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GUIDANCE FOR COURT OFFICERS REPORT WRITERS AND OFFENDER MANAGERS

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CONTENTS:
Introduction Scope Criminal Justice Act 2003 National Implementation Guides & Magistrates Courts Sentencing Guidelines General Advice Offence analysis Offender assessment Assessment of likelihood of reconviction and risk of serious harm Actions to manage risks Avoidance of the term prolific and other priority offender Multi-agency involvement Offenders motivation Sentences with multiple requirements Proposals Foreign Nationals and immigration issues in PSRs Equalities issues and offender engagement Fines Conditional Discharges Compensation, Ancillary Orders and Disqualifications Community Orders The Role of the Responsible Officer Matching requirements to the purposes of sentencing Supervision Requirement Activity Requirements Prohibited Activity Requirements Programme Requirements Unpaid Work Requirements Attendance Centre Requirements Curfew Requirements Exclusion Requirements Residence Requirements Suspended Sentence Orders Custodial Sentences Breach Sanctions Community Orders Suggested penalties 1st breach more onerous requirements Advice relating to failure to comply with specific requirements o Supervision Requirement o Unpaid Work Requirement o Attendance Centre Requirement o Curfew Requirement o Programme Requirements Section: 1 2-3 45 69 9a 9b 9c-f 9g 9h 9i 9jk 9ln 9 o to p 10 11 13 14 16 17 18 20 21 22 23 24 25 26 27 31 32 38 39 - 40 41 42 43 44 45 47 48 49 50 51 52 54 54 54 a b 54 c 54 d 54 e 54 f h

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o Specified Activity Requirement o Prohibited Activity Requirement or Exclusion Requirement o Treatment Requirements o Residence Requirement Subsequent breach or breaches Suspended Sentence Orders Sanctions Considerations Suggested penalties Annex A Revised Guidance on use of the Suspended Sentence Order (October 2006)

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Introduction 1. This document aims to help Pre-Sentence Report (PSR) writers to propose the most appropriate sentences and to write PSRs that are clear and concise. The document has been informed by small scale PSR audits; by evidence from Offender Management Inspection reports; and by new information about the effectiveness of interventions, costs, and the relationship between PSR proposals and sentencing outcomes. The continuing increase in probation caseloads and in the prison population make it more important than ever that all proposed sentences are well thought through and well and concisely presented. Scope 2. The following is not an exhaustive account, but a number of requirements and disposals are specifically referred to below, in part to assist with appropriate targeting, but also with the aim of encouraging PSR writers to be creative in crafting their proposals for courts. A recent report by the Centre for Crime and Justice Studies 1 highlighted a view amongst sentencers that probation staff were being too cautious and traditional in their proposals. The Criminal Justice Act 2003 offers the potential for tailoring proposals to suit individual cases. It is important that the full range of requirements available to the court is considered by the PSR writer. The model combinations described in PC25/05 (Criminal Justice Act 2003: National Implementation Guide) will assist PSR writers to tailor their proposals appropriately, and to think creatively about how combinations of requirements can best address the seriousness of the offence and the offenders risks and needs. 3. This document is applicable to any presentation to sentencers of pre-sentence information. In this sense it is relevant for all types of PSR. Use of the term PSR generally refers to both Standard Delivery Reports (SDRs) and Fast Delivery Reports (FDRs). However, it is recognised that the level and basis of the assessment should be proportionate to the type of report. Some of this document may therefore be more relevant to preparation of SDRs than to FDRs but should form a background for understanding the preparation of all types of report. Criminal Justice Act 2003 National Implementation Guides & Magistrates Courts Sentencing Guidelines 4. Guidance on Community Orders and Suspended Sentence Orders was published in March 2005 (in PC25/05). Further guidance on Suspended Sentence Orders was issued in October 2006. Guidance on Public Protection Sentences, originally published in June 2005, will be updated to take account of changes brought about by the Criminal Justice & Immigration Act 2008. Areas should have in place arrangements to ensure that PSR writers and Offender Managers are familiar with these documents, copies of which are available on EPIC. 5. Updated Magistrates Court Sentencing Guidelines were introduced in August 2008. A copy of the guidelines and an accompanying briefing document is available on EPIC under Service Delivery/Sentencing Information/Sentencing Guidelines Council. PSR writers should refer to the guidelines for information on the seriousness entry points for
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The community order and the suspended sentence order: the views and attitudes of sentencers, Centre for Crime & Justice Studies, June 2008

