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SOCIAL WORK LAW & POLICY 2011

 Criminal Justice

A ALTERNATIVES TO PROSECUTION

A.1 Procurator Fiscal Warnings


These are warnings given by the Procurator Fiscal. They can only be given when there is
enough evidence to prosecute the recipient and where the offence is not so trivial that it
should simply be ignored.

A.2 Fiscal Fines


These allow a fiscal to make an offer of a fixed penalty in any case triable in the JP
Court, subject to the exclusion in general of motoring offences. The limits on the
jurisdiction of the JP Court are relatively generous, and about half of all prosecutions take
place there. The level of fixed penalty which could be offered was originally £25, but
this was altered in 2008. The fiscal can now offer a fixed penalty of £50, £75, £100,
£150, £200, £250 or £300. A survey of the use of fines showed the main types of case to
be (in descending frequency) breach of the peace, urinating to public annoyance, theft
(usually shoplifting), trespass on railway lines, assaults, drunkenness at sports grounds
and drunk and incapable1. If the offer is accepted then no conviction will be recorded
against the individual. If the offer is not accepted, the individual will be prosecuted in
respect of the offence, though acceptance of an offer within the previous two years will
be disclosed if the individual appears in court charged with an offence.2 Once accepted, a
fiscal fine is similar to a fine imposed by a court as regards enforcement in the case of
non- payment.

A.3 Compensation Offer


The fiscal can make the offender an offer of paying compensation up to £5,000 to the
offender.3 If the offer is accepted within 28 days then liability to conviction is
discharged. The offences where such an offer can be made are all offences which are
triable summarily and where a court could make a compensation order.

A.4 Setting aside of fixed penalties and compensation offer


The fiscal can set aside an offer of a fixed penalty or a compensation offer, even if the
offer has been accepted. This can be done where new information comes to the attention
of the fiscal and the fiscal considers that in light of this the offer should not have been
made.4

A.5 Conditional Offers of Fixed Penalty

1
P. Duff, Fiscal Fines, Scottish Office Central Research Unit, 1996.
2
Criminal Procedure (Scotland) Act 1995, ss 69(6)-(7), 101(9)-(11) & 116 (9)-(11).
3
Criminal Procedure (Scotland) Act 1995 s 302A, Criminal Procedure (Scotland) Act 1995 Compensation
Offer (Maximum Amount) Order 2008, SSI 2008/7.
4
Criminal Procedure (Scotland) Act 1995, s 303ZB.

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These relate to certain motoring offences, and operate in the same way as fiscal fines
except that the offer is made by the police.

A.6 Diversion
Diversion schemes are in general operated by the social work department in cooperation
with the procurator fiscal. The availability of diversion schemes varies considerably
across the country. The way in which they operate also varies, some involve a dropping
of any possible prosecution once an individual agrees to become involved in a diversion
scheme, others involve the suspension of prosecution, which will only be dropped on
satisfactory performance in or completion of the diversion scheme. There are no national
standards for diversion schemes, and there are a number of unresolved issues as to the
type of case which is suitable for diversion.

B PROCEDURE IN CRIMINAL COURTS

B.1 Summary Procedure


In summary procedure, the case proceeds on the basis of a Complaint which sets out the
charge against the accused. The complaint will be accompanied by a list of previous
convictions (if there are any) and, in the case of a statutory offence, a notice of the
maximum penalty for the offence. Appearance in court may be from custody or may
follow citation, where the accused has been released from police custody or has never
been in custody in the first place. At the first court hearing the accused will have to make
a plea, if the plea is to be not guilty that plea may be made by letter. In the case of minor
offences, particularly road traffic offences, a plea of guilty may also be made by letter.
Occasionally, the defence agent or the fiscal will ask for the case to be continued without
plea, for example to allow time for further investigation, and on some occasions the
defence may challenge the validity of the charge on the complaint. If there is a plea of
not guilty, a date will be fixed for trial. On the trial date, a trial will take place, though it
may be continued to a later date.

Before the trial diet there will be an intermediate diet before the trial diet. The purpose of
this diet is:
• to assess the state of preparation of the two sides;
• to ascertain that the not guilty plea was being maintained (since a change of plea
between the first, pleading, diet and the trial diet is quite common); and
• to supervise the extent to which the prosecution and the accused have fulfilled
their duty to identify and agree uncontroversial evidence.

