It's not a return to PSRs in not guilty cases - yes we used to - but I'm not at all sure we've covered this aspect of PSRs, apparently brought about as a consequence of Covid-19. This from NPS and Law Society last October:-
Pre-Sentence Report Before Plea
The purpose of this document is to create a clear operational process, so that pre-sentence reports can be prepared in advance of the magistrates’ court taking a plea at the first hearing. The signatories to the protocol have a responsibility to comply with it and the court and Crown Prosecution Service are encouraged to facilitate it.
Legal basis
- The parties have a duty to actively assist the court by early communication to establish the defendant’s likely plea at the first available opportunity.
- The court has a duty to obtain a pre-sentence report before considering community or custodial sentences unless it decides such a report is unnecessary.
- The statutory definition of a pre-sentence report means a court may consider a presentence report which it has not commissioned, to meet its duty.
- The process also preserves the taking of a guilty plea by the court, following a clear acknowledgement of guilt.
Benefits
The process will mutually benefit the court, defendant and criminal justice partners as it will:
- enable the court, in suitable cases, to proceed efficiently and expeditiously to sentence following a guilty plea without adjourning or standing the case down for a pre-sentence report.
- enable more flexibility in scheduling the pre-sentence report interview, which takes place prior to the hearing. The defence may ask the legal adviser, where necessary, to vary the first hearing date to ensure there is sufficient time to produce the report
- reduce the time spent physically at court, when social distancing measures are in place, therefore protecting all parties’ welfare during the pandemic.
Scope
A pre-sentence report applies where:
- it is anticipated that an adult defendant, charged to appear before a GAP or NGAP hearing on bail or postal requisition, will be sentenced in the magistrates’ court; for offences triable either way see Sentencing Council allocation guideline,
- a defendant is willing to indicate a guilty plea to all offences charged on the full prosecution basis.
- a defence legal representative, on behalf of their client, requests a PSR Before Plea.
This protocol does NOT apply to cases to be sent or committed for sentence to the Crown Court where CrimPD 3A 9 and guidance within the Better Case Management handbook should continue to apply.
The process is set out in Annex A. The form used to request a Pre-Sentence Report Before Plea is attached at Annex B (“the applicable form”).
Compliance
In the event of parties consistently failing to comply with their responsibilities under the protocol the matter is to be reported to the Local Criminal Justice Board.
Signatories
National Probation Service: Sonia Flynn Chief Probation Officer
Law Society: Richard Atkinson & Ian Kelcey Co-Chairs Criminal Law Committee Approval by Senior Presiding Judge of England and Wales
1st October 2020
--oo00oo--
The Probation Institute has recently published a position paper:-
Use of the Protocol for "Pre-Sentence Report Before Plea"
The Probation Institute has considered the new Protocol for the preparation by the Probation Service, of a pre-sentence report (PSR) before plea, for use in the Magistrates Court where there is an intention to plead guilty and the legal representative has requested the PSR before plea.
The Probation Institute has considered the new Protocol for the preparation by the Probation Service, of a pre-sentence report (PSR) before plea, for use in the Magistrates Court where there is an intention to plead guilty and the legal representative has requested the PSR before plea.
We understand the pressures – volume of cases and long delays, which will have led to the agreement of this Protocol. However there has long been professional practice that pre-sentence reports should only be prepared when a defendant has either pleaded guilty or been found guilty by the relevant court. In our view this practice ensures legal justice for the defendant, avoids pressure to plead guilty, and also ensures that, as far as is possible, the report writer is making enquiries and proposals for sentencing based on the agreed view of the offence/s.
We regard the Protocol with caution therefore and hope to contribute to ensuring that its use, where considered appropriate, will be the exception not the rule, and should always take into account the interests of justice and follow professional practice carefully.
We believe that there are risks attached to preparing the PSR before a plea is formally taken in court, or the trial completed. These risks are:
- The defendant may be pleading guilty in order to receive a reduced sentence or to get out of custody after a long remand. If s/he would otherwise plead not guilty we suggest that this would be an injustice which should not be encouraged by Probation.
- Sufficient information about the charge (from police, witnesses) may not be available before the plea is taken - the PSR is therefore written without sufficient knowledge to be credible for the court.
- The protocol recognises that Probation may request that the date of the plea hearing is adjourned to allow time for a PSR before plea. In this case it is essential that sufficient time is provided to enable the necessary assessments and prepare a full report with researched sentencing options? Ten working days is suggested with a minimum of five days. It might be more constructive and beneficial to ask the court for an adjournment post plea or conviction.
- If the defendant is on bail it is possible that further offences may be committed before the case reaches a court hearing. This would potentially invalidate the contents of the Pre-Sentence Report.
Here are some of the issues that we consider should be taken into account when using the Protocol for Pre-Sentence Report before Plea.
1. Has the defendant consented to the preparation of a Pre-Sentence Report before the plea or finding of guilt is established? Do they fully understand the implications of this?
