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Probation

Circular

EXPEDITED LISTING AND REFERENCE NO:


NOTIFICATION OF HEARING IN 03/2006

COMMUNITY PENALTY BREACHES ISSUE DATE:


03 February 06
PURPOSE
This circular is issued jointly by HMCS and the National Probation IMPLEMENTATION DATE:
Directorate (NPD). It requires Magistrates’ Courts and probation areas to
Immediate
establish local agreed processes to speed up procedures for resolving
breaches of community penalties. This circular does not refer to breaches
EXPIRY DATE:
that have to be heard before the Crown Court.
February 2009
ACTION
TO:
Probation Chief Officers and HMCS Area Directors should review the
contents of this circular and aim to ensure that appropriate local agreements Chairs of Probation Boards
are now in place. Details of these should be set out in your joint protocols Chief Officers of Probation
and within LCJB action plans. Secretaries of Probation Boards

SUMMARY CC:
This joint protocol replaces the previous one attached to PC13/ 2005. This Board Treasurers
has become necessary in the light of further legal advice on the process of Regional Managers
ensuring appropriate procedures are undertaken to ensure that offenders HMCS
who are in breach of their Community Orders are brought before the court.
AUTHORISED BY:
Annex A highlights what the key changes are. Roger McGarva, Head of Regions
Annex B is the new revised protocol for Expedited Listing agreed between and Performance Unit
the NPS, HMCS, and the JCS.
ATTACHED:
RELEVANT PREVIOUS PROBATION CIRCULARS Annex A
PC24/2000, PC17/2004, PC43/2004 Annex B

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