Pre-Sentence Reports Targeting Guidance

7/31/2019 Pre-Sentence Reports Targeting Guidance

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GUIDANCE FORCOURTOFFICERSREPORT

WRITERS AND

OFFENDERMANAGERS

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CONTENTS:Section:

Introduction 1Scope 2 - 3Criminal Justice Act 2003 National Implementation Guides & MagistratesCourts Sentencing Guidelines

4 5

General Advice 6 9 Offence analysis 9 a Offender assessment 9 b Assessment of likelihood of reconviction and risk of serious harm 9 c - f Actions to manage risks 9 g Avoidance of the term prolific and other priority offender 9 h Multi-agency involvement 9 i Offenders motivation 9 j k Sentences with multiple requirements 9 l n Proposals 9 o to p

Foreign Nationals and immigration issues in PSRs 10Equalities issues and offender engagement 11 13Fines 14 16Conditional Discharges 17Compensation, Ancillary Orders and Disqualifications 18 20Community Orders The Role of the Responsible Officer 21 Matching requirements to the purposes of sentencing 22 Supervision Requirement 23 24 Activity Requirements 25 Prohibited Activity Requirements 26 Programme Requirements 27 31

Unpaid Work Requirements 32 38 Attendance Centre Requirements 39 - 40 Curfew Requirements 41 Exclusion Requirements 42 Residence Requirements 43 Suspended Sentence Orders 44 Custodial Sentences 45 47Breach Sanctions Community Orders 48 49

Suggested penalties 50 511st breach more onerous requirements 52 54

Advice relating to failure to comply with specific requirements 54o Supervision Requirement 54 a bo Unpaid Work Requirement 54 c

o Attendance Centre Requirement 54 d

o Curfew Requirement 54 e

o Programme Requirements 54 f h


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o Specified Activity Requirement 54 i

o Prohibited Activity Requirement or Exclusion Requirement 54 j

o Treatment Requirements 54 k

o Residence Requirement 54 l

Subsequent breach or breaches 55 57Suspended Sentence Orders Sanctions 58 Considerations 59 Suggested penalties 60 61Annex ARevised 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 mostappropriate sentences and to write PSRs that are clear and concise. The document hasbeen 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. Thecontinuing increase in probation caseloads and in the prison population make it moreimportant than ever that all proposed sentences are well thought through and well andconcisely presented.

Scope

2. The following is not an exhaustive account, but a number of requirements and disposalsare specifically referred to below, in part to assist with appropriate targeting, but alsowith the aim of encouraging PSR writers to be creative in crafting their proposals forcourts. A recent report by the Centre for Crime and Justice Studies1 highlighted a viewamongst sentencers that probation staff were being too cautious and traditional in theirproposals. The Criminal Justice Act 2003 offers the potential for tailoring proposals tosuit individual cases. It is important that the full range of requirements available to thecourt is considered by the PSR writer. The model combinations described in PC25/05(Criminal Justice Act 2003: National Implementation Guide) will assist PSR writers totailor their proposals appropriately, and to think creatively about how combinations ofrequirements can best address the seriousness of the offence and the offenders risksand needs.

3. This document is applicable to any presentation to sentencers of pre-sentenceinformation. 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 beproportionate to the type of report. Some of this document may therefore be morerelevant to preparation of SDRs than to FDRs but should form a background forunderstanding the preparation of all types of report.

Criminal Justice Act 2003 National Implementation Guides & Magistrates CourtsSentencing Guidelines

4. Guidance on Community Orders and Suspended Sentence Orders was published inMarch 2005 (in PC25/05). Further guidance on Suspended Sentence Orders was issuedin 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 PSRwriters and Offender Managers are familiar with these documents, copies of which areavailable on EPIC.

5. Updated Magistrates Court Sentencing Guidelines were introduced in August 2008. Acopy of the guidelines and an accompanying briefing document is available on EPICunder Service Delivery/Sentencing Information/Sentencing Guidelines Council. PSRwriters should refer to the guidelines for information on the seriousness entry points for

1 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 OutCard (final two pages of the guidelines) is particularly useful in highlighting thesentencing structure which magistrates follow and the recognised aggravating andmitigating factors.

