CHAPTER 8
TRANSFER OF ORDERS
General Procedures for Transfers
8.1 Offenders are obliged to notify their Case Manager without delay of any change of address, including when they move to a new court area. In the latter circumstances, the Case Manager will wish to consider whether to seek transfer of the Order or to take other appropriate action.
8.2 Applications for transfer should not be made to the court until (a) the Case Manager is satisfied that it is other than a temporary, short term move, and (b) the offender has moved to the new court area.
8.3 No Case Manager should supervise an Order for a Case Manager in another area without formal transfer of that Order, other than for periods not exceeding 4 weeks when temporary instructions may be issued pending the transfer request to the court.
8.4 The following procedures shall apply to all transfers and the responsibility of the Case Manager for the court transferring the Order shall be to:
- request the officer in the new area to see the offender, confirm the exact address he/she will be staying at and confirm that the move seems to be other than a temporary, short term stay;
- supply the officer in the new area with such information as is necessary to determine whether to accept the transfer. Copies of written file material should be provided:
- the SER, charge(s) and Community Service Order(s);
- the permanent record of attendances, absences and hours worked;
- the case notes;
- risk assessments and reviews;
- copy of previous convictions.
- obtain confirmation that the officer in the new area is willing to accept transfer of the Order;
- on agreement to transfer the Order, send the officer in the new area a full copy of all documents not already sent from the case file.
Transfers: England Wales or Northern Ireland to Scotland
8.5 Where a transfer request is received from England, Wales or Northern Ireland to Scotland, reference should first be made to Circular 3/2005 at Annex 10, which sets out general guidance regarding cross border transfer provisions.
8.6 Where a Community Order with an unpaid work requirement is being transferred from England or Wales (or a Community Service Order from Northern Ireland) the offender requires to be made aware of:
- the different requirements of the Order in Scotland;
- the powers of the court in Scotland in the event of a breach or review action;
- the retained powers of the English, Welsh or Irish court of origin in the event of a breach of review action.
8.7 Agree procedures with the local clerk(s) of the court to ensure the court does not accept an inward transfer of an Order until and unless the Case Manager confirms that arrangements can be made for the offender to perform work under the Order.
8.8 The transferring court in England or Wales must forward the following documents to the equivalent Scottish Court having jurisdiction in respect of the area where the offender resides, or intends to reside e.g. High Court to High Court, Crown Court and Magistrates Court to the Sheriff Court.
8.9 1 copy of the Order and 3 copies of the Amending Order. These copies must be certified as true copies of the original document by the Clerk of the Court i.e. signed copies and not facsimiles.
8.10 Such other documents or information relating to the offender which may be of assistance to the supervising authority, e.g. a copy of the PSR, any psychiatric reports, OASYS assessment, community order performance report and details of previous convictions.
8.11 In the event of breach, the court in Scotland may not exercise any power under sections 239(5)(b) or 240(1)(c) or (d) of the Criminal Procedure (Scotland) Act 1995, i.e. a power to revoke the Order (with or without dealing with the offender for the original offence) either for failure to comply with a requirement of the Order or in the interests of justice. If in the opinion of the court in Scotland the breach is proven it is for the original sentencing court to decide on the appropriate action requiring to be taken.
Transfers: Scotland to England or Wales
8.12 The Scottish Court holding the Order must forward to the equivalent Court in England or Wales having jurisdiction in the area where the offender resides, or intends to reside:
- copies of the Order and 3 copies of the Amending Order. These copies must be certified as true copies of the original document by the Clerk of the Court. The documents that the Clerk of Court is responsible for sending to the Court receiving the Order will be the documents available to the Court at the time of sentencing;
- the Supervising Officer will be responsible for transferring other documents or information relating to the offender which may be of assistance to the Supervising Officer involved, e.g. a copy of the SER, any psychiatric reports, any relevant risk assessments, Community Service performance reports and details of previous convictions;
- where the Order proposed to be transferred is a Probation Order with an additional condition of unpaid work, and the number of hours of unpaid work remaining to be worked at the time of transfer exceeds 100, application should be made to the Court under Schedule 6 to the Criminal Procedure (Scotland) Act 1995 to consider reducing the number of hours remaining to 100. In the event of the court declining to amend the Order the offender should be advised that a move before completion of the Order will result in breach action.
8.13 In the event of a breach of an Order which has been transferred to a court in England or Wales or Northern Ireland, under section 244 of the Criminal Procedure (Scotland) Act 1995 that court may exercise any power which would apply for an Order made in that part of the United Kingdom except a power to vary the number of hours work in excess of that which the originating court could have Ordered or to revoke the order (with or without dealing with the offender as for the original offence).