Office of Public Sector Information
Section 2: Responsibility for ensuring the provision of probation services
Section 3: Power to make arrangements for the provision of probation services
Section 4: Restrictions on certain arrangements under section 3
Section 7: National standards for the management of offenders
Section 10: National framework for qualifications of officers
Section 11: Abolition of local probation boards and transfers of property etc and staff
Section 16: Power of search in contracted out prisons and secure training centres
Section 17: Power of detention in contracted out prisons and secure training centres
Section 18: Powers of authorised persons to perform custodial duties and search prisoners
Section 20: Amendment of section 87 of Criminal Justice Act 1991
Section 22: Conveyance of prohibited articles into or out of prison
Section 24: Offences under sections 22 and 23: extension of Crown immunity
Section 25: Removal of requirement to appoint a medical officer etc
Part 3: Other Provisions about Offender Management
Section 28: Application of polygraph condition to certain licences
Section 30: Use in criminal proceedings of evidence from polygraph sessions
Section 31: Accreditation of programmes for purposes of programme requirements
Section 34: Accommodation in which period of detention and training to be served
26 July 2007
1.These explanatory notes relate to the Offender Management Act. They have been prepared by the Ministry of Justice in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by Parliament.
2.The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. Where a section or part of a section does not seem to require any explanation or comment, none is given.
3.Under the current legislation the statutory duty to make arrangements for the provision of probation services rests exclusively with the local probation board. Probation services cannot currently be provided by any other organisation unless sub-contracted directly by probation boards themselves. This Act will transfer to the Secretary of State the statutory duty to make arrangements to provide probation services, so enabling him to commission services from providers in the public, private and voluntary sector. It will establish probation trusts, as public sector providers with whom he may make such arrangements.
4.The Secretary of State will not commission everything directly: commissioning will be a national, regional and local activity, with providers of probation services also acting as commissioners where appropriate. The Secretary of State may contract only with a probation trust or other public body for the giving of assistance to courts, unless this restriction is lifted by means of an order subject to affirmative resolution.
5.The Act also:
enables information to be shared between relevant bodies and persons for offender management purposes;
removes some of the inconsistencies between the powers of staff in public and private custodial institutions;
reforms existing offences of bringing articles into prison and taking articles out of prison;
removes the requirement for the appointment of a prison medical officer;
Changes the name of “Boards of Visitors” to “Independent Monitoring Boards” and removes the requirement for two magistrates to be members of a Board;
makes technical amendments to enable more efficient management of juvenile offenders sentenced to custody; and
introduces polygraph testing of sex offenders on licence from a sentence of imprisonment of 12 months or more.
6.The Act generally extends to England and Wales only. Some repeals and consequential amendments also extend to Scotland and Northern Ireland, as does the power in section 38 to make consequential amendments.
7.The Act is in four Parts.
8.Sections 1 to 15 make new arrangements for the provision of probation services. They give to the Secretary of State the responsibility to ensure the provision of probation services and enable him to contract with others to do this. The sections also abolish local probation boards and allow the establishment of probation trusts with whom he may contract.
9.Section 14 makes it clear that the Secretary of State, bodies dealing with offender management and other entities with an interest in offender management may share information in accordance with the framework established by that section. Under the section, information sharing may take place so long as it is necessary or expedient for the purposes of effective management of offenders.
10.Section 15 provides a power to repeal section 4.
11.Sections 16 to 20 remove some of the differences in the ways in which contracted-out prisons operate by giving their directors and prisoner custody officers powers comparable to those which governors and prison officers in directly-managed prisons already possess. These sections also make equivalent provision in Secure Training Centres, where appropriate. Sections 21 to 24 reforms of assisting a prisoner to escape and the existing offence of bringing proscribed articles into a prison, taking proscribed articles out of prison and create a new offence of taking photographic images inside a prison. Section 25 removes the requirement for prisons to have a medical officer. Section 26 Changes the name of “Boards of Visitors” to “Independent Monitoring Boards” and removes the requirement for two magistrates to be members of a Board. Section 27 clarifies who may be authorised to undertake limited searches of prisoners in contracted-out prisons.
