REHABILITATION ACTIVITY REQUIREMENT (RAR)
Legal Position & Practice Implications
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 The RAR replaces existing activity and supervision requirements which are repealed.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.
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