Characteristics of a good quality PSR

6. Court Officers should consider whether a PSR is necessary and advise the courtaccordingly. The implementation of Criminal Justice Simple Speedy Summary (CJSSS)has provided opportunities for probation areas to work with other criminal justicepartners to improve processes in the courts. This has included pre-court identification ofcases suitable for PSRs and those where probation assessment and intervention is notnecessary.

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, freefrom spelling or typing errors, avoid repetition and flow logically towards a conclusion.This is particularly important when generating reports from eOASys. The language andpresentation for a report is different from that required for an assessment. It is vital thatPSR writers carefully edit and check the document to ensure that it is individual, ispresented to a high standard and that it makes clear to the court what is being proposedand why. Further details are contained in NOMS National Standards for theManagement of Offenders 2007 sections 2a, 2b and Appendix A2.

8. The report should tell the court what intervention is being proposed; when the offender isexpected to start it; and in what dosage will be delivered. Where the offender is on thecusp of custody it is particularly important to stress what interventions will be delivered inthe 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 addressedsatisfactorily:

Offence analysis

a) The offence analysis is about whythe offence occurred, not what happened. Thewriter needs to give a critical appraisalof the offenders account of their offence,addressing all relevant circumstances. The offenders description of the offenceshould be checked against that of the prosecution and significant points ofdifference highlighted and remarked on. The offenders account need not be

repeated, especially where conviction follows a trial and the offenders version ofevents has not been accepted. Essentially, the court needs to know why theoffender committed the offence when they did, and why against this particularvictim. The report should also comment on the offenders attitude towards his orher offending, including acceptance of responsibility, level of appreciation of theconsequence of offending and level of victim empathy.

Offender assessment

b) Sufficient detail ofoffence-related needs must be included. Additionally the reportshould identify any patterns of and triggers for offending behaviour. There will be adegree 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 ofoffending 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 andthe risk of seriousharm. Likelihood of re-offending will be assessed by using Offender GroupReconviction Scores (OGRS) or through the Offender Assessment System(OASys). The context and meaning of the information should be conveyed to thecourt and report writers should avoid reference to specific scores.

d) Specialist assessment tools, e.g. Spousal Assault Risk Assessment (SARA) orRisk Matrix 2000 should be used where appropriate. For some cases, for examplean offence involving domestic violence, the PSR writer will need to distinguishbetween the likelihood of re-offending and the potential for repeat behaviour thatresults in further risks to a specific victim. The writers judgements about thesematters will need to be supported by evidence.

e) Where the offence before the court might result in an indeterminate sentence forpublic protection, a PSR will be required in all but rare circumstances. Judges havereceived guidance, following Court of Appeal judgements, that they should requesta report in all cases. The report writer must provide the court with all availableinformation to enable it to make its statutory assessment of dangerousness, thesignificant risk test set out in the Criminal Justice Act 2003 s229(1)(b). The courtmust determine whether there is a significant risk to members of the public ofserious harm occasioned by the commission by him of further such offences.Serious harm is defined in the act as meaning death or serious personal injurywhether 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 riskwhich is life threatening and/or traumatic and from which recovery, whetherphysical or psychological, can be expected to be difficult or impossible. Althoughthese two definitions are comparable, the subtle differences between the two arecritical to the court when considering the significant risk test.

f) PSR writers should clearly present all the evidence, both that which supports theirassessment and that which suggests ways of mitigating risk of serious harm, to thecourt. PSRs should describe risk of serious harm accurately in terms of both thelikelihood of recurrence of the specific harm related behaviour, and the impact ofrecurrence of the behaviour. The report writer should clearly differentiate betweenthe general likelihood of re-offending and the likelihood of the individual committing

a further serious violent or sexual offence. Additionally the risk of serious harmassessment 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 toprotect the public from harm and to reduce the risk of re-offending. When attachingthe Outline Sentence Plan to a SDR the PSR writer should make it clear to thecourt how the objectives identified relate to the sentence proposed (e.g. whichobjectives 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 aPPO scheme in reports (including within the office address). Since there is nostatutory basis for the definition, it is made locally by Crime and Disorder ReductionPartnerships and can vary from area to area. Writers should describe an offenders

antecedents and the risks they pose, and should indicate clearly how the offendercan best be managed in the community. This can include factualreference to jointplanning carried out with police or other agencies, especially where this gives riseto other agencies involvement in a proposed sentence plan.

