When a young person has been found guilty, or pleads guilty, the judge, sheriff or JP will decide what sentence is appropriate. They may defer sentencing for days or weeks, during which the young person may be:
Criminal Justice Social Work Report (CJSWR)
The court may request a CJSWR to help decide the appropriate sentence. The report should be informed by an ASSET/YLS-CMI risk assessment and, where appropriate, other specialist risk assessment tools (the Risk Management Authority provide an overview of tools).
For young people 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 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 young person does not need to be subject to a Compulsory Supervision Order (CSO) or have been previously known to the CHS. The rules on remittal 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
All alternatives to secure care and custody should be explored (see alternatives to custody for more information).
Before the young person leaves court, the court social worker and the defence agents (e.g. solicitor) should:
- Explain to the young person the meaning of the disposal (order)
- What the young person’s responsibilities are
- If possible, set up the first appointment with the allocated social worker
- Explain the importance of attending appointments
- Explain any conditions placed on the young person and the consequences of non-compliance (Scottish Government, 2011a)
Sentence: Detention in secure care or custody
The Criminal Justice and Licensing (Scotland) Act 2010 specifies the presumption against sentences under three months.
GIRFEC principles should apply to all work with young people in secure care or custody, regardless of whether they are subject to measures through the CHS (Centre for Youth & Criminal Justice, 2013).
In rare circumstances, a young person who has committed a serious offence (usually of a violent or sexual nature), and who is assessed a presenting an on-going 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 young person will not be released until the Parole Board decides that the risk they pose can be safely managed in the community.
Sentences to detention can also have imposed an extended sentence or Supervised Release Order.
Scottish Ministers are responsible for placing and managing:
- Children under the age of 16, who have been convicted under solemn procedures and sentenced to detention under section 205(2) or Section 208 of the Criminal Procedure (Scotland) Act 1995
- Children between 16 and 18 who are subject to a CSO, who have been convicted under solemn procedures and sentenced to detention under section 205(2) or Section 208 of the Criminal Procedure (Scotland) Act 1995
- All children under 18 who have been convicted of murder under section 205 of the Criminal Procedure (Scotland) Act 1995
In the above cases, where detention is likely or has happened, contact should be made by the young person’s social worker with the CYP Placement Manager at the earliest opportunity.
Procedure following sentence to secure care or custody
The young person will be handcuffed and taken to the cell area in the court building until transport is available. On reaching this area, handcuffs will be removed and belongings bagged to be transported to the secure unit or YOI with the young person.
The young person should be interviewed by the court social worker to (Scottish Government, September 2011a; 2010):
- Explain the disposal and what will happen next
- Identify any pressing problems or vulnerabilities which YOI or secure care staff should be informed of
- Provide information on prison-based social work services and voluntary throughcare where the sentence is under 4 years
- Complete the risk of self-harm pro-forma, provide this to the officer escorting the young person and notify the receiving establishment of any risk
- Offer other relevant support such as contacting family members
The court social worker should also:
- Contact the young person’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 young person to the receiving establishment
Throughcare starts at the point of sentence and “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 young people and their families
Sentences must be fully explained to young people and their families and as much information and support should be provided as possible (Gough, 2016). This is particularly important where a young person is sentenced to detention, which 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 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. The young person 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
- Risk Management Authority: Risk Assessment Tools Evaluation Directory
- Scottish Children’s Reporters Administration
- Scottish Sentencing Council About Sentencing
- Centre for Youth & Criminal Justice (CYCJ). (2013). National Standards for Youth Justice Provision in Scotland (Appendix 1 to Youth Justice in Scotland: a guide to 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.
- Nolan, D. (2015). Youth Justice: A Study of Local Authority Practice Across Scotland. Glasgow: CYCJ.
- Sapouna, M., Bisset, C., Conlong, A. and Matthews, B. (2015). What Works to Reduce Reoffending: A Summary of the Evidence. Edinburgh: Scottish Government.
- 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. (2015). Reconviction Rates in Scotland: 2012–13 Offender Cohort. Edinburgh: Scottish Government.
- 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.