ABOUT THE COMMUNITY PAYBACK ORDER

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1 ABOUT THE COMMUNITY PAYBACK ORDER Introduction 1. The Criminal Justice and Licensing (Scotland) Act 2010 (the 2010 Act) is the largest piece of legislation introduced into the Scottish Parliament by the current administration, dealing with issues ranging from combating alcohol misuse, to the Sentencing Council, community payback orders and the presumption against short prison sentences of 3 months or less. 2. The community payback order (CPO) is designed to ensure that offenders payback to society, and to particular communities, in two ways. First, by requiring an offender to make reparation, often in the form of unpaid work. And second, by requiring them to address and change their offending behaviours, thereby improving the safety of local communities and providing opportunities for their reintegration as law abiding citizens. The CPO aims to create a robust and consistently delivered community penalty which enjoys public and judicial confidence and thereby provide a viable alternative to custody in appropriate cases. 3. The new CPO (set out at section 14 of the 2010 Act) introduces a number of provisions to the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) which will replace the existing provisions for community service orders, probation orders and supervised attendance orders and the former community reparation order. Other existing court orders including drug treatment and testing orders and restriction of liberty orders electronic tagging remain unchanged. 4. The CPO will come into force on 1 February 2011 and will provide sentencers with a range of options from which they can choose the most appropriate requirement(s). 5. In bringing together the options for judges in this manner, we are highlighting the scope for courts to punish individuals in a way which also addresses the areas of their lives which need to change. This also enables us to underline the fact that a community sentence is a punishment and not merely a supportive intervention. REQUIREMENTS OF A CPO 6. A CPO may contain a number of different requirements. These are set out in the legislation. The court will select one or more requirements to impose 1

2 in the CPO, taking into account how compatible the requirements are with each other. The requirements are: KEY FEATURES o unpaid work or other activity requirement o offender supervision requirement o compensation requirement o programme requirement o mental health treatment requirement o drug treatment requirement o alcohol treatment requirement o residence requirement o conduct requirement 7. The key features of the CPO are as follows: There is no minimum age for a CPO except where an unpaid work and other activity requirement is made. In these circumstances it may only be imposed on an offender aged 16 or above. The consent of the offender to the requirements of a CPO is required before it can be imposed by a court except where the order is to be imposed following fine default. Unpaid work or other activity requirements can be imposed for between 20 and 300 hours. A requirement of hours is referred to as a "level 1 requirement"; and a requirement of hours as a "level 2 requirement." A Justice of the Peace (JP) court may only impose a level 1 requirement. Orders will normally be made for a period of between 6 months and 3 years other than an order consisting solely of a level 1 unpaid work or other activity requirement. An unpaid work or other activity requirement must be completed within 3 months (level 1) and 6 months (level 2) unless the court states otherwise at the point of sentence. An offender supervision requirement is mandatory when an order is imposed on an individual aged under 18 years; and when a court imposes a programme requirement, a residence requirement, a mental health requirement, a drug treatment requirement, an alcohol treatment requirement, a conduct requirement, and/or a compensation requirement. Where an unpaid work or other activity requirement alone is imposed, an offender supervision requirement is discretionary, unless the offender is under the age of 18. JP courts' powers are limited to imposing an offender supervision requirement, a level 1 unpaid work and other activity requirement, a 2

