CHAPTER ONE – AN INTRODUCTION TO PROBATION BREACHES AND OTHER APPLICATIONS
Introduction
Welcome to A Practical Guide to Probation Breaches and other Applications.
This book is designed to provide a practical and pragmatic manual to guide readers through the often-complex provisions relating to court orders in the community, the involvement of the Probation Service and subsequent proceedings relating to those orders.
Focus of this book
This book, as the name suggests, is concerned with Probation breaches and other Probation applications. “Probation breaches” is not a legal term, per se. It is used in this text, primarily, as a helpful shorthand to describe the circumstances where an offender is before the court in respect of a court order previously made because the offender has failed to comply with the court order or has committed further offences during the order.
A phrase that will be used repeatedly throughout this text is “community-based court orders”. Once more, this is not a legal term of art, but does neatly describe the practical realities of both community orders and suspended sentence orders. Both orders permit the person convicted of an offence and subject to the order (referred to as “the offender” throughout this text) to reside in the community with the court order hanging over their head and, in general, with requirements to complete in the community.
This book is specifically concerned with community orders and suspended sentence orders on the basis that these account for the majority of Probation breaches. As a result, this book does not consider post-sentence supervision, licence, or orders relating to youths.
Structure of this book
The book is broken down into three parts, namely:
- Part I: The Probation Service and Court Orders: These Chapters will introduce readers to community-based court orders and the interaction of the Probation Service with those orders.
- Part II: Probation Breaches: These Chapters will take readers through the full process of breach of orders, including getting the offender to court, preparing for the breach, contested breach proceedings, and powers of the court following breach.
- Part III: Probation Applications: These Chapters will provide readers with a full appreciation of the various ancillary applications that can be made in respect of court orders, including amendment and revocation.
The chapters are divided in this manner to assist practitioners in every stage of the proceedings, in both a magistrates’ court and the Crown Court, involving orders subject to Probation supervision; they are designed to focus the mind of readers on the topic in question.
The book also features an appendix that is designed as a quick reference tool for practitioners, and details some of the common mistakes/ errors made in respect of Probation cases.
Probation Breaches and other applications
It will first be necessary to identify what we mean by Probation breaches, and the relevance of that discussion of practice.
What amounts to a Probation breach?
For the purposes of this text, a “Probation breach” includes a failure to comply with the requirements of a court order, and the conviction of a further offence during the order. There are varying degrees of breach which focus on the offender’s compliance with the order – a breach may be particularly serious because the court considers the offender’s lack of compliance to be “wilful and persistent”, or minor where the court considers the compliance to be “high”, for example.
As will be discussed in subsequent chapters, however, whilst “breach” is a useful shorthand, it is not entirely accurate in law. For example, the conviction of a further offence during the currency of a community order is not a breach the community order. Only a failure to comply with the community order requirements amounts to a “breach” in the eyes of the law.[1] This is unlike suspended sentence orders where the court regards both a failure to comply with community requirements, and commission of further offences during the operational period of the order, to be breaches.[2]
Are probation breaches criminal offences?
Perhaps one of the key questions that has to be asked in a book of this nature is whether the breach of a community order or a suspended sentence order amounts to a criminal offence in its own right (and thus meaning one can be convicted of such an offence). The short answer is “no”. Breaches of suspended sentence orders and community orders are not criminal offences; breaches do not result in a conviction. Whilst not the focus of the case, Haddon-Cave J did make this point very clear in R v Maunder[3] where his Lordship, when referring to failures to comply with the requirements of an order, stated that “there is no such offence in law”.[4] It will be worthwhile to briefly develop the point from Haddon-Cave J.
The use of the word “breach” is intentional in the legislation; it is used to reflect the fact that an offender’s conduct during the currency of a court order renders them liable for a penalty in respect of that original court order. In fact, an analogy can be drawn with breach of bail conditions which are also not criminal offences.[5] Where an individual is said to have breached their bail conditions, they may be subject to arrest and may be remanded in custody in respect of the offence that they are charged. However, they are not convicted of a separate offence of breach of bail conditions.[6]
There are a number of key differences between an offence, and a breach. The first is the charge; a defendant is charged with a criminal offence. However, an offender is not charged with breach of an order. There is no charge sheet or Indictment to reflect the alleged breach.
The second relates to the plea that is entered in respect of breaches. A defendant to a criminal charge must enter a plea of “guilty” or “not guilty”. On the other hand, an offender will be asked to “admit” or “deny” a breach of order. This approach is similar to that in breach of bail conditions cases (which are also not criminal offences).
