Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences

3 Community Payback Orders Imposed: A Numerical Overview

3.1 In this first chapter focusing specifically on CPOs, we examine (in quantitative terms) the overall use of social work orders in the first two full years following the introduction of CPOs, the number of CPOs with different types of requirements, and patterns of variation across geographic areas. This analysis is based on annual figures published by the Scottish Government on the use of social work orders.^[9] These are collated from aggregate or unit level returns from local authority criminal justice social work departments to the Scottish Government and are also made available at local authority level.^[10] This section summarises a number of the key points from these data.

Trends in the overall use of social work orders

3.2 As noted in the introduction, CPOs had, in effect, a phased introduction as they could only be imposed in relation to crimes and offences committed on or after 1 February 2011. As a result, nearly 16,000 CPOs commenced in the year to 31 March 2013 - 5,600 more than in the previous 12 months. This rise was matched by a fall in the numbers of community service orders, probation orders and supervised attendance orders (see Table 3.1).

Table 3.1: Social work orders commenced 2006-07 to 2012-13^[11]

	2006-07	2007-08	2008-09	2009-10	2010-11	2011-12	2012-13
All social work orders	18,061	19,947	20,674	19,865	18,044	19,746	19,449
Community Payback Orders	n/a	n/a	n/a	n/a	..*	10,228	15,857
Community Service Orders	5,937	6,202	6,437	6,429	5,940	3,044	693
Probation Orders	8,404	8,706	9,179	8,838	8,136	3,040	514
Supervised Attendance Orders	3,047	4,438	4,306	3,859	3,307	2,877	1,752
Drug Treatment and Testing Orders	673	601	752	739	661	557	633

*Note: Information on community payback orders that commenced in February and March 2011 was not collected from local authorities, but figures from the Scottish Court Service suggest around 300 were imposed during that period.

3.3 Overall use of social work orders changed little between 2011-12 and 2012-13, although the longer-term trend since 2006-07 shows slightly more variation. Between approximately 18,000 and 20,700 orders were commenced in each of these years, with 19,449 commenced in 2012-13. If the overall use of social work orders were to remain at roughly the same level in future years, one would expect to see the total annual number of CPOs imposed to rise to around 18-19,000 as the number of 'legacy orders' continues to reduce.

3.4 There is no indication to date, then, that the introduction of CPOs has led to a marked increase in the absolute number of community disposals - although a more useful indicator in this respect may be the relative use of fines, social work orders and short prison sentences.

3.5 What is clear is that, by the end of 2012-13, CPOs were firmly embedded as the core social work order in use by the courts in Scotland. That said, a degree of geographic variation remained and this is explored below.

Geographic variation in use of social work orders

3.6 Across Scotland as a whole, 82% of social work orders commenced in 2012-13 were CPOs, but this figure ranged from 69% in Fife, to 96% in Shetland (and was between 76% and 93% in the other 30 local authorities).

3.7 Although most of the existing social work orders were replaced by CPOs, the Drug Treatment and Testing Order (DTTO) was retained as a separate disposal. In 2012-13, DTTOs accounted for just 3% of all social work orders, but there was, again, a high degree of variation across local authorities. For example, Edinburgh made the greatest use of these^[12] (130 in 2012-13, representing 12% of all social work orders imposed in Edinburgh and 21% of all DTTOs imposed nationally), while in 11 other local authorities five or fewer DTTOs commenced in total during the same period. The question of the relationship between DTTOs and Drug Treatment Requirements (DTRs) is discussed in Chapter 5 (para 5.23).

3.8 The proportion of social work orders commencing in 2012-13 which were Community Service Orders (CSOs) or Probation Orders (POs), imposed in relation to crimes and offences committed before 1 February 2011, was 6% across Scotland as a whole. While this ranged from none at all in Shetland to 12% in East Dunbartonshire, a degree of variation is to be expected, given the now relatively small numbers involved.

3.9 Greater variation was seen in the number of Supervised Attendance Orders (SAOs) commenced. While 9% of all social work orders in Scotland were SAOs in 2012-13, this figure ranged from none at all in Midlothian, to 21% of orders in Fife.

Use of different CPO requirements

3.10 Turning to the types of requirements - rather than the overall volume of CPOs - it is immediately clear that two of the nine requirements account for the vast majority of all those imposed. This is as expected, as the legislation stipulates every order must have Unpaid Work or Other Activity (UPWOA) or Supervision Requirements, or both.

