Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences

This document presents the findings of an evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences. The evaluation was conducted by Scotcen Social Research during 2013-14.

6 Engagement, Compliance and Breach

6.1 In this chapter, we move from consideration of how (and how often) CPOs are being used to questions of effectiveness, engagement and enforcement.

6.2 The chapter starts with an examination of the unit level data relating to the outcomes for individual orders, and focuses in particular on levels and patterns of completion and breach, overall and for different types (and combinations) of requirements. It then draws on qualitative interviews with criminal justice practitioners, and the surveys of Sheriffs and CJSW managers, to explore some of the issues around the use of reviews and breach proceedings. Finally, the views and experiences of offenders - as captured in qualitative interviews - are examined, with a view to understanding how much those subject to CPOs understand about what is expected of them, how they feel about the orders and how seriously they take them.

Outcomes of CPOs/different requirements

6.3 The evaluation team was given access to the anonymised unit-level dataset underlying the aggregate statistics reported in Chapter 3. This allowed a focus on the outcomes for individual orders and for some analysis of the key predictors of those outcomes. It is important, however, to recognise the limitations of these data. Most importantly, the data tell us little about the offender and nothing about the crime or offence for which the order was made. For example, a higher proportion of orders involving Supervision and Compensation Requirements were successfully completed than orders involving Supervision and DTRs. It cannot be concluded from this that the former are working better than the latter, because the differences in outcomes may well reflect the characteristics of those receiving the different requirements. This is especially important when considering the outcomes for orders with multiple requirements, as these are more likely to be imposed for more serious offences.

6.4 The dataset includes orders either terminated between April 2012 and March 2013, or still in force at the end of March 2013. As the first orders were made in February 2011, analysis which focuses on terminations will naturally be slightly biased in that it cannot include any orders in force for more than 26 months. Complete data for a case, including information about the order when it was imposed, and information about the order when it was terminated, is only available for orders imposed and terminated with the 12 month period covered by the dataset. Any analysis which requires both sets of information will be biased to an even greater extent towards orders of short duration[22]. As the dataset builds over time, these biases will be reduced.

6.5 Some combinations of requirements are rarely used, so the figures presented in Table A6.1 in Appendix 4 are based on small numbers. Considerable variation in these figures for these particular combinations would be expected over time, and data for one year only are unlikely to reflect the whole picture.

6.6 The analysis presented here is also subject to constraints on data availability. No data were provided for Aberdeen City, Fife or Moray.

Overall outcomes

6.7 At the national level, figures published by the Scottish Government[23] show that around two-thirds (69%) of CPOs terminated in 2012-13 were successfully completed or discharged early. One in six (18%) was revoked due to breach, and one in twenty (5%) revoked due to review. We will now explore the underlying variation, both on a geographic level, and according to the different requirements of the CPO.

Variation in outcomes by number of requirements

6.8 Overall, 60% of CPOs in 2012-13 had only one requirement. Of these, most (85%) were Level 1 orders with an UPWOA Requirement only. The remaining 15% included Supervision Requirements only. Overall, three quarters of all orders with only one requirement (75%) were completed successfully.

Table 6.1: Outcome of CPOs terminated in 2012-13 by number of requirements (percentages)

Number of requirements
1 2 3 4 5+ All
Successfully completed 75% 55% 55% 49% 41% 67%
Early discharge 1% 5% 5% 12% 3% 3%
Revoked due to a review 4% 5% 5% 7% 7% 5%
Revoked due to breach 13% 24% 26% 21% 38% 18%
Other 8% 11% 9% 10% 10% 9%
Total 5059 2022 1213 163 29 8486

Notes: (1) Other includes transfer out of area, death, and other outcome. (2) Totals may not agree with published figures, which take into account aggregate returns from those authorities not providing unit level data. (3) Columns may not add up to 100%, due to rounding.

6.9 Orders with more than one requirement had lower completion rates. For example, when two or three requirements were included in the order (i.e. Supervision, plus one or two further requirements), 55% were successfully completed, with a further 5% receiving an early discharge. For orders with four requirements, the proportion successfully completed was lower, at 49%, but the proportion either successfully completed or receiving an early discharge remained around 60%. For five or more requirements, the proportion either successfully completed or receiving an early discharge was lower, at around 45%, but the small total number of such orders (n=29) means that little can be inferred from this. Overall, then, we can conclude that CPOs with a single requirement are more likely to be completed but that increases in the number of requirements beyond two do not raise the risk of non-completion further.

Variation in outcomes by combinations of requirements

6.10 Table 6.2 is an extract from Table A6.1 in Appendix 4. It shows the outcome for CPOs with the most common combinations of requirements.

Table 6.2: Outcome of CPOs terminated in 2012-13 by combination of requirements (percentages)

Combination of requirements
Unpaid work and other activity only Supervi-sion only Sup. + UPWOA Sup. + conduct Sup. + UPWOA + Comp. Sup. + UPWOA + Prog. Sup. + UPWOA + Cond.
Successfully completed 76% 65% 54% 61% 52% 43% 59%
Early discharge 0% 3% 5% 3% 6% 7% 5%
Revoked due to a review 4% 5% 6% 4% 6% 6% 4%
Revoked due to breach 12% 16% 25% 23% 24% 35% 25%
Other 7% 10% 11% 8% 13% 9% 7%
Total 4321 738 1390 371 142 113 674

Note: Columns may not add up to 100% due to rounding.

