Probation Circular

INTERMITTENT CUSTODY
PURPOSE
To provide guidance on Intermittent Custody in the context of the other CJA 2003 sentences and provide an update on implementation. REFERENCE NO: 53/2005 ISSUE DATE: 14th July 2005 IMPLEMENTATION DATE: Immediate EXPIRY DATE: 14th July 2010 TO: Chairs of Probation Boards Chief Officers of Probation Secretaries of Probation Boards CC: Board Treasurers Regional Managers AUTHORISED BY: Richard Mason Head of OASys and CJA unit ATTACHED: Annex A: List of Participating Areas Annex B: Enforcement issues Annex C: Specimen PSR

ACTION
The Chiefs of the areas in which Intermittent Custody is live – see Annex A – are asked to disseminate this Circular to relevant staff and implement the guidance it contains.

SUMMARY
Intermittent Custody was the first of the sentences in the 2003 Criminal Justice Act to be implemented: pilots involving two prisons, HMP Kirkham (male offenders) and HMP Morton Hall (female offenders), began in January 2004. Three further probation areas – Bedfordshire, Cambridgeshire and Hertfordshire - joined Morton Hall’s catchment area on 20 June. Intermittent Custody allows offenders to complete custodial sentences of less than 12 months in short blocks at the weekend or during the week rather than in one continuous period. Offenders are on licence between the custodial periods. The intention is that this approach will avoid some of the negative outcomes that can accompany even a short period of custody such as loss of employment or accommodation, while the punitive weight of the sentence remains the same.

RELEVANT PREVIOUS PROBATION CIRCULARS
This Circular replaces PCs 61/2003 and 7/2004.

CONTACT FOR ENQUIRIES
Dick Weber: Andy Howe: Adrian Wight: 020 8774 0236 020 8760 1828 020 7217 8047 NOMS Community Integration Unit NOMS Community Integration Unit NPD CJA Unit

Community Integration Unit are responsible for the Intermittent Custody project. Further contacts are given at the end of the Circular.

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

INTERMITTENT CUSTODY - GUIDANCE
1 Intermittent custody was the first of the sentences in the 2003 Criminal Justice Act to become operational, albeit initially on a pilot basis. Since January 2004 the sentence has been running at two intermittent custody centres: HMP Kirkham, near Preston, Lancashire, for men; and HMP Morton Hall, in Lincolnshire, between Newark and Lincoln, for women. 2. With the exception of Custody Plus, which is due for implementation in Autumn 2006, the remaining CJA sentences were implemented on 4 April this year. 3. Intermittent custody is a variation on Custody Plus intended to avoid some of the negative outcomes that can accompany even short periods of custody, such as loss of employment, accommodation and/or family break-up. The punitive weight of the sentence is the same as Custody Plus but the custodial periods are served, not in one continuous period but in short blocks at the weekend or during the week, with the licence period running throughout the sentence. For example, the overall sentence could be 28 weeks (imposed in the Crown Court) within which time 21 days custody must be served over seven weekends. Once the final custodial block of the sentence has been completed, the offender will remain on licence until the end of his or her overall sentence. 4 • • • • Additional provisions apply to intermittent custody: the offender must consent to the sentence; there is little point sentencing to intermittent custody an offender who will simply refuse to turn up for a scheduled custody period or comply with licence conditions; the court must have consulted an officer of a local probation board (in practice the PSR should identify whether or not the offender is suitable for intermittent custody); immediately before imposing the sentence the court must ensure that there is suitable prison accommodation available for the offender during the custodial periods, ie that there is a bed available at an Intermittent Custody centre; and the offender must have suitable accommodation available to him/her during the licence periods.

Length of intermittent custody sentences
5 Under the provisions of the Act, the same maximum and minimum periods of custody and sentence length apply to both Custody Plus and intermittent custody. This is predicated on magistrates’ sentencing powers being increased so as to allow them to impose custodial sentences of up to 12 months in respect of any one offence, and to impose a custodial term of 65 weeks in respect of two or more offences to be served consecutively. The SGC Guidelines consider that the demands of an intermittent custody sentence are generally considerably greater than for a custodial sentence to be served immediately in full. The guidelines state that once a court has decided that an offender should be sent to prison and has determined the length of the sentence, the overall length of the sentence should be reduced because it is to be served intermittently. 6 The proposed increase in magistrates’ sentencing powers has not been introduced to coincide with the start of the pilots of intermittent custody but instead is planned to be introduced at the same time as Custody Plus. As a result, it was necessary to develop secondary legislation to allow intermittent custody to be imposed by magistrates within their current sentencing powers. Under these arrangements the period of custody may be between 14 and 45 days, and the licence period can be any period between a minimum of 14 weeks and whatever takes the sentence as a whole to not more than 26 weeks. 7 • The sentences of intermittent custody that can currently be imposed are as follows: Magistrates’ Courts - for any one offence the minimum overall sentence is 14 weeks and the maximum overall sentence is 26 weeks. Within the overall sentence, the minimum custodial element is 14 days and the maximum custodial element is 45 custodial days. For two or more consecutive sentences of intermittent custody the total term must not exceed 52 weeks, and the total number of custodial days must not be more than 90 days. Crown Court - for any one offence the minimum overall sentence is 28 weeks and the maximum overall sentence is 51 weeks. Within the overall sentence, the minimum custodial element is 14 days and the maximum custodial element is 90 days. For two or more consecutive sentences of intermittent custody the total term must not exceed 65 weeks, and the total number of custodial days must not be more than 180 days.

8 The sentencing court will specify when the custodial days must be served. Weekend intermittent custody will normally run from Friday evening to Sunday evening and will count as three custodial days. Weekday intermittent PC53/2005 – Intermittent Custody 2

custody will normally run from either Monday morning to Thursday afternoon, or Tuesday morning to Friday afternoon. Each of these periods will count as four custodial days. 9 Offenders sentenced to intermittent custody serve the full number of custodial days; there is no remission. For offences committed before 4 April 2005, any days spent by the offender remanded in custody will count against the custody days imposed by the court. For offences committed on or after 4 April 2005, section 240 of the Criminal Justice Act 2003 will apply and it will be for the court to direct the number of days spent by the offender remanded in custody which will count against the custody days imposed by the court. 10 In all cases, the custodial days must be completed within the term of the sentence, ie the licence period. For example, it will not be possible to impose 45 custodial days to be served at weekends within a total sentence of 14 weeks because the custodial period will take 15 weeks (at three days per weekend) to be completed.

