Select Committee on Home Affairs Third Report


  SECTION C: INCREASING THE EFFECTIVENESS OF COMMUNITY SENTENCES

(i) The content of community sentences

National Standards

69. National Standards for the supervision of offenders in the community were issued in 1992 (updated 1995) by the Home Office, the Department of Health and the Welsh Office, as required standards of practice relating to the implementation of community sentences and the provision of Pre-Sentence reports (PSRs). The aims of the National Standards "are to strengthen the supervision of offenders in the community, providing punishment and a disciplined programme for offenders, building on the skill and experience of practitioners and service managers".[77] They attempt to do this by setting minimum standards relating to the commencement, supervision plan, frequency of contact, and enforcement of community sentences, as well as other work conducted by the probation service.

70. The two sets of National Standards with which we were most concerned were those relating to frequency of contact, and enforcement of community sentences. The frequency of contact standards are as follows:

National Standards relating to frequency of contact [78]

Community penalty

Frequency of contact

Probation orders:

 - first three months of an order

 - second three months

 - thereafter



12 appointments (normally weekly)

6 appointments

at least one appointment a month


Supervision orders

As for probation orders

Community service orders

A minimum of 5 hours work per week throughout the order; no more than 21 hours should be worked in any one week

Combination orders

Not specified

71. Although some of our witnesses had criticisms to make about the content of the standards, and the way in which they are sometimes flouted, there was support for their introduction. ACOP stated that they recognised "that consistency in the basic standards of work is vital across the country" and that the standards represent a "basic minimum set of requirements".[79] Mr Graham Smith told the Committee that National Standards have been "first class for the probation service", giving HMIP "a means of holding them to account which we never had before",[80] although he did also state that he believed that there were too many standards.[81]

72. The National Association of Probation Officers (NAPO) asserted that "there is always a tension when you impose a set of rules on a group of people who regard themselves as professionals",[82] and that in the case of the probation service this tension was exacerbated given the context of reduced resources and increased caseloads in which officers work, making it more difficult to meet the standards. As well as this general criticism, NAPO stated that "the National Standards perhaps need to be revisited to see how they can measure the quality of work that is done with offenders and not just the number of times they walk into an office".[83]

73. Whatever the merits of these standards, they are not consistently adhered to: HMIP told us that, in terms of the frequency with which they met the standards "Some areas can achieve close to 100 per cent figures and some are as low as 20 to 30 per cent"[84] While the Inspectorate do not produce a league table of all 54 probation services in relation to National Standards (because, they state, the very large number of standards and probation services ...would make the production of such league tables complex[85]), they do produce average figures for those probation areas inspected, and, for thematic inspections (for example, into community service orders), league tables are produced of all the probation areas inspected. The average figures for compliance for probation orders amongst probation areas inspected in 1997 was as follows:

  Compliance with National Standards: probation orders[86]

National Standard

Average in Q&Es in 12 months ending Dec 1997

Contact


First appointment arranged within 5 working days

  81%

First appointment took place within 5 working days

  74%

12 appointments offered in first 3 months

  69%

12 appointments took place in first 3 months

  34%

Home visit

  53%

Supervision


Supervision plan which met all requirements of national standard, on content

  44%

Risk assessment carried out of:

-  reoffending

-  harm to others or self (both aspects covered);



  74%

  40%


Enforcement


Apparent failures always dealt with in two working days

  56%

Clear record of probation officers' view of acceptable/unacceptable failures

  47%

Breach action on or before third unacceptable failure (as proportion of cases with third unacceptable failure)

  28%

Line manager's authorisation not to breach on third unacceptable failure recorded

  19%

74. Variation between the performances of probation services in relation to compliance with National Standards is indicated in figures which were produced as a result of a thematic inspection into compliance with National Standards relating to Community service orders. The National Standard requiring offenders to have a full assessment within 5 working days of the order being made showed a particularly wide variation in compliance amongst the 14 probation services inspected, ranging from 12 per cent compliance by Merseyside Probation Service to 100 per cent compliance by Gloucestershire Probation Service; the overall average was 57 per cent.[87] The crucial standard relating to percentage of cases where breach proceedings were instituted on the third unacceptable failure also significant variations in performance, with a 33 per cent compliance rate by the West Midlands Probation Service and a 74 per cent rate by Gloucestershire; the overall rate was 55 per cent.[88]