3 residence requirement, a conduct requirement or a compensation requirement. A further offence committed during the order is not in itself a breach of the order, unless the offence also breaches one of the requirements imposed in the order. The court may include provision in the CPO to conduct discretionary periodic review hearings at any time within the duration of the order. The offender, or the local authority officer responsible for the offender, may apply to the court for a variation of the order or for early discharge of an order. For example, in circumstances where an individual has made highly positive progress a local authority officer may apply to the court for the order to be discharged. The decision on whether or not to discharge the order remains with the court. Each local authority is required to carry out an annual consultation of representative community individuals or organisations, as prescribed by Scottish Ministers, of the types of activities to be carried out locally by those subject to an unpaid work or other activity requirement. The CPO is an alternative to custody. Courts will also be able to impose a CPO with a restricted range of requirements where the offence is punishable by a fine, however, whether the offence is also punishable by imprisonment or not. A restricted movement requirement (electronic monitoring) may only be imposed in relation to a proven breach of a CPO. Following proven breach, the court may also vary or revoke the CPO and/or impose a fine. The sanction of custody will also be available to sentencers. Where the CPO was imposed as an alternative to a fine, or for fine default, then the maximum custodial term which can be imposed as a sanction for breach of the order is 60 days in a JP court and 3 months in a sheriff court. Where the CPO was imposed for any other offence the court may revoke the order and deal with the offender as it could have if the CPO had not been imposed. REQUIREMENTS Compensation Requirement 8. A compensation requirement can be imposed to require an individual to pay compensation for any personal injury, loss, damage or other matter incurred as a result of the individual s offending behaviour. An offender supervision requirement will be imposed in addition to a compensation requirement. Compensation can be paid either by means of a lump sum or by instalments. This will be paid directly to the court. 3

4 9. Where a requirement of compensation is imposed: o the compensation must be paid within 18 months, starting from when the requirement was imposed; or two months before the end of any offender supervision requirement imposed; whichever is soonest o the supervising social worker will monitor the payments through liaison with the court and through the offender producing receipts Offender Supervision Requirement 10. The court must impose an offender supervision requirement in the following situations: o where the individual is aged under 18 o where the court imposes any requirement other than an unpaid work and other activity requirement o where the court imposes two or more requirements 11. The responsible officer designated by the local authority to supervise the offender and manage or co-ordinate the implementation of their CPO - has two key roles: o to work together with the individual and relevant others to achieve change in the individual s behaviour to encourage desistance from offending behaviour; and o to work with the individual to achieve compliance. Unpaid Work or Other Activity Requirement 12. Level 1 Requirement: Common elements Must not exceed 100 hours. The number of hours specified in the order requires to be completed within 3 months unless otherwise specified by the court when imposing sentence. A level 1 requirement can be imposed by both a Sheriff and a JP court. Cannot be imposed on an offender under the age of 16 years. No local authority report will be required prior to a court imposing a level 1 unpaid work or other activity requirement, except where the individual is aged 16 or 17 years old in which case a period of supervision will be imposed, and consequently a local authority report will be required in these circumstances. (The situation is different if the requirement is being imposed following fine default see below.) In these circumstances the supervision will be for the purposes of supporting the young person to complete his/her order, although it will also provide an opportunity to provide any other advice and guidance as sought. Where an order is to be imposed consecutively with another order (or orders) the maximum number of hours of unpaid work or other activity that 4

5 can be imposed as part of the order is 300 less the net balance of actual hours outstanding on existing requirements. (A court may wish to impose community payback orders concurrently, for example where disposing of a number of cases, or related offences, at a single sitting.) 13. Level 1 Requirement: when used with a fine defaulter The consent of the individual is not required. When dealing with an offender who has defaulted on payment of a fine not exceeding level 2 on the standard scale (currently 500), instead of imposing a period of imprisonment the court must impose a CPO with a level 1 unpaid work requirement. A fine defaulter has the opportunity to pay the fine or the full amount of any outstanding instalments in which event the court must discharge the order. Where the original fine or outstanding amount does not exceed level 1 on the standard scale (currently 200), the specified number of hours cannot exceed 50. No local authority report will be required prior to a court imposing a level 1 unpaid work or other activity requirement on a fine defaulter. This is also the case for a 16 or 17 year old fine defaulter. 14. Level 2 Requirement: Common elements Must not exceed 300 hours. Where an order is to be imposed consecutively with another order (or orders) the maximum number of hours of unpaid work or other activity that can be imposed as part of the order is 300 less the net balance of actual hours outstanding on existing requirements. (A court may wish to impose community payback orders concurrently, for example where disposing of a number of cases, or related offences at a single sitting.) Requires the consent of the individual. The specified number of hours require to be completed within 6 months unless otherwise specified by the court at the point of sentence. A level 2 unpaid work requirement cannot be imposed by a JP court. Other Activity 15. It is for the responsible officer to determine how many of the hours specified, if any, are to be allocated to other activity. The maximum number of hours which can be allocated to other activity is 30% of the number of 5

