Saturday, 28 January 2017

MoJ Getting Rattled

It would appear from this paper that the MoJ is beginning to get rattled by recent SFO revelations and the risk that the public and press might begin to learn a bit more regarding the 'smoke and mirrors' reality of RAR days and 'supervision'. TR really has been an unmitigated disaster and someone needs to be held to account.

REHABILITATION ACTIVITY REQUIREMENT (RAR)
Legal Position & Practice Implications
(Interim)

1. Introduction

The introduction (ORA) of the Rehabilitation Activity Requirement (RAR) had provided a great deal of sentencing flexibility as well as significant challenges in implementing a measure whose precise focus (in terms of the amount of days, the nature and intensity of interventions) was determined post-sentence. It has gained progressive traction with sentencers but continues to experience difficulties in relation to its practical application, particularly with respect to distinguishing between the requirement (RAR) and the court order, which then leads to a number of implications including its management on nDelius and accountability for the court order following the completion of the assigned activity days. This note provides legal clarity and confirms the policy position in relation to the NPS.

2. The Legal Framework

Section 15 of the Offender Rehabilitation Act 2014 (ORA 2014) amends the Criminal Justice Act 2003 (CJA 2003) to create a new Rehabilitation Activity Requirement (RAR), for Community Orders and Suspended Sentence Orders. The RAR replaces existing activity and supervision requirements which are repealed.

From December 2013, when imposing a Community Order, the court has been required to include at least one requirement that serves as a punishment (or alternatively a fine). There is no equivalent statutory requirement in the Crime and Courts Act 2013 or the ORA 2014 that requires a rehabilitative element as part of every Community Order. There is therefore no duty on courts to include a RAR as part of every Community Order: the decision to include a RAR within a Community Order or Suspended Sentence Order is at the discretion of the court.

A RAR lasts the whole length of a Community Order and until the end of the suspension period for a Suspended Sentence Order. The court will set an end date for the Community Order and since the RAR does not require the court to indicate when the RAR activities will end, the end date of the Community Order will be the date by which the activities must be completed. In respect of a Suspended Sentence Order, the activities must be completed by the end of the suspension period.

PI 58/2014 provides the operational framework for dealing with the approach to assessment, imposition and management of the RAR. All Providers are required to comply with the PI. The NPS Policy and Contract Management are currently reviewing the conflicting understanding of the provision amongst some Providers and will reinforce the framework in the PI with them in due course.

3. Practice Implications

The confusion has arisen through the interpretation of the legal provisions, particularly the conflation of activity days with the length of the order. What this means in practice is that the completion of the activity days brings to a conclusion the constituent element (RAR) of the court order. As most of the activity days are likely to be short in length, it would lead to their quick completion, so if the order was for a period of 12 months and the RAR days (say 40) are completed in 3 months, it results in the RAR finishing with the order still having 9 months to run (so should not be shutdown on nDelius). The offender will remain liable to comply with the order during the outstanding 9 months.

One of the practice challenges is to determine the precise level of purposeful activity for the offender beyond the RAR days. In most cases this is likely to be difficult. However, the Provider remains vulnerable to the business risks (including SFOs and accountability to court if the offender re-offends and it transpires there has been no contact with him/her for a significant period of time) arising from the offender’s continued obligations to the court order until such time as the status of the order is resolved. Two issues follow from this:

1. Providers have to define (based on case complexity and risk) the nature of purposeful activity (which may in some cases involve just reporting periodically) and then instruct the relevant offenders to continue to attend. This would inevitably involve a wide range of considerations including impact on resources. This is for Providers to determine in each case. The NPS cases (those not suitable for 2 below) may be suitable for management in Supervision /Report Centres Centres (or other such designated structured supervision arrangements within each division)
2. Resolve the status of the court order through revocation (good progress, reflecting the overall progress in delivering the sentence plan objectives including impact on reducing risk levels. It would be based on OASys assessments/reviews/decision making evidenced and recorded in nDelius). This would once again involve a number of issues including credibility with sentencers and resource implications both for HMCTS and NPS (enforcement work).
4. Agreed NPS Position:

1. The approach set out in the paper should be adopted in relation to the NPS offender management work with immediate effect

2. We are currently expecting the release of findings of a National Review of RARs. This paper will be amended to reflect any learning from that

3. In relation to the CRC policy and practice, Contract Management are continuing their work to agree a position with CRCs, which would include taking a view on whether or not the CRCs would necessarily take the order back to court for revocation (good progress). Given this, the paper should not be discussed at interface meetings at this stage

4. All NPS divisions should begin to review the possible resource implications arising from the potentially significant increase in the volume of enforcement work to support any change in practice regarding revocations.


