Probation

Circular

PROLIFIC AND OTHER PRIORITY REFERENCE NO:

OFFENDERS: ARRANGEMENTS 34/2005

FOR DRUG TESTING ON LICENCE ISSUE DATE:

29 April 2005
PURPOSE
• To inform areas of proposals to introduce drug-testing for PPOs on IMPLEMENTATION DATE:
licence, as indicated in PC56/2004
• To indicate the group of offenders to which the provisions will apply Immediate
• To make clear how licence conditions should be phrased and included
in licences EXPIRY DATE:
• To give interim practice guidance, including how positive tests should April 2010
be treated
• To establish the need for and likely scope of a national contract for TO:
drug-testing equipment and materials
Chairs of Probation Boards
Chief Officers of Probation
ACTION
Chief Officers and ACOs (for substance misuse and PPOs) are asked to note Secretaries of Probation Boards
the contents, disseminate to relevant staff, and implement locally by
commissioning appropriate testing arrangements. CC:
The relevant ACO (or equivalent) is requested to complete the attached Board Treasurers
questionnaire (Annexe D) urgently, by noon on Friday 13 May. Regional Managers

SUMMARY AUTHORISED BY:

Provision was made in the Criminal Justice and Court Services Act 2000 for Sarah Mann, Head of
the drug-testing of offenders on community orders and licences convicted of Interventions
a ‘trigger offence’. This was subsequently piloted in nine probation areas.
The decision has been taken that drug testing should be implemented with ATTACHED:
immediate effect but only for post-custodial licensees who are classed by N/A
local definition as ‘prolific or other priority’ offenders. We are aware that a
number of areas are already drug-testing PPOs on licence. The contents of
this PC are intended as a minimum requirement; areas which are testing
more extensively can continue to do so. The enforcement regime is
provisional and may be amended at a future date. Guidance for the nine
drug-testing pilot areas regarding the management and enforcement of the
abstinence requirements remains unchanged. This Circular indicates how
the provision should be introduced by Areas.

RELEVANT PREVIOUS PROBATION CIRCULARS

PC132/2001; PC144/2001; PC70/2003; PC28/2004; PC39/2004; PC42/2004;
PC55/2004; PC56/2004; PC3/05; PC16/05

CONTACT FOR ENQUIRIES

Robin Brennan, 020 7217 0916, robin.brennan@homeoffice.gsi.gov.uk

National Probation Directorate

Horseferry House, Dean Ryle Street, London, SW1P 2AW
1. To whom should the condition apply?

1.1 At this stage, a drug-testing licence condition should only apply to an offender who

• has been designated a ‘prolific or other priority offender’, by local definition

• is over 18
• has been or is serving a sentence for a ‘trigger offence’ under the Criminal Justice and Court Services Act 2000,
S. 64 and Schedule 6 (These are acquisitive crimes and class A drug offences, including attempted offences. A
full list of trigger offences is attached at Annexe A.)
• will be released on a period of statutory supervision.

Furthermore, imposing the condition should be both necessary and proportionate, reflecting an assessment that drug
misuse was a factor contributing to the index offence(s). Unless all these conditions are met the condition will not be
lawful and cannot be enforced.

1.2 Areas should note that S. 266 of the Criminal Justice Act 2003, which amends the criteria under which drug
testing can imposed on an offender, in particular by dispensing with the need for a trigger offence, has not yet been
implemented.

2. From when does the provision apply?

2.1 Areas should apply the drug testing condition to eligible PPOs as soon as is practicable. As a minimum, it must
be applied to eligible PPOs who are serving a custodial sentence for offences committed on or after 4th April 2005. (The
condition can be applied to those serving sentences for offences committed before that date.)

3. Procedure for inserting a condition in a licence or Notice of Supervision

3.1 For prisoners serving less than four years (Automatic Conditional Release) offender managers should contact the
releasing institution to indicate that a drug-testing condition is appropriate using the attached form DT2 (Annexe B).1 The
standard wording will be:

Attend [INSERT NAME AND ADDRESS] as reasonably required by the probation officer, to give a sample of oral
fluid/urine in order to test whether you have any specified Class A drugs (heroin or crack/cocaine) in your body, for the
purpose of ensuring that you are complying with the condition of your licence requiring you to be well behaved.

The need for drug treatment can be addressed through the standard additional condition and in the supervision plan.
(See 5.3 below for what treatment may comprise.)

3.2 A revised version of the Parole Release and Recall Manual (PSO 6000) has been released to governors
authorising them to approve this condition.