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offences and for comprehensive information about the sentencing process. The Pull Out Card (final two pages of the guidelines) is particularly useful in highlighting the sentencing structure which magistrates follow and the recognised aggravating and mitigating factors. Characteristics of a good quality PSR 6. Court Officers should consider whether a PSR is necessary and advise the court accordingly. The implementation of Criminal Justice Simple Speedy Summary (CJSSS) has provided opportunities for probation areas to work with other criminal justice partners to improve processes in the courts. This has included pre-court identification of cases suitable for PSRs and those where probation assessment and intervention is not necessary. 7. Where a report is necessary it should be written in plain English for the lay reader, avoiding acronyms and jargon. Reports should be concise, grammatically correct, free from spelling or typing errors, avoid repetition and flow logically towards a conclusion. This is particularly important when generating reports from eOASys. The language and presentation for a report is different from that required for an assessment. It is vital that PSR writers carefully edit and check the document to ensure that it is individual, is presented to a high standard and that it makes clear to the court what is being proposed and why. Further details are contained in NOMS National Standards for the Management of Offenders 2007 sections 2a, 2b and Appendix A2. 8. The report should tell the court what intervention is being proposed; when the offender is expected to start it; and in what dosage will be delivered. Where the offender is on the cusp of custody it is particularly important to stress what interventions will be delivered in the first days and weeks of the sentence. A proposal for immediate and intensive work may offer confidence that any risks will be effectively managed. 9. PSR writers should ensure that the following considerations have been addressed satisfactorily: Offence analysis a) The offence analysis is about why the offence occurred, not what happened. The writer needs to give a critical appraisal of the offenders account of their offence, addressing all relevant circumstances. The offenders description of the offence should be checked against that of the prosecution and significant points of difference highlighted and remarked on. The offenders account need not be repeated, especially where conviction follows a trial and the offenders version of events has not been accepted. Essentially, the court needs to know why the offender committed the offence when they did, and why against this particular victim. The report should also comment on the offenders attitude towards his or her offending, including acceptance of responsibility, level of appreciation of the consequence of offending and level of victim empathy. Offender assessment b) Sufficient detail of offence-related needs must be included. Additionally the report should identify any patterns of and triggers for offending behaviour. There will be a degree of flexibility between this section and the offence analysis in terms of where

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information most appropriately sits, depending on the offenders history of offending and the particular case circumstances. Assessment of likelihood of reconviction and risk of serious harm c) PSR writers need to address both likelihood of re-offending and the risk of serious harm. Likelihood of re-offending will be assessed by using Offender Group Reconviction Scores (OGRS) or through the Offender Assessment System (OASys). The context and meaning of the information should be conveyed to the court and report writers should avoid reference to specific scores. d) Specialist assessment tools, e.g. Spousal Assault Risk Assessment (SARA) or Risk Matrix 2000 should be used where appropriate. For some cases, for example an offence involving domestic violence, the PSR writer will need to distinguish between the likelihood of re-offending and the potential for repeat behaviour that results in further risks to a specific victim. The writers judgements about these matters will need to be supported by evidence. e) Where the offence before the court might result in an indeterminate sentence for public protection, a PSR will be required in all but rare circumstances. Judges have received guidance, following Court of Appeal judgements, that they should request a report in all cases. The report writer must provide the court with all available information to enable it to make its statutory assessment of dangerousness, the significant risk test set out in the Criminal Justice Act 2003 s229(1)(b). The court must determine whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences. Serious harm is defined in the act as meaning death or serious personal injury whether that is physical or psychological (s224(3). This differs from the OASys risk of serious harm definition where risk of serious harm can be defined as a risk which is life threatening and/or traumatic and from which recovery, whether physical or psychological, can be expected to be difficult or impossible. Although these two definitions are comparable, the subtle differences between the two are critical to the court when considering the significant risk test. f) PSR writers should clearly present all the evidence, both that which supports their assessment and that which suggests ways of mitigating risk of serious harm, to the court. PSRs should describe risk of serious harm accurately in terms of both the likelihood of recurrence of the specific harm related behaviour, and the impact of recurrence of the behaviour. The report writer should clearly differentiate between the general likelihood of re-offending and the likelihood of the individual committing a further serious violent or sexual offence. Additionally the risk of serious harm assessment should clearly state who is most at risk from the offender.

Actions to manage risks g) Reports need to detail explicitly the practical steps which can be taken both to protect the public from harm and to reduce the risk of re-offending. When attaching the Outline Sentence Plan to a SDR the PSR writer should make it clear to the court how the objectives identified relate to the sentence proposed (e.g. which objectives are likely be addressed in which phase of the sentence). Avoidance of the term prolific and other priority offender

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h) PSR writers should not use the term Prolific or Priority Offender (PPO) or refer to a PPO scheme in reports (including within the office address). Since there is no statutory basis for the definition, it is made locally by Crime and Disorder Reduction Partnerships and can vary from area to area. Writers should describe an offenders antecedents and the risks they pose, and should indicate clearly how the offender can best be managed in the community. This can include factual reference to joint planning carried out with police or other agencies, especially where this gives rise to other agencies involvement in a proposed sentence plan. Multi-agency involvement i) Probation terminology and language should not be used as shorthand to convey a range of measures planned for managing an offender. Reports should indicate as specifically as possible the proposed action and contribution of each agency involved in the management of the case (for example the police in the case of PPOs). Careful use of language is necessary to reflect the intensive nature of the sentence proposed without specifically referring to a PPO or PPO scheme. Similarly, there will be cases which fall under multi-agency public protection arrangements (MAPPA). Again, reports should focus on the details of each agencys contribution to the management of the offender, including precise actions, but avoiding jargon.

