This page details the range of community-based disposals that are available to the courts and which enable the child to remain in their community. Given the Whole System Approach (WSA) focus in providing robust community alternatives to secure care and custody and the concerns detailed previously regarding depriving a child of their liberty unless absolutely necessary, maximising the use of community-based disposals is crucial.
Allows the judge to discharge the child. No punishment is given but dependent on the nature of the conviction, this may be recorded and treated as a previous conviction. An absolute discharge is only given in exceptional circumstances.
Where a child found guilty of a crime is warned not to offend again. It is recorded as a conviction and appears on their criminal record. No other penalty is given.
Allows the child time to demonstrate good behaviour prior to determining sentence. This could result in the child being admonished.
Structured deferred sentence
- A structured deferred sentence requires the child to engage with interventions focused on their needs and causes of their offending behaviour
- Engagement with these interventions will inform the court’s decision on the eventual sentence - this could result in the child being admonished or reduce the length of Community Payback Order and prepare a child for the expectations of such a disposal with the aim of increasing likelihood of successful completion.
- Duration is generally 3-6 months
Fine or compensation order
The child must pay compensation or a fine. Given children’s age and stage of development and likely lack of, or limited access to, finances, this measure is unlikely to be appropriate or effective for children.
Drug Treatment and Testing Order
- The Drug Treatment and Testing Order (DTTO) requires compliance with an intensive drug treatment and testing programme
- Progress is regularly reviewed by the court
- The DTTO will specify at least one treatment provider and how compliance is to be tested
- It may include group work programmes
- It will almost certainly include provisions for social care, after care and support
- A remote monitoring condition may require that the person remain at or away from a certain place at specified hours
- A DTTO may be served on a person over 16 who is ‘dependant on or has propensity to misuse drugs, and the dependency or propensity requires and may be susceptible to treatment, and the offender is a suitable person to be subject to an order’ (as detailed in sections 89-95 Crime and Disorder Act 1998); where electronic monitoring can be used (section 47 Criminal Justice (Scotland) Act 2003)
- The child must consent to the order being made
Six months to three years.
- Committal of a further offence or failure to attend testing or treatment do not automatically constitute a breach of the DTTO
- Failure to attend court for reviews or attempts to interfere with the integrity of tests do constitute breaches of the DTTO
- Information on breach proceedings can be found in DTTOs Guidance 2011
Restriction of Liberty Order (RLOs)
Under Section 245A of the Criminal Procedure (Scotland) Act 1995 as inserted by Section 5 of the Crime and Punishment (Scotland) Act 1997 and amended by sections 43 and 50(3) of the Criminal Justice (Scotland) Act 2003 or Section 245A (11) of the Criminal Procedure (Scotland) Act 1995 as amended by section 121 of the AntiSocial Behaviour etc.(Scotland) Act 2004, a court can impose a Restriction of Liberty Order (RLO) on a child (including those aged under 16). The Management of Offenders (Scotland) Act 2019 extends the potential for electronic monitoring - both in terms of what other measures it can be combined with and the use of new technologies.
- An RLO is a direct alternative to custody and provides an opportunity to disrupt a pattern of behaviour that contributes to the child coming into conflict with the law
- Restricts the movements of the child by imposing time and locational limits by an electronic tag
- The child can be restricted to a particular place for up to 12 hours a day for a period of up to 12 months, or restricted away from a specified place for up to 24 hours a day
- Flexibility and creativity in the application of Electronic Monitoring with individuals can promote or inhibit behaviours and exposure to situations, which you are either trying to leverage or restrict depending on how they may impact upon the child’s likelihood of coming into further conflict with the law.
