Scottish Government

ANNEX 9

Procedural Guidance - Breach

1. LEGISLATIVE BASIS

The legislative basis for breach is as follows:

Community Service Order

Criminal Procedure (Scotland) Act 1995 Section 239

2. NATIONAL OBJECTIVES AND STANDARDS

Requirements in respect of enforcement and breach are outlined in National Objectives and Standards for Community Services Orders.

3. PROPOSED PROCEDURE

Breaches

i) An alleged breach (or application for review, variation etc.) is reported to the Clerk of Court by the supervising social worker/monitoring officer using a standardised form (examples in Annexes 9B and 9C). This will be lodged within 5 days of the decision to instigate proceedings. This standardised front sheet will effectively be the complaint or indictment and refer to the relevant legislation and the specific, dated conduct complained of that purports to constitute the breach of the Order.

This form should be accompanied by a Breach Report placing the current alleged breach in the context of the offender's attitude to, and previous efforts to comply with, the Order. The circumstances of each breach will obviously be varied and the Breach Report would reflect this. It is proposed that the Breach Report would contain the contextual information in relation to the breach. This would include:

• information on the offender's progress throughout the Order and the circumstances which led to the breach;
• the report would also contain relevant information on changes in offender's circumstances where these are known to the report author;
• in addition, the report might contain a reasoned opinion as to whether the Order could usefully continue or be revoked in the event of the breach being accepted or proved. This would also provide the report author with the opportunity to give an opinion on the options for dealing with the breach.

It is intended that this Breach Report should obviate the need in many cases for a subsequent background report to be provided before the court feels able to pass sentence on the breach.

The Breach Report (Annex 9C) lodged at court by the supervising officer should be accompanied by two full copies, one for intimation on the offender and a second copy for the PF which should also contain statements relating to all witnesses who may speak to the relevant matters. This information is put on a single, standardised proforma known as the Witness Schedule (Annex 9C). This form would contain details of staff (or others) who might be cited to give evidence in court along with those aspects of the non-compliance which they are able to testify to. The form would be countersigned by the supervising officer responsible for the submission of the breach report to court.

The information should be detailed and the alleged failure(s) on the part of the offender should be clearly specified, particularly as to date. (Though the evidence of one witness may be sufficient evidence in proving a breach, it is desirable that the Procurator Fiscal knows about all the available evidence in order to prepare the case in the intervening period.)

This process would greatly simplify the breaching community service officer's task into a single submission to the clerk of court at the start of the breach procedures with no subsequent procedural follow-up action.

ii) The Clerk of Court will bring the alleged breach/application to the attention of the sentencer as soon as possible with an enquiry as to whether breach proceedings should progress and whether the offender should be cited or a warrant to apprehend issued.

iii) The sentencer decides whether the case should proceed and, if so, authorises either citation or warrant to apprehend. The Clerk informs the Community Service Officer of the decision in writing, and issues directly to the Police the warrant to apprehend or citation for police service. A copy of the report form and breach report should also be served on the accused. This may prove beneficial in reducing the time necessary in preparing any defence and may also concentrate the issues for the accused when actually deciding whether to admit or deny a breach. The Clerk of court will forward the PF's copy of the report etc, with witness statements together within a copy of the warrant for service for information purposes.

If the case is not to proceed the Clerk informs the Community Service Officer/Social Worker.

iv) At the first hearing the accused will admit or deny the breach. Where denied a proof hearing will be scheduled for no later than 6 weeks.

v) When a proof hearing is required Social Work witnesses may be able to request an arrangement with the Procurator Fiscal, where possible, whereby the supervising social worker/officer is on standby to appear as a witness within an agreed period of time (e.g. between 30 and 60 minutes). If it emerges that the case will not be contested the witness need not attend. Where the case is contested the witnesses will attend as agreed. The responsibility for such arrangements rests with the Social Worker/Community Service Officer in each case (1) in liaising with the Procurator Fiscal to acknowledge receipt of the citation, (2) to initiate any stand-by arrangement with the Procurator Fiscal and (3) to adhere strictly to the terms of the agreement with the Procurator Fiscal.

vi) At the hearing where the breach is accepted or proved, the sentencer will have available the breach report which should furnish sufficient information to enable the case to be disposed of. The sheriff may of course have the power under section 245J of the 1995 Act as inserted by section 48 of the Criminal justice Act 2003 to adjourn for a supplementary breach report should this be considered necessary.

