Community Payback Order: practice guidance

14. Compliance

Purpose of Managing Compliance

Managing compliance effectively is an important responsibility critical to achievement of the purposes of the CPO. The purposes of promoting compliance include:

• to ensure that an individual subject to an order pays back to society in accordance with requirements imposed by the court;
• to protect potential victims and the general public;
• to enable individuals to live law abiding lives; and
• to enable individuals to successfully complete their plan to change.

The process of encouraging compliance begins at the pre-sentence assessment stage when the author of the CJSWR clearly explains to the individual what will be expected of them should they be made subject to a CPO, and what each of the requirements will entail.

Where it is not clear whether the individual would be willing to comply with the order, and where it is considered safe to do so, the CJSWR author may consider recommending a short structured deferred sentence, where available, in order to assess their level of engagement with supervision prior to sentencing. These 'high tariff' schemes, where available, are explicitly designed to test an individual's ability to comply with supervision in the community and are most commonly used for more persistent offending, where there are complex needs. However, in the majority of cases, it is expected that a structured deferred sentence would be used as a less intensive measure where a CPO is considered unwarranted.

Following sentencing, an individually tailored approach should be taken with the person to identify barriers to compliance and also their strengths. Where appropriate, this process can be supported by way of an Engagement Contract drawn up between the responsible officer^[14] and the individual at the first supervision appointment (see Section 10 of this guidance). Agreeing specific, realistic aims and targets can assist the individual in taking responsibility for reducing their risk of reoffending. It also highlights from the outset the importance of clear and transparent communication between both parties. An example of good practice which can reinforce to the individual the importance of compliance is for the responsible officer to work with them in identifying the pros and cons of compliance.

In the interests of justice and to maintain the credibility of the order, disciplinary procedures must reflect the legislation and be reasonable, clear and enforceable. They should be capable of being upheld in a court of law and also capable of swift implementation.

Responsible officers have a responsibility to take reasonable steps;

• to support the individual to enable them to complete their order; and
• to enforce the requirements of the order, should the individual not comply without reasonable cause.

Where an unpaid work or other activity requirement has been imposed in addition to an offender supervision requirement, the responsible officer and the unpaid work case manager must be fair, reasonable, transparent and consistent in their approach where issues of non-compliance occur. It is expected that they will work closely together, sharing information and agreeing the way forward should issues arise. This includes when a warning letter is being considered by either party - where possible, this should be signed by both the responsible officer and the unpaid work case manager.

The enforcement processes require the justice social work staff involved in the delivery of the order to be diligent in their case recording of all aspects of management of the individual from the very first serving of the order.

Means of managing compliance

All means of available technology should be used throughout the order to ensure that compliance is encouraged and directed. The responsible officer may make use of a variety of means of doing so, for example:

• Regularly confirming house and/or mobile phone numbers and recording these on case files so that contact can be maintained by phone.
• Use of phone calls/texts to remind individuals of appointments, reviews and to instruct contact where there has been an absence.
• Use of emails to individuals (where they have the technology to support this form of communication). This will require the individual's permission. Emails must be kept concise and not disclose personal information about the individual.
• Unless handed direct to the individual, recorded delivery letters must be used to issue formal written warnings. Texts and emails must not be used to issue warnings. However, as referred to above, where the individual has provided an email address and given their consent to receiving emails, the responsible officer may email the individual to ask them to contact them. They can then discuss delivery of the formal written warning.

Home visits, in response to any non-compliance, can improve the chances of the individual continuing to engage in the supervisory/rehabilitative process since such a visit:

• reinforces to the individual the importance of compliance (reinforces the care and control elements of supervision);
• allows speedy decisions about whether failure to comply was for acceptable or unacceptable reasons;
• provides opportunity for early identification of any problems or barriers which are impacting upon the individual (e.g. relapse in to alcohol or drug use); and
• provides confirmation that the individual is still resident at that address (or, conversely, that the individual no longer stays at that address thus allowing prompt and appropriate action - such as notification to the court).

