OFFENDER REHABILITATION BILL HUMAN RIGHTS MEMORANDUM

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1 OFFENDER REHABILITATION BILL HUMAN RIGHTS MEMORANDUM Introduction 1. This Memorandum relates to the Offender Rehabilitation Bill, and addresses issues arising in relation to the European Convention on Human Rights ( the ECHR ) and other international human rights obligations of the UK. It sets out in some detail the views of the Ministry of Justice as to the compatibility of the provisions of the Bill with those ECHR rights ( the Convention rights ) which are set out in the Human Rights Act 1998 ( the 1998 Act ), Sch The Memorandum follows the order of clauses in the Bill, briefly describing the provision and then analysing any human rights implications of the provision. Where in the Ministry s view no arguable issue arises, no commentary is offered. Clauses 1 to 7 (Release and supervision of offenders sentenced to less than 2 years) Introduction Short-term custodial sentencing generally Offenders aged 21 or over 3. As the law currently stands, an offender who is 21 or over who receives a custodial sentence will receive a sentence of imprisonment. The offender will in most cases be released from prison after serving one half of the sentence. Various provisions attenuate this, for example in relation to early release on home detention curfew, compassionate release etc. 4. Where the sentence is of 12 months or more, the offender is subject to licence for the period from release to the end of the sentence. (Different provisions apply in relation to life sentences and extended sentences for dangerous offenders, although those sentences too involve a period of licence.) The Secretary of State (in practice, a prison governor acting on his behalf) sets the licence conditions. 5. Where the sentence is of less than 12 months the offender is not subject to licence. Offenders aged 18 to Where an offender is aged 18, 19 or 20 the usual determinate sentence is detention in a young offender institution (YOI) see the Powers of Criminal Courts (Sentencing) Act 2000 ( the Sentencing Act ), s. 96. The offender is released after serving one half of the sentence, with similar attenuations to those set out above. Where the sentence is of 12 months or more, the offender is subject to licence. Where the sentence is of less than 12 months, the offender is subject to a fixed three-month period of licence. Offenders aged under An offender who is under 18 may in specified more serious cases be sentenced to detention under the Sentencing Act, s. 91. The offender is released from youth detention accommodation (that is, a YOI, secure training centre or secure 1

2 8. More usually, an offender who is under 18 will be sentenced to a detention and training order (DTO), which applies in less serious cases and is described more fully at para. 34 ff. below). The offender is released after serving half the sentence in custody (the period of detention and training), and is subject to supervision akin to licence during the second half of the sentence (the period of supervision). The effect of clauses 1 to 7 9. Clauses 1 to 7 make provision about licences for those sentenced to imprisonment or detention for a period of less than 12 months. The clauses also give effect to the principle that an offender should in all cases serve 12 months of post-release licence/supervision. That involves in some cases creating a period of supervision which is to be added to a period of licence. For example, if an offender receives a sentence of 18 months imprisonment, the offender will be released after 9 months. Currently that offender will be subject to licence for 9 months. The mechanism provided in the Bill will mean that in that case the offender becomes subject also to a 3 month period of supervision. 10. In this context it is worth setting out a difference important for the purposes of various clauses between licence conditions and supervision requirements. 11. Where an offender is subject to licence, the offender is still subject to a custodial sentence and is liable to be recalled to prison by the governor, typically for a breach of a licence condition. As noted above, various provisions in the Bill create (and make provisions about) a further period of supervision to be added onto the end of a custodial sentence, during which further conditions may be applied. The offender is not liable to be recalled to prison during this further period, but rather any breach will be dealt with by a court. Clause 2 Supervision after end of sentence Provision 12. Clause 2 provides for the automatic imposition of a new period of supervision which follows on from the expiry of an offender s licence where the court has imposed a custodial sentence of less than two years. The provisions ensure that together the period of licence and further supervision will be 12 months in total. The Secretary of State specifies the supervision requirements with which the offender has a duty to comply. The supervision period has a rehabilitative purpose and the Secretary of State must have regard to this purpose when imposing the requirements. The supervisor must have regard to this purpose when implementing the requirements. Article 6 (right to a fair trial) Imposition of top-up supervision 13. The imposition of top-up supervision does not of itself engage Art. 6 because the period of supervision is imposed by the court as a statutory adjunct to custodial 2