Offenders motivation j) PSR writers should consider motivation as a relevant but not the only factor in deciding whether to propose a community sentence. Levels of motivation can fluctuate. Additionally, PSR writers must be aware of the impact low self esteem can have on motivation. PSR writers should reflect on what might be done to increase motivation, and should comment on this in their report. In making a proposal, the report writer should have in mind the likelihood of a successful completion. Proposals for community orders should take account of the risk to public safety of the offender remaining in the community. This is especially important where motivation appears lacking.

k) The offenders motivation is unlikely to be the decisive factor in cases where there is an emphasis on restrictive conditions or where only the latter are proposed. Sentences with multiple requirements l) PSR writers should consider combinations of requirements. Requirements should wherever relevant, aim to punish and restrict as well as to rehabilitate. Areas are reminded of the model combinations of requirements contained in the Criminal Justice Act 2003: National Implementation Guide (PC25/05).

m) The overall punitive weight of a sentence should be commensurate with the seriousness of the offence. It should not be assumed that an order with a higher number of requirements is necessarily of greater punitive weight than one with a lower number. Writers should balance punitive weight to ensure that the overall proposal is commensurate with the seriousness of the offence. They should also take care not to contribute to increasing the severity of a sentence unless the need for a more punitive disposal can be supported (e.g. in cases where the PSR

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interview revealed a greater level of pre-meditation or culpability than was previously known to the court). Such evidence will be crucial in those areas involved in the intensive alternative to custody demonstrator projects. n) Probation areas will be aware that a number of intensive alternative to custody demonstrator projects have been set up in 2008/09 to test ways of diverting offenders away from short term custody into intensive community sentence packages, based on the existing multi-requirement combinations outlined in the Criminal Justice Act 2003: National Implementation Guide. These demonstrator projects will explore practice and processes in working with sentencers to target offenders who may otherwise have received short term custodial sentences but who could, with additional resources and intensive supervision, be managed in the community. The first demonstrator projects have started in Derbyshire Dyfed Powys, South Wales and West Yorkshire, with others to follow. Proposals o) Reports should offer the court a clear proposal. In some circumstances it will be appropriate to propose custody, but only where no other sentence is suitable. It may be appropriate to make a proposal for a community sentence, provided that the report demonstrates how any risks can be managed alongside effective rehabilitation, and spells out any potential obstacles to compliance and any risks in allowing the defendant to remain in the community. p) It is important that the courts sentencing decision is made on the basis of all the available information. At the pre-sentence stage report writers should take care to establish whether there are any existing arrangements made for the post-sentence period which might interfere with the implementation of the sentence. These would include, for example, booked or planned holidays. There is no blanket prohibition on an offender going on holiday whilst subject to a community order or suspended sentence. The merits and risks of such action will need to be assessed on a caseby-case basis. However, where plans are known prior to sentence these must be shared with the court so that the sentencer is fully aware of the basis on which the order is being made. Foreign Nationals and immigration issues in PSRs 10. Reports prepared on offenders who are foreign nationals will need to consider the impact of factors such as access to employment, education, training and state benefits, as they are dependant on immigration status. Such factors will affect court recommendations and the management of community sentences. Information on these factors and how they differ depending on nationality and immigration status can be obtained on EPIC/Service Delivery/Foreign Nationals/Foreign Nationals & Offender Management Information Wall Charts. The Evidence and Enquiry Unit of the UK Border Agency (contact details also on EPIC/Service Delivery/Foreign Nationals) may be contacted to verify nationality and immigration status. An Immigration form, IM3, may be served on a foreign national defendant prior to sentence. An IM3 form means that the defendant is liable for deportation and, if served at least 7 days prior to sentence, a court can make a deportation recommendation as part of the sentence. Should an IM3 be served on a foreign national defendant a PSR can address the impact and implications if the court makes a recommendation for deportation.

