When a child has been found guilty, or pleads guilty, the judge, sheriff or Justice of the Peace (JP) will decide what sentence is appropriate. They may defer sentencing for days or weeks, during which the child may be:
- Detained in secure care or custody, or
- Allowed to remain at liberty, either on bail or ordained to appear
When sentencing, a judge, sheriff or JP must have regard to any relevant sentencing guidelines in relation to the case. The first sentencing guideline sets out principles and purposes of sentencing for all offences. The guideline states that the core principle of sentencing is "fairness and proportionality", and that this requires a number of supporting principles. It also sets out some of the purposes which sentencing may seek to achieve, such as rehabilitation, protection of the public, and punishment. If judges decide not to follow the guidelines, they must state their reasons for not doing so. In addition, a judge, sheriff or JP must decide which sentencing factors presented to the court are relevant and should be considered, as well as how much weight to give each one. These factors will be unique to each case and include individual factors pertaining to the accused, factors related to the offence, aggravators, mitigating factors and opportunities for rehabilitation. Guidelines specific to sentencing children and young people are in development.
Criminal Justice Social Work Report (CJSWR)
The court may request a CJSWR to assist with the sentencing decision. In completing a CJSWR for a child:
- GIRFEC principles and the national practice model must be applied: “despite the fact that young people find themselves being dealt with in the adult system, they are not adults and have unique needs and risks which require to be considered in a young person centred approach (wherever possible). Adolescence is a time of development and many young people who offend do not continue to do so in adult life” (Scottish Government, 2010, p.54).
- Reports must be informed by relevant risk and needs assessment tools and in accordance with GIRFEC and the requirements of child-friendly justice standards (See Standard 5 Scottish Government, 2021). The tool(s) must be appropriate to the age and stage of the child and type of offence committed (Risk Management Authority (RMA) Risk Assessment Tools Evaluation Directory (RATED) provides an overview of tools) (Scottish Government, 2021). A SPJ approach and tool should inform all risk assessments to ensure intervention strategies promote the strengths and address identified vulnerabilities that directly relate to either driving or reducing the likelihood of further harmful behaviours and/ or offending behaviour and mitigate against the impact should they occur by building the child's skills and ability to realise their potential. The intervention plan informed by the risk assessment should be reflected in CJSWRs and the Child’s Plan. Risk assessments should seek to develop formulation to understand the harmful behaviour within the experiences of that child and how these may be driving, maintaining and perpetuating the harmful behaviour. This individualised understanding of the risk behaviours should inform meaningful and appropriate risk management and reduction strategies.
- All reports must comment on the option of advice/remittal to a children's hearing, restriction of liberty orders and of the responsibility of Scottish Ministers if sentenced via section 205 or 208 of the Criminal Procedure (Scotland) Act 1995 (Standard 5 Scottish Government, 2021).
For children aged under 17 years six months, the report should always comment on the option of remittal back to the Children’s Hearings System (CHS) and “be clear that remittal is being considered with a view to work being undertaken” (Scottish Government, 2010, p.52). This should be detailed in the Child’s Plan and the use of remittal is imperative if we are to maximise the potential of the Children’s Hearings System and the ability to have young people supported through this welfare-based system (Dyer, 2016). To be remitted the child does not need to be subject to a Compulsory Supervision Order (CSO) or have been previously known to the CHS. The rules on remittal, including when the court may and must seek advice, are set out in section 49 Criminal Procedure (Scotland) Act 1995.
Remittal can be either for:
- Advice prior to the court determining how to dispose of the case, in which case an advice hearing will be held, or
- Disposal, which requires a full hearing
Before the child leaves court, the dedicated court support workers or court social work staff and the defence agents (e.g. solicitor) should:
- Explain the meaning of the disposal (order) and any specific requirements/responsibilities, and conditions placed on the child, as well as the consequences of non-compliance.
