Probation Circular

EXPEDITED LISTING AND NOTIFICATION OF HEARING IN COMMUNITY PENALTY BREACHES
PURPOSE
This circular is issued jointly by HMCS 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.

REFERENCE NO: 03/2006 ISSUE DATE: 03 February 06 IMPLEMENTATION DATE: Immediate EXPIRY DATE: February 2009 TO: Chairs of Probation Boards Chief Officers of Probation Secretaries of Probation Boards CC: Board Treasurers Regional Managers HMCS AUTHORISED BY: Roger McGarva, Head of Regions and Performance Unit ATTACHED: Annex A Annex B

ACTION
Probation Chief Officers and HMCS Area Directors should review the contents of this circular and aim to ensure that appropriate local agreements are now in place. Details of these should be set out in your joint protocols and within LCJB action plans.

SUMMARY
This joint protocol replaces the previous one attached to PC13/ 2005. This has become necessary in the light of further legal advice on the process of ensuring appropriate procedures are undertaken to ensure that offenders who are in breach of their Community Orders are brought before the court. Annex A highlights what the key changes are. Annex B is the new revised protocol for Expedited Listing agreed between the NPS, HMCS, and the JCS.

RELEVANT PREVIOUS PROBATION CIRCULARS
PC24/2000, PC17/2004, PC43/2004

CONTACT FOR ENQUIRIES
Helen West, Enforcement Policy Manager NPS Mobile 07770635303 Email: helen.west6@homeoffice.gsi.gov.uk Andy Frost, Enforcement and Compliance Policy Officer NPS Mobile 07767770213 Email: andrew.frost3@homeoffice.gsi.gov.uk

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

ANNEX A PROBATION CIRCULAR 03/ 2006 This amended circular is produced in the light of advice from the Justices' Clerks' Society regarding the suggestion in the original protocol that an offender manager could issue instructions to offenders, as part of their order, to attend court for proceedings to enforce their community order. The main points to note from this revised protocol are: • That the offender manager can write to an offender seeking the reason for the alleged breach and quoting the provisional date for the first hearing. However once the decision has been taken to begin breach proceedings, consideration should be given to how to secure the offender’s attendance at court. This is laid down in Schedule 8 of the Criminal Justice Act 2003 and involves the formal laying of an Information and the issue of a summons or warrant. Many courts will want to follow that route but there is no reason why the Information cannot be laid, and the summons issued, within two working days of the decision to prosecute the breach. The hearing date should be no more than ten working days after the decision to instigate proceedings. A less formal procedure has been agreed in some areas eg that the offender manager notifies the offender to attend court on a particular date. This method has no statutory basis but has been successful in causing many offenders to attend court. Where the offender does not attend court, this is a factor the court is entitled to consider, with others, when deciding how to ensure future attendance (i.e. summons or warrant). In considering whether a warrant should be issued against an offender the over-riding criteria should be the actual risk posed by the offender, except where the offender’s whereabouts are not known or the offender has failed to report to the court as instructed by a summons.

Annex B Probation Circular 03/ 2006

DCA/HMCS and NPS JOINT PROTOCOL FOR EXPEDITED LISTING AND NOTIFICATION OF HEARING IN COMMUNITY PENALTY BREACHES
Summary 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 relevant unacceptable absence. The intention is that breaches should be processed quickly and resolved at the first hearing whenever possible, subject to judicial decision. The Local Criminal Justice Board’s end to end target emphasises the role of both organisations in resolving breach cases. This focuses on maximising the number of cases resolved within 25 working days of the relevant unacceptable absence. 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. It is not intended that this guidance imposes on or restricts the independence of the judiciary in their ultimate decision. Current Position 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 92% of relevant offenders have enforcement action initiated within 10 working days as required by National Standards (First 2 quarters for 2005/6); 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 20 working days for adults of issue. To date performance stands at 50% (second quarter for 2005/6), 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. In writing to the offender to seek the reason for the alleged breach, prior to the actual decision to instigate proceedings, the offender manager may quote a provisional date for the first hearing. This is in accordance with arrangements made with the court, so as to begin the process of causing the offender to realise the consequence of breach. Once the decision has been taken to begin breach proceedings, consideration must be given to how to secure the offender's attendance at court. The statutory procedure is laid down in Schedule 8 of the Criminal Justice Act 2003. This involves the formal laying of Information and the issue of a summons or warrant. Many courts will wish to follow this process, but there is no reason why the Information cannot be laid, and a summons issued, within two working days of the decision to prosecute the breach being made, and with the return date of the summons (ie the hearing date) being no more than ten working days after the decision to instigate proceedings. Failure to attend in response to a summons will almost invariably result in the issue of a warrant. A less formal procedure has been agreed in some areas. In those places, the offender manager notifies the offender to attend court on a particular date (as agreed with the court). This method has no statutory basis but has been successful in causing many offenders to attend court. Where the offender does not attend court in response to such a notification, the failure to attend is a factor the court is entitled to consider, with others, when deciding how to ensure future attendance (ie summons or warrant). It is important to note that if a local decision is made to use this informal procedure, an Information must still be laid before the court in order to give the court jurisdiction. Of course it is important that, whatever method is used, all the necessary documentation is available so that the breach hearing can proceed at the first appearance. To that end it may be unrealistic to expect the offender to appear at 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 proceedings, and therefore no more than 20 working days after the relevant failure to comply. Application for a warrant It is recognised that in some cases an immediate application for a warrant (bypassing the summons / first notification stage) may be the most appropriate course of action if the risk of further offending is to be minimised. The court needs to be satisfied that it is a necessary and proportionate step to request the warrant. Once it has been decided that the offender fits the criteria to justify a warrant, consideration should then be given to the type of warrant required. Ultimately, the following three criteria should be used to inform the offender manager’s decision of whether or not to apply for an immediate warrant: • • If the offender is considered to present a high risk of re-offending, including those designated within Prolific and other Priority Offender Schemes (PPO). 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 (MAPPA) will need to inform the decision on the most appropriate breach process. If the offender’s whereabouts are not known

Importantly, the basis of the above criteria should be the actual risk posed by the offender. The exception is where the offender’s whereabouts is not known. Given that under the legal requirements of Community Orders, offenders must notify the Offender Manager of any change of address, there is no other realistic recourse to bring the offender to justice other than by a warrant. In addition, of course, a warrant should be sought for offenders who have failed to report to the court as instructed by summons. As for summons cases, probation and courts should work closely to establish agreed procedures for more effective listing of warrant applications. Information provided to the court by the probation service as part of the warrant application can be key for 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 the first hearing, that this advice has been 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 HMCS Ministers therefore agreed the joint end to end performance target that addresses these issues. 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. LCJBs are responsible for the achievement of end to end enforcement targets. HMCS using the COMET access tool is measuring performance. Performance is measured monthly and will be available in the third week of the following month. LCJBs and their membership agencies should use the data to monitor their progress and subsequently plan and implement strategic plans for further improvement. The NPD and HMCS will consider 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.

December 2005