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Equalities issues and offender engagement 11. It is likely that every offender will have individual factors that influence and affect how they engage with their sentence. The concept and practice of promoting compliance should begin at the PSR stage. Where an SDR is prepared, use of the OASys Self Assessment Questionnaire can also help to engage the offender in identifying potential issues and start the process of generating solutions to potential barriers. An offenders unique engagement issues and responsivity style will be relevant to how services are delivered to him or her and how compliance is promoted throughout the order. For example, the PSR writer, and, in turn the offender manager, should consider ways to overcome issues such as transport, travel, child-care or other domestic caring challenges, family finance, etc. This may include a sensitively designed pattern of appointments, perhaps scheduling a different balance between office and home visits. 12. Sentencers should be shown how the specific requirements of a community order can address the needs of the offender more effectively than a custodial sentence. Particular care must be taken to ensure that courts are well informed about the potential impact of custody on the defendant. This will be especially important where the defendant is vulnerable and/or has dependants. 13. No offender should receive a more stringent or demanding sentence as a means of accessing support, particularly where that support is best provided through health and social care services in the community. With women offenders in particular, it is important to avoid an overemphasis within the report on needs assessment. Women offenders should have appropriate equal access to service provision to meet offending-related needs. All sentencing proposals should be consistent with the principle that the sentence is commensurate with the seriousness of the offence. Resources should follow risk and be consistent with overall tiering guidance. Fines 14. Criminal Justice Act 2003: National Implementation Guide contains guidance on when and how PSR writers might consider proposing a fine. The payment rate for fines has improved significantly in recent years, so courts can be confident that Her Majestys Courts Service will act vigorously to enforce the payment of fines. The Magistrates Court Sentencing Guidelines 2008 sets outs the ranges and methods of calculation of fines in relation to income. 15. As far as possible, probation resources should be focussed to achieve maximum reduction in re-offending and protection of the public. It is vital that the option of a fine is brought to the attention of the courts by probation court officers and PSR writers whenever it might be an appropriate disposal. This is particularly the case where the court views the offence as no more than low seriousness within the community sentence band. Court officers and PSR writers should consider proposing a fine in preference to a community order with an unpaid work or curfew requirement. The majority of such cases should be dealt with by way of an Oral Report to facilitate the speedy delivery of justice and maximise use of probation resources. 16. Where the court indicates a provisional assessment of seriousness as medium within the community sentence band and where the offender has a low likelihood of re-offending and a low risk of serious harm, a fine may still be an appropriate disposal. Fines are a restriction of financial liberty and it is important that PSR writers emphasise this to the

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court, stressing the impact a fine will have on the offender. Although PSR-writing resources should not generally be used where the outcome is likely to be a fine, this does not prevent PSR writers from proposing fines in FDRs and SDRs. As with any proposal, a convincing argument in support of the proposal, outlining its impact on the offender, should be put to the court. Conditional Discharges 17. As with the fine above, PSR-writing resources should not generally be used where the outcome is likely to be a conditional discharge. This does not however, prevent probation court officers and PSR writers from proposing a conditional discharge in a report. Such cases are likely to be where the court views the offence/s as of low and, on occasions, medium seriousness within the community sentence band and where there is particular mitigation. As with any proposal, a convincing argument in support of the proposal, outlining its impact on the offender, should be put to the court. Compensation, Ancillary Orders and Disqualifications 18. Full details about compensation, ancillary orders and sanctions involving disqualification can be found in the Magistrates Courts Sentencing Guidelines 2008 available on EPIC. 19. The court must consider making a compensation order in any case where personal injury, loss or damage has resulted from the offence. Compensation can either be a sentence in its own right or an ancillary order. Compensation will be appropriate in many cases. It should benefit, not inflict further harm on the victim. The views of the victim towards compensation, previously obtained by the police or witness care unit, will be critical to the process. 20. In relevant cases other ancillary orders, such as football banning orders, restraining orders and sexual offences prevention orders, may be appropriate to protect the public from further harm. Additionally, a driving disqualification, particularly where there is no evidence of earlier non-compliance with a ban, may help to reduce continuing risks to the public. Such orders, combined with a community order or other disposal will increase the punitive weight of the sentence and can ensure that the overall penalty is commensurate with the seriousness of the offence. PSR writers should be mindful of the full range of the courts sentencing powers and should include such sanctions in their proposals where appropriate. Community Orders The Role of the Responsible Officer 21. The authority of the offender manager or responsible officer is defined in law under the Criminal Justice Act 2003 s198. This lawful authority covers the essence of the core Offender Management process: ASPIRE (Assess, Sentence Plan, Implement, Review and Evaluate). Section 198 does not provide an open-ended authority to require the offender to keep appointments, either to pursue rehabilitation, public protection or any other purpose of sentencing. Such purposes are met by specific requirements, for example supervision, activity or treatment requirements. Except where the order comprises a stand-alone curfew or attendance centre requirement the responsible officer in all orders is an offender manager appointed by a probation area or trust. Specifically, the duties of the responsible officer are to:

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a. make arrangement in connection with the requirement(s) of the order; b. promote the offenders compliance with those requirements; and c. where appropriate, take steps to enforce those requirements. Matching requirements to the purposes of sentencing 22. A principle of the Criminal Justice Act 2003 is that the court should impose the requirements which best suit the delivery of the sentencing purpose/s. The Act allows for a community order with a single requirement. It is not necessary for example, for a supervision requirement to be attached to the order unless there are specific offender management objectives that can only be delivered through a supervision requirement. Being clear about which requirements best suit the delivery of the sentencing purposes will ensure the most efficient use of probation resources. Supervision Requirement 23. The purpose for which a supervision requirement may be imposed is that of promoting the offenders rehabilitation (s213). The supervision requirement provides maximum flexibility for delivery. Post sentence it is for the offender manager to determine the scale (tiering) and nature of supervision delivered under a supervision requirement subject to the national minimum standards. Although the purpose of the supervision requirement is limited to rehabilitation, what activities are and are not categorised as rehabilitation for the purpose of the requirement are not defined in law. 24. In practice, the supervision requirement is used in different ways; firstly where the offender requires something specific to be delivered under the supervision requirement; and secondly, as a wrap-around function required by another requirement, e.g. most accredited programmes. As such, the supervision requirement is a key aspect of managing risks but also of supporting the delivery of interventions. The primary focus of the order should be the requirements where the purposes of sentencing will predominantly be met. Where a supervision requirement is necessary to support another requirement PSR writers should frame their proposals in such a way as to limit the likelihood of a supporting supervision requirement greatly exceeding in time that which is necessary to deliver the primary requirement. This will ensure that probation resources are focused on meeting the courts purposes of sentencing. Activity Requirements 25. Previous guidance advised that an activity requirement should normally be accompanied by a supervision or unpaid work requirement. This will be appropriate in many cases. However, the Act does allow for a community order with a single activity requirement, e.g. a package to help develop financial skills or a series of sessions to address education, training and employment issues. Where the purpose of sentencing can be met through an activity requirement alone, this should be proposed. Prohibited Activity Requirements 26. PSR writers should consider the merits of a prohibited activity requirement which can be used to ban a particular behaviour. It can therefore be used to prevent behaviour which could occur at a wide range of places. It meets the sentencing purposes of both punishment and public protection. Although it may be hard to enforce because of

