Annex 8: Transfer of MAPPA Cases
Offenders subject to the Sex Offender Notification Requirements (SONR) or statutory supervision transferring within Scotland
1 There will be occasions when those subject to the SONR choose to move house. If the offender is also subject to statutory supervision it will be for the Criminal Justice Social Work (CJSW) in a local authority area to manage this move in consultation with their colleagues in the receiving local authority area.
2 The following principles should be followed in all transfer cases:
- The over-riding consideration in relation to case transfers should be the protection of the public.
- The need to consider the wider picture - there may be real benefits in transferring the offender out of a particular area, e.g. victim issues.
- The need to ensure that, where national standards for reporting and enforcement apply, these are maintained regardless of the transfer.
- The provision of seamless supervision of offenders in the community.
- The sharing of relevant information when the offender transfers.
3 MAPPA does not have the authority to refuse transfer. For those subject to statutory supervision, this remains a social work decision. However, where an offender is on an order with restrictive conditions, MAPPA can have an important role to play in ensuring that transfers are conducted in such way that risks are managed as effectively as possible.
4 Other factors to consider:
- Reasons for not approving a transfer: These have to be based on public protection factors and demonstrate that the decision is based upon a thorough risk assessment and is proportionate to the identified risks. It is essential that the decision is well recorded and is communicated clearly to the offender and is reported to Scottish Ministers if required by National Standards.
- Home visits: Whenever an offender changes their address a home visit must be undertaken. This must take place prior to transfer to ensure that it is a suitable address.
- National Standards: It is essential that national standards are followed with cases being allocated as required, appointments being kept as required and breach action being taken if necessary.
- ViSOR: ViSOR protocols and national standards must be followed with cases being transferred promptly between areas and all contacts and partners being updated as required.
5 In respect of transfer of a MAPPA offender subject to supervision, the decision as to whether the case should be transferred will be taken by CJSW. They should consult with colleagues in other agencies to assist in their decision making but it remains a CJSW service decision. It is important that where the offender is subject to social work supervision as well as the SONR that the supervising officer ensures that the police are aware of the request to move address and are consulted as part of the decision making process.
6 For example, where an offender is being managed by Area A at MAPPA Level 2 or 3 and a change of address to Area B is being considered, the supervising officer in consultation with their manager in Area A should assess the risks associated with the proposed move and decide whether to approve it in line with the requirements of National Standards. Once the decision has been taken, Area A will consider whether it is necessary to hold a MAPPA meeting prior to transfer to identify the potential risks associated with the change of address and how these could be managed. The supervising officer in Area A will contact the supervising officer in Area B to discuss transfer and where appropriate the issues discussed at the MAPPA meeting. Once Area B has agreed to accept transfer it will hold a MAPPA meeting. The supervising officer or manager in Area A, and if necessary, the police should attend this meeting.
Individuals subject to the SONR but not subject to supervision
7 There is an obligation on a person subject to the SONR to notify the police of any change of address. When such an offender moves address to another police division the receiving division will notify the managing division that the offender has moved into their area and has notified a change of address. The managing police division will:
- make the receiving police division a partner to the ViSOR record;
- request that a home visit is made to confirm that the person subject to the SONR is actually living at the address; and
- where relevant, notify the offender manager of the change of address.
8 Once the address has been confirmed, the managing police division will transfer the ViSOR record to the receiving police division. The receiving police division will follow force guidance for the assessment of risk and consideration of referral to the MAPPA within that area.
Cross Border Transfers
9 It is not uncommon for offenders to move between jurisdictions within the United Kingdom, i.e. transfer between Scotland and:
- Northern Ireland
- Isle of Man
- Channel Islands.
The process is more complex as legislation differs between the jurisdictions involved. General principles relating to cross border transfer of supervision are described below. The guidance then considers the issues around transfer of MAPPA cases between England/Wales and Scotland.
10 Schedule 1 of the Crime (Sentences) Act 1997 contains the main provisions for transfer of supervision for those offenders subject to release on licence. Transfers of supervision are made on an 'unrestricted' or 'restricted' basis.