75. The Prisons and Probation Minister told us that "there are various initiatives under way in order to try and ensure as much compliance with National Standards as we can get. Certainly we are looking at the variations in performance between probation areas and seeking to analyse the reasons for that. We believe that the consultation which will take place as a result of the Prisons-Probation Review will among other things focus on the need to have a system which ensures compliance with National Standards".[89] Mr Paul Cavadino of the Penal Affairs Consortium stated that "it is very important that they should be applied rigorously, both for public credibility but also so that the sentence itself can do its job of steering the offender away from crime or applying appropriate sanctions if the offender does not comply and is not steered away from crime".[90]

76. We were told that, in the context of reduced resources and increased caseloads, the probation service failed to meet these standards because it was targeting its scarce resources on the most high risk offenders. HMIP explained that "if a service can demonstrate to us that they are focussing on high-risk offenders and not on low-risk offenders, we would commend them for that and we would acknowledge that in our report of their compliance with National Standards. What we want them to be able to do is prove that is what they are doing and then we will give them the allowance".[91] NAPO, suggesting that National Standards could be viewed as "mechanistic", explained why probation officers wanted to practise such targeting: "probation officers are frustrated that they cannot be doing some more constructive, more time-consuming effective work with some of the more high-risk offenders because they are having to see the lower-risk offenders on a much more mechanistic basis".[92]

77. The Chief Inspector of Probation told us that the most critical standard for the inspectorate concerns enforcement of community sentences and the action taken with those offenders who fail to comply with the terms of their sentences. The standards state that if there is any apparent failure to comply with probation, supervision, community service or combination orders, this should be dealt with as soon as possible, and in any event within two working days, with an explanation sought from the offender. If the explanation is not considered acceptable the incident should be formally recorded as an instance of failure to comply. Breach proceedings, involving the return of the offender to court, can be taken at any stage of an order depending on the seriousness of the non-compliance. If breach proceedings are not instigated after the first formal failure to comply, a formal warning is issued to the offender; no more than two such formal warnings may be given within any 12 month period of the order before breach proceedings are begun.[93]

78. The Home Office has included two Key Performance Indicators (KPIs)and Targets for the probation service relating to National Standards for 1998-99[94]. KPI 2 for the service is "the proportion of supervision cases where the first contact with offenders is within National Standards time limits"[95] and sets a target of 80 per cent for probation orders, community service orders, and prisoners released on licence. KPI 3 is "the proportion of relevant supervision cases in which breach action is taken in accordance with National Standards[96]; the target in 90 per cent.

79. We agree with ACOP that National Standards are a minimum basic set of requirements. We were therefore alarmed to discover how frequently they are not adhered to. We recognise that limited resources affect compliance rates with National Standards and we examine this question at paragraph 110f. However, we urge all Chief Probation Officers to make every possible effort to meet these basic requirements. We welcome the introduction of two Key Performance Indicators which will be used to assess the performance of the probation service in relation to National Standards concerning first contact with offenders, and breach action. We recommend that the National Standards are reviewed on a regular basis and that independent figures from outside the probation service and the Home Office help conduct these reviews.

Enforcement of community sentences

80. Strict enforcement of community sentences is vital if they are to represent a credible alternative to prison and retain the confidence of sentencers and the public. We now look at what action the probation service and the courts take against those offenders who breach the terms of their community sentences and ask whether tougher action is required.