6.11 More than half the CPOs completed in 2012-13 had UPWOA as their only Requirement. The next most common arrangement was for Supervision and UPWOA, followed by Supervision only. Other combinations used in more than 100 orders completed in 2012-13 had requirements of Supervision and Conduct; Supervision, UPWOA, and Compensation; Supervision, UPWOA, and Programme Requirement; and Supervision, UPWOA, and Conduct Requirement.

6.12 Of these seven different types of CPO, those with just an UPWOA Requirement had the highest rate of successful completion (76%), and the lowest rate of being revoked due to breach (12%). Those with just a Supervision Requirement had the next highest rate of successful completion (65%) and next lowest rate of revoke due to breach (16%). Those CPOs which included a Programme Requirement, as well as Supervision and UPWOA, had the lowest rates of successful completion (43%), and highest rate of being revoked due to breach (35%), although they only represented 1% of all CPOs. The levels of revocation due to breach were similar for the other four most commonly used arrangements (between 23% and 25%).

6.13 Table A6.1 in Appendix 4 shows outcome details for all other combinations of two requirements and combinations of three requirements used in at least 60 orders.[24] Because of the small numbers involved, it is inadvisable to infer anything about the relative success of different combinations of requirement from Table A6.1. Most combinations of two or more requirements actually have relatively similar levels of successful completion, between 39% and 61% (with the exception of Supervision and Compensation Requirement). However, the table does raise some issues that may require further investigation.

  • CPOs containing a Programme Requirement have low levels of successful completion (39% of those with Supervision and Programme Requirements), and high levels of early discharge (14%).
  • CPOs containing an ATR have higher levels of successful completion when there is no additional requirement of UPWOA (59% of those with ATR and Supervision Requirement, compared with 47% of those with an additional UPWOA Requirement).
  • The same pattern can be seen for CPOs containing a Compensation Requirement (73% successful completion for those with a Compensation Requirement and Supervision only, compared with 52% of those with an additional UPWOA Requirement).

Court disposals for orders revoked due to breach or revoked due to review

6.14 Offenders whose CPOs were referred back to the courts or the procurator fiscal for breach, review or other reasons were given a new disposal by the courts, either a custodial sentence, a new CPO, a monetary penalty, or some other penalty or outcome. 'Other penalties' available to the court include other community sentences, such as DTTOs and Restriction of Liberty Orders. 'Other outcomes' include outcomes in which there is no penalty, such as absolute discharge, admonishment or psychiatric assessments, as well as unknown outcomes. Table 6.3 and Table A6.2 (from Appendix 4) summarise these disposals for CPOs that were revoked due to breach or review in 2012-13.

Table 6.3: Disposal of CPOs revoked due to breach or review in 2012-13, by combination of requirements (percentages)

Combination of requirements
Unpaid Work or Other activity Supervi-sion Sup. + UPWOA Sup. + conduct Sup. + UPWOA + Comp. Sup. + UPWOA + Prog. Sup. + UPWOA + Cond.
Custodial sentence 29% 38% 37% 36% 19% 28% 31%
New CPO issued 31% 24% 26% 13% 31% 28% 26%
Monetary penalty 8% 3% 3% 5% 2% 2% 3%
Other penalty issued 2% 3% 3% 8% 5% 0% 4%
Other outcome 30% 33% 31% 39% 43% 41% 36%
Total 695 156 420 103 42 46 194

Note: Columns may not add up to 100% due to rounding.

6.15 The disposal is likely to reflect both the nature of the original offence and the reasons the CPO was revoked. Custodial sentences were given in 28% to 38% of cases, depending on the combination of requirements of the original CPO, with the exception of the combination of Supervision, UPWOA, and Compensation Requirements (19%), and the combination of Supervision and ATRs (50%). Because of the small numbers of cases involved, little should be read into these differences, and further research is required to determine the reasons for them.

6.16 A new CPO was the most common outcome when there was no Supervision Requirement in the original CPO (in 31% of cases). New CPOs were also issued in more than 20% of cases when Supervision was the only requirement, or when there were two or three requirements in addition to Supervision. However, when there was only one requirement in addition to Supervision (with the exception of UPWOA), between 8% and 13% of cases only resulted in a new CPO being issued. Hence it could be suggested that courts were less likely to feel a new CPO could be successful if the original CPO that was referred back to them was addressing a single specific issue, such as drug or alcohol treatment or Conduct.

6.17 Monetary penalties were rarely used when CPOs were referred back to the courts. They were most commonly used when there was no Supervision Requirement, which tends to be for minor offences but, even so, in just 8% of cases.

Variation in outcomes across Scotland

6.18 Further variation in outcomes can be seen by looking across the different local authorities of Scotland (see Table A6.3 in Appendix 4).

  • Rates of successful completion ranged from 54% in Renfrewshire and Scottish Borders to 92% in Eilean Siar.
  • 19% of cases in Shetland, 16% in Angus and 15% in Scottish Borders resulted in an early discharge, compared with 3% nationally.
  • 5% of cases nationally were revoked by review, with no more than 10% in any local authority.
  • Only 4% of cases in Orkney were revoked due to breach, compared with 18% nationally. Revocation due to breach was most common in Clackmannanshire and Perth & Kinross (29%).