- Given the serious consequences of breaching conditions, it is important to ensure that they understand the explanation provided and this is given in an understandable and age and stage appropriate manner
- Outline the expectations of the child in relation to the disposal and engagement with supervising officer overseeing any disposal
- If possible, set up the first appointment with the allocated social worker
- Explain the importance of attending appointments (Scottish Government, 2011a; 2021; CYCJ, 2020a)
Sentence: Depriving a child of their liberty
Depriving a child of their liberty has significant impacts and Under Article 37 of the UNCRC “…The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. Where such measures are deemed necessary, the potential for harms as a result of a child’s liberty being deprived and for violation of their rights should be recognised and mitigated wherever possible (Lightowler, 2020). Where depriving a child of their liberty is deemed necessary, secure care should be used wherever possible as an alternative to Young Offender Institutions (YOIs). This is consistent with the Whole System Approach and the significant concerns raised about the suitability of YOIs for children (Independent Care Review, 2020; Lightowler, 2020; HMIPS, 2019). GIRFEC principles should apply to all supports with children in secure care or custody; Standards 5 and 6 of the Standards for those working with children in conflict with the law should be implemented; and for children in secure care, the Secure Care Pathway and Standards Scotland should be implemented and achieved.
The Criminal Justice and Licensing (Scotland) Act 2010 specified the presumption against sentences under three months, which was extended to 12 months in the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019. The presumption is not a ban, and courts are still able to impose prison sentences of 12 months or less, but there is a presumption against doing so.
In rare circumstances, a child who has committed a serious offence (usually of a violent or sexual nature), and who is assessed as presenting an ongoing risk of harm to others, may be made subject to an Order for Lifelong Restriction (OLR). The court will impose a minimum period of detention in custody (called the ‘punishment part’) but the child or young person will not be released until the Parole Board decides that the risk of harm aspects of their behaviour poses can be safely managed in the community. Such measures should only be used in exceptional circumstances.
Where a child is sentenced to be deprived of their liberty, options can also include an extended sentence or Supervised Release Order.
Scottish Ministers are responsible for placing and managing the sentences of:
- Children under the age of 16, or those 16 and 17 who are subject to a CSO, who have been convicted under solemn procedures and sentenced to detention (under section 205(2) of the Criminal Procedure (Scotland) Act 1995)
- All children (aged under 18) who have been convicted of murder under section 205(2) of the Criminal Procedure (Scotland) Act 1995 (Scottish Government, 2018)
Further information on arrangements, roles and responsibilities can be found at Scottish Government (2018). In the above cases, where practicable and appropriate, children will normally be placed in secure accommodation as near to their home as possible. Where a child as detailed above is likely to be or has been remanded or sentenced, contact should be made by the child’s social worker with the CYP Placement Manager at the earliest opportunity.
Procedure following sentence to secure care or custody
The child will be taken to the cell area in the court building until transport is available. On reaching this area, their belongings should be bagged to be transported to the secure unit or YOI with the child.
The child should be interviewed by the dedicated court support workers or court social work staff (Scottish Government, September 2011a; 2010; CYCJ, 2020a) who will:
- Explain the disposal and what will happen next
- Identify any pressing problems, risks to self and others or vulnerabilities which should be recorded and communicated to the secure transport escorting staff and YOI or secure care staff via a risk alert being provide to the officer escorting the child, which should also be shared with the child’s Lead Professional or local social work office (if not in court). Risk alerts are required in all cases where a child has not been in custody before
- Provide information on prison-based social work services and voluntary throughcare where the sentence is under four years
- Offer other relevant support such as contacting family members
The court social worker should also:
- Contact the child’s Lead Professional or local social work office (if not in court)
- Ensure that the CJSWR, any other background reports, and the Child’s Plan (if provided) go with the child to secure care or YOI
Children going to or held in secure care or YOI or appearing from police custody must be transported to and from Court using transport which is appropriate for children, minimises delays and does not put them in contact with adult prisoners or accused (Standard 5 Scottish Government, 2021).
All relevant information must be sent to the secure care provider or YOI the day the child enters (Scottish Government, 2021). All children who enter secure care or custody via court will be supported at the earliest opportunity to start planning for their transition back to the community (Scottish Government, 2021). Throughcare “refers to a range of social work and other support services to prisoners from the point of sentence or remand, during their period of imprisonment and subsequent release into the community” (Scottish Government, 2011b, p.9).
Information sharing and support to children and their families
Sentences must be fully explained to children and their families in a way they understand and as much information and support should be provided as possible (Gough, 2016; Nolan, Dyer and Vaswani, 2018). This is particularly important where a child receives a sentence that may affect caring arrangements, housing, finance and the physical and mental health of the whole family.
Useful information is contained in Families Outside information sheets Preparing for a Prison Sentence and “At Court” Information for families when a relative or friend has been sent to prison, and on how families can be supported in the Framework for the support of families affected by the Criminal Justice System.