The Clerk will notify the Criminal Justice Social Work Service in writing of outcomes at each stage in the process (a) the sentencer's decision; (b) diets; (c) outcomes (proof), outcomes (disposals) including where the case is dealt with by a Custody Court following the execution of a warrant to apprehend. Styles of intimation would be available in PC format. Transmission by electronic means should be employed where arrangement s can be made.

Intimations, both to CJSW and the Procurator Fiscal where appropriate, should be transmitted by the Clerk of Court within seven days of receipt of the Sheriff's decision.

4. PROPOSED TIMESCALE FOR PROCEDURES

It is accepted that "remote" courts will be unable to meet parts of this timetable due to reduced attendance of the sheriff and the gaps between court sitting dates. It will be a matter for these courts to agree revised timetables, whilst remaining within the spirit of these guidelines, with local CJSW offices and PFs, the final agreed time limits to be approved by the principal sheriff clerks. It is likely in these instances that maximum time limit one will be extended to 7 days and time limit two to 6 weeks. In certain circumstances it may also be necessary to extend number three maximum to eight weeks.

Given that breaches relate to persons already convicted and subject to a court Order there is an argument for them receiving adequate resourcing and a degree of priority by all criminal justice participants.

Other types of applications for the Court consideration:

The fast track procedures proposed for breach applications to sheriff courts will also apply to other actions initiated to court during a supervision order - e.g.: applications to revoke, vary/review, amend or transfer an Order. Such actions should be initiated within 5 days of the decision to make the application to court using the relevant, (Annex 9B) form. This front sheet would indicate the strict terms of the nature and grounds for the application.

This Report should set out in greater detail the context and circumstances surrounding the application and the reasons why the conclusion has been reached that such an application is required or thought desirable/necessary. No witness statements are required .Two copies of the papers should accompany the principal application.

Warrants to Apprehend

When a warrant to apprehend is revoked by the Sheriff during a review of outstanding warrants, the clerk of court shall inform the supervising officer accordingly. On receipt of such intimation the Social Worker/Supervising Officer should, where appropriate, apply for revocation of the Order and when the Court has considered this, the Clerk of the Court should inform CJSW in writing in order that the case file may be formally closed.

5. CHECKLIST FOR STAFF

From 2 February 2004, no separate complaint will be issued (by any agency) in relation to an application to breach a court Order. It is important therefore that the form in (Annex 9C), is concise, accurate and does not stray beyond setting out the precise grounds of breach. Each ground of breach should be contained in a separate paragraph on the form. On each occasion, this should state the date (or dates) on which the alleged non-compliance took place; the specific conduct complained of; note a lack of reasonable excuse for the breach and state the precise legislation broken.

Illustration: That on 1 January, 8 January and 15 January, he/she failed to report to his/her supervising officer as instructed without reasonable excuse, contrary to section 239(1)(a) of the Criminal Procedure (Scotland) Act 1995.

No other contextual or background information should be contained within this form.

Please be sure to change the heading on the form in Annex 9C to reflect the type of Order being breached and the relevant legislation that applies to that Order. Where a Probation Order is being breached, care should be taken to note whether the Breach is in relation to non-compliance, conviction for further offence or both, with the relevant legislation being stated.

Breach Report

Accompanying each form (Annex 9C) there should be attached a separate Breach Report, headed as such. The purpose of this Report is:

(1) to place the non-compliance complained of in form (Annex 9C) in the context of the record of the Order as a whole, including the circumstances leading up to the breach, any warnings issued and other contributory factors;

(2) to report any relevant changes in circumstances since the original SER when the court Order was made, where these are known to the supervising officer (where there is no relevant change to report, state so);

(3) to provide a reasoned assessment & opinion as to whether there is value in the Order continuing or whether it should be revoked;

It is permissible to take the opportunity where appropriate to give an opinion on options for dealing with the breach.

(4) no details concerning witnesses should be contained within the breach report.

It is hoped the breach report should contain sufficient supplementary information to obviate the need for the court to continue the case for a full SER before disposing of the breach.

Witness Schedule

A separate Witness Schedule, headed as such, should always accompany form (Annex 9C) and the Breach Report. The Schedule is for use by the Procurator Fiscal, who will make use of it where the breach is contested. It will not subsequently be made available to either the offender or the court.

It is important to be precise as to what aspect of the non-compliance each witness can testify to. Four numbered paragraphs are provided in the Schedule in relation to each witness: use only what is needed but provide additional paragraphs where necessary. Some witnesses may be able to give evidence in relation to written material which you wish to present as part of the case before the court (e.g.: evidence of Order being served; warnings issued; written instructions given; etc). In these circumstances, bring together all such written evidence that the individual witness can testify to under a single numbered paragraph in each case.