--oo00oo--

This from a current job advert. I wonder if there's anyone getting overtime today?

The Ministry of Justice (MoJ) has embarked on an ambitious, high-profile programme of reform and we have a number of fantastic opportunities in our External Communications team for talented, hard-working communications professionals.

Our department is never far from the headlines and you will be joining a busy and friendly team to take responsibility for shaping stories and influencing them in print, broadcast and online news outlets.

This includes reforming prisons, probation and youth justice to improve public safety and reduce re-offending, and undertaking the biggest programme of courts reform anywhere in the world to renew public confidence in the justice system and better protect the vulnerable.

We need confident and dynamic individuals in roles across the office who will thrive on being at the forefront of the Justice Secretary’s key priorities, whether that’s briefing media to create the headlines or fire-fighting the occasional crisis story.

You would also contribute to our out-of-hours media service, for which overtime is paid.
It’s an exciting time to be part of the Ministry of Justice. If you have the skills to excel in a busy, fast-paced environment, this is the role for you.

49 comments:

  1. So the RARs are a total fudge, MoJ/nps & crc providers are all doing different things, courts haven't a clue what various providers are providing and there are hundreds of people in England & Wales still subject to court orders who have completed their RARs but never been seen for months. Equally there are hundreds who have been given court orders of 12 months or more who have completed their RARs & then been discharged from their order "for good progress" after 2,3,4,5 months.

    And presumably no-one knows the true picture, hence the 'paper'.

    So MoJ say protecting the public is their number one priority, hence trashing historical "wet liberal" probation and replacing it with farcical pocket-stuffing probation, aka TR. No! Their only concern is protecting the Providers from exposure to "business risk", i.e. loss of money by CRCs and loss of any remaining credibility by MoJ/Noms.

    Total Shambles.

    ReplyDelete
  2. This is just tinkering round the edges of a disaster - the equivalent of a sticking plaster on a severed limb to try to stop the bleeding. Until the Tories man up and actually do a root and branch reform of the entire court and justice system things are going to continue to go downhill

    ReplyDelete
  3. The RAR guidance is flawed because the RAR legislation is flawed. There is no legal basis for the muddled conclusion. Another example that useless twats run the Probation Service.

    ReplyDelete
  4. "The approach set out in the paper should be adopted"

    The paper does not set out an approach. Methinks the MoJ numptys are too scared to say "do" or "do not".

    ReplyDelete
  5. So a useless press officer earners more than a probation officer and gets paid overtime too!!

    ReplyDelete
    Replies
    1. I'm applying!

      Delete
    2. Feel like applying and being a whistle blower

      Delete
  6. How can "this note provide legal clarity and confirm the policy position" if the CRC's are not following it?

    ReplyDelete
  7. The general public will forever be confused about what probation supervision means. But as noted already, this missive is all about business risks and resources – and it also rather neatly covers the MoJs back. Whether kiosks or reporting centres, passive supervision is a waste of everyone's time, supervison in such circumstances is neither planful or purposeful. When the work is done, disengage and stop the pretense that ongoing supervision amounts to anything substantive.

    ReplyDelete
  8. I think the paper from the MOJ means nothing. Private probation companies will operate whatever way they wish, just as they are doing with staff redundancies, excessive caseloads, training or the services they provide for service users. To my mind they hold all the cards. The government are over a barrel.
    Privateers have already made a big noise about being misled prior to signing contracts, which suggests to me that if the contracts were taken from them legal challenge would be mounted to force the government to pay for the whole life of the contracts.
    If the private companies walk away, then it would take legal challenge by the government to impose any financial penalty.
    Either way, it would prove very damaging for the government.
    Private companies know exactly the grip they hold on government, and like everything else they'll exploit it to the max.

    'Getafix

    ReplyDelete
  9. If the privateers have the MOJ by their short curlies maybe they could be induced to demand of the government better welfare, health and housing , higher wages, without which no reduction in reoffending will be achievable lol

    ReplyDelete
  10. Can someone explain to me the "approach set out in the paper" because I don't get it.

    ReplyDelete
    Replies
    1. Maybe the reasons for producing the paper is more important then the approach set out within it.

      Delete
  11. Fancy that - it was unwise to transfer judicial functions to the staff of commercial organisations - surely parliament should have amended the ORA 2014 to prevent such a possibility?