3 Article 8 (right to respect for private and family life) Imposition of supervision 14. Article 8 is engaged, and the imposition of a period of supervision will in some cases amount to an interference with the offender s Art. 8 rights. The court (which is a public authority for the purposes of the 1998 Act, s. 6), is in a position to ensure that custody, licence and top-up supervision are as a whole a proportionate interference with the offender s Art. 8 rights. The court is obliged to have regard to the general custodial sentencing principles set out in the 2003 Act, ss. 152 and 153, which reflect the principles of proportionality which Art. 8(2) expresses. Schedule 1 supervision requirements Provision 15. Schedule 1 sets out the supervision requirements that may be imposed on offenders by the Secretary of State. Article 6 (right to a fair trial) 16. The Secretary of State will have a role in administering the supervision period by determining at the end of the custody period which conditions should be imposed on individual offenders to achieve the rehabilitative purpose of the top-up supervision period. This is similar to the existing process for imposing licence conditions. 17. We consider that Art. 6 requires there to be access to court to allow for review of the exercise of the Secretary of State s discretion in imposing conditions in the top-up supervision period and the conduct of supervisors when managing offenders during the supervision period. In our view, this requirement is satisfied by the right of an offender to bring judicial review proceedings against the Secretary of State for imposition of the conditions of statutory supervision and against supervisors for decisions when administrating top-up supervision. The adequacy of this safeguard was tested in the context of licence in R (on the application of Ahmed) v National Probation Service and another. 1 The High Court confirmed that judicial review is adequate for the purposes of reviewing the lawfulness of licence conditions imposed by the Secretary of State. The conditions reviewed in that instance were more onerous than any supervision requirements available to the Secretary of State. The safeguard of judicial review is sufficient for ensuring compliance with Art. 6 in respect of the imposition of supervision requirements. Article 8 (right to respect for private and family life) 18. Individual requirements will in some cases amount to an interference with the offender s Art. 8 rights. Interference with Art. 8 rights may be justified if the interference is in accordance with law and necessary for a legitimate purpose. The requirements in the Criminal Justice Act 2003 ( the 2003 Act ), new s. 1 [2011] EWHC

4 256AB(1)(a)-(h) substantively replicate conditions that have been imposed in all licences since 2005 without a successful challenge to the provisions. The requirements in s. 256AB(1)(i) and (j) replicate substantively requirements that have been imposed on a discretionary basis in licences over the same period. 19. In general the provisions are compatible with Art. 8 because: under new s. 256AA(6) the Secretary of State will only be able to impose a requirement having had regard to the express rehabilitative purpose of the supervision period. This ensures that any requirement imposed serve the Art. 8 legitimate aim of preventing crime; as a public authority the Secretary of State may only impose a requirement if he can do so in accordance with the requirements of Art. 8 (see the 1998 Act, s. 6(1)). 20. Some of the requirements raise particular issues, and these are dealt with as follows. Requirement to be of good behaviour and not to behave in a way which undermines the purpose of the supervision period 21. The Ministry considers that the good behaviour element of this requirement (see new s. 256AB(1)(a)) is in accordance with the law for the purposes of Art. 8(2). However, given that similar requirements have been subject to ECtHR decisions, the position is set out in some detail. 22. The requirement that the law be certain is of course a longstanding principle of English law, one which has also been emphasised by the ECtHR. It was succinctly set out in Kokkinakis v Greece: [the condition is satisfied] where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts interpretation of it, what acts and omissions will make him liable. 2 However, the requirement is for sufficient rather than absolute certainty. 3 It follows that a degree of imprecision is permissible. It is accepted that the requirement contains some degree of imprecision, but the Ministry s view is that it is nonetheless in accordance with the law. 23. Two leading Strasbourg cases have considered the issue of good behaviour in the context of binding over. 24. In Steel v UK 4 the applicants were bound over to keep the peace and be of good behaviour. In each applicant s case the binding-over order was imposed after a finding that she had committed a breach of the peace. The court considered that the good behaviour element of the terms of the order was particularly imprecise and offered little guidance to the person bound over as to the type of conduct which would amount to a breach of the order. However, in the context of a prior finding of breach of the peace, the ECtHR concluded that it was sufficiently clear that the applicants were being requested to agree to refrain from causing further, similar, breaches of the peace during the ensuing twelve months. 5 2 App /88. 25th May See R v Misra [2004] EWCA Crim 2375, para App. No. 67/1997/851/ See para

