Legal Commentary
| Author | Nigel Stone |
| DOI | 10.1177/147322540400400305 |
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
| Subject Matter | Articles |
Legal Commentary
The Ambit of ISSP as a Community Sentence and Children
in Care: Conflict of Interest in ASBO Applications
Nigel Stone
Correspondence: Nigel Stone, School of Social Work and Psychosocial Studies,
Elizabeth Fry Building, University of East Anglia, Norwich NR4 7TJ.
Email: n.stoneVuea.ac.uk
1. The Ambit of ISSP as a Community Sentence
Launched in July 2001 in some 80 youth offending team (YOT) areas and available
nationally from January 2004, intensive supervision and surveillance programmes
(ISSPs) have been the Youth Justice Board’s principal bid to tackle persistent young
offenders while offering courts a credible alternative to custodial remand and
sentencing.
1
Though neither a sentence in its own right nor exclusively a community
sentencing resource, ISSPs have attracted most interest in that guise and currently
around six in ten ISSPs are made as part of either a supervision order or a community
rehabilitation order (CRO).
2
Introduced without statutory innovation or identity, ISSPs as community disposals
have experienced some strain in seeking to fit expectations lasting six months within
the provisions of the Powers of Criminal Courts (Sentencing) Act (PCC(S)A) 2000, not
least the maximum number of days of specified activities permitted by Schedule 6
paras. 2 and 3 (90 days in respect of supervision orders) and Schedule 2 para. 2 (60
days in respect of CROs). Other complications arise with regard to the contrasting
provisions of Schedule 6 para. 2 (requiring adherence to the little regarded provisions
of PCC(S)A 2000 s.66, the direct, unreconstructed descendant of ‘intermediate
treatment’under the Children and Young Persons Act 1969, and lacking scope for
reparation directions) and para. 3 (which permits reparation requirements). Additional
problems have lain in blending supervision orders with curfew obligations and in the
difficulty in incorporating reparation expectations within the ambit of a CRO. Belated
‘assistance’has been provided by the Anti-Social Behaviour Act 2003 s.88 and sch. 2,
extending the duration of a curfew order to six months for under-16s and amending
Schedule 6 paras. 2 and 3 to double the maximum number of days to 180, thus
paving the way for a new 12 month version of ISSP, to be piloted in 11 YOT areas
from September 2004.
However, the aim here is not to rehearse the complexities of the small print in the
challenge to translate good intentions into practical and lawful expression. Rather, it
1
The Board has a target of at least 4,000 ISSPs a year by March 2005 (National Audit Office, 2004).
2
Of the remaining ISSPs, around a quarter are attached to bail and 15 per cent to DTOs (Audit Commission, 2004).More recent
research (YJB, 2004c) has indicated that 55 per cent of ISSP cases were attached to supervision orders with a further 7 per cent
attached to community rehabilitation orders.
seems timely after three years of ISSP life
3
to take stock of its appeal, uptake and
emerging place in the cartel of community disposals. The eligibility criteria adopted by
the YJB are clearly intended to avoid the risk of devaluing the currency by
inappropriate use of ISSPs for less serious or less frequent offenders who would
otherwise receive less demanding community disposals. The current guidance (revised
April 2002 and reinforced by YJB, 2004a) restricts ISSP proposals in pre-sentence
reports (PSRs) to the following target groups among young offenders:
(Those who have been charged, warned or convicted of offences on four or more
separate dates within the preceding 12 months and have previously received at least
one community or custodial penalty.
(Those at risk of custody because their current offence carries a maximum sentence
of 14 years or longer.
Some reflection of the success of ISSPs in targeting persistent young offenders with
multiple problems is provided by the Audit Commission (2004) which has reported:
Those on ISSPs have an average of 13 prior convictions; two-thirds have been permanently
excluded from school and their reading age is five years below their chronological age.
4
For the purposes of this review, the focus is not so much on the first criterion of
‘persistence’but more on the ambit of ISSPs as a viable disposal for graver crimes and
offenders falling within the second target group. An admittedly imperfect guide to the
serviceability of ISSPs in this context lies in the approach of the Court of Appeal as
can be interpreted from a handful of recent appeals against sentence. It should be
noted that to-date the Court has not sought to give any general guidelines on ISSP
usage in the way that it has sought to offer some generic principles regarding the
imposition of drug treatment and testing orders.
5
Three broad strands of approach can
be identified within the judgements traced.
(i) No statutory foundation for custody
The first thread within the relevant judgements concerns instances where a custodial
sentence had been imposed without statutory validity, prompting the Appeal Court to
substitute an ISSP-based community alternative.
In R v Kiffin[2003] EWCA Crim 579 (February 2003, not yet reported) a boy aged
14 without prior criminal record, together with a 19-year-old accomplice, had robbed
a 17-year-old youth as he was taking £1,500 to the bank for his employer, first striking
him to the ground and kicking him repeatedly. The crime had been pre-planned in the
knowledge that a substantial sum of money would be at stake. Proposing an ISSP
community package, the PSR stated that he had articulated remorse and regret, had a
supportive family and was assessed to pose a low risk of re-offending.
On his appeal against a DTO term of 18 months, the Court of Appeal noted that
the defendant had not been eligible for a DTO under the provisions of PCC(S)A 2000
3
At time of completing this Commentary the YJB (2004c) published the initial evaluation report on ISSPs by the University of
Oxford Centre for Criminological Research.
4
A further profiling of the characteristics of adversity among ISSP recipients is provided in YJB (2004c).
5
See R v Belli [2004] 1 Cr.App.R.(S.) 490; R v Harrison and Attorney General’s Reference No. 64 of 2003 [2004] Crim. LR 241.
Youth Justice Vol. 4 No. 3 205
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