Payback time

Introduction to community payback orders, which come into force on 1 February 2011 along with the presumption against short prison sentences

17th January 2011 | Ian Donaldson

The Criminal Justice and Licensing (Scotland) Act 2010 runs to more than 200 sections, covering issues ranging from taxi licensing to evidence disclosure. The Act received Royal Assent in August and its provisions are now being brought into force.

Two key sections of the Act (ss 14 and 17, with the related ss 20 and 21) are to be commenced on Tuesday 1 February 2011. These concern the community payback order and the presumption against short periods of imprisonment.

Bringing in the new

The community payback order is set out in s 14, which itself inserts the provisions into the Criminal Procedure (Scotland) Act 1995. The community payback order will apply to offences committed on or after 1 February 2011. For such offences it will replace community service orders, probation orders and supervised attendance orders. Community reparation orders are also being repealed, although in practice they have not been used for some time.

Offences committed before 1 February 2011 will be sentenced under the existing arrangements, no matter when they come to court. Where an offence is found to have been committed over a period of two or more days which straddle that date, it will be regarded as having been committed on the first of those days. Community sentences arising from offences committed before 1 February 2011 will be unaffected by the new legislation and will run alongside the new system until they are completed.

Other existing community sentences, including the drug treatment and testing order and the restriction of liberty order, will remain unchanged and available to courts.

The presumption against short prison sentences, set out in s 17, also inserts its provisions into the 1995 Act. It prevents courts from imposing a prison term of three months or less unless the court has concluded that there is no other appropriate way of dealing with the offender. If the court does so conclude, it must state its reasons for reaching that conclusion and have the reasons entered in the record of court proceedings. Like the community payback order, the presumption will apply to offences committed on or after 1 February 2011.

Scope of the CPO

A community payback order will consist of a number of requirements. Nine are set out in the Act. From these, the court may select one or more in deciding on the makeup of the order. The requirements are:

Unpaid work or other activity requirement: either level 1 (20-100 hours) or level 2 (101-300 hours)
Offender supervision requirement
Conduct requirement
Compensation requirement
Residence requirement
Programme requirement
Mental health treatment requirement
Drug treatment requirement
Alcohol treatment requirement

The community payback order will be available to all courts in Scotland. Justice of the peace courts will, however, only be able to select from the first five of the requirements listed above and will only be able to impose the first requirement at level 1.

The community payback order will be regarded as an alternative to custody, but courts will also be able to impose a community payback order with a restricted range of requirements (the first three above) as an alternative to, or as well as, a fine. Where the law would previously have mandated short jail terms (or more recently supervised attendance orders) for minor fine defaulters, courts will now impose a community payback order with a level 1 unpaid work or other activity requirement. The fine defaulter will still have the opportunity to pay the fine after the imposition of a community payback order, and if he or she does so the court must then discharge the order.

Imposition of a community payback order does not prevent a court from imposing any other sentence as well – other than imprisonment – or making any other order.

Before imposing a community payback order, a court must take account of a report on the individual from the local authority’s criminal justice social work team.

A copy of the report must be provided to the offender’s solicitor as well as to the offender themselves and to the prosecutor. No report is needed, however, if the court imposes only a level 1 unpaid work or other activity requirement. It will therefore be important in such cases that defence solicitors make clear to the court any reason, such as physical disability, why an unpaid work or other activity requirement might not be an appropriate option.

A court must also confirm before it imposes a community payback order that the offender is willing to comply with each of the proposed requirements. If the offender is not willing, the order cannot be imposed and the court will have to consider an alternative disposal, which may be a fine or a prison sentence as appropriate.

The offender’s willingness to comply is not, however, necessary when the court imposes a community payback order as a penalty for fine default.

Particular requirements

Some important points to bear in mind as far as the requirements are concerned:

• Unpaid work or other activity requirement

An unpaid work or other activity requirement must be completed within three months (up to 100 hours) or six months (more than 100 hours), unless the court states otherwise at the point of sentence. It will be important for courts to be aware before sentence of any reason, such as full-time employment, which might justify a longer completion period. Since social work reports will not be required for imposition of a level 1 requirement, it will be particularly important for defence agents to bear this in mind in such cases.

Although not set out in legislation, practice guidance for criminal justice social workers makes clear that unpaid work placements must begin within seven days of sentence.

An unpaid work or other activity requirement may only be imposed on an offender aged 16 years or above.

It is intended that “other activity” can involve activities aimed at improving the individual’s employability prospects or addressing other underlying issues which are influencing the individual’s offending behaviour. It is for the offender’s case manager at the local authority criminal justice social work department to determine, after sentence, how many of the hours specified, if any, are to be allocated to “other activity”. The maximum number of hours which can be allocated to “other activity” is 30% or 30 hours, whichever is lower.