Multi-agency involvement

i) Probation terminology and language should not be used as shorthand to convey arange of measures planned for managing an offender. Reports should indicate asspecifically as possible the proposed action and contribution of each agencyinvolved in the management of the case (for example the police in the case ofPPOs). Careful use of language is necessary to reflect the intensive nature of thesentence proposed without specifically referring to a PPO or PPO scheme.Similarly, there will be cases which fall under multi-agency public protectionarrangements (MAPPA). Again, reports should focus on the details of eachagencys 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 indeciding whether to propose a community sentence. Levels of motivation canfluctuate. 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 toincrease motivation, and should comment on this in their report. In making aproposal, the report writer should have in mind the likelihood of a successfulcompletion. Proposals for community orders should take account of the risk topublic safety of the offender remaining in the community. This is especiallyimportant where motivation appears lacking.

k) The offenders motivation is unlikely to be the decisive factor in cases where thereis 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 shouldwherever relevant, aim to punish and restrict as well as to rehabilitate. Areas arereminded of the model combinations of requirements contained in the CriminalJustice Act 2003: National Implementation Guide (PC25/05).

m) The overall punitive weight of a sentence should be commensurate with theseriousness of the offence. It should not be assumed that an order with a highernumber of requirements is necessarily of greater punitive weight than one with alower number. Writers should balance punitive weight to ensure that the overallproposal is commensurate with the seriousness of the offence. They should alsotake care not to contribute to increasing the severity of a sentence unless the needfor 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 waspreviously known to the court). Such evidence will be crucial in those areasinvolved 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 divertingoffenders away from short term custody into intensive community sentencepackages, based on the existing multi-requirement combinations outlined in theCriminal Justice Act 2003: National Implementation Guide. These demonstratorprojects will explore practice and processes in working with sentencers to targetoffenders who may otherwise have received short term custodial sentences butwho could, with additional resources and intensive supervision, be managed in thecommunity. The first demonstrator projects have started in Derbyshire DyfedPowys, South Wales and West Yorkshire, with others to follow.

Proposals

o) Reports should offer the court a clear proposal. In some circumstances it will beappropriate to propose custody, but only where no other sentence is suitable. Itmay be appropriate to make a proposal for a community sentence, provided thatthe report demonstrates how any risks can be managed alongside effectiverehabilitation, and spells out any potential obstacles to compliance and any risks inallowing the defendant to remain in the community.

p) It is important that the courts sentencing decision is made on the basis of all theavailable information. At the pre-sentence stage report writers should take care toestablish whether there are any existing arrangements made for the post-sentenceperiod which might interfere with the implementation of the sentence. These would

include, for example, booked or planned holidays. There is no blanket prohibitionon an offender going on holiday whilst subject to a community order or suspendedsentence. The merits and risks of such action will need to be assessed on a case-by-case basis. However, where plans are known prior to sentence these must beshared with the court so that the sentencer is fully aware of the basis on which theorder is being made.

Foreign Nationals and immigration issues in PSRs

10. Reports prepared on offenders who are foreign nationals will need to consider theimpact 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 thesefactors and how they differ depending on nationality and immigration status can beobtained on EPIC/Service Delivery/Foreign Nationals/Foreign Nationals & OffenderManagement Information Wall Charts. The Evidence and Enquiry Unit of the UK BorderAgency (contact details also on EPIC/Service Delivery/Foreign Nationals) may becontacted to verify nationality and immigration status. An Immigration form, IM3, may beserved on a foreign national defendant prior to sentence. An IM3 form means that thedefendant is liable for deportation and, if served at least 7 days prior to sentence, acourt can make a deportation recommendation as part of the sentence. Should an IM3be served on a foreign national defendant a PSR can address the impact andimplications 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 howthey engage with their sentence. The concept and practice of promoting complianceshould 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 potentialissues and start the process of generating solutions to potential barriers. An offendersunique engagement issues and responsivity style will be relevant to how services aredelivered to him or her and how compliance is promoted throughout the order. Forexample, the PSR writer, and, in turn the offender manager, should consider ways toovercome issues such as transport, travel, child-care or other domestic caringchallenges, family finance, etc. This may include a sensitively designed pattern ofappointments, perhaps scheduling a different balance between office and home visits.