12.Sections 28 to 30 provide for polygraph testing of offenders released on licence from a sentence of imprisonment of 12 months or more which was imposed for a specified sexual offence, describe the conditions under which polygraph testing may take place and prohibit the use of evidence obtained from polygraph testing in criminal proceedings in which the offender is the defendant.
13.Section 31 amends section 202 of the Criminal Justice Act 2003 to allow the Secretary of State to accredit programmes for the purposes of programme requirements.
14.Section 32 amends section 41 of the Crime and Disorder Act 1998 to allow the Secretary of State to ask the Youth Justice Board to assist him in the exercise of certain functions and it also provides that the Secretary of State may restrict the way in which the Youth Justice Board exercises certain functions.
15.Section 33 amends the arrangements for early release from the custodial part of the Detention and Training Order.
16.Section 34 widens the category of accommodation in which a period of detention and training may be served.
17.Section 35 extends the provisions of the Criminal Justice and Public Order Act 1994 with regard to the authority for transporting detained young persons between relevant premises.
18.This section sets out various purposes that govern the probation services that are to be provided under Part 1.
19.Subsection (1) defines “the probation purposes.” It broadly replicates the existing provisions in the Criminal Justice and Court Services Act 2000 (“the 2000 Act”), as supplemented by the Local Probation Boards (Miscellaneous Provisions) Regulations 2001 (S.I. 2001/786) and as amended to reflect provisions on conditional cautions in the Criminal Justice Act 2003.
20.Subsection (2) adds further detail to the general purposes and is also based on the 2000 Act as amended. Subsection (2)(b) is new and puts beyond doubt that the provisions also cover the work which providers of probation services do in relation to offenders in prison.
21.Subsection (3) clarifies that the probation purposes include the supervision and rehabilitation of persons convicted of an offence outside England and Wales who are serving all or part of their sentence in England and Wales.
22.Subsection (4) defines the terms “authorised person”, “conditional caution”, “community order”, “suspended sentence order” and “victim” which are used in this section.
23.Subsection (5) enables the Secretary of State to extend these purposes by regulations which, by virtue of section 36, will be subject to the negative resolution procedure.
24.This section sets out the functions of the Secretary of State.
25.Subsection (1) states that it is the function of the Secretary of State to ensure that sufficient provision is made for probation purposes (as described in the previous section) and for probation functions of the Secretary of State in other legislation. Similar functions to those set out in this currently rest with local probation boards under section 5 of the 2000 Act.
26.Subsection (2) states that the Secretary of State is to discharge his function in relation to any probation provision by making arrangements under section 3. Those arrangements will normally involve the making of contracts with a provider of services, but there is also the possibility of non-contractual arrangements or of the services being provided by the Secretary of State directly.
27.Subsection (3) requires the Secretary of State to have regard to aims in the exercise of his probation functions under subsections (1) and (2).
28.Subsection (4) sets out those aims, which replicate the ones currently set out in section 2(2) of the 2000 Act.
29.Subsection (5) makes clear that the Secretary of State does not need to take action under this section if he is satisfied that adequate provision will be made under other arrangements.
30.This section gives details of how the Secretary of State will make arrangements for the provision of probation services.
31.Subsection (1) states that this section applies to any probation provision which the Secretary of State considers should be made under section 2(1).
32.Subsection (2) states that the Secretary of State may make contractual or other arrangements with any other person for the making of probation provision. In most cases, it is envisaged that arrangements will be made under contract but this subsection does allow for other possibilities.
33.Subsection (3) clarifies that contractual or other arrangements may require or authorise the other party to:
co-operate with other providers of probation services or persons concerned with crime prevention or reduction or with assisting victims;
designate individuals as officers of a provider of probation services (subsequently defined in section 9); and
sub-contract with third parties.
34.Sub (4) makes clear that the Secretary of State may make arrangements under section 3(2) to delegate the performance of statutory functions.