B.2 Solemn Procedure


Regardless of the court in which the trial will take place, the first stage in a solemn case
will be the appearance of the accused before a sheriff in chambers on petition. The
hearing is in private and proceeds on the basis of the petition which sets out, in a
preliminary form, the charge against the accused. At this stage the accused may be
committed for trial or committed for further examination. Committal for trial, as the
name suggests, involves the accused being remanded, This may be in the community,

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either on bail or otherwise, or in custody until the date of the trial. Committal for further
examination involves the case being continued for eight days while further investigations
are carried out, after this period the accused will be brought back before the sheriff and at
that stage will be committed for trial. At the appearance before the sheriff the accused is
not obliged to say anything, however the fiscal is entitled to ask him/her questions
(within certain boundaries) and the responses to these questions may be placed before the
jury at any subsequent trial.

After committal for trial the next appearance will be at a first diet (sheriff and jury court,
the High Court equivalent is a preliminary diet) usually followed within 30 days by the
trial diet. The purpose of this first/preliminary diet is essentially the same as that of an
intermediate diet in summary cases and the diet may also deal with any challenge to the
validity of the charge. If the accused changes his/her mind and decides to plead guilty, an
accelerated diet to deal with sentencing will be arranged, this procedure is found in
section 76 of the Criminal Procedure (Scotland) Act 1995.

Once the accused has been committed for trial an indictment will be prepared based on
the petition, the indictment is the final form of the charge against the accused, and the
trial proceeds on the basis of the indictment. If the accused to be tried in the sheriff court
is kept in custody his/her trial must start within 110 days of committal for trial, for the
High Court the preliminary diet must be held within these times and the trial must start
within 140 days. If these time limits are not kept to the accused will now be released on
bail, previously the effect of failure to meet the limits was to bring the prosecution to an
end. If the accused is at liberty, the trial must start within one year of appearance on
petition in the sheriff court and in the High Court the preliminary diet must be held within
11 months.

B.3 Trial Procedure


Throughout the trial process, from the serving of the petition or complaint, the prosecutor
is the 'master of the Instance', in other words it is up to the prosecutor to decide on the
form of the charge, to decide if the case proceeds, and to decide whether any plea of
guilty to part of the charge or to a lesser offence is acceptable. The prosecutor can also
desert the case during a trial diet. The desertion may be either simpliciter, in which case
the prosecution cannot be revived, or pro loco et tempore, in which case the prosecution
can be revived at a later date, subject to the time limits noted above

In summary cases, the prosecution will be carried out by a fiscal, they will also normally
prosecute in the sheriff solemn court, in the High Court prosecutions will normally be
conducted by an Advocate-Depute.

At the trial, there are no opening statements by the two sides. Instead, the prosecution
calls its first witness who is examined, cross-examined and, if necessary, re-examined.
At the close of the prosecution case, the defence will often move for dismissal of the
complaint/indictment on the grounds that there is no case to answer, i.e. the evidence
brought forward by the prosecution is insufficient to prove the charges. If that motion is
unsuccessful defence evidence will be led, although the defence need not give evidence,

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as it is up to the prosecution to prove the charges beyond reasonable doubt. At the end of
the defence evidence, closing statements will be made by the prosecution and defence in
that order. After the end of these statements, procedure depends on whether it is a
summary or a solemn trial. In summary cases the judge(s) will have to decide on guilt
and fix sentence. In a solemn case the judge will charge the jury, explaining the burden
of proof on the prosecution, explain any relevant law and usually also give a summary of
the evidence, after this the jury will retire to consider its verdict.

B.4 Evidence
Evidence must in general be relevant to the charges before the court and admissible. The
main example of inadmissible evidence is hearsay evidence, that is a report of what was
said to the witness. For example, a witness might say ‘Smith told me that Brown had just
shot Green’. All that statement is evidence of is the conversation between the witness
and Smith, it is not admissible evidence as to the shooting of Green by Brown. There are
now some exceptions to the general exclusion of hearsay. Such evidence is admissible if
certain conditions are fulfilled, e.g. that the evidence is admissible and the maker of the
statement would have been a competent witness, in addition, the witness must not be
giving evidence for one of a number of listed reasons, e.g. death or refusal to give
evidence. Statements of opinion are not generally admissible, unless made by an expert
witness, whose primary function is give opinions based on his/her expertise.

