THE LEGAL AND POLICY FRAMEWORK
TASK ONE – APPLICATION OF NATIONAL STANDARDS
Before the inception of the 1991 Criminal Justice Act the expectations of Probation Officers were not clearly defined, that is to say the practitioner exercised a great deal of discretion when dealing with the attendance and control of an offender on any given order. Since the establishment of the Probation Service in 1907 great shifts in its frameworks and policies have taken place, and indeed through much of the century the Services’ value base was seen as a social work agency exercising a great deal of autonomy, and whose ethos of ‘advising, assisting and befriending’ offenders had largely survived. Even the Probation Order itself was not seen as a punishment, but rather an alternative to punishment. However the introduction of a new legal framework (the C.J.A 1991) significantly altered not only the direction that the Probation Service was going, but reinvented its very foundations and fundamental beliefs.
Throughout the 1980s the emergence of a looming ‘penal crisis’ and the preceding election of a Conservative government in 1979 with a strong law enforcement agenda signified the need for change within the criminal justice sector. By 1990 a white paper, ‘Crime, Justice and Protecting the Public’ set out a new policy framework for sentences and fundamentally set clear objectives and guidelines for sentencers to follow. This new sentencing framework was introduced by the 1991 Act, which embraced the ‘just deserts’ notion of punishment and adopted a twin track approach to sentencing (bifurcation). Public Protection became the underlying aim of the Act and as a consequence three tiers of punishment were clearly defined for sentencers to utilize – custodial, community sentences and fines/discharges.
So what did this act signify for the Probation service? and as a consequence what resulted from its creation?
By 1992 the Probation service was introduced to National Standards (NS), which were revised in 1995, 2000 and 2002. These became a key feature in the changing role of the service as it moved towards a greater law enforcement ethos…..
“Prior to the national service...many magistrates had little confidence about
Probation’s part….as practice varied hugely.” (Setting the Pace 2004 Pp.6)
The purpose of NS was to address such problems by introducing ‘more rigour in Probation practice’ (Mullre, A. & Hearnden, I Pp.48-49) and providing one set of standards against ‘which Her Majesty’s Inspectorate could evaluate services performance.’ (National Standards 2000 Pp.1). However according to Hearnden and Hedderman (2000) NS is not simply about ‘following orders and being accountable….’
“They also reassure sentencers and the public that if someone is put on Probation
they will be seen regularly enough to ensure the risk of re-offending and
risk of harm are reduced.” (Pp.126)
Thus through newly induced enforcement procedures and NS the Probation Service became standardised and uniform in its practice, accountable for its actions (measurable in terms of results/goals) and increasingly structured through the establishment of a managerialist culture
On a local level what this meant was essentially a loss of a great deal of discretion and freedom for the Probation Officer in that guidelines (NS), policies (Enforcement of National Standards Policy 2002) and procedures had to be adhered to and constantly monitored. NS effectively set the minimum requirements to which offenders were supervised and services provided, yet such standards were seen to be non-negotiable. On this new wave of change for the Service each and every officer was accountable (through audits) for the work and subsequent actions they undertook (KPI’s), and the days of exercising varying levels of discretion seemed doomed.
Within the space of a decade the transition of the Probation Service was massive, from a social welfare agency with social work roots to a law enforcement agency keen on enforcement and offering a serious alternative array of punishments to incarceration. This was highlighted by the then Government Minister for Prisons and Probation, Paul Boetang, who in 2000 stated
“We are a law enforcement Agency, its what we are, its what we do.”
However the shift of the Probation service has not stopped there, and later this year there is yet to be further transition with the introduction of NOMS (National Offender Management Service) – an amalgamation of the Prison and Probation Services’ respectively.
As a trainee Probation Officer I have entered the service in this current climate, and National Standards and the enforcement processes are key aspects of the job. Given the deep rooted traditions of the Probation Service, the desire of many to keep the social work/welfare element, and the current law enforcement environment the current crop of trainees have entered an atmosphere which contains a great deal of conflict and contradiction within the ranks. The question of discretion and the extent to which it can be exercised remains a key area of conflict within the service, and so as a trainee the question as to how I have applied National Standards (rigorously or otherwise) and the extent to which I have used discretion becomes prominent. To highlight my application of them I will use the case of RR, a black male in his 20s who received a 12 month Community Rehabilitation Order (CRO) with a programme's attachment of ETS (Enhanced Thinking Skills) for driving whilst disqualified.
NS then sets guidelines for the practitioner, managers and the Service as a whole to follow and facilitate. For myself the immediate implications of these standards was the number of appointments offered to RR from the beginning of his CRO, the requirement of home visits and furthermore to….
“Inform…what is expected of them and the action that will be taken if they
fail to comply.” (National standards 2000 Pp.1)
The first obstacle met for this case was the ejection of RR from ETS after he failed to attend the programme's course on three separate occasions. According to the guidelines of the programme an individual can be ejected if he fails to attend two sessions and the subsequent catch-ups offered. He was offered a double catch up and failed to attend this. Implications for the case manager is that he has missed two NS appointments and breach proceedings should be initiated. However I found one of his reasons to be acceptable and so did not count that as an unacceptable absence, and upon communicating with the ETS team they stated that they would not reinstate him.
On this occasion discretion was used on the basis that the order was barely 2 months old, the ETS standards were extremely rigid (allowing no use of discretion) and that I could put RR forward to a later ETS programme. At this stage of the order common sense, as well as discretion, was exercised. If followed rigidly, National Standards would require RR to be breached, yet even as a trainee I did not see the benefit of sending RR back to court. The argument here is that on one hand numerous training events, circulars and policies inform the worker that if “community sentences are to be credible they must be enforced stringently” (Probation Circular : Enforcement 2000). However the practice of fellow Probation Officers and the current culture suggests otherwise and consequently a great deal of discretion can still be exercised within the boundaries of NS. However the result of this contradiction, highlighted in the very same circular (Enforcement 2000) is that there still exists considerable variation ‘within and between areas in ensuring compliance and dealing with breach.’
These issues could again be raised when breach was initiated for RR due to a failure later in the order to keep two further appointments with myself. However an explanation offered by him within the time allowed (2 working days – PC7/2002) for not attending one of the supervision sessions was again deemed to be acceptable by myself, and the breach proceedings were withdrawn. The question raised at this point of the order was what practitioners found to be reasonable reasons for absences. According to a further Circular (Guidance on Enforcement 2000)….
“Staff are accountable for the use of their judgment and in departing from
The standards ….not taking breach action as required discretion can
Only be exercised only with the authority of a manager.” (Pp.2)
On this basis I became accountable to my line manager, and upon explanation my actions to withdraw the breach were deemed acceptable. On this evidence rigorous enforcement of NS is neither a necessity nor a requirement.
Thus far the case of RR has identified the fact that levels of discretion can still be used within casework, yet the level and frequency it is used is accountable to management, who in turn are responsible to senior management and so on. RR was breached two months later due to his failure to attend further appointments, and thus three unacceptable absences, yet upon appearing in court the order was allowed to continue. Therefore despite my application of NS and use of ‘professional discretion,’ the breach itself incurred a cost of £30.00 to RR and his order was to continue. The question which results from the outcome is whether the further use of increased discretion by myself would have saved the court time, money and effort to arrange and execute a breach hearing, of which the outcome was simply for the o.t.c.
In conclusion one would surmise that upon applying NS and enforcement procedures there is very little room for the practitioner to manoeuvre without accounting for their actions to management. This is complicated further by A New Choreography (2001), which states ‘enforcement to be the highest priority’ and that ‘cash incentives’ will be given to those areas that meet the enforcement objective (2001 Pp. 29). There are levels of discretion that can be exercised, and in my short professional experience this is dictated by each individual case, based not on race, gender or disability, but on the motivations of that individual, the difficulties they encounter and their desire to change their offending behaviour. According to the Probation Circular on the ‘Guidance of enforcement’ (2000)…
“It is crucial that staff and managers record on the case file where such discretion is
used and that the reasons are fully documented….HMIP will continue to
inspect rigorously the way all grades of staff exercise their judgment
and discretion, and the recording if any decisions to depart from
the standards.” (Pp.2)
Essentially discretion and professional judgment still have a role to play in the contemporary Probation Service, even with the standardised guidelines proposed by NS and the carrot of incentives dangled in front of Probation areas. However in exercising this discretion the practitioner is accountable for such acts, and in this case and others I have found that I am extremely careful in exercising discretion in a professional and effective manner. In 1999 a report by HMIP (2000) stated that ‘breach proceedings were a major obstacle to effective casework’ – and on the evidence generated I would be inclined to agree.
NPS Policies and Strategies (2002)
Enforcement of National Standards Policy
London: Home Office
Probation Circular (2002)
Revision of National standards of Supervision Of Offenders
London: Home Office
Probation Circular (2000)
Guidance on Enforcement of Orders under national Standards 2000.
London: Home Office
Probation Circular (1999)
London: Home Office
National Standards (2000)
For the supervision of offenders in the community
London: Home Office
Hedderman, C. & Hearnden,
The Missing Link: Effective Enforcement and Effective Supervision
Probation Journal Vol 47 No. 2
Trotter, C. (1999)
Working with Involuntary Clients
London: Sage Publications
Probation Values Practice Guide
Probation Journal (2004) Vol. 51 No.1
Mullre, A & Hearnden, I.
Does tougher enforcement lead to lower reconviction.
London: Sage Publications
HM Inspectorate of Probation (2000)
HMIP Annual report
London: HMI Probation
Found at: http//www.homeoffice.gov.uk/inside/org/dob/direct/hmiprobdocs.html
National Probation Service (2001)
A New Choreography – An integrated strategy for the National Probation Service
National Probation Service (2004)
Setting the Pace – how the National Probation Service has delivered A New Choreography
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