35.Subsection (5) enables the Secretary of State, if he considers it appropriate, to provide probation services himself, and makes clear that he may use prison staff for this purpose. In most cases, it is anticipated that the Secretary of State will make arrangements with others to deliver probation services but this makes it possible for prison staff, for example, to deliver probation services in the community. This could be helpful in terms of bridging the gap between custody and the community.
36.Subsection (6) defines provider of probation purposes as either the person with whom the Secretary of State makes arrangements or the Secretary of State, where he makes provision through members of his staff.
37.Subsection (7) places a duty on the Secretary of State in carrying out his functions under subsection (2). It requires him to have regard to the need to take reasonable steps to avoid (so far as practicable) the risk that the provision of probation services might be adversely affected by any potential conflict of interest between the provider’s obligations and the financial interests of the provider.
38.Section 4 places a restriction on the ability of the Secretary of State to make contractual or other arrangements under section 3(2).
39.Subsection (1) states that contractual or other arrangements relating to restricted probation provision may be made only with a probation trust or other public body.
40.Subsection (2) defines restricted probation provision as the giving of assistance to courts in determining the appropriate sentence to pass, or making any other decision, in respect of a person charged with or convicted of an offence.
41.This section gives details of the Secretary of State’s power to establish probation trusts.
42.Subsection (1) states that the Secretary of State may, by order (subject to negative resolution by virtue of section 36):
establish a trust for purposes specified in the order;
alter the name or purposes of a probation trust; or
dissolve a probation trust.
43.Subsection (2) specifies that the purposes of a probation trust must consist of, or include, the making or performance of contracts by the trusts with the Secretary of State under section 3(2).
44.Subsection (3)(a) specifies that the purposes may also enable the trust to enter into contracts with parties other than the Secretary of State for the provision of probation services. In practice, it is envisaged that the majority of a trust’s activity will be under contract to commissioners acting on behalf of the Secretary of State, but this subsection allows trusts the flexibility to enter into contracts with others, including other probation trusts, where appropriate, provided that the activity concerned is part of their core purposes.
45.Subsection (3)(b) specifies that these contracts may also cover probation-related activities in relation to service courts.
46.Subsection (3)(c) provides that the purposes of a probation trust may also include any other purposes specified in regulations made by the Secretary of State. Any such regulations are subject to the affirmative procedure by virtue of section 36(3)(a).
47.Subsection (4) clarifies that the purposes set out in the order may be expressed in more specific terms than those used in subsection (2) and (3).
48.Subsection (5) clarifies that a trust may carry out activities relating to contracts, including before and after contracts are agreed. This enables it to bid for and negotiate contracts in the first place and to carry out any activities necessary to wind up its business after a contract has expired.
49.This section enables the Secretary of State to make payments (other than under the contractual or other arrangements referred to in section 3) to a trust or any other person for probation purposes (as defined in section 1). It is envisaged that contractual or other arrangements will be the main source of probation funding but this section allows for situations where this may not be appropriate.
50.Subsection (2) makes clear that the Secretary of State may attach conditions to such payments.
51.This section requires the Secretary of State to continue to publish national standards for the management of offenders.
52.Subsection (2) makes clear that these national standards may include standards relating to the management of offenders in custody.
53.Subsection (3) requires the Secretary of State, in making contractual or other arrangements, to have regard to the need to secure, so far as practicable, that national standards have the same effect in relation to every provider of probation services.
54.Section 8 sets out the requirements for annual plans.
55.Subsection (1) requires the Secretary of State, at least once a year, to consult Welsh Ministers and such other person as he thinks fit about the probation provision to be made the following year. It is envisaged that the other persons consulted will include stakeholders at regional and local level, such as sentencers, providers of probation services, providers of custodial services, other criminal justice agencies, local authorities and bodies involved in the provision of services which contribute to the reduction of re-offending.
56.Subsection (2) requires the Secretary of State, before the end of each year, to publish an annual plan for the following year setting out how he proposes to ensure that sufficient probation provision is made.
57.Subsection (3) requires the Secretary of State to have regard to the plan in discharging his functions.