HDC
11 Offenders serving intermittent custody are eligible for Home Detention Curfew in exactly the same way as those serving full-time custody. There is likely to be a strong presumption of their suitability for HDC. 12 To be eligible for HDC an offender must be serving a sentence of at least 42 custodial days and must have completed at least 28 of those days or at least one half of the total number of custodial days in the sentence, whichever is the longer. This means that offenders on intermittent custody must have served at least 28 days before they can obtain HDC. It is not until the offender is sentenced to 56 custodial days or more that HDC can apply at the halfway point of the sentence. 13 HDC days for offenders on intermittent custody are served intermittently, so they will be on HDC licence only on those days when they would otherwise have been serving custodial days. Such offenders will remain tagged, but the curfew will be monitored only on the relevant days. As in all other cases, monitoring and enforcement of the HDC licence will be the responsibility of the electronic monitoring contractor.

Scope of the pilots
14 There are currently two intermittent custody (IC) centres available; these are at HMP Kirkham for male offenders and HMP Morton Hall for females. There are 40 beds available at each centre, providing a maximum capacity of 80 places (40 at weekends and 40 on weekdays) at any one time. The Morton Hall catchment area is necessarily large to try to achieve the maximum throughput of offenders. 15 A list of the participating probation areas is attached at Annex A. All the courts within these areas have been authorised to impose intermittent custody orders, but courts outside the participating areas do not have that authority and cannot sentence an offender to intermittent custody. 16 It follows that courts in the Kirkham catchment area will be able to impose intermittent custody orders on male offenders who will be supervised by one of the probation areas which form the male catchment area. Similarly, courts in the Morton Hall catchment area will be able to impose intermittent custody orders on female offenders who will be supervised by one of the probation areas which form the female catchment area. 17 On 20 June the Morton Hall catchment area was extended to incorporate all courts in Bedfordshire, Cambridgeshire and Hertfordshire probation areas. (These areas were notified of this in advance). 18 Plans for the further expansion of intermittent custody may be announced in due course, but full roll-out of the sentence, on a national basis, is unlikely to be before implementation of Custody Plus. Which offenders are suitable for intermittent custody? 19 Intermittent custody is intended to allow an offender to maintain any employment, education, accommodation, caring responsibilities and family ties in the community. These are factors known to reduce the risk of re-offending. Offenders with caring responsibilities may opt for intermittent custody if they find it easier and/or preferable to make

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alternative caring arrangements over weekends through family and friends, rather than have, for example, children taken into care whilst full time custody is served. 20 Intermittent custody is available for those offenders whose offence, or the combination of the offence and one or more offences associated with it, is so serious that the custodial threshold is crossed and where suspending the custodial sentence or imposing a non-custodial sentence have been ruled out. Any PSR on a case where a public protection sentence was possible would also need to address the ‘significant risk of serious harm’ issue first. As the SGC guidelines make clear, passing the custodial threshold does not in itself mean that a custodial sentence is inevitable and custody can still be avoided in the light of personal mitigation or where there is a suitable intervention in the community which provides sufficient punishment whilst addressing the rehabilitative needs of the offender. If a custodial sentence is unavoidable, the court may first consider a Suspended Sentence Order before deciding whether or not an immediate custodial sentence should be served intermittently. The SGC guidelines also say that public safety should always be the paramount consideration in deciding whether or not intermittent custody is appropriate and that the sentence should be for the shortest time commensurate with the seriousness of the offence. Intermittent Custody is dealt with in the SGC guideline New Sentences: Criminal Justice Act 2003. 21 The report writer will consider any purposes of sentencing indicated by the court and then make use of OASys to assess the likelihood of reconviction. Assessment will be at the PSR stage and should be addressed in Standard Delivery PSRs. A Fast Delivery PSR may be used if there is a current or recent OASys assessment covering the relevant issues. Guidance cannot be prescriptive as each case needs to be considered on its merits. However, a specimen PSR is attached at Annex C which indicates the issues which will assist the court in coming to a decision on whether IC would be an appropriate custodial sentence. Meanwhile, the following considerations must be borne in mind: • • • • • • • • the nature of the index offence and any previous offences. The offender should not present a risk of harm to the public such that he or she needs a period of immediate continuous custody; suitable offenders will normally present a low risk of serious harm, but some medium risk offenders will also be suitable; sex offenders are not suitable for intermittent custody; offenders convicted of violence or burglary offences may be suitable, depending upon the outcome of the risk assessment; the offender must have suitable accommodation in the community for the licence periods; the offender’s health and any substance misuse. Offenders with serious drug/alcohol dependency and/or at an early stage of detoxification or with serious mental health problems are not suitable; the criminogenic needs of the offender (see paragraph 30 below for further details of the IC centre regimes); and the offender’s attitude to intermittent custody. The offender’s consent is required for the sentence to be imposed (see paragraph 8, above).

22 There may be other practical considerations. The offender must be able to travel to and from the IC centre within a reasonable time. Staff at the IC centres will have the necessary knowledge to advise probation areas on travelling times. Arrangements will be made at each IC centre to provide transport to and from the nearest train and bus stations to the prison. 23 Practical issues involving travel arrangements to/from an IC centre must be discussed with the offender. Offenders have coped well with journeys, which were sometimes complex and demanding. They have accepted a degree of inconvenience in this aspect of the sentence in order to secure the positive benefit of maintaining their employment or caring responsibilities in the community. 24 There may be cases, particularly involving female offenders, in which a court would wish to impose an IC order but is reluctant to do so because of serious concerns about the complex or time-consuming nature of the travel arrangements. Before imposing an alternative sentence the court should raise these concerns with the relevant IC centre which may be able to identify alternative travel options, including the use of Probation Service volunteer drivers where available, which would simplify the offender’s journey and make IC a viable option. 25 As with approved premises it will be necessary to check that there is a place available at the IC centre. The PSR must include a recommendation on whether the offender is suitable for Weekend or Weekday custody, advice on arrival and departure times and an initial indication of whether a place is likely to be available.

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Licence conditions and interventions 26 Standard licence conditions will apply to intermittent custody sentences, but following recent legal advice, the court must impose as a licence condition at least one of the additional requirements set out in section 182(1) of the Act. The additional Requirements are: • • • • • • • • unpaid work requirement; activity requirement; programme requirement prohibited activity requirement; curfew requirement; exclusion requirement; supervision requirement; and attendance centre requirement (for offenders aged under 25).