12. Sentencers should be shown how the specific requirements of a community order canaddress the needs of the offender more effectively than a custodial sentence. Particularcare must be taken to ensure that courts are well informed about the potential impact ofcustody on the defendant. This will be especially important where the defendant isvulnerable and/or has dependants.

13. No offender should receive a more stringent or demanding sentence as a means ofaccessing support, particularly where that support is best provided through health andsocial care services in the community. With women offenders in particular, it is importantto avoid an overemphasis within the report on needs assessment. Women offendersshould have appropriate equal access to service provision to meet offending-relatedneeds. All sentencing proposals should be consistent with the principle that the sentenceis commensurate with the seriousness of the offence. Resources should follow risk andbe consistent with overall tiering guidance.

Fines

14. Criminal Justice Act 2003: National Implementation Guide contains guidance on whenand how PSR writers might consider proposing a fine. The payment rate for fines hasimproved significantly in recent years, so courts can be confident that Her MajestysCourts Service will act vigorously to enforce the payment of fines. The MagistratesCourt Sentencing Guidelines 2008 sets outs the ranges and methods of calculation offines in relation to income.

15. As far as possible, probation resources should be focussed to achieve maximumreduction 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 writerswhenever it might be an appropriate disposal. This is particularly the case where thecourt views the offence as no more than low seriousness within the community sentenceband. Court officers and PSR writers should consider proposing a fine in preference to acommunity order with an unpaid work or curfew requirement. The majority of suchcases should be dealt with by way of an Oral Report to facilitate the speedy delivery ofjustice and maximise use of probation resources.

16. Where the court indicates a provisional assessment of seriousness as medium within thecommunity sentence band and where the offender has a low likelihood of re-offendingand a low risk of serious harm, a fine may still be an appropriate disposal. Fines are arestriction 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-writingresources should not generally be used where the outcome is likely to be a fine, thisdoes not prevent PSR writers from proposing fines in FDRs and SDRs. As with anyproposal, a convincing argument in support of the proposal, outlining its impact on theoffender, should be put to the court.

Conditional Discharges

17. As with the fine above, PSR-writing resources should not generally be used where theoutcome is likely to be a conditional discharge. This does not however, preventprobation court officers and PSR writers from proposing a conditional discharge in areport. Such cases are likely to be where the court views the offence/s as of low and, onoccasions, medium seriousness within the community sentence band and where there isparticular mitigation. As with any proposal, a convincing argument in support of theproposal, 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 disqualificationcan 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 personalinjury, loss or damage has resulted from the offence. Compensation can either be asentence in its own right or an ancillary order. Compensation will be appropriate in manycases. It should benefit, not inflict further harm on the victim. The views of the victimtowards compensation, previously obtained by the police or witness care unit, will becritical to the process.

20. In relevant cases other ancillary orders, such as football banning orders, restrainingorders and sexual offences prevention orders, may be appropriate to protect the publicfrom further harm. Additionally, a driving disqualification, particularly where there is noevidence of earlier non-compliance with a ban, may help to reduce continuing risks tothe public. Such orders, combined with a community order or other disposal will increasethe punitive weight of the sentence and can ensure that the overall penalty iscommensurate with the seriousness of the offence. PSR writers should be mindful of thefull range of the courts sentencing powers and should include such sanctions in theirproposals 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 theCriminal Justice Act 2003 s198. This lawful authority covers the essence of the coreOffender Management process: ASPIRE (Assess, Sentence Plan, Implement, Reviewand Evaluate). Section 198 does not provide an open-ended authority to require theoffender to keep appointments, either to pursue rehabilitation, public protection or anyother purpose of sentencing. Such purposes are met by specific requirements, forexample supervision, activity or treatment requirements. Except where the ordercomprises a stand-alone curfew or attendance centre requirement the responsible officerin 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; andc. 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 therequirements which best suit the delivery of the sentencing purpose/s. The Act allows fora community order with a single requirement. It is not necessary for example, for asupervision requirement to be attached to the order unless there are specific offendermanagement objectives that can only be delivered through a supervision requirement.Being clear about which requirements best suit the delivery of the sentencing purposeswill ensure the most efficient use of probation resources.

