We are testing a new beta website for gov.scot go to new site

Circular No JD/16/06 - Practice Guidance for Court based Social Work Staff & SER Authors on Orders for Lifelong Restriction, Risk Assessment Orders and Risk Assessment Reports

DescriptionGuidance for court based social work staff & enquiry report authors on the Order for Lifelong Restriction, the Risk Assessment order and the Risk Assessment Report
ISBN
Official Print Publication DateNovember 2006
Website Publication DateDecember 07, 2006

Document also available in PDF format (514KB)

Justice Department

Community Justice Services Division

CIRCULAR NO. JD 16/2006

Directors of Social Work/Chief Social Work Officers

Criminal Justice Social Work Managers

Chief Officers (Community Justice Authorities)

For Info

ADSW

SWIA

St Andrew's House

Regent Road

Edinburgh EH1 3DG

Telephone: 0131-244 5434

Fax: 0131-244 3297

elizabeth.carmichael@scotland.gsi.gov.uk

http://www.scotland.gov.uk

Your ref:

Our ref:

24 November 2006

Dear Sir/Madam

PRACTICE GUIDANCE FOR COURT BASED SOCIAL WORK STAFF AND SOCIAL ENQUIRY REPORT AUTHORS ON THE ORDER FOR LIFELONG RESTRICTION, THE RISK ASSESSMENT ORDER AND THE RISK ASSESSMENT REPORT.

I am writing to you in connection with the provisions set out in the Criminal Justice (Scotland) Act 2003 covering the Order for Lifelong Restriction, the Risk Assessment Order and the Risk Assessment Report. Full guidance on all of the above was issued prior to the introcution of these provisions in June this year and additional copies are available from the Scottish Executive Justice Department's Parole and Life Sentences Review Division.

This circular offers further practice guidance on the social work role, responsibilities and tasks that are associated with these new provisions. The guidance has been developed in consultation with colleagues from the Parole and Life Sentences Review Division and the Association of Directors of Social Work. I should be grateful if you would bring it to the attention of appropriate staff in your organisation, especially those who may have responsibility for court based social work services or the provision of Social Enquiry Reports to court.

Should you have any further queries, please contact:

for information relating to this practice guidance - Paolo Mazzoncini, SEJD: Community Justice Services Division on 0131 244 5356 ( paolo.mazzoncini@scotland.gsi.gov.uk) or

for information relating to the OLR provisions - Iain Harron, SEJD: Parole and Life Sentences Review Division on 0131 244 4238( iain.harron@scotland.gsi.gov.uk)

Yours faithfully

MRS ELIZABETH CARMICHAEL CBE

Head of DivisionPractice Guidance for Court Based Social Work Staff

and Social Enquiry Report Authors

on

Offenders Subject to a Risk Assessment Order and

Offenders who are considered for an Order for Lifelong Restriction

Introduction and Context Setting

1. The Criminal Justice (Scotland) Act 2003 creates new provisions for the sentencing and treatment of serious violent and sexual offenders who may present a continuing danger to the public. The Act introduces, amongst other things, the Risk Management Authority, the Risk Assessment Order, the Risk Assessment Report, and the Order for Lifelong Restriction. The Scottish Executive's "Guidance on the Order for Lifelong Restriction" provides further information on all of the above. This can be obtained from the Justice Department Parole and Life Sentences Review Division at the Scottish Executive. Further information is also available on the Scottish Executive's website at http://www.scotland.gov.uk/Topics/Justice/criminal/17309/8067.2. The following practice guidance explains the court social work task in respect of those offenders who are made subject to a Risk Assessment Order under Section 210B of the Criminal Procedure (Scotland) Act 1995 (as inserted by the Section 1 of the Criminal Justice (Scotland) Act 2003). This guidance provides advice on the role and responsibilities for court based social work services in relation to these offenders specifically.3. The guidance also provides information for Social Enquiry Report (SER) authors in relation to the Order for Lifelong Restriction. This guidance provides advice on the role and responsibilities for staff in relation to these offenders specifically.4. Chapter 8 of the Social Enquiry Reports and Related Reports and Court Based Social Work Services section of National Objectives and Standards (NOS) [1] describes social work practice in relation to the preparation of reports for court. The chapter also details the key tasks associated with the provision of a social work service within the court setting. This practice guidance on the new provisions should be read in conjunction with the existing National Objectives and Standards on SERs and Court Based Social Work Services.