58.Subsection (4) states that arrangements made by the Secretary of State with a probation trust shall require the trust to publish its own annual plan.
59.Subsection (5) states that arrangements with a provider other than a trust may also require that provider to publish an annual plan if the Secretary of State thinks fit.
60.Subsection (6) defines “annual plan” and “specified activities” and subsection (7) defines a “year”.
61.Existing legislation (e.g. section 2(1)(b) of the 2000 Act) refers to “officers of local probation boards”. As local probation boards are abolished, a new term is needed. This section sets out provisions relating to “officers of providers of probation services”.
62.Subsection (1) defines an “officer of a provider of probation services” as an individual who is for the time being authorised to carry out the functions of an officer of a particular provider of probation services.
63.Under subsections (2) and (3) an individual may be authorised as an officer of a provider of probation services by the Secretary of State or (where the provider is not the Secretary of State) by a provider of probation services who has been authorised to do so.
64.This section sets out provisions relating to a national framework for qualifications of officers.
65.Subsection (1) states that the Secretary of State may publish guidelines about any qualifications, experience or training required to perform the work of an officer of a provider of probation services.
66.Subsection (2) states that the Secretary of State must publish guidelines in relation to work involving the supervision of offenders and other work requiring direct contact with offenders, including offenders held in custody.
67.Subsection (3) makes clear that guidelines may make different provision for different purposes.
68.Subsection (4) requires the Secretary of State, in making contractual or other arrangements, to have regard to the need to secure, so far as practicable, that guidelines have the same effect in relation to every provider of probation services.
69.Subsection (1) provides for the abolition of local probation boards constituted under section 4 of the 2000 Act.
70.Subsection (2) gives effect to Schedule 2 which contains provisions relating to transfers of property etc or staff in connection with the abolition of local probation boards or the implementation or termination of arrangements under section 3.
71.This section makes consequential amendments to the provisions establishing Her Majesty’s Inspectorate of the National Probation Service to reflect the fact that the National Probation Service will cease to exist when the local probation boards are abolished and that the inspectorate will in future need to inspect a range of providers of probation services.
72.Subsection (1) renames Her Majesty’s Inspectorate of the National Probation Service for England and Wales “Her Majesty’s Inspectorate of Probation for England and Wales”, and renames its Chief Inspector “Her Majesty’s Chief Inspector of Probation for England and Wales”.
73.Subsection (3)(a) amends section 7 of the 2000 Act to include the inspection of the provision of probation services under section 3. Subsection (3)(b) makes an amendment to allow the Secretary of State to give further directions related to the probation purposes referred to in section 1 and to confer further functions on the inspectorate as a result.
74.This section sets out provisions relating to approved premises. It is closely based on existing provision made by section 9 of the 2000 Act.
75.Subsection (1) is based on section 9(1) of the 2000 Act. It enables the Secretary of State to approve premises for the purposes of providing accommodation for persons on bail or for the supervision or rehabilitation of offenders.
76.Subsection (2) enables the Secretary of State to make regulations concerning approved premises. This subsection re-enacts section 9(3) of the 2000 Act, under which the Criminal Justice and Court Services Act 2000 (Approved Premises) Regulations 2001 (S.I.2001/850) were made. These Regulations are expected to remain in force following the repeal of section 9 of the 2000 Act and the bringing into force of this section.
77.Subsection (3) enables the Secretary of State to make payments in relation to the operation of approved premises. The Secretary of State may also make payments in relation to the construction, enlargement or improvement of premises, if they are approved premises already or if the works are being carried out with a view to their being approved as such.
78.Subsection (4) makes clear that the Secretary of State may attach conditions to any payment made under subsection (3).
79.Subsection (5) clarifies that subsection (3) does not prevent the Secretary of State from using his powers under sections 2 to 6 to commission new premises and the running of them.
80.Subsection (6) clarifies that references in other enactments to an approved bail hostel or approved probation hostel are to be read as a reference to approved premises. This replicates subsection (2) of the 2000 Act.