Supervision Requirement

23. The purpose for which a supervision requirement may be imposed is that of promotingthe offenders rehabilitation (s213). The supervision requirement provides maximumflexibility 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 tothe national minimum standards. Although the purpose of the supervision requirement islimited to rehabilitation, what activities are and are not categorised as rehabilitation forthe purpose of the requirement are not defined in law.

24. In practice, the supervision requirement is used in different ways; firstly where theoffender 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 ofmanaging risks but also of supporting the delivery of interventions. The primary focus ofthe order should be the requirements where the purposes of sentencing willpredominantly be met. Where a supervision requirement is necessary to support anotherrequirement PSR writers should frame their proposals in such a way as to limit thelikelihood of a supporting supervision requirement greatly exceeding in time that which isnecessary to deliver the primary requirement. This will ensure that probation resourcesare 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 addresseducation, training and employment issues. Where the purpose of sentencing can bemet 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 beused to ban a particular behaviour. It can therefore be used to prevent behaviour whichcould occur at a wide range of places. It meets the sentencing purposes of bothpunishment 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, particularlyin relation to multi-agency working, which might be used to protect the public andmonitor compliance with the prohibition. The requirement should not be used to prohibitbehaviour which is in any event illegal, but can be used to provide additional publicprotection in support of preventing further offending.

Programme Requirements

27. There is a large international evidence base which demonstrates that offendingbehaviour programmes can be effective in reducing re-offending. A recent reconvictionanalysis conducted by NOMS/RDS (Hollis 2007) shows that offenders who participate inprogrammes have lower reconviction rates than those predicted using the OffenderGroup Reconviction Scale. This is especially true for those who go on to complete theprogramme.

28. However, systematic reviews of the literature indicate that programmes are mosteffective when targeted at the most appropriate groups. The programmes currentlyaccredited for offenders in the community work best for those in the medium to mediumhigh range of risk of reconviction. The published targeting requirements including OGRSranges should be followed for each programme. There may be a small number ofoffenders with lower OGRS scores for whom an accredited programme is stillappropriate, based on their criminogenic needs and patterns of offending. This may beparticularly true for women offenders on account of the impact of gender and age atcommencement of offending on an OGRS score. This is recognised in the WomensAcquisitive Crime Programme with its lower bottom eligibility threshold. However, caremust be taken to avoid contributing to any offender being viewed more seriously by thecourts. Any concerns about eligibility should be discussed with programmes staff. Lowrisk offenders can benefit from programmes if they have needs which are addressed by

the programme. However, generally, these improvements in thinking skills andbehaviour are unlikely to feed through to significant reductions in re-offending overallbecause the likelihood of re-offending is already fairly low. This means that theprogrammes are unlikely to be cost-effective for low risk of re-offending groups unlessthere is a high risk of serious harm potential.

29. Offenders at high likelihood of re-offending do benefit from programmes, but they tend tohave greater and more complex needs, so, a programme alone may not reduce thelikelihood of re-offending. There is a high correlation between higher likelihood of re-offending and non-completion of programmes. For these two reasons it would not becost-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 bythe supporting functions of offender management; through preparation, the removal ofobstacles to completion, motivational work and solid delivery of pre- and post-groupsessions.

31. The Criminal Justice Act 2003 s202 states that a court may not include a programmerequirement in a community order unless the programme has been recommended to thecourt as being suitable for the offender by an officer of the local probation board andunless it is available. It is vital that PSR writers only propose accredited programmes foroffenders who meet the targeting criteria specified for each programme. In this sense anoffender 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 aprogramme for all offenders who are eligible and suitable.