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detection issues it can be particularly useful as part of a range of measures, particularly in relation to multi-agency working, which might be used to protect the public and monitor compliance with the prohibition. The requirement should not be used to prohibit behaviour which is in any event illegal, but can be used to provide additional public protection in support of preventing further offending. Programme Requirements 27. There is a large international evidence base which demonstrates that offending behaviour programmes can be effective in reducing re-offending. A recent reconviction analysis conducted by NOMS/RDS (Hollis 2007) shows that offenders who participate in programmes have lower reconviction rates than those predicted using the Offender Group Reconviction Scale. This is especially true for those who go on to complete the programme. 28. However, systematic reviews of the literature indicate that programmes are most effective when targeted at the most appropriate groups. The programmes currently accredited for offenders in the community work best for those in the medium to medium high range of risk of reconviction. The published targeting requirements including OGRS ranges should be followed for each programme. There may be a small number of offenders with lower OGRS scores for whom an accredited programme is still appropriate, based on their criminogenic needs and patterns of offending. This may be particularly true for women offenders on account of the impact of gender and age at commencement of offending on an OGRS score. This is recognised in the Womens Acquisitive Crime Programme with its lower bottom eligibility threshold. However, care must be taken to avoid contributing to any offender being viewed more seriously by the courts. Any concerns about eligibility should be discussed with programmes staff. Low risk offenders can benefit from programmes if they have needs which are addressed by the programme. However, generally, these improvements in thinking skills and behaviour are unlikely to feed through to significant reductions in re-offending overall because the likelihood of re-offending is already fairly low. This means that the programmes are unlikely to be cost-effective for low risk of re-offending groups unless there is a high risk of serious harm potential. 29. Offenders at high likelihood of re-offending do benefit from programmes, but they tend to have greater and more complex needs, so, a programme alone may not reduce the likelihood of re-offending. There is a high correlation between higher likelihood of reoffending and non-completion of programmes. For these two reasons it would not be cost-effective to run programmes just for high likelihood of re-offending groups. 30. The likelihood of an offender completing an accredited programme will be increased by the supporting functions of offender management; through preparation, the removal of obstacles to completion, motivational work and solid delivery of pre- and post-group sessions. 31. The Criminal Justice Act 2003 s202 states that a court may not include a programme requirement in a community order unless the programme has been recommended to the court as being suitable for the offender by an officer of the local probation board and unless it is available. It is vital that PSR writers only propose accredited programmes for offenders who meet the targeting criteria specified for each programme. In this sense an offender must be both eligible and suitable for the programme, and the programme must

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be available and recommended. Critically however, report writers should consider a programme for all offenders who are eligible and suitable. Unpaid Work Requirements 32. Unpaid work meets the sentencing purposes of punishment and reparation; for some offenders there may also be rehabilitative benefits. 33. The Sentencing Guidelines Council guidelines suggest the following lengths of unpaid work requirements at the three seriousness levels in the community sentencing band: Low Medium High 40 80 hours 80 150 hours 150 300 hours