5 25. (By contrast, in Hashman and Harrup v UK, 6 the ECtHR looked at a bind-over order which also contained the requirement not to breach the peace (although importantly the applicants had not been found to have done so). 7 The ECtHR distinguished Steel v UK 8 and concluded that the imprecision was fatal because the lack of any antecedent breach to which to relate the terms of the order meant that it was not clear what conduct would amount to a breach of the order.) 26. In the Ministry s view the Bill provision is analogous to the position in Steel. In the cases to which the Bill provisions apply the offender has already been subject to a criminal conviction in relation to specific acts. The act which amounts to a breach of the good behaviour requirement need not, of course, be a repetition of the offender s original criminal act (which would in any event be a breach of the separate requirement not to commit further offences). There is naturally a need for some flexibility around the terms of the good behaviour requirement: in the ordinary course of events a relatively wide range of behaviour may amount to a breach of the requirement in any given case. But the essence of the good behaviour requirement is that the offender is to refrain from committing acts during the supervision period which bear some connection to that offending behaviour (or undermine the purpose of the supervision period). 27. It is worth noting that a virtually identical requirement has been in operation on all licences for many years without any successful challenge on the basis of unfairness. This is particularly striking given that the condition is often used to recall offenders to custody. This is because, when used in the relevant context, it is sufficiently clear to offenders what conduct will lead to breach, and offender managers explain the nature of the requirement to offenders and take a pragmatic view of what constitutes breach. That practice would apply in relation to the supervision period too. 28. In this connection we note Prison Service Instruction 2012/20 (licence conditions and temporary travelling abroad), which sets out the scope and meaning of the good behaviour condition. 9 It states in particular that [the condition] can be used to deal with activities which are thought to be leading to reoffending. It is proposed to apply the substance of this Instruction in relation to the supervision requirements, so far as relevant. In any event, clear policy guidance will be issued in relation to this topic. Requirement to permanently reside at an address 29. In R (Francis) v West Midlands Parole Board 10 the Court of Appeal confirmed that a probation trust s refusal of an application from an offender for his supervision to be transferred from one probation trust to another so that he could live with his fiancée was justifiable under Art. 8(2) because there was no good reason for the transfer. It was acceptable to assess the adequacy of a reason by reference to an assessment of the risk the offender posed and the viability of the offender s release plan. This provides authority that managing where offenders may reside during supervision is in principle a justifiable interference with the offender s Art. 8 rights. 6 App. No /94. 7 See para. 7(c). 8 See para See paras 2.4 and [2010] EWCA Civ

6 Requirement to submit to drug testing 30. The Bill creates a requirement (which may be imposed) that an offender must submit to testing for specified Class A or B drugs. The requirement may only be imposed if an offender has been convicted of an offence in the trigger list in the Criminal Justice and Court Services Act 2000, Pt 3 and Sch. 6 (generally acquisitive, drug related and vagrancy offences). The imposition of the requirement would amount to an interference with Art. 8; the considerations and justification for the requirement are substantively the same as with cl. 10 (which extends the drug testing condition in licence conditions). See para. 46ff. below for discussion. A further safeguard in the context of this provision is that top-up supervision is expressly for rehabilitative purposes only and so use of the testing condition as a top-up supervision requirement will be restricted to supporting rehabilitative requirements. Clause 3 and Schedule 2 breach of supervision requirements Provision 31. Clause 3 and Schedule 2 (which inserts new Sch. 19A into the 2003 Act) provide for breach of supervision requirements to be dealt with in the magistrates court. The court may, following a finding of breach, impose a supervision default order (SDO), with sanctions of a fine, committal to custody for up to 14 days, a curfew or a period of unpaid work of between 20 and 60 hours (see new Sch. 19A, para. 3(2)). Articles 5 (right to liberty and security) and 6 (right to a fair trial) 32. The supervision period is outside of the sentence of imprisonment imposed by the court for the original offence. The 2003 Act, new s. 256AC provides a court process by which further custody or other sanction that could be construed as being penal can be imposed compatibly with Arts 5 and 6. In relation to Art. 5, we consider that detention under an SDO is therefore detention following conviction 11 by a competent court (therefore falling within Art. 5(1)(a)), or alternatively may be said to be detention to secure compliance with a legal obligation (the obligation being to comply with the terms of the supervision requirements), therefore falling within Art. 5(1)(b), 2nd limb. Clause 6 Supervision of certain young offenders after detention and training order Background and provision 33. DTOs are described above; they may be made for specified periods between 4 and 24 months. Clause 6 applies in those cases where the offender is 18 or over at the halfway point of the DTO. (It does not, therefore, apply to those released aged 17 or under.) The clause provides for an additional period of supervision in the community following the end of the term of the DTO. This mirrors provision for adult offenders (see cll. 2 to 4); the offender will be subject to a total of 12 months of supervision in the community (comprising the period of supervision under the DTO itself and the additional period described above). 11 The Ministry considers that a finding of breach would be a conviction for the purposes of Art. 5(1)(a), as per e.g. Engel v Netherlands (1976)1 EHRR 647 (para. 68). 6

