Scottish Government

CHAPTER FOUR KEY FINDINGS AND SUGGESTIONS FOR ACTION

4.1 This section summarises the main findings from this research, and makes a small number of suggestions for action. The findings are presented in bullet point format for ease of reading.

Key findings

4.2 The first part of this section sets out a series of conclusions in relation to a number of aspects of Supervised Attendance Orders based on the findings presented in the first three sections of this report. The structure of the findings section mirrors that of the objectives of the research, and each subsection addresses an objective.

Content and provision of Supervised Attendance Order programmes

4.3 In relation to the content and provision of SAO programmes:

• It is clear that the implementation of S235 (4) of the Criminal Procedure (Scotland) Act 1995 has had no impact on the content and provision of Supervised Attendance Order programmes in the pilot or other areas. The order is delivered in each of the pilot areas exactly as it was delivered prior to the pilot commencing, albeit in different premises and with a greater throughput. The delivery of the order is identical within each area, regardless of the sentencing court with Sheriff and District Court orders (as well as orders transferred in from other courts) being delivered in each of the pilot areas.
• The content of the East Ayrshire Council and Glasgow City Council orders are similar (as might be expected), with a focus on employment skills. The content of the South Ayrshire Council order is slightly different, with a focus on both employment and social skills, as well as offering computing and arts and crafts.
• Arguably, the investment provided by the Scottish Executive has led to an improvement in the environment in which offenders carry out their order. It has also allowed staff to be more proactive in addressing potential breaches of orders, through following up on unauthorised absence. Although not strictly related to the delivery of the order, the additional funding has allowed the Ayrshire Councils to base a worker in court, bringing a range of benefits in terms of ensuring that contact is made with offenders at an early stage following the imposition of an order. This is also viewed as valuable by court staff and by the Sheriff interviewed. A worker was based in Glasgow District Court in the early stages of the pilot, but was later withdrawn.
• There is excess capacity in both Ayrshire Councils which could be used to deliver additional orders if the need arose. The capacity in Glasgow was, for some time underused, but at the time of writing is now more fully utilised.
• Some concerns were expressed by sentencers in one area about both the behaviour of offenders on orders, and the advisability of imposing orders on some offenders who, in the view of these sentencers, would be unable to deal effectively with other offenders to whom they may be exposed.
• Supervised Attendance Orders are delivered in a variety of ways across Scotland, with some corresponding to the APEX model, while others offer largely unpaid work. It is also clear that the level of resourcing for the delivery of Supervised Attendance Orders varies across Scotland, with some Social Work services operating what are, in effect, very small programmes in terms of the throughput of offenders. This has implications for any future roll out.

Processes and procedures

4.4 In relation to processes and procedures:

• With the exception of issues of volume, there were no specific additional processes or procedures required in the creation of mandatory Supervised Attendance Order programmes within Social Work services. Ayr Sheriff Court was found to have made no changes to processes as a result of the pilot. The court was already a regular user of both S235 and S237 orders. Glasgow District Court employed two additional members of staff to cope with the administration of the anticipated increase in the number of orders. The process of issuing the orders was also computerised. The court obtained the services of an additional assessor to cope with the number of fines inquiries being held, although, strictly, this was not as a result of the pilot (as these inquiries would be required whether or not the pilot was in operation).
• Although there was some element of capital investment in equipment and facilities, as well as the recruitment of additional staff, this could not be ascribed to the mandatory Supervised Attendance Order pilot per se, simply to the need to be able to cope with the resultant increased volume of orders.
• In terms of the establishment of the pilots, it appears that a similar process was followed in both areas, with meetings between court and Social Work staff. Issues were also discussed as part of regular contacts between senior Social Work staff, court staff and sentencers. By common consent, the development and implementation of the pilot in Ayr Sheriff Court went smoothly, and there were no significant issues raised. It is clear that there teething problems with the early implementation of the Glasgow District Court pilot in relation to communications (although these were quickly addressed). Although some early orders were made in the Custody Court, there were some teething difficulties in relation to the checking of offenders' addresses, meaning that the initial attrition rate was higher than it might otherwise have been.
• With hindsight, Glasgow District Court was arguably not ready for the implementation of the pilot, being in the midst of a separate major reorganisation which meant that no Fines Inquiry Courts were held from June 2004 to November 2004. The practical effect of this was that few orders were made by Fines Inquiry Courts until March 2005. Thereafter, with the Court sitting three times per week, the number of orders from Glasgow District Court increased considerably.
• Glasgow City Council Social Work service recruited additional staff to cope with the anticipated increase in orders but when this had not materialised by the first few months of the pilot, staff chose to leave. Thereafter, internal difficulties within Glasgow City Council meant that these posts were not filled for more than a year. In the initial stages of the pilot, this made little difference, as the remaining staff were able to accommodate the number of orders imposed. In the following months, however, the number of orders imposed by the court increased almost exponentially. The result was that the Supervised Attendance Order team was unable to cope with the demand, and was unable to meet the National Standard in relation to calling offenders to an initial interview and the development of an Order Plan.
• As a result of these issues, the early breach rate in Glasgow District Court was high, much higher than in Ayrshire or the current national average rate. As will be set out later, the resolution of these staffing issues, coupled with a range of procedural changes, has meant that the breach rate has fallen, and may continue to fall over time.

The impact on wider court work and culture and operation

4.5 In relation to the impact on wider court work and culture and operation:

• It would be fair to say that the pilot has had little impact either on Ayr Sheriff Court, or on the East Ayrshire or South Ayrshire Social Work services. The stakeholders in Ayrshire appear to have a good working relationship. The two councils work closely on a wide range of Social Work matters as part of a consortium (together with North Ayrshire Council).
• In terms of Supervised Attendance Orders, South Ayrshire delivers some orders for East Ayrshire Council as a matter of offenders' convenience (a fact likely to have had some impact on breach rates, although this would be impossible to prove). A member of South Ayrshire Council staff stationed in Ayr Sheriff Court also carries out initial contacts on behalf of East Ayrshire Council for any offenders ordinarily resident there. Both councils also work closely with APEX Scotland, albeit in different capacities.
• It is clear that the pilot has had some impact on Glasgow District Court, although there have been other matters which have also led to changes. The operation of additional regular Fines Inquiry Courts at Glasgow District Court is strictly unrelated to the pilot, although clearly this has aided considerably the flow of Supervised Attendance Orders (and has, to some extent, been made easier by the funding provided for additional administration staff). Prior to the pilot, the court handled only a very small number of Supervised Attendance Orders each year (as sentencers were far more likely to impose the alternative of custody). The pilot necessitated an increase in the staffing of the Social Work desk, and the computerisation of the process. It is clear, however, from both Glasgow District Court and Glasgow City Council Social Work staff that the processes involved in the operation of the orders are very smooth, and no issues were raised by either party.
• The main impact of the pilot on Glasgow District Court has been related to the number of breach hearings required. By the end of February 2006, more than 500 orders had been breached. This has implications in terms of resources for sentencers, court staff, Procurators Fiscal and Social Work staff (who have to speak to the reasons for breach), as well as for Strathclyde Police in terms of the serving of warrants granted for non-attendance.
• A secondary impact of the pilot on Glasgow District Court has been a perceived increase in the awareness of sentencers of the existence and benefits of Supervised Attendance Orders.

The use of custody as an alternative at the time of imposing a fine

4.6 In terms of the use of custody as an alternative at the time of imposition of a fine:

• The imposition of mandatory SAOs has not appeared to lead to any change to the pattern of sentencing at the time of the original fine. This option has been used "occasionally" by a minority of sentencers involved in both courts. There is no evidence that the use of this option has increased as a result of the pilot.
• In Glasgow, there is evidence that Stipendiary Magistrates have imposed fines with the alternative of custody in the event of future default as a result of an order being revoked at breach hearings (although this is clearly a different issue).

Repeat SAOs

4.7 In terms of repeat SAOs:

• Using an arbitrary definition of SAOs imposed at courts at least 3 months apart, the level of repeat orders is quite small in comparison to the overall number of orders. This is likely to change over time, and the number of repeat orders will inevitably increase.
• Around 1 in 6 of all offenders have multiple orders, but around half of these were imposed at a single court or at courts very close together in time.
• The views of Social Work staff suggests that offenders given repeat orders are no more likely to breach the subsequent order than their original order (which is consistent with the findings of the 1998-99 evaluation).
• The longer term impact of breach in relation to multiple orders will require to be monitored over a much longer period than was available to this research.

The use of Supervised Attendance Orders and the impact on receptions to custody

4.8 In terms of the use of SAO and receptions to custody:

• The level of use of Supervised Attendance Orders at Ayr Sheriff Court has been lower than expected, although it could be argued that it was already high compared to other courts, and that the estimate prepared by court and Social Work staff was slightly high.
• The level of use of Supervised Attendance Orders at Glasgow District Court was, in 2004-05 lower than anticipated, and in 2005-06, rather higher than anticipated.
• It is clear that there has been a very large impact on the number of offenders receiving custody as a result of fine default. The impact in Glasgow alone is considerable, as, in the year prior to the pilot, 1221 adults were received into custody as a result of offences including fine default. The figure for 2004-05 declined to 895 and for 2005-06 to 700. The court has only imposed a small number of custodial sentences for Level 3 fines and above. The vast majority of fine-related receptions to custody relate to cases where the accused has asked for outstanding warrants for fine default to be considered following a guilty plea or guilty finding in relation to other matters.
• The impact on women offenders has also been significant, and it is clear that the pilot in Glasgow has made a significant contribution to the Scottish Executive's objective of reducing the number of women receiving custodial sentences.
• The impact on Ayr Sheriff Court is smaller in absolute terms, but is still significant.
• The level of use of custody as an alternative is declining generally across District and Sheriff Courts (although there is some variation from court to court), and the level of receptions to custody is also declining.
• The number of offenders given a custodial sentence solely for beaching an order is higher (particularly in Glasgow) than before. However, this number is much smaller than those previously sentenced to custody as a result of fine default.
• One factor in this is that sentencers in both Ayr Sheriff Court and Glasgow District Court are using a range of options. In Ayr, offenders are being returned to complete orders following what is, in effect, a "Sheriff's warning". These cases are not strictly covered by National Standards and a local arrangement is in place to, in effect, re-set the number of warnings to two. This appears to work, and the approach is well regarded as a number of offenders in both South and East Ayrshire have subsequently completed their orders as a result. In Glasgow, sentencers have taken the view that, if a custodial sentence is competent for breach of an order, any other lesser disposal is also competent, and have used, for example, fines (with the imposition of custody as an alternative in the event of future default) in preference to custody. It is also clear that sentencers are considering time spent in custody following arrest on a warrant (or a period of remand pending an SER) as analogous to time served, and are, therefore, remitting the order and appearing to take no further action.

Breaches of SAOs

4.9 In relation to breaches of orders:

• On the basis of statistics provided by Social Work services to the Scottish Executive, the level of breaches associated with orders imposed at Ayr Sheriff Court appears to be slightly lower than the national average (although some orders remain outstanding, and therefore, the number may rise in time). The rate of breach applications is higher than the rate of revocation of orders in Ayrshire, as sentencers in some cases are returning the offender to complete their original order, with no change to either the time allowed for completion or the number of hours imposed.
• The level of breaches in Glasgow was very high in the initial period although there is evidence that this is stabilising, and may decline further over time as the impact of proactive measures taken by the council is fully realised.
• The number of breaches which result in custody remains relatively low. Of breaches reported by South Ayrshire Council and East Ayrshire Council relating to orders imposed in the two year pilot period, only 23 resulted in custodial sentences, compared to 9 in the year prior to the pilot. It is worth noting that the slightly lower than anticipated number of orders has meant that both services have been able to be more proactive in investigating breaches than would have been the case previously. It was felt in both areas that this has helped to maintain the breach rate at a lower level than might otherwise be the case.
• Over the same period, breaches reported by Glasgow City Council resulted in 61 offenders being sentenced to custody. It is interesting to note that the number of cases where custody was imposed was much lower than the number of cases where orders were revoked and no further action taken. As noted in the previous section, sentencers appear to be considering time spent in custody following the serving of a warrant as analogous to "time served".

Compliance and enforcement within the delivery of SAOs

4.10 In terms of compliance and enforcement:

• Compliance and enforcement procedures are being carried out by each of the services in line with National Standards, and there is no evidence of the differential application of these for different groups.

Views of stakeholders

4.11 In terms of views of the order and its management:

• There was general support for the Order from most (although not all) interviewees, with a range of benefits identified, including a number relating to helping offenders become work-ready.
• As noted in the body of the report, Stipendiary Magistrates at Glasgow District Court had a range of concerns about the fact of, and conduct of the order, as well as the mandatory nature of the pilot.
• There was a concern among some stakeholders that very long orders may be more likely to fail, and there were some who suggested that the maximum number of hours should be reduced, making compliance easier over the life of the order. In this context, there was a concern that National Standards are inflexible in allowing the same number of warnings for a 10 and a 100 hour order.
• There were mixed views about S235 and S237 orders. In the case of the former, if this was to be used exclusively, there was a concern that more orders would be imposed than strictly necessary, as some offenders would actually pay their fines in the extended time available though a S237 order. There were, however, also concerns expressed about S237 orders. These require additional administrative processes, including an additional trawl and the preparation of a letter to the offender. They can also be more difficult for Social Work services to manage, as there can be no indication of when a trawl will identify default. Views expressed by Social Work staff suggest that offenders on S237 orders may be less motivated due in part to the passage of time since the offence, and at the very least, their level of prior knowledge (and any recall of matters discussed by their sentencer) are likely to be much lower.
• A concern expressed by a number of stakeholders, including court and Social Work staff, was that, for clear legal reasons, offenders cannot "pay" their fine once an order is imposed. While respondents did not condone the practice, it was recognised that, outwith the pilot, a significant number of fines are discharged once a warrant is served on a defaulter. This cannot happen with an SAO, as there is no locus as the fine is remitted by the order. This is creating what was described as a "would pay, can't pay" category of offender. There was a strong view among some stakeholders that some amendment to the current procedure could be beneficial in both increasing the recovery of fines and preventing the imposition of unnecessary orders. It was suggested, for example, that a fine should not be remitted until the order commences (with the initial Social Work interview) to bring this into line with the situation where offenders can discharge their fine up to the point of being received into prison.
• There were also concerns expressed about the impact of the maximum custodial sentence available to courts on the rate of imposition of SAOs outside the pilot area. SAOs are seen (by sentencers and court staff) to be unpopular among agents and many repeat offenders, as the likely period spent in custody for fine default is about half of that where an order is breached. There was support among some stakeholders for a reduction in the maximum period of custody a court can impose in the event of breach to bring it more into line with the standard scale for fine default for Levels 1 and 2 fines. It was suggested that this could increase the level of imposition of SAOs in non-pilot courts, particularly in cases where agents represent the offender, or where repeat offenders are involved. The impact that this could have on the rate of breaches of orders is not clear. Although it is hard to judge accurately, it may be the threat of any prison sentence rather the absolute level of this which is important for those for whom custody is a deterrent to breach.
• There was a view among a range of stakeholders that some sentencers are not fully aware of the potential benefits of SAOs, and may not, therefore, consider imposing an order. The assumption is that, as sentencers become more aware of the order, they are more likely to use it. There is some support for this from the Glasgow experience, where the level of awareness of the order among Justices was low prior to the pilot.

4.12 Views of the need for alternatives at the time of the initial sentence included:

• All of the sentencers interviewed took the view that they required more alternatives at the time at which they were considering imposing a fine. There was also some frustration among Supervised Attendance Officers that the order was only available in the event of fine default. There was a strong view among this group that SAOs (or something similar) should be available as a first instance disposal in cases where the offender is either manifestly unable to pay their fine, or would clearly benefit from the intervention provided.
• There was a widespread view that the issue of fine default requires wider consideration, and that, in many cases, imposing a fine will inevitably lead to the need for enforcement action. The suggestion was made by a number of interviewees that there is a need for sentencers to have more low tariff options available to them. In this context, the first instance pilot currently underway was being viewed with interest.
• Finally, in this context, it was suggested by some stakeholders that the administration of fine default itself has some impact on the rate of recovery and, also on the rate of compliance with SAOs. It was suggested by court staff that the key issue is speed of administration, with a strong view that the longer a period which elapses between the fine and action for default, the less likely an offender is, firstly, to be traceable, and secondly, to either pay their fine or to comply with an SAO. This is, however, difficult to corroborate with current systems.

4.13 Views of the implementation of the Mandatory SAO included:

• It was recognised by all involved in the pilot at Ayr Sheriff Court that this had progressed smoothly, and that few if any problems were encountered. While the level of orders was lower than anticipated, there is no evidence that the court changed its approach to sentencing or the operation of the Fines Inquiry Court. One of the benefits of the slightly lower than anticipated level of orders is that both Councils believe that that they have been able to improve their levels of service, with some impact on the level of breaches (which, as noted earlier, remain relatively low and broadly consistent with other non-pilot areas).
• It is clear that, prior to the imposition of the pilot, Justices in Glasgow had only limited knowledge of SAOs, and the Court had no tradition of using these. Stakeholders also recognised that there were some initial problems associated with the roll-out in Glasgow (relating to a separate reorganisation), and this certainly affected both the rate of imposition of orders and latterly the breach rate.
• Since March 2005, the court has been imposing orders at or above the rate expected in the initial projections. The effective annual rate of SAOs is greater than the number of cases where custody was applied as an alternative in the past, partly as a result of the much greater number of Fines Inquiry Courts being scheduled. This may also have the effect in the longer term of increasing the level of recovery of unpaid fines.
• The level of breaches was a matter of concern to stakeholders in Glasgow, but it is important to note that, following remedial action by Glasgow City Council, the rate stabilised, and declined over the last months of the pilot period. The number of offenders sentenced to custody as a result of breaching an SAO is low in comparison both to the number of orders, and the number of breach applications (as well as compared to the previous number of receptions to custody for fine default).
• It appears that sentencers have applied discretion in their decisions. Overall, the number of cases where sentencers revoked the order and took no further action outnumbered those where custody was imposed by a factor of 3:1 in Glasgow, and was broadly similar at Ayr. Sentencers at Ayr also returned offenders to complete their original order. The basis for this has not been tested, but it does appear to be effective in that a significant number of offenders have actually completed their orders following a "Sheriff's warning". This approach is welcomed by the Social Work teams. In Glasgow, sentencers are also imposing a range of penalties as an alternative to custody.
• Although it is clear that the early level of breaches had a significant impact on the business of the court, this does not appear to have caused particular management difficulties, although it has clearly had an impact on both police and the Procurator Fiscal service, where additional staff resources have had to be deployed to deal with the increasing number of reported breaches.
• One area of concern to Social Work services is that, at present, a Supervised Attendance Officer has to be present at a breach hearing to speak to the non-attendance of an offender. It was suggested that this is hugely wasteful of officers' time and that more use could be made either of agreed evidence, or that a change could be made to the legislation to allow written evidence (in the form of a register countersigned by an officer) to be sufficient proof of non-attendance. It is recognised that there may be some cases which would have to be adjourned to allow defence agents to query this with an officer in person, but the overall savings in officer time (and the benefits which could be brought through reapplying officers' time to proactive work to prevent breaches) seem worth investigating.
• It was also suggested that changes in the maximum custodial penalty for breaching an order to bring them into line with those for fine default would be likely to have the effect of increasing the number of offenders who would admit a breach. It was also suggested by some sentencers that, in their view, some offenders may be denying breaches (and failing to attend hearings) simply as a means of avoiding the custodial sentence they see as inevitable. It is arguable whether a reduction in the maximum level of sentence for breach would have any impact on its deterrent value. Social work staff, supported by offenders, suggested that, for those likely to see custody as a deterrent, it is the fact of this, not the length of it, which is important.

4.14 In terms of the future:

• There were mixed views about what may be likely to happen in the event that the pilot were to be discontinued. Social Work staff in Glasgow expressed concerns that the number of orders would return to previous levels ( i.e. very low) but this view was shared neither by Justices nor Stipendiary Magistrates, who were clear that they would continue to use the order where appropriate.
• It was noted in both Glasgow and Ayrshire that some level of continuation funding would be required to cope with the high level of orders still within the system. Even if Glasgow District Court were to stop imposing orders immediately (and there is no suggestion that this would happen) the volume of orders being managed by Glasgow City Council Social Work Service (and APEX) would remain very high for at least 6 - 9 months.
• There were mixed views (as might be expected) about whether or not the mandatory nature of the order should continue. In Ayr, all of those interviewed were content for the mandatory nature of the order to remain in place. In Glasgow, however, while Social Work staff believed that this should happen, sentencers took the view that, while the objective of keeping offenders from custody was worth pursuing, a mandatory Supervised Attendance Order was not an appropriate approach to this.

Cost effectiveness

4.15 In terms of cost effectiveness:

• It is very hard to draw any firm conclusions about cost effectiveness.
• The lower than expected volume of orders from Ayr Sheriff Court meant that there was some level of overcapacity with the result that the overall cost of processing an order has increased slightly (to around the national average), but still to a level below that for a typical custodial sentence. There have also been a range of associated benefits which have meant that the level of breaches has remained little different in proportion to the pre-pilot level, and there appears no doubt that the level of service being provided both to courts and clients is more extensive than before. One aspect of "cost effectiveness" in Ayrshire is that other courts in the area, particularly Kilmarnock Sheriff Court, are now able to receive a better level of support from Supervised Attendance Officers than before.
• The situation in Glasgow over the life of the pilot has made any estimate of cost effectiveness virtually impossible. The small number of orders in the first year made the cost per order artificially high; while the "catch up" has meant that the second year cost per order may be artificially low. An estimated social work cost of around £750 per order over the life of the pilot is higher than the national average, but there are grounds to consider that this will fall over time. This cost is not, however, a sound basis upon which to base plans for future provision.
• The cost of processing breach applications has been considerable. There are costs for Social Work, Glasgow District Court, the Crown Office and Procurator Fiscal Service and Legal Aid, as well as the police costs associated with the serving of warrants in the event of non-attendance. These are to a large extent "hidden" costs, but are nonetheless relevant to any consideration of roll-out or continuation of the pilot.
• There have been a range of benefits arising from the pilot, not least the fact of a significant decline in the level of receptions to custody. While it is impossible to estimate how many offenders "avoided" custody as a result of the pilot (as this would require an assumption to be made about the hypothetical view of sentencer at Fines Inquiry Courts had the pilot not been in place), it is nonetheless reasonable to assume that it is a significant number. As set out in detail in section 3, there has been a significant impact on the number of women received to custody for offences relating to fine default.

Implications for wider roll out

4.16 In terms of the implications for any wider roll-out of a mandatory SAO:

• In terms of the management of orders, the key concern identified by stakeholders is whether all Social Work services could cope with an increase in numbers. The circumstances of both Ayr Sheriff and Glasgow District Courts were atypical. In the former case, the number of SAOs imposed was already quite high prior to the pilot - higher, for example, than in Edinburgh which has a population about four times greater - and both councils already had in place a modular operation capable of being expanded to meet increased demand. The main concern is likely to be in areas where the current level of SAO provision is low, for example, where unpaid work is the norm. In these cases, Social Work services may take some time to find enough opportunities for offenders. It is also likely that in other areas, even where there is more flexible provision, some lead in time would be necessary.
• Little impact was anticipated in terms of the administration of a mandatory order on courts at the point of its imposition. It is clear from evidence provided by SCS and from anecdotal evidence from District Courts that the administration of fines, fine default and the imposition of an increased number of Supervised Attendance Orders seems unlikely to place any undue burdens on courts in general, although some may have to invest in, for example, computerising the processing of orders.
• While it would be ideal (as in Ayr) for a Supervised Attendance Officer to attend all Fines Inquiry Courts and Custody Courts, in some places, this would be quite difficult as it appears that some courts are now scheduling Fines Inquiries more flexibly (for example, within the business of a Custody Court) to allow more efficient use to be made of court time. In these circumstances, it would be hard for Social Work services with low volumes of orders to provide the necessary staffing.
• There are also concerns that the level of awareness among sentencers (particularly Justices) is low, and that this may require attention prior to any roll-out of a mandatory Supervised Attendance Order.
• Some concern was expressed that courts may lose out on revenue through the imposition of a mandatory Supervised Attendance Order in cases where an offender would have paid a fine "at the prison gate" or when a warrant was served.
• In terms of court business, however, the key concern in terms of roll out for virtually all of those interviewed was the level of breaches evident from orders imposed at Glasgow District Court. While Glasgow District Court has managed to accommodate this by scheduling proof hearings virtually every afternoon, few courts have anything approaching this level of resources (in terms of Clerks or Justices) to deal with such a significant increase in one aspect of their business. There is also a concern evident among some sentencers about the costs of legal aid if mandatory Supervised Attendance Orders result in a significant increase in the number of proof hearings. More widely, concern was also expressed about the impact of the increased volume of warrants on the work of (and costs falling to) police forces.

Suggestions for action

4.17 In relation to the current pilot, it is worth noting that it could not simply be terminated without a "running down" period. Glasgow City Council currently has hundreds of live orders which will require around 3 - 6 months from the date of cessation of the pilot to work through the system (on the basis of current practice in Glasgow). South Ayrshire Council and East Ayrshire Council have a smaller number of orders, but these would still require additional resources to allow for their effective completion. For this reason, it is suggested that the level of funding for Social Work services continues at this pilot level at least for the remainder of 2006-07 even if a decision is taken to remove the requirement for the imposition of a mandatory SAO in the event of fine default at the two pilot courts.

4.18 In relation to the potential for rolling out Mandatory Supervised Attendance Orders to other courts, there is some grounds for optimism. The experience at Ayr Sheriff Court, and latterly at Glasgow District Court, suggests that the expected higher volume of orders can be accommodated with a manageable level of disruption. There would be benefits from a mandatory Supervised Attendance Order, particularly in terms of the impact on receptions to custody. The current pilot has led to a significant decline in the overall number of receptions to custody for fine default, particularly at Barlinnie and Cornton Vale (which are the main receiving courts for Glasgow District Court). If mandatory Supervised Attendance Orders are to be rolled out across Scotland, a number of specific points are worth noting:

• Although the estimates made by local partners of the likely volume of additional orders were not particularly accurate, this was an important part of the process. It is suggested that the Scottish Executive invites local partners (courts and social work services) to assess and report on the likely additional volume of orders as a result of the roll-out of a mandatory Supervised Attendance Order.
• It is clear from evidence provided by SCS and the District Courts Association that the resources available to individual courts vary. Some courts would be able to accommodate additional orders and additional breach proceedings with relatively little impact, while others would require additional staff, or investment in, for example, computerisation. The pilot has shown the benefit of speed of administrative response, and the accuracy of data collection and transfer. The experience of Glasgow District Court suggests that the availability of assessors is also a key resource issue if the volume of business is to rise significantly. For these reasons, it is suggested that the Scottish Executive should consult with SCS and the DCA, or with individual courts, about any additional resources required to accommodate an increase in the volume of orders.
• The experience of the pilot suggests that some Social Work services may be unable to cope with a significant increase in the number of orders. For this reason, it is suggested that the Scottish Executive consult with Social Work services in order to assess the level of additional resources (capital and revenue) which will be required. All three councils involved in the pilot could contribute to this process through the provision and circulation of, for example, staffing plans, job descriptions, and detailed summaries of contracts held with third parties for the delivery of all or part of the orders.
• It is clear from the pilot that both Ayrshire Councils, and latterly Glasgow City Council, had success with proactive approaches to minimising breaches. As part of the development of implementation plans for mandatory orders in other areas, it is suggested that the Scottish Executive require local partners to develop a specific strategy to minimise and address the risk of breach. It is assumed that staff in the pilot authorities could contribute their experience to other authorities in this regard.
• The Scottish Executive should, with the Sheriffs' Association and the DCA, consider how any concerns raised by sentencers might be best addressed. Later, it will be suggested that the Scottish Executive should consider promoting the benefits of Supervised Attendance Orders to both Social Work services and sentencers (as well as providing basic information about their operation).

4.19 If the mandatory Supervised Attendance Order is discontinued in Glasgow and Ayr, and no further roll-out undertaken, there are a range of ways in which the Scottish Executive could consider enhancing the Order in order to improve its impact and to address the lowering of the numbers sent to custody, specifically ³⁹:

• It is suggested that the Scottish Executive consider extending the range of options available to sentencers considering imposing a fine. It is recognised that the first instance pilot is one aspect of this and the interest of many of the participants in this research in the outcome of the first instance pilot is noted.
• The Scottish Executive could consider amending the current way in which fine default is dealt with to make Supervised Attendance Orders the normal penalty for default, but reserving the power to use custody only where the sentencer believes specific circumstances justify this. As with the imposition of custody as an alternative on the initial imposition of a fine, the Scottish Executive may consider that sentencers should be asked to identify their reasons for doing do.
• The current situation, where the imposition of an SAO has the effect of remitting the fine, gives rise to some anomalies in the operation of S235 orders. There was support for an amendment to allow an offender to, in effect, "buy themselves out of an order", as currently happens with the use of custody as an alternative. This may mean that some amendment would be required to both legislation and Social Work National Standards to allow for a Supervising Officer to mark the commencement of the order in some way, for example, by requiring the offender to sign to this effect at the beginning of the post sentence assessment / initial interview (however described). This could have the effect of reducing the number of unnecessary S235 orders and should increase the recovery of fines outstanding.
• It is suggested that the Scottish Executive consider a "promotional" campaign in support of SAOs. It is clear that some sentencers do not use SAOs as they are unaware (or less than fully aware) of their existence, or at least their benefits. In order for this to be effective, it is likely that some investment will be required by Social Work services to make increased places available. Without this, it is likely that the use of the order would quickly fall into disrepute.
• The current maximum level of 100 hours is very high, and arguably impacts on the likelihood that an order will be completed. There are two issues worth considering. The first would be to follow the view of some Social Work staff who suggested that this should be reduced to a maximum of, say, 50 hours per order, with 100 hours remaining as a limit only where multiple orders are in force. The second is to review Social Work National Standards to allow some graduation of the system of warnings. While no-one would condone non-attendance, it does seem counter-intuitive that an offender with a 10 hour order has the same number of warnings as an offender with a 100 hour order.

