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OFFENDER REHABILITATION BILL
HUMAN RIGHTS MEMORANDUM
Introduction
1. This Memorandum relates to the Offender Rehabilitation Bill, and addresses
issues arising in relation to the European Convention on Human Rights (‘the
ECHR’) and other international human rights obligations of the UK. It sets out in
some detail the views of the Ministry of Justice as to the compatibility of the
provisions of the Bill with those ECHR rights (‘the Convention rights’) which are
set out in the Human Rights Act 1998 (‘the 1998 Act’), Sch. 1.
2. The Memorandum follows the order of clauses in the Bill, briefly describing the
provision and then analysing any human rights implications of the provision.
Where in the Ministry’s view no arguable issue arises, no commentary is offered.
Clauses 1 to 7 (Release and supervision of offenders sentenced to less than 2
years)
Introduction
Short-term custodial sentencing generally
Offenders aged 21 or over
3. As the law currently stands, an offender who is 21 or over who receives a
custodial sentence will receive a sentence of imprisonment. The offender will in
most cases be released from prison after serving one half of the sentence.
Various provisions attenuate this, for example in relation to early release on
home detention curfew, compassionate release etc.
4. Where the sentence is of 12 months or more, the offender is subject to licence for
the period from release to the end of the sentence. (Different provisions apply in
relation to life sentences and extended sentences for dangerous offenders,
although those sentences too involve a period of licence.) The Secretary of State
(in practice, a prison governor acting on his behalf) sets the licence conditions.
5. Where the sentence is of less than 12 months the offender is not subject to
licence.
Offenders aged 18 to 20
6. Where an offender is aged 18, 19 or 20 the usual determinate sentence is
detention in a young offender institution (YOI) – see the Powers of Criminal
Courts (Sentencing) Act 2000 (‘the Sentencing Act’), s. 96. The offender is
released after serving one half of the sentence, with similar attenuations to those
set out above. Where the sentence is of 12 months or more, the offender is
subject to licence. Where the sentence is of less than 12 months, the offender is
subject to a fixed three-month period of licence.
Offenders aged under 18
7. An offender who is under 18 may in specified more serious cases be sentenced
to detention under the Sentencing Act, s. 91. The offender is released from youth
detention accommodation (that is, a YOI, secure training centre or secure
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8. More usually, an offender who is under 18 will be sentenced to a detention and
training order (DTO), which applies in less serious cases and is described more
fully at para. 34 ff. below). The offender is released after serving half the
sentence in custody (the period of detention and training), and is subject to
supervision – akin to licence – during the second half of the sentence (the period
of supervision).
The effect of clauses 1 to 7
9. Clauses 1 to 7 make provision about licences for those sentenced to
imprisonment or detention for a period of less than 12 months. The clauses also
give effect to the principle that an offender should in all cases serve 12 months of
post-release licence/supervision. That involves in some cases creating a period
of supervision which is to be added to a period of licence. For example, if an
offender receives a sentence of 18 months’ imprisonment, the offender will be
released after 9 months. Currently that offender will be subject to licence for 9
months. The mechanism provided in the Bill will mean that in that case the
offender becomes subject also to a 3 month period of supervision.
10. In this context it is worth setting out a difference – important for the purposes of
various clauses – between licence conditions and supervision requirements.
11. Where an offender is subject to licence, the offender is still subject to a custodial
sentence and is liable to be ‘recalled’ to prison by the governor, typically for a
breach of a licence condition. As noted above, various provisions in the Bill
create (and make provisions about) a further period of supervision to be added
onto the end of a custodial sentence, during which further conditions may be
applied. The offender is not liable to be ‘recalled’ to prison during this further
period, but rather any breach will be dealt with by a court.
Clause 2 – Supervision after end of sentence
Provision
12. Clause 2 provides for the automatic imposition of a new period of supervision
which follows on from the expiry of an offender’s licence where the court has
imposed a custodial sentence of less than two years. The provisions ensure that
together the period of licence and further supervision will be 12 months in total.
The Secretary of State specifies the supervision requirements with which the
offender has a duty to comply. The supervision period has a rehabilitative
purpose and the Secretary of State must have regard to this purpose when
imposing the requirements. The supervisor must have regard to this purpose
when implementing the requirements.
Article 6 (right to a fair trial)
Imposition of top-up supervision
13. The imposition of top-up supervision does not of itself engage Art. 6 because the
period of supervision is imposed by the court as a statutory adjunct to custodial
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Article 8 (right to respect for private and family life)
Imposition of supervision
14. Article 8 is engaged, and the imposition of a period of supervision will in some
cases amount to an interference with the offender’s Art. 8 rights. The court
(which is a public authority for the purposes of the 1998 Act, s. 6), is in a position
to ensure that custody, licence and top-up supervision are as a whole a
proportionate interference with the offender’s Art. 8 rights. The court is obliged to
have regard to the general custodial sentencing principles set out in the 2003 Act,
ss. 152 and 153, which reflect the principles of proportionality which Art. 8(2)
expresses.
Schedule 1 – supervision requirements
Provision
15. Schedule 1 sets out the supervision requirements that may be imposed on
offenders by the Secretary of State.
Article 6 (right to a fair trial)
16. The Secretary of State will have a role in administering the supervision period by
determining at the end of the custody period which conditions should be imposed
on individual offenders to achieve the rehabilitative purpose of the top-up
supervision period. This is similar to the existing process for imposing licence
conditions.