    I recall several commentators were remarking on the internet about this, but could not get a hearing, in fact my MP Priti Patel effectively shooed me away when I tried to lobby her in the Central Lobby of the Houses of Parliament on the last day the ORB was before the House of Commons.

    Yet I do not feel vindicated because the opposition Parties ARE still not using parliament to challenge the government on these issues or proposing amending & improving legislation as they are able to do.

    ReplyDelete
  12. Yes, I cannot understand that either, Andrew. I met and had 2 conversations with Jeremy C last Oct, emphasising the state of Probation and what were they going to do. He said he was well aware of what was happening and he could only describe it as 'acidification'. He assured me that he would be tackling the situation. But nothing has happened and it rarely gets a mention in parliament, and never a mention anywhere from Jeremy. So disappointing.

    ReplyDelete
  13. Pinning hopes on Labour making a serious push on this or anything else atm a waste of energy. So pressure on this government essential

    ReplyDelete
  14. So the status of SFOs has been reduced to a mere 'business risk.' Am sure victims and their families are delighted with that description.

    ReplyDelete
  15. As a recently retired court officer with many years prosecuting breaches under my now expanding belt ,to the last I could not work out the basis for the current requirement regarding reporting "outside" the designated number of RAR days as "supervision" in its own right specifically ceased to exist . I did spend a considerable amount of time trying to
    A) work out with managers/casemanagers how to explain to courts the difference between just keeping an appointment and having a one to one RAR session ( never did bottom out that one ) and
    B) wondering on what proper legal basis a breach of an order could be pursued once that designated RAR days had been discharged .
    As far as I was ever aware a Judge or Magistrate passing a sentence treated RAR days as essentially the same as unpaid work , once the requirement is done ,in effect that's it . Surely this must have been the initial intention from the outset otherwise precluding "supervision" as a ongoing requirement would be totally pointless.
    I do appreciate that to attend initial inductions and like appointments are part of any community order or SSO ,but to continue insisting on attendance up to the end seems bizarre and contrary to commonsense . Both those sentencing and being those sentenced should be clear as to exactly what they are signing up for .Moj as ever produce darkness where there should light.

    ReplyDelete
  16. Probation Officer30 January 2017 at 00:23

    Offender Rehabilitation Act 3 (1) "In this Part “rehabilitation activity requirement”, in relation to a relevant order, means a requirement that, during the relevant period, the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both."

    This means we ignore both PI 58/2014 and the new guidance above which are incorrect. Appointments and activities are both included in the RAR. When the RAR ends so does contact with the offender. Any appointments offered after the RAR end are voluntary and not enforceable. I've seen many breaches deemed illegal on this basis.

    ReplyDelete
    Replies
    1. Offender Rehabilitation Act

      http://www.legislation.gov.uk/ukpga/2014/11/pdfs/ukpga_20140011_en.pdf

      Delete
    2. "rehabilitation activity requirement”, in relation to a relevant order, means a requirement that, DURING THE RELEVANT PERIOD, the offender must comply"...

      ... meaning RAR period, so can somebody poke the MoJ with the shit stick for it's illegal 'legal position' it just made up!!

      Delete
  17. ORA is badly worded but it does appear to distinguish between "appointments" and "activities" under a RAR. Whereas the number of days are prescribed under a RAR, appointments are unlimited. The confusion arises when RAR is being completed by using one to one "appointments" with officers (rather than "instructions" to attend all these marvellous new innovative activities alluded to). I suspect this is happening quite a lot. Then, from this interpretation, once the RAR is completed, Orders are probably lying around stagnant with nothing happening until expiry date (which is fixed in court). The MoJ appears to be correct in their albeit unclear communication style. Once RAR activity days are completed, if there is a gap of time between completion of RAR and expiry of Order, (two distinct situations), the Order should either be taken back to court on grounds of good progress, or appointments be issued until the end of Order to monitor risk etc. In my view difficulties have arisen because privately owned companies inevitably view court orders as belonging to them to play with as they please. The Orders don't belong to them, they belong to the court. They are implemented and enforced on behalf of the court. This is the shocking, foreseeable consequence of privatising justice. Fat cats seeing themselves as above the law, literally.

    ReplyDelete
    Replies
    1. You are reading the PI which wrongly interprets the badly worded ORA Act. The Act is very clear as somebody wrote above;

      "rehabilitation activity requirement”, in relation to a relevant order, means a requirement that, DURING THE RELEVANT PERIOD, the offender must comply"... - ORA

      ... meaning RAR period is the only period for attending activities AND appointments!!