3.11 UPWOA was by far the most frequently used requirement - 80% of CPOs were issued with such a requirement in 2012-13, up slightly on the proportion in 2011-12. Roughly half of these in 2012-13 were Level 1 orders (involving less than 100 hours), and these had an average length of 75 hours (similar to 2011-12). Level 2 orders had an average length of 175 hours (up from 164 in 2011-12). The total number of orders with an UPWOA Requirement in 2012-13 was 12,630 - compared with 6,000 or so Community Service Orders, 3,000 or so Probation Orders with an element of unpaid work and 3-4,500 Supervised Attendance Orders issued in each of the years leading up to the reforms.

3.12 The next most frequently imposed requirement was Supervision. Just over half (55%) of CPOs were issued with a Supervision Requirement in 2012-13, a slightly lower proportion than in the previous year.

3.13 In 2012-13, no more than 10% of CPOs were issued with any of the other requirements. It is noticeable, however, that there was a marked fall in the use of Conduct Requirements relative to the previous year, when these were imposed in around a quarter (23%) of cases. This followed an appeal court judgement that a CPO with a Conduct Requirement specifying that an offender refrain from committing any offence for a specified period is incompetent (Kirk and Hunter v Procurator Fiscal Stirling (2012) HCJAC 96).

3.14 The number of DTRs and Alcohol Treatment Requirements (ATRs) also fell in 2012-13 (in both absolute and relative terms). Indeed, both were used only around half as frequently as in 2011-12 (Table 3.2). Some of the possible reasons for this are explored in Chapter 5 (paras. 5.1-5.46).

Table 3.2: Number and percentage of CPOs issued with given requirement, 2011-12 & 2012-13^[13]

	2011-12		2012-13
	Number	%	Number	%
UPWOA	7,776	76.0	12,630	79.6
Supervision	6,382	62.4	8,696	54.8
Conduct	2,360	23.1	1,589	10.0
Programme	809	7.9	1,032	6.5
ATR	536	5.2	392	2.5
Compensation	350	3.4	599	3.8
DTR	236	2.3	183	1.2
Mental Health Treatment Requirement (MHTR)	74	0.7	95	0.6
Residence	51	0.5	37	0.2

Note: Percentage figures sum to more than 100%, due to the use of multiple requirements.

3.15 Overall, then, the figures for 2012-13 suggest a degree of further concentration around the use of UPWOA. All other requirements with the exception of Compensation were used relatively less frequently than in 2011-12.

The use of multiple requirements

3.16 Of course, a CPO may be imposed with more than one requirement; and, indeed, this is one of the features of the order that is intended to yield flexibility and tailoring of sentences to offender needs. In practice, more than half the CPOs issued in 2012-13 (56%) had just one requirement, generally UPWOA. A further 31% had two requirements, normally Supervision plus one other^[14]; 11% had three requirements, and 2% four or more. (The issue of CJSW staff attitudes towards multiple requirements is returned to in para 5.32 of Chapter 5, along with a discussion of the NOS Practice Guidance on their use.)

3.17 These figures demonstrate a fall in the proportion of CPOs issued with multiple requirements. In 2011-12, 43% of CPOs were issued with just one requirement; 32% had two requirements, 21% three, and 4% four or more. The average number of requirements per order fell from 1.82 in 2011-12 to 1.59 in 2012-13. Figures obtained separately from the Scottish Court Service (Scottish Government, 2013) give further weight to this by showing that a higher proportion of orders in 2011-12 were issued with multiple requirements than in the subsequent year.

Geographic variation in use of different CPO requirements

3.18 Use of the different requirements varied by local authority. As we have seen, the average across Scotland as a whole was 1.59 requirements per order, but this figure ranged from 1.33 in Stirling to over 2 in Shetland and Eilean Siar.

3.19 Tables A3.2 and A3.3 in Appendix 3 show that UPWOA was the most commonly imposed requirement in all local authorities, its use ranging from 66% of orders in Clackmannanshire to 90% in Aberdeen City and East Renfrewshire. The average length of an UPWOA Requirement imposed in 2012-13 (at either Level 1 or Level 2) was 124 hours, ranging from 93 hours in Angus to 148 hours in West Dunbartonshire. The average length was slightly shorter in 2011-12 (at 120 hours).

3.20 The use of the Supervision Requirement has fallen as a proportion of all CPOs in most local authorities, partly due to the associated fall in the proportion issued with a Conduct Requirement, but has risen in a small number of areas. Use of Supervision Requirements ranged from 40% of orders in East Renfrewshire to 74% in Eilean Siar. The average length of Supervision Requirements was 15.2 months, ranging from 12.0 months in Shetland and Perth & Kinross, to 19.6 months in Eilean Siar.