11 The distinction between restricted and unrestricted transfers is important because it determines the relevant law that is applicable following the transfer and may affect the duration of supervision and action in the event of breach of licence or any order.
12 A request which meets the transfer criteria and where there is no effect on the sentence (either in terms of a reduction or increase in time to serve) or on any post release supervision requirements, will normally be granted on an unrestricted basis. In an unrestricted transfer, the law of the receiving jurisdiction should apply. The offender is treated as if their supervision period had been the result of a sentence imposed in the jurisdiction to which they have been transferred. The offender will undergo the remainder of the supervision in the receiving jurisdiction as if it had been an equivalent period of supervision directed to be undertaken in the receiving jurisdiction. The supervision will be subject to the statutory and other provisions applicable in the receiving jurisdiction. This is the type of supervision that occurs between areas in England/Wales and in Scotland as it is possible to replicate the original supervision requirements.
13 Where an unrestricted transfer is not appropriate the Secretary of State, or Scottish Ministers, or other relevant authorities, may transfer the supervision of the offender on a restricted basis. In a restricted transfer, the law of the sending jurisdiction will continue to apply and the offender will be subject to the same duration of supervision under the same conditions as they would have been in the sending jurisdiction, as well as to any other conditions specified. The receiving jurisdiction will administer the supervision in the sense that the offender will be reporting to a supervising officer in the receiving jurisdiction. However, in the case of a restricted transfer, breach proceedings must take place under the legislation of the sending jurisdiction, for example in the case of a transfer from England to Scotland, breach action would follow English law.
14 As legislation now differs quite considerably between England/Wales, Scotland, Northern Ireland, Isle of Man and Channel Islands the vast majority of transfers of supervision must be agreed and made on a restricted basis.
15 If an offender is undergoing or about to undergo supervision in any part of the UK, formal approval must be sought of the Secretary of State or their equivalent (of the sending jurisdiction), or where the sending jurisdiction is Scotland, the Scottish Ministers may, on the offender's application, make an order for that supervision to be transferred to another part of the UK. Serving prisoners may also apply to be transferred.
16 All transfers must be fully discussed and agreed with the receiving area prior to transfer taking place and this must be at Assistant Chief Officer of Probation (or equivalent) and Criminal Justice Service Manager (or equivalent) level.
17 Before an order for transfer is made, the sending and receiving probation and local authority CJSW jurisdictions are required, using the fullest information available, to consider:
- whether or not licence conditions can be enforced; and
- the ability of the receiving jurisdiction to manage the supervision.
[Note: Scottish Executive Justice Department Circular 6/1999 and Probation Instruction PI 07/2014- Case Transfers: For offenders subject to statutory supervision either pre release from custody or whilst completing an order or licence, provide full guidance on the arrangements for transfer of supervision.]
18 Key points to remember:
- Check the legislation regarding transfer and refer to the relevant guidance, remember the transfer is likely to be restricted and the process can be time consuming;
- Contact the receiving area to discuss the case with them prior to transfer - this must be at senior manager level - Assistant Chief Officer of Probation and Criminal Justice Service Manager;
- The receiving area must confirm that they are able to manage the case to the necessary requirements prior to transfer being agreed;
- Ensure all appropriate paperwork is sent to the receiving area within five working days of transfer being agreed. This should include offender assessment, including risk assessment, risk management plan, sentence plan, pre-sentence report, parole report, victim details and risks to potential
- victims, copy of original licence/order and requirements as well as the amended licence/order;
- Transfer on licence has to be agreed with the offender manager/supervising officer prior to the transfer taking place and agreement to transfer can be refused;
- An offender subject to the SONR who moves and does not inform the police of their new address within three days commits an offence;
- Moving without notifying the offender manager/supervising officer constitutes a breach of the order/licence and the appropriate action must be taken;
- MAPPA cooperation and sharing information between England/Wales and Scotland.