34. A PSR is not mandatory, but before the court may make a requirement it must be satisfied that the offender is suitable for unpaid work (CJA03 s199[3]). Although not required to do so, it is likely that the court will ask the advice of Court Officers in seeking to determine offenders suitability for unpaid work. Such advice can often be provided by way of an Oral Report. 35. At high levels of seriousness involving more complex offender needs, unpaid work is likely to be proposed in combination with other requirements, usually following the preparation of an SDR. Unpaid work is usually unsuitable for offenders who pose a very high risk of harm. Proposals of unpaid work where the offender poses a high risk of serious harm should only be made following consultation with staff responsible for the unpaid work intervention. This will avoid the possibility of the offender being returned to court because a work placement where risk can be adequately managed is not available. 36. In situations where offender need is less complex, but where the seriousness of the offence(s) may span the seriousness range, unpaid work may be a potential proposal in a Fast Delivery (FDR) or Oral Report. 37. When assessing offenders suitability for unpaid work, report writers should give consideration to offenders availability and medical fitness, if necessary in consultation with unpaid work staff, in accordance with local procedures. Where a provisional assessment of seriousness is available, report writers should provide the court with a clear assessment of the appropriate length of any unpaid work requirement, using the Sentencing Guidelines Council (SGC) guidance. The length of the unpaid work requirement proposed will take into account the seriousness of the offence(s), circumstances of the offender and appropriate moderation of unpaid work hours in relation to factors such as other potential requirements to be included in the order. It should rarely be necessary to propose an unpaid work requirement to the maximum length suggested in any of the SGC seriousness bands. 38. For offences in the low seriousness band, report writers should consider whether a proposal for unpaid work would represent an effective use of probation service resources. If the indicated primary purpose of sentencing is that of punishment and prevention of further offending, consideration should be given to whether these could be met by the imposition of a fine. Alternatively, consideration may be given to a proposal for a curfew, exclusion or prohibited activity requirement.

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Attendance Centre Requirements 39. The primary purpose of an attendance centre requirement is punishment. However, whilst the principal intention is to restrict the liberty of an offender, the attendance centre regime has the additional benefit of providing a programme of activities that supports the development of self discipline, skills and interests for the individual. The Criminal Justice Act 2003 National Implementation Guide contains guidance on when and how report writers should consider this disposal. An attendance centre requirement is available for 18-24 year olds only and is intended for offenders in the low to medium offence seriousness band, as determined by the court, as a stand-alone requirement. However, an attendance centre requirement may be included alongside other requirements in a community order for low, medium and high seriousness bands of offences in order to meet the purposes of the sentence and for extra restrictions on liberty. It may also be used for offenders with low, medium and high likelihoods of re-offending and with low and medium risk of serious harm. A pre-sentence report is not mandatory but the court must be satisfied that the centre specified is accessible to the offender. There is an expectation that the travel time should not exceed 90 minutes in each direction. The length of the requirement is expressed in hours between 12-36, with a maximum of three hours per attendance and one attendance per day. 40. Where the attendance centre requirement is the only requirement in an order, the responsible officer will be the officer in charge of the centre. The centre must be specified, and an attendance centre requirement can only be made where the provision is available. There are 28 senior attendance centres in England and Wales providing a range of activities. The use of attendance centres requirements has reduced in recent years. A review has recently been conducted to explore the potential for their greater use and development. This will be the subject of a separate probation circular. Curfew Requirements 41. As previously indicated, there will be occasions where a curfew requirement will meet both punitive and public protection purposes of sentencing. The restriction of personal liberty inherent in a curfew requirement should be clearly articulated to the court as well as, where appropriate, the capacity of the curfew requirement to disrupt patterns of offending behaviour. In view of this, it may be an attractive option as a stand-alone requirement in cases where the courts sole purpose of sentencing is punishment. Any risks associated with the imposition of a curfew requirement, e.g. risks to other family members of having the offender restricted to the home, particularly in relation to domestic abuse cases, must be detailed to the court. At higher levels of seriousness the curfew requirement should be considered as a way of adding punitive weight to the sentence, for example where the addition of a curfew requirement to a community order might persuade the court that the imposition of a community order instead of a custodial sentence is appropriate. Exclusion Requirements 42. An exclusion requirement forbids the offenders presence in a particular place or area (as opposed to a prohibited activity requirement which proscribes particular behaviour). The exclusion can be for up to two years, can be limited to particular periods specified, and to different places for different periods or days. It is able to address the sentencing purposes of punishment and public protection. PSR writers should consider the merits of

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an exclusion requirement, particularly in cases where a range of measures is both proportionate and necessary to protect the public. Residence Requirements 43. Residence requirements provide a high restriction of liberty and are appropriate for those offenders managed at Tier 4 level. Additionally, PSR writers and offender managers are referred to PC 16/2008, which deals with the expanded use of female approved premises. The PC encourages the consideration of an Approved Premises (AP) placement for a wider range of women offenders and gives guidance on the criteria for placing more vulnerable female offenders in APs. In particular, APs should be considered where the court is considering a custodial sentence and the offender could benefit from the structured environment and interventions that an AP can provide. Suspended Sentence Orders 44. The same requirements are also available for the suspended sentence order. Revised guidance on the use of suspended sentence orders was sent to chief officers in October 2006. This followed concerns about rising use of suspended sentence order proposals at the expense of robust proposals for community orders and evidence of greater than expected use of suspended sentence orders by the courts. Areas should draw this to the attention of relevant staff. This document is attached at Annex A and is available on EPIC. Custodial Sentences 45. Offender managers preparing PSRs on offenders where custody is inevitable and/or proposed should draft the outline sentence plan so that it identifies: the factors that contribute to the offenders risk of causing serious harm to others any other criminogenic needs that have been identified.

