#15028 - Community Penalties And Payment By Results - Criminology

Halliday Report (2001)

• Existing law was too complex

  • Too many different types of community orders with different restrictions

• Difficult to place in the hierarchy

  • Viewed as being less serious than imprisonment, but had very onerous conditions and breach could result in custody

  • Community sentences could only be used under CJA 1991 if the offence was too serious for fines

• Difficult to rank the “punitive weight” of different community sentences in order to ensure proportionality

• Viewed by the public as “insufficiently punitive or protective of communities”

The single Community Sentence

• CJA 2003 introduced a single sentence with different requirements that can be imposed

• S148(1): the offence (or in combination with associated offences) must be serious enough to warrant a community sentence

  • Shouldn’t be used for minor cases, which can be dealt with via discharge or fine

  • BUT allows for fines to be used even where the threshold for community sentences is passed

  • Sentencing guidelines usually divide them into low, medium and high community orders based on seriousness of the offence

• S151: court can impose a community sentence on an offender who has been fined on 3 or more occasions since the age of 16 even if the current offence doesn’t meet the threshold

  • If it is in the interests of justice to impose a community sentence

• Unpaid work requirement (s199)

  • Required to perform 40-300 hours of work to be carried out within 12 months

  • Principles

    • Cheaper alternative to imprisonment

    • Symbolic reparation to the community

    • Allows them to be supported within the community during the sentence

  • Type of work is determined by probation service

  • Most common single requirement used in 2007 community orders

    • Usually for offenders with fewer problems (e.g. addictions and disorders)

• Activity requirement (s201)

  • Offender can be required to participate in specified activities for up to 60 days, usually at a community rehabilitation centre

  • Only if the probation officer has been consulted and court satisfied that compliance is feasible

• Programme requirement (s202)

  • Offender can be required to participate in an accredited programme

  • Only if a probation officer has recommended the programme as being suitable

    • e.g. Reasoning and Rehabilitation, Think First, anger management

  • 3^rd most frequently used requirement in 2007, usually combined with others

• Prohibited activity requirement (s203)

  • Prohibits the offender from participating in specified activities for a certain period or on specific days (e.g. banned from driving)

  • Probation officer must be consulted

  • Hardly used

• Curfew requirement (s204)

  • Maximum period of 6 months

  • Must be imposed with an electronic monitoring requirement unless an exception applies (e.g. inappropriate in these circumstances)

    • Useful in disrupting “pattern offending”

  • Hucklesby (2008): curfews can be rehabilitative

    • Of limited incapacitative effect

    • Combined with supervision requirement, can help offenders to disengage from habits and criminal networks (although difficult to align curfews with employment hours)

• Exclusion requirement (s205)

  • Offender banned from entering a specific place for up to 2 years (similar to ASBO)

• Residence requirement (s206)

  • Can only specify a hostel or institution if recommended by a probation officer

  • Could be required to stay at home or with a relative

• Mental health treatment requirement (s207-208)

• Drug rehabilitation requirement (s209-211)

  • Offender required to submit to drug treatment and testing for at least 6 months

  • Only applicable if offender has a treatable dependency on drugs

  • Might be used for rehabilitative purposes even if the custody threshold is passed

• Alcohol treatment requirement (s212)

  • Similar to drug rehabilitation requirement except without testing

  • Treatment programmes usually funded by NHS so not widely available

• Supervision requirement (s213)

  • Effectively replaces the probation order

  • Most used requirement (>1/3) in 2007, can be combined with other requirements

  • Usually used for offenders with past convictions who were unemployed

  • National Probation Service will categorise offenders into 4 tiers according to their degree of risk, with stricter and more frequent supervision for the higher tiers

• Attendance centre requirement (s214)

  • Offender can be required to attend at an attendance centre for between 12-36 hrs

  • Can only be used for offenders under 25

• S148(2): restrictions on liberty must be “commensurate with the seriousness of the offence”

  • The requirements must also be the “most suitable” for the offender

• Courts should ask for a pre-sentence report after deciding to give a community sentence

  • Court has an obligation to indicate the purpose(s) it seeks to achieve (e.g. rehabilitation, punishment, protection of the public)

• Low range orders are most appropriate for offences below the s148 threshold

  • i.e. those imposed via s151

• Medium range community sentences are primarily for theft offences

• High range community sentences are appropriate for offences around the custody threshold

  • SGC (2004): can be imposed “for an offence that passes the custody threshold where the court considers that to be appropriate”

• Offenders can be given more than one successive community sentence

  • Having completed a community sentence doesn’t make them ineligible for further community sentences (especially since different requirements can be imposed)

• Offender Manager can choose to give a warning instead of initiating breach proceedings on the first breach, but must initiate proceedings for the second breach

• SGC guidelines: primary objective of the Court in breach proceedings is to ensure that sentence requirements are finished

  • Can either amend the community order to add more onerous requirements or revoke the order and sentence for the original offence

  • If there was wilful and persistent lack of compliance, must impose prison sentence of up to 51 weeks (taking into account any part performance)

• Custody should be a last resort, but is permitted in all breach cases and is compulsory for wilful and persistent breach

  • ISSUE: the original offence may not have been imprisonable

• In 2007, 47% of community orders were completed

ISSUE (Ashworth): CJA 2003 has resulted in up-tariffing

• Offenders who would have received fines or discharges now receive community sentences

Most COs are made in magistrates’ courts

• 52% are for summary offences (increased use compared to previous community sentences)

• Since 2005, the average length of community orders has decreased from 22 to 14.9 months

• 85% have between 1 and 2 requirements, average of 1.7 requirements per order

  • Suspended sentences are used for more serious offences and have an average of 1.9

  • No sign of overloading of requirements

Use of requirements

• Supervision and accredited programmes have decreased

• Unpaid work and curfew orders have increased

• Supervision, unpaid work, accreditation programme, drug treatment and curfew requirements make up 95% or requirements used in Community Orders

  • Some of the other requirements (e.g. mental health, alcohol treatment) may not be available locally and cannot be used

  • Pre-sentencing reports: probation officers may prefer to recommend familiar requirements or may not even know of new ones that are available

• Lack of consistency in assigning requirements amongst geographical areas

Increase in prison population suggests that there was no diversion from custody

• No significant decrease in use of short (<12 months) custodial orders

  • Even though this was the category of custodial orders the CO was meant to replace

• Number of Tier 1 community orders has been increasing

• IMPLICTION: possible that this indicates up-tariffing for minor offenders instead of replacing borderline custodial cases?

• Offenders’ views of community sanctions shift over time, hence it is “liquid legitimacy”

• In order to be effective, community sentences require compliance from the offender

  • They are less likely to comply if they do not see the sentences as legitimate

• Probation officers and social workers are key players in their interactions with offenders

Hucklesby: non-compliance by offenders isn’t always planned

• They need a “multi-dimensional and individualized approach to help them develop the life skills to comply”

• Family and friends play a role in encouraging compliance

• If it were merely non-custodial penalties, the most common would be fines

• Usually taken to refer to the use of probation (supervision and other requirements)

  • BUT a large number of offenders actually being supervised by the Probation Service are actually serving custodial sentences (early or automatic release)

• The importance of probation

  • Grünhut (1952): the strength of probation is in combining the “conditional suspension of punishment, and personal care and supervision by a court welfare officer”

  • Developed rapidly as part of the welfare state

• In 2009, there were about 240,000 under supervision by the Probation Service

  • Of which, about 100,000 are subject to supervision on release from custodial sentences

  • 44,000 were from suspended sentence orders (increasing numbers since 2005)