19 This section is intended to set out the principles for the liaison and exchange of information between the responsible authorities and MAPPA in England/Wales and Scotland for offenders who fall within the offender categories defined by sections 327 of the Criminal Justice Act 2003 and 10 of the Management of Offenders etc. (Scotland) Act 2005.
20 Offenders who are subject to MAPPA arrangements in the community and are under supervision on licence or on a community disposal by the National Probation Service, Youth Offending Team, or local authority CJSW in Scotland can only be transferred in accordance with the relevant legislation with the agreement of both the sending and receiving jurisdiction. Given the serious level of risk some MAPPA offenders present, it is essential that the process is followed properly, that full details and information are appropriately shared and that MAPPA meetings involve the sending area, either in person or through video/telephone conferencing.
21 Where a MAPPA offender moving between England/Wales and Scotland is not under supervision by the probation service or CJSW and therefore not subject to the cross border transfer legislation, it will be for the responsible authority in one area to make contact with the equivalent responsible authority in another area to provide relevant information. Thereafter it is for the receiving responsible authority to make the arrangements for referral to the MAPPA in their area.
22 MAPPA offenders have their details recorded on ViSOR and once a transfer has been agreed the necessary transfer must also take place on ViSOR. This will also include all MAPPA documentation relating to Level 2 and 3 meetings which have been held in England and Wales.
International Considerations when Sharing Information
23 It is now common place for persons from out with the UK to travel and reside within our communities. Within the European Union (EU), in recognition of the challenges faced by all EU countries, a number of Framework Decisions and Directives have concentrated on the increased exchange of information and intelligence across Member States. These have set the course for significant progress in the implementation of processes and systems to exchange information and intelligence across borders electronically thus enhancing the protection of EU citizens. Internationally, bi-lateral agreements exist between the UK and a vast number of other countries which facilitate the exchange of information. The sharing of information across borders continues to rise as the migration and travel of individuals continues to increase across the globe.
24 The provisions and processes in place with other countries provide a number of options available to the MAPPA partners in obtaining information on individuals from out with the UK who require to be managed in a multi-agency context albeit, in practice the requests for such information is generally the remit of the police.
25 There are two routes available through which details of an individual's previous criminal convictions can be accessed. The first relates to persons who originate from an EU Member State. The information sharing protocols within the EU have provided a single point of contact within each of the Member States for such information. Within the UK the designated point is the United Kingdom Central Authority for the Exchange of Criminal Records (UKCA-ECR) based in the ACPO Criminal Records Office (ACRO) in Southampton. For individuals who originate from countries out with the EU, Interpol continue to be the conduit through which all requests should be routed. In each of these instances, all requests for information should be submitted through the Police Service of Scotland's National Intelligence Bureau (NIB) who will manage all requests and responses from UKCA-ECR and Interpol on behalf of the local areas.
26 It should be borne in mind that there is no requirement for countries out with the UK to provide any information when requested in regard to information about their nationals. The Member States of the EU are only required, under the Framework Decisions and Directives to provide previous criminal convictions and MAY if it falls within the remit of their National Law, provide further details such as intelligence and other information which would be of benefit to the MAPPA partners. In regard to countries out with the EU, again they do not have to comply with a request to provide any information, including previous criminal convictions. In practice however, information exchange between countries is increasing and countries differ vastly in their approach and assistance provided.
27 The NIB should assist in compiling documentation to be submitted to UKCA-ECR or Interpol when requesting information which is crucial to the management of offenders and information which is believed to be of value should always be requested, detailing the reasons for the request. Such requests will be analysed on their merits. It is imperative that any information received is assessed, managed and shared in a manner acceptable to the providing state.
28 Information sharing across borders continues to increase and processes and procedures are being streamlined in an effort to ensure consistency. In all cases where a foreign national person is being managed under MAPPA, a request for their previous criminal convictions from their country of origin, and any other information, should be discussed with the NIB at an early juncture to ensure that all relevant information is sought in an effort to understand and manage the risks the individual presents.
Email: Gus MacDonald