81. National Standards require probation officers to instigate breach proceedings at the third occasion of non-compliance, or earlier if a first or second instance of non-compliance is serious enough. Once a breach action is instigated, a summons is issued for the offender to return to court. If they fail to do so, a warrant is issued, which it is the responsibility of the police to enforce. Once they return to court, offenders may have their orders revoked and be resentenced for their original offence, as if they had just been convicted for that offence, or they may be allowed to continue their order. In addition to continuing their original orders, such offenders can be fined up to £1,000 or be made subject to a community service order of not more than 60 hours (as long as, where this is in addition to a community service order for which the offender was breached, the combined total of hours to be served does not exceed 240), or, if under 21, in the case of probation order breaches, and 16 in the case of curfew order breaches, be sentenced to an attendance centre order. They may also be given a warning to comply with the terms of the order. We examine in more detail each stage of this process below. The numbers breached in 1994 (the most recent year for which figures are available) was as follows:

Community sentences and breaches in England and Wales: 1994[97]

Type of order

No. of orders imposed

No. of breaches

Breach ratio

Probation

  50,535

   4,665

   9.2%

Community service

  49,469

  11,680

  23.6%

Combination

  12,399

   2,777

  22.4%

82. These figures for breaches do not tell the whole story in relation to offenders who fail to complete their orders successfully, however. ACOP gave us figures for completion rates for community sentences as follows:


Completion rates for community sentences[98]

Community Sentence

Completion rates

Community service orders

71%

Probation orders

72%

Combination orders

58% - probation element

69% - community service hours

83. These figures indicate that not all offenders who fail to complete their community sentences successfully are breached. This is partly because, as we note below, probation officers do not always take the appropriate action against offenders who fail to comply, or because such offenders are not brought to court when breach action is instituted against them. Mr John Hicks of ACOP told us that this was a complex matter,[99] and that the 30 per cent or so who breached "contains a multitude of sins, including those who relapse into crime and are arrested",[100] as well as "a small percentage of both probation and community service orders that are discharged for good progress".[101] The available statistics relating to the number of offenders who fail to complete community sentences do not make it clear exactly what proportion of offenders successfully complete the orders; what proportion are breached; what proportion are discharged early for good progress; and what proportion fail to complete but are not brought before the courts to be breached. The Home Office should ensure that such information is collected and published.

84. Breach proceedings by probation officers Even where action by an offender should have prompted breach action, there was concern that probation officers were not always instigating it. Mrs Anne Fuller, of the Magistrates' Association, told us that breach action by the probation service was "not as rigorous as it should be".[102] Mr Tim Workman told us that "in practice it is apparent that community service orders are usually more effectively brought back before the court than probation orders".[103]

85. Home Office research which studied the enforcement procedure in five areas found that both probation and community service officers had scope to use their discretion in deciding whether to judge action by an offender to constitute a failure to comply, but that "probation officers exercised more discretion than community service officers".[104] Failure to attend was the most common form of non-compliance, and "they were much more rigorously recorded by community service officers than by most probation order supervisors".[105] Whereas being 10 or 15 minutes late for a community service order in 4 of the 5 areas meant that the offender had a failure to attend recorded against him, in all five areas, probation officers "tended to accept [an offender missing an appointment, as long as they could attend later in the same week] and did not record a failure to attend. Indeed, an internal inspection...[in one of the areas] noted—'Not only did probation officers have a more liberal attitude to what constituted an acceptable excuse, but in many cases they did not seem even to think in these terms'".[106]

86. The findings of the Probation Inspectorate suggest that sentencers are correct to be concerned about the probation service's enforcement of community sentences in accordance with National Standards. National Standards specify that apparent failures to comply should be dealt with within two days; that there should be a clear record of the probation officer's opinion of whether the failure is acceptable or not; and that breach proceedings should be instituted on or before the third unacceptable failure. The average compliance rates for services inspected in 1997 were as follows:

Compliance with National Standards relating to enforcement: probation and community service orders[107]

National Standard

Probation Orders

Community Service Orders

Apparent failures dealt with in two working days

  56%

  55%

Record of probation officer's view of acceptable/unacceptable failures

  47%

  n/a

Breach action on or before third unacceptable failure (as proportion of cases with third unacceptable failure)

  28%

  56%

87. Strict enforcement of community sentences is vital if they are to represent a credible alternative to prison and retain the confidence of sentencers and the public. If community sentences are to credible they must be enforced stringently. It is therefore entirely unacceptable that local probation services are, on average, taking breach action in accordance with the National Standards relating to probation orders in barely a quarter of cases. The Home Office should set a minimum target for all local probation services to comply with these standards, ensure that the Inspectorate assesses each local service on this every year and that it requires publication of the results, and take action against those which fail to meet the target. Consideration should be given to reworking the funding formula for local probation services to provide an incentive for services to meet this target.