7 34. The breach arrangements mirror those applicable in respect of adult offenders (see cl. 3 and Sch. 2). Convention rights 35. This provision is compatible with the Convention rights, and we rely on substantially the same arguments as are made in respect of cll. 2 to 4. We have, however, considered whether any additional arguments fall to be made in relation to the DTO proposal. Article 14 (prohibition of discrimination) read with Article 8 (right to respect for private and family life) 36. The supervision requirements to be imposed by virtue of cl. 6 amount to an interference with the offender s Art. 8 rights. It follows that the obligation on an offender to comply with such a requirement falls within the ambit of Art. 8 for the purposes of Art Whether or not an offender will be subject to 12 months of post-release supervision depends on the offender s age at the half-way point of the DTO. An offender who is, for example, 18 plus 1 week at the halfway point of the DTO will be subject to the supervision, whereas an offender who is one week short of 18 at that point will not be. Analogous position 38. The aim of the additional supervision created by this clause is to rehabilitate offenders; it is probable that, having regard to this aim, offenders of different ages receiving DTOs are in analogous positions for the purposes of Art. 14. There are however arguments that two offenders subject to different supervision arrangements will not be in analogous positions, for any of a number of reasons: they are of different ages; they committed different offences or the offending was different; they received different sentences. 39. In any event, authority from the House of Lords suggests that unless there are very obvious relevant differences between two offenders in the same situation, the best approach is to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification. In AL (Serbia) v Secretary of State for the Home Department, 12 Baroness Hale referred to an analysis of the Strasbourg case law carried out by the claimant that showed there were only around 4.5% of cases where the court had found that those with whom the complainant wished to compare himself were not in a relevantly similar or analogous position. Objective and reasonable justification 40. We consider that any differential treatment on grounds of age can be objectively and reasonably justified. It is worth recalling that it is a central principle of the criminal justice system that offenders of different ages are treated differently at all stages of the criminal process. Thus, different sentencing provisions (both custodial and community) apply depending on the offender s age at commission 12 [2008] UKHL 42. See also R (Carson and Reynolds) v Secretary of State for Work and Pensions [2005] UKHL 37. 7

8 of offence (in some cases) or conviction (in other cases). Offenders are placed in different institutions depending on their age, and moved from time to time depending on their age. Indeed, the requirement to treat offenders under 18 differently from adult offenders in the criminal justice system is inherent in the UN Convention on the Rights of the Child. (This last point is made not to show that there is any legal prohibition on applying the supervision requirements in cl. 6 to those under 18, but rather that differential treatment is acceptable and justifiable.) 41. As noted, the aim of the provision is to ensure all adults released from short sentences receive 12 months rehabilitative supervision in the community. The nature of that supervision will be determined by the Secretary of State from a range of requirements prescribed in statute following an assessment of the rehabilitative needs of that offender. 42. In itself this measure strikes a fair balance between the rights and freedoms of the individual and the wider interest of securing the rehabilitation of offenders. It is justifiable to create a bright line between those offenders who are under 18 at the halfway point of their sentence and those who are 18 or over at that point. 43. In the field of criminal justice differences in treatment arising from the age of the offender have been found to be justified In addition the creation of this additional period of supervision for this cohort assists in bridging the divide between the distinctive custodial sentencing regimes applicable in respect of the same offence to those under 18 on the one hand and those 18 or over on the other. 45. We therefore consider that any difference in treatment based on age can be objectively and reasonably justified and, as a result, does not amount to a breach of Art. 14. Drugs and offenders released after custodial sentence Clause 10 Drug testing of offenders after release expansion of licence conditions to include testing for class B drugs Provision 46. Clause 10 relates to licence conditions. It expands the existing drug testing licence condition in the Sentencing Act, so that an offender released on licence on whom such a requirement is imposed can be tested for class B as well as class A drugs. 47. This reflects similar provision elsewhere in the Bill: Clause 2 and Sch. 1 create a drug testing requirement for the new supervision period which the Bill creates for adult offenders released from prison sentences of under 2 years. In the case of supervision the instructions are given by the offender s supervisor; Clause 4 and Sch. 1 expand from class A to classes A and B the existing drug testing requirement for the supervision period applicable to a class of certain young offenders once they turn 18; and 13 See Bouamar v Belgium, App No. 9106/80; (1987) 11 EHRR 1, para 67 (justified for adults but not children to be able to appeal against the lawfulness of their detention because of the protective not punitive nature of the procedure applicable to juveniles ). 8

9 Clause 6 and Sch. 1 make equivalent provision for the new supervision period that applies to offenders who turn 18 before release from the custodial element of detention and training orders. 48. The analysis below is discussed in terms of the drug testing requirement in clause 10, but the same Art. 8 analysis applies in respect of the supervision periods in cll. 2, 4 and 6. The analysis below in relation to Art. 7 is relevant also to cl. 4, but not to cll. 2 and 6, since those provisions (like the supervision scheme which they relate to) only apply in respect of offences committed after commencement). Article 8 (right to respect for private and family life) 49. The clause amends the Sentencing Act, s. 64 so that an offender can be required to submit to testing for drugs in classes A and B which the Secretary of State has specified by order. (Prior to the amendment only class A drugs may be specified.) The condition may only be imposed if an offender has been convicted of an offence in the trigger list in the Sentencing Act, Part 3 and Sch. 6 (generally acquisitive, drug related and vagrancy offences) and the testing is for the purpose of determining compliance with another licence condition. 50. Some of the analysis below relates to the interference created by drug testing generally, but of course the proportionality analysis is relevant in relation to testing for class B drugs. 51. Peters v Netherlands 14 and X v Austria 15 shows that a compulsory medical intervention even if of minor importance constitutes an interference with Art. 8 rights. In Peters compulsory random urine tests on prisoners were found to be necessary and proportionate for the prevention of disorder or crime. 52. It is well recognised that drug use among particular groups of offenders is a major barrier to effective rehabilitation and is a significant contributory factor in further offending. Often there will be no other reasonable means for offender managers to establish whether or not an offender had been taking drugs. Testing for drugs is therefore an effective way of supporting other licence requirements aimed at promoting rehabilitation and preventing further offending among drug using offenders. For example, if an offender is found to be taking drugs then new rehabilitative interventions can be imposed if appropriate. Similarly, drug test results can be used to inform decisions about the risk that the offender represents, informing decisions about relaxing or intensifying other conditions. When another licence condition is breached (e.g. the prohibition on commission of offences) this information can be used to inform decisions about whether the breach should lead to recall to prevent further offending. In some circumstances (e.g. where the offender s index offence was related to persistent drug use and drug tests show a return to persistent drug use) and the risk profile of the offender is sufficiently high then the offender may be recalled for breach of the good behaviour condition. 53. The condition (in relation to both classes A and B) includes safeguards to ensure it is only used where necessary and proportionate. There are three express safeguards to ensure that testing is only focussed on those whose offending behaviour and drug use is linked. Because of the trigger list safeguard it will only 14 App. No / App. No. 8278/78. 9