- A child or young person can appeal to the High Court of Justiciary if they deem part of the trial was unfair or that the sentence was unduly harsh. They should discuss this with their lawyer and can either be released on bail or held in custody pending the appeal
- The prosecutor can appeal if they believe the sentence was too lenient
Resources for this page
- Criminal Procedure (Scotland) Act 1995
- Criminal Justice (Scotland) Act 2003
- Criminal Justice and Licensing (Scotland) Act 2010
- Children’s Hearings Scotland
- Families Outside Preparing for a Prison Sentence Information Sheet
- Families Outside “At Court” information for families when a relative or friend has been sent to prison
- Navigating Scotland’s Justice System
- Presumption Against Short Periods of Imprisonment (Scotland) Order 2019
- Scottish Sentencing Council
- Scottish Sentencing Council About Sentencing
- Scottish Sentencing Council Sentencing Factors
- Scottish Sentencing Council Mythbuster
- Scottish Sentencing Council Videos
- Scottish Sentencing Council 'If You Were the Judge' case studies
- Secure Care Pathway and Standards Scotland
- Sentencing Guidelines
- Risk Management Authority (RMA) Risk Assessment Tools Evaluation Directory (RATED)
- Scottish Children’s Reporters Administration
- Children and Young People’s Centre for Justice (CYCJ). (2020a). A Guide to Youth Justice in Scotland: policy, practice and legislation: Supporting all under 18s in the court system. Glasgow: CYCJ.
- Justice (CYCJ). (2020b). A Guide to Youth Justice in Scotland: policy, practice and legislation. Glasgow: CYCJ.
- Community Justice Authorities (CJAs). (2015). Framework for the support of families affected by the Criminal Justice System. Scotland: CJAs.
- Dyer, F. (2016). Young People at Court in Scotland. Glasgow: CYCJ.
- Gough, A. (2016). Secure Care in Scotland: Looking Ahead. Glasgow: CYCJ.
- HMIPS. (2019). REPORT ON AN EXPERT REVIEW OF THE PROVISION OF MENTAL HEALTH SERVICES, FOR YOUNG PEOPLE ENTERING AND IN CUSTODY AT HMP YOI POLMONT. Edinburgh: HMIPS.
- Independent Care Review. (2020). The Promise. Glasgow: Independent Care Review.
- Lightowler, C. (2020). Rights Respecting? Scotland’s approach to children in conflict with the law. Glasgow: CYCJ.
- Murphy, C. (2018). Balancing rights and risk: How can we get it right for children involved in violent behaviour? Glasgow: CYCJ.
- Murphy, C. (2018). Formulation in Risk Practice. Glasgow: CYCJ.
- Murphy, C. (2018). Formulation in Risk Practice 2. Glasgow: CYCJ.
- Murphy, C. (2021). Children in conflict with the law: An intervention planning approach. Glasgow: CYCJ.
- Murphy, C. and Orr, D. (2018). How to implement effective risk practice. Glasgow: CYCJ.
- Nolan, D., Dyer, F. and Vaswani, N. (2018). "Just a wee boy not cut out for prison" : Policy and reality in children and young people's journeys through justice in Scotland, Criminology and Criminal Justice, 18(5).
- Scottish Government. (2010). National Outcomes and Standards for Social Work Services in the Criminal Justice System: Criminal Justice Social Work Reports and Court-Based Services Practice Guidance. Edinburgh: Scottish Government.
- Scottish Government. (2011a). Assisting Young People aged 16 and 17 in Court: A toolkit for Local Authorities, the Judiciary, Court Staff, Police, Crown Office and Procurator Fiscal Service. Edinburgh: Scottish Government.
- Scottish Government. (2011b). Reintegration and Transitions – Guidance for Local Authorities, Community Planning Partnerships and Service Providers. Edinburgh: Scottish Government.
- Scottish Government. (2018). Practice Guidance: Custody of Children and Young People Convicted on Indictment Under Section 205(2) or Section 208 of the Criminal Procedure (Scotland) Act 1995. Edinburgh: Scottish Government.
- Scottish Government. (2020). Secure Care Pathway and Standards Scotland. Edinburgh: Scottish Government.
- Scottish Government. (2021). Standards for those working with children in conflict with the law. Edinburgh: Scottish Government.
- Scottish Sentencing Council. (2018). Principles and purposes of sentencing Sentencing guideline. Edinburgh: Scottish Sentencing Council.
- Smith, S., Dyer, F. and Connelly, G. (2014). Young Men in Custody: A report on the pathways into and out of prison of young men aged 16 and 17. Glasgow: CYCJ