To provide information about prison governors' delegated authority to approve non standard licence requirements.

Probation Circular
REFERENCE NO: 28/2004 ISSUE DATE: 26 May 2004 IMPLEMENTATION DATE: Immediate EXPIRY DATE: May 2009 TO: Chairs of Probation Boards Chief Officers of Probation Secretaries of Probation Boards CC: Regional Managers Board Treasurers AUTHORISED BY: Claire Wiggins, Head of Intensive Interventions ATTACHED: N/A

Chief Officers are asked to note the contents of this circular and bring the contents to the attention of all relevant staff.

With effect from 1 April 2004, prison governors will be granted delegated authority to approve drug testing conditions for eligible offenders, who are either a) Automatic Conditional Release (ACR) prisoners or b) young offenders aged 18 or over and are subject to supervision. Testing is only available, at the present time, for adults, aged 18 or over, in the probation areas where the pilot projects were carried out. From 1 April 2004, prison governors have delegated authority to approve two other additional nonstandard licence conditions for ACR cases. Supervising officers are reminded about the correct procedures to be followed when requesting nonstandard ACR licence conditions.

PC83/1999 PC13/2003 PC42/2003

James Hough 0207 217 5511 and Ken Talbot 0207 217 5412

National Probation Directorate
Horseferry House, Dean Ryle Street, London, SW1P 2AW General Enquiries: 020 7217 0659 Fax: 020 7217 0660

Enforcement, rehabilitation and public protection

BACKGROUND 1. Identifying drug misusing offenders at each stage of the Criminal Justice system is a key objective of the Government’s crime reduction strategy. In addition, identifying drug misusing offenders, at each stage of the criminal justice system, also supports the Government’s 10 year anti drug strategy “Tackling Drugs to Build a Better Britain” (outlined in the Updated Drug Strategy 2002). These drug testing powers are designed to act as a deterrent, and to help identify, and monitor offenders who need additional support in the community, to avoid returning to offending. The purpose of the drug testing is to enhance public protection, by identifying those with a history of drug related offending who are misusing drugs. 2. Drug testing as a condition of licence has been piloted in a number of different probation areas since July 2001 (listed at Annex A). At present it is only offenders being released to those probation areas where the pilot projects were carried out, who may be considered for application of the drug testing condition to their licence. CRIMINAL JUSTICE AND COURT SERVICES ACT 2000 3. Sections 63 and 64 of the Criminal Justice and Court Services Act 2000 allow a drug testing condition to be included in a release licence. The condition monitors compliance with other conditions of the licence, such as the good behaviour condition, by ascertaining whether the offender has taken specified Class A drugs. 4. With effect from 1 April 2004 prison governors will be granted delegated authority to approve the inclusion of a drug testing condition in release licences, or notice of supervision, of eligible offenders. 5. Any drug testing condition or requirement must, like any other aspect of a licence or notice of supervision, stand the test of being necessary and proportionate, in order to comply with administrative law and the Human Rights Act 1998. CRITERIA FOR THE USE OF DRUG TESTING CONDITIONS 6. It is not the intention that every prisoner within the catchment groups should have drug testing conditions applied. Decisions must be taken on a case by case basis. 7. For a prisoner to be considered suitable for a drug testing licence condition, he/she must, initially, be released to reside within one of the probation areas listed in Annex A. • • • must be serving a sentence for one or more of the trigger offences listed at Annex B; and must be aged 18 or over; and the imposition of the condition must be both necessary and proportionate (the assumption is that this will apply for most prisoners convicted of one or more of the trigger offences at Annex A, with drug abuse identified as a factor which contributed to their offending).

Unless all these criteria are met, the condition will not be lawful and cannot be enforced. SUBMISSION OF REQUEST 8. Where a probation area wishes to request a drug testing condition, the request must be endorsed by an officer at, at least SPO (or Team Manager) level. 9. The request should be made to the establishment where the offender is being held, as early as possible before the release date of the offender, to enable due consideration, before applying it to the licence. PC28/2004 - Criminal Justice & Court Services Act 2000: Drug Testing as a licence condition and further guidance on licence procedures for short term offenders