17. We consider that Art. 6 requires there to be access to court to allow for review of
the exercise of the Secretary of State’s discretion in imposing conditions in the
top-up supervision period and the conduct of supervisors when managing
offenders during the supervision period. In our view, this requirement is satisfied
by the right of an offender to bring judicial review proceedings against the
Secretary of State for imposition of the conditions of statutory supervision and
against supervisors for decisions when administrating top-up supervision. The
adequacy of this safeguard was tested in the context of licence in R (on the
application of Ahmed) v National Probation Service and another. 1 The High
Court confirmed that judicial review is adequate for the purposes of reviewing the
lawfulness of licence conditions imposed by the Secretary of State. The
conditions reviewed in that instance were more onerous than any supervision
requirements available to the Secretary of State . The safeguard of judicial
review is sufficient for ensuring compliance with Art. 6 in respect of the imposition
of supervision requirements.
Article 8 (right to respect for private and family life)
18. Individual requirements will in some cases amount to an interference with the
offender’s Art. 8 rights. Interference with Art. 8 rights may be justified if the
interference is in accordance with law and necessary for a legitimate purpose.
The requirements in the Criminal Justice Act 2003 (‘the 2003 Act’), new s.
1
[2011] EWHC 1332.
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256AB(1)(a)-(h) substantively replicate conditions that have been imposed in all
licences since 2005 without a successful challenge to the provisions. The
requirements in s. 256AB(1)(i) and (j) replicate substantively requirements that
have been imposed on a discretionary basis in licences over the same period.
19. In general the provisions are compatible with Art. 8 because:
 under new s. 256AA(6) the Secretary of State will only be able to impose a
requirement having had regard to the express rehabilitative purpose of the
supervision period. This ensures that any requirement imposed serve the Art.
8 legitimate aim of preventing crime;
 as a public authority the Secretary of State may only impose a requirement if
he can do so in accordance with the requirements of Art. 8 (see the 1998 Act,
s. 6(1)).
20. Some of the requirements raise particular issues, and these are dealt with as
follows.
Requirement to be of good behaviour and not to behave in a way which undermines
the purpose of the supervision period
21. The Ministry considers that the ‘good behaviour’ element of this requirement (see
new s. 256AB(1)(a)) is in accordance with the law for the purposes of Art. 8(2).
However, given that similar requirements have been subject to ECtHR decisions,
the position is set out in some detail.
22. The requirement that the law be certain is of course a longstanding principle of
English law, one which has also been emphasised by the ECtHR. It was
succinctly set out in Kokkinakis v Greece: ‘[the condition is satisfied] where the
individual can know from the wording of the relevant provision and, if need be,
with the assistance of the courts’ interpretation of it, what acts and omissions will
make him liable.’ 2 However, ‘the requirement is for sufficient rather than absolute
certainty.’ 3 It follows that a degree of imprecision is permissible. It is accepted
that the requirement contains some degree of imprecision, but the Ministry’s view
is that it is nonetheless in accordance with the law.
23. Two leading Strasbourg cases have considered the issue of good behaviour in
the context of binding over.
24. In Steel v UK 4 the applicants were bound over to keep the peace and be of good
behaviour. In each applicant’s case the binding-over order was imposed after a
finding that she had committed a breach of the peace. The court considered that
the ‘good behaviour’ element of the terms of the order ‘was particularly imprecise
and offered little guidance to the person bound over as to the type of conduct
which would amount to a breach of the order.’ However, in the context of a prior
finding of breach of the peace, the ECtHR concluded that ‘it was sufficiently clear
that the applicants were being requested to agree to refrain from causing further,
similar, breaches of the peace during the ensuing twelve months.’ 5
2
App. 14307/88. 25th May 1993.
See R v Misra [2004] EWCA Crim 2375, para. 34.
4
App. No. 67/1997/851/1058.
5
See para. 76.
3
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25. (By contrast, in Hashman and Harrup v UK, 6 the ECtHR looked at a bind-over
order which also contained the requirement not to breach the peace (although
importantly the applicants had not been found to have done so). 7 The ECtHR
distinguished Steel v UK 8 and concluded that the imprecision was fatal because
the lack of any antecedent breach to which to relate the terms of the order meant
that it was not clear what conduct would amount to a breach of the order.)
26. In the Ministry’s view the Bill provision is analogous to the position in Steel. In
the cases to which the Bill provisions apply the offender has already been subject
to a criminal conviction in relation to specific acts. The act which amounts to a
breach of the good behaviour requirement need not, of course, be a repetition of
the offender’s original criminal act (which would in any event be a breach of the
separate requirement not to commit further offences). There is naturally a need
for some flexibility around the terms of the good behaviour requirement: in the
ordinary course of events a relatively wide range of behaviour may amount to a
breach of the requirement in any given case. But the essence of the good
behaviour requirement is that the offender is to refrain from committing acts
during the supervision period which bear some connection to that offending
behaviour (or undermine the purpose of the supervision period).
27. It is worth noting that a virtually identical requirement has been in operation on all
licences for many years without any successful challenge on the basis of
unfairness. This is particularly striking given that the condition is often used to
recall offenders to custody. This is because, when used in the relevant context, it
is sufficiently clear to offenders what conduct will lead to breach, and offender
managers explain the nature of the requirement to offenders and take a
pragmatic view of what constitutes breach. That practice would apply in relation
to the supervision period too.
28. In this connection we note Prison Service Instruction 2012/20 (licence conditions
and temporary travelling abroad), which sets out the scope and meaning of the
‘good behaviour’ condition. 9 It states in particular that ‘[the condition] can be
used to deal with activities which are thought to be leading to reoffending.’ It is
proposed to apply the substance of this Instruction in relation to the supervision
requirements, so far as relevant. In any event, clear policy guidance will be
issued in relation to this topic.