6 hours specified in the unpaid work or other activity requirement or 30 hours, whichever is the lower. 16. It is intended that this other activity element can involve activities aimed at improving the individual s employability prospects for example work to address literacy, numeracy or other life skills - but it could also be used to address other underlying issues which are influencing the individual s offending behaviour. Programme Requirement 17. Before a programme requirement can be imposed, the programme must be recommended to the court, usually by means of a Criminal Justice Social Work Report, as being suitable for the offender. An offender supervision requirement will always be imposed where a programme requirement is made by the court and the duration of the programme must not exceed the period of the supervision requirement. Residence Requirement 18. Most individuals who are made the subject of a CPO will live in ordinary housing, which is rented from the social or private sectors or privately owned with no direct intervention with regard to accommodation, needed by the responsible officer. Other individuals may lack settled accommodation and require practical assistance in securing suitable accommodation in order to stabilise their lives and improve their prospects of engaging with a period of intervention aimed at reducing the risk of re-offending. Such assistance should be regarded as part of the normal duties undertaken by the responsible officer. 19. However, a small percentage of individuals, who pose a risk of serious harm in the community, require a greater level of supervision in terms of their accommodation in order to live successfully in the community. In these cases, the Criminal Justice Social Work Report writer may recommend to the court that a residence requirement be imposed as part of a CPO and that it should require the offender to live in specified accommodation where there will be some form of professional supervision. From the court s perspective such a residence requirement is likely to reinforce the elements of supervision and control and to provide some reassurance that the individual will be living in a more stable environment with access to appropriate guidance and assistance to address problems and issues relating to his/her offending behaviour. 20. In other cases, the residence requirement may have the effect of requiring an offender to reside at a particular private address for example that he or she be required to live with his/her parents. An offender supervision requirement will always be imposed by the court when a residence requirement is made. 6

7 Mental Health Treatment Requirement 21. The purpose of imposing a mental health treatment requirement will be to ensure that an individual who has been diagnosed with a mental health condition - which could be a learning disability which contributes to the individual s offending receives support, care and treatment to enable them to enjoy optimum health in terms of their mental health needs. 22. For the purposes of the legislation a mental health condition will include any mental illness, personality disorder or learning disability however caused or manifested, as defined in section 328 of the Mental Health (Care and Treatment) (Scotland) Act An offender supervision requirement will always be imposed in addition to a mental health treatment requirement. The mental health treatment requirement cannot last longer than any offender supervision requirement imposed. The individual must agree to the imposition of a CPO with a mental health requirement. 24. For a mental health treatment requirement to be imposed under a CPO, the court has to be satisfied following evidence from an approved medical practitioner that: o the individual suffers from a mental condition; o the condition requires and may be susceptible to treatment; and o that the condition is not such as to require compulsory treatment 25. The court must also be satisfied, following evidence from the registered medical practitioner or registered psychologist who will treat the individual that the treatment is appropriate, and that arrangements have been made for the proposed treatment. 26. Treatment may be: o as a resident patient in a hospital (other than a State hospital) o as a non-resident at an institution or other place as may be specified o treatment by or under the direction of such registered medical practitioner or registered psychologist as may be specified 27. There are provisions for the treatment to be varied where the practitioner thinks it is appropriate e.g. for the individual to receive a different kind of treatment or to receive it at a different place. Drug Treatment Requirement 28. A drug treatment requirement might be imposed where drug issues are identified, but where drug issues are not the sole or main issue driving the offending behaviour. A CPO with a drug treatment requirement provides courts with an alternative sentencing option to a custodial sentence or a drug treatment and testing order in circumstances where an individual does not have an established chronic history of drug misuse. This may be particularly appropriate for example for women with drug problems who in many cases 7