The third relates to the punishment for breaches. An offender who admits or is found to have breached their order is not “sentenced” for it. Rather, the court exercises its powers against the offender.[7] It is often said that an offender is “dealt with” for the breach, as opposed to being “sentenced” for it. Whilst it is correct that an offender can be penalised for a breach (e.g. by the issuance of a fine), the powers of the court generally relate to the court order that the offender is subject to. Unlike most statutory offences, the legislation does not proffer a maximum sentence for breach of court order when dealt with summarily or on indictment.
In totality, therefore, whilst an offender’s breach will be present on their antecedent record (see Chapter 5), it does not result in a separate criminal conviction.
The relevance of this to practitioners is that a failure to comply with a community order or suspended sentence order cannot be used to argue that there has been a conviction for a further offence during the currency of an order.[8]
What of Probation applications?
In addition to Probation breaches, this book would be lacking if it did not deal with the various applications that can be made in respect of court orders. These applications may range from minor amendments to the orders to entire revocation of orders. Such applications may be made by both the offender and the Probation Service. It is important that any practitioner is aware of the court’s powers to amend/ revoke orders and this is discussed in Part III of the book.
Parties to a Probation Breach
In any case where an offender is allegedly in breach of a court order, or has been convicted of further offences during a court order, there will be a number of parties involved. This section will briefly discuss the various parties of relevance in proceedings.
The Probation Service
The reference to “Probation”, of course, reflects the fact that breach proceedings are brought by the National Probation Service, as opposed to the Crown Prosecution Service or some other prosecuting authority.
The Probation Service is responsible for the assessment, sentence implementation, and management of offenders. It does so by working with offenders and other organisations to ensure the effective supervision of offenders who are “known” and “current” to the Probation Service.
The Responsible Officer
Where the court imposes a court order and the offender is subject to the supervision of the Probation Service, the offender will be allocated a “responsible officer”. The responsible officer is a member of the Probation Service, either a Probation Services Officer (PSO) or Probation Officer (PO) dependent on the Risk of Serious Harm an offender presents with and the nature of their offence(s). The duties of the responsible officer are discussed in Chapter 3; in short, the responsible officer must make any arrangements that are necessary in connection with the requirements imposed by the order, and promote the offender’s compliance with those requirements.[9]
As will be discussed in Chapter 11, the responsible officer has the power to amend certain parts of the offender’s order, including (in certain cases), the offender’s place of residence and their curfew requirement. Where the responsible officer’s powers do not extend to a particular amendment, the matter must be determined by the relevant court.
Enforcement officer
The enforcement officer is an officer of the Probation Service and works within the Enforcement Hub of the Probation Service. Amongst other things, an enforcement officer is responsible for ensuring that breach proceedings and applications are fully prepared to the required standard, and ready to proceed before a court. Enforcement officers will quality-check breach information, and will usually be responsible for laying the breach information and applying for a summons/ warrant in the first instance.
Organisations worked with
The Probation Service does not work alone in the management of offenders; many of the services offered are provided through third parties, including treatment requirements and unpaid work requirements. These organisations are separate to the Probation Service; it is important, therefore, to be aware that if an update is required from one of these services, it must be made in good time given the separation from the Probation Service itself.
Advocate for the Probation Service
The responsibility of prosecuting breaches, and making/responding to applications, lies with the Probation Service (either in-house or by instructing counsel to appear on their behalf). In the magistrates’ court, all uncontested breaches are prosecuted by Probation Service Officers (PSOs) whilst contested breaches are generally prosecuted by instructed counsel. However, there is a movement in the Probation Service towards training PSOs to prosecute such contested hearings. In the Crown Court, all breaches and applications (contested or otherwise) are prosecuted by instructed counsel.
The offender
The “offender” is the terminology used in the Sentencing Act 2020 to describe the individual subject to the community-based court order. They are a person who has already been convicted of an offence (and thus “offender” properly reflects that fact). The term “defendant” is not used at all in the Sentencing Act 2020 to describe an individual subject to a court-order or breach proceedings. This is on account that they have already been found guilty of the offence relevant to the court. This text shall use the term “offender” throughout, unless it is necessary to use alternate terminology.
The responsibilities of the offender are discussed in Chapter 3; in short, the offender must comply with any requirement of an order. The Sentencing Act 2020 makes provision that certain obligations, including the need to obtain permission before changing residence, are to be treated in law as a requirement.[10]
The Crown Prosecution Service
The Crown Prosecution Service (CPS) will generally not have involvement in Probation breaches. The CPS will only take over proceedings in circumstances where an offender is convicted of a further offence and falls to be sentenced for that new offence.
The court
Probation matters occur in both the magistrates’ court and the Crown Court. In the magistrates’ court, determination of breaches and applications can be made by either a lay bench of magistrates[11] or a District (and Deputy District) Judge.[12] Generally, court centres will list Probation cases on a particular day of the week, in a particular court (colloquially referred to as “Breach Court”).