46. In these cases it is particularly important that the links between risk factors and other criminogenic needs linked to re-offending must be made clear. It is then vital to identify which of these should be addressed in the prison setting and which can be addressed after release into the community. 47. The prioritising, sequencing and expected outcomes, need to be explicit in the outline sentence plan so that these can be reviewed and adapted post sentence for inclusion in the Initial Sentence Plan. Breach Sanctions Community Orders 48. Breaches of community orders imposed under the Criminal Justice Act 2003 must be dealt with in one of the following ways: Amend the order by imposing more onerous requirements. Revoke the current order and re-sentence the individual in any way in which the court could have done when the original sentence was imposed.

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Revoke the order and impose a custodial sentence.

49. The Sentencing Guidelines Council 2008 guideline on breach of a community order states that the primary objective when sentencing for breach of requirements is to ensure that those requirements are completed. In any breach scenario the court must take into account the extent to which the offender has complied with the requirements of the community order. This information needs to be included in any breach report, along with an updated risk assessment. Wherever possible a breach report should contain sufficient information to enable the court to resolve the breach at the first hearing, whether this involves amending the order to include more onerous requirements or revocation and re-sentencing. NOMS is jointly responsible for end-to-end community penalty enforcement and is held accountable through end- to- end enforcement targets shared with the police and HMCS. Suggested penalties 50. Some areas and trusts have already negotiated suggested penalties for breach with their local legal advisors and sentencers. For areas or trusts wishing to open discussions the following guidance is provided. Again, it is not exhaustive and should not restrict local solutions in managing proposals in breach reports. 51. Consideration of any proposed penalty for breach must be informed by and must have due regard to the principles of proportionality. The following suggestions are a guide aimed at promoting a consistent and commensurate response to breach action. 1st breach - more onerous requirements 52. It should be noted that any penalty, even one where the primary purpose is rehabilitative, has a punitive element, simply through the additional restriction of the offenders liberty. 53. In all cases the report writer should consider the precise circumstances and reasons for the breach. This will be particularly relevant in multi-requirement orders where the breach relates to one specific requirement. When advising the court as to the options available for breach, the report writer should consider whether, in light of any change in the offenders circumstances or new information on emerging issues or needs gathered through supervision, a different combination of requirements would more appropriately meet the overall objectives of the sentence. Such action would constitute an amendment to (N.B. not revocation of) the order as long as the amended or substituted requirements were deemed more onerous (Criminal Justice Act National Implementation Guide 5.4.2). The breach report should make reference to the compliance or otherwise with all the requirements of the order, not just the requirement which has been breached. 54. If the court adds any new requirements to a community order (rather than amending existing ones) then the minimum and maximum lengths apply. The exception to this is unpaid work. The Criminal Justice and Immigration Act 2008 s38 reduces from 40 to 20 hours the minimum period of unpaid work which may be imposed for breach of a community order where that community order does not already contain an unpaid work requirement. Advice relating to failure to comply with specific requirements

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Supervision Requirement a) It is not possible to extend a supervision requirement as this would extend the overall length of the community order. No requirement can be extended beyond the relevant period which is the length of the longest requirement. The relevant period for a supervision requirement is the length of the order. In effect, the length of a community order is defined by its longest requirement; the order has no length independent of its requirements. b) An appropriate proposal could be a low-level punitive restriction e.g. a short curfew requirement of up to twenty periods. Alternatively, where a rehabilitative approach is more appropriate, staff should consider proposing that the court revokes the current order and re-sentences to a similar order, taking account of progress to date. Unpaid Work Requirement c) In straightforward instances of non-compliance a proportionate penalty would be an additional one three sessions (usually 6-18 hours). Attendance Centre Requirement d) In straightforward instances of non-compliance a proportionate penalty would be additional hours to the maximum of 36 or a curfew requirement Curfew Requirement e) In straightforward instances of non-compliance a proportionate penalty would be an additional week of restriction (usually seven curfew periods). Programme Requirements f) It is important to separate out the compliance issues from the enforcement issues. Enforcement action should be taken for missed appointments without acceptable reasons, regardless of efforts to secure and maintain the offenders compliance and work towards programme completion.

g) Advice should be sought from the programme tutor or treatment manager as to whether the offender can complete the programme (perhaps through catch-up sessions) or whether the offender will need to re-commence the programme to enable completion. h) Where a supporting supervision requirement is of a remaining length sufficient to enable completion, a proportionate punitive penalty may be considered e.g. a short curfew requirement. Alternatively the report writer should consider revocation and re-sentence as outlined above under supervision requirement. Specified Activity Requirement i) It may be appropriate to extend the requirement proportionately, where this is appropriate to the offenders needs. This should only be done following

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consultation with the activity provider. Alternatively, the report writer should consider a proportionate punitive penalty, e.g. a short curfew requirement. Prohibited Activity Requirement or Exclusion Requirement j) The report writer should consider how breach affects risk assessment and ongoing risk management. Extension or a proportionate punitive sanction may be appropriate. Alternatively, revocation and re-sentencing should be considered where non-compliance presents risks to the public.