      Delete
    2. Offender Rehabilitation Act 3 (1) "In this Part “rehabilitation activity requirement”, in relation to a relevant order, means a requirement that, during the relevant period, the offender must comply with any instructions given by the responsible officer to attend APPOINTMENTS or participate in ACTIVITIES or both."

      Delete
    3. Oh what a bloody mess - will someone please explain the situation in plain English?

      Delete
  18. The "relevant period" is the period in which the order remains in force. The expiry date is set by the court. Unlike UPW, the Order does not expire at the time of the last RAR date. Appointments can still be given. I say again, CRCs might be terminating orders on NDelius, but this does not mean orders have actually expired. I bet this scam is coming to light.

    ReplyDelete
    Replies
    1. Ok - so RAR days completed - appointments given - repeated no show - breach action instigated - breach proved - right?

      Delete
    2. No, no, no!!

      "rehabilitation activity requirement”, in relation to a relevant order, means a requirement that, during the relevant period".

      I read this as the RAR period. If it was the entire Order period then the guidance would clearly state it. Why else do you think the CRC's are able to ignore the guidance and PI 58/2014.

      The whole idea behind the RAR is for supervision days to be measured. In the world of business and costing we cannot have supervision as it used to be.

      Delete
    3. Ok - so do we think the courts, public and Parliament know that?

      Delete
    4. I doubt it because the MoJ/Noms have been relied on to interpret the Act and got it wrong (possibly). I could be wrong but the Act is vague and it may have been wrongly interpreted. No matter how many times I read it the RAR includes activities and appointments and there is no specific wording for attendance when the RAR days are complete (either as mandatory or voluntary). I think the focus of the RAR guidance should have focused on how the days should be spread rather than adding on what are effectively voluntary appointments when the RAR days are complete.

      I read the RAR part of ORA like this (my interpretation in brackets). - "In this Part “rehabilitation activity requirement”, in relation to a relevant order, means a requirement (meaning the RAR) that, during the relevant period (of the RAR), the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both (which are both RAR days and must be completed in full within the operational period of the Order)."

      Now compare this to PI 58/2024 which reads (my comments in brackets); 2.6 ​The court will set a ‘maximum’ number of activity days (omitting that appointments are included as days too) and an offender cannot be compelled to complete more than the period set by the court (so why are they being asked to attend appointments at RAR end?). However no minimum number of days is set and it is open to providers to require a shorter period of activity in which to deliver the intervention (so why are providers now being asked to add appointments?). It should also be noted that the maximum day requirement applies only to activities, not to appointments (this is confusing because the Act says activities and appointments both serve as days), and an offender can therefore be instructed to attend appointments throughout the duration of the Community Order or Suspended Sentence Order (the Act does not state this at all, in fact it is unclear whether "relevant period" refers to the RAR days or operational period of the order), regardless of whether the maximum number of days for activities has been reached (ditto and if the RAR is complete are these appointments voluntary and unenforceable?).

      Note to readers - a PI does not equal legislation! https://www.justice.gov.uk/downloads/offenders/probation-instructions/pi-58-2014-rehabilitation-activity-requirement.doc

      Delete
  19. I would think yes, as long as the order is in force when instruction is given (as with supervision requirements). I would have thought that would be parliament's intention. If courts are rejecting breaches, I would be interested to understand what part of the Act the court is relying on.

    ReplyDelete
  20. But the MoJ is looking at all this simply in terms of costs. Hence their position not to raise this with CRCs at "interface" meetings... I bet the 'workaround' will be that somehow CRCs will magically have the authority to legally terminate orders. This govts dismantling of justice system well under way. This govt, in my view, doesn't want something as irritating as legislation to get in the way of 'business'.

    ReplyDelete
    Replies
    1. The relevant period is defined in the ORA Act as the length of the community order, or the length of the supervision period under SSO.

      Delete
    2. Copy and paste the wording here

      Delete
  21. Try looking it up please.

    ReplyDelete
    Replies
    1. I can't because it doesn't exist!

      Delete
    2. Have you even tried. It's there.

      Delete
    3. There is no wording in ORA that defines the "relevant period" as the length of the community order and not the length of the RAR. This is why there is so much confusion. It doesn't help that numptys like you keep claiming what is not stated.

      Delete
    4. A new anon here. There IS wording in ORA at s.15(11) as follows:

      11) In this section “the relevant period” means—
      (a) in relation to a community order, the period for which the
      community order remains in force, and
      (b) in relation to a suspended sentence order, the supervision period as defined by section 189(1A).”