10 be possible to impose the condition on the groups of offenders who are most likely to commit offences to fund drug habits. Similarly, the testing can only be imposed to determine whether another condition of the licence has been breached. It cannot be imposed as an end in itself and a positive test is not a breach of the condition (although it may breach other conditions). Finally, the list of drugs that it will be possible to test for will be limited to those in classes A and B and then only those specified by order. 54. We consider that it will be necessary to specify at least cannabis and amphetamines. Significant numbers of trigger list offenders are class B drug users (and particularly users of these specific drugs) and in many cases drug use will be related to offending behaviour and therefore pose obstacles to effective rehabilitation. Article 7 (no punishment without law) 55. The power to impose licence conditions in relation to class B drugs applies in cases where the offender was released before commencement, as well as after commencement (see cl. 6(6)). It follows that it applies in a case where the offender committed the offence before commencement. 56. This does not amount to an additional penalty within the meaning of Art. 7. In common with licence conditions generally, the drug testing condition is not penal in nature. Welch v UK 16 established the factors which the court considers when making this assessment. These are whether the measure follows conviction for an offence, the nature and purpose of the measure, its characterisation under national law the procedures involved in the making and implementation of the measure and its severity. It is noted that in Ibbotson v UK 17 a sex offender registration requirement was found not to be a penalty primarily because its purpose was to protect the public and not to punish the offender. 57. This reasoning extends to licence conditions including the drug testing condition. The statutory purposes of supervision on licence, as set out in the 2003 Act, s. 250, are protection of the public, prevention of re-offending and securing the successful reintegration of offenders into society. Drug testing is only permitted to enforce the licence conditions and aid supervision, not to punish offenders, and therefore would not be correctly characterised as a penal measure. Clause 11 drug appointments Provision 58. Clause 11 also relates to licence conditions. It amends the Sentencing Act to enable the Secretary of State to impose a licence condition on an offender released from custody. The condition requires the offender to attend appointments in accordance with instructions given by an officer of a provider of probation services with a view to addressing drug dependency or a propensity to misuse drugs. 59. Importantly, cl. 11(7) makes it clear that the requirement to attend does not include a requirement to submit to any treatment once at the appointment. 16 App. No /90). 17 [1999] Crim. L.R

11 60. Drug appointments may include any form of non-residential clinical treatment including talking therapies or other therapeutic intervention, including those in which the offender may be offered prescribed drug substitute medication such as methadone. 61. This reflects similar provision elsewhere in the Bill: Clause 2 and Sch. 1 make equivalent provision by creating a drug appointment requirement for the new supervision period which the Bill creates for adult offenders released from sentences of under 2 years. In the case of supervision the instructions are given by the offender s supervisor; Clauses 4 and Sch. 1 make available an equivalent drug appointment requirement for the supervision period applicable to certain young offenders once they turn 18; and Clause 6 and Sch. 1 make equivalent provision for the supervision period that applies to offenders who turn 18 before release from the custodial element of detention and training orders. 62. The analysis below is discussed in terms of drug appointments as a licence condition, but the same Art. 8 analysis applies in respect of the supervision periods in cll. 2, 4 and 6. The analysis below in relation to Art. 7 is relevant also to cl. 4, but not to cll. 2 and 6, since those provisions (like the supervision scheme which they relate to) only apply in respect of offences committed after commencement). Aim of provision 63. The aim of the provision is to ensure that offenders who have a propensity to misuse drugs or are drug dependant and whose offending is linked to drug use can be required to attend appointments with a view to addressing a cause of their offending behaviour and ensure their rehabilitation in the community. This may be of particular benefit for offenders with chaotic lives who lack the discipline or motivation to attend appointments. As noted above, the offender is not required to submit to medical treatment (including engaging with any form of therapy) against their will. Indeed is highly unlikely that a medical practitioner would treat an offender who did not consent to treatment in any event. 64. An offender will only be in breach of the provision if the offender fails to attend the appointment for the duration of the appointment required. A person attends the appointment if that person arrives for the appointment and remains until the end of it. Expressing a lack of willingness to submit to or engage in treatment will not amount to breach see cl. 11(3), (4) (6) and (7) read together. 65. Before imposing the requirement the Secretary of State must be satisfied that: the offender is dependant on, or has a propensity to misuse, controlled drugs; that misuse by the offender of a controlled drug has caused or contributed to an offence of which the offender has been convicted or is likely to cause or contribute to further offences; and that the dependency or propensity requires or may be susceptible to treatment. 66. The clause also requires that the person with whom or under whose direction the appointment is with has the necessary qualifications or experience to reduce or eliminate the offenders propensity or dependency on drugs 11