- The child must consent to the RLO
- An RLO can be imposed as a standalone order or concurrent with a Community Payback Order (CPO as below), however consideration must be given to how any identified needs will be addressed or change sustained with a standalone order which would not be recommended, particularly for under 18s
- Consideration as to the impact of the RLO on the child’s family, network and anyone they live with is crucial as it can create additional strain on relationships and supports may be required to manage these situations
Breaches and compliance
- Failing to comply with the terms within the order, such as be away from the curfew address during the times set by court or tampering with the equipment, can result in a breach of order, the consequences of which vary
Community Payback Order
Sections 227A to 227ZO, and Schedule 13 of the Criminal Procedure (Scotland) Act 1995 provide the legislative framework for Community Payback Orders (CPOs). In addition, section 82 of the Sexual Offences Act 2003 provides for the situation where an individual is convicted of a sexual offence and the court imposes a CPO on that individual with an offender supervision requirement. In those circumstances the individual is required to comply with the sex offender notification requirements for the specified period of the offender supervision requirement.
Under section 14 of the Criminal Justice and Licensing (Scotland) Act 2010 a Community Payback Order (CPO) may impose one or more of the following requirements:
- Offender supervision
- Unpaid work or other activity
- Level 1: 20-100 hours within three months
- Level 2: 101-300 hours within six months
(other Activity [which can be up to 30% of the number of specified hours on the requirement, or 30 hours, whichever is lower] allows the child to undertake activities to develop their interpersonal, educational, and vocational skills to support long-term desistance, with the exact number of ‘other activity’ hours to be determined by the case manager)
- Programme requirement (individual or group work)
- Residence requirement (specifies where the person is to reside or places they may not visit)
- Mental health treatment (distinct from mental health orders)
- Drug treatment (distinct from a DTTO)
- Alcohol treatment
- Conduct (person must refrain from certain actions)
Provisions for a tenth potential requirement – a restricted movement requirement – are included in the Management of Offenders (Scotland) Act 2019.
- Minimum age is 12 as per age of criminal responsibility
- Unpaid work requirement: minimum age 16
- For all children an offender supervision requirement must be part of the CPO (and if certain other requirements are included)
- The child must consent to the order and each of the requirements
- The CPO can be imposed alongside another order
Six months to three years.
- The supervising officer will meet the child within five working days of the order being imposed
- Unpaid work or other activity requirements should commence within seven working days
- Application can be made to the court for early discharge of a CPO or to vary the CPO, and there is facility for the court to conduct discretionary progress review hearings at any time within the duration of the CPO
- The imposition of a CPO does not require a Compulsory Supervision Order to be terminated and recommendations on whether a child continues to require compulsory measures via the Children's Hearings System should be assessed on an individual basis
- Good communication and joint working with the child’s lead professional and other agencies working with the child should continue to address areas of need such as education, training and employment, family work, benefits, accommodation, health and any difficulties with substance misuse. Where necessary, additional support from other agencies should be sought and commence during the CPO so that if the child continues to require support upon completion of a CPO, this can be provided to help promote their reintegration. Particular support should be made available during transitions, including any transition between child and adult services
- More specific information on roles and responsibilities and children subject to CPOs can be found in CPO Practice Guidance 2019
Breaches and compliance
- Complying with a CPO is extremely important, with completion rates particularly low for children
- CPOs should take consideration of the child’s age, developmental capacities and likely limited knowledge and experience of measures of this nature, whilst also considering potential fears and a sense of hopelessness about successfully completing orders
- Consideration should be given to how barriers to successful compliance can be reduced and what support may be required, not just to the individual child but to the systems around that child such as family, education community and peers, for example
- Full explanations should be given to the child of the conditions which must be met in relation to each requirement, who they must report to and engage with, as well as the consequences of non-compliance. These explanations should be provided in a manner that is understandable and tailored to the child’s age and stage of development
- Information on breach proceedings can be found in CPO Practice Guidance
Remittal to Children’s Hearings System (CHS) for disposal
Should a Judge or Sheriff decide to remit a case back to the CHS for disposal, possible outcomes include:
- Discharge of the case - no further action
- Interim Compulsory Supervision Order (section 86 Children’s Hearings (Scotland) Act 2011)
- Compulsory Supervision Order (section 83 Children’s Hearings (Scotland) Act 2011). This can include a range of measures including that the child reside in a specified place or regulating contact between the child and specified person/persons. This can also include a secure accommodation authorisation if the children’s hearing or Sheriff is satisfied that the child meets one or more of the conditions specified in section 83(6) Children’s Hearings (Scotland) Act 2011 and having considered the options that the inclusion of such an authorisation is necessary. In doing so, the children’s hearing or Sheriff must consider a Movement Restriction Condition (MRC). An MRC can be included as part of a CSO if the children’s hearing or Sheriff is satisfied that the child meets one or more of the conditions specified in section 83(6) and that the inclusion of an MRC is necessary. An MRC requires the child to remain at a specified location for up to 12 hours per day, monitored by an electronic tag. MRCs and the restrictions attached to this can and should be used flexibly, with a number of factors having been identified for consideration in assessments, plans and successful implementation (CYCJ, 2019).