Treatment Requirements k) Advice should be sought from the treatment provider. An extension to a treatment requirement may be appropriate depending on the offenders needs. As with the original making of such a requirement, the offender must consent to any amendment to a treatment requirement. Where this is not appropriate, a purely punitive penalty for such a breach should take into account the offenders ability to comply and the overall compatibility of the requirements of the order. Residence Requirement l) Advice should be sought from the residence provider as to the viability of a continued residence requirement, taking into account the offenders needs and the risks presented. Where continuation is possible an extension of the requirement or proportionate punitive penalty should be considered. Where it is not possible (usually because the place is no longer available) revocation and re-sentence may be the only other available option.

Subsequent breach or breaches 55. As with any breach scenario the report writer will need to make an assessment of what motivates the non-compliance. Successive breaches may be due to willful noncompliance. The Act states that if an offender has wilfully and persistently failed to comply with their order then the court may consider revoking the order and imposing a custodial sentence. 56. The report writer should consider whether there is any more that could be done to facilitate compliance with the requirements of the order. In particular the report writer should consider any significant changes in the offenders circumstances since the previous order was made. These might include positive factors such as the length of time between the previous order being made & the current court proceedings and also negative ones such as an increase in the likelihood of reconviction or risk of serious harm. Where a community order is still suitable, despite previous poor compliance, the reasons for this should be made clear to the court. 57. Probation staff should be open to the possibility of outcomes other than custodial or community sentences in cases where a considerable period of time elapses between the breach being instigated and finally resolved, for example where the offender has failed to attend court and a warrant has been issued. There may be occasions, for example where the likelihood of re-offending and risk of serious harm are low, perhaps further

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evidenced by the absence of recent re-offending, where it is possible to argue for revocation and re-sentence to a fine or conditional discharge in the interests of justice. Suspended Sentence Orders Breach Sanctions 58. The Magistrates Court Sentencing Guidelines 2008 indicate that if an offender fails to comply with a community requirement or commits a further offence, the court must either activate the suspended sentence in full or in part or amend the order so as to: a. extend the period during which the offender is subject to community requirements; b. make the community requirements more onerous; or c. extend the operational. Considerations 59. Where an offender has breached a suspended sentence, there is a presumption that the suspended prison term will be activated in full or in part. The court cannot revoke a suspended sentence order unless it is activating the custodial sentence. The court must activate the suspended sentence unless it is of the opinion that it would be unjust to do so in view of all the circumstances, including the extent to which the offender has complied with the requirements of the order and the facts of any subsequent offence. Suggested penalties 60. As for breaches of community orders the report writer should consider the precise circumstances of the breach and the level of compliance with all requirements to date. Where a new offence has been committed, the report also needs to take account of whether it is of a different character to the offence for which the SSO was made, and whether or not it would normally attract a custodial sentence. 61. Where action other than activation of the suspended sentence is being proposed, the report writer should acknowledge the need for the court to consider activating the suspended sentence and then set out why, in the report writers opinion, this would not be appropriate. The penalty proposed should be in accordance with the penalties suggested for a breach of a community order.

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Annex A Revised Guidance on use of the Suspended Sentence Order (October 2006)
The approach adopted in the PSR needs to be informed by the courts initial indication of seriousness, or lack of such an indication. There are basically three scenarios:

First, those cases in which the court indicates that the seriousness of the offending is within the community sentence band
In these cases the PSR writer should make no reference to a Suspended Sentence Order in his/her report. The proposal should be either for a Community Order containing the number and type of requirements considered appropriate by the PSR writer in light of the current NPS guidance (see footnote 1 on the previous page of this letter) or, if the PSR writer considers it appropriate, a fine or discharge. The PSR writer may refer to any particular negative effects of custody on the offender if such a reference would strengthen the proposal.

Second, those cases in which the court either: gives no initial indication of seriousness, or

indicates that it is considering all options (or all options including custody).
In these cases the PSR writer should make no reference to an SSO in his/her report unless he/she has come to a view that: the offence is sufficiently serious to justify custody, and a custodial sentence cannot be avoided, and under the circumstances of the case an SSO is the appropriate alternative to an immediate short custodial sentence.

Normally, as in the first scenario, the proposal should be either for a Community Order containing the number and type of requirements considered appropriate by the PSR writer or, if the PSR writer considers it appropriate, a fine or discharge. The PSR writer may again refer to any particular negative effects of custody on the offender if such a reference would strengthen the proposal.

Third, those cases in which the court indicates that the offending is so serious that only custody is justified
In these cases the PSR writer should first consider whether the interests of public safety necessitate that an immediate custodial sentence is essential. If it is not, the report should propose an SSO containing, normally, a maximum of two requirements. The report may then

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usefully refer to the SGCs guidance which seeks to restrict the number of requirements which the court should include in an SSO. It may then suggest that the court might wish to consider imposing a Community Order with more, or more onerous, requirements (than would be imposed with an SSO), which could be seen to provide a degree of restriction on the offenders liberty commensurate with the seriousness of the offending. Through the implementation of this guidance the NPS should be able to make a worthwhile contribution to achieving the aim of ensuring that Suspended Sentence Orders are imposed only on offenders who would otherwise have received an immediate custodial sentence.

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