Requirement to permanently reside at an address
29. In R (Francis) v West Midlands Parole Board 10 the Court of Appeal confirmed that
a probation trust’s refusal of an application from an offender for his supervision to
be transferred from one probation trust to another so that he could live with his
fiancée was justifiable under Art. 8(2) because there was no good reason for the
transfer. It was acceptable to assess the adequacy of a reason by reference to
an assessment of the risk the offender posed and the viability of the offender’s
release plan. This provides authority that managing where offenders may reside
during supervision is in principle a justifiable interference with the offender’s Art. 8
rights.
6
App. No. 25594/94.
See para. 7(c).
8
See para. 34.
9
See paras 2.4 and 2.5.
10
[2010] EWCA Civ 1470.
7
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Requirement to submit to drug testing
30. The Bill creates a requirement (which may be imposed) that an offender must
submit to testing for specified Class A or B drugs. The requirement may only be
imposed if an offender has been convicted of an offence in the trigger list in the
Criminal Justice and Court Services Act 2000, Pt 3 and Sch. 6 (generally
acquisitive, drug related and vagrancy offences).
The imposition of the
requirement would amount to an interference with Art. 8; the considerations and
justification for the requirement are substantively the same as with cl. 10 (which
extends the drug testing condition in licence conditions). See para. 46ff. below
for discussion. A further safeguard in the context of this provision is that top-up
supervision is expressly for rehabilitative purposes only and so use of the testing
condition as a top-up supervision requirement will be restricted to supporting
rehabilitative requirements.
Clause 3 and Schedule 2 – breach of supervision requirements
Provision
31. Clause 3 and Schedule 2 (which inserts new Sch. 19A into the 2003 Act) provide
for breach of supervision requirements to be dealt with in the magistrates’ court.
The court may, following a finding of breach, impose a supervision default order
(SDO), with sanctions of a fine, committal to custody for up to 14 days, a curfew
or a period of unpaid work of between 20 and 60 hours (see new Sch. 19A, para.
3(2)).
Articles 5 (right to liberty and security) and 6 (right to a fair trial)
32. The supervision period is outside of the sentence of imprisonment imposed by
the court for the original offence. The 2003 Act, new s. 256AC provides a court
process by which further custody or other sanction that could be construed as
being penal can be imposed compatibly with Arts 5 and 6. In relation to Art. 5,
we consider that detention under an SDO is therefore detention following
conviction 11 by a competent court (therefore falling within Art. 5(1)(a)), or
alternatively may be said to be detention to secure compliance with a legal
obligation (the obligation being to comply with the terms of the supervision
requirements), therefore falling within Art. 5(1)(b), 2nd limb.
Clause 6 – Supervision of certain young offenders after detention and training
order
Background and provision
33. DTOs are described above; they may be made for specified periods between 4
and 24 months. Clause 6 applies in those cases where the offender is 18 or over
at the halfway point of the DTO. (It does not, therefore, apply to those released
aged 17 or under.) The clause provides for an additional period of supervision in
the community following the end of the term of the DTO. This mirrors provision
for adult offenders (see cll. 2 to 4); the offender will be subject to a total of 12
months of supervision in the community (comprising the period of supervision
under the DTO itself and the additional period described above).
11
The Ministry considers that a finding of breach would be a ‘conviction’ for the purposes of
Art. 5(1)(a), as per e.g. Engel v Netherlands (1976)1 EHRR 647 (para. 68).
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34. The breach arrangements mirror those applicable in respect of adult offenders
(see cl. 3 and Sch. 2).
Convention rights
35. This provision is compatible with the Convention rights, and we rely on
substantially the same arguments as are made in respect of cll. 2 to 4. We have,
however, considered whether any additional arguments fall to be made in relation
to the DTO proposal.
Article 14 (prohibition of discrimination) read with Article 8 (right to respect for private
and family life)
36. The supervision requirements to be imposed by virtue of cl. 6 amount to an
interference with the offender’s Art. 8 rights. It follows that the obligation on an
offender to comply with such a requirement falls within the ambit of Art. 8 for the
purposes of Art. 14.
37. Whether or not an offender will be subject to 12 months of post-release
supervision depends on the offender’s age at the half-way point of the DTO. An
offender who is, for example, 18 plus 1 week at the halfway point of the DTO will
be subject to the supervision, whereas an offender who is one week short of 18
at that point will not be.
Analogous position
38. The aim of the additional supervision created by this clause is to rehabilitate
offenders; it is probable that, having regard to this aim, offenders of different ages
receiving DTOs are in analogous positions for the purposes of Art. 14. There are
however arguments that two offenders subject to different supervision
arrangements will not be in analogous positions, for any of a number of reasons:
 they are of different ages;
 they committed different offences or the offending was different;
 they received different sentences.
39. In any event, authority from the House of Lords suggests that unless there are
very obvious relevant differences between two offenders in the same situation,
the best approach is to concentrate on the reasons for the difference in treatment
and whether they amount to an objective and reasonable justification. In AL
(Serbia) v Secretary of State for the Home Department, 12 Baroness Hale referred
to an analysis of the Strasbourg case law carried out by the claimant that showed
there were only around 4.5% of cases where the court had found that those with
whom the complainant wished to compare himself were not in a relevantly similar
or analogous position.