6.19 What this table does not show is the reason for this variation. Some of the variation can be explained by looking at Table A6.4 (in Appendix 4). This shows the number of requirements by local authority, for orders completed in 2012/13, splitting those with just one requirement into Supervision and UPWOA.[25] The correlation between the proportion of orders with just an UPWOA Requirement and the proportion successfully completed is actually quite weak.[26] While some authorities, such as Midlothian, have high levels of successful completion as well as high levels of orders containing an UPWOA Requirement only, others, such as Eilean Siar, have high levels of successful completion, but far fewer orders with just an UPWOA Requirement.

6.20 Another factor which can explain some of the variation is the way in which breach applications during the lifetime of the CPO are processed. Roughly two-thirds of breaches in orders which finished during 2012/13 (64%) resulted in a CPO being revoked. It is therefore not surprising to find that there is a strong correlation between the proportion of CPOs in each local authority with no breach applications and the proportion successfully completed.[27]

6.21 However, there is considerable variation between authorities in terms of whether breach applications directly lead to a CPO being revoked. Fewer than half of the CPOs in which a breach application was made in Argyll & Bute, East Lothian and Glasgow City resulted in the CPO being revoked due to breach. In Glasgow, 30% of orders in which a breach application was made had a change to the order as a result. This figure was even higher for West Dunbartonshire (35%), although as a result of far fewer orders. 47% of orders in which a breach application was made in Argyll & Bute, and 42% in East Lothian resulted in no change to the order. In East Renfrewshire, Eilean Siar and Inverclyde, all orders in which a breach application was made were revoked due to breach (Table A6.5 in Appendix 4).

Predictors of successful completion

6.22 Logistic regression allows us to consider whether the inclusion of a particular requirement in a CPO increases or reduces the likelihood of successful completion, taking into account some of what is known about the offender.[28] Details of the analysis undertaken are provided in Table A6.6 (in Appendix 4).[29]

6.23 Given the findings in Table 6.2 above, it is not surprising to find that the strongest predictors of successful completion are the CPO having UPWOA as its only requirement (with no Supervision), followed by the CPO having Supervision as its only requirement.[30]

6.24 What was not clear in the earlier analysis, however, is that CPOs containing Programme Requirements and those containing DTRs appear to be less likely to be successfully completed than orders not containing these requirements.[31] The reasons for this cannot be identified from the unit level dataset, but may be related to the needs of the types of offenders subject to these requirements. The fact that CPOs with Programme Requirements are more likely to be associated with longer periods of Supervision may also be a factor here - many of these will still be 'live' and a truer completion rate will therefore take some time to emerge.

6.25 The inclusion of UPWOA together with Supervision, ATR, MHTR and Residence Requirements all made little difference to the likelihood of a successful outcome.

6.26 Older people, and those in education, employment or training - in other words, with greater previous experience of work settings and structures - were more likely to successfully complete the CPO. Multiple orders within the period were less likely to be successfully completed than when just one order was imposed.

Predictors of revocation due to breach

6.27 Similar analysis was also carried out to identify predictors of revocation due to breach. Details of the analysis are provided in Table A6.7 (in Appendix 4).

6.28 Broadly, and not surprisingly, those factors which predicted a lack of successful completion were also those which predicted an increased likelihood of revocation due to breach, although inclusion of a Programme Requirement did not significantly raise the likelihood of revocation. Orders containing a DTR did have an increased likelihood of revocation due to breach in 2012/13 - again, not surprisingly, given the specific needs of this client group.

The use of reviews and breach

6.29 We turn now from the quantitative data on the outcomes to a consideration of the effectiveness of the main processes associated with monitoring and compliance.

6.30 One of the key roles of a case manager is to work with an offender to achieve compliance with their CPO. The NOS Practice Guidance on CPOs specifies that case managers/UPW case managers have a responsibility to support an individual to enable them to complete their order and to enforce the requirements of the order should they fail to comply:

'When the case manager decides that an explanation offered by the individual for failure to comply is unacceptable, the following action should normally be taken:

  • First unacceptable failure to comply - a formal warning in writing, recorded in the case file and issued by the case manager.
  • Second unacceptable failure - a final warning in writing and again recorded in the case file and issued by the case manager.
  • Third unacceptable failure to comply - letter to the individual indicating that breach proceedings are being instituted.' (Scottish Government, 2011a, p.50)

6.31 As a result of the success of review hearings as part of the DTTO pilots, the Management of Offenders (Scotland) Act 2005 included statutory provision for discretionary review hearings to be arranged as a means of managing Probation Orders. The review hearings were found to be a successful instrument in managing the orders and potentially improving compliance levels and reducing the rates of breach. As such the legislation for CPOs also included provision for this type of review as part of a CPO and they can be arranged for any stage of the sentence
(Scottish Government, 2011a).

Use of reviews

6.32 There was a perception among both CJSW staff and Sheriffs that the number of reviews has increased with the introduction of CPOs. A relatively large proportion of Sheriffs (35 out of the 68 responding to this question in the Sheriffs' survey) indicated that they are using reviews more often since the introduction of CPOs - 29 (out of the 68) think that their use has remained the same while only three (out of the 68) think that their use of reviews has decreased.