National Outcomes and Standards for Social Work Services in the Criminal Justice System 2010
These standards provide a framework for criminal justice social work practice, including guidance on:
- Responsibilities of case managers
- Immediacy and intensity of contact
- Managing compliance
- Principles that should underpin interventions
Third Sector organisations
The support services offered as alternatives to custody may be provided by third sector organisations. These organisations may also be involved in providing court reports and support to children as part of the Whole System Approach.
Resources for this page
- Anti-Social Behaviour etc.(Scotland) Act 2004
- Crime and Disorder Act 1998
- Crime and Punishment (Scotland) Act 1997
- Criminal Procedure (Scotland) Act 1995
- Criminal Justice (Scotland) Act 2003
- Criminal Justice and Licensing (Scotland) Act 2010
- Children’s Hearings (Scotland) Act 2011
- Management of Offenders (Scotland) Act 2019
- Police and Fire Reform (Scotland) Act 2012
- Sexual Offences Act 2003
- Sentencing Council Jargon Buster
- The Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2020
- Children and Young People's Centre for Justice (CYCJ). (2017). Community Payback Orders – Use of unpaid work or other activity. Glasgow: CYCJ.
- CYCJ. (2019). Flexibility is key - Movement Restriction Conditions. Glasgow: CYCJ.
- CYCJ. (2019). Structured Deferred Sentence. Glasgow: CYCJ.
- CYCJ. (2020). A Guide to Youth Justice in Scotland: policy, practice and legislation: Supporting all under 18s in the court system. Glasgow: CYCJ.
- Graham, H. and McIvor, G. (2017). Electronic monitoring in the criminal justice system. Glasgow: IRISS.
- Murphy, C. (2021). Children in conflict with the law: An intervention planning approach. Glasgow: CYCJ.
- 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. (2010). National Outcomes and Standards for Social Work Services in the Criminal Justice System. Edinburgh: Scottish Government.
- Scottish Government. (2011). Drug Treatment and Testing Orders Guidance for Schemes. Edinburgh: Scottish Government.
- Scottish Government. (2014). Intensive Support and Monitoring System: Guidance on the use of Movement Restriction Conditions (MRCs) in the Children’s Hearings System (CHS). Edinburgh: Scottish Government.
- Scottish Government. (2015). Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences. Edinburgh: Scottish Government.
- Scottish Government. (2019). Electronic monitoring: uses, challenges and successes. Edinburgh: Scottish Government.
- Scottish Government. (2019). Community Payback Orders Practice Guidance. Edinburgh: Scottish Government.
- Scottish Government. (2021). Structured Deferred Sentences: guidance. Edinburgh: Scottish Government.
- Simpson, S. and Dyer, F. (2016). Movement Restriction Conditions (MRCs) and Youth Justice In Scotland: Are we there yet? Glasgow: CYCJ.
- Vanhaelemeesch, D. (2018). Virtual punishment: the experiences of electronic monitoring. Edinburgh: Families Outside.