Where an order is imposed consecutively with another order (or orders), the maximum number of hours of unpaid work or other activity that can be imposed as part of the order is 300 less the net balance of actual hours outstanding on existing requirements. As noted above, there will be cases in which a social work report is not provided to the court before sentence and it will be important in such cases that defence agents inform the court of any pre-existing unpaid work or other activity requirements of which they are aware.

• Offender supervision requirement

The court must impose an offender supervision requirement in the following situations: where the individual is aged under 18; or where the court imposes any requirement other than an unpaid work and other activity requirement.

• Conduct requirement

A conduct requirement will be imposed when the court requires that the individual must do, or refrain from doing, specified things to secure or promote good behaviour or to prevent further offending.

• Compensation requirement

A compensation requirement can be imposed to require an individual to pay compensation for any personal injury or other matter incurred as a result of the individual’s offending behaviour. Compensation payments will be made to the sheriff clerk’s office.

• Residence requirement

A court may require that an offender live in specified accommodation where there will be some form of professional supervision. Such accommodation must have been recommended as appropriate in a report by a local authority officer. In other cases, a residence requirement may require an offender to reside at a particular private address.

• Programme requirement

Before a programme requirement can be imposed, the programme must be recommended to the court, usually by means of a criminal justice social work report, as being suitable for the offender.

• Mental health treatment requirement

The purpose of imposing a mental health treatment requirement is to ensure that an individual who has been diagnosed with a mental health condition receives support, care and treatment. A mental health condition will include any mental illness, personality disorder or learning disability as defined in s 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

For a mental health treatment requirement to be imposed the court has to be satisfied following evidence from an approved medical practitioner that:

the individual suffers from a mental condition;
the condition requires and may be susceptible to treatment; and
the condition is not such as to require compulsory treatment.

The court must also be satisfied, following evidence from the registered medical practitioner or registered psychologist who will treat the individual, that the treatment is appropriate, and that arrangements have been made for the proposed treatment.

The offender’s consent is required where any requirement under a community payback order is varied, including when treatment required under a mental health treatment requirement is to be changed.

• Drug treatment requirement

A drug treatment requirement might be imposed where drug issues are identified, but are not the main issue driving the offending behaviour. (In higher tariff cases where drug issues are the main issue driving offending behaviour, a drug treatment and testing order may be more appropriate.) Before a court may impose a drug treatment requirement it must be satisfied that:

the offender is dependent on or has a propensity to misuse any controlled drug;
the dependency or propensity requires and may be susceptible to treatment; and
arrangements have been or can be made for the proposed treatment.
Alcohol treatment requirement

Where an individual is considered to be alcohol dependent, the court may impose an alcohol treatment requirement. Before a court does so, it must be satisfied that:

the offender is dependent on alcohol;
the dependency requires and may be susceptible to treatment;
arrangements have been made for the treatment to take place.

Where the offender has alcohol problems which do not amount to dependency, the court may require that work on alcohol issues be taken forward under a programme requirement. Alternatively a criminal justice social work case manager may take forward such interventions as part of a supervision requirement or under the “other activity” element of an unpaid work or other activity requirement.

Sentence management

A court may schedule discretionary periodic review hearings to check on an offender’s progress at any point within the duration of the order.

An offender would not usually have legal representation at a review hearing. However, if during the course of the hearing it became apparent to the court that the offender had failed to comply with the order, the hearing would be suspended. A separate hearing would then be scheduled to consider the alleged failure, at which point the offender would be entitled to legal representation.

Following a review hearing, the court may decide to vary, discharge or revoke the order. The offender’s consent is required before the order is varied.

Also, the offender, or the local authority officer responsible for the offender, may apply to the court for a variation of the order, or for early discharge of an order or revocation of an order.

A court can decide to discharge an order early in circumstances where an offender has made highly positive progress. The court may vary, revoke or discharge an order only if it is satisfied that it is in the interests of justice to do so, having regard to the circumstances which have arisen since the order was imposed.

An offender is entitled to be legally represented at any breach hearing. If an offender breaches a community payback order, the court has a number of options. It can vary the order to impose new or different requirements. It can decide to impose a restricted movement requirement (electronic monitoring).

Ultimately it can decide to revoke the order and impose a custodial sentence, or any other disposal which it could have used at first instance. Where the community payback order was imposed instead of a fine, or for fine default, the maximum custodial term which can be imposed as a sanction for breach of the order is 60 days in a justice of the peace court and three months in any other court.

The Advice and Assistance (ABWOR) Regulations 2003 will be amended to ensure that ABWOR will be available for these proceedings from 1 February 2011.