Memorandum submitted by NAPO (CJ&I 311)

 

 

Breaches of Community Sentences with Supervision

Requirements under the CJA 2003

 

I understand from Charles Goldie that you are currently taking written submissions on the above Bill. In connection with this, we write with regard to that above sub-heading.

 

Napo first wrote to the Rebalancing Sentencing Team about this issue back in January 2006 and, as such, we are somewhat disappointed that all of the points made below have not, apparently, been considered in this Bill. We welcome the provision in Section 22(2) although, as you will see below, we would have sought a lower minimum still (7 hours).

 

The remainder of this letter is much as the original submitted in January 2006 and for that I apologise but we were only made aware of the deadline for submissions last week. It may be that, as a consequence of this, some of the 'fixes' described below, as operated by Probation Areas, are no longer used. There has been insufficient time to review our information on this point.

 

1. As you will know, the Criminal Justice Act 2003 removed from Courts the power to either fine an individual or take no action in the event of a breach of a Community Order. Instead, the Act now requires Courts to make Community Sentences more onerous when they are breached. The Sentencing Guidelines Council makes it clear that Community Sentences should not be imposed in such a way as to unnecessarily increase the likelihood of failure. In other words, making Community Sentences too onerous can set individuals up to fail with consequential breaches, or repeat breaches, ultimately leading to the likelihood of a custodial sentence being imposed. Napo is concerned that one of the reasons why the prison population is growing disproportionately is because of increasingly strict interpretations of breach procedures within the Probation Service and the Courts. Whilst it may well be appropriate for Community Sentences to be rigorously enforced in order to maintain public confidence, nevertheless, we would be of the view that, wherever possible, breach procedures should be employed, primarily, as a means of ensuring compliance rather than as a means of increasing the prison population. This is a view that is shared by the Sentencing Guidelines Council.

 

2. It is in this context that we write to highlight growing concerns that exist around breach procedures consequent upon what we would suggest as being the unfortunate drafting of Sch. 8 Part 2 Section 9 (3) (and Section 10 (3) ) and Section 199(2) (a) of the 2003 Act. In effect, what now flows from this sub-section is an inability of Courts to incrementally increase the length of supervision requirements following breach. Essentially, this is because the overall length of a Community Order, where there is a supervision requirement, will, in fact, be the length of the supervision requirement itself. Under the new Act, it is not possible to increase the length of a Community Sentence on breach and therefore it is not possible to increase the length of a supervision requirement. This is an unsatisfactory situation and one, which, in our view, is compounded by the fact that it is no longer possible either to impose a minimal number of unpaid work hours for a breach of a supervision requirement. Until the 2003 Act came into force, it was possible to order somebody to do a minimum of 7 hours community punishment when they breached an Order which included supervision. Now, where there is no existing unpaid work requirement sitting alongside a supervision requirement, the minimum number of hours of unpaid work that can be ordered to increase the onerousness of the Order is 40. This, in itself, is unfortunate, in our view, but all the more so because it is not possible to increase the length of supervision requirements either.

 

3. We are aware of a "fix" that has been developed in some Probation Areas for this problem, the legality of which still appears to be dubious. In essence, this involves a concept called "headroom" whereby the overall length of a Community Order is made longer than the supervision requirement to allow for a period of headroom that can be utilised in the event of a breach. In our view, this is a less than satisfactory solution because it will mean that Orders are routinely being made for periods longer than is necessary. This can hardly be said to fit well with any concept of justice wherein the sentence should be commensurate with the seriousness of the offence(s). It will also mean that many Orders will remain in existence after all requirements have been discharged. This is an administrative nightmare for the Probation Service and it also opens up the possibility of individual re-offending during this headroom period after all requirements have been satisfied - what would be the implications of this? An individual could hardly be said to have re-offended during the period of supervision, unpaid work or whatever, since she or he would, by then, have already complied with these requirements.