The Risk Assessment Order (RAO)

5. The following is an extract from the Scottish Executive's "Guidance on the Order for Lifelong Restriction", which details the process for making a Risk Assessment Order. Particular attention is drawn to the "statutory risk criteria" that has to be met before an RAO can be made."Where an offender is convicted of a serious violent or sexual offence, (sections 210A & 210AA - 1995 Act) or a life endangering offence, or an offence or pattern of behaviour which meets the statutory risk criteria, (section 210E - 1995 Act) which indicates a propensity for violent, sexual or life-endangering offending, the court may make a RAO at its own volition. Alternatively, where the prosecutor has already lodged their intention to apply for a RAO, the court will make a RAO on the motion for a RAO by the prosecutor. (section 210B(2) - 1995 Act)When the prosecutor moves for a RAO, and as part of that consideration for a RAO the prosecutor lays previous convictions before the judge, he shall also provide the judge with such details regarding the offences in question as are available to him. (section 101(3A) - 1995 Act)There is no right of appeal against the granting or refusal to grant a RAO. (section 210B(6) - 1995 Act)The convicted person is taken to the place specified in the Order so that a Risk Assessment Report, that is a report as to what risk the convicted person presents to the safety of the public at large if released, can be prepared. (section 210B - 1995 Act)The Risk Assessment Report for the court is prepared by an accredited risk assessor [who will be appointed by the court] who has been accredited by the Risk Management Authority. (section 210B - 1995 Act)The court cannot make a RAO if the offender is already subject to an OLR or if it is satisfied that it is appropriate to make an Interim Compulsion Order. (sections 210D(1) & 210B - 1995 Act)"

The Risk Assessment Report (RAR)

6. Once the RAO is made, the Court will commission the preparation of a Risk Assessment Report (RAR). This report will be prepared by a person accredited by the Risk Management Authority for such a purpose and must comply with the stated RMA procedures for conducting risk assessments and writing risk assessment reports [2].7. The court will have access to a list of the accredited risk assessors and appoint a suitable individual from this list. The court will adjourn proceedings for no more than 90 days so that the assessment can be carried out and the Risk Assessment Report prepared. The court has the power to extend the adjournment by not more than 90 days in certain circumstances, if cause is shown [3].

The RAR, the Social Enquiry Report and Other Reports

8. Section 21 of the Criminal Justice (Scotland) Act 2003 requires the court to obtain from a relevant officer of the local authority a report concerning the person's circumstances and character, in all cases involving sexual offenders [4]. There is also provision for the court in cases where the person has been convicted of the sexual offence on indictment to obtain a psychological assessment on the individual from a chartered clinical or forensic psychologist [5]. In effect, this means that the court may be asking for two other reports alongside the RAR in cases involving sexual offenders. It is unlikely that the timescales for the preparation of all these reports will dovetail. Moreover, the fact that different professionals are doing different reports may be somewhat confusing for the offender. Court social work staff can help the offender by explaining the roles/responsibilities of the professionals involved as well as the purpose of each of the reports.