88. Returning offenders to court Once a probation officer has instituted breach proceedings against an offender, it is necessary to return him to court. Research states that it could take between three weeks and two months to return someone to court.[108] This is normally done in the first instance by issuing a summons. According to Home Office research, summonses are effective in most cases.[109] Where they are not, warrants are issued, to be enforced by the police.

89. Warrants are not considered to be successful, due to the low priority given to them by police. In the Home Office research, all but three of the 75 probation and community service staff interviewed thought that warrants were an ineffective enforcement tool, and they quote a typical comment: "Warrants are very low priority for the police...The police...use them for other reasons. If they want to pick someone up they'll go and execute them, otherwise they're low priority".[110]

90. This view was supported by the sentencers who gave evidence to us: Mrs Anne Fuller, of the Magistrates' Association, said that "If we are realistic we know that the police regard the execution of these warrants as a low priority. It will be an even lower priority if the warrant is for a breach of a probation order relating to an offence that does not carry imprisonment anyway".[111] Mr Tim Workman also told us that "owing to pressures on the Police Forces, execution of these warrants takes a very low priority".[112] He argued that execution of warrants could be undertaken by independent agencies other than the police; this idea was supported by Mrs Gaynor Houghton-Jones of the Justices' Clerks' Society,[113] and we note that "Ministers are currently considering the arguments for transferring this responsibility to civilian enforcement officers".[114] The Home Office told us that they do not routinely collect figures for the average length of time taken to return an offender to court once breach action has been taken for (a) those offenders against whom a summons is issued, and (b) those against whom a warrant is executed, or the average length of time taken for the police to execute a warrant, or information regarding variations in serving warrants on a force by force basis.[115]

91. It is essential that offenders who breach community sentences are returned to court quickly. It is not satisfactory that warrants take so long to enforce, and command so little confidence amongst sentencers and probation officers. We recommend that the Home Office institutes a new target and Key Performance Indicator for police services for the time taken to execute warrants, and that it monitors the amount of time taken to do so on a force by force basis. We also recommend that civil enforcement agencies be used to execute warrants on a trial basis and that their performance be assessed against that of the police in terms of speed and cost-effectiveness.

92. The powers of the courts At present, the courts have a number of sentencing options open to them to deal with offenders who breach community sentences, as outlined in the Home Office's supplementary memorandum to us:

"A magistrates' court can:-

- impose a fine not exceeding £1,000;

- make a community service order of not more than 60 hours;[116]

- make an attendance centre order where the person is under 21 and has breached a probation order or is under 16 and has breached a curfew order; [these three options can be exercised where the court decides the original order should continue] or

- where the order was made by a magistrates' court, revoke the order and deal with the offender in any way in which it could have dealt with them if they had just been convicted by the court of the offence in respect of which the order was made. In doing so the court must take into account the extent to which the offender has complied with the requirements of the order but, where the offender has willfully and persistently failed to comply with an order, the court may impose a custodial sentence, where the original offence was imprisonable, even if it did not justify such a sentence under section 1(2) of the 1991 Act." To exercise the latter option relating to orders originally made in the Crown Court, magistrates' courts may send the case to the Crown Court for re-sentencing.[117] Additionally, courts may choose to continue the order after giving the offender a warning, or they make revoke the order without further punishment being imposed.

93. Home Office research estimates that, in 1994, sentencers dealt with breach action as follows:

Estimated proportion of breaches resulting in revocation, continuation and discharge, in England and Wales: 1994[118]

Type of order

Breach and revocation

Breach and continuation

Breach and discharge[119]

Probation

  59%

  33%

  7%

Community service

  44%

  51%

  5%

Combination

  73%

  25%

  2%

94. Mr Tim Workman explained to us that "there are degrees of breach...if it is a flagrant breach and the individual is not going to comply, you revoke the order, deal with the original offence and send him to prison. There is no difficulty about that. The difficulty arises where the offence does not warrant or does not carry imprisonment in any event, because one cannot make another community order since it has failed and one must look downwards rather than upwards. One is looking therefore at fines or conditional discharges which appear to indicate to the public that the courts are being weak. The powers are limited".[120] Mrs Gaynor Houghton-Jones, of the Justices' Clerks' Society raised a similar point,[121] and Mrs Anne Fuller of the Magistrates' Association also called for sentencers to have more powers.[122]

