EXPEDITED LISTING AND NOTIFICATION OF HEARING IN COMMUNITY PENALTY BREACHES

PURPOSE This circular is issued jointly by the Department for Constitutional Affairs (HMCS from 1st April 2005) and the National Probation Directorate (NPD). It requires Magistrates’ Courts and probation areas to establish local agreed processes to speed up procedures for resolving breaches of community penalties. This circular does not refer to breaches that have to be heard before the Crown Court. ACTION Probation Chief Officers, Justices’ Chief Executives and HMCS Area Directors should review the contents of this circular and aim to ensure that appropriate local agreements are in place by 4th April 2005 or as soon as possible after that date. Probation Chief Officers should provide the NPD through their Regional Manager, with a short progress report by 22nd March 2005 and JCEs/HMCS Area Directors should similarly advise Joyce Stewart (details below) by the same date on the progress with implementation. SUMMARY Although there has been some progress over the last year, there is still more to be done by the courts and local probation areas to improve the end to end enforcement process. This circular focuses on two main areas – first the requirement for courts to provide sufficient and weekly hearing times, and second, notification to the offender of the hearing date by probation. It has been agreed that the first hearing date should not be any later than 20 working days after the second unacceptable absence. The intention is that breaches should be processed quickly and resolved at the first hearing whenever possible subject to judicial decision. For 2005/06 Local Criminal Justice Boards will be set an end to end target thereby emphasising the role of both organisations in resolving breach cases. This will focus on maximising the number of cases resolved within 25 working days of the second unacceptable absence. Further detailed guidance on this will be issued shortly. This circular also provides some guidance on the criteria to be used by offender managers in deciding whether or not to make an immediate application for a warrant. RELEVANT PREVIOUS PROBATION CIRCULARS PC24/2000, PC17/2004, PC43/2004 CONTACTS FOR ENQUIRIES Ged Bates, Regional Manager West of Midlands Region, NPS Tel 0121 248 6577 Mobile 07818 016458 Email: ged.bates@homeoffice.gsi.gov.uk Joyce Stewart, Head of Improvement Initiatives Team, Enforcement Programme, Tel 0207 210 0446 Email: Joyce.Stewart@DCA.gsi.gov.uk

Probation Circular
REFERENCE NO: 13/2005 ISSUE DATE: 21 February 2005 IMPLEMENTATION DATE: Direct listing arrangements for breach to be in place in all areas by 4th April 2005 EXPIRY DATE: February 2009 TO: Chairs of Probation Boards Chief Officers of Probation Secretaries of Probation Boards CC: Regional Managers Board Treasurers DCA AUTHORISED BY: Roger McGarva, Head of Regions and Performance Unit ATTACHED: Joint DCA/NPS Protocol for Expedited Listing

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

DCA/HMCS & NPS JOINT PROTOCOL FOR EXPEDITED LISTING AND NOTIFICATION OF HEARING IN COMMUNITY PENALTY BREACHES
Introduction Both the NPS and the courts have been working closely together to improve performance and the purpose of this circular is to focus on how further improvements can be made through more effective listing and notification of breach hearing processes. The latest performance figures for NPS indicate that 87% of relevant offenders have enforcement action initiated within 10 working days as required by National Standards; in 1999 it was just 44%. Figures for compliance performance have also shown an encouraging improvement. Magistrates’ Courts have a target that 75% of warrants are completed within 28 calendar days for adults (14 days for youths) of issue. To date performance stands at 47%, clearly below the standard but much improved on the out turn for 2003/04 that stood at 37%. However, the current end to end process can still be very protracted, with long gaps between the decision to breach, the offender’s appearance in court and final resolution of the case. Ministers want to see the process expedited. Local agreements to improve listing and notification processes will help to achieve this. Changes to Enforcement Procedures At present in most areas, where breach action is required, communication with offenders through standardised letters confirms that court proceedings will be commenced but normally gives no indication of the date for the hearing. A summons is issued subsequently but sometimes the date of the court appearance is several weeks ahead. A simple but significant change to this process is proposed. After local discussion between probation and courts to determine the best working arrangement, every court area should provide the probation service with a set weekly time on which breaches of community penalties can be dealt with. Local arrangements should be agreed through the local Criminal Justice Boards and Justices’ Issues Group. It is fully recognised that there is a major demand on court hearing times with associated targets for listing and therefore the process by which this is achieved will be dependent upon the size of the court, number of cases and other local issues. For example, in large courts this may mean the establishment of a specialist breach court on one morning or afternoon each week. In smaller courts it may be more appropriate to guarantee that breaches will be able to be heard during a particular morning or afternoon but not in a specialist breach court as such.