27 It will be for the PSR writer to advise the court of the most appropriate licence condition(s). However where the court does not wish to make an IC sentence too onerous, it can be advised that a supervision requirement alone might be a sufficient additional requirement. In practice, this will ordinarily amount to no more than the standard licence conditions which will apply to all new sentences. 28 Different requirements can be fulfilled within different time limits so that requirements can be sequenced during the sentence. It must be borne in mind, however, that the current constraints on magistrates’ sentencing powers mean that there may be little time to work with the offender in the community. PSR writers will need to take account of this in considering recommendations on the content of the sentence in order that the requirements can, in practice, be delivered. As the SGC Guideline says “ the practical workings of an intermittent custody sentence will effectively rule out the use of the longer or more intensive community requirements. Requirements such as curfews, prohibited activity and exclusion requirements might be appropriate in particular cases”. 29 Under the provisions of the Act an accredited programme may be imposed only on the recommendation of the National Probation Service. 30 The nature of the sentence means that most interventions are delivered while the offender is in the IC centre. For example, offenders may be in full time employment during the week and in custody at the weekend, or in custody during the week and in the community at weekends and the licence period may not extend significantly beyond the end of the custodial phase. 31 In relation to an exclusion requirement, pilots for exclusion orders, requirements and conditions using satellite tracking technology to monitor compliance began to operate in September 2004. The pilots are operating in three probation areas (Greater Manchester, Hampshire, West Midlands) and are focussing on prolific offenders, domestic violence offenders and sex offenders. Outside the pilot areas, exclusion as a licence condition may be imposed but electronic monitoring is not available to monitor compliance. The level of seriousness of an exclusion requirement as part of an IC sentence will be determined by the court. But in the light of the overall punitive weight of the intermittent custody sentence, as a guide a PSR should normally propose a low/medium level of restriction (as defined in the National Implementation Guide) of 2-6 months, with the emphasis at the lower end of this restriction. 32 The IC centre regimes focus mainly on the provision of education and employment skills. This will primarily benefit offenders who are unemployed, and likely to be in custody during the week, but it can also assist employed offenders to improve their skills and widen their job opportunities. Interventions ordinarily include: • • • • • • • • unpaid community work, possibly on ROTL, which may incorporate a guided skills element similar to the Unpaid Work requirement in the community order - for Weekend offenders there will be a maximum of one session (5 hours) of community work, and for Weekday offenders a maximum of two work sessions during each custodial period; basic skills and mainstream education provision through local education providers and Learn Direct; access to Jobcentre Plus staff and information mentoring; community health programmes such as healthy lifestyles, sexual health, positive parenting, first aid courses; CARATS; general help and advice in accessing information services; and one-to-one work with probation staff.

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33 Given that unpaid work will form part of the IC centre regime and that custody primarily satisfies the punitive element of the sentence, there are likely to be few cases in which unpaid work as a licence condition is appropriate.

Exclusion requirement and victim contact
34 As stated above, the power to impose an exclusion requirement is available to the courts. But the power to impose an electronic monitoring requirement to monitor compliance is only available to the courts in the three pilot areas listed in paragraph 31. 35 Exclusion Requirements where the aim is to exclude the offender from an area associated with a victim are unlikely to be imposed in relation to intermittent custody given that public safety is paramount in determining whether or not the sentence is appropriate. Other than for offenders sentenced to over 12 months imprisonment there is no statutory requirement to contact the victim with regard to any exclusion requirement, but this would be good practice where there is a direct victim and the exclusion zone is intended to protect that person. In these circumstances the PSR writer should consider such contact, where possible. It is recommended that the PSR writer should seek advice from their Victim Liaison Unit on the appropriate way to handle this contact and it must be in keeping with the Lord Chief Justice’s Practice Direction of 16th October 2001 meaning that information gained from contact with the victim cannot be used in the PSR. Post sentence, the case manager should ensure that the supervision plan addresses how communication with the victim about the sentence is to be arranged. Such arrangements could be modelled on those in place for victims where the probation service has statutory duty of contact. Information about the current victim contact scheme and licence conditions/exclusion zones is contained in Part I of PC 28/2003 “Victim Contact Work: Guidance on Recent Court Judgments” and paragraphs 6.26 to 6.30 of PC 29/2003 “Victim Contact Work: Revised Sections 6 (Stage 2) and 9 of the Guidance to areas. Queries about the victim contact arrangements should be directed to the local victim liaison officer. Consent to intermittent custody 36 Intermittent custody can be imposed only where the offender consents to the sentence. The sentence must be explained to the offender at the PSR interview and the practical arrangements such as travelling, child care, etc will need to be explored. A revised leaflet will shortly be issued to give to the offender about the sentence and it is strongly suggested that this information is attached to the PSR for the benefit of the sentencer. An electronic version of the leaflet will be made available so that areas can adapt the format as necessary for inclusion with the PSR. Benefit Payments 37 When the Intermittent Custody pilots began in January 2004, agreement had not been reached with the Department for Work and Pensions on the benefits entitlement of unemployed IC offenders. Subsequently, an agreement was reached with DWP, which will preserve the pre-existing entitlements of IC offenders provided that there has been no change in other relevant circumstances. In most cases, the offender will retain benefits entitlement on a pro rata basis, depending upon the number of nights spent in custody each week. It is vital that the IC offender contacts their local benefits office as early as possible in order to clarify their on-going level of entitlement. Ideally, this contact should take place before sentence, so that the offender will be able to make an informed decision on the merits of IC, including the impact of the sentence on the amount of benefit which will be paid. Preservation of benefits eligibility means that IC is a genuine option for those unemployed offenders who wish to maintain family and community contact on an intermittent basis. 38 The transport costs of IC offenders will be paid by the Prison Service and, where necessary, travel warrants will be issued. (see paragraph 46 and 47 below) Sentencing and the start of the sentence 39 The sentencer must confirm the offender’s consent at the time of sentencing. The court must also confirm that a place is available at one of the two IC centres available for the pilots, though, in practice, they will probably look to the probation service to provide such confirmation. 40 It is possible that a place might not be available at an IC centre for an offender on whom the court proposes to impose a sentence of Weekend custody. In this situation, it would be appropriate to raise with the offender the option of Weekday custody as an alternative to a sentence of full-time custody. It is unlikely that Weekday IC would fully meet an offender’s needs in relation to employment, education and (possibly) caring responsibilities, but it would enable them to maintain family and community links.