95. We asked the Home Office whether they believed sentencers needed extra powers to increase the original sentences given to offenders who breach, or a new offence of breaching a community sentence. We also asked whether the same powers were needed in the case of those offenders who commit a further offence while serving a community sentence. They stated that, as sentencers could already add to the existing community penalty a fine, a community service order, or, in certain circumstances, an attendance centre order or could revoke the sentence and deal with offender in any way which the court convicting for the original sentence might have done, they saw "no justification for the creation of a new power to increase the original sentence". Also, as sentencers had powers to revoke an order where a further offence has been committed, they saw no need for new powers to deal specifically with this. They also saw no need for a specific offence of breaching a community sentence or of committing another offence while serving a community sentence, and pointed out that of five European states which had provided information,[123] only France had an offence of breaching a community sentence, and none had indicated that they had an offence of committing a further offence while serving a community sentence.[124] In France the offence of breaching a community sentence attracts up to two years imprisonment.

96. The aim of breach proceedings should be

(i)  to administer a punishment for the breach itself of sufficient seriousness that the offender is in no doubt of the consequences of a subsequent breach, i.e. a 'short, sharp reminder' of the terms of the original community sentence; and

(ii)  to facilitate, whenever possible, the successful completion of the community sentence.

Sentencers currently have very limited scope for delivering such a short, sharp reminder in response to the breach, whilst also allowing the original community sentence to continue. Ideally, it ought to be possible for sentencers to draw from a range of sentences specifically for the breach itself. Such sentences could include, either for a temporary period or the remainder of the term of the community sentence, the imposition of further conditions, the requirement to reside in a hostel, tagging and curfew, or even a short period of imprisonment—for example, a week—after which the community sentence would resume.

97. In all these circumstances the original community sentence should be able to continue, unless subsequent breaches occurred, and the court then felt the community sentence should be revoked and an alternative imposed. We recommend that the Home Office introduce an increased range of options for sentencers to use where offenders breach community sentences and which, once imposed, would allow the resumption of the community sentence.

98. We accept that there will be times when the breach is of sufficient seriousness to merit a revocation of the original community sentence, and that in these circumstances the courts can impose any punishment which might have been made at the original time of sentencing. However, we note that where the original court cannot impose imprisonment, and where the offender has blatantly flouted the terms of their community sentence, few effective sanctions are available. We therefore recommend that the Home Office rectify this situation and ensure that offenders who flagrantly breach the terms of community sentences may be sent to prison, either by increasing the powers of courts on revocation, or by introducing a new offence of breaching a community sentence which would attract a prison sentence.

"What Works?"

99. Since the 1970s academic research has attempted to establish whether work undertaken with offenders can reduce recidivism, and if it can, which forms of intervention are most effective; this is known as the "What Works?" debate. This research suggests that certain characteristics make interventions more likely to be successful. The "What Works? " principles include:

     " - ensuring that approaches [address the way offenders think and act];[125]

    - matching the level of risk posed by the individual with the level of intervention;

    - a recognition that specific factors are associated with offending and that these should be treated separately from other needs;

    - using a learning style which requires active participation on behalf of the offender, but is also carefully structured;

    - skills oriented, in order to teach problem solving and social interaction, including role play...;

    - employment focussed—where offenders can obtain real jobs;

    - having clear aims, which are linked consistently with the methods used;

    - programmes which are broad, in order to address the range of offenders' problems;

    - approaches which are community based, to enable proximity to the offender's home environment and real life learning".[126]

100. The international evidence appears to suggest that programmes which follow such approaches can achieve significant reductions in reconvictions. The HMIP report states that "the evidence supports a view that researched programmes (not necessarily typical programmes) reduce reoffending by about 10%. It suggests that more effective and carefully monitored programmes can reduce expected reoffending by around 25%".[127] However, these are the results of the international findings; the HMIP report goes on to make the case, as we noted above, that too few probation service programmes have been adequately assessed to be able to make a similar case for these.