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When advising offenders that breach proceedings have been instigated, offender managers should instruct offenders under the standard conditions of their order to report to the local Magistrates’ Court on the next available breach hearing date (subject to at least 3 working days being allowed to prepare the case for prosecution). In essence the message to the offender will be: this is the second time you have failed to comply with your order, breach proceedings are now being instigated, under the conditions of your order you are instructed to report to the local Magistrates’ Court on Monday/Tuesday etc next week when your breach will be listed. The offender manager should then immediately liaise with the Listing Officer of the court, provide the details of the breach and the hearing date, and ensure that all appropriate information is formally laid before the court. (Annex B of Probation Circular 43/2004 provided details of the information required for presentation of breach cases at court). Of course it is important that all the necessary documentation is available so that the breach can proceed at the first appearance. To that end it may be unrealistic to instruct the offender to report to the court within too short a time scale. However, the hearing date should be no more than 10 working days after the decision to instigate breach and therefore no more than 20 working days after the relevant failure to comply. Laying of information and issue of summons Legal advice confirms that an offender manager can instruct an offender to report to the court building as part of their court order. In addition, the probation service will need to formally lay an information containing the allegation of breach before the court. Courts may still wish to issue a summons and the best option may be for the probation service to prepare the initial summons documentation and send this to the court for official processing and service on the offender. Local discussion should determine the best course of action to follow. Even if no summons has been issued however, and the offender fails to report to the court building, the breach case will still be listed and the probation service may decide to make an immediate application for a warrant without bail. This application would be on the grounds that the offender has failed to comply with their order on two separate occasions and has also failed to comply with the offender manager’s instruction to report to the court, in the knowledge that the breach would be listed for that day. Individual offender managers may decide it is appropriate to forewarn an offender in breach, that failure to report to court on the date of the breach hearing, will result in an application for a warrant being made. Immediate applications for warrants It is recognised that in some cases an immediate application for a warrant (bypassing the summons / first notification stage) is the most appropriate course of action if the risk of further offending is to be minimised. At present Staffordshire and Cambridgeshire are piloting arrangements to fast-track warrant applications and execution procedures for high risk offenders. Subject to formal evaluation during February 2005 the processes associated with this pilot will be rolled-out nationally.

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Ultimately, the following three criteria should be used to govern the offender manager’s decision of whether or not to apply for an immediate warrant: If the offender’s whereabouts are not known If the offender is considered to present a high risk of re-offending, including those designated within Prolific and other Priority Offender Schemes If the offender is considered to present a high or very high risk of harm, in these cases discussions within Multi Agency Public Protection Arrangements will need to inform the decision on the most appropriate breach process. In addition, of course, a warrant should be sought for offenders who have failed to report to the court as instructed whether by summons or following a direct instruction from their offender manager under expedited listing arrangements. As for summons cases, probation and courts should work closely to establish agreed procedures for more effective listing of warrant applications. It should be noted that the information provided to the court by the probation service as part of the warrant application can be very helpful to court enforcement staff in locating the offender. (Probation Circular 17/2004 has already provided guidance on this and a model proforma for use). Access to legal advice Offenders who breach their orders are free at any time to seek legal advice. There is little evidence to suggest that they are proactive in doing this under present procedures. It is not therefore anticipated that the proposed new arrangements will change the current position in terms of the proportion of offenders turning up in court without having had prior contact with a solicitor. Offender managers should confirm to the offender that they intend to proceed with the case at the first hearing and incorporate with this a written notice encouraging them to seek legal advice immediately. They should also advise the court at first hearing, that this advice was given. Local discussions between probation areas and courts should also consider this issue and briefings through court user groups, Justices’ Issues groups or other avenues may be helpful. Joint end to end target At present there could be high performance by both the probation service and the courts against their respective enforcement targets but still be many offenders whose cases are not listed for many weeks after the relevant failure to comply. Furthermore, these offenders may fail to attend court, have their cases subsequently adjourned (sometimes because the probation service is not ready to proceed) and ultimately succeed in delaying the conclusion of the proceedings. Home Office and DCA Ministers have agreed the need for a joint end to end performance target that addresses these issues. This is likely to focus on the proportion of breach cases that are resolved within 25 working days of the second unacceptable failure and will be in place for LCJBs from 2005/06. Further guidance will be provided on this shortly.

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In their work towards the achievement of this target, LCJBs will need to ensure that there is an appropriate and timely flow of information from the CPS to local probation offices. Another issue that may require local attention, is the confidence of probation staff when prosecuting breaches, to challenge adjournment applications by the defence. The NPD and DCA will be considering what action can be taken centrally to support this work. National Standards A revision process is underway to amend standards in the light of new legislation. These enforcement developments will be addressed as part of this process. Amended standard letters will be issued to probation areas once the review process has been completed.

February 2005

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