3.3 For prisoners serving four years or more (Discretionary Conditional Release), form DT2 should be submitted with
the parole assessment report for consideration by the Parole Board. If the offender has already had a parole review and
been refused release on parole, the condition must still be approved by the Parole Board. The condition should be
proposed via the Release and Recall Section2 (Croydon casework teams), as with any other condition for offenders
serving sentences of four years or over where the offence was committed prior to 4 April 2005.

3.4 For prisoners serving a standard determinate sentence under the Criminal Justice Act 2003, approval for the
condition will be given by prison governors. (See PC16/05 for full details.) Please note however that, contrary to
PC16, the condition may be sought for offenders who committed offences before 4 April 2005. Prison governors
will be informed of this amendment.

3.5 ‘Probation officer’ may be used here to include other grades of probation staff, i.e. it need not be a probation
officer who issues the instruction to attend for testing.

1
Form DT1, used in the pilot areas, required SPO approval to seek the condition. This has been dispensed with.
2
Formerly ERRS

PC34/2005 – Prolific and other Priority Offenders: Arrangements for Drug Testing on Licence 2
4. Arrangements for testing

4.1 Following the questionnaire sent in December it is apparent that more than a quarter of areas have some existing
arrangements for testing PPOs. All areas however will have testing in place for offenders subject to DTTOs/DRRs. As an
interim measure, areas which are not already drug testing PPOs on licence are requested to work with DATs and CDRPs
to extend testing arrangements to PPOs. £500,000 will be made available by NPD which will be distributed to areas
according to the usual formula. Areas will be contacted individually by email via the lead ACO to give details of funding.

4.2 Testing arrangements must be sufficient to deliver testing at the frequency outlined below and for confirmatory
testing of any disputed tests. NPD is also undertaking a procurement exercise building on the experience of the pilots.
This will aim to make the materials for and results of tests, based on oral swab testing, readily and locally available to
offender managers while taking advantage of the economies of scale which should be available through national
contracts. The demands of the tendering process mean that this will not be available until August at the earliest. The
contract will be a framework arrangement where local areas will be able to draw supplies and services which they will
then fund from their own budgets. The expectation is that a central contract will offer better value for money. It is
understood that Areas may need to enter a local contract for a fixed period before this is available but the expectation is
that all Areas would move to the central contract in 2006-7. NPD needs an indication of how many areas are likely to want
to take advantage of this arrangement from its inception since we shall need to give an indication of scope and scale to
the companies who respond to the initiative. Our current estimates of cost indicate that a) a test kit will cost in the region
of £9-12; b) the equipment £1,600; and c) confirmatory tests (required where offenders dispute the result) £35-45 per test.
Please return Annexe D as soon as possible.

5. Case management and enforcement

Frequency of testing

5.1 PPOs should be tested twice weekly on release for the first 16 weeks, and once a week thereafter.

Enforcement

5.2 Offenders who test positive on three consecutive or two non-consecutive occasions, in a six-week period,
will be in breach of their licence condition. Tests should be two days apart to minimise risk of drugs still being in the body
and being detected twice from one drug-taking episode.3 Offenders will be recalled to custody for breach of the drug-
testing condition unless they:

• engage with treatment

• are complying with other licence requirements, and
• do not present an unacceptable risk to the public.

Risk management comes before treatment need.

Offenders who refuse treatment

5.3 The package of treatment offenders are required to undertake will be determined by a treatment assessment but
can include participation in an accredited programme, attendance at a day care programme, and drug counselling, as well
as medical interventions. It should be noted that every effort should be made to agree the treatment programme with the
offender. An offender must not be recalled solely for failing to cooperate with medical treatment (such as substitute
prescribing) but may be recalled for refusing to co-operate with assessments, counselling, accredited programmes and
other cognitive-type interventions. Any offender who poses an unacceptable risk to the public must be recalled.

5.4 Enforcement for ACR and DCR prisoners will be on the standard breach form sent via the relevant ACO or
equivalent to Release and Recall Section (RRS). For cases where enforcement is via a magistrates’ court,4 Areas must
ensure that there is appropriate liaison with courts to apprise them of the basis of the application.

3
This is also the reason for requiring three consecutive tests to be positive before recall must be initiated.
4
‘Notice of Supervision’ on 18-21 year-olds, S.40a licences, and ACR cases where the offence was committed before
1.1.99

PC34/2005 – Prolific and other Priority Offenders: Arrangements for Drug Testing on Licence 3
Offenders awaiting treatment

5.5 It is likely that offenders who are awaiting medical treatment will continue to test positive. In areas where there is
a waiting list for medical treatment, therefore, offender managers have discretion not to enforce where the offender
continues to express willingness to co-operate with treatment, is complying with other licence requirements, and is not
assessed as being a risk to the public. This decision should be endorsed by an SPO/team manager. Given the multi-
agency nature of work with PPOs, liaison with the local PPO tasking group (or equivalent) is desirable.

