When a child or 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 child or young person may be:
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 such as taking into consideration all relevant factors in a case, including the impact on victims and others, and stating the reasons for sentencing decisions as clearly and openly as circumstances permit. 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.
Criminal Justice Social Work Report (CJSWR)
The court may request a CJSWR to help decide the appropriate sentence. The report should be informed by appropriate risk assessment tool(s) given the age and stage of the child and type of offence committed (the Risk Management Authority Risk Assessment Tools Evaluation Directory (RATED) provides an overview of tools). The Framework for Risk Assessment, Management and Evaluation for children and young people under 18 (FRAME) (Scottish Government, 2014) highlights that assessments in relation to the risk of further offending behaviour should take a Structured Professional Judgement approach and should be informed by thinking of children as children first and foremost.
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, 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
All alternatives to secure care and custody should be explored (see community-based disposals for more information).
Before the child or young person leaves court, the dedicated court support workers or court social work staff and the defence agents (e.g. solicitor) should:
- Explain to the child or young person the meaning of the disposal (order)
- What the child or 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 child or young person and the consequences of non-compliance. Given the serious consequences of breaching conditions, it is important to ensure that they understand the explanation provided (Scottish Government, 2011a; CYCJ, 2019)
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 child or 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 child or 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 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 who have been convicted of murder under section 205(2) of the Criminal Procedure (Scotland) Act 1995 (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 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 child or young person 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 or young person.
The child or young person should be interviewed by the dedicated court support workers or court social work staff (Scottish Government, September 2011a; 2010; CYCJ, 2018) 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 GEOAmey escorting staff and YOI or secure care staff via a risk alert being provide to the officer escorting the young person, which should also be shared with the young person’s Lead Professional or local social work office (if not in court). Risk alerts are required in all cases where a young person 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 or 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 child or 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 children, young people and their families
Sentences must be fully explained to children, young people and their families 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 or 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 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
- Risk Management Authority: Risk Assessment Tools Evaluation Directory
- Scottish Children’s Reporters Administration
- Scottish Sentencing Council
- Scottish Sentencing Council About Sentencing
- Scottish Sentencing Council Mythbuster
- Scottish Sentencing Council Videos
- Scottish Sentencing Council 'If You Were the Judge' case studies
- Scottish Sentencing Council Jargon Buster
- Scottish Sentencing Council Sentencing Guidelines
- Centre for Youth and Criminal Justice (CYCJ). (2019). A Guide to Youth Justice in Scotland: policy, practice and legislation: Supporting all under 18s in the court system. 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.
- Murphy, C. (2018a). Balancing rights and risk: How can we get it right for children involved in violent behaviour? Glasgow: CYCJ.
- Murphy, C. (2018b). Formulation in Risk Practice. Glasgow: CYCJ.
- Murphy, C. (2018c). Formulation in Risk Practice 2. Glasgow: CYCJ.
- Murphy, C. and Orr, D. (2018). How to implement effective risk practice. Glasgow: CYCJ.
- Nolan, D. (2015). Youth Justice: A Study of Local Authority Practice Across Scotland. 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).
- 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. (2014). Framework for Risk Assessment Management and Evaluation (FRAME) for Local Authorities and partners For Children and Young People under 18. Edinburgh: Scottish Government.
- Scottish Government. (2018). Practice guidance: Convicted on Indictment Under Section 205(2) or Section 208 of the Criminal Procedure (Scotland) Act 1995. 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.