12 67. The identity of the person responsible for giving instructions in relation to drug appointments may vary. Where the requirement is imposed as a licence condition or as part of a supervision period imposed on adult prisoners serving sentences of less than 2 years (cl. 2) the instructions will be given by an officer of a provider of probation services. In practice at the moment that would be a probation officer but the term references provisions in the Offender Management Act 2007, s. 3, which enables the Secretary of State to make arrangements for probation provision with any other person. In relation to certain young offenders subject to supervision in accordance with cll. 4 the supervisor could also be a social worker or, if the offender is under 18 at the date of release, a member of the youth offending team. For offenders subject to supervision at the end of a DTO the supervisor will either an officer of a provider of probation services, or a member of a youth offending team. Article 8 (right to respect for private and family life) 68. Depending on its nature, a licence condition imposed on an offender may amount to an interference with the offender s Art. 8 rights. 69. It is accepted that even a minor medical intervention will, if compulsory, amount to an interference with Art. 8 rights (see e.g. X v Austria 18 ). However, the drug appointments condition does not involve a compulsory medical intervention, but rather a requirement to attend and remain at a specified place for the duration of the appointment. At its highest, the requirement amounts to an interference with the offender s freedom of movement, which represents a limited interference with the offender s Art. 8 rights. However such interference is capable of justification as a proportionate measure in pursuit of the legitimate aim of the prevention of crime. 70. The limitations set out at para. 65 provide important safeguards. 71. In the case of a licence condition the failure to attend appointments will amount to a breach of the licence condition. The Secretary of State will consider the appropriate action in relation to breach which may include varying the licence condition or adding additional licence conditions for managing the risk of reoffending, protection of the public and rehabilitation and where appropriate could including recalling the offender to custody for breach of the condition as with breach of any other licence condition (see the 2003 Act, s. 254). In relation to the supervision the offender would be brought back before the court to consider enforcement action. 72. Lastly, we note that the responsible officer is a public authority for the purposes of the 1998 Act, s. 6(1), and therefore required to act compatibly with the Convention rights. Article 7 no punishment without law 73. The drug appointment requirement applies in a case where the offender was released before commencement, as well as after commencement (see cl. 7(3)). It is implicit in this that it applies in a case where the offender committed the offence before commencement. This is only relevant in relation to licence (as 18 Cited above. 12

13 opposed to supervision) because supervision requirements do not apply generally in a case where the offence was committed before commencement. 74. Substantially the same arguments apply here as in relation to cl. 6. Community orders and suspended sentence orders 75. Clauses 12 to 16 amend the legislative framework for community orders and suspended sentence orders, which is in the 2003 Act, Part 12. Clause 13 rehabilitation activity requirement Provision 76. Clause 13(3) amends the 2003 Act to insert new s. 200A, which has the effect of creating a new rehabilitation activity requirement which may be imposed as part of a CO or SSO. The rehabilitation activity requirement replaces the existing activity and supervision requirements (see ss. 201 and 213 respectively). Sections 201 and 213 are repealed. 77. An offender who is subject to a rehabilitation activity requirement will be obliged to comply with any instructions given by the responsible officer to attend appointments or participate in activities, or both. The current provision in relation to an activity requirement that the court is to specify the activity, not reproduced in relation to the rehabilitation activity requirement. Under the current activity requirement, the number of days of activity which the court may order is limited to 60. The provision removes this limitation, but provides that the court must specify the maximum number of days of activity in which the offender can be required to participate (see new s. 200A(2)). 78. The new requirement provides that any instructions given by the responsible officer must be made with a view to promoting the offender s rehabilitation, but that this does not prevent the responsible officer giving instructions with a view to other additional purposes. See new s. 200A(3). These include (but are not limited to) reparation which is expressly provided for in new s. 200A(7). Article 6 (right to a fair trial) 79. This provision engages Art. 6, on the basis that under the new requirement the court s discretion to specify the activities to be undertaken as part of the rehabilitation activity requirement of a CO, is removed. It is clear that the entitlement to a fair and public hearing by an independent and impartial tribunal applies to sentencing as well as to conviction (see e.g. V v UK, 19 in which the ECtHR held that Article 6(1) covers the whole of the proceedings in issue, including appeal proceedings and the determination of sentence To that extent it may be said that Art. 6 requires that the sentence be imposed by an independent and impartial tribunal. (This is to some degree a question of legal certainty.) However, that is not to say that every detail of the sentence must be imposed by such a tribunal. It is worth noting that a court does not specify the accommodation to which a prisoner is to be sent, nor the specific programmes 19 App. No /94, ECtHR 16th December See para