Unpaid Work Requirements

32. Unpaid work meets the sentencing purposes of punishment and reparation; for someoffenders there may also be rehabilitative benefits.

33. The Sentencing Guidelines Council guidelines suggest the following lengths of unpaidwork requirements at the three seriousness levels in the community sentencing band:

Low 40 80 hours

Medium 80 150 hours

High 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 notrequired to do so, it is likely that the court will ask the advice of Court Officers in seekingto determine offenders suitability for unpaid work. Such advice can often be provided byway of an Oral Report.

35. At high levels of seriousness involving more complex offender needs, unpaid work islikely to be proposed in combination with other requirements, usually following thepreparation of an SDR. Unpaid work is usually unsuitable for offenders who pose a veryhigh risk of harm. Proposals of unpaid work where the offender poses a high risk ofserious harm should only be made following consultation with staff responsible for theunpaid work intervention. This will avoid the possibility of the offender being returned tocourt 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 theoffence(s) may span the seriousness range, unpaid work may be a potential proposal ina Fast Delivery (FDR) or Oral Report.

37. When assessing offenders suitability for unpaid work, report writers should giveconsideration to offenders availability and medical fitness, if necessary in consultationwith unpaid work staff, in accordance with local procedures. Where a provisionalassessment of seriousness is available, report writers should provide the court with aclear assessment of the appropriate length of any unpaid work requirement, using theSentencing 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 inrelation to factors such as other potential requirements to be included in the order. Itshould rarely be necessary to propose an unpaid work requirement to the maximumlength suggested in any of the SGC seriousness bands.

38. For offences in the low seriousness band, report writers should consider whether aproposal for unpaid work would represent an effective use of probation serviceresources. If the indicated primary purpose of sentencing is that of punishment andprevention of further offending, consideration should be given to whether these could bemet by the imposition of a fine. Alternatively, consideration may be given to a proposalfor 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 thedevelopment of self discipline, skills and interests for the individual. The Criminal JusticeAct 2003 National Implementation Guide contains guidance on when and how reportwriters should consider this disposal. An attendance centre requirement is available for18-24 year olds only and is intended for offenders in the low to medium offenceseriousness band, as determined by the court, as a stand-alone requirement. However,an attendance centre requirement may be included alongside other requirements in acommunity order for low, medium and high seriousness bands of offences in order tomeet the purposes of the sentence and for extra restrictions on liberty. It may also beused for offenders with low, medium and high likelihoods of re-offending and with lowand medium risk of serious harm. A pre-sentence report is not mandatory but the courtmust be satisfied that the centre specified is accessible to the offender. There is anexpectation that the travel time should not exceed 90 minutes in each direction. Thelength of the requirement is expressed in hours between 12-36, with a maximum of threehours per attendance and one attendance per day.

40. Where the attendance centre requirement is the only requirement in an order, theresponsible officer will be the officer in charge of the centre. The centre must bespecified, and an attendance centre requirement can only be made where the provisionis available. There are 28 senior attendance centres in England and Wales providing arange of activities. The use of attendance centres requirements has reduced in recentyears. A review has recently been conducted to explore the potential for their greateruse 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 meetboth punitive and public protection purposes of sentencing. The restriction of personalliberty inherent in a curfew requirement should be clearly articulated to the court as wellas, where appropriate, the capacity of the curfew requirement to disrupt patterns ofoffending behaviour. In view of this, it may be an attractive option as a stand-alonerequirement in cases where the courts sole purpose of sentencing is punishment. Anyrisks associated with the imposition of a curfew requirement, e.g. risks to other familymembers of having the offender restricted to the home, particularly in relation todomestic 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 thesentence, for example where the addition of a curfew requirement to a community ordermight persuade the court that the imposition of a community order instead of a custodialsentence 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 sentencingpurposes 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 bothproportionate and necessary to protect the public.