101. We were pleased to note the Inspectorate's determination to ensure that those factors which make community sentences successful are followed by the services they inspect. The Chief Inspector told us that "the Inspectorate is leading a campaign—a programme—to improve effectiveness across every service. That is, I think, a radical departure, in some respects, for an Inspectorate, but one which ties in with our terms of reference, which is to promote good practice".

102. The need to incorporate "What Works?" principles into probation programmes was recognised by a recent Home Office assessment of research. It concluded that "implementation of initiatives more generally should be planned so as to ensure that the 'What Works?' principles are adhered to an adequate and appropriate training and evaluation should be included".[128]

103. Such evidence as there is suggests that when certain factors are present in the content and implementation of probation programmes, they can help to reduce reoffending. Community sentences, therefore, have the potential to be more effective than prisons. We congratulate HMIP in its continuing efforts to ensure that all probation services follow "What Works?" principles and urge the Home Office to join with the Inspectorate in putting pressure on all services to incorporate these principles into their work; adherence to "What Works?" principles should be a National Standard.


77  National Standards for the Supervision of Offenders in the Community, Home Office, 1995, p 2. Back

78  ibid., pp 21, 30, 37 and 41. Back

79  Q 31. Back

80  Q 745. Back

81  Q 736. Back

82  Q 776. Back

83  Q 777. Back

84  Q 736. Back

85  Appendix 15, p 1. Back

86  ibid., p 3. Back

87  Community Service: A Report of an Inspection of Probation Services' Compliance with the National Standard, HMIP, September 1997, para 3.8. Back

88  ibid., para 3.19. Back

89  Q 850. Back

90  Q 403. Back

91  Q 745. Back

92  Q 778. Back

93  National Standards for the Supervision of Offenders in the Community, Home Office, 1995, pp 22, 30, 38 and 42. Back

94  Home Office Annual Report 1998, p 96. Back

95  ie. within 5 working days of sentence for probation orders, 10 working days for community service orders, and one day of release for release licence.  Back

96  ie. on or before a third unacceptable failure. Back

97  Enforcing Community Sentences, Home Office Research Study 158 (1996), p 61.  Back

98  Appendix 2. Back

99  Q 59. Back

100  Q 69. Back

101  Q 57. Back

102  Q 519. Back

103  Appendix 12. Back

104  Enforcing Community Sentences, Home Office Research Study 158 (1996), p 24.  Back

105  ibid. p. 29. Back

106  ibid. p. 30. Back

107  Appendix 33, Annex A. Back

108  Enforcing Community Sentences, Home Office Research Study 158 (1996), p 41. Back

109  ibid.,p 44.  Back

110  ibid. Back

111  Q 533. Back

112  Appendix 12, Section 2. Back

113  Q 531. Back

114  Appendix 34, The Action Taken Against Offenders Who Breach Community Penalties, para 4. Back

115  ibid., para 6. Back

116  If the breached order is a community service order, the combined hours must not total more than 240.  Back

117  Appendix 34, The Powers of Sentencers to Review Community Sentences following Breach, para 2. Back

118  Enforcing Community Sentences, Home Office Research Study 158 (1996), p 62. Back

119  The study states that "it is likely these discharges are for breaches which have been recommended for revocation near the end of an order, where supervising officers and/or magistrates do not think it is worth imposing a further penalty". (p 62, fn 6). Back

120  Q 526. Back

121  Q 524. Back

122  Q 525. Back

123  France, Germany, Netherlands, Sweden and Switzerland. Back

124  Appendix 34, The Case for New Powers...to Deal With Breach of a Community Penalty and International Comparisons to Deal With Breaches of Community Sentences.. Back

125  Such approaches are known as cognitive-behavioural approaches. Back

126  Appendix 2. Back

127  Strategies for Effective Offender Supervision, HMIP, Home Office,1998 p 14. Such research often involves 'meta-analytic' reviews of large numbers of individual studies to look at the average overall effect of programmes incorporating the factors mentioned.  Back

128  Reducing Offending: an assessment of research evidence on ways of dealing with offending behaviour, Home Office Research Study 187, July 1998, p 136. Back


 
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