In the Crown Court, breach proceedings and applications are determined by a Crown Court Judge (which includes Recorders).[13] Any question whether the offender has breached a requirement of an order, and any question whether the offender has been convicted during the operational period of the suspended sentence, is to be determined by the court and not by the verdict of a jury.[14]
Future of Offender Supervision
In this section, we shall briefly discuss recent developments in the supervision of offenders by the Probation Service in light of workload demands, prison overcrowding, and the impact of legislative amendments. We shall also discuss court-focused initiatives which may impact on the nature of an offender’s supervision.
Early release of prisoners
On 12 July 2024, the Lord Chancellor and Secretary of State for Justice, Shabana Mahmood MP, announced plans that from 10 September 2024, offenders serving a determinate sentence will be released from custody having served 40% of their sentence, as opposed to the present one-half (or 50%).[15] Any offenders who have reached the 40% threshold by this date must be released on licence.
Applicability
This new scheme will not apply to all offenders; certain sexual, violent and domestic abuse related offences will be excluded. Eligibility for release will be based on the offence-type rather than the offender. Therefore, there is no scope to exclude an offender based upon the individual judgement of the Probation Service on the offender’s risk, MAPPA level, security categorisation, or past offences or behaviour.
Termination of End of Custody Supervised Licence Scheme
At present, offenders were being released from prison up to 70 days prior to their conditional release date. This was called the End of Custody Supervised Licence Scheme (ECSL). This scheme was introduced on 16 October 2023 and permitted certain offenders to be released a maximum of 18 days prior to their conditional release date. This was increased to a maximum of 35 days on 8 March 2024, and a maximum of 70 days on 23 May 2024. The Government has announced that when the law changes to reduce the release date to 40%, ESCL will cease to be in effect.
Relevance to this text
The relevance of the early release provisions are limited in respect of this text given its focus on community-based court orders, as opposed to offenders who are released on licence following a term of imprisonment. However, this change in the law will be of great relevance for the Probation Service which will be faced with a wave of offenders being released from the custodial setting and requiring management in the community. It is questionable what impact this will have on the present supervision of offender’s subject to court-based community orders, and whether the Probation Reset (discussed immediately below) will continue to apply, or may even be extended.
Probation Reset
The landscape of Probation Supervision was changed with the introduction of “Probation Reset”. On 11 March 2024, a Written Ministerial Statement to Parliament was laid by the then Lord Chancellor, Alex Chalk MP. In this Ministerial Statement, the Lord Chancellor explained that the reset would ensure intervention and engagement is prioritised towards the first two-thirds of the sentence, on account that experience shows that this most effectively rehabilitates offenders.
Purpose of Probation Reset
It cannot be denied that the Probation Service is stretched to beyond capacity. In addition to the need to alleviate the workload demands of Probation staff, the Probation Reset has been informed by:
- The fact that attention needs to be placed where it will have the greatest impact (i.e. in the early stages of any requirement).
- Measures to handle prison capacity, including the extension to the End of Custody Supervised Licence Scheme (ECSL) to allow certain offenders to be released from custody up to 70 days before the end of their sentence,[16] and the increased use of Fixed Term Recalls for offenders under 12-months imprisonment.
- The anticipated impact of the Sentencing Bill 2023-24 which includes proposals for changes to the use of short custodial sentences and the extension of Home Detention Curfew to offenders sentenced to over four years’ imprisonment.
It is questionable whether Probation Reset will continue to be a policy adopted by the new Labour Government.
What does Probation Reset involve?
Probation Reset impacts on offenders subject to post-sentence supervision, licence, and offenders subject to community orders and suspended sentence orders. It is, of course, the latter that we are concerned with.
For offenders subject to a community order or suspended sentence order, Probation supervision will not continue in the final third of the offender’s sentence. For example, an offender subject to a two-year suspended sentence order will be subject to Probation Reset where they have completed two-thirds of the supervision period of the suspended sentence order.
This means that the offender will not be required to attend appointments with their Responsible Officer.[17] Furthermore, all rehabilitation activity requirement (RAR) appointments and activity days will stop after the offender has served two-thirds of their order. The Reset is mandated across all Probation Areas and applies to both existing and new cases.
The Reset does not impact on non-RAR requirements in a community order or suspended sentence order, including programme requirements, unpaid work requirements, drug rehabilitation requirements (DRR) or requirements involving electronic monitoring.
Offenders on a court order can still be breached in the normal way, particularly if further offences are committed. These changes do not affect other interventions that offenders may be subject to.
Who is eligible for Probation Reset?