Objective and reasonable justification
40. We consider that any differential treatment on grounds of age can be objectively
and reasonably justified. It is worth recalling that it is a central principle of the
criminal justice system that offenders of different ages are treated differently at all
stages of the criminal process. Thus, different sentencing provisions (both
custodial and community) apply depending on the offender’s age at commission
12
[2008] UKHL 42. See also R (Carson and Reynolds) v Secretary of State for Work and
Pensions [2005] UKHL 37.
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of offence (in some cases) or conviction (in other cases). Offenders are placed in
different institutions depending on their age, and moved from time to time
depending on their age. Indeed, the requirement to treat offenders under 18
differently from adult offenders in the criminal justice system is inherent in the UN
Convention on the Rights of the Child. (This last point is made not to show that
there is any legal prohibition on applying the supervision requirements in cl. 6 to
those under 18, but rather that differential treatment is acceptable and justifiable.)
41. As noted, the aim of the provision is to ensure all adults released from short
sentences receive 12 months rehabilitative supervision in the community. The
nature of that supervision will be determined by the Secretary of State from a
range of requirements prescribed in statute following an assessment of the
rehabilitative needs of that offender.
42. In itself this measure strikes a fair balance between the rights and freedoms of
the individual and the wider interest of securing the rehabilitation of offenders. It
is justifiable to create a “bright line” between those offenders who are under 18 at
the halfway point of their sentence and those who are 18 or over at that point.
43. In the field of criminal justice differences in treatment arising from the age of the
offender have been found to be justified. 13
44. In addition the creation of this additional period of supervision for this cohort
assists in bridging the divide between the distinctive custodial sentencing regimes
applicable in respect of the same offence to those under 18 on the one hand and
those 18 or over on the other.
45. We therefore consider that any difference in treatment based on age can be
objectively and reasonably justified and, as a result, does not amount to a breach
of Art. 14.
Drugs and offenders released after custodial sentence
Clause 10 – Drug testing of offenders after release – expansion of licence
conditions to include testing for class B drugs
Provision
46. Clause 10 relates to licence conditions. It expands the existing drug testing
licence condition in the Sentencing Act, so that an offender released on licence
on whom such a requirement is imposed can be tested for class B as well as
class A drugs.
47. This reflects similar provision elsewhere in the Bill:
 Clause 2 and Sch. 1 create a drug testing requirement for the new
supervision period which the Bill creates for adult offenders released from
prison sentences of under 2 years. In the case of supervision the
instructions are given by the offender’s supervisor;
 Clause 4 and Sch. 1 expand from class A to classes A and B the existing
drug testing requirement for the supervision period applicable to a class of
certain young offenders once they turn 18; and
13
See Bouamar v Belgium, App No. 9106/80; (1987) 11 EHRR 1, para 67 (justified for adults
but not children to be able to appeal against the lawfulness of their detention because of the
“protective – not punitive nature of the procedure applicable to juveniles”).
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
Clause 6 and Sch. 1 make equivalent provision for the new supervision
period that applies to offenders who turn 18 before release from the
custodial element of detention and training orders.
48. The analysis below is discussed in terms of the drug testing requirement in
clause 10, but the same Art. 8 analysis applies in respect of the supervision
periods in cll. 2, 4 and 6. The analysis below in relation to Art. 7 is relevant also
to cl. 4, but not to cll. 2 and 6, since those provisions (like the supervision scheme
which they relate to) only apply in respect of offences committed after
commencement).
Article 8 (right to respect for private and family life)
49. The clause amends the Sentencing Act, s. 64 so that an offender can be required
to submit to testing for drugs in classes A and B which the Secretary of State has
specified by order. (Prior to the amendment only class A drugs may be
specified.) The condition may only be imposed if an offender has been convicted
of an offence in the trigger list in the Sentencing Act, Part 3 and Sch. 6 (generally
acquisitive, drug related and vagrancy offences) and the testing is for the purpose
of determining compliance with another licence condition.
50. Some of the analysis below relates to the interference created by drug testing
generally, but of course the proportionality analysis is relevant in relation to
testing for class B drugs.
51. Peters v Netherlands 14 and X v Austria 15 shows that a compulsory medical
intervention – even if of minor importance – constitutes an interference with Art. 8
rights. In Peters compulsory random urine tests on prisoners were found to be
necessary and proportionate for the prevention of disorder or crime.
52. It is well recognised that drug use among particular groups of offenders is a major
barrier to effective rehabilitation and is a significant contributory factor in further
offending. Often there will be no other reasonable means for offender managers
to establish whether or not an offender had been taking drugs. Testing for drugs
is therefore an effective way of supporting other licence requirements aimed at
promoting rehabilitation and preventing further offending among drug using
offenders. For example, if an offender is found to be taking drugs then new
rehabilitative interventions can be imposed if appropriate. Similarly, drug test
results can be used to inform decisions about the risk that the offender
represents, informing decisions about relaxing or intensifying other conditions.
When another licence condition is breached (e.g. the prohibition on commission
of offences) this information can be used to inform decisions about whether the
breach should lead to recall to prevent further offending. In some circumstances
(e.g. where the offender’s index offence was related to persistent drug use and
drug tests show a return to persistent drug use) and the risk profile of the
offender is sufficiently high then the offender may be recalled for breach of the
good behaviour condition.
53. The condition (in relation to both classes A and B) includes safeguards to ensure
it is only used where necessary and proportionate. There are three express
safeguards to ensure that testing is only focussed on those whose offending
behaviour and drug use is linked. Because of the trigger list safeguard it will only
14
15
App. No. 21132/93.
App. No. 8278/78.