      Delete
    5. And here's the definition per s.189(1A) from CJA2003:

      189Suspended sentences of imprisonment

      (1)A court which passes a sentence of imprisonment for a term of at least 28 weeks but not more than 51 weeks in accordance with section 181 may—
      (a)order the offender to comply during a period specified for the purposes of this paragraph in the order (in this Chapter referred to as “the supervision period”) with one or more requirements falling within section 190(1) and specified in the order,

      Delete
    6. 100% correct but this does not support appointments being attended outside of the RAR. Let's put this together and see what we get....

      15 Rehabilitation activity requirement

      (1)  In this Part “rehabilitation activity requirement”, in relation to a relevant order, means a requirement that, during the relevant period, the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both.

      (11)  In this section “the relevant period” means—

      (a) in relation to a community order, the period for which the
      community order remains in force, and
      (b) in relation to a suspended sentence order, the supervision period as defined by section 189(1A).”

      .... correct me if I'm wrong. We are still left with legislation for 'activities and appointments' to be attended and completed within a RAR, and for the RAR to be completed within the life of the Order. This is still not supporting of attending appointments when the RAR is complete.

      Delete
    7. So

      (1) anyone made subject to a RAR attached to a community order or suspended sentence order is required to comply with ANY appointments given by the responsible officer during the term of either the community order or the supervision period of a SSO,

      Or...

      ... (2) The person only has to co-operate with the RAR during the operational period of the community order or supervision period of the SSO, e.g. if the RAR is not completed within the relevant period, i.e. timeframe of the community order or SSO, it becomes unenforceable.

      Interesting that the definition of compliance with instructions issued by the responsible officer only attaches to the RAR, which has a distinctly different operational period within the "relevant period" of the community order or supervision period of the SSO. So when the RAR is complete...

      Its poetic perpetual motion

      Delete
    8. I think it is (2). When I read ORA it makes more sense now - “rehabilitation activity requirement, in relation to a relevant order, means a requirement that, during the relevant period, the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both".

      I can see why CRC's are sticking to their guns and only instructing within the RAR period. If this is correct I wonder how many have been breached or even imprisoned for failing to attend appointments at RAR end which should have been unenforceable.

      Delete
    9. Could I suggest para 2 of the following helps tidy up matters:

      200A Rehabilitation activity requirement
      (1) In this Part “rehabilitation activity requirement”, in relation to a relevant order, means a requirement that, during the relevant period, the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both.
      (2) A relevant order imposing a rehabilitation activity requirement must specify the maximum number of days for which the offender may be instructed to participate in activities.

      Delete
    10. Noms Agency Board are otherwise certain that activities & appointments are separate entities. I cannot find any legislation that corroborates this view, nor is there any legislation to refute it. That's another fine mess, Messrs Grayling & Wright...

      "2.5 ​A RAR lasts the whole length of a Community Order and until the end of the suspension period for a Suspended Sentence Order. The court will set an end date for the Community Order and since the RAR does not require the court to indicate when the RAR activities will end, the end date of the Community Order will be the date by which the activities must be completed. In respect of a Suspended Sentence Order, the activities must be completed by the end of the suspension period.

      2.6 ​The court will set a ‘maximum’ number of activity days and an offender cannot be compelled to complete more than the period set by the court. However no minimum number of days is set and it is open to providers to require a shorter period of activity in which to deliver the intervention. It should also be noted that the maximum day requirement applies only to activities, not to appointments, and an offender can therefore be instructed to attend appointments throughout the duration of the Community Order or Suspended Sentence Order, regardless of whether the maximum number of days for activities has been reached."

      Delete
    11. Anon 22:14. Seems the legislation does not support or require additional appointments at RAR end.

      Anon 22:39. Seems Noms have got it all wrong. Appointments and activities are all within the RAR period, and the RAR must be completed within the Order period.
      I believe Grayling had ORA worded in this way to make supervising RAR's more cost effective for CRC's.

      Delete
  22. This RAR guidance is issued by the NPS not the MoJ. The bottom line is that they would not be issuing it if PI 58/2014 was correct. Neither include legal wording from the Act as if ORA supported their interpretations they'd say so. That this guidance has been issued TWO YEARS LATER and is also ambiguous and incorrect means nobody in the Ivory Tower understands ORA and RAR's. The CRC's refused to follow the guidance because there is no legal basis for appointments when the RAR period is complete.

    ReplyDelete
  23. Is this the blog version of an Escher illustration?

    ReplyDelete
    Replies
    1. It's looking very much like that, yes!

      Delete