81.Subsection (7) makes a consequential amendment to paragraph 2(7) of Schedule 2 to the Private Security Industry Act 2001 to make clear that those involved in the management of approved premises, who may need to determine who has access to those premises, are not caught by the licensing requirements which apply to those who undertake “manned guarding” activity within the meaning of that Act.
82.This section clarifies the powers of certain bodies to share data for any purpose mentioned in subsection (4).
83.Subsections (1) and (2) list the entities who are able to benefit from the power to share data.
84.Subsection (3) provides the power to share data but only if the disclosure is necessary or expedient for purposes mentioned in subsection (4). This subsection enables the bodies listed in subsection (1) to share data with one another. It also enables disclosure between those bodies and the bodies listed in subsection (2). The section does not authorise disclosures between bodies listed in subsection (2). However, there may be powers outside this Act that authorise these.
85.Subsection (4) specifies the purposes for which disclosures are permitted by the section. These include the probation purposes (see section 1), the performance of functions of the Secretary of State, other persons to whom section 14 applies and persons listed in subsection (2), provided the functions relate to prisons or prisoners or for other purposes connected with the management of offenders.
86.Subsection (5) expands upon the meaning of functions, prisons, and prisoners, and confirms that young offender institutions and secure training centres, together with those persons detained within them, are treated as prisons or prisoners respectively for the purposes of this clause.
87.Subsection (6) confirms that the power to exchange information by virtue of this section does not affect any existing power to share data that exists independently of the section (e.g. section 34 of the Serious Organised Crime and Police Act 2005 (c.15)) and that any such exchange is subject to existing safeguards regarding the sharing of data.
88.Subsection (7) creates a power for the Secretary of State to amend any passed enactment in the current or previous sessions, which would otherwise prevent the sharing of data permitted by this section. Section 36 provides that this order making power is subject to the affirmative resolution procedure.
89.Subsection (9) defines relevant contractor for the purposes of subsection (2) and confirms that those contracted to provide prison, young offender institution, secure training centre and related escort services are within the ambit of the section.
90.Subsection (10) defines “enactment” for the purposes of subsection (6) so as to include any subordinate legislation within the meaning of the Interpretation Act 1978.
91.Section 15 provides a power for the Secretary of State to repeal section 4 by order which (by virtue of section 36(3)(c)) will be subject to affirmative resolution.
92.Subsection (1) amends section 86(2) of the 1991 Act which prevents prisoner custody officers performing custodial duties at a contracted-out prison from conducting anything more than a “rub-down” search of a visitor. The amendment removes this restriction and allows a prisoner custody officer to require a visitor he wishes to search to remove an item of clothing which is not only an outer coat, jacket or gloves. However, the amendment makes clear that a prisoner custody officer shall not be able to require that an intimate search (within the meaning of section 164(5) of the Customs and Excise Management Act 1979) is carried out. This subsection also amends section 86 by clarifying that the power to search will be exercised in line with relevant Prison Rules and Young Offender Institution Rules.
93.Subsection (2), amends section 9 of the Criminal Justice and Public Order Act 1994 by removing an equivalent restriction placed upon a custody officer at a secure training centre and expands his power to search in line with subsection (1). Subsection (2)(a) provides that the power to search will be exercised in accordance with relevant Secure Training Centre Rules.
94.Subsection (1) amends the Criminal Justice Act 1991 (“the 1991 Act”) by inserting a new section 86A. This gives a prisoner custody officer the power to require a visitor to wait with him where that officer believes the visitor has committed an offence under sections 39 to 40D of the Prison Act 1952 or an offence of attempting, inciting, conspiring or aiding, abetting, counselling or procuring the commission of such an offence.
95.The new section 86A enables the requirement to wait to be imposed solely in order to enable a constable to arrive. It also makes clear that the period for which a visitor may be required to wait shall be for so long as is necessary for a constable to arrive and, in any event, shall not exceed two hours. Section 86A also enables the prisoner custody officer to use reasonable force to prevent the visitor whom he has detained from making off. Further, it provides that a person who makes off when required by a prisoner custody officer to wait with him will be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.
Offender Management Act 2007