"I think I've probably used it [with Probation], but I don't ... think I used it as often as I use review hearings for CPOs."
(Interview 69, Sheriff)

6.33 Among the reasons Sheriffs gave for not using reviews (or only using them in very specific circumstances) were a reluctance to 'micro-manage' orders from the bench; concerns about the impact of additional review hearings on court workload, and the potential overlap with breach.

Usefulness of reviews

6.34 On the whole, reviews were considered to be useful by both CJSW staff and Sheriffs. The vast majority of Sheriffs who responded to the survey typically found reviews 'very' or 'fairly useful' (63 out of 72). There are various dimensions to this.

6.35 Monitoring and encouraging compliance - This was considered to be particularly useful with those who have previously shown a lack of progress/non-compliance, have previously breached, or may otherwise be difficult to manage. In these circumstances, reviews give Sheriffs the opportunity to issue warnings to the offender. It was felt that this encouraged offenders to take their CPO more seriously and sometimes aided compliance.

6.36 Review as a substitute for breach - Some Sheriffs reported that reviews were useful where they were doubtful about whether an offender was appropriate for a CPO and they suspected that breach would follow.

'It avoids the delay and hassle of breach procedure unnecessarily convoluted.'

'I use them rarely but for some specific cases they are useful - if I want to keep a grip on a particular accused who I think may not comply.'
(Open-ended responses to Sheriffs' survey)

6.37 Motivating the offender (e.g. by setting targets) - Some Sheriffs felt that the supervision of the order by the court is important to motivate offenders, (and young offenders in particular) and that reviews offer the chance to set short-term targets that may make the longer-term objectives seem more achievable. They were also considered useful in recognising and maintaining non-offending behaviour.

"I might say, 'I'm going to fix a review for 2 months' or whatever it is, 'and what I want to see then, when you come back, is that you've made a start with your supervision and you're cutting down on the drink, and once you've done that then we'll get on to some of the other bits of the order.' "
(Interview 6, Sheriff)

"I've recommended them once, which was because a guy's offending had dropped off a lot. He'd reduced his offending a lot and it felt like having that regular thing for him to think about would help him to maintain not offending… which I think was really effective with him actually."
(Interview 56, CJSW)

6.38 Acknowledging successful progress if made - Both Sheriffs and CJSW interviews mentioned the relationship that sometimes builds between the Sheriff and offender and believed that offering encouragement, when appropriate, could be very useful.

"As you know, some of the people we see have a feeling that they've failed at everything in life, and they're just going to carry on failing, and to come to court and be told, 'You've done even better than I thought you would do. You've done really well', is quite powerful I think."
(Interview 6, Sheriff)

"I've had some cases where review is actually sought by the accused. …he …or she would like me to continue to have that involvement - in the case, over a period of time, you build up a certain relationship, and sometimes it's a case of they want to come and tell you how well they're doing, and they want to seek some sort of approval."
(Interview 51, Sheriff)

6.39 Adapting an order to changing offender circumstances - The flexibility of reviews means they can be used to help tailor sentences to offender circumstances. A case manager gave the example of putting in a request to review an order for an offender in full time employment who was struggling to complete their UPW within the allocated timescale:

"…they can only attend one day a week, you just do one day a week and then you see how far you get within the three months, and stick a review back to court saying, 'Can I have more time please?', and just manage it that way."
(Interview 36, UPW staff)

Impact on workload

6.40 As already noted, there is some concern among Sheriffs about the impact of reviews on court workloads.

"They are quite useful, but, again, I'm conscious of the loadings in our courts are such that I wouldn't say I'm 'hesitant' to use them, but I want to have a good reason for using them …because I know that the supervising officer is going to breach if something goes wrong, in any event, so I just wonder if there's a duplication of effort in setting up a review. …Unless I've got a very, very clear reason for doing it."
(Interview 50, Sheriff)

6.41 The perceived increase in reviews does not appear, however, to have had a major impact on CJSW workloads. It was felt that the additional time spent writing a (short, in most areas) progress review report was balanced out by the positive impacts that reviews can have.

Use of breach

6.42 There is considerable discretion around the decision to instigate breach proceedings for CPOs, especially as further offending does not constitute an automatic breach as it did under the previous legislative arrangements. We look now at the views of Sheriffs and CJSW staff of the current use of breach.

Level of confidence

6.43 In the survey of Sheriffs, 54 (out of 72) said that they had 'a lot/quite a lot' of confidence in CPOs in terms of the monitoring of progress and appropriate use of breach. Of those Sheriffs who reported having 'not very much' confidence (17) or 'no confidence at all' (1), the main reason was that CJSW staff were taking too long to instigate breach proceedings.

6.44 Only 2 (out of 67) Sheriffs rated CPOs as worse than previous community sentencing options available in terms of the monitoring of progress and appropriate use of breach. All other respondents felt it was either 'about the same' (37 out of 67) or 'better' (27 out of 67) under CPOs.