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Arrival and Departure times 41 Most offenders receiving Intermittent Custody will not go straight into custody but will be released on licence until the start of the first custodial period. The courts will need to state the exact date and time at which the offender must present himself or herself at the IC centre and define when that first custodial period will begin and end. This will set the custodial pattern for the custodial and community periods during the sentence. Dates and times will need to take into account travelling times to and from the Intermittent Custody centre and any responsibilities of the offender. As a guide, the report time for weekday Intermittent Custody will normally be 12 noon on the Monday or Tuesday with release usually at 2pm on the Thursday or Friday. For weekend Intermittent Custody the report time will normally be on Friday between 5.00pm and 9.00pm and release time usually between 4.00pm and 6.00pm on Sundays. Copy of licence 42 In most Intermittent Custody cases offenders will begin their sentence with the first period of licence. This will begin as soon as the offender has been released from the court. Once the sentence has been announced, therefore, the offender must be given a copy of the licence (which covers the period between sentence and the offender’s initial reception at the Intermittent Custody centre) and a map of any exclusion zone, before leaving the court. The court will need to contact the Intermittent Custody centre to provide the details of the sentence so that the licence can be prepared and faxed back to the court. There will be a standard format for the licence to minimise any delays in the process. A short guidance note will be faxed with the licence providing advice on handing over the document to the offender. The court will need to ask the offender to wait in the court building until documentation has been received. 43 Once an intermittent custody sentence has been imposed it is vital that the offender is not held in a cell or in any form of custody while the administrative arrangements are completed. This is because any time spent in custody by the offender, even a few minutes, will count as a custody day when calculating the custodial element of the sentence. 44 The conditions of the licence will need to be explained clearly to the offender by probation staff and a copy of the licence signed by the offender to that effect. Should the offender refuse to sign the licence a member of probation staff or the court staff will need to sign the licence and write on it that the effect of the document has been explained to the offender but that he/she refused to sign it. The licence then needs to be counter-signed by either another member of probation staff or one of the court staff. 45 Once the licence has been signed the offender must keep a copy of the licence and the court staff or probation staff must fax a copy to the Intermittent Custody centre before sending the original by first class post. Thereafter, the Intermittent Custody centre will issue a licence to the offender to cover the rest of the community part of the sentence. When the offender leaves court he/she will have the licence issued by the IC centre and a copy of the court order containing the precise details of the sentence including a map of any exclusion area. Fares 46 It will be necessary for the first journey made to the Intermittent Custody centre to be funded by the Probation Service and subsequently reimbursed by the Prison Service. Probation staff should issue travel assistance in the usual way, which may vary between areas but would include bus tokens, travel warrants or, when circumstances require, small amounts of money. In most cases this will need to be done at the court when the licence is handed over and explained. However, there may be cases where an offender is sentenced to weekend custody but will not be required to attend the centre until the following week, in which case the fare could be issued at a subsequent probation appointment prior to the first journey to prison. Thereafter, the Prison Service will issue the fares to and from the centre each week. 47 Arrangements will need to be made by each area with the relevant IC centre for reimbursement. In some areas a weekly or monthly return might be appropriate whilst some areas may seek individual repayments. Local finance officers should contact the finance officers at the Intermittent Custody centres to agree the procedures. Required level of contact on licence 48 National Standards for the minimum levels of contact with the offender on licence will apply. In the case of IC, this will require minimum contact as follows: 49 Contact with the offender on the day of sentence may count as the first appointment. 7

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50 Thereafter, arrangements should be made for weekly contact during the first sixteen weeks of the overall sentence and then redefined following an OASys review. However, contact should remain at least 4-weekly throughout the latter part of the sentence. 51 Arrangements must be made for the offender to be seen by the supervising officer immediately following the end of the custodial phase of the sentence and, thereafter, at least 4-weekly until the end of the overall sentence. Arrangements may also have to be made to see the offender at additional times in order that the supervision plan and licence conditions are fulfilled. The need for additional contact will be based on the supervising officer's professional judgement of the offender's response to the sentence and on information from other relevant sources, including reports on the offender's custodial behaviour from the IC centre. Case management 52 During the custodial phase of the sentence, case management will be the responsibility of probation staff (the offender manager) in the home probation area. This will include responsibility for preparing and updating OASys, and formulating the sentence plan. Both of these tasks, along with managing the delivery of interventions, will need to be done in close collaboration with staff at the IC centre. 53 There are computer terminals at the IC centre giving access to the probation intranet for the exchange of OASys and other information. 54 Once the custodial phase of the sentence is over, it will be necessary for the home probation area to review the supervision plan and, where appropriate, consider an exit strategy for the offender. 55 Decisions on breach of licence conditions will remain with the supervisor of the licence in the home probation area. This is covered in greater detail immediately below. Variation of Licence 56 It is possible to request that a licence condition or court requirement be varied and/or deleted or an additional condition or court requirement be inserted. Requests to vary, insert or delete additional court requirements must be made by the offender manager direct to the appropriate court (see paragraphs 4-12 of Annex B). 57 The Secretary of State has the power to vary, insert or delete standard or additional licence conditions. In practice, it is considered extremely unlikely that there will be a need to alter any of the standard conditions of the licence, but it may be deemed necessary to include, vary or delete one or a number of the additional licence conditions. 58 The Governor of the Intermittent Custody centre has delegated authority to vary, insert or delete the majority of the prescribed additional conditions, save for requests relating to Electronic Monitoring as a licence condition, Drug Testing as a licence condition and those concerning exclusions zones. Requests relating to electronic monitoring and drug testing should be submitted to Laura Gould at the Release and Recall Section of the Home Office. Requests in respect of exclusion zones (which must be necessary and proportionate) must be accompanied by a map, clearly defining the area from which the offender is to be prohibited, reasons for the request, details of the index offence and previous convictions. These should be referred to Simon Holmes who is also based at the Release and Recall Section. Simon can be contacted on 020 7217 5389. Laura Gould can be contacted on: 020 7217 2063. The fax number for both Simon and Laura is: 020 7217 5223. Most requests can be dealt with quickly if necessary, but the normal turn-around time is five working days. In the case of Electronic Monitoring and Drug Testing the request should be submitted as soon as possible after the sentence in order to give time for due consideration and the necessary checks to be made. Requests should be submitted in accordance with previously issued instructions, on either an EM1 or DT1. 59 In the very unlikely event of a request to vary or delete one of the standard conditions this must also be referred to Simon Holmes (020 7217 5389) for consideration. Enforcement and variation of sentence 60 Staff at the IC centre will take decisions about unacceptable behaviour at the IC centre, failure to arrive at the centre for a custodial period, breach of ROTL and absconding from custody.