10. In respect of prisoners serving sentences of between 4 and 15 years, the inclusion of any condition or requirement of a release licence is, as a matter of law, for the Parole Board. GENERAL 11. Where the request for the condition is submitted as part of a parole report, both the parole report and Form DT1 (Annex C) should be submitted to the establishment in accordance with the usual parole timetable. DRUG TESTING LICENCE CONDITION 12. The standard wording will be as follows, but this may be changed to reflect the circumstances of individual cases: “whilst under supervision, you must: (a) attend (name and address) twice a week for the first 13 weeks of your release and thereafter, as reasonably required by your supervising officer to give a sample of oral fluid 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 of good behaviour. POST-RELEASE 13. The appropriateness of the licence condition should be regularly reviewed, like any other licence condition, especially where the licence period is lengthy. Any decision to remove a drug testing condition from the licence should only be made after consultation with the Governing Governor of the establishment where the licence was issued. BREACH OF A DRUG TESTING CONDITION 14. The procedures for dealing with a reported breach are set out in the Probation Service National Standards (Revised 2002). A breach report should be sent to the Early Release & Recall Section (ER&RS) at the Home Office – previously Sentence Enforcement Unit - under the following circumstances: • the offender has failed to attend or fails to cooperate with two appointments for drug testing and fails to provide a satisfactory explanation. (The Probation Service must issue a warning letter after the first missed appointment.) • the offender fails three consecutive drug tests or two non consecutive drug tests over a six week period. The decision whether to breach the licence will be made in the light of the overall progress made by the offender and the breach report should identify any positive evidence of progress, which would mitigate breach action. (The Probation Service must issue a warning letter after the first failure.) • the offender breaches any other condition of the licence, whether in conjunction with the drug testing condition or not. 15. On receipt of a breach report, Early Release & Recall Section will consider whether recall action is appropriate. In most cases, responsibility for recall will be under section 39 of the Criminal Justice Act 1991. Before taking a final decision, Early Release & Recall Section will: (a) attempt to contact the supervising probation area. However, where immediate recall appears to be necessary and the supervising probation officer cannot be contacted, recall action may proceed.

PC28/2004 - Criminal Justice & Court Services Act 2000: Drug Testing as a licence condition and further guidance on licence procedures for short term offenders


(b) refer the case to the Parole Board for a recommendation, as required by law. However, where the delay involved in seeking a Parole Board view would not be in the public interest, immediate recall action may proceed. 17. In cases involving an ACR licence in respect of a prisoner whose index offence was committed prior to 1 January 1999, the courts will be responsible for deciding on breach action under section 38 of the Criminal Justice Act 1991. In these cases, the supervising probation area will need to ensure that the court dealing with the breach is briefed fully on the nature of the condition, the protocol that was in place, and the breach arrangements that ER&RS are working to. This circular should also be made available to the court. FURTHER GUIDANCE ON LICENCE CONDITIONS FOR ACR OFFENDERS 18. Paragraph 29 of Probation Circular 42/2003 advised that, in ACR cases only, prison governors have authority to authorise up to six specified additional non-standard licence conditions. In addition to the drug testing licence conditions for catchment areas, prison governors will, from 1 April 2004, have authority to approve two other non-standard conditions for ACR cases, these being: • Not to seek to approach or communicate with children under the age of….without the prior approval of your supervising officer/and name of appropriate social services department; Shall participate in the Persistent Offender or Prolific Offender [SPECIFY WHICH] Project and, in accordance with instructions given by or under the authority of your supervising officer, attend all specified appointments with your supervising officer and any other agencies for the purpose of ensuring that you address your offending behaviour and substance abuse for the duration of the programme.

19. As outlined in PC 42/2003, all requests for additional conditions must be accompanied by a full explanation. As with other additional conditions, they must also be both necessary and proportionate. (Necessary means that no other means of managing a particular risk is available or appropriate; and proportionate means that the restriction on the offender’s liberty is the minimum required to manage the risk.) 20. All requests for non-standard licence ACR conditions must arrive at establishments directly via the supervising officer. If other agencies (e.g. police, social services etc) request non-standard conditions, they will be referred to the supervising officer by the prison Custody / Discipline Office. 21. If supervising officers wish to request any other non-standard licence conditions in ACR cases, these must also be referred to the prisoner’s establishment. As governors have no authority to approve such requests, they will refer them to ER&RS for consideration. ERRS will then make enquiries, if necessary, with the supervising officer and then provide the establishment with a decision. Supervising officers must ensure that these requests are submitted to the offender’s establishment at least fourteen days prior to the prisoner’s conditional release date. Consideration of any relevant victim issues (including consultation with Victim Liaison officers) for licence purposes must take account of this timeframe.

PC28/2004 - Criminal Justice & Court Services Act 2000: Drug Testing as a licence condition and further guidance on licence procedures for short term offenders




Bedfordshire (Bedford), Devon and Cornwall (Torquay) Lancashire (Blackpool), London (Hackney), Merseyside (Wirrall), North Wales (Wrexham and Mold) Nottingham (City), South Yorkshire (Doncaster), Staffordshire.

PC28/2004 - Criminal Justice & Court Services Act 2000: Drug Testing as a licence condition and further guidance on licence procedures for short term offenders


ANNEX B LIST OF TRIGGER OFFENCES Offences under the following provisions of the Theft Act 1968

section 1 section 8 section 9 section 10 section 12 section 12A section 15 section 25

theft robbery burglary aggravated burglary taking a motor vehicle or other conveyance without authority aggravated vehicle taking obtaining property by deception 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 section 5(2) section 5(3)

restriction on production and supply of controlled drugs possession of a controlled drug possession of a controlled drug with intent to supply

PC28/2004 - Criminal Justice & Court Services Act 2000: Drug Testing as a licence condition and further guidance on licence procedures for short term offenders








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).

Probation Officer Signed: Name: Senior Probation Officer (or Team Manager) Signed: Date: Tel:

PC28/2004 - Criminal Justice & Court Services Act 2000: Drug Testing as a licence condition and further guidance on licence procedures for short term offenders