6.45 That said, in both the survey and the qualitative interviews, some Sheriffs expressed discontent with the loss of automatic breach for subsequent offences, seeing this as impacting on the seriousness with which CPOs would be viewed by offenders:

'[The fact that] commission of an offence no longer [leads to] automatic breach is a serious weakness in the system.'
(Open-ended response to Sheriffs' survey)

6.46 Some CJSW staff also took the view that this had effectively 'neutered the CPO', and could make it very difficult to work with an offender who was fulfilling the requirement of their order but still offending - especially if the subsequent offences were serious ones.

"It gets very difficult working with somebody who's constantly offending but they're turning up for their appointments and they're going to see their addiction worker; but they're maybe still battering lumps out their missus and all the rest of it and we can't breach that person."
(Interview 15, CJSW)

6.47 Most CJSW staff, however, felt that the previous automatic breach for reoffending made it difficult to work with many offenders at the start of an order, when there was still a high chance of reoffending. This was felt to be especially relevant for individuals with a chronic pattern of offending, such as shoplifting or housebreaking, or in the early stages of drug treatment.

"We used to spend a lot of time in the past putting breaches in for further offences where a person was new on an order, […] so in the first few months of the order we were just relentlessly putting breaches in, asking the court to continue the order, which the court was doing and again it was just taking up people's time. Sometimes the clients would go off the radar during this period…"
(Interview 57, CJSW)

6.48 Prior to the reforms, CJSW staff dealt with frequent breaches of Probation Orders due to this type of behavior and generally asked the court to continue the order which - in most cases - they did. Since, according to CJSW interviewees, around nine out of ten orders were continued at first breach, and as it was felt that it did not make sense to take a break from the order while this was being decided, they often continued to work with offenders on a voluntary basis.

6.49 With the introduction of CPOs, CJSW and other practitioners have been able to continue working with the offender throughout the process and to help address offending and other issues as they arise.

"'If you're drinking more, let's look at that, alcohol counselling. If it was mental health, let's go to your GP' and …keep him on track and look at the issues that will reduce his risk of reoffending…I think it was an old-fashioned idea that, you know, you're on this order […] you can't offend for two years even though you've been an offender and you've been offending on a consistent basis. So, it's more flexible, it's more responsive to the person, it's more realistic."
(Interview 37, CJSW)

Views about the instigation of warnings and breach proceedings

6.50 Findings from qualitative interviews and the survey of Sheriffs suggest that there are some areas where Sheriffs feel CPO processes could be improved - especially in terms of the length of time it takes to declare a breach and the sense that too many warnings are given. One Sheriff, for example, commented:

'I repeatedly come across cases where there has been a total failure by the social work department to instigate breach proceedings at the appropriate time - i.e. early in the order - and things then go from bad to worse'.
(Open-ended response, Sheriffs' survey)

6.51 Another suggested that reviews are undermined because case managers are not breaching CPOs where there is clear non-compliance.

'They are not as useful as they could be because often it is plain from the terms of the review report that there has been a lack of full co-operation from the offender but little or no effective action has been taken to deal with that.'
(Open-ended response, Sheriffs' survey)

6.52 CJSW staff acknowledged that Sheriffs need to have confidence that they are breaching people when needed, though there were some reports of CJSW staff feeling pressure to be seen as tough on non-compliance as a result.

6.53 CJSW staff are sometimes reluctant to take an order back to court if they think that the Sheriff will breach the order - usually because they believe there remains scope to work with the offender constructively through supervision.

"I suppose the main problem for me with them, is that …often when you might think about doing that then putting it in could lead to somebody being breached. But actually working with them in supervision and having them voluntarily engage with an alcohol programme, might well get at least the same amount of good out of it, but without them being breached for not attending the programme. It takes into account that that kind of relapse can happen but not be the end of the process
(Interview 56, CJSW)

6.54 CJSW staff observed that if they applied 'the letter of the law or legislation' the court would be inundated with breaches for people missing appointments. They felt that it was appropriate to use their discretion depending on the circumstances, and as long as they backed this up by actively pursuing the offender and being proactive with supervision.

"I think it's good that we're still allowed to exercise a professional level of judgment; it isn't just one, two, back to court, because that's not going to get a buy in from anybody." (Interview 57, CJSW)

6.55 A related view was that if CJSW staff held back from breaching immediately, they could still try to re-engage the offender. If, however, the offender continued to refuse to comply, they would have a stronger case for breach which would be likely to result in more decisive action once returned to court.

6.56 Some CJSW staff felt that Sheriffs were being inconsistent and not always following through with their orders:

"It seems to be much more prevalent that the first breach will not result in anything other than a continuation. And the, the reviews themselves, the Sheriffs will quite often prescribe a certain amount of hours to be done in a certain amount of time and on the occasions where that isn't achieved, then, again, nothing happens. And if that happens once or twice, the offender then gets to feel that non-compliance isn't a particular problem… because there are no sanctions for my non-compliance - as long as I make some sort of effort."
(Interview 24, UPW staff)

Issues around responsibility for issuing warnings and breach

6.57 While responsibility for issuing warnings should be largely clear, there are still occasional problems in practice, rooted in the way in which the NOS Practice Guidance on CPOs is being interpreted. The guidance indicates that the UPW case manager has responsibility for issuing warnings in relation to UPWOA and that the case manager is responsible for the order as a whole. Therefore when a CPO contains an UPWOA Requirement alongside a Supervision Requirement, the UPW case manager should notify the case manager if an offender has already been subject to a final warning and then incurs a further unacceptable absence.