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61 Prison Rules apply to offenders in IC centres and disciplinary measures can be taken to deal with unacceptable behaviour in custody. But where the offender is deemed no longer suitable for intermittent custody on the grounds of unacceptable behaviour an application must be made to the appropriate court for a variation of the sentence to full-time custody. 62. • • The “appropriate court” means: where the sentence was imposed by the Crown Court, any Crown Court authorised to impose intermittent custody sentences; where the sentence was imposed by a magistrates’ court, a magistrates’ court within the same Petty Sessional Area of the sentencing court and which is itself authorised to impose intermittent custody sentences. Where possible, it is good practice to apply to the sentencing court.

63 There will need to be close liaison between staff at the IC centre and their colleagues in the home probation area during the decision-making process leading to an application to vary an offender’s sentence. However, it will be the responsibility of staff at the IC centre to prepare the case for presentation at court. This will include the written grounds for the case, including a detailed account of the circumstances that have led to the application to court for amendment and any actions taken to discipline the offender prior to the application. Staff at the IC centre will also liaise directly with the appropriate court to secure the earliest possible date for the hearing. 64 Staff at the IC centre must notify colleagues in the home probation area of the date of the hearing and then pass on all the relevant papers to the home probation area, which will be responsible for ensuring that the case is presented at court. There must be close liaison between the IC centre and the offender’s home probation area to ensure that the case is ready, the home probation area is informed at the earliest opportunity of the court date and the papers for the hearing are received in good time. 65 Any offender who is returned to custody after being found unlawfully at large will be returned to the closest available prison, not the IC centre. The circumstances of the offender’s absence will be reviewed by the Governor of the holding prison and the manager at the IC centre. A decision will be taken either to return the offender to the IC centre to resume the intermittent custody sentence, or to apply for variation of sentence to full time custody. An application to the court for variation must be made within 72 hours of the offender’s return to custody and the same process would apply as set out above. Once an application has been made for variation of sentence to full-time custody, the offender will remain in prison, on a full-time custody basis, until the court takes a decision on the application. Issues involving variation of licence and general enforcement matters 66 Full details of sentence enforcement arrangements are contained in Annex B to this circular.

67 Responsibility for deciding whether or not the offender has breached the licence conditions of the sentence will rest with the supervisor of the court licence in the home probation area. National Standards on enforcement will apply and the home probation area must inform the IC centre of any actions taken at the earliest opportunity. 68 If the Release and Recall Section decide to recall the offender to custody he or she will be returned to the nearest local prison. The Parole Board will review the recall decision and set a date for release or further review, depending on the length of sentence and the particular circumstances of each case. 69 Legal advice on breach of licence conditions and recall procedures is that an IC offender’s licence can be revoked (and the offender recalled to custody pending a review by the Parole Board) only during the currency of the specific licence period when the alleged beach occurred. Once an IC offender returns to the IC centre for his/her next custodial period the licence on which they were released ceases to exist and cannot be revoked. 70 It follows that if an offender is discovered to be in breach of his/her licence conditions, to the extent that they are no longer suitable for intermittent custody, or commits a further offence which similarly makes them unsuitable for intermittent custody, any application for recall must be make to RRS as quickly as possible to enable a decision to be made before the offender’s return to the IC centre at the end of the licence period. 71 Where it is not possible to submit a recall application before the offender’s return to the IC centre (perhaps because details of further offences are not discovered in time), it will be necessary to apply to the appropriate court for a variation to full-time custody (see paragraphs 63-67, above).

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72 On the application of the offender or the responsible officer, in practice the supervisor of the court licence in the home probation area, it is also possible to apply for an amendment of sentence where the offender’s circumstances change. For example, where the offender loses or obtains a job, a variation may be sought to move to full time custody or to change the periods when custody is served. 73 Enforcement of the HDC licence rests with the electronic monitoring contractor, as with all other offenders on HDC. The contractor must inform both the IC centre and the home probation area of any enforcement action taken. 74 The decision on whether to recall to custody an offender in breach of their HDC licence rests with the Release and Recall Section. Where RRS decide to recall the offender to custody, the avenue of appeal will be to the Secretary of State. 75 An offender recalled to custody following a breach of their HDC licence will be required to complete any remaining custodial days on an intermittent basis, on the same pattern as their original custodial blocks. 76 In the event of a recall following a breach of an HDC licence the home probation area and the IC centre must immediately review the circumstances of the case to determine the need for an immediate application to vary the offender’s sentence to full-time custody. Reimbursement of court costs 77 In those cases in which the home probation area presents the case at court for variation of sentence on behalf of the Intermittent Custody centre following unacceptable behaviour in custody, the Prison Service will reimburse the legal costs incurred for contested cases in the magistrates’ courts and for all cases in the Crown Court. As above, local finance officers will need to contact establishment finance officers to set up the necessary arrangements.

General considerations
78 Intermittent custody is a new and innovative sentence which presents new issues in terms of offender management. It also provides learning about the management of custodial/community links, which will help to support the introduction of Custody Plus. This guidance cannot address all the circumstances that may arise and will be subject to review as the pilots progress and lessons are learnt from each case. It is especially important that: • • • probation staff give every consideration to intermittent custody in suitable cases so that we can establish the profile of such offenders and make maximum use of the new sentence; close co-operation and working is developed between the probation service, courts and IC centres; and that offenders are given appropriate support to manage the particular demands of the sentence.

