Community Payback Order: practice guidance

6. Assessment of suitability for a Community Payback Order

In proposing to the court that a CPO may be an appropriate sentence to be imposed, account should be taken of the following factors:

• Where a court intends to impose a CPO (other than one imposed under section 227M(2) of the 1995 Act for fine default) on an individual, the individual first requires to indicate their consent (See section 227(B)(9)(b) of the 1995 Act). A pre-sentence assessment of the extent of the individual's needs, ability and willingness to successfully complete a CPO should, except where it is imposed under section 227M(2), be a key consideration.
• A pre-sentence assessment should consider the pattern, nature, seriousness, likelihood and imminence of reoffending to inform decisions about whether a community sentence is appropriate. The assessment should also consider whether supervision/intervention is required to address the individual's offending behaviour, or whether there are indicators of harm to others which warrant more in-depth, offence specific or specialist assessment (e.g. Spousal Assault Risk Assessment (SARA), Risk Management 2000 (RM 2000) or Stable and Acute 2007 (SA07)). A full risk of serious harm (RoSH) assessment at the pre-sentence stage is unlikely to be feasible/possible unless the court allows sufficient time. (For additional information in relation to domestic abuse offences, please refer to the end of this section).
• A CPO can consist of a number of requirements – up to ten are available at the point of sentencing, from which the court may select one or more when imposing a CPO. A CPO may also be imposed instead of a fine in which case only three of the ten requirements can be applied (an offender supervision requirement, a level 1 unpaid work or other activity requirement and a conduct requirement). It is good practice for those preparing the CJSWR to discuss in the report those requirements which would be particularly useful (and those regarded as particularly unhelpful where applicable), having regard to the risk assessment and the individual's circumstances.
• It may be assessed by the CJSWR author that in order to address risks and needs in relation to offending behaviours, particular requirements would be appropriate. If the individual expresses their disagreement to those requirements, it is the CJSWR author's responsibility to notify the court of the requirements assessed as appropriate and indicate to which of these the individual withholds their consent. In such cases the court will decide whether to impose a CPO incorporating only the requirements which the individual consents to, or whether to impose an alternative sentence.
• Where a restricted movement requirement is being considered, additional consideration must be given to the impact this may have on co-habitants within the household including children and vulnerable adults, as well as any victims and residents within the local community. This assessment should include:
  • a summary of the accommodation (e.g. electricity supply, size, etc. both the purpose of the individual's welfare and for the installation of monitoring equipment);
  • a summary of domestic/family responsibilities (including the composition of any family living there);
  • a description of regular activities in which the individual needs to take part;
  • information on any relationship/victim issues, including domestic abuse and/or child or adult protection concerns;
  • any current substance use issues;
  • the views of those likely to be affected by the enforced presence of the individual; and
  • any other issues considered relevant.

Where it is not clear whether an individual would be likely to comply with or manage a CPO, and it is considered appropriate to do so, the CJSWR author may wish to consider recommending a short Structured Deferred Sentence, where available, in order to assess their level of engagement with supervision prior to sentencing. This may serve to assess an individual's ability to comply with supervision in the community and may be used in circumstances where there is more persistent offending and complex needs. A Structured Deferred Sentence may also be an appropriate option where a CPO is considered unwarranted but the individual would benefit from a short period of structured intervention.

Periodic (Progress) Reviews

Progress review hearings have proved to be a useful tool in sentence management and can have a positive impact on levels of compliance. When proposing a CPO as a viable sentencing option to the court, the CJSWR author should consider whether regular progress reviews would assist successful compliance/completion of the order and the achievement of desired outcomes.

In determining whether regular progress reviews would be appropriate, the CJSWR author should have regard to the outcome of assessment of the individual's circumstances, the complexity of their needs (including, for example, difficulties in relation to institutionalisation, mental health issues, substance misuse, developmental stage, trauma or adverse childhood experiences), their current level of motivation and their recent response to supervision. Progress reviews held by the court could also help inform, or be informed by internal department reviews i.e. 3 months, 6 months and 6 months thereafter. (See section 16 of this guidance.)

Domestic abuse

Domestic abuse is often hidden or unreported and so care should be taken to fully explore the offence history, features of which might indicate a pattern of abusive behaviour (e.g. offences under Section 1 of the Domestic Abuse (Scotland) Act 2018, offences under the Communications Act 2003, Breach of the Peace prior to the recording of aggravation categories, Section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 and Sections 38 and 39 of the Criminal Justice and Licensing (Scotland) Act 2010). It is important to note that the statutory aggravation of domestic abuse was not available prior to 2016.

Where available, other agencies (e.g. Multi-Agency Risk Assessment Conference/Multi-Agency Tasking and Coordination group), the CAADA-DASH checklist (also known as Safe Lives Risk Indicator) and the Police Scotland Domestic Abuse Questions (DAQ) may provide relevant victim-specific information. Domestic Abuse Court support and advocacy services, where available, may also provide additional information in relation to compliance with statutory orders.

It is nevertheless important to carry out a thorough analysis of current and historical offences where no domestic abuse aggravator may have been recorded, but concern remains that domestic abuse may be a factor. The CJSWR author should also check information held on local authority systems and where there has been local authority involvement due to a concern about a child or vulnerable adult in the household, identify to whom the concern refers, and take account of the views of the other professionals involved when making a decision as to whether to recommend a CPO. This information can assist in informing an appropriate disposal recommendation. Where appropriate, a check with the Police Domestic Abuse Investigation Unit will establish if there is a history of call outs to the individual's home for domestic incidents.

Domestic abuse takes many forms and the individual may score low on general risk assessments, therefore a specialist assessment tool such as SARA should also be considered at this stage. It is entirely reasonable for justice social work to request an adjournment where a SARA assessment is considered appropriate, in order to establish suitability for an appropriate programme requirement. The CJSWR author should also consider recommending a non-harassment order if appropriate. It is important to note that separation does not eliminate risk to the victim of domestic abuse and risk may in fact be elevated during the period following separation.

16 - and 17- year olds

For children aged under 17 years 6 months, it would be expected that remittal to the children's hearings system would always be considered and the CJSWR should always comment on the option of remittal, and "be clear that remittal is being considered with a view to work being undertaken" (Scottish Government, 2010, p.52.) The rules on remittal are set out in section 49 of the 1995 Act. Remittal to the children's hearings system can be either for advice prior to the court determining how to dispose of the case or for disposal, at which stage the court's involvement with the child would cease.

Justice social work staff working with this group should be familiar with the principles of Getting It Right For Every Child, the Whole System Approach, and reflect this in their practice.