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be possible to impose the condition on the groups of offenders who are most
likely to commit offences to fund drug habits. Similarly, the testing can only be
imposed to determine whether another condition of the licence has been
breached. It cannot be imposed as an end in itself and a positive test is not a
breach of the condition (although it may breach other conditions). Finally, the list
of drugs that it will be possible to test for will be limited to those in classes A and
B and then only those specified by order.
54. We consider that it will be necessary to specify at least cannabis and
amphetamines. Significant numbers of trigger list offenders are class B drug
users (and particularly users of these specific drugs) and in many cases drug use
will be related to offending behaviour and therefore pose obstacles to effective
rehabilitation.
Article 7 (no punishment without law)
55. The power to impose licence conditions in relation to class B drugs applies in
cases where the offender was released before commencement, as well as after
commencement (see cl. 6(6)). It follows that it applies in a case where the
offender committed the offence before commencement.
56. This does not amount to an additional penalty within the meaning of Art. 7. In
common with licence conditions generally, the drug testing condition is not penal
in nature. Welch v UK 16 established the factors which the court considers when
making this assessment. These are whether the measure follows conviction for
an offence, the nature and purpose of the measure, its characterisation under
national law the procedures involved in the making and implementation of the
measure and its severity. It is noted that in Ibbotson v UK 17 a sex offender
registration requirement was found not to be a penalty primarily because its
purpose was to protect the public and not to punish the offender.
57. This reasoning extends to licence conditions including the drug testing condition.
The statutory purposes of supervision on licence, as set out in the 2003 Act, s.
250, are protection of the public, prevention of re-offending and securing the
successful reintegration of offenders into society. Drug testing is only permitted
to enforce the licence conditions and aid supervision, not to punish offenders,
and therefore would not be correctly characterised as a penal measure.
Clause 11– drug appointments
Provision
58. Clause 11 also relates to licence conditions. It amends the Sentencing Act to
enable the Secretary of State to impose a licence condition on an offender
released from custody.
The condition requires the offender to attend
appointments in accordance with instructions given by an officer of a provider of
probation services with a view to addressing drug dependency or a propensity to
misuse drugs.
59. Importantly, cl. 11(7) makes it clear that the requirement to attend does not
include a requirement to submit to any treatment once at the appointment.
16
17
App. No. 17740/90).
[1999] Crim. L.R. 153.
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60. Drug appointments may include any form of non-residential clinical treatment
including talking therapies or other therapeutic intervention, including those in
which the offender may be offered prescribed drug substitute medication such as
methadone.
61. This reflects similar provision elsewhere in the Bill:
 Clause 2 and Sch. 1 make equivalent provision by creating a drug
appointment requirement for the new supervision period which the Bill
creates for adult offenders released from sentences of under 2 years.
In the case of supervision the instructions are given by the offender’s
supervisor;
 Clauses 4 and Sch. 1 make available an equivalent drug appointment
requirement for the supervision period applicable to certain young
offenders once they turn 18; and
 Clause 6 and Sch. 1 make equivalent provision for the supervision
period that applies to offenders who turn 18 before release from the
custodial element of detention and training orders.
62. The analysis below is discussed in terms of drug appointments as a licence
condition, but the same Art. 8 analysis applies in respect of the supervision
periods in cll. 2, 4 and 6. The analysis below in relation to Art. 7 is relevant also
to cl. 4, but not to cll. 2 and 6, since those provisions (like the supervision scheme
which they relate to) only apply in respect of offences committed after
commencement).
Aim of provision
63. The aim of the provision is to ensure that offenders who have a propensity to
misuse drugs or are drug dependant and whose offending is linked to drug use
can be required to attend appointments with a view to addressing a cause of their
offending behaviour and ensure their rehabilitation in the community. This may
be of particular benefit for offenders with chaotic lives who lack the discipline or
motivation to attend appointments. As noted above, the offender is not required
to submit to medical treatment (including engaging with any form of therapy)
against their will. Indeed is highly unlikely that a medical practitioner would treat
an offender who did not consent to treatment in any event.
64. An offender will only be in breach of the provision if the offender fails to attend the
appointment for the duration of the appointment required. A person attends the
appointment if that person arrives for the appointment and remains until the end
of it. Expressing a lack of willingness to submit to or engage in treatment will not
amount to breach – see cl. 11(3), (4) (6) and (7) read together.
65. Before imposing the requirement the Secretary of State must be satisfied that:
 the offender is dependant on, or has a propensity to misuse, controlled drugs;
 that misuse by the offender of a controlled drug has caused or contributed to
an offence of which the offender has been convicted or is likely to cause or
contribute to further offences; and
 that the dependency or propensity requires or may be susceptible to
treatment.
66. The clause also requires that the person with whom or under whose direction the
appointment is with has the necessary qualifications or experience to reduce or
eliminate the offenders propensity or dependency on drugs
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67. The identity of the person responsible for giving instructions in relation to drug
appointments may vary. Where the requirement is imposed as a licence
condition or as part of a supervision period imposed on adult prisoners serving
sentences of less than 2 years (cl. 2) the instructions will be given by “an officer
of a provider of probation services.” In practice at the moment that would be a
probation officer but the term references provisions in the Offender Management
Act 2007, s. 3, which enables the Secretary of State to make arrangements for
probation provision with any other person. In relation to certain young offenders
subject to supervision in accordance with cll. 4 the supervisor could also be a
social worker or, if the offender is under 18 at the date of release, a member of
the youth offending team. For offenders subject to supervision at the end of a
DTO the supervisor will either an officer of a provider of probation services, or a
member of a youth offending team.
Article 8 (right to respect for private and family life)
68. Depending on its nature, a licence condition imposed on an offender may amount
to an interference with the offender’s Art. 8 rights.