2. What is the exact legal charge to which the individual is willing to please guilty? Has it changed since arrest? Could it change again?
3. Has the individual considered pleading not guilty at any stage? If so, what has changed?
4. In order to prepare a PSR the report writer will need to know the facts of the case. Is there an agreed version? Do you have the police statements?
4. In order to prepare a PSR the report writer will need to know the facts of the case. Is there an agreed version? Do you have the police statements?
5. If you are preparing a report on an individual who believes that notwithstanding the plea, they are not guilty it is difficult to discuss accountability, remorse, reasons for this offending etc. This may also affect the willingness of the individual to engage with rehabilitation, particularly on a community sentence.
6. The court should be made aware in the report that the PSR was prepared before either a plea or a finding of guilt were established.
7. If at any stage in the preparation of the PSR it becomes apparent that the defendant’s position regarding a plea is unclear the preparation of the report should be paused and reviewed by relevant parties. The defendant’s legal representative should be informed.
Probation Institute
April 2021
What goes round comes round, though the write ups get longer!
ReplyDeleteAlso known as "using a lump hammer & cold chisel to open a can of worms", "a sledgehammer to crack a nut" or "having no bolts on the stable doors".
ReplyDeleteThe risks of this procedure being exploited & abused are significant - that includes by anyone & everyone, i.e. NPS, CPS, defence solicitors, magistrates, court clerks, probation staff and defendants (convicted or otherwise).
And what does it achieve?
it will "enable the court to proceed efficiently and expeditiously to sentence following a guilty plea"...
but...
"The defence may ask the legal adviser, where necessary, to vary the first hearing date to ensure there is sufficient time to produce the report"
And the court can always fall back upon its failsafe:
"The court has a duty to obtain a pre-sentence report before considering community or custodial sentences...
... unless it decides such a report is unnecessary."
I smell a big stinky rat here. Its *not* about expediting cases thgrough the courts; there's another dangerous agenda simmering away beneath the surface. Why else might such a policy be introduced? And why now, at the point where probation services are totally in the iron grip of HMPPS?
"The statutory definition of a pre-sentence report means a court may consider a presentence report which it has not commissioned, to meet its duty."
This opens the door to unsolicited reports being prepared. But by whom? There's no clarity about *who* should prepare these reports. I have yet to double-check, but I don't think current legislation reserves the PSR to NPS.
Remember - the double-think weasel-words of this administration & its acolytes are not what they seem.
Your right it will encourage faster guilty pleas while the legals will find a way to adjourn to ensure double court fees . It's all a racket just what game are they playing. The institute is a nonsense just what have they done since being invented by the Tories .
DeleteCreating a space for virtual court hearings and online sentencing?
DeleteArhh wow escaped that but yes I can see that as the real A plan.
DeleteHide it in plain sight and then a natural migration. It means less offices less staff less pay less public service. Well pointed out.
Finally found the up-to-date definition: Sentencing Act 2020
ReplyDelete31 (4) Where a court does not obtain and consider a pre-sentence report before forming an opinion in relation to which the pre-sentence report requirements apply, no custodial sentence or community sentence is invalidated by the fact that it did not do so.
Meaning of “pre-sentence report” etc
(1) In this Code “pre-sentence report” means a report which—
(a) is made or submitted by an appropriate officer with a view to assisting the court in determining the most suitable method of dealing with an offender, and
(b) contains information as to such matters, presented in such manner, as may be prescribed by rules made by the Secretary of State.
(2) In subsection (1), “an appropriate officer” means—
(a) where the offender is aged 18 or over, an officer of a provider of probation
services;
(b) where the offender is aged under 18—
(i) an officer of a provider of probation services, (ii) a social worker of a local authority, or
(iii) a member of a youth offending team.
https://www.legislation.gov.uk/ukpga/2020/17/group/SECOND/part/3/chapter/1/enacted/data.pdf
Law Society Gazette Oct'20: "NPS will decide whether to produce the report before the hearing. NPS will then notify the court and parties of the decision by email.
Where NPS produce a report, they will upload it to Court Store for the hearing."
In addition, 2014 Act states:
Delete"An 'officer of a provider of probation services' is defined under section 9 of the Act as an individual who is authorised to act as such and section 9(2) stipulates that an individual may be authorised either by the SoS directly, or by a provider of probation services who has been authorised to do so by the SoS."
In addition, 2014 Act states:
Delete"An 'officer of a provider of probation services' is defined under section 9 of the Act as an individual who is authorised to act as such and section 9(2) stipulates that an individual may be authorised either by the SoS directly, or by a provider of probation services who has been authorised to do so by the SoS."
"an individual may be authorised either by the SoS directly, or by a provider of probation services who has been authorised to do so by the SoS."
DeleteNothing about qualifications, about professional status, about the criteria that allows for such 'authorisation'...
Presumably being employed by "a provider of probation services" could afford anyone the status of "officer of a provider of probation services" ?