6.58 However, in practice there is variation across (and sometimes within) case study areas in terms of who has responsibility for issuing warnings and at the point in which UPW staff notify CJSW staff. Some examples of these differences in practice include:

  • The UPW officer issuing warnings and then informing CJSW about what they have done.
  • The UPW officer informing CJSW that an offender has not attended and discussing with them whether a warning should be issued or not
  • UPW staff issuing a first warning but not a final warning.
  • UPW and CJSW staff discussing whether to give a formal warning first, or independently give a formal warning and then letting the other know.

6.59 It was reported that, on occasion, duplicate warnings were being issued. When this happens it was noted that it was important for UPW and CJSW staff to discuss it and decide the best course of action. In deciding whether the warnings should count as one or two, factors such as the timing and level of non-compliance were taken into account.

"If it was in the same week that you both issued that, let's just call it one first warning. If it's a longer timescale and it's for different things and it's significant, then we might need to say, 'Well, maybe we need to call it a first warning and a second warning and we need to do something about that'. But you've got to think, 'Is it proportionate to what has happened? Is it justifiable?' Because if you've got to go to court, you've got to be saying, 'Well, these are the warnings that have been issued, this is what led me to issue that breach'."
(Interview 35, CJSW)

6.60 In order to address some of these issues, some of the case study local authorities issued additional guidance about the respective responsibilities of UPW and CJSW staff. For example, one area stated that UPW staff could issue warnings and that they were to make sure they informed the case manager; the guidance from another area stipulated that UPW staff could not issue a final warning.

6.61 Although communication issues of this kind between UPW and CJSW predate the reforms, the subsequent centralising of UPW (in order to improve speed of commencement) has meant that, in most case study areas, UPW and CJSW teams are not located in the same building. Communication is, therefore, largely by phone or email, and since UPW officers are frequently working out of the office, things can be missed.

"When …in the old office the unpaid work team were in our office so you could go [and] have a conversation […]. Now they're based [much further away] its telephone conversations, they're out and about more, they have different bases, we don't have that same level of communication so...I think we've all felt that ...not having that interpersonal communication as easily has meant sometimes that breaches are being recommended to go in when maybe we would have had a conversation and suspension before."
(Interview 57, CJSW)

6.62 Even in a case study area in which CJSW and UPW staff were still co-located - and communication was generally considered to be good - similar issues still arose:

"When we're looking at unpaid work, we'll issue a second warning, not realising they've issued one already […] It's a simple thing. You just really need to 'cc' it so as they get a copy of the letter, or you phone them up and discuss why you're sending a second warning. …It's just the way of the world, so no system's perfect. "
(Interview 36, UPW staff)

Offender perceptions and understandings of CPOs

6.63 The offenders interviewed as part of the evaluation were generally positive about CPOs - and some enthusiastically so. As noted in the introduction, however, those least engaged with the criminal justice system are also least likely to volunteer to be interviewed about it. Older offenders were also slightly over-represented in the sample and few of the participants were subject to treatment requirements. That said, there were a wide range of opinions offered and a mix of those who had breached, those who struggled to avoid breach and those who had completed their orders with less difficulty.

Initial reactions to being given a CPO

6.64 When asked about their initial feelings about being given a CPO, offenders generally expressed relief at having not being given a custodial sentence. Some felt they had been given an inappropriate community sentence or were not happy about their situation in general. However, on balance, most recognised a number of positive aspects to community sentencing (the specifics of which will be discussed later in the chapter).

"I didnae want to get sent to prison, so I was quite happy. You meet new folk. They're nice folk that come here. I would rather no be daein' it obviously, because it's the punishment, but if I've got to come here, I don't mind it at all."
(Interview 70, Offender)

"A lot better, staying wi' my daughter and my girlfriend, so instead of being locked up and the wean coming up and seeing me in prison."
(Interview 18, Offender)

Whether CPOs were explained properly to offenders

6.65 Most offenders also felt their CPO had been explained clearly by their CJSW. The official terminology was not normally used but the crucial details of what was expected of them, when to turn up and what would happen if they breached were usually understood.

"It was pretty self-explanatory, when I've spoken to the people that conduct the orders, they explained everything to me, and they put me at ease, I felt quite comfortable and well-informed."
(Interview 60, Offender)

Some commented that signing the actual order or an agreement with the terms of the CPO laid out helped with this. There were some exceptions to this, however, where offenders were unsure of what the next steps were post-sentencing.

"It wasn't made clear what the process was, or if there was a written process or stuff like that. I …just kinda thought that's what would happen."
(Interview 82, Offender)

6.66 For repeat offenders who had experience of community sentences prior to the introduction of CPOs, there was often a sense that the process was largely unchanged - "different wording, [but] the same thing at the end of the day" (Interview 10, Offender). On the other hand, some offenders noted the increased flexibility, opportunities for training and wider variety of UPW available.

"They've got the courses now. And even when you're building the sheds you're actually learning something. [B]efore, it was just like grass cutting, painting, picking up litter. Whereas, now, because there's a workshop here now, there's a whole lot o' things that you're learning when you're doing your hours here."
(Interview 70, Offender)

Issues affecting offender engagement and compliance

6.67 While the evaluation did not set out to gauge directly changes in levels of engagement and compliance, the interviews with both CJSW staff and offenders give an indication of the key influences at work here.