Home visits do not necessarily have to be made by the responsible officer. For example, where there is a need to simply verify home circumstances - or check whether the individual is still resident at a particular address - this could be carried out by another member of staff who feeds back to the responsible officer.

The responsible officer may use their discretion as to the degree of flexibility afforded to the individual in terms of appointments. For example, offering more appointments where appropriate (weekly rather than monthly), may prove helpful in encouraging compliance. In these circumstances, formal disciplinary actions would only be expected to be taken if the individual did not attend at least one appointment during the month.

Engagement with the judiciary

The courts need to have confidence that poor compliance with CPOs is managed appropriately, and effectively. It is therefore important that justice social worker develop and maintain a good working relationship with their local judiciary by way of regular and routine engagement.

Examples of how this may be accomplished are provided below. This is not intended to be an exhaustive list.

• The justice social work manager meets with the local Sheriff(s) regularly (every quarter), in order to air any issues and to keep them abreast of developments such as a new service provision or the cessation of one.
• Regular liaison meetings are held (every quarter) involving justice social work, Sheriff(s), Sheriff Clerk, Police, EM service provider and defence agents.
• Justice social work hold awareness raising meetings or events for Sheriffs, sheriff clerks and court staff (at lunch time or late afternoon if possible). Shrieval engagement is likely to be maximised if some of these are only for Sheriffs.
• A social worker attends court at least once per week.
• Allocating a specific justice social work administrative worker to specialise in dealing with court paperwork, thereby providing an opportunity to develop good working relationships with the Sheriff Clerk and court staff.
• New Sheriffs are invited to visit the services (not just those for CPOs) to show what is available.
• Floating Sheriffs are provided with an online information pack about the services that are available and evidence of outcomes achieved. It is important that this is kept up to date.
• The local authority CPO annual report is made available to the Sheriff online.
• Regular unpaid work newsletters are made available to Sheriffs online to provide timely first hand evidence of the impact of CPOs.

Management of apparent failures to comply with a CPO

(The management of apparent failures to comply with unpaid work or other activity is separately addressed in section 21 of this guidance).

In all cases where the individual is alleged to have failed to comply with an aspect of the CPO other than unpaid work, the responsible officer should investigate including through full discussion with the individual, whether the explanation provided by the individual for the alleged failure is acceptable or not. It is important that the responsible officer identifies the reasons for the lack of engagement (e.g. ill health, major life event, relationship problems, childcare issues), and supports the individual to address the problem. At the start of a CPO in particular, the individual may test boundaries. This must be dealt with firmly and swiftly to demonstrate the importance of compliance.

If necessary, visits to the individual's home should be carried out as part of these investigations - which should be the norm and carried out with immediate effect where high or very high intensity contact levels are required. Such home visits should be undertaken in accordance with departmental policies and with regard to staff safety.

In this context the following reasons for failure to comply will generally be acceptable:

Ill health. The individual must provide a certificate either in the form of self- certification or a fitness to work certificate dependent on their circumstances.

- individuals should complete a self-certification form for a period up to 7 consecutive days if unfit to work (it can be useful to have a supply of these forms available at the justice social work office);

- if the individual is unfit to attend a CPO appointment at any other time during the six weeks following the end of their self-certified absence, a fitness to work certificate will be required. On a fitness to work form, doctors will be able to advise one of two options:

• Not fit for work - this means that the doctor's assessment of the individual is that they have a health condition that prevents them from attending for the stated period of time.
• May be fit for work taking account of the following advice - this means the doctor's assessment of the individual is that their condition does not necessarily stop them from participating (e.g. they may be restricted in some of the activities required of them). In the statement, the doctor will state the period of time for which their advice is valid (i.e. for how long alternative arrangements may be required to allow the individual to comply with the requirements of the CPO). In such circumstances, and depending upon the facilities available, the CPO may require to be suspended. Where an order may require to be suspended for 3 months or more, consideration may be given to returning the order to court for variation.