If we jump back to comments of @13:17 - anyone employed by a provider of probation services could potentially write a sackful of reports on anyone & everyone due at mags' courts, just in case, with NPS uploading those documents into a mailbox where they sit until needed - if they're ever needed - by the virutal courts.
Justice in Abeyance.
J U S T I n C a s E (read between the lines)
And what happens to the documents next? Deleted? Stored? Accessible by who? When do they come back to haunt people who are subsequently found not guilty after changing plea following proper legal advice?
This isn't the work of an independent professional organisation focused upon rehabilitation - its merely utilising people to expedite the penal policy of this Tory government.
It has been that way for a while 1235 . Labour gave us officer of the court board and what have you. It never protected a specifically qualified probation officer. Watch the po dissapear 2 years or less . They have already agreed to cut long termers to change the culture papers out shortly and for those desperate go the evr is alive.
Delete"for those desperate go the evr is alive."
DeleteIs that across the whole range of NPS & CRC?
Do not forget that Sodexo & others stole up to 60% of the previous EVR allocation with HMG's blessing & Napo's silent, tacit agreement.
The PO role disappeared ten years since.
Yes it's out no secret. Evr has to run for jobs that no longer exist in a CRC and for posts no longer required in NPS or as they need to create the new. It will be limited to time as usual and will already have the useless union endorsement but the NPS could not administer the agreement and try and steal staff money they are not private.
DeleteCouldn't find anything on napo web site, but unison's seems to be much more accessible.
Delete"PROBATION REFORM PROGRAMME: VOLUNTARY REDUNDANCY SCHEME
1. This Scheme will apply to voluntary redundancy (VR / voluntary severance (VS) exits made by the NPS (and DF providers in respect of any CRC staff that transfer to them) as part of the transition to the Unified Model in 2021.
2. The Scheme will be in place for two years, starting 25th June 2021 and will apply to employees who were CRC staff and who transferred under the June 2021 transfers and who leave NPS/DF employment before 25th June 2023.
3. The provisions will apply in all cases of VR/ VS arising as a direct consequence of the Probation Reform Programme and will remain in operation till 25th June 2023.
4. The decision in respect of individual applications on whether to award voluntary redundancy/voluntary severence is at HMPPS (NPS) discretion and will include consideration of, amongst other things, the exigencies of the service, organisational issues and business needs.
5. Exit payments will be made in accordance with all statutory provisions in place at their date of payment."
Have you got 15 years' service? Tempted to quit? Seems you're eligible for a £67,500 payout. Even 10 years' service lands you £45,000.
Beats the disgraceful, pitiful insult that was the £20,000-ish severance paid to staff with up to 20 years' service by the CRCs back in 2015/16.
What are the implications of formally recording comments from unconvicted defendants? Are they admissible in terms of law of evidence? What happens if a defendant retracts & the case is dismissed, e.g. NG verdict, CPS abandon, etc?
ReplyDeleteWhat protection is there for the defendant in such a circumstance? The report is lodged within the court's electronic archive.
What protection for the report author? Their name is attached to a formal document that might contain incriminating evidence obtained in dubious circumstances. What if the author misinterprets or misrepresents the defendant's comments? What if that aggravates the court's view of matters?
These reports are targetting offences which include either way matters. Can the mags' send to crown for sentence once a plea is taken and, for example, the evidence proves matters are more serious than originally thought?
Is the information submitted by a defendant at pre-conviction stage eligible for submission as a safeguarding referral? Or as grounds for further investigation of other offences?
Why would a Lord Chancellor lay open their staff to such wide-ranging & ill-thought-through stupidity?
Where does public liability lie with these pre-conviction reports? Is NPS going to support the author of a report that a defendant claims bears no resemblance to their admissions? Will all interviews be recorded?
Offence analysis? Risk assessment?
And the PI support it? Napo say fuck all, as usual.
Its a Fucking Joke!
The PSR before plea process depends on buy in from defence lawyers and since its introduction months ago the take up has been nil in my area,it was an initiative from centre introduced without any consultation doomed to failure and there has been no drive to resuscitate it .
ReplyDeleteI am surprised (Responding to Anon at 07:17)- when I was a probation court officer especially in the Liverpool Number one Magistrate's Court there was normally a queue of lawyers trying to get copies of SER's (1979/80) so that it made it easier for them to mitigate than than prepare their own submissions - it was mostly the same everywhere else where I practiced - in later years including in Crown Courts although there were some excellent exceptions - that was one of the factors that came to mind when I chose my family solicitor - recalling how well they handled cases of vulnerabe folk, in years long gone.
Deletepost-conviction PSRs were always in demand; but *pre-conviction*? Who'd want to risk that? Unless, of course, it means a fast-track sentence that limits CPS to minimal detail, keeps other information hidden & allows maximum credit for guilty plea. There'll only be very very few cases falling into that category at either-way level.
Delete