14 and activities which the prisoner is to partake in, nor the conditions of any licence to which the prisoner is subject on release. 81. In relation to the rehabilitation activity requirement, the court does not determine the specific activity which the offender is to be required to partake in. That is to be determined by the responsible officer. To this extent the responsible officer has a greater role in specifying the activities the offender must participate in than in relation to the activity requirement (which this requirement supersedes). 82. There are strong policy arguments for taking this approach. It is appropriate and beneficial for the offender s rehabilitation that decisions about what specific activities the offender is to partake in, should be taken by the responsible officer, who will have detailed knowledge of the offender s specific needs and the availability of programmes and activities in the area concerned. 83. In terms of the role of the court and the relevance of Art. 6, we consider an important distinction falls to be drawn between the sentencing function and arrangements for the delivery of the sentence. This is a distinction recognised in the case of R v SSHD ex p. Uttley. 21 In that case the House of Lords essentially overturned the Court of Appeal s view 22 that a determination of the point at which an offender is released from prison was an integral part of the sentence, not merely one form of administering it. 84. In this context it is noted that the sentence is the CO itself, which the court will impose having regard to its statutory obligations in the 2003 Act. The new rehabilitation activity requirement is one element of the sentence. As noted above, elements of what might be called the sentencing process may be delivered by other bodies than the court. This happens already in relation to community orders, as follows: in relation to the unpaid work requirements, (see the 2003 Act, ss. 199 and 200) it is the responsible officer who determines the nature of the work and the times at which is must be performed. (The court specifies the number of hours); in relation to the programme requirement (see s. 202) it is the responsible officer who specifies the accredited programme in which the offender is to participate. (Again, the court specifies the number of hours); in relation to the attendance centre requirement (see s. 214) it is the responsible officer who specified the occupation and / or instruction to be engaged in and / or received by the offender. (The court specifies the number of hours and the attendance centre). 85. Overall it can be seen that the court already specifies the elements of various requirements of COs to differing extents, and we consider that as with custodial sentences Art. 6 is satisfied where the core elements of the sentence are determined by a court (as distinct from the arrangements for delivering the sentence.) 86. The court retains control over the sentencing function: The court retains control over the CO as a whole, including of course other requirements and the balance to be struck between them; 21 [2004] UKHL [2003] EWCA Crim

15 The court continues to decide on the appropriateness in general of the requirement in the individual case, and in light of the other requirements which are to be imposed on the offender; The court must (see the 2003 Act, s. 148) ensure the requirements imposed under the order are the most suitable for the offender and that any restrictions on liberty must be commensurate with the seriousness of the offence; The court sets the maximum number of hours of activity which may be required. 87. Lastly, we note the further safeguard of the requirement (see the 2003 Act, s. 156) for the court to obtain a pre-sentence report before making this assessment (unless the court considers it unnecessary) remains. In practice, we envisage that the pre-sentence report will set out the types of activities that may be available for particular offenders and so the court will know in general terms the types of activity that the offender is likely to be required to undertake as part of the new requirement. 88. Overall, the Ministry s view is that the key sentencing elements of the rehabilitation activity requirement remain with the court, and that the overall sentencing structure complies with the requirements of Art. 6. Clause 15 attendance centre requirement Provision 89. A court imposing a CO or SSO on an offender aged 18 to 24 may include an attendance centre requirement, as set out in the 2003 Act, s This is a requirement to engage in occupation, or receive instruction, under the supervision of the officer in charge of the attendance centre (see s. 214(7)). Attendance centres generally offer constructive activities in a group environment whilst imposing a restriction of an offender s leisure time. Clause 15 amends s. 214 to provide that the responsible officer (rather than the court) is to specify the attendance centre which the offender must attend. Article 6 (right to a fair trial) 90. We consider that the provisions of this clause engage Art. 6 in so far as the amendment reduces the role of the court (by removing its ability to specify the particular attendance centre at which the offender must attend). However, the court will continue to set the number of hours for which the offender must attend at the centre, and may not impose the requirement unless it is satisfied that an attendance centre is reasonably accessible to the offender concerned, having regard to the means of access available to him and any other circumstances (see s. 214(3)). Therefore, the penalty will continue to be set, with sufficient certainty of what that penalty involves, by an independent and impartial tribunal. As such, the requirements of Art. 6 are satisfied. Clause 16 Duty to obtain permission before changing residence Provision 91. Clause 16 requires an offender subject to a CO or SSO to seek prior permission from the responsible officer or the court to change their place of residence. The grounds on which the responsible officer or the court may refuse permission are 15

