Legal status and positive practice in Community Order enforcement
| DOI | 10.1177/0264550512448450 |
| Published date | 01 September 2012 |
| Author | Ralph Cairns |
| Date | 01 September 2012 |
| Subject Matter | Articles |
Article
The Journal of Community and Criminal Justice
Probation Journal
Legal status and
59(3) 254–268
ª The Author(s) 2012
positive practice in
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DOI: 10.1177/0264550512448450
Community Order
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enforcement
Ralph Cairns
Lancashire Probation Trust
Abstract
The status of enforcement procedures may appear at first glance to be an academic
debate with little application to probation practice. Yet the answer to this singular
question determines how probation trusts should respond to a variety of court based
challenges, which if mishandled has the potential to open the door to litigation against
individual trusts. A breach of a community order is not a criminal offence, nor do
enforcement proceedings form part of the criminal law. Regulatory statutes such as the
Criminal Procedures and Investigations Act therefore do not apply. However, English
case law has determined that a criminal standard of proof applies to enforcement
cases and therefore some elements of the Criminal Procedure Rules do have reso-
nance. Yet there is no right of appeal against a finding of breach and avenues of
redress for both offender and the prosecution are limited to general provisions
enshrined in English Law. Uncertainty surrounds the admissibility of other evidential
areas. The robustness of evidence presented to the court can be improved by relatively
modest amendments to practice and forestall possible ’reasonable excuse’ defences.
However other initiatives derived from general legal practice, are fraught with
potential dangers when applied to Community Order enforcement.
Keywords
Community Orders, courts, Criminal Justice Act, disclosure, effective practice,
enforcement, risk assessment, human rights, licences, suspended sentences
Corresponding Author:
Ralph Cairns, Trial Prosecutor, Lancashire Probation Trust - Prosecution Unit, 50 Avenham Street, Preston
PR1 3BN, United Kingdom
Email: ralphcairns@hotmail.co.uk
Cairns
255
Introduction
Enforcement proceedings in respect of breaches of community and suspended
sentence orders take place in Magistrates and Crown Courts across the country on a
daily basis and yet this area of law suffers from a dearth of guidance amongst
traditional legal sources in respect of which procedures are applicable. The purpose
of this article is to demonstrate what rules govern the sphere of Community Orders
and which have no application to them – and why. Once this has been undertaken it
will be possible to determine which initiatives are capable of enhancing practice
within the breach court and those which do not. It is necessary, firstly, however, to
determine what category of law, enforcement proceedings belong. This will be
attempted not only by drawing upon what is written but also by deducing conclu-
sions from generic regulatory statutes which exclude enforcement from their remit.
The legal status of Community Order enforcement
proceedings
Many practitioners will wonder why the status of the legal proceedings under which
the probation service operates should matter to them. After all, is it not the court’s
jurisdiction and responsibility to determine the course of proceedings? If the court
erred in this respect then surely the probation service would not and could not be
held responsible? In fact this is not the case, making it not just important,
but essential that court staff understand the limitations of the relevant legislation so
that probation trusts are not drawn into illegal or unprincipled prosecutions. The
most striking example of these concerns lies with Notice of Supervision Licences
regulated under s.65 of the 1991 Criminal Justice Act whose proposed repeal
under the 2003 Criminal Justice Act was subsequently countermanded by statutory
instrument.1 These licences are subject to the same enforcement status as community
and suspended sentence orders. A feature of s.65 licences is that they are not
renewable upon breach.2 They end three months after the day of original release
and breach can only be punishable by a fine or a term of imprisonment of up to 30
days. However, if after a finding of failure to comply, the court records the breach as
a ‘conviction’ in its own right, because it determined that failure constituted an
‘offence’, this would mean a new Notice of Supervision licence would be issued by
the holding custodial institution upon the offenders subsequent release (because a
new licence must be issued upon release for any new conviction). Hence a further
breach which fell outside the original three month period but within the (illegal) new
licence period would be an illegal prosecution. Any consequent loss of liberty suf-
fered by the offender would therefore potentially fulfil the requirements for a civil
action in the tort of false imprisonment. Although liability for this error would initially
fall on the custodial institution concerned (not the court), the complexities of the Civil
Procedure Rules mean that the probation service would not automatically escape
responsibility for this error.
The correct approach by the probation service is therefore paramount in
avoiding what would undoubtedly prove to be a dereliction of statutory duty only to
256
Probation Journal 59(3)
undertake principled prosecutions. At the very least quality assurance procedures
should be put in place by trusts to filter any illegal Notice of Supervision licences that
subsequently emerge from Young Offender Institutions. This action, whilst largely
effective, treats only the symptom and not the cause of the problem.
No doubt practitioners will more readily identify with the latter sections of the
article which concern the implications for practice in the enforcement process rather
than with the legal reasoning detailed below. Yet if the probation service is to make
a timely and effective answer in court to the challenges mounted by defence to their
prosecutions, then the probation service representatives need to be furnished with
the relevant law and be conversant with its rationale if they are to meet those
challenges with confidence. How then do we determine the correct approach to
ascertaining what rules do and do not apply to enforcement proceedings? One way
is to look at the wording of the statutes involved.
In other common law jurisdictions such as Australia, breaches of Community
Orders are offences in their own right.3 As such, the enforcement of Community
Orders falls squarely within the criminal law sphere and is subject unquestionably to
the procedural rules and standards of proof which govern all criminal proceedings
in that jurisdiction. By contrast, however, the status of these proceedings in English
law is equivocal. In England and Wales Schedule 8 paragraph 9(1) of the 2003
Criminal Justice Act (CJA) provides that:
. . . if it is proved to the satisfaction of the magistrates... that he has failed without rea-
sonable excuse to comply with any of the requirements of the community order, the
court must deal with him in respect of failure in one of the following ways....
The first important phrase here is ‘to the satisfaction of the magistrates’. There is no
reference to the criminal standard of proof. At first glance this would appear to
indicate a lower standard of proof (i.e. the civil standard of proof: on the balance
of probability) and hence marking the enforcement process out as separate from
criminal proceedings. However, in West Yorkshire Probation Board v Boulter
[2005] Keene LJ @ p.16, stated:
It is true that... the 2003 Act (does not) expressly refer to proof ‘beyond reasonable
doubt’. In my view that is because the draughtsman assumed that in criminal proceed-
ings before a magistrates court it was enough to require the bench ‘to be satisfied’ as to
the alleged breach and that such satisfaction would have to be the normal criminal
standard.
The problem inherent with this ratio is that it presupposes the existence of criminal
proceedings. The fact that criminal sanctions apply, does not automatically lead
to this conclusion (fine defaults and ASBOs are civil offences, but may impose crim-
inal sanctions for a failure to comply). What this decision means, however, is that
unless this High Court decision is reversed at some future date by a higher court, the
default standard of proof on any prosecution for breach of Community Orders lies
Cairns
257
as that outlined by section 101 of the Magistrates Courts Act 1980, i.e. ‘beyond
reasonable doubt’.
However, because the criminal standard of proof applies, it does not necessarily
follow that the proceedings themselves are criminal offences. Hence, the second
important feature of the provision in Schedule 8 of paragraph 9(1) is the absence of
any reference to an ‘offence’ for any failure to comply with an order, or a ‘con-
viction’ resulting upon such a finding by the court. The 2003 Act merely refers to a
‘failure’ and the court’s ability to ‘amend the terms of the original order’ or deal ‘with
the offender for the original offence’4 (There are parallel provisions in paragraph 8
of Schedule 12 which apply in respect of suspended sentence orders.)
Another inherent problem in identifying a clear line of authority for enforcement
proceedings is that there does not appear to be any statutory definition of the word
‘conviction’. None appears in criminal justice legislation, the Attorney General’s
Guidelines or the Criminal Proceedings and Investigations Act 1996 (CPIA).
However, what may be said is that convictions share certain unique features:
1. That there ‘is an...
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