Learning from the opening phase of Intermittent Custody
79 The expansion of intermittent custody will provide an opportunity to learn more about the practical application of the sentence, but the learning from the first 16 months of operation has included the following headline points: • • • • • • During the first 16 months of operation a total of 250 IC orders was imposed by courts involved in the pilots; The majority of orders have involved Weekend custody, but the agreement with DWP on benefits entitlement (see paragraph 40, above) has opened the way to increased use of Weekday IC for unemployed offenders No significant evidence has emerged to indicate that intermittent custody has led to net-widening (using IC in place of a community sentence) on the part of sentencers; Offenders have welcomed the opportunity provided by intermittent custody to maintain their responsibilities in relation to employment, education and caring. This positive response on the part of offenders has been reflected in a very high level of compliance. During the first 16 months, only five offenders failed to arrive for a scheduled custody period and only one offender had their sentence varied from intermittent to full-time custody on the grounds of unacceptable custodial behaviour; Offenders have coped well with the demanding nature of the sentence, particularly the discipline required to undertake weekly journeys to/from the IC centres. Even where the travel arrangements have been lengthy and arduous, offenders have been prepared to accept the inconvenience involved in order to maintain their employment and family commitments.

PC53/2005 – Intermittent Custody

10

Contact Details
Intermittent Custody Centres Kirkham: Telephone: 01772 675720 01772 675400 01772 675711 01522 666840 01522 666700 01522 666844 020 8760 1849 020 8760 1828 020 8774 0236 020 7217 2063 020 7217 5389 020 7217 5223 (Direct Line) (General Switchboard) (IC Centre Fax) (Direct Line) (General Switchboard) (IC Centre Fax) Margaret Farrow Andy Howe Dick Weber Laura Gould Simon Holmes (RRS Fax)

Morton Hall:

Telephone:

NOMS Headquarters:

Telephone:

Release and Recall Section

Telephone:

National Probation Directorate (CJA Unit) Telephone: 020 7217 8047 Adrian Wight

PC53/2005 – Intermittent Custody

11

ANNEX A

INTERMITTENT CUSTODY LIST OF PARTICIPATING PROBATION AREAS
The catchment areas for the pilots of intermittent custody based at HMP Kirkham (male offenders) and HMP Morton Hall (female offenders) are based in the following Probation Service areas: Kirkham Greater Manchester Lancashire Morton Hall Bedfordshire (from 20 June 2005) Cambridgeshire (from 20 June 2005) Derbyshire Greater Manchester Hertfordshire (from 20 June 2005) Humberside Leicestershire Lincolnshire Nottinghamshire South Yorkshire Staffordshire West Midlands West Yorkshire

All courts in the male catchment area are authorised to impose IC sentences on adult male offenders who will be supervised by either of the Probation Services which form the male catchment area. Similarly, all courts in the female catchment area are authorised to impose IC sentences on adult female offenders who will be supervised by one of the Probation Services which form the female catchment area.

ANNEX B

INTERMITTENT CUSTODY NOTE ON SENTENCE ENFORCEMENT

INTRODUCTION 1. The purpose of this note is to provide guidance on the enforcement process in relation to intermittent custody (IC) sentences to staff working in IC centres, home probation areas, the courts and other partner agencies. 2. The guidance is designed to cover a range of enforcement situations, including misbehaviour or lack of compliance in both the custodial and community setting. 3. The following situations are covered by the guidance: i. ii. iii. iv. v. vi. vii. viii. Late return for the start of a custodial period; Failure to arrive for a custodial period or failure to return from a period of release on temporary licence (ROTL); Unacceptable behaviour during a custodial period or breach of ROTL conditions; Offender commits a criminal offence during a custodial period or whilst on ROTL; Abscond from IC centre; Offender charged with further offence in the community; Offender breaches terms of IC order by failing to meet reporting/supervision requirements or any additional requirements contained in the order; and Breach of HDC licence.

Appropriate Court 4. In the context of this guidance, “appropriate court” means: i. Where an IC order was imposed by the Crown Court, any application for variation of sentence must be made to the Crown Court. There is no requirement to return to the sentencing court, although that would be good practice, but the application must be made to a court authorised to impose IC sentences; Where an IC order was imposed by a magistrate’s court, an application for variation of sentence must be made to a magistrate’s court which has been authorised to impose IC sentences and from within the same Petty Sessions area as the original sentencing court. Again, it would be good practice to apply to the sentencing court.

ii.

Intermittent Custody PC53/2005 Annex B Enforcement

Variation to Full-Time Custody 5. An application for a variation of an offender’s IC sentence to one of full-time custody will ordinarily be made as a response to misbehaviour on the offender’s part during the custodial element of the sentence. In addition, this procedure may be required following a failure to comply with a community aspect of the IC sentence which cannot be managed under the existing recall procedure. 6. The process for securing a variation to full-time custody requires close liaison between the IC centre, the home probation area and the court. The nature of the offender’s misbehaviour and its potential impact on other IC offenders may make it vital to secure the earliest possible hearing of the application. 7. In the case of an application for variation of sentence, a manager at the IC centre will prepare written grounds. The written grounds must provide a detailed account of the circumstances which have led to the application; including, where appropriate, details of alternative options which have been considered/tried in the light of the offender’s behaviour. 8. The manager at the IC centre will liaise directly with the appropriate court to secure the earliest possible hearing of the application. 9. Once the date of the hearing has been fixed, the manager at the IC centre will pass the relevant papers to the home probation area to present the case in court. 10. There must be very close liaison between the IC centre and the offender’s home probation area to ensure that the case is ready, the home probation area is informed at the earliest opportunity of the court date and the papers for the hearing are sent in good time. 11. Where the original IC order was imposed by the Crown Court, an application for a variation of sentence to full-time custody can be made direct to the appropriate Crown Court. There is no need to have the case remanded to the Crown Court by a magistrates’ court because the Crown Court can issue its own summons (Criminal Justice Act, 2003, Schedule 10, paragraphs 5 and 8). 12. Where an application for variation of sentence is made by the IC centre (on behalf of the Secretary of State) on the grounds of an offender’s misbehaviour, the offender will have to attend the court for the hearing. However, there may be cases in which the variation is by consent, effectively on the application of the offender. This might involve an application for a variation from Weekday to Weekend custody if an offender has gained employment, or a variation from IC to full-time custody where the offender no longer wishes to serve the sentence intermittently. In these latter situations, there would be no need for a summons or a full hearing at all and the application would be dealt with by the court, whether the Crown Court or a magistrates’ court) “on the papers”. ENFORCEMENT SITUATIONS WITHIN A CUSTODIAL CONTEXT 13. Offender is late returning to the IC Centre for the start of a custodial block. i. The offender may have an explanation for being late; it is important to check the veracity of any excuses.

