Legal status and positive practice in Community Order enforcement

Abstract

The status of enforcement procedures may appear at first glance to be an academic debate with little application to probation practice. Yet the answer to this singular question determines how probation trusts should respond to a variety of court based challenges, which if mishandled has the potential to open the door to litigation against individual trusts. A breach of a community order is not a criminal offence, nor do enforcement proceedings form part of the criminal law. Regulatory statutes such as the Criminal Procedures and Investigations Act therefore do not apply. However, English case law has determined that a criminal standard of proof applies to enforcement cases and therefore some elements of the Criminal Procedure Rules do have resonance. Yet there is no right of appeal against a finding of breach and avenues of redress for both offender and the prosecution are limited to general provisions enshrined in English Law. Uncertainty surrounds the admissibility of other evidential areas. The robustness of evidence presented to the court can be improved by relatively modest amendments to practice and forestall possible 'reasonable excuse' defences. However other initiatives derived from general legal practice, are fraught with potential dangers when applied to Community Order enforcement.