If the individual is unfit for work for a short period (one or two days) during the six weeks following the end of their self-certified absence, and they are not able to obtain a fitness to work certificate from a GP for such a short period, a practical solution may be for them to request a compliment slip from the surgery receptionist which is date stamped. This would support the individual's claim that they had attended the surgery in order to obtain a certificate, albeit unsuccessfully.

The responsible officer should not accept more than two self-certificates within 6 months and should not accept any self-certificate after a final warning for non‑attendance has been issued. In circumstances where contact is required with an individual's GP, a medical mandate will be required. (Consent to this should be sought and a mandate fully explained and signed at the post sentence interview, and retained on file). Any information sought from the GP should only be pertinent to the absence and no information other than that which contributed to the absence should be requested.

When the individual has failed to comply with a requirement, responsible officers should exercise their judgement as to the appropriate action to be taken. For example, a review of the individual's case by the responsible officer's line manager with the individual present, may prove useful in securing compliance.

Once invoked, however, disciplinary actions must be followed through unless there are exceptional circumstances which warrant use of discretion (for example, where there has been a significant period since the previous formal disciplinary action was taken).

Where discretion is used, this should be linked to the level of risk the individual is assessed as presenting. In general, the higher the assessed risk, the less discretion should be used. Where it is proposed that discretion is used, this should be discussed and agreed between the responsible officer and their line manager. The outcome of the discussion and the reasons for the use of discretion should be clearly recorded. Where discretion is exercised it should be recorded in the case file.

Breach of RMR and EMO

Sections 12 and 13 of the Management of Offenders (Scotland) Act 2019 set out the standard obligations put on monitored persons and what is deemed a breach of the EMO as well as how breach of an EMO can be taken to be a breach of the requirements of the underlying order (in this case the CPO).

Non-compliance^[15] with a restricted movement requirement or EMO includes (but is not limited to):

• arriving at the place where the individual is restricted too late;
• failure to be present for the installation or withdrawing consent;
• leaving the place of restriction during restriction times;
• attending the place where exclusion applies
• attempting to remove the tag;
• interfering with or damaging monitoring equipment;
• moving address without seeking permission;
• threats or violence towards monitoring staff.

Each non-compliance alert requires a different response from the EM service provider. The EM service contract sets out how and when non-compliance is reported to justice social work. If the non-compliance is a time violation, the individual will receive a warning letter for the first accumulated time violation trigger level breached (and the responsible officer will not receive a copy of this). For any subsequent accumulated time violations breached a non-compliance report will be submitted to the responsible officer.

However, some absences may not constitute a failure to comply. These include, for example, medical or dental appointments, job interviews, attendance at court and police custody, provided these have been independently confirmed. In such cases, these absences will not trigger a compliance report, but will always be reported at the end of monitoring.

Where the individual denies an absence or any interference with the equipment, the EM service provider will take steps to identify the cause of the alert, including checking the equipment for any potential issues and replacing it if necessary before reporting the circumstances to justice social work services.

The EM service provider will produce a report detailing any failure to comply and any reasons for the failure provided by the individual. The report will be accompanied by a computer-generated report which will be certificated as evidence and which will provide the exact date and time of the failure as identified by the electronic monitoring system.

The report and accompanying evidence provided by the EM service provider should be submitted to the responsible officer at justice social work services within 12 or 24 hours depending on the exact nature and seriousness of the non-compliance. Under the legislation the responsible officer must submit a CPO breach report to the court upon receipt of the non-compliance report from the EM service provider. This should occur within 5 working days of receipt of the non-compliance report.

When preparing and submitting the CPO breach report, the responsible officer should provide the court with full information on the individual's engagement with all other aspects of the CPO as well as detailing the circumstances of the breach of the restricted movement requirement.

As with breaches of any requirement, where possible, the responsible officer should continue to engage with the individual in relation to any other requirements imposed. The EM service provider will also continue, wherever possible, to monitor compliance with the restricted movement requirement and EMO.