Probation Reset applies to all offenders subject to a community order or suspended sentence order, with the following exemptions:
- Multi-agency public protection arrangements (MAPPA) cases (all categories and levels),
- All cases directly managed by the National Security Division (NSD),
- All cases where the offender’s risk is assessed as “Very High Risk of Serious Harm”,
- Cases with current active Child Protection Plan procedures in place,[18]
- Offenders subject to an Intensive Supervision Court Pilot (ISC).[19]
These exemptions can apply at any time during the court order (i.e. an offender who is subject to Probation Reset is capable of having contact with the Probation Service reinstated) if circumstances change which means that the case meets the exemption criteria.
Building Choices
At the time of writing, HMPPS are currently preparing to roll out the “Next Generation of Accredited Programmes” which are scheduled for national rollout in 2025. This is a single programme titled ‘Building Choices’ which has been developed and is currently being tested in three prisons and two probation regions. The ambition of HMPPS is that this programme will provide a streamlined, more coherent, and person-centred approach. It will remove the various accredited programmes under a programme requirement and replace them with the single Building Choices requirement.
Building Choices will be a 26-session programme, with a post-programme module (Moving Forward) to be delivered via a five-day rehabilitation activity requirement (RAR). This means that any offender who is on the waiting list for the Thinking Skills Programme will be transferred to Building Choices.
Reducing the Crown Court Backlog
It is common knowledge that the criminal courts are presently facing a monumental backlog in the case load presenting itself. This is evident across both the magistrates’ courts and in the Crown Court. Different court centres are adopting various initiatives to seek to reduce that backlog, including the listing of Pre-Trial Reviews (PTRs) in the hope of resolving cases without the need for a trial.
A particular initiative of note at this stage is that undertaken by Preston Crown Court. His Honour Judge Altham, Resident Judge for Lancashire and Recorder of Preston, announced on 25 July 2024 that judges at Preston Crown Court, when imposing a court-based community order (i.e. community order or suspended sentence order) will give “particular consideration” to whether such orders should include a direction that they be subject to magistrates’ court supervision.[20] His Honour noted the large number of breach cases listed in the Crown Court daily, and the increasingly large number of offences that are committed for sentence simply because the defendant is also subject to a Crown Court order. The power to direct magistrates’ court supervision will be used where appropriate. This means, as his Honour indicates clearly, that the Crown Court will deal only with cases in which the powers of the magistrates’ court are clearly insufficient/ inadequate.
It will be interesting to see whether other court centres adopted the same or similar approach moving forward in an attempt to assist with the ever-increasing Crown Court backlog.
Summary
This Chapter has covered a general introduction to the Probation Service and probation breaches. In this Chapter, we have discussed:
- The focus of this text on court-based community orders, specifically community orders and suspended sentence orders.
- Probation breaches are not criminal offences and do not result in convictions.
- The parties to a probation breach, including their role and responsibilities.
- The development and future of supervision by the Probation Service and the courts.
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[1] The distinction is explained in Chapter 6.
[2] See Chapter 7.
[3] [2015] EWCA Crim 778, [2015] 2 Cr. App. R. (S.) 26.
[4] ibid, [10] (Haddon-Cave J). Maunder is discussed in greater detail in Chapter 7.
[5] See R v Rowland (CA, 14 February 1991), cited in R v Ashley [2003] EWCA Crim 2571, [2004] 1 Cr. App. R. 23.
[6] Unlike failing to surrender whilst on bail which is a criminal offence (see Chapter 4).
[7] See Criminal Procedure Rules (CrimPR) 2020, r.32.4(a)(iii).
[8] See chapters 6 and 7 where this is discussed with examples.
[9] Sentencing Act 2020, ss.214(2) and 300(2).
[10] Sentencing Act 2020, ss.215(3) and 302(3).
[11] Addressed as “Sir” or “Madam” (singular), or “Your Worships” (collectively).
[12] Addressed as “Judge”.
[13] Addressed as “Your Honour”, unless they are a Presiding Judge or High Court Judge, in which case “My Lord/Lady”.
[14] Sentencing Act 2020, Schedule 10, para 11(8); Schedule 16, para 12(4).
[15] Criminal Justice Act 2003, s.244.
[16] Though as noted above, ECSL will cease when the new law relating to release of prisoners at the 40% mark comes into force.
[17] Thus meaning they will not be required to Keep In Touch as obligated by ss.215 and 301 of the Sentencing Act 2020.
[18] This exemption does not include N-Delius register for Child Concern nor cases involving children assessed as being a Child in Need.
[19] Until such time as the evaluation is completed.
[20] Sentencing Act 2020, ss.211 (community orders) and 297 (suspended sentence orders).