3.21 The use of Conduct Requirements also fell in all but a few small authorities following the appeal court judgement in June 2012. In Midlothian, West Lothian and North Ayrshire it was as low as 1% in 2012-13. In Shetland, however, 46% of orders had such a requirement imposed, suggesting that the impact of the appeal court judgement may have been less in this area than elsewhere.

3.22 Despite the relatively low use of DTRs or ATRs across Scotland as a whole, there were some pockets of greater use - especially in some of the smaller local authorities. The use of ATRs, for example, was most common in Eilean Siar (17% of all CPOs) and Perth & Kinross (15%), compared with just 2% of orders nationally. DTRs were highest in Perth & Kinross at 7%, compared with 1% nationally.

3.23 It is worth noting that there was a negative correlation^[15] between use of DTTOs and use of DTRs across authorities. In general, those authorities which made the most use of DTTOs (Edinburgh, Midlothian, East Lothian and Eilean Siar) made relatively little use of DTRs. The reverse was also true, with those authorities that made the most use of DTRs (Falkirk, Stirling and Perth & Kinross) making relatively little use of DTTOs.

3.24 Overall, the degree of variation in the use of specific requirements by local authority area is perhaps greater than might be expected on the basis of the nature of court business or population characteristics. It is likely, therefore, to signal that there is also a degree of local variation in interpretation and/or CJSW or sentencing practice.

Key characteristics of those issued with CPOs

3.25 The 15,857 CPOs issued in 2012-13 involved 13,880 individual offenders. Consequently, 12% of CPOs were issued to someone who had already been given a CPO during the same year.^[16]

3.26 At an aggregate level, the profile of offenders was very similar in 2012-13 to that in 2011-12: 15% of CPOs were issued to women. And 41% were issued to people aged 16-25. However, as Table A3.4^[17] in Appendix 3 shows, the age and sex profiles of those issued with different CPO requirements were quite different.

3.27 Female offenders are relatively more likely than men to be issued with certain types of requirements and less likely to be issued with others. For instance, around 30% of all CPOs with a Residence Requirement, a Mental Health Treatment Requirement (MHTR), or a DTR were issued to women. The same was true, by contrast, of only 10% of those with a Programme Requirement, and 12% of those with an UPWOA Requirement. Young women were especially unlikely to be issued with either of these requirements.

3.28 More than half of CPOs with a Compensation Requirement were issued to someone aged between 16 and 25. By contrast, nearly three quarters of those with a MHTR, DTR or ATR were issued to people aged 26 or over.

Key points

3.29 By 2012-13, CPOs accounted for more than 80% of all social work orders imposed, increasing by roughly 5,600 in absolute terms over the previous year. There is no sign, however, that their introduction has led to a marked or immediate upturn in the total number of social work orders imposed.

3.30 Two of the nine requirements - UPWOA and Supervision - were used with far greater frequency than any other, as expected, given that the legislation states that all orders should include at least one of these. The dominance of UPWOA is especially noticeable and, if anything, became even more pronounced in 2012-13.

3.31 None of the remaining requirements was imposed in more than one in ten orders and, with the exception of Compensation, all were used relatively less frequently in 2012-13 than in the year before. While the sharp reduction in the use of the Conduct Requirement can be directly attributed to an appeal court ruling, the contraction in the use of some of the rehabilitative orders (especially DTRs and ATRs) needs to be more fully understood - and is discussed in Chapter 5 (para 5.6).

3.32 Multiple requirements are not the norm. Roughly half of all orders (56%) in 2012-13 involved a single requirement - usually UPWOA. This raises questions about the willingness of CJSW staff to recommend, and of Sheriffs to impose, multiple requirements and the implications for the expected tailored and flexible character of the order. These issues are returned to Chapter 5 (para 5.32).

3.33 There is wide variation in the use of different requirements across local authority areas. While this will reflect, to some extent, differences in the characteristics of these areas and the nature of the cases coming before the courts in each, it is also likely to signal a degree of local variation in interpretation and/or practice. The implications of this are returned to in the concluding chapter.

3.34 This variation is especially clear in relation to the use of DTTOs and DTRs. Although the legislation and practice guidance signal a relatively clear distinction between these two options, there is a negative correlation in their use across local authorities, suggesting a more blurred interpretation on the ground. This specific issue is discussed in Chapter 5 (para 5.23).

3.35 Age and sex are key predictors of the type of CPO requirements imposed. Women - and young women in particular - were relatively less likely to receive an UPWOA Requirement, but more likely to receive a CPO with a DTR, MHTR or Residence Requirement . This may be as much to do with age as sex, as female offenders are typically older and older offenders, in general, were more likely to receive orders with a rehabilitative element.