Offenders testing positive while in treatment

5.6 For offenders engaged in treatment, progress towards abstinence will vary depending on the severity of the drug
problem and a range of other factors. Positive drug tests should be part of the clinical assessment of progress. If the
offender is actively engaging with treatment, is complying with other licence requirements, and does not represent a risk
to the public, he/she will continue to be supervised and treated in the community. If these criteria are not met (for
instance, if the offender manager has evidence of continued offending to feed a drug habit) the offender will be recalled.

Failure to complete treatment

5.7 PPOs who fail to complete treatment will usually be recalled to custody (but see paragraph 5.3). Exceptionally,
this requirement may be waived if they are quickly re-engaged with the treatment programme, when the offender
manager will have discretion not to propose recall taking into account clinical assessments, the risk assessment, and
compliance with other licence conditions.

On completion of treatment

5.8 On completion of treatment, a PPO who is still subject to statutory supervision will continue to be tested for drugs.
Enforcement arrangements will be the same as when he/she was first released from custody, i.e. three consecutive or
two non-consecutive positive drug tests in a six-week period will result in recall. The offender manager, however, has
discretion not to initiate recall if another period of treatment is considered appropriate, the offender is complying with other
licence conditions, and there is no risk to the public.

Deletion of testing condition; losing PPO status

5.9 As with any licence condition which has served its purpose, an offender manager has discretion to apply for a
condition to be deleted, either to the governor of the releasing institution (for ACR and standard determinate sentence
prisoners) or to the Parole Board via RRS for DCR cases. Full reasons in writing should be given to support such an
approach.

5.10 Where an offender is removed from the local PPO list because he or she no longer fits the criteria, consideration
should be given to whether the testing condition should remain. If the offender is still in treatment, is testing positive
(even if only periodically), or if the offender manager believes that the condition continues to be necessary and
proportionate in helping to achieve a valid purpose of supervision, then it should remain on the licence. The condition
should not be deleted, and still less should it be disregarded, solely because of the change of status of the offender.

Dealing with positive tests coupled with breaches of other conditions

5.11 There may be occasions when an offender has accrued breaches of other conditions (such as reporting) as well
as testing positive, but has not failed sufficient appointments or tested positive frequently enough to make recall
automatic. In these circumstances offender managers are encouraged to look at the case ‘in the round’, taking into
account risk to the public, risk of further offending, the likely success or otherwise of treatment, and the feasibility
generally of continued supervision in the community.

6. Monitoring

6.1 NPD considered the feasibility of keeping track of this initiative through routine National Standards monitoring.
This proved not to be practical because NSMART uses only a sample of the caseload, and figures for the whole PPO

PC34/2005 – Prolific and other Priority Offenders: Arrangements for Drug Testing on Licence 4
group are required in order to make a proper assessment of costs and benefits. We are therefore introducing a form
similar to that used to capture information on the DTTO. A draft of this is attached (Annexe C). The working version will
be brought into use as soon as feasible by the NPD Regions and Performance Unit.

6.2 Consideration will be given to including a target for this initiative in the Weighted Scorecard for 2006-7. This may
be based, for instance, on the proportion of PPOs serving sentences for trigger offences who have drug-testing conditions
in their licences. The monitoring returns for this year will give a baseline figure for the target.

PC34/2005 – Prolific and other Priority Offenders: Arrangements for Drug Testing on Licence 5
ANNEXE A - TRIGGER OFFENCES for DRUG TESTING with effect from 27 July 2004

Offences under the following provisions of the Theft Act 1968:

Section 1 (theft)
Section 8 (robbery)
Section 9 (burglary)
Section 10 (aggravated burglary)
Section 12 (taking a motor vehicle or other conveyance without authority)
Section 12A (aggravated vehicle taking)
Section 15 (obtaining property by deception)
Section 22 (handling stolen goods)*
Section 25 (going equipped for stealing etc)

Offences under the following provisions of the Misuse of Drugs Act 1971 are trigger offences if committed in
respect of a specified Class A drug:

Section 4 (restriction on production and supply of controlled drugs)

Section 5(2) (possession of a controlled drug)
Section 5(3) (possession of controlled drug with intent to supply)

An offence under section 1(1) of the Criminal Attempts Act 1981 is a trigger offence, if committed in respect of an
offence under any of the following provisions of the Theft Act 1968*:

Section 1 (theft)
Section 8 (robbery)
Section 9 (burglary)
Section 15 (obtaining property by deception)
Section 22 (handling stolen goods)

Offences under the following provisions of the Vagrancy Act 1824:

Section 3 (begging)*
Section 4 (persistent begging)*

(*Trigger offences added by the Criminal Justice and Court Services Act 2000 (Amendment) Order 2004,
which came into force on 27 July 2004)

PC34/2005 – Prolific and other Priority Offenders: Arrangements for Drug Testing on Licence 6
ANNEXE B - Form DT2 - drug testing

REQUEST FOR A DRUG TESTING LICENCE CONDITION

NAME: RELEASE ADDRESS:

PRISON NO:

PRISON:
AGE:
DOB:
SENTENCE: SUPERVISING OFFICER:

OFFENCE(S): ADDRESS:

TEL:

RELEASE DATE: DATES OF FAILED MANDATORY DRUG TESTS OVER

THE PAST 6 MONTHS (IF APPLICABLE)

Report on Application for Drug Testing Licence Condition ((to include the reasons why the prisoner meets the criteria
for drug testing, details of any known drug testing in prison and details of any previous convictions).

Signed: Date:

Name: Tel:

Position:

PC34/2005 – Prolific and other Priority Offenders: Arrangements for Drug Testing on Licence 7
ANNEXE C

Drug testing for PPOs on licence

Starts

No. of PPOs released on licence with a trigger offence (a) See note 1 20
No. of PPOs with a trigger offence and a licence condition (b) See note 2 2
Transfers-in of PPOs with trigger offence and licence condition (c) See note 3

Total starts (PPOs with conditions) d = b+c See note 4 2

Proportion of PPOs with trigger offence who have conditions (b/a

x 100) See note 5 10

Terminations

Licence completed (e) See note 6

Recalled to prison for failing tests/not engaging in treatment (f) See note 7
Recalled to prison (other reason) (g) See note 8
Lost PPO status/condition deleted (h) See note 9
Offender died (j)
Transferred out (k) See note 10

Total terminations (PPOs with conditions) e+f+g+h+j+k = m 0

Current caseload of PPOs with conditions n See note 11 10

Testing and treatment

Total number of tests carried out (p) 100

Number of positive tests (q) 10
Proportion of all tests which are positive q/p x 100 10.0%
Number of licensees engaged in treatment See note 12
Average tests per month, per offender p/n x 100 10

Notes

1. Number of PPOs from within the Area released on licence with a trigger offence.
2. PPOs with a trigger offence from within the Area who have a drug-testing condition in their licence.
3. Transfers-in of licensees who are subject to testing.
4. Total of new licence conditions from within the Area, plus transfers in.
5. Proportion of 'in-area' licences which have conditions.
6. Normal termination.
7. Recall for breach of the testing condition (can include other reasons such as failing to be of good behaviour and risk
to public)
8. Recall to prison for breaching other conditions, but not breaching the drug testing condition.
9. No longer subject to testing because condition has been deleted.
10. Transfer out only of PPO licensees with drug-testing conditions.
11 All PPOs with a trigger offence and a licence condition on the caseload.
12. This is only PPOs with a trigger offence and a licence condition who are engaged in treatment.

PC34/2005 – Prolific and other Priority Offenders: Arrangements for Drug Testing on Licence 8
ANNEXE D
PROLIFIC AND OTHER PRIORITY OFFENDERS
ARRANGEMENTS FOR DRUG TESTING ON LICENCE

1 AREA DETAILS

1.1 NPS Area

1.2 ACO with lead responsibility for this initiative.
1.3 Contact Details Tel no:
E-mail Address:

2 TESTING ARRANGEMENTS

2.1 Please confirm when testing arrangements will be in place to carry out
the testing of this group of PPOs.
2.2 What testing method do you intend to use for this group?

3 TESTING VOLUMES

3.1 How many PPOs convicted of trigger offences and serving/released from
custodial sentences does your Area have?
3.2 How many do you expect to have on licence and eligible for a drug-testing
condition at any one time?

4 PROCURING TESTING RESOURCES

2.1 Do you have in place local contractual arrangements for testing

equipment/services that you will use for testing PPOs under this
initiative?
If YES please identify your supplier(s).
2.2 If NO are you likely to want to source testing equipment and services
from the framework for testing PPOs to be put in place by NPD?
2.3 If the answer to 2.2 is YES please provide an estimate of:
a) The number of sites where testing machines will be needed.
b) The total number of testing machines that will be required.

PC34/2005 – Prolific and other Priority Offenders: Arrangements for Drug Testing on Licence 9