B.5 Verdicts
The available court verdicts in Scotland are:
• Guilty
• Not Guilty
• Not Proven

Of this last it has been said that:5


It is generally thought that the verdict gives juries, and judges, an option between
not guilty and guilty where they feel that the charges have not been proved but
they equally cannot say the accused is "not guilty" because of its moral
connotations.

B.6 Continuation and Deferred Sentence


After conviction the case may be continued for the production of reports, and
there are some cases in which if the court wishes to impose certain sentences,
there must be a continuation for the production of a report or reports.

Deferred sentence describes the different situation where deferment is used


effectively as a sentencing option, often after a report has been obtained on the
accused. Sentence will be deferred (i.e. postponed) for a period, usually, of
between three months and one year. Often, the accused has to do something
during this period. This may involve simply being of good behaviour, it may
involve making reparation to a victim, particularly in cases of theft or fraud, or it
5
House of Commons Library, The “not proven” verdict in Scotland, Standard Note:
SN/HA/2710

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may involve attending a programme to deal with a particular problem which the
accused has as part of a structured deferred sentence. At the end of the period of
deferment sentence will be passed.

C BAIL AND BAIL CONDITIONS

Bail is to be granted having regard to the public interest, including questions of


public safety. There are certain statutory grounds on which bail can be refused,
e.g. substantial risk of absconding, further offending or interference with
witnesses. In addition, where the accused is charged with certain offences, and
has a previous conviction for the same type of offence as that with which they are
now charged, bail can only be granted if there are exceptional circumstances
justifying this. The offences involved are violent or sexual offences or offences
involving drug trafficking.6 An offender released on bail may be supervised by
the social work department.

There are certain statutory conditions which apply to all grants of bail by the
courts, and the court may add to these any other conditions, e.g. as to residence at
a particular address, as are appropriate in the circumstances. The statutory
conditions are:
(a) the accused must appear at all court diets,
(b) the accused must not commit further offences while on bail,
(c) the accused must not interfere with witnesses,
(d) the accused must make him/herself available for the purpose of enabling enquiries or
reports to be made to assist the courts disposition of the case.

Breach of any of the conditions except (b) and of any other condition imposed by the
court is an offence. Where condition (b) is breached by commission of a further offence
while on bail this will be treated as an aggravating factor in sentencing for that offence.

D SENTENCING POWERS

D.1 JP Court
The JP Court with a lay magistrate(s) on the bench can impose a fine of up to level 4 of
the fine levels applying in Scotland, this is currently £2,500. In addition it can impose a
sentence of imprisonment of up to 60 days. Where a stipendiary magistrate is sitting in
the JP Court he/she has the same powers as the sheriff summary court.

D.2 Sheriff Summary Court


This court can impose a fine of up to £10,000 and a sentence of imprisonment up to 12
months.

D.3 Sheriff and Jury Court

6
Criminal Procedure (Scotland) Act 1995, ss 23B-23D.

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The maximum sentence in this court is an unlimited fine and/or five years imprisonment.
In cases where the sheriff considers that a sentence of imprisonment for a longer period is
necessary the case can be remitted to the High Court for sentence.

D.4 High Court


The High Court has unlimited sentencing power. There are certain offences, including
treason, for which the death penalty is still available. In murder cases there is a
mandatory sentence of life imprisonment.

D.5 Statutory Limits


As well as these general limits on sentencing powers, it is common for statutes creating
offences to specify maximum sentences for these offences. These are generally lower
than, but may be greater than, the limits given above.

D.6 Other Options


As well as fines and imprisonment, the options discussed more fully later are available to
the courts, e.g. probation, admonition.

E NATIONAL OUTCOMES AND STANDARDS FOR FOR SOCIAL WORK


SERVICES IN THE CRIMINAL JUSTICE SYSTEM

National Objectives And Standards For Social Work Services In The Criminal Justice
System were introduced to coincide with the introduction of dedicated funding for
Criminal Justice Social Work Services by the then Scottish Office. As well as setting
general objectives, this document also set out detailed objectives and standards in the
following areas: social enquiry reports and court services, probation, throughcare, and
community service. In many instances it gave guidance on the exercise of statutory
powers, e.g. to breach probation orders. They were revised in 2004 and have now been
replaced by the National Outcomes and Standards. These are less detailed that the
National Objectives, but are supplemented by more detailed Practice Guidance on
Community Payback Orders and on Criminal Justice Social Work Reports.