16 92. The clause removes the obligation on the offender to notify their responsible officer of any change of address. It also amends the powers in the 2003 Act, Sch. 8, para. 16 (community orders) and Sch. 12, para. 14 (suspended sentence orders) which allow (or in certain cases oblige) the court to amend the order by substituting a new local justice area, where it satisfied that the offender proposes to change or has changed his residence from one local justice area to another. Article 8 (respect for private and family life) Interference and in accordance with the law 93. This proposal may depending on the extent of the impact of any refusal of permission to move amount to an interference with the offender s Art. 8 rights to respect for private and family life. In order to justify this proposal the interference will need to be in accordance with the law, in pursuit of one of the legitimate aims listed in Art. 8(2) and necessary in a democratic society. The provisions of cl. 16 give the interference a sufficient legal basis to make it in accordance with the law. Legitimate aim 94. It is worth saying a little about the current position. Currently an offender subject to a community order or suspended sentence order must notify the responsible officer of any change of address. If the offender fails to do so the responsible officer may, where appropriate, initiate breach action (see the 2003 Act, s. 220). An offender may also apply to the court to amend the order by transferring it from one local justice area to another (Sch. 8, para. 16 for COs and Sch. 12, para. 14 for SSOs). Under these provisions the court may not transfer the order if it considers that the order cannot be complied with in the new local justice area, unless it cancels or substitutes particular requirements. 95. Clause 16 therefore goes further than the current provisions, in that it requires all offenders to seek prior permission to reside elsewhere, rather than simply to notify the responsible officer. 96. The aim of this provision is ultimately the prevention of crime and therefore public safety, and in that sense the provision is consonant with the general aims of the Bill. The Bill puts in place measures which will provide greater, more intensive and longer-term rehabilitation for offenders. A lack of effective rehabilitation is one of the main drivers of re-offending, and encouraging proper adherence to community sentences is an important part of that. 97. By requiring an offender to seek permission to change residence (rather than merely notifying), this provision will reduce unnecessary moves which disrupt the effectiveness of the order. This in turn will increase the continuity of the rehabilitative support which is available to offenders who are subject to COs and SSOs, and help offenders to engage consistently with their responsible officer. Relatedly, requiring offenders to seek permission to reside elsewhere will promote stability and assist in maintaining relationships between offenders and their responsible officers. This will assist in the offender s rehabilitation and will ultimately contribute to a reduction in re-offending rates. It will be effective, for 16

17 98. The provisions pursue the legitimate aim of the prevention of crime. Proportionality 99. The interference is proportionate to this legitimate aim. The decision whether to grant permission will be taken by the responsible officer or the court in an individual case. The officer and the court do not, however, enjoy an unfettered discretion in the legislation. New s. 220A(4) provides that the grounds for refusing an application for permission are that the change in residence is likely to prevent the offender from complying with a requirement imposed by the relevant order or that it would hinder the offender s rehabilitation. The effect of this is that permission may only be refused in these circumstances. So, there is in effect a presumption that the offender will be able to move unless the responsible officer or the court can show that the move is likely to prevent the offender from complying with the order or that it would hinder his rehabilitation. The power is therefore expressly limited to those situations in which the move has a demonstrable impact on the effectiveness of the order; this draws a clear link between the interference and the legitimate aim, and (crucially) excludes from the scope of the power any interference which is not rationally connected to that aim Importantly, it is implicit in the provision that the officer or the court must consider the extent to which it is possible for offenders to access similar rehabilitative support elsewhere. In a case where that can be done, we consider that the officer will not be able to refuse permission under the power created by cl See para. 29 above for an instance (in relation to licences) where what amounted to permission to reside elsewhere was refused, and a challenge successfully defended. Comparison with licence condition provisions 102. A similar provision to cl. 16 exists in respect of prisoners released on licence. The Criminal Justice (Sentencing) (Licence Conditions) Order provides that one of the standard licence conditions is to permanently reside at an address approved by the responsible officer and obtain the prior permission of the responsible officer for any stay of one or more nights at a different address It is accepted that there is a difference between that scheme and that in cl. 2. The licence scheme applies to offenders who have passed the custodial threshold, been in prison, are still subject to a term of imprisonment and remain liable to recall to serve the remainder of their prison term. Conversely, cl. 16 applies to offenders who have committed less serious offences, which, in the case of the community order, have not passed the custody threshold However, there are similarities. Both schemes operate in relation to offenders who are subject to rehabilitative measures, whose integration into a settled position in society is of great importance. The residence element in cl. 16 (like 23 S.I. 2005/