8 are not eligible for a drug treatment and testing order because their offending history is not sufficiently high tariff. 29. Before a court may impose a drug treatment requirement it must be satisfied that: o the offender is dependant on or has a propensity to misuse any controlled drug; o the dependency or propensity requires or may be susceptible to treatment; and o arrangements have been or can be made for the proposed treatment. 30. Treatment may be: o as a resident in such institution or other place o as a non resident at an institution or other place o at such intervals as is specified in the treatment requirement. 31. The aim of all treatment should be recovery from drug use. However, different people have different routes to recovery and hence treatment could involve all, or some of the following, as appropriate to the individual s needs: o psychological care such as counselling or cognitive behavioural therapy o support on family, social and financial issues as well as preparing individuals for education, training and employment o medical treatment to directly address the drug addiction such as prescription of substitute drugs or detoxification o relapse prevention 32. An offender supervision requirement will always be imposed in addition to a drug treatment requirement. The drug treatment requirement cannot last longer than any offender supervision requirement imposed. Alcohol Treatment 33. Where an individual is considered to be alcohol dependent, the court may impose an alcohol treatment requirement. Treatment may be: o as a resident in an institution or other place o as a non resident at an institution or other place o at such intervals as specified o treatment by or under the direction of such a person as specified in the alcohol treatment requirement 34. Before a court imposes an alcohol treatment requirement, it must be satisfied that: o the offender is dependant on alcohol o the dependency requires and may be susceptible to treatment o arrangements have been made for the treatment to take place 35. Non compliance should be addressed immediately, rigorously and effectively. An offender supervision requirement will always be imposed in addition to an alcohol treatment requirement. The alcohol treatment 8

9 requirement cannot last longer than any offender supervision requirement imposed. Conduct Requirement 36. The intention of the "conduct requirement" in section 227W of the 1995 Act is to provide the courts with additional flexibility to impose requirements on an offender to do or refrain from doing specified things not covered elsewhere in the legislation. In doing so the court must be satisfied that this is necessary to secure or promote good behaviour by the offender, or preventing further offending by the offender, and the conduct requirement is defined in the 1995 Act as such. 37. For example, the court may require the individual not to enter a certain street or not to enter a play park. In many circumstances, non-compliance with this requirement may not be known to a case manager until guilt is established similar to practice in relation to a probation order, where an individual has committed a further offence but the supervising social worker is not aware of this until the matter is dealt with in court. 38. A conduct requirement will not be imposed where another requirement would meet the objective. For example, where it is deemed necessary for an individual to undertake alcohol treatment it would not be necessary or permissible, under the legislation, for the court to impose a conduct requirement to ensure that the individual complies with alcohol treatment. PERIODIC REVIEW HEARINGS 39. When the court imposes a CPO, it can arrange for the case to be reviewed at the time or times stated in the order. Such reviews are referred to as progress reviews and are carried out by the court. The purpose of the progress review is to assist with sentence management. The responsible officer must provide the court with a written report before a progress review takes place and the offender must attend each such review. Where he/she fails to attend the progress review, the court can issue a citation for the offender s attendance or a warrant for his/her arrest. CRIMINAL JUSTICE SOCIAL WORK REPORTS 40. The court must not impose a CPO unless it has obtained and taken account of a report from an officer of the local authority containing information on the offender and the offender s circumstances. (This does not apply where the court is considering imposing a CPO imposing only a level 1 unpaid work or other activity requirement or in respect of fine default.) Where the CPO is imposed in respect of an under-18, an offender supervision requirement must also be imposed, in recognition of the potential vulnerability of the offender. A report would therefore always be required where the CPO is imposed on an under-18 under section 227A (1) or (4) of the 1995 Act (as a first instance disposal), but not where it is imposed under section 227M of the 1995 Act, for fine default. In addition, reports are required before progress reviews take 9