F PROVISION OF REPORTS7

F.1 The Obligation to Provide Reports


The obligation of the social work department to provide reports to courts is contained in
section 27(1)(a) of the Social Work (Scotland) Act 1968, which provides that the local
authority must provide a service for the 'making available to any court such social
background reports and other reports relating to person appearing before the court which
the court may require for disposal of the case.' It should be clear from this that the
principal responsibility of a social worker in preparing a social enquiry report is to the

7
G Moore & B Whyte, Moore and Wood's Social Work and Criminal Law in Scotland, (3rd ed), Chapters
4 & 5.

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court. He or she has a responsibility to prepare a report which will assist the court in its
decision, and to produce it on time.
Clearly, although the main obligation is to the court, this has to be balanced by
obligations towards the offender who may be or become a client.

F.2 When Must a Court Obtain a Report?


There are certain circumstances in which a court must obtain a Criminal Justice Social
Work Report (CJSWR, this is the term for the new form of report introduced in February
2011). These are:
◊Before making a probation order.8 A report must be obtained before any probation
order is made. The principal purposes of the report, as disclosed in the legislation, are
to provide information on the character and circumstances of the offender and
information as to arrangements for supervision if a probation order is made.
◊ Before making a community service order9. Here the report is to contain information
regarding the offender and his circumstances, and confirmation that arrangements can
be made for the offender to perform community service.
◊ Before imposing a sentence of detention on an offender between 16 and 20.10 The
court is required to obtain (either from a local authority officer or otherwise)
information about the offenders circumstances, and to take into account any
information before it concerning the offender's character and physical and mental
condition.
◊ Before passing a sentence of imprisonment on someone aged 21 or over who has not
previously served a sentence of imprisonment.11 The court is required to obtain (either
from a local authority officer or otherwise) information about the offenders
circumstances, and to take into account any information before it concerning the
offender's character and physical and mental condition.
◊ Before sentencing a person specified in section 27(1)(b)(i)-(vi) of the Social Work
(Scotland) Act 1968 a court other than a JP court must obtain a report.12 Those
specified in the 1968 Act are those under supervision because of a court order (e.g. on
probation); those on supervision following release from prison/detention; those subject
to a Community Service Order, supervised attendance order or supervision and
treatment order; 16 and 17 year olds subject to a supervision requirement imposed
because of commission of an offence; and, people charged but not prosecuted and
referred to the local authority by the Procurator-Fiscal or Lord Advocate. The report
is to be on the character of the individual, including his/her behaviour while under
supervision or subject to the order.
◊ before making a supervised release order13
◊ before passing an extended sentence;14

8
Criminal Procedure (Scotland) Act 1995, section 228(1)(b).
9
Ibid., section 238(2)(c).
10
Ibid., section 207(4).
11
Ibid., section 204(2).
12
Ibid., section 203.
13
Ibid., s209(2).
14
1995 Act, section 210A.

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◊ before making a drug treatment and testing order.15
◊ Where a summary court is dealing with an offender who has been convicted of a
sexual offence or an offence involving a significant sexual element to their behaviour
in committing it.16
◊ Before making a restriction of liberty order in respect of someone aged under 16.17
◊ A report must be provided for any probation review hearing.18
◊ Before sentencing someone convicted of incest, intercourse with a step child or
intercourse between a person in a position of trust and a child.19
◊ Where a child aged below 16 is to be brought before a court the local authority must
provide a report covering the home surroundings of the child as well as his/her school
record, health and character.20

There are other cases in which a report may be desirable. Nicholson21 suggests that a
report is desirable in the following cases:
a. cases involving children;
b. cases involving young offenders where the offence is at least of moderate gravity;
c. cases where the offence is one of violence, and in particular domestic violence,
and cases where the offender has a previous record of violence;
d. cases where the offence is at least of moderate gravity and the offender either has
no previous convictions or has been free of convictions for a substantial period;
e. cases where the offence is of moderate gravity and the offender is female;
f. cases where the offender is presently, or has recently been, the subject of a
probation or a community service order (now covered by statutory provision).

Finally, a report or supplementary report will normally be requested in conjunction with a


decision to defer sentence on the offender.

F.3 Presentