Establishing and Evidencing Non-compliance

Introduction

This topic outlines the steps for establishing and evidencing non-compliance with CD.

In order to take legal enforcement action in response to non-compliance, sufficient evidence must be available to satisfy the court that the non-compliance meets the criteria set out in the legislation.

Reasonable excuse

When responding to the non-compliance, the probation officer must establish whether the offender is able to provide a reasonable excuse for failing to comply with the requirements of the sentence.

The CPPS staff member should interview the offender in person or via telephone to determine whether the offender has a reasonable excuse.

Where appropriate, the CPPS staff member should also talk to any relevant people such as doctors, police or counsellors to establish and verify details of the non-compliance.

Interviewing the offender

When interviewing the offender regarding non-compliance and possible enforcement action, the CPPS staff member has a legal obligation to advise the offender:

that he/she is being asked questions/interviewed in respect of a possible breach charge or application to court, and
that he/she may leave/terminate the interview at any time.

Note: Offenders must not be interviewed during their curfew period; instead they should be instructed to report to the probation officer or senior community work supervisor supervising the CD to discuss their non-compliance.

Satisfactory evidence

The probation officer may be required to produce evidence to support any legal enforcement action taken. The following table provides examples of satisfactory evidence.

Non-compliance	Examples of satisfactory evidence
failure to report as directed	the signed instruction to report (ITR) or documentation of any verbal ITR issued, and offender casenotes documenting evidence that the offender did not report as directed, or confirmation from probation officer that it the ITR was not complied with.
failure to remain at the curfew address during the curfew period	the relevant CD EM notification and accompanying participant event history (if applicable) detailing the offender's failure to remain at the curfew address during the curfew period, or failure to be at the curfew address at the start of the curfew period.
failure to comply with an authorised absence	the relevant CD EM notification and accompanying participant event history (if applicable) the relevant CD7 CD Direction Notice for Approved Absences outlining the details of the absence offender casenotes detailing the absence request confirmation of failure to comply with the authorised absence as applicable (e.g. report from approved sponsor; medical certificate; inability to contact offender at approved location), or offender casenotes outlining any attempts made by the probation officer or SCWS to confirm the offender's compliance with the authorised absence. Note: If necessary and appropriate a programme facilitator/agency or approved sponsor may be called as a witness to such non-compliance
tampering with EM equipment	the relevant CD EM notification and accompanying participant event history (if applicable) detailing the tamper, or offender casenotes of any enquiries made by the probation officer or senior community work supervisor to establish that the tamper constitutes non-compliance.
failure to allow authorised probation officer, senior community work supervisor or other person entry to curfew address	all written records made by the authorised person of the attempted entry, including: - date - time - curfew address - the name (if known) or description of the person who refused entry, and - the reason for the refusal (if known), or Offender casenotes of any enquiries made by the probation officer or senior community work supervisor regarding the refused entry.
further offending or suspected domestic violence	offender casenotes detailing any further offending summary of facts for new offence (as available) affidavit from police regarding any suspected offending or domestic violence (as and where available), or conviction history (where offender is convicted of further offending).
failure to notify of any change in address	Offender casenotes detailing home visit by probation officer or senior community work supervisor to establish the offender is no longer residing at the address.

Note: If the offender pleads not guilty to a breach, then further evidence to substantiate the breach charge, including affidavits prepared by the electronic monitoring company, may be required.

Reference: Vol 3B, Part IV, Chapter 5 Preparing file for Prosecution of Not Guilty Hearings, for information about the types of additional evidence required for defended hearings, including affidavits prepared by the electronic monitoring company.

Record keeping

Specific details of all instances of non-compliance must be recorded in offender casenotes at the time of the non-compliance.

Information recorded should include:

what the non-compliance was, e.g. failure to report as directed
when the non-compliance occurred, i.e. the date, and
where the non-compliance occurred (if applicable), e.g. failed to report to CPPS service centre.

Offender casenotes should also record whether the offender provided an explanation for the non-compliance, and details of any discussion with others, e.g. approved sponsor.

Note: Do not delay updating records. If an offender is subject to police investigation for a serious offence, the police may seek to interview the supervising probation officer/ senior community work supervisor, and/or request access to the offender's file.

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