4.20 A number of suggestions were made relating to the administration of breaches and are worth setting out here (and which would be relevant to both mandatory and non-mandatory orders):

• Advice should be sought from the Sheriffs' Association and ADSW on improving the current breach reports submitted by Social Work services.
• Consideration could be given to ensuring that written evidence of non-attendance (which could be agreed by both parties in advance) is sufficient proof of non-attendance, removing the current highly wasteful need for a Supervised Attendance Officer to be present to speak to the non-attendance at breach hearings.
• The Scottish Executive, in consultation with relevant bodies, should consider how best to minimise the cost of breach proceedings, both in terms of direct costs (such as Legal Aid and SERs) and indirect costs such as the attendance of Social Work staff. One possible approach would be to make two separate offences of breach, with only the more serious (for example, relating to a level 3 fine or above, or to a second or subsequent offence) being punishable by custody. This removal of custody as an option at this stage would, in many cases, appear to be likely to improve the rate of admissions, and remove the need for many unnecessary proof hearings (with consequent costs for prosecution and representation). This would, of course, require the development of an appropriate penalty in these cases (for example, the imposition of a Supervised Attendance Order with the alternative of custody to be applied in the event of admitted or proven future breach).
• The Scottish Executive should give consideration to the level of penalty for breach of a Supervised Attendance Order. While the views of some sentencers that this must be a deterrent are acknowledged, it is clear that the current levels of 30 days and 20 days are acting as a barrier to offenders, agents and, in some cases, sentencers in accepting the imposition of orders (in courts where non-mandatory orders are permitted). It seems likely that Supervised Attendance Orders will remain unpopular until there is effective parity in the level of penalty between fine default and breach of an order. The view of one sentencer in this regard is worth noting here, specifically that breach of a Supervised Attendance Order should not be considered in the same way as, for example, breach of a Community Service Order as the offender does not consent to the imposition of the SAO. A reduction in the maximum level of sentence for breach may lead to an increase in the rate of admissions, with consequent impacts in terms of cost and time savings for all stakeholders.
• The current range of options open to sentencers on a breach being admitted or proven are arguably too limited. This is shown by local custom and practice evident in the findings set out in the body of this report. The Scottish Executive should, therefore, consider whether some amendment to the current legislation is required. For example, it seems sensible that sentencers should be able to return an offender to complete their order with a warning. (In this case, while arguably permissible in terms of the existing legislation, an amendment would be required to National Standards to specify the status of previous warnings.) Similarly, while there is a certain perversity to the logic of imposing a fine as a result, ultimately of fine default, there appears to be a need for alternatives other than custody to be available.
• The current use of revocation and no further action in effect, in lieu of time served, arguably sends an inappropriate message to offenders and may affect the morale of Social Work staff. In these circumstances, the imposition of a shorter sentence backdated to the date of arrest would be a more accurate disposal, and would arguably send the "correct" message. This would, however, have the practical effect of increasing the rate of imposition of custodial sentences for default although clearly not the rate of receptions to custody.

Overview

4.21 This report has summarised the findings of research to assess the implementation of Supervised Attendance Orders on a mandatory basis at Ayr Sheriff Court and Glasgow District Court. As has become clear, the findings are mixed. While many offenders have been kept out of custody (including a significant number of women), this has been at the expense of both a significant increase in direct and indirect costs, and an increase in the breach rate in Glasgow. Although the breach rate in Ayrshire remains little changed from the pre-pilot level, the breach rate in Glasgow is high, although falling over time as improved staffing levels have an impact.

4.22 If the Scottish Executive decides not to continue the pilot or extend the mandatory order more widely, there are a wide range of suggestions made in this report which would have the effect of making the order better known, more attractive and arguably more efficient.

4.23 The use of Supervised Attendance Orders is increasing generally, and combined with the implementation of at least some of these suggestions, this may have at least some effect on the level of admissions to custody in the short to medium term, albeit to a lesser extent than the removal of custody as an alternative altogether.

4.24 The ending of the pilot in Ayr and Glasgow would clearly have some impact on the rate of imposition of Supervised Attendance Orders in both areas, but it is worth bearing in mind that sentencers in both courts suggested that they would continue to use Supervised Attendance Orders where these are appropriate.