69. It is accepted that even a minor medical intervention will, if compulsory, amount
to an interference with Art. 8 rights (see e.g. X v Austria 18 ). However, the drug
appointments condition does not involve a compulsory medical intervention, but
rather a requirement to attend and remain at a specified place for the duration of
the appointment. At its highest, the requirement amounts to an interference with
the offender’s freedom of movement, which represents a limited interference with
the offender’s Art. 8 rights. However such interference is capable of justification
as a proportionate measure in pursuit of the legitimate aim of the prevention of
crime.
70. The limitations set out at para. 65 provide important safeguards.
71. In the case of a licence condition the failure to attend appointments will amount to
a breach of the licence condition. The Secretary of State will consider the
appropriate action in relation to breach which may include varying the licence
condition or adding additional licence conditions for managing the risk of
reoffending, protection of the public and rehabilitation and where appropriate
could including recalling the offender to custody for breach of the condition as
with breach of any other licence condition (see the 2003 Act, s. 254). In relation
to the supervision the offender would be brought back before the court to
consider enforcement action.
72. Lastly, we note that the responsible officer is a public authority for the purposes
of the 1998 Act, s. 6(1), and therefore required to act compatibly with the
Convention rights.
Article 7 – no punishment without law
73. The drug appointment requirement applies in a case where the offender was
released before commencement, as well as after commencement (see cl. 7(3)).
It is implicit in this that it applies in a case where the offender committed the
offence before commencement. This is only relevant in relation to licence (as
18
Cited above.
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opposed to supervision) because supervision requirements do not apply
generally in a case where the offence was committed before commencement.
74. Substantially the same arguments apply here as in relation to cl. 6.
Community orders and suspended sentence orders
75. Clauses 12 to 16 amend the legislative framework for community orders and
suspended sentence orders, which is in the 2003 Act, Part 12.
Clause 13 – rehabilitation activity requirement
Provision
76. Clause 13(3) amends the 2003 Act to insert new s. 200A, which has the effect of
creating a new ‘rehabilitation activity requirement’ which may be imposed as part
of a CO or SSO. The rehabilitation activity requirement replaces the existing
activity and supervision requirements (see ss. 201 and 213 respectively).
Sections 201 and 213 are repealed.
77. An offender who is subject to a rehabilitation activity requirement will be obliged
to comply with any instructions given by the responsible officer to attend
appointments or participate in activities, or both. The current provision in relation
to an activity requirement that the court is to specify the activity, not reproduced
in relation to the rehabilitation activity requirement. Under the current activity
requirement, the number of days of activity which the court may order is limited to
60. The provision removes this limitation, but provides that the court must specify
the maximum number of days of activity in which the offender can be required to
participate (see new s. 200A(2)).
78. The new requirement provides that any instructions given by the responsible
officer must be made with a view to promoting the offender’s rehabilitation, but
that this does not prevent the responsible officer giving instructions with a view to
other additional purposes. See new s. 200A(3). These include (but are not
limited to) reparation – which is expressly provided for in new s. 200A(7).
Article 6 (right to a fair trial)
79. This provision engages Art. 6, on the basis that under the new requirement the
court’s discretion to specify the activities to be undertaken as part of the
rehabilitation activity requirement of a CO, is removed. It is clear that the
entitlement to a fair and public hearing by an independent and impartial tribunal
applies to sentencing as well as to conviction (see e.g. V v UK, 19 in which the
ECtHR held that “Article 6(1) covers the whole of the proceedings in issue,
including appeal proceedings and the determination of sentence.” 20
80. To that extent it may be said that Art. 6 requires that the sentence be imposed by
an independent and impartial tribunal. (This is to some degree a question of
legal certainty.) However, that is not to say that every detail of the sentence must
be imposed by such a tribunal. It is worth noting that a court does not specify the
accommodation to which a prisoner is to be sent, nor the specific programmes
19
20
App. No. 24888/94, ECtHR 16th December 1999.
See para. 109.
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and activities which the prisoner is to partake in, nor the conditions of any licence
to which the prisoner is subject on release.
81. In relation to the rehabilitation activity requirement, the court does not determine
the specific activity which the offender is to be required to partake in. That is to
be determined by the responsible officer. To this extent the responsible officer
has a greater role in specifying the activities the offender must participate in than
in relation to the activity requirement (which this requirement supersedes).
82. There are strong policy arguments for taking this approach. It is appropriate and
beneficial for the offender’s rehabilitation that decisions about what specific
activities the offender is to partake in, should be taken by the responsible officer,
who will have detailed knowledge of the offender’s specific needs and the
availability of programmes and activities in the area concerned.
83. In terms of the role of the court and the relevance of Art. 6, we consider an
important distinction falls to be drawn between the sentencing function and
arrangements for the delivery of the sentence. This is a distinction recognised in
the case of R v SSHD ex p. Uttley. 21 In that case the House of Lords essentially
overturned the Court of Appeal’s view 22 that a determination of the point at which
an offender is released from prison was an integral part of the sentence, not
merely one form of administering it.
84. In this context it is noted that the sentence is the CO itself, which the court will
impose having regard to its statutory obligations in the 2003 Act. The new
rehabilitation activity requirement is one element of the sentence. As noted
above, elements of what might be called the sentencing process may be
delivered by other bodies than the court. This happens already in relation to
community orders, as follows:
 in relation to the unpaid work requirements, (see the 2003 Act, ss. 199 and
200) it is the responsible officer who determines the nature of the work and
the times at which is must be performed. (The court specifies the number of
hours);
 in relation to the programme requirement (see s. 202) it is the responsible
officer who specifies the accredited programme in which the offender is to
participate. (Again, the court specifies the number of hours);
 in relation to the attendance centre requirement (see s. 214) it is the
responsible officer who specified the occupation and / or instruction to be
engaged in and / or received by the offender. (The court specifies the number
of hours and the attendance centre).