 

4. The advice given to practitioners by the Home Office, in their guidance on the application of the Criminal Justice Act 2003, is to suggest that, in the event of breaches of supervision requirements, consideration should be given, either to an additional requirement of unpaid work or a short curfew requirement. Even the guidance itself points out that 40 hours of unpaid work might well be viewed as a disproportionately punitive response to what, in many cases, will be technical breaches of an Order where an individual's level of co-operation is not really in question. Disproportionate responses to breach scenarios are more likely to de-motivate individuals and/or lead to further breaches rather than acting as a positive reminder of the need for complete compliance. The other alternative offered in the guidance - a short Curfew Order, will often also not be without its difficulties. In many cases, curfew requirements will be inappropriate or impossible in certain contexts. Also, one can hardly imagine that large numbers of short Curfew Orders are a welcome prospect for anybody, probably including the tagging companies themselves. One has also to bear in mind the potentially enormous cost to the Home Office of a significant increase in the number of tagging requirements imposed by Courts, particularly where much of the cost is incurred at the point of set-up.

 

5. Napo's preferred scenario would have been to retain the previous options on breach of either (originally) "no action" or a modest fine, which often seemed more appropriate disposals particularly in the context of "technical" rather than more willful breaches. However the law no longer allows this and so now our favoured option, in the event of breach proceedings, would be to have a facility whereby supervision requirements could be increased incrementally in length e.g. by a week, by a month or whatever. Napo would also like to see the option of short periods of unpaid work being available for breach. Both of these options could be achieved with very minor amendments to the Criminal Justice Act 2003. We recognise that such changes could only be made through primary legislation and we would urge you to consider this as the most sensible and complete solution to what will otherwise remain a problem, which is only likely to increase the prison population in the long run. Thus, the changes we would want to suggest should be made to the legislation would be:

 

a) In Sch. 8 Part 2 Section 9 (3) (and Section 10 (3) ) it is made clear that a Community Order cannot be extended beyond the maximum period allowable i.e. 3 years. Thus the wording of this Section (s) might read:

 

"In dealing with an offender under sub-paragraph (1)(a), the court may extend the duration of particular requirements (subject to any limit imposed by Chapter 4 of Part 12 of this Act) but may not extend the period specified beyond a maximum of 3 years."

 

b) That, whilst the minimum number of unpaid hours that can be ordered as a requirements on a Community Order should remain at 40, there should be an exception to this where the requirement is being imposed as a consequence of breach proceedings, in which case the minimum number of hours a Court should be able to order should be 7. Thus perhaps there could be an amending section 199 (2)(c) which might read:

 

"Subsection 2(a) above does not apply in the case of Orders returned to Court for breach proceedings where the minimum unpaid work requirement can be 7"

 

6. Another alternative scenario that is promoted in some quarters to overcome these difficulties is revocation and re-sentence. Again, in our view this is likely to increase the prison population but even where new Community Sentences are imposed, there are considerable difficulties that flow from using this as a routine solution to a problem that should not exist in the first place. Revocation and re-sentence causes a huge additional administrative burden on the Probation Service in terms of setting up the new Orders. It also significantly increases workload where levels of contact have to be re-imposed at a higher level, in accordance with National Standards, and it also means that rehabilitation periods are extended unnecessarily thus further decreasing employment prospects for those who have offended.

 

7. In essence, therefore, it is Napo's view that the only sensible solution to this problem is for minor amendments to be made to the Criminal Justice Act 2003. The benefits from making such amendments, in terms of achieving justice, reducing unnecessary burdens on the Probation Service and minimising the growth in the Prison population, are all potentially enormous. We hope these constructive suggestions will find a sympathetic hearing leading to speedy action.

 

8. Finally, and on a slightly different note, but again related to the Bill, Napo would suggest consideration of reintroducing statutory liaison duties as between Probation Areas and sentencers. This requirement was deleted in 2001 and voluntary arrangements have not generally blossomed to replace Probation Liaison Committee (PLCs). At the moment, anything likely to increase the confidence of sentences in community sentences seems like a good idea. PLCs gave the opportunity for practitioners and sentencers to interest and exchange views.

 

 

October 2007