachable (eg: in Probation Orders) whilst in others it is not (eg: Community Service, Drug Treatment and Testing and Restriction of Liberty Orders). These Scottish legal requirements will apply to all transferred orders and will override English law which makes a Community Order following conviction of a further offence subject to revocation (or revocation and re-sentencing for the original offence) at the discretion of the court.

Note:The general rule is that Scottish legislation applies to transferred orders and this replaces English requirements. However, the following additional obligations apply to all transferred Community Orders to Scotland:

(i) The supervising officer (but not the contracting officer for electronic monitoring) needs: (a) to make any necessary arrangements in connection with any requirements in orders; (b) to promote the offender's compliance with those requirements; and (c) where appropriate, to take steps to enforce those requirements.

(ii) The supervising officer ( including the contracting officer for electronic monitoring) should, as far as practicable, avoid giving any instruction which (a) conflicts with the offender's religious beliefs (b) conflicts with the requirements of any other order to which the offender is subject (c) interferes with the times (if any) at which the offender normally works or attends school or other educational establishment.

(iii) The offender must keep in touch with the supervising ( or electronic monitoring contracting) officer in accordance with such instructions given by that officer and must notify him or her of any change of address. Failure to do so is enforceable as a breach of the order.

Court Powers on Breach

1.14 The procedure for processing breach applications to court and the required time frames will adhere to existing Scottish national standards and conform to the fast track breach procedures issued by the Scottish Executive in early 2004, other than where this document amends these arrangements.

1.15 The Scottish court will deal with all breach applications to the point where the grounds of breach are accepted or proved to the satisfaction of the court. The standards of required proof are no different to current Scottish arrangements.

1.16 How the Scottish court considers the breach might be dealt with will now determine what happens next:

1.16.1 the Scottish court may not

(a) revoke or discharge the order, nor

(b) deal with the original offence, nor

(c) vary, extend or amend an order beyond the limit that could have been imposed in England or Scotland whichever is shorter.

1.16.2 Where the Scottish court believes that any of the actions outlined in 1.16.1 may be appropriate, it can require the offender to appear before the English court that made or last amended the order. In these circumstances, the English court may then issue a warrant for the arrest of the offender and its power of dealing with the breach reverts to the full range of disposals available for such purposes to the English court.

1.16.3 Where the Scottish court believes it should deal with the breach by any means available to it under normal Scottish law other than those actions outlined in 1.16.1 above, it may proceed to do so in the normal fashion as if the original order had been made in Scotland.

Court Powers on Amendment

1.17 Any action instigated by the supervising officer or offender to vary, amend or revoke (ie: in shorthand, review) an order where it appears to be in the interests of justice to do so having regard to circumstances which have arisen since the order was made (or transferred), should proceed in accordance with the criteria and practice laid down in the current Scottish national standards.

1.18 Please note applications for early discharge may only be made in relation to transferred orders as they could have been made in relation to orders originating in Scotland. This overrides English legislation which gives more extensive powers for early discharge for good progress across its range of Community Order requirements. Thus, such a power would exist for a Scottish Probation Order, for example, but not for a Scottish Community Service Order. Always remember the rule: apply normal Scottish practice as if the order had been made in Scotland.

1.19 All review actions will be proceeded with in the normal fashion till the matter falls to be considered by the Scottish court. How the Scottish court believes the review application should be dealt with will now determine what happens next:

1.19.1 the Scottish court may not

(a) discharge or revoke the order, nor

(b) deal with the original offence, nor

(c) vary, extend or amend an order beyond the limit that could have been imposed in England or Scotland, whichever is the shorter.

Note: There is one exception to the rule noted in 1.19.1(a) above. The Scottish court may revoke the order where the offender has been convicted of a further offence for which the court has imposed a custodial sentence. This exception doesnotapply to breach cases in 1.16.1(a) above.

1.19.2 Paragraphs 1.16.2 and 1.16.3 above apply to review actions as they apply to breach actions.

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