The Supervision Requirement and offenders' relationship with CJSW staff

6.68 The NOS Practice Guidance stipulates that all requirements, with the exception of UPWOA, must have a Supervision Requirement imposed. The case manager is outlined as having two roles:

'To work with the individual and relevant others to achieve change in the individual's behaviour to encourage desistance from offending behaviour; and to work with the individual to achieve compliance.'
(Scottish Government, 2011a, p.30)

6.69 The importance of the relationship between CJSW and the offender has been subject to much debate (McNeill, Farrall, Lightowler & Maruna, 2012). It has generally been concluded that the role of the case manager is key in encouraging desistance from offending behaviour and compliance (Burnett & McNeill, 2005; Farrall & Calverley, 2005; McNeill, 2006; Weaver & McNeill, 2010 & Ugwudike, 2010). It is therefore unsurprising that one of the findings in this evaluation is that the role of the social worker in Supervision appears key to engagement and compliance with the order. Offenders regularly reported that their relationship with their case manager helped them change their behaviour, reduce or stop offending behaviour and to achieve compliance.

"It does make a big difference, 'cause he pushes me. I push myself as well though, cause I want to get it done as quick as, and it is a great help. And I keep saying it: as much as it's annoying and frustrating, it does make a difference, I feel, personally - it might sound a bit cheesy like! - but I just feel it makes me a better person, and it's opened my eyes, like you can't go around doing things that you do."
(Interview 61, Offender)

"I think if I never got the help I'd be dead, or in jail for a long time"
(Interview 9, Offender).

"She's got a way of putting things to me and I understand it better... when I got in trouble she was like 'this is the way it is"
(Interview 31, Offender).

6.70 Offenders were often very positive about both the support and the actual work done in Supervision, often highlighting the practical benefits or behaviour change that flowed from this.

"'X' was absolutely brilliant! I mean I was homeless because I'd split from my wife and she was an absolute diamond, some of the suggestions she was coming up [with], phoning places, and when I did get sorted 'oot somewhere she was there for support all the time"
(Interview 62, Offender)

"Since I've been out, working with my social worker... I feel my confidence is improving. I feel more comfortable. I understand, why I did the things I did, and what to look for in myself and how you control that….It made me realise a lot of different things about myself…It's made me start to believe in myself again... given me goals….I can see daily the end return."
(Interview 12, Offender)

Tailoring CPOs to offender needs

6.71 It is perhaps also unsurprising that the more closely tailored a CPO is to an offender's needs and interests, the greater the reported levels of engagement and compliance.

6.72 In those cases where offenders were most motivated to engage with their UPW, this was usually because the work matched the offender's interests or there were new skills they could learn or develop.

"Obviously I was kinda nervous aboot daein' the fence, because I'd never done it afore, but I enjoyed it. It's something I would like to dae. I felt if a job ever come up for like fencing I'd be interested, so it's kinda motivated me to dae that."
(Interview 70, Offender)

6.73 Other offenders seemed to have high levels of engagement if they were accessing some rehabilitative work (for example, being given drug, alcohol and/or mental health treatment) which they would not have accessed without the order.

"Having that Alcohol Treatment Order attached to the Community Payback Order, that was the turning point in my life certainly over the past few years."
(Interview 82, Offender)

6.74 However, as we saw earlier, there were also instances of individual needs 'slipping through the net', especially when an offender was given a Level 1 order. This sometimes meant they breached this initial order and were only given the help they needed once the order had been returned to court and their needs better assessed.

"I've got a serious mental disability, which has been a contributory factor to me spending [more than 15] years of my life locked up in prisons… And this is where I feel that I was let down […] I believe the public's been let down as well, and I think there's a loophole in the system."
(Interview 73, Offender)

6.75 Another general aspect of CPOs that contributed to engagement was ensuring that basic practical needs were met, such as flexibility in making appointments, offenders not having to travel too far and being fully reimbursed if travel is necessary. One offender in a rural area reported that travel reimbursement did not cover the return journey for UPW. In a different rural area, an offender who breached UPW was asked in the interview what might have helped prevent this:

"I think if there was an option o' something in my area to do something. I think the travelling and everything, I was pregnant [and] had a difficult pregnancy. I think the travelling in the buses and things, and morning sickness and everything, I found difficult"
(Interview 72, Offender).

6.76 However the same individual also commented that CJSW and UPW staff had done all they could to be flexible through her pregnancy.

6.77 The increased flexibility of CPOs in comparison to previous community sentencing was also something CJSW commented on approvingly.

"It's more flexible I think than the old Probation Orders… [Y]ou don't have to see everyone [as] the same… it's all about trying to tailor. So, national standards coming in have helped I think to - have a more tailored approach, more responsive approach."
(Interview 37, CJSW)

Other factors associated with engagement and compliance on the UPWOA Requirement

6.78 A common view among offenders carrying out UPW, was that they enjoyed doing work that clearly benefitted their community - especially if it was for more vulnerable groups (such as the elderly).