Residence Requirements

43. Residence requirements provide a high restriction of liberty and are appropriate for thoseoffenders managed at Tier 4 level. Additionally, PSR writers and offender managers arereferred to PC 16/2008, which deals with the expanded use of female approvedpremises. The PC encourages the consideration of an Approved Premises (AP)placement for a wider range of women offenders and gives guidance on the criteria forplacing more vulnerable female offenders in APs. In particular, APs should beconsidered where the court is considering a custodial sentence and the offender couldbenefit 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. Revisedguidance on the use of suspended sentence orders was sent to chief officers in October2006. This followed concerns about rising use of suspended sentence order proposals atthe expense of robust proposals for community orders and evidence of greater thanexpected use of suspended sentence orders by the courts. Areas should draw this to theattention of relevant staff. This document is attached at Annex A and is available onEPIC.

Custodial Sentences

45. Offender managers preparing PSRs on offenders where custody is inevitable and/orproposed 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 othercriminogenic needs linked to re-offending must be made clear. It is then vital to identifywhich of these should be addressed in the prison setting and which can be addressedafter release into the community.

47. The prioritising, sequencing and expected outcomes, need to be explicit in the outlinesentence 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 bedealt 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 thecourt 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 orderstates that the primary objective when sentencing for breach of requirements is toensure 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 ofthe community order. This information needs to be included in any breach report, alongwith an updated risk assessment. Wherever possible a breach report should containsufficient information to enable the court to resolve the breach at the first hearing,whether this involves amending the order to include more onerous requirements orrevocation and re-sentencing. NOMS is jointly responsible for end-to-end communitypenalty enforcement and is held accountable through end- to- end enforcement targetsshared with the police and HMCS.

Suggested penalties

50. Some areas and trusts have already negotiated suggested penalties for breach withtheir local legal advisors and sentencers. For areas or trusts wishing to open discussionsthe following guidance is provided. Again, it is not exhaustive and should not restrictlocal solutions in managing proposals in breach reports.

51. Consideration of any proposed penalty for breach must be informed by and must havedue regard to the principles of proportionality. The following suggestions are a guideaimed at promoting a consistent and commensurate response to breach action.

1stbreach - 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 theoffenders liberty.

53. In all cases the report writer should consider the precise circumstances and reasons forthe breach. This will be particularly relevant in multi-requirement orders where thebreach relates to one specific requirement. When advising the court as to the optionsavailable for breach, the report writer should consider whether, in light of any change inthe offenders circumstances or new information on emerging issues or needs gatheredthrough supervision, a different combination of requirements would more appropriatelymeet the overall objectives of the sentence. Such action would constitute an amendmentto (N.B. not revocation of) the order as long as the amended or substituted requirementswere 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 therequirements 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 amendingexisting ones) then the minimum and maximum lengths apply. The exception to this isunpaid work. The Criminal Justice and Immigration Act 2008 s38 reduces from 40 to 20hours the minimum period of unpaid work which may be imposed for breach of acommunity order where that community order does not already contain an unpaid workrequirement.

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 theoverall length of the community order. No requirement can be extended beyond therelevant 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 lengthof a community order is defined by its longest requirement; the order has nolength independent of its requirements.

b) An appropriate proposal could be a low-level punitive restriction e.g. a short curfewrequirement of up to twenty periods. Alternatively, where a rehabilitative approachis more appropriate, staff should consider proposing that the court revokes thecurrent order and re-sentences to a similar order, taking account of progress todate.

Unpaid Work Requirement

c) In straightforward instances of non-compliance a proportionate penalty would bean additional one three sessions (usually 6-18 hours).

Attendance Centre Requirement

d) In straightforward instances of non-compliance a proportionate penalty would beadditional 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 acceptablereasons, regardless of efforts to secure and maintain the offenders complianceand work towards programme completion.

g) Advice should be sought from the programme tutor or treatment manager as towhether the offender can complete the programme (perhaps through catch-upsessions) 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 toenable completion, a proportionate punitive penalty may be considered e.g. a shortcurfew requirement. Alternatively the report writer should consider revocation andre-sentence as outlined above under supervision requirement.

Specified Activity Requirement

i) It may be appropriate to extend the requirement proportionately, where this isappropriate to the offenders needs. This should only be done following



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consultation with the activity provider. Alternatively, the report writer shouldconsider 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 ongoingrisk management. Extension or a proportionate punitive sanction may beappropriate. Alternatively, revocation and re-sentencing should be consideredwhere non-compliance presents risks to the public.