Should the non-compliance incident indicate a new or increased risk to an individual, group, the community, or the monitored person, justice social work services should take action (such as contacting the police) as soon as possible rather than waiting until the submission of the CPO breach report.

If the individual has entered an exclusion zone this should automatically be reported to police by the EM service provider. In cases where the responsible officer deems that police notification is appropriate, it is advised that they contact the Police directly then the EM service provider to advise of action taken. Consideration should also be given as to whether other partners besides the police need to be notified, such as organisations supporting the individual or any victims.

Restrictions intended to prevent access to a victim/potential victim

In cases involving domestic abuse, stalking and other serious offences including sexual/violent offending, a breach of a condition which is intended to prevent access to victims should be acted upon immediately. Police must be made aware of such a breach as soon as possible in order to ensure appropriate victim safety considerations.

Use of applications to vary a CPO in managing compliance

Circumstances may arise where a second unacceptable failure to comply has not occurred and a final warning has not been issued but it is nevertheless apparent to the responsible officer that the individual may fail to comply with the requirements of the order. In these circumstances the responsible officer should consider whether any variation to the order might help to promote compliance without diminishing the aims of the order in terms of ensuring payback and promoting behavioural change.

Such a variation might be helpful, for example, if the individual has shown themselves unable to comply with a conduct requirement imposed by the court but the responsible officer considers that they would be more likely to comply if subject to a simultaneous residence requirement. An early application to vary may help to avoid the necessity later of instituting breach proceedings. A court may also be able to deal with an application to vary more quickly than with breach proceedings.

Progress review hearings have proved to be a useful tool in sentence management and can have a positive impact on levels of compliance. Responsible officers should consider whether an application to the court to vary the CPO by including provision for progress reviews (under section 227Z(4)(d) of the 1995 Act) would assist successful compliance with/completion of the order, and achievement of desired outcomes. Refer to section 15 of this guidance for further information about progress reviews.

An application to vary should not be used however simply to attempt to reduce the burden of a CPO on an individual where the individual has shown themselves to be unwilling to comply with the requirements of the order.

If the responsible officer considers that variation might be helpful, they should discuss with their line manager whether an application to vary the order should be made to the court for variation as set out in section 15.1 of this guidance. Such an application will only be granted by the court if the individual consents; this requirement is contained in section 227ZA(7)(b) of the 1995 Act.

Where a CPO is varied to include a restricted movement requirement the court will provide the EM service provider with a copy of the order making the variation and EMO.

Formal disciplinary action

Where disciplinary actions are invoked during the course of a CPO in relation to one or more requirements, this should be done where possible in a manner which allows the individual to continue to focus on progress towards successful completion of other requirements, rather than regarding the disciplinary action as inevitably leading to breach. For example, where an individual has not complied with an unpaid work or other activity requirement, but is attending supervision and drug treatment requirements, the individual should continue to be offered opportunities to continue to engage with the supervision and drug treatment requirements.

Significant Occurrence

However, where there has been a significant occurrence, for example, where the responsible officer doubts whether the objectives of the CPO remain appropriate or can be achieved, it may be appropriate to return the CPO to court regardless of the stage the individual is at in the warning process.

An occurrence is regarded as 'significant' when it is deemed to compromise the safety of another person (including justice social work or unpaid work members of staff), or where a condition which was imposed for the purpose of preventing access to victims has been breached. A significant occurrence should always be responded to by promptly returning the order to the court. In cases involving a serious concern for public safety, immediate direct contact with the court will be warranted in order that the court may give consideration to expediting a hearing. During this period, all reasonable additional measures should be taken in order to protect the safety of, and support for, a known victim. For example, the police should be immediately informed of the increased risk to the victim.

For further examples of measures that can be taken throughout the duration of the CPO to protect victims' safety, refer to Section 8 of this guidance.

Unacceptable failure to comply

In general, formal disciplinary action should always be taken where the failure to meet the requirement is regarded as serious (e.g. attempted victim access as above), or where there has been a sustained period of minor failures.