Intermittent Custody PC53/2005 Annex B Enforcement

ii.

If the offender has no explanation or the explanation offered is not acceptable, the offender must not be charged under Prison Rules, which apply only after the offender has actually arrived at the IC Centre. The precise nature of each incident will determine the response in each case, but the immediate options are limited to action under the IEP scheme or a warning as to future conduct. Where an offender returns late, the responsible offender manager will need to be informed, as will the local Police Liaison Officer. In the case of repeated late arrivals or one particularly serious incident of late arrival, there will need to be discussion with the responsible offender manager about the possibility of an application to the appropriate court for a variation of sentence to full-time custody.

iii.

iv. v.

14. Offender fails to report to the IC Centre when expected for a custodial block or fails to return from a period of Release on Temporary Licence (ROTL). i. ii. iii. In the absence of an acceptable and verifiable explanation, the offender must be reported to the Police as unlawfully at large (UAL). When arrested the offender will be held in the nearest local prison. In the case of a ROTL failure, but not for a failure to report for a custodial block, the offender will be charged under Prison Rules, and the adjudication will be opened and adjourned. The Police will consider charging the offender under the Prisoner (Return to Custody) Act 1995. Other than in exceptional circumstances, the IC Centre will arrange for an application for a variation of sentence to full-time custody. The application must reach the appropriate court within 72 hours of the offender’s return to Prison Service custody. In the case of a ROTL failure, if the Police do not press charges, the hearing under Prison Rules will proceed.

iv. v.

vi.

15. Offender misbehaves in IC Centre or breaches temporary release (ROTL) conditions. i. ii. In the first instance, staff will encourage better behaviour and monitor progress. If no improvement takes place or the misbehaviour is sufficiently serious, IC staff will consider action under the Incentives and Earned Privileges scheme or a charge under Prison Rules. In particularly serious individual cases or as a final resort following continuing poor behaviour, an application will be made to the appropriate court for a variation of sentence to full-time custody.

iii.

Intermittent Custody PC53/2005 Annex B Enforcement

16. Offender commits criminal offence at IC Centre or whilst on temporary licence (ROTL). i. ii. iii. iv. 17. The offender will be charged under Prison Rules and the adjudication will be opened and adjourned. If they are not already involved, the matter must be referred to the Police for investigation and possible further charges. An immediate application must be made to the appropriate court for a variation of sentence to full-time custody. If the Police do not proceed with further charges, the hearing under Prison Rules will proceed.

Offender absconds from IC centre. i. ii. iii. iv. v. The offender must be reported to the Police as UAL. When arrested the offender will be held in the nearest local prison. On his/her return to Prison Service custody, the offender will be charged under Prison Rules, and the adjudication will be opened and adjourned. The Police will consider charging the offender with escaping from lawful custody. The IC Centre will arrange for an application for a variation of sentence to fulltime custody to reach the appropriate court within 72 hours of the offender’s return to Prison Service custody. If the Police do not proceed with a charge of escaping from lawful custody, the hearing under Prison Rules will proceed.

vi. 18.

Offender is charged with a further offence in the community.

19. Legal advice on breach of licence conditions and recall procedures is that an IC offender’s licence can be revoked (and the offender recalled to custody pending a review by the Parole Board) only during the currency of the specific licence period when the alleged breach occurred. Once an IC offender returns to the IC centre for his her next custodial period, the licence on which they were released ceases to exist and cannot be revoked. 20. If an offender is discovered to be in breach of his/her licence conditions or commits a further offence, they must be risk assessed to determine their on-going suitability for IC. If they are considered no longer suitable for IC, it follows that any application for recall must be made as quickly as possible to enable a decision to be made before the offender’s return to the IC centre at the end of the licence period. 21. The arrangements described below cover a situation in which an application for revocation of an IC offender’s licence takes place during the currency of the licence period when the alleged further offence has occurred.

Intermittent Custody PC53/2005 Annex B Enforcement

i. ii. iii.

The Probation Service will apply to the Release and Recall Section of the Home Office (formerly SEU) for the offender’s recall. If the offender is recalled, he/she will be arrested and returned to full-time custody. Once the offender has been returned to custody, the Parole Board will review the case. Their role is covered by paragraph 71 of PC 16/2005, which states: “The assumption is that, wherever possible, the Parole Board will look to rerelease the prisoner as soon as it is practicable and safe to do so. In making its decision, the Board will want to be satisfied that the arrangements for the offender’s supervision are sufficient to manage risk in the community in the future. Therefore, the risk management plan will play a critical part in determining when the prisoner is re-released.”

22. If the Parole Board determines that the recall decision was not justified, the offender will be released back on to IC, either to a period of custody, or to a period on licence, or, if all the custody days in the original IC sentence have been served since the recall, to a release licence which will continue until completion of the overall sentence. 23. If the Parole Board determines that the recall decision was justified, the Board must decide whether to: i. Set a re-release date. This could be immediate or at a future date. Where the Board decides to re-release straight away, it will usually set the release date as the next but one working day in order to give the Probation Service time to make any necessary arrangements. The effect on IC offenders of this decision will be as above. Alternatively, the Board could set a future date for release, so that the offender serves the remainder of the IC period in custody, but is released on licence for the remainder of the sentence as normal. or ii. Set a date for a further review of the prisoner’s detention. The Parole Board is required to state what initial information it will need at the point at which the case is reviewed. In IC cases, the Board is unlikely to set a further review. However, if it does the Board will specify what further information is needed to be able to review the case.

24. If there are fewer than 12 months until the end of the overall sentence or sentence expiry date (SED), the Parole Board may decide not to set a re-release date or further review date. In this circumstance, the prisoner will be released upon the expiry of the sentence. For IC offenders, this will mean staying in full-time custody until the end of the overall sentence (SED). 25. Where it is not possible to submit an application for revocation of licence before the offender’s return to the IC centre (perhaps because details of further offences are not discovered in time), the risk assessment process described in paragraph 20, above, must be undertaken. If the offender is considered no longer suitable for IC, it will be necessary to apply to the appropriate court for a variation to full-time custody (see paragraphs 4-12, above).