Provision of the SER to Court

9. NOS makes clear that SER authors should review all the sentencing options available to the court when preparing an SER: community based and custodial options. With respect to those individuals who are made the subject of a Risk Assessment Order, it is likely that the court will be seriously considering custody as a disposal, given that the statutory risk criteria has been met, i.e. the offender shows a propensity for violent, sexual or life-endangering offending. SER authors will want to acknowledge this in their reports. SER authors will also want to state clearly in their reports whether there is still a need for post custody supervision, in the event that the court decides against making an Order for Lifelong Restriction. Given that the individual is appearing on indictment at the High Court, a significant determinate (or potentially indeterminate) sentence may be imposed in such circumstances. SER authors will want to consider and comment on whether an Extended Sentence Order might be an appropriate option, should the court decide against an OLR.

Use of the SER by RAR Author/Independent Risk Assessor and Attendance at the Multi-Disciplinary Meeting

10. If the court requests an SER and an RAR at the same hearing, the SER will be required before the RAR. This is because the timescales for completion of the SER are shorter than those for the RAR. The Clerk of the Justiciary will provide the court appointed risk assessor with information on the offender and the court proceedings. This will include, amongst other things, any report that has been written for the court (e.g. the SER). The offender has the right to instruct an independent risk assessor to carry out an independent risk assessment. The independent risk assessor will have the access to the same information as the risk assessor chosen by the court. The court appointed risk assessor/independent risk assessor may make reference to the information held within the SER as part of their own report.11. In gathering information for the RAR, the court appointed risk assessor will usually convene a multi-disciplinary meeting. A variety of professionals who have knowledge of the offender or an interest in his/her future management may be invited to attend this meeting. This may include the SER author and the independent risk assessor, if applicable. The purpose of this meeting is to provide a forum within which relevant information can be shared to assist the risk assessment process; those attending the meeting are not required to agree the risk assessment or formulate risk management plans [6].

Order for Lifelong Restriction (OLR)

12. The following is an extract from the Scottish Executive's "Guidance on the Order for Lifelong Restriction". The OLR became available to the High Court as a sentence on 20 June 2006.Summary of the Order for Lifelong Restriction (OLR) ProcessThe process for the new law can be summarised as:
  • Convicted person is identified as potentially satisfying the statutory risk criteria. (section 210E - 1995 Act)
  • Prosecutor lodges their intention to apply for a RAO with the court and then makes a motion for a Risk Assessment Order (RAO). (section 210B(2) - 1995 Act)
  • In the absence of the prosecutor moving for a RAO, the court may make a RAO of its own volition. (section 210B(2) - 1995 Act).
  • The court makes a RAO because it considers that the statutory risk criteria may be met. (section 210B - 1995 Act) There is no appeal against a RAO. (section 210B(6) - 1995 Act)
  • The court adjourns for a period of up to 90 days to allow for the risk assessment to take place. (section 210B(4) - 1995 Act) The period of adjournment may be extended on one occasion by not more than 90 days. (section 210B(5) - 1995 Act) Where the reason of circumstances for the delay is outwith the control of the risk assessor, the court may grant a further extension of adjournment as appears to it to be appropriate.
  • The court appoints an accredited risk assessor (section 210B(3) - 1995 Act) to write the risk assessment report. (section 210C - 1995 Act)
  • The accredited risk assessor submits their risk assessment report to the court. (section 210C(4) - 1995 Act)
  • During his period of detention, the convicted person may also appoint an independent risk assessor, who does not need to be accredited, to write a risk assessment report. (section 210C(5) - 1995 Act)
  • The independent risk assessor, if appointed, submits their risk assessment report to the court. (section 210C(5) - 1995 Act)
  • Where the convicted person objects to the contents of the accredited risk assessor's risk assessment report, he and the prosecutor are entitled to produce and examine witnesses. (section 210C(7) - 1995 Act) To allow this to happen, the convicted person may lodge a formal objection with the court.
  • The prosecutor and convicted person may cite witnesses at a hearing to examine the content or the findings of the accredited risk assessor's risk assessment report. (section 210C(7) - 1995 Act)
  • The High Court at its own instance or on the motion of the prosecutor can make an Order for Lifelong Restriction if it is satisfied that on the balance of probabilities, the statutory risk criteria are met. (section 210E & F - 1995 Act)
  • The prosecutor may, on the grounds that on a balance of probabilities the statutory risk criteria are met, appeal against any refusal of the court to make an Order for Lifelong Restriction. (section 210F(3) - 1995 Act)
  • Where the convicted person is imprisoned or detained following the making of an OLR, a Risk Management Plan must be produced by Scottish Ministers within a period of 9 months after the convicted person is sentenced. (sections 7 and 8 - 2003 Act)
  • The Risk Management Plan (RMP) must set out an assessment of the risk, what measures should be taken to minimise the risk and be in a form specified and published by the RMA. (section 6 - 2003 Act)
  • The designated Lead Authority must report annually to the RMA as to the implementation of the RMP. (section 9 - 2003 Act)

Court Based Social Work Interview

13. Sections 8.4 and 8.5 of the Social Enquiry Reports and Associated Court Services Standards make clear that certain offenders are considered a priority for interview by court based social work staff. Those individuals who are made subject to an RAO are now added to that list of offenders.14. The purpose of the social work interview is threefold. It is about:
  • clarifying for the offender the court's decision. The worker will need to explain to the offender what being subject to an RAO means in practical terms. This is likely to involve the worker in describing the RAO and RAR processes, focusing on the key people who are liable to be involved, the timescales for the preparation of the RAR (and other reports, as noted above, for sexual offenders), the case conference approach to information gathering, etc. It will also be important to indicate that the offender has a right to challenge the findings of the RAR and request their own RAR, though clearly the offender's solicitor will be best placed to advise him/her on this matter.
  • checking if there are any issues - of a personal, social or familial nature - which need to be addressed. This may include, for example, alerting the offender's housing provider to the fact that he/she has been remanded in custody or explaining to family members what the RAO means.
  • checking whether there is any information which needs to be passed on to the Scottish Prison Service (SPS) for public protection purposes or in order to allow it to better care for the offender. The former aspect of this is clearly in line with the information sharing requirements of Section 1 of the Management of Offenders Etc. (Scotland) Act 2005. Whilst the latter aspect is aimed at ensuring that SPS is alerted to any significant concerns, prior to the offender's arrival in custody[7].

Timing of the Court Based Social Work Interview with the Offender

15. The interview with offender has been scheduled at the point where the court makes the RAO; that is, prior to the court's final sentence. This differs from other court based social work interviews which occur at the point when the offender is finally sentenced. This has been deliberately designed in this manner in order to (a) give the offender the appropriate information and assistance at the right time, and (b) to facilitate information sharing with SPS. That said, it is important to stress the following caveat in relation to the foregoing. Where the court decides against making an Order for Lifelong Restriction, though decides to impose a custodial sentence that will involve statutory supervision post release, then court social work staff should still seek to interview the offender at the end of proceedings. This is in line with the existing practice standards and, in this context, is primarily about explaining the court's decision.

[1]Scottish Executive, (1998), National Objectives and Standards for Social Work Services in the Criminal Justice System, Edinburgh: Scottish Executive Justice Department.

[2]Further information on the Risk Management Authority and its procedures for conducting risk assessments and writing reports for the court are available on the web athttp://www.rmascotland.gov.uk/home.aspx

[3]The court has the power to adjourn for a further period after the 180 day period has elapsed, in exceptional circumstances.

[4]More precisely, this is in respect of those offenders who have been convicted of a sexual offence as defined in Section 210A(10) of the Criminal Procedure (Scotland) Act 1995.

[5]This provision has yet to be commenced.

[6]More information on the RAR and the Multi-Disciplinary Meeting is available onhttp://www.rmascotland.gov.uk/viewfile.aspx?id=138

[7]It is acknowledged that many of the offenders who are made subject to an RAO may potentially have been on remand prior to the RAO being made. As such, there may in reality be little information that needs to be passed on to SPS colleagues. However, this should not be presumed as being the case; proper checks still need to be made.