Legislation: s227A-227ZO of the Criminal Procedure (Scotland) Act 1995
Community Payback Orders (“CPOs”) replaced Community Service Orders, Probation Orders and Supervised Attendance Orders on 1st February 2011.
CPOs are court orders that impose one or more “requirements” on offenders. In imposing a CPO, the court effectively hands over responsibility for enforcement onto the offender’s local social work department. In particular, a nominated “responsible officer” is responsible for “promoting compliance” with the requirements of the order, and is the offender’s point of contact for (e.g.) notifying them of a change of address.
Prior to imposing a CPO, the court must – unless it is imposing a level one unpaid work order (see 3. below) or imposing a CPO due to default on a fine – obtain and consider a Criminal Justice Social Work Report on the offender. It must then “explain to the offender in ordinary language” what the particular proposed CPO requires them to do, the consequences for breaching it, and whether there is to be any review of the CPO in due course.
The offender must confirm that they understand, and are willing to comply with the order. Given that a lot of CPOs are imposed as alternatives to imprisonment, it is generally in the person’s interests to confirm that they are willing to comply with it.
There are nine possible requirements that can be imposed as part of a CPO. They are:
1. Offender Supervision Requirement
This requires the offender to attend any appointments or classes that the responsible officer deems necessary, for the purposes of rehabilitation.
Supervision requirements must be imposed if the offender is under 18 years old at the time the order is imposed. They must also be imposed alongside any requirement that isn’t an unpaid work or other activity requirement.
In most circumstances, a supervision requirement lasts from six months to three years.
2. Compensation Requirement
This requires the offender to pay compensation in the same sort of circumstances that apply to a compensation order.
3. Unpaid Work or Other Activity Requirement
This is what most people would colloquially regard as “community service”. An offender can be sentenced to between 20 and 300 hours of unpaid work or other activity; it is for the responsible officer to determine what the work/activity actually is. Examples given by the Scottish Sentencing Council are:
Anybody can make suggestions for unpaid work, which emphasises the restorative qualities of this requirement.
If the number of unpaid work hours is 100 or fewer (a “level one” requirement), then the hours must be completed within three months, unless the court specifies otherwise. If the number of hours is 101-300 (a “level two” requirement), the default period for completion is twelve months. At the time of writing, the Coronavirus (Scotland) Act 2020 has temporarily extended these periods by twelve months, if the CPO was imposed pre-Act.
4. Programme Requirement
This is a requirement that the person participate in a specified programme “for the purpose of addressing offending behavioural needs”. It will need to be recommended by a local authority officer as being suitable in order to be specified in the CPO by the court.
5. Residence Requirement
This is a requirement that the person resides at a certain address, for the duration of the order. If the residence is to be “a hostel or other institution”, it must be recommended as suitable by a local authority officer first.
6. Mental Health Treatment Requirement
This is a requirement that the person must “submit…to treatment” for a specified period with a view to improving their mental condition.
This requirement can only be made if:
- the court is satisfied (on the evidence of an approved medical practitioner) that the person suffers from a mental condition that is susceptible to treatment;
- the condition is not so serious that a “compulsion order” (meaning that the convicted person is to be detained in hospital for treatment) is made, and;
- arrangements have been made for the proposed treatment to begin
7. Drug Treatment Requirement
This is a requirement that the person must submit to treatment for a specified period “with a view to reducing or eliminating the offender’s dependency on, or propensity to misuse, drugs”. This requirement will only be included in the CPO if the court is satisfied that:
- the person is dependent on or misuses any controlled drug(s);
- the dependency or propensity “requires, and may be susceptible to, treatment”, and;
- arrangements have been, or can be, made for the proposed treatment.
8. Alcohol Treatment Requirement
As above, but substitute “controlled drugs” for “alcohol”.
9. Conduct Requirement
This is potentially a wide-ranging requirement that the person “must, during the specified period, do or refrain from doing specified things” (not covered elsewhere in the legislation), imposed if necessary to “securing or promoting good behaviour”, or “preventing further offending behaviour”.
The particular aspects of the conduct required have to be specific; it is not competent for the court to simply order that the person does not commit any further offences during the specified period.
Review of CPO
As mentioned above, the court can decide to schedule one or more progress reviews of a CPO, to monitor the offender’s compliance with it. This will involve the responsible officer preparing a “CPO Progress Report” indicating how things are going with the order.
Variation, Revocation and Discharge of CPO
The offender or the responsible officer can apply to the court to vary, revoke or discharge the CPO.
If the court is satisfied that it is appropriate, it can vary, revoke or discharge any of the requirements in the CPO. For example, it can extend the time period allowed for completing hours of unpaid work, or alter the address at which the person is required to reside at.
Breach of CPO
If someone subject to a CPO is suspected of breaching a requirement (most commonly, failing to attend for unpaid work) without reasonable excuse, the responsible officer can report this to the court. The court can then either issue a warrant for the offender’s arrest, or send them a citation through the post, ordering them to attend court to answer the allegation.
A “breach report” is (usually) made available to the person’s solicitor, which ought to set out the specifics of the alleged breach. It is up to the offender to then either accept or deny the breach.
If the breach is denied, then the court will fix a “proof” at which evidence can be led as to whether the offender did indeed fail to comply with the order without reasonable excuse. Evidence from a single witness is sufficient, providing that they are believed.
If the breach is established (by acceptance or by proof), then the court can vary the order (e.g. by adding more hours of unpaid work), revoke or discharge any requirement imposed by the order.
If the order is varied, but not revoked, the court has the power to fine the offender for the breach. It also has the power to impose a restricted movement requirement in these circumstances, which is the equivalent of a ROLO. These are the only circumstances in which a restricted movement requirement can apply; the court cannot impose one when originally imposing the CPO.
If the CPO is revoked as a result of a breach, then the court may re-sentence the accused for the original offence, as if the order had not been imposed in the first place. If the CPO was imposed as a direct alternative to imprisonment, then revocation of the CPO will usually result in a sentence of imprisonment.
The case of Russell v PF Falkirk from 2018 makes it clear that, where the CPO being revoked was imposed as a direct alternative to imprisonment, the offender cannot be punished separately for the original offence and the CPO breach; the sentence should not take the latter into account.