Intermittent Custody PC53/2005 Annex B Enforcement

26. Offender fails to respond to the reporting requirements of supervision in the community or any additional requirements of the IC order 27. The arrangements in respect of a breach of licence conditions or any additional requirements of the IC order are similar to those in respect of a further offence. In other words, an application for revocation of licence can only be made during the currency of the licence period during which the breach has occurred (see paragraphs 19 – 20 and 25, above). i. It will not be appropriate to allow an offender to ignore, even for a brief period, requirements which are integral to the IC sentence and which, by their imposition, may have served to reduce the custodial weight of the sentence. In the first instance, the home probation area will ordinarily seek to manage the offender into an appropriate pattern of behaviour in relation to the supervision and any additional requirements of the IC order. However, in particularly serious cases or where the offender fails to respond quickly to the managed approach, the home probation area must apply to the Release and Recall Section of the Home Office for the offender’s recall. If the offender is recalled, he/she will be arrested and returned to full-time custody. Once the offender has been returned to custody, the Parole Board will review the case as described at paragraphs 21(iii) – 24, above.

ii.

iii.

iv. v. 28.

Offender fails to comply with the terms of his/her HDC licence. i. The details of any non-compliance will be reported by the Electronic Monitoring Contractor to the Release and Recall Section of the Home Office (formerly SEU). Release and Recall Section will decide whether to recall the offender. If the offender is recalled, he/she will serve any remaining custody days on an intermittent basis at the IC Centre. However, the home probation area and the IC centre must immediately review the circumstances of the case to determine the need for an immediate application to vary the offender’s sentence to full-time custody. The offender has a right of appeal against recall to the Home Secretary. If the appeal is upheld, the offender will be re- released on HDC licence to complete any outstanding days. During and after this period the offender will remain under Probation Service supervision until the end of the overall sentence and any additional requirements imposed by the original sentencing court will also continue to apply. In essence, when an HDC licence is revoked, the original warrant comes back into force. Provided that there are no further charges (on which the offender has been remanded in custody) or breaches of any other aspect of the original

ii. iii. iv.

v.

vi.

Intermittent Custody PC53/2005 Annex B Enforcement

IC order, then it is likely that one of the three following administrative scenarios will apply: a. if the offender is already in police custody, the IC centre should be notified as soon as possible. The IC centre will explain the circumstances to the police and (if possible) speak directly to the offender. The IC centre will then fax to the police a licence to cover the period up to the point at which the offender will next be expected to report to the IC centre to resume the custody part of the IC order. The offender must then be released under the terms of the licence; or if the police have already transferred the offender to the nearest local prison, then the process described above will apply, but the contact will be with the holding prison rather than the holding police station; or if the offender is not in police custody, but is in contact with the IC centre, possibly via his/her responsible offender manager, they should be instructed to report to their offender manager. The IC centre will fax to the responsible offender manager a licence to cover the period up to the point at which the offender will next be expected to report to the IC centre to resume the custody part of the IC order. The offender will be instructed to take the licence (and a covering letter from the responsible offender manager) to the local police station which will be asked to contact the IC centre by telephone if they require confirmation of the offender’s status and the viability of the licence. This process is designed to avoid the offender being taken into custody unnecessarily.

b.

c.

CONCLUSION 29. Enforcement arrangements in relation to IC offenders are straightforward, but a number of situations will require close co-operation and early exchange of relevant information between partner agencies. 30. It is important to emphasise that, during the first 16 months of the IC pilots, the level of compliance on the part of IC offenders was exceptionally high. On only a single occasion, for example, was it necessary to obtain a variation of sentence from IC to full-time custody on the grounds of unacceptable custodial behaviour. 31. If further guidance on enforcement matters is required by any of the organisations which may become involved in that process, contact should be made with the Community Integration Unit of the National Offender Management Service on 020-8760-1849.

Intermittent Custody PC53/2005 Annex B Enforcement

ANNEX C INTERMITTENT CUSTODY SPECIMEN PSR This annex is based on the concluding paragraphs of a genuine PSR designed to draw the attention of the court to the option of an IC sentence. It has been adapted so as to reflect the sentencing framework for an offence committed on or after 4 April. 2. It is important to stress that, in the PSR writer’s professional judgement, there was a strong likelihood that the offender would receive a custodial sentence. 3. The PSR writer provided the court with a helpful resumé of the purpose and nature of IC, including both the regime in the Kirkham IC centre and the nature of Probation Service supervision. 4. In the original case, Mr X did receive an IC sentence which enabled him to maintain his responsibilities in relation to employment and to his partner. He has since successfully completed the custodial part of the sentence. 5. The specimen PSR is as follows: “Mr X acknowledges that he has committed two offences of serious fraud. Despite his assertions that his behaviour has been out of character, the Court will no doubt be concerned that he has previous convictions of a similar nature. By his own admission, he only realised the severity of his actions some time after the offences were committed. He has admitted his guilt from the earliest moment and has expressed remorse and regret for his actions. He is well aware of the situation he finds himself in and the court has indicated that he faces an immediate custodial sentence. Mr X has always been in employment and is in a long-term relationship. Whilst not downplaying the seriousness of these offences the Court may wish to take into account the negative impact that custody might have upon Mr X’s future employment and career prospects and the relationship with his partner. As an alternative to a full time custodial sentence, the Court may wish to consider sentencing Mr X to Intermittent Custody at HM Prison Kirkham, subject to a place being available at the unit. This sentence is for offenders who have committed an offence so serious as to warrant a custodial sentence, but who do not pose such a risk to the public as to require immediate full-time custody. Offenders are required to report to HM Prison Kirkham each Friday evening, at a time which takes account of the offender’s work commitments and travelling time. Offenders are required to perform unpaid community work as part of a structured and purposeful regime. Whilst in custody the offender will be subject to Prison Rules and liable to be returned to Court if they fail to comply with the sentence. Whilst in the community, the offender will be supervised by the National Probation Service. They will be required to work to address the causes of their offending behaviour when meeting with their Probation Officer on a weekly basis in the community. Failure to comply in the community may lead to recall and the offender serving the remaining custody days and some or all of the remaining part of the full sentence in prison.

Intermittent Custody PC53/2005 Annex C PSR

This sentence combines punishment and rehabilitation whilst enabling Mr X to remain in full-time employment, continue his career path and maintain the relationship with his partner. It will also enable the Court to order Mr X to pay compensation to his victims. Mr X has indicated his willingness to comply with this sentence.

Intermittent Custody PC53/2005 Annex C PSR