Where an order contains both an offender supervision requirement and an unpaid work or other activity requirement, it is expected that the responsible officer and the unpaid work case manager would work closely together, sharing information and agreeing the way forward should issues arise. Co-locating the justice social work team and the unpaid work team, where possible, can provide regular opportunities for discussion and support effective team communication.

Where the unpaid work case manager believes that an individual is not complying with the unpaid work or other activity requirement, they should discuss this with the responsible officer and request that they initiate breach proceedings. The decision to initiate breach proceedings and return the CPO to court is the responsibility of the responsible officer. The responsible officer should continue to engage with the individual in relation to the other requirements. In submitting a breach report to the court, the responsible officer should provide the court with full information on the individual's performance in respect of other aspects of the order. A sample of a breach report is available at Annex 4.

When the failure to comply does not constitute a significant occurrence but the responsible officer decides that an explanation offered by the individual for failure to comply is unacceptable, the following action should normally be taken:

First unacceptable failure to comply – a formal warning in writing, recorded in the case file and issued by the responsible officer.

Second unacceptable failure – a final warning in writing and again recorded in the case file and issued by the responsible officer.

Third unacceptable failure to comply – letter to the individual indicating that breach proceedings are being instituted.

For the purposes of compliance, warnings issued on separate requirements count as a total when monitoring overall compliance. There does not require to be two warnings issued in relation to one specific requirement to trigger breach of the overall CPO. For example, where an individual receives a warning in relation to an offender supervision requirement and later also receives a warning in relation to an unpaid work or other activity requirement, this results in the person being subject to a final warning.

Cautions can be used to address minor infringements but a caution should not be used in dealing with an unacceptable absence, which should always result in formal disciplinary action. A caution can be given verbally and confirmed in writing. Where a caution is used in response to a failure to comply, it is not a formal warning and therefore is not part of the formal warning process. A caution, for example, may be used when an individual is complying overall, but has failed to comply with one of the conditions (e.g. fails to notify a change of employment, but continues to engage with the CPO).

All warnings should be issued through the use of recorded delivery letters to the last known address. Where the individual has failed to maintain contact and has recently notified a change of address, the responsible officer may wish to also send a copy of the letter, also recorded delivery, to the last two known addresses.

A decision to initiate breach proceedings should be discussed and endorsed by the responsible officer's line manager. If agreed, breach proceedings should be initiated within no more than 5 working days of the decision to breach.

Where a significant risk of harm has been identified, the breach report should be submitted to the court immediately. Action should also be taken to inform the court of the urgency of the application such as a telephone call made to the Sheriff Clerk/Court Liaison Officer and/or a covering letter submitted with the application. In domestic abuse cases, a telephone call should also be made to the Procurator Fiscal to ensure that the case is marked as a domestic abuse related breach. Multi-agency input should continue and a risk-management meeting held with all professionals involved in the case including children's services if appropriate.

The forthcoming court appearance may be used by the responsible officer as an opportunity to motivate the individual to re-engage, if considered appropriate. Unless there is a good reason (incapacity, threat to staff or public) the individual should not automatically be suspended from participation in planned interventions once a decision has been taken to initiate breach proceedings. The responsible officer should exercise their professional judgement to determine whether the individual would be able to sustain the required level of engagement to continue with these interventions, pending the outcome of the court decision. This assessment should also consider the maintenance of credibility of the order/scheme with other participants.

It is the responsibility of the responsible officer to decide on the appropriate action to be taken where non-compliance is alleged except in the case where the alleged non-compliance relates to an unpaid work requirement, restricted movement requirement or EMO. In many instances the decision will be in response to information passed by a third party such as a programme manager/provider etc.

Agreed internal procedures should be in place for the reporting (and recording) of instances of non-compliance in such circumstances. The aim should be for the responsible officer to decide on the appropriate action within 2 working days of the report from the third party, and for the decision to be communicated immediately it has been made to other parties involved in the supervision and to the individual.

It may be helpful for an allocated member of staff to oversee all decisions to submit a breach application to court, in order to maintain consistency of decision-making.