85. Overall it can be seen that the court already specifies the elements of various
requirements of COs to differing extents, and we consider that – as with custodial
sentences – Art. 6 is satisfied where the core elements of the sentence are
determined by a court (as distinct from the arrangements for delivering the
sentence.)
86. The court retains control over the sentencing function:
 The court retains control over the CO as a whole, including of course other
requirements and the balance to be struck between them;
21
22
[2004] UKHL 38.
[2003] EWCA Crim 1130.
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


The court continues to decide on the appropriateness in general of the
requirement in the individual case, and in light of the other requirements
which are to be imposed on the offender;
The court must (see the 2003 Act, s. 148) ensure the requirements imposed
under the order are the most suitable for the offender and that any restrictions
on liberty must be commensurate with the seriousness of the offence;
The court sets the maximum number of hours of activity which may be
required.
87. Lastly, we note the further safeguard of the requirement (see the 2003 Act, s.
156) for the court to obtain a pre-sentence report before making this assessment
(unless the court considers it unnecessary) remains. In practice, we envisage
that the pre-sentence report will set out the types of activities that may be
available for particular offenders and so the court will know in general terms the
types of activity that the offender is likely to be required to undertake as part of
the new requirement.
88. Overall, the Ministry’s view is that the key sentencing elements of the
rehabilitation activity requirement remain with the court, and that the overall
sentencing structure complies with the requirements of Art. 6.
Clause 15 – attendance centre requirement
Provision
89. A court imposing a CO or SSO on an offender aged 18 to 24 may include an
attendance centre requirement, as set out in the 2003 Act, s. 214. This is a
requirement to engage in occupation, or receive instruction, under the
supervision of the officer in charge of the attendance centre (see s. 214(7)).
Attendance centres generally offer constructive activities in a group environment
whilst imposing a restriction of an offender’s leisure time. Clause 15 amends s.
214 to provide that the responsible officer (rather than the court) is to specify the
attendance centre which the offender must attend.
Article 6 (right to a fair trial)
90. We consider that the provisions of this clause engage Art. 6 in so far as the
amendment reduces the role of the court (by removing its ability to specify the
particular attendance centre at which the offender must attend). However, the
court will continue to set the number of hours for which the offender must attend
at the centre, and may not impose the requirement unless it is satisfied that an
attendance centre is reasonably accessible to the offender concerned, having
regard to the means of access available to him and any other circumstances (see
s. 214(3)). Therefore, the penalty will continue to be set, with sufficient certainty
of what that penalty involves, by an independent and impartial tribunal. As such,
the requirements of Art. 6 are satisfied.
Clause 16 – Duty to obtain permission before changing residence
Provision
91. Clause 16 requires an offender subject to a CO or SSO to seek prior permission
from the responsible officer or the court to change their place of residence. The
grounds on which the responsible officer or the court may refuse permission are
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92. The clause removes the obligation on the offender to notify their responsible
officer of any change of address. It also amends the powers in the 2003 Act,
Sch. 8, para. 16 (community orders) and Sch. 12, para. 14 (suspended sentence
orders) which allow (or in certain cases oblige) the court to amend the order by
substituting a new local justice area, where it satisfied that the offender proposes
to change or has changed his residence from one local justice area to another.
Article 8 (respect for private and family life)
Interference and ‘in accordance with the law’
93. This proposal may – depending on the extent of the impact of any refusal of
permission to move – amount to an interference with the offender’s Art. 8 rights to
respect for private and family life. In order to justify this proposal the interference
will need to be in accordance with the law, in pursuit of one of the legitimate aims
listed in Art. 8(2) and necessary in a democratic society. The provisions of cl. 16
give the interference a sufficient legal basis to make it in accordance with the law.
Legitimate aim
94. It is worth saying a little about the current position. Currently an offender subject
to a community order or suspended sentence order must notify the responsible
officer of any change of address. If the offender fails to do so the responsible
officer may, where appropriate, initiate breach action (see the 2003 Act, s. 220).
An offender may also apply to the court to amend the order by transferring it from
one local justice area to another (Sch. 8, para. 16 for COs and Sch. 12, para. 14
for SSOs). Under these provisions the court may not transfer the order if it
considers that the order cannot be complied with in the new local justice area,
unless it cancels or substitutes particular requirements.
95. Clause 16 therefore goes further than the current provisions, in that it requires all
offenders to seek prior permission to reside elsewhere, rather than simply to
notify the responsible officer.
96. The aim of this provision is ultimately the prevention of crime and therefore public
safety, and in that sense the provision is consonant with the general aims of the
Bill. The Bill puts in place measures which will provide greater, more intensive
and longer-term rehabilitation for offenders. A lack of effective rehabilitation is
one of the main drivers of re-offending, and encouraging proper adherence to
community sentences is an important part of that.
97. By requiring an offender to seek permission to change residence (rather than
merely notifying), this provision will reduce unnecessary moves which disrupt the
effectiveness of the order. This in turn will increase the continuity of the
rehabilitative support which is available to offenders who are subject to COs and
SSOs, and help offenders to engage consistently with their responsible officer.
