The Scottish Government

This document is available in PDF version here

Scottish Executive Justice Department Circular JD/3/2006

26 January 2006

Dear Sir/Madam

MANAGEMENT OF OFFENDERS ETC ( SCOTLAND ) ACT 2005: SECTION 12: PROBATION PROGRESS REVIEWS

Introduction

Section 12 of the Management of Offenders etc. (Scotland) Act 2005 amends the Criminal Procedure (Scotland) Act 1995 so as to provide a statutory basis for courts to conduct review hearings, where it considers it appropriate, for offenders subject to a probation order. This circular alerts authorities to the new legislation.

Background

The background to this provision is a High Court Ruling of 2 August 2005 (James McLaughlin v Procurator Fiscal, Stirling), which found in favour of a complainer who had contended that the fixing of a progress review hearing during the course of a probation order was ultra vires. (As you will be aware, review hearings were in practice held before this but no legal challenge had been taken to them). Nevertheless, the High Court, in concluding that the fixing of a probation review hearing was incompetent under existing legislation, appeared to recognise that in certain circumstances it may be conducive to the good behaviour of an offender if he or she knows that there will be a requirement for further appearances before the court during the course of the order.

The Legislation

Section 12 of the 2005 Act inserts a new section 229A into the 1995 Act, and also makes an amendment to section 232(2) of that Act. (A copy of the section is annexed.) The main points of the new legislation are that it:

• Allows courts, when making a probation order, to provide for a progress review hearing in respect of the probationer;
• Requires the probationer's supervising officer to submit a written progress report in advance of the review hearing;
• Requires the probationer to attend in person at the hearing and provides the supervising officer with discretion as to attendance;
• Provides for the hearing to take place with or without attendance by the procurator fiscal;
• Allows the court to issue a warrant for arrest where the probationer fails to attend the hearing;
• Gives the court power to amend the probation order after consideration of the supervising officer's report; but it requires the court to explain to the probationer in ordinary language any amendment it proposes to make to the order and allows the court to make the amendment only if the probationer consents
• Applies certain existing restrictions on the powers of the court in amending the order during its currency to the review hearing situation;
• Provides the court with power to impose a further review hearing in respect of which all of the provisions above would apply;
• Applies the existing powers of the court where a probationer has failed to comply with the terms of the order to the review hearing situation. (These include the power to impose a fine, to sentence the offender, to vary a requirement of the order, and to make a community service order.)

The requirement for the supervising officer to provide the court with a written report is intended to ensure that the court is not solely reliant on the probationer's version of progress during the interim period. It is not anticipated that this will give rise to significant additional work beyond that which occurred in the past. However, given the considerable resource issues which might otherwise occur, section 229A (3) does not require the supervising officer to be physically present at the hearing, although there is nothing to prevent attendance if this is thought useful and practical.

Commencement

The commencement date for section 12 is 8 February 2006. The provisions are not retrospective and apply only to any new probation order made on or after that date. Sheriff Clerks are being issued with advice from the Scottish Court Service on the operation of section 12.

Monitoring

It is also our intention to monitor the use made by courts of probation review hearings. We will be in touch further on these data requirements.

Contact Point

If you have any queries regarding the contents of this circular please contact Alan Cockburn on 0131 244 5435 or e-mail alan.cockburn@scotland.gsi.gov.uk

Yours sincerely

BRIAN COLE