Process for Establishing/Evidencing Non-compliance

Introduction

In order to take legal enforcement action in response to non-compliance, the probation officer must be able to provide sufficient evidence 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 should interview the offender to establish whether they are able to provide a reasonable excuse for failing to comply with the requirements of the sentence.

Verifying with relevant others

Where appropriate, the probation officer should talk to any relevant people such as counsellors, programme facilitators or police to establish and verify details of the non-compliance.

Evidence guidelines

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

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 instructed	An instruction to report (ITR) signed by the offender and confirmation from the probation officer that it was not complied with.
Failure to attend programme/counselling	A written verification from the programme facilitator/counsellor that the offender failed to attend a scheduled session/appointment on a specific date.
Failure to inform the probation officer about a change of address	A home visit by the probation officer establishing that the offender is no longer residing at the address.
Association with an individual with whom the offender is directed (in writing) not to associate with	A probation officer statement, or A third party advising the probation officer that they have witnessed the offender with an individual that the offender has been directed not to associate with. Note: The probation officer should request evidence from the third party.

EM evidence

The following table provides examples of satisfactory evidence for offenders subject to HD or electronic monitoring as a condition of RR or ES.

Non-compliance	Examples of satisfactory evidence
An absence without approval if offender is subject to EM	An EM report showing that the offender was absent from the residence during the relevant period.
Failure to comply with an authorised absence	the relevant HD 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 (eg, report from approved sponsor; inability to contact offender at approved location; report from programme provider/counsellor) offender casenotes outlining any attempts made by the probation officer 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 EM report detailing the tamper offender casenotes of any enquiries made by the probation officer to establish that the tamper constitutes non-compliance.
Failure to allow probation officer or other authorised person entry to home detention address	all written records made by the probation officer or other authorised person of the attempted entry, including: - date - time - home detention address - the name (if known) or description of the person who refused entry - the reason for the refusal (if known) offender casenotes of any enquiries made by the probation officer regarding the refused entry.

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, eg, failure to report as directed
when the non-compliance occurred, ie, the date
where the non-compliance occurred (if applicable), eg, failed to attend appointment at the alcohol and other drug clinic.

Offender casenotes should also record:

whether the offender provided an explanation for the non-compliance
details of any discussion with others, eg, programme facilitator or counsellor
any enforcement action taken.

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