Probation Circular

• • • • • To inform areas of proposals to introduce drug-testing for PPOs on licence, as indicated in PC56/2004 To indicate the group of offenders to which the provisions will apply To make clear how licence conditions should be phrased and included in licences To give interim practice guidance, including how positive tests should be treated To establish the need for and likely scope of a national contract for drug-testing equipment and materials REFERENCE NO: 34/2005 ISSUE DATE: 29 April 2005 IMPLEMENTATION DATE: Immediate EXPIRY DATE: April 2010 TO: Chairs of Probation Boards Chief Officers of Probation Secretaries of Probation Boards CC: Board Treasurers Regional Managers AUTHORISED BY: Sarah Mann, Head of Interventions ATTACHED: N/A

Chief Officers and ACOs (for substance misuse and PPOs) are asked to note the contents, disseminate to relevant staff, and implement locally by commissioning appropriate testing arrangements. The relevant ACO (or equivalent) is requested to complete the attached questionnaire (Annexe D) urgently, by noon on Friday 13 May.

Provision was made in the Criminal Justice and Court Services Act 2000 for the drug-testing of offenders on community orders and licences convicted of a ‘trigger offence’. This was subsequently piloted in nine probation areas. The decision has been taken that drug testing should be implemented with immediate effect but only for post-custodial licensees who are classed by 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.

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

Robin Brennan, 020 7217 0916,

National Probation Directorate
Horseferry House, Dean Ryle Street, London, SW1P 2AW

1. 1.1 • • • •

To whom should the condition apply? 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 2

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

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


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

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


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 multiagency 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


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

Offences under the following provisions of the Vagrancy Act 1824: Section 3 Section 4 (begging)* (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


ANNEXE B - Form DT2 - drug testing






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: Name: Position:

Date: Tel:

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


Drug testing for PPOs on licence Starts No. of PPOs released on licence with a trigger offence (a) No. of PPOs with a trigger offence and a licence condition (b) Transfers-in of PPOs with trigger offence and licence condition (c) Total starts (PPOs with conditions) d = b+c Proportion of PPOs with trigger offence who have conditions (b/a x 100) Terminations Licence completed (e) Recalled to prison for failing tests/not engaging in treatment (f) Recalled to prison (other reason) (g) Lost PPO status/condition deleted (h) Offender died (j) Transferred out (k) Total terminations (PPOs with conditions) e+f+g+h+j+k = m Current caseload of PPOs with conditions n Testing and treatment Total number of tests carried out (p) Number of positive tests (q) Proportion of all tests which are positive q/p x 100 Number of licensees engaged in treatment Average tests per month, per offender p/n x 100 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. 100 10 10.0%
See note 12 See note 11 See note 6 See note 7 See note 8 See note 9 See note 10 See note 1 See note 2 See note 3 See note 4

20 2


See note 5


0 10


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



1 1.1 1.2 1.3

AREA DETAILS NPS Area ACO with lead responsibility for this initiative. Contact Details Tel no: E-mail Address:

2 2.1 2.2 3 3.1 3.2

TESTING ARRANGEMENTS Please confirm when testing arrangements will be in place to carry out the testing of this group of PPOs. What testing method do you intend to use for this group? TESTING VOLUMES How many PPOs convicted of trigger offences and serving/released from custodial sentences does your Area have? How many do you expect to have on licence and eligible for a drug-testing condition at any one time? PROCURING TESTING RESOURCES 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). 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? 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.

4 2.1

2.2 2.3

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