Relatedly, requiring offenders to seek permission to reside elsewhere will
promote stability and assist in maintaining relationships between offenders and
their responsible officers. This will assist in the offender’s rehabilitation and will
ultimately contribute to a reduction in re-offending rates. It will be effective, for
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98. The provisions pursue the legitimate aim of the prevention of crime.
Proportionality
99. The interference is proportionate to this legitimate aim. The decision whether to
grant permission will be taken by the responsible officer or the court in an
individual case. The officer and the court do not, however, enjoy an unfettered
discretion in the legislation.
New s. 220A(4) provides that the grounds for
refusing an application for permission are that the change in residence is likely to
prevent the offender from complying with a requirement imposed by the relevant
order or that it would hinder the offender’s rehabilitation. The effect of this is that
permission may only be refused in these circumstances. So, there is in effect a
presumption that the offender will be able to move unless the responsible officer
or the court can show that the move is likely to prevent the offender from
complying with the order or that it would hinder his rehabilitation. The power is
therefore expressly limited to those situations in which the move has a
demonstrable impact on the effectiveness of the order; this draws a clear link
between the interference and the legitimate aim, and (crucially) excludes from the
scope of the power any interference which is not rationally connected to that aim.
100. Importantly, it is implicit in the provision that the officer or the court must
consider the extent to which it is possible for offenders to access similar
rehabilitative support elsewhere. In a case where that can be done, we consider
that the officer will not be able to refuse permission under the power created by
cl. 5.
101. See para. 29 above for an instance (in relation to licences) where what
amounted to permission to reside elsewhere was refused, and a challenge
successfully defended.
Comparison with licence condition provisions
102. A similar provision to cl. 16 exists in respect of prisoners released on licence.
The Criminal Justice (Sentencing) (Licence Conditions) Order 2005 23 provides
that one of the standard licence conditions is to “permanently reside at an
address approved by the responsible officer and obtain the prior permission of
the responsible officer for any stay of one or more nights at a different address.”
103. It is accepted that there is a difference between that scheme and that in cl. 2.
The licence scheme applies to offenders who have passed the custodial
threshold, been in prison, are still subject to a term of imprisonment and remain
liable to recall to serve the remainder of their prison term. Conversely, cl. 16
applies to offenders who have committed less serious offences, which, in the
case of the community order, have not passed the custody threshold.
104. However, there are similarities. Both schemes operate in relation to offenders
who are subject to rehabilitative measures, whose integration into a settled
position in society is of great importance. The residence element in cl. 16 (like
23
S.I. 2005/648.
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the licence regime) is not punitive in its purpose, but is designed to assist
rehabilitation.
105. The cl. 16 scheme is, accordingly, less stringent than the licence scheme in
that it obliges the offender to see permission to reside elsewhere, but this would
exclude overnight or temporary stays at a different address. Permission may
also only be refused in specific circumstances.
Role of the responsible officer
106. As noted, the decision is taken by either the responsible officer or the court.
We envisage that in most cases, offenders would make the initial application to
the responsible officer on the basis that they will be in regular contact, and will be
the offender’s first port of call in terms of understanding what he has to do to fulfil
the order of the court. Such a system as this is appropriate, since the
responsible officer will have the necessary detailed knowledge of the individual
offender and the order / requirements, and will be able to take into account the
support available in the area to which the offender proposes to move.
Application of 1998 Act, s. 6(1)
107. It is also noted that both the court and the responsible officer, whether a
private provider or an officer of the public sector probation service, will be public
authorities for the purposes of the 1998 Act, s. 6(1), and is therefore obliged to
act compatibly with the offender’s Convention rights.
108. When the responsible officer or the court is considering a request for
permission to reside elsewhere, the officer or the court will need to balance the
offender’s interests in moving against the impact of the proposed move on the
continuity of rehabilitative and other support available to the offender and the
impact on the continuing relationship between the offender and the responsible
officer. This will include an assessment of what rehabilitative support is available
elsewhere, and the extent to which the offender can comply with the rehabilitation
requirements once he has moved. This balancing exercise ensures that any
interference with the offender's Art. 8 rights is necessary and proportionate and is
capable of being exercised in individual cases in a way that is necessary and
proportionate.
ICCPR, Art. 12
109. The UK has not ratified the ECHR, Prot. 4, Art. 2, which guarantees a
person’s right, within the territory of the State in question, to liberty of movement
and freedom to choose his residence. This right is, however, guaranteed by the
International Covenant on Civil and Political Rights (‘the ICCPR’), Art. 12, with
which the UK is obliged as a matter of international law to comply. The Art. 12
right is not absolute, but qualified in much the same way as is the ECHR, Art. 8.
The provision is compatible with the ICCPR, Art. 12 on substantively the same
basis as in relation to Art. 8, as discussed in detail above.
Article 6 (right to a fair trial)
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110. A decision as to where an offender may reside is likely to amount to a
determination of the offender’s civil rights, and a dispute (contestation) about that
issue is likely to need to be dealt with in accordance with Art. 6. 24
111. The responsible officer is not an independent and impartial tribunal for the
purposes of Art. 6. However, cl. 16 provides that permission may be given by
either the responsible officer or the court, and that where the responsible officer
refuses permission to reside elsewhere, the offender may apply to the court for it
to consider whether to grant permission. This effectively functions as a fresh
hearing of the decision of the officer by an Art. 6 compatible tribunal. Article 6 is
complied with.
MINISTRY OF JUSTICE
June 2013
24
See e.g. Re MB [2006] EWHC 1000 (Admin), which relates to control orders. See
particularly para. 36, where Sullivan J took the view that the order (which included compulsory
residence requirements) engaged the civil rather than the criminal limb of Art. 6.
19