10 place, and where the court is considering varying a CPO (unless it is considering varying a CPO to impose only a level 1 unpaid work or other activity requirement.) CONSENT 41. The offender s consent to a CPO is required except where it is imposed in relation to fine default (under section 227M(2) of the 1995 Act). The offender's consent is also required where treatment required under a Mental Health treatment requirement is to be changed (section 227T(6)(a) of the 1995 Act) or where the court is considering varying a CPO (section 227Z(5)(b) of the 1995 Act). BREACH 42. Practice guidance for criminal justice social workers on the CPO states that where it is determined that breach action is appropriate, the responsible officer must proceed without delay to initiate breach proceedings. 43. Every application to the court to institute breach proceedings must be accompanied by a breach report prepared by the social worker, together with relevant documentation, which: o provides firm indication of the grounds of the alleged breach and supporting documented evidence o reports on the extent of the individual s overall compliance with the order o assists the court by providing advice on the sanctions that might be taken if the breach is accepted/proven 44. The 2010 Act provides that an order can be returned to the court for variation (i.e. to add additional requirements or amend existing ones), for discharge (which the court may wish to consider in the case of highly positive progress having been made by the individual), or for revocation. In the case of revocation, the court may deal with the offender in respect of the offence as if the order had not been imposed. So it may impose an alternative disposal, e.g. custody. 45. Custody can be imposed for breach of a CPO imposed instead of a fine or for fine default a maximum of 60 days in JP courts or 3 months in Sheriff Courts. In other cases the sentencer can impose whatever other disposal, including custody, he or she might have imposed instead of a CPO. 46. Electronic monitoring, in the form of a restricted movement requirement (RMR), will also be available as a sanction for breach of a CPO in both JP and Sheriff Courts. Where electronic monitoring is imposed as a sanction for breach of a CPO an offender supervision requirement must also be imposed. 47. A RMR: o can require an offender to remain at a specified address, and/or away from a specified address, during certain specified periods 10

11 o restricts the requirement to remain at a certain address to 12 hours in any one day o should be a minimum of 14 days in duration, and a maximum of 12 months. TIMESCALES 48. There are various timescales set out in the legislation, in the revised National Outcomes and Standards (NOS) for Criminal Justice Social Work and the draft CPO Practice Guidance. These are as follows: appointment of local authority responsible officer within 2 days of authority receiving the order (section 227C(2)(b) of the 1995 Act) arrangements should be made for the offender to have first direct contact (including signing of the order) on the same day or within one working day of the order having been made (from NOS and CPO guidance) where an unpaid work or other activity requirement features as part of a CPO, an induction programme should be undertaken within 5 working days (from NOS and CPO guidance) the work placement should commence within 7 working days of the imposition of the CPO, and earlier where possible (from NOS and CPO guidance) breach proceedings should be initiated within no more than five working days of the decision to breach (from NOS and CPO guidance) a level 1 unpaid work or other activity requirement must be completed within 3 months, while a level 2 requirement must be completed within 6 months, unless the court specifies a longer period at the point of sentencing; (section 227L(2)(a) and (b) of the 1995 Act) the specified period in an offender supervision requirement must be at least 6 months and not more than 3 years; (section 227G (3) of the 1995 Act) the specified period for an RMR (which can only be imposed as a sanction for breach of an order) must be for not less than 14 days and not more than 12 months; (section 227ZF(6)(a) and (b) of the 1995 Act) Where appropriate, home visits in response to acts of non-compliance must be conducted on the same day in cases where a high and very high intensity level of contact is required. Other cases of non-compliance must be addressed, if possible, through contact in person within two working days (from NOS and CPO guidance) 11

12 communities should be consulted by local authorities regarding the unpaid work and other activities to be carried out as part of CPOs. This is required as a minimum to take place on an annual basis; (section 227ZL of the 1995 Act) each local authority must, on an annual basis, prepare a report on the operation of community payback orders within their area and send a copy to Scottish Ministers; (section 227ZM of the 1995 Act) NEXT STEPS 49. Planning for implementation of the CPO is well under way. Guidance on the operation of the CPO and transitional arrangements will be rolled out to CJSW staff, with appropriate training where required, and this briefing paper will be updated periodically to reflect secondary legislation and transitional arrangements, including arrangements for cross-border transfer of orders. 50. For more information on the CPO or the wider approach by the Scottish Government to community sentences and reducing reoffending please contact the Community Justice Services Division of the Scottish Government ). USEFUL LINKS Reforming and Revitalising: Report of the Review of Community Penalties: Scotland s Choice: Report of the Scottish Prisons Commission: Protecting Scotland s Communities: Fair, Fast and Flexible Justice Criminal Justice and Licensing (Scotland) Act 2010: National Outcomes and Standards: Draft Community Payback Order Practice Guidance: Community Payback Order Key Fact: 12

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