Treatment Requirements

k) Advice should be sought from the treatment provider. An extension to a treatmentrequirement may be appropriate depending on the offenders needs. As with theoriginal making of such a requirement, the offender must consent to anyamendment to a treatment requirement. Where this is not appropriate, a purelypunitive penalty for such a breach should take into account the offenders ability tocomply and the overall compatibilityof the requirements of the order.

Residence Requirement

l) Advice should be sought from the residence provider as to the viability of acontinued residence requirement, taking into account the offenders needs and therisks presented. Where continuation is possible an extension of the requirement orproportionate punitive penalty should be considered. Where it is not possible(usually because the place is no longer available) revocation and re-sentence maybe 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 whatmotivates the non-compliance. Successive breaches may be due to willful non-compliance. The Act states that if an offender has wilfully and persistently failed tocomply with their order then the court may consider revoking the order and imposing acustodial sentence.

56. The report writer should consider whether there is any more that could be done tofacilitate compliance with the requirements of the order. In particular the report writershould consider any significant changes in the offenders circumstances since theprevious order was made. These might include positive factors such as the length oftime between the previous order being made & the current court proceedings and alsonegative ones such as an increase in the likelihood of reconviction or risk of seriousharm. Where a community order is still suitable, despite previous poor compliance, thereasons for this should be made clear to the court.

57. Probation staff should be open to the possibility of outcomes other than custodial orcommunity sentences in cases where a considerable period of time elapses between thebreach being instigated and finally resolved, for example where the offender has failed toattend court and a warrant has been issued. There may be occasions, for examplewhere 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 forrevocation 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 tocomply with a community requirement or commits a further offence, the court must eitheractivate 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 communityrequirements;

b. make the community requirements more onerous; orc. extend the operational.

Considerations

59. Where an offender has breached a suspended sentence, there is a presumption that thesuspended prison term will be activated in full or in part. The court cannot revoke asuspended sentence order unless it is activating the custodial sentence. The court mustactivate the suspended sentence unless it is of the opinion that it would be unjust to doso in view of all the circumstances, including the extent to which the offender hascomplied 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 ofwhether it is of a different character to the offence for which the SSO was made, andwhether or not it would normally attract a custodial sentence.

61. Where action other than activation of the suspended sentence is being proposed, thereport writer should acknowledge the need for the court to consider activating thesuspended sentence and then set out why, in the report writers opinion, this would notbe appropriate. The penalty proposed should be in accordance with the penaltiessuggested for a breach of a community order.



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Annex ARevised 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 ofseriousness, or lack of such an indication. There are basically three scenarios:

First, those cases in which the court indicates that the seriousness of theoffending is within the community sentence band

In these cases the PSR writer should make no reference to a Suspended Sentence Order inhis/her report.

The proposal should be either for a Community Order containing the number and type ofrequirements 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 onthe 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 includingcustody).

In these cases the PSR writer should make no reference to an SSO in his/her report unlesshe/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, ifthe PSR writer considers it appropriate, a fine or discharge. The PSR writer may again refer toany particular negative effects of custody on the offender if such a reference would strengthenthe proposal.

Third, those cases in which the court indicates that the offending is so seriousthat only custody is justified

In these cases the PSR writer should first consider whether the interests of public safetynecessitate that an immediate custodial sentence is essential. If it is not, the report shouldpropose 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 whichthe court should include in an SSO. It may then suggest that the court might wish to considerimposing a Community Order with more, or more onerous, requirements (than would beimposed with an SSO), which could be seen to provide a degree of restriction on the offendersliberty commensurate with the seriousness of the offending.

Through the implementation of this guidance the NPS should be able to make a worthwhilecontribution to achieving the aim of ensuring that Suspended Sentence Orders are imposedonly on offenders who would otherwise have received an immediate custodial sentence.

[Issue date]

Pre-Sentence Reports Targeting Guidance

Documents

Transcript of Pre-Sentence Reports Targeting Guidance