"I worked all my life, but last year I've been unemployed, and I'm on the sick at the moment. It's actually motivated me. I know it's a punishment, and it's unpaid, but it gives me a reason to get up and dae something wi' myself, and o' course you're helping a community. That's why they're called 'Community Paybacks', I mean a lot o' the work we do is really good, and a lot o' it's for old people and disabled people that cannae manage normally."
(Interview 33, Offender)

6.79 The sociable element of UPW was often seen as a positive and staff treating offenders fairly and with respect could also motivate them to engage more fully in a placement.

"I really enjoyed it cause it was mixing wi' all different people, all different ages, and I got to do lots o' different jobs, and mix in wi' different groups."
(Interview 72, Offender)

"That woman basically took me underneath her wing if you know what I mean and I trusted the woman a hell of a lot. She was just kind of showing me stuff like management stuff, she was being alright with us… It was a really good placement because there was this woman who worked in it who's got learning difficulties … me and that woman grew dead close and then obviously because I was helping this woman 'oot then me and the manager became really really close."
(Interview 9, Offender)

External factors affecting engagement and compliance

6.80 As with many other re-offending initiatives, it could be argued CPOs are most likely to work with more mature offenders, who have greater stability in their lives, or have decided they want to stop offending (Scottish Government, 2014b, p.17). Maturational reform theories have a long history in desistance research and are based on the established links between age and certain criminal behaviours (McNeill, Batchelor, Burnett & Knox, 2005; Maruna, 2001). Social bond theories also suggest that ties to family, employment or educational programmes in early adulthood explain changes in criminal behaviour across the life course
(McNeil et al., 2005).

6.81 CJSW staff were certainly aware that, while their role was important, there was a wide range of important external influences on engagement and compliance, including poor health, chaotic lifestyles, significant life events, or time constraints due to employment or caring responsibilities.

"But [with] compliance, I think it's up to us to sell the order to people for them to see the worth in it and the benefit in it. But that's only half the job I suppose. People's lifestyles as well, if you're in like a chaotic lifestyle or you have addiction problems you're gonna prioritise other things in your mind than keeping your appointment with your social worker."
(Interview 15, CJSW)

"The other thing is around bereavement. A huge number of people that I work with have bereavement issues that they've never dealt with the grief of things. So especially… around anniversaries or similar events happening, they can disengage from a lot of stuff, and once they've disengaged it can become harder for them to reengage."
(Interview 56, CJSW)

Key points

6.82 CPOs with a single requirement are more likely to be completed than those with more than one. However, an increase in the number of requirements beyond two does not raise the risk of non-completion further. However, the combination of requirements does appear to influence chances of successful completion.

6.83 More than half of CPOs completed in 2012-13 had UPWOA as their only requirement - and it was these orders that had the highest rate of successful completion and the lowest rate of being revoked due to breach.

6.84 Those with just a Supervision Requirement had the next highest rate of successful completion and next lowest rate of revocation due to breach. Completed CPOs containing a Programme Requirement (alongside a Supervision Requirement) had the lowest levels of successful completion, although the fact that a relatively high proportion of CPOs with Programme Requirements remain live may be a factor here.

6.85 CPOs containing an ATR had high levels of successful completion when there was no additional UPWOA Requirement. The same pattern can be seen for CPOs containing a Compensation Requirement.

6.86 Although reviews were previously available for DTTOs and Probation Orders there is a perception that their use has increased under CPOs. Those Sheriffs making relatively little use of reviews under the new arrangements tend to be resistant to the idea that they should be responsible for 'micro-managing' the order.

6.87 The flexibility with which reviews could be used is welcomed by CJSW staff and Sheriffs, though has inevitably led to variation in use. Reviews are considered useful for several reasons: by monitoring compliance they can be used to encourage offenders to take orders more seriously (e.g. where past orders have been breached); they can represent a substitute for breach in cases where there were doubts about the appropriateness of the CPO; and they can be used to motivate the offender (e.g. by setting targets) and acknowledge successful progress if made.

6.88 There are still some issues around who has responsibility for issuing warnings/breach in joint orders with supervision and UPWOA - specifically around first and final warnings. There are longstanding communication issues between UPW and CJSW staff at work here, but some interviewees felt these had been exacerbated by recent structural changes, such as the centralisation of UPW.

6.89 Some Sheriffs are unhappy that further offences do not constitute a breach of a CPO. CJSW interviewees, by contrast, are more likely to appreciate the flexibility that this provides in allowing them to continue to work with offenders following a subsequent offence.

6.90 Sheriffs appear to have broad confidence in CPOs in terms of monitoring of progress and appropriate use of breach. However there are still some areas in which it is felt the processes could be improved - especially in relation to the length of time it takes to declare a breach and the number of warnings given.

6.91 Most offenders reported that their CPO had been clearly explained to them; that they knew what was expected of them and that they understood what would happen if they breached the order. Signing the order, or an agreement, seems to help this understanding.

6.92 Offenders are usually very positive about the relationship they have (or had) with their case manager, citing this relationship as being of key importance for engagement and compliance.

6.93 Engagement and compliance is most likely when a CPO was tailored to an offender's needs and interests. Other factors that offenders respond positively to include feeling that they are paying back to the community, and the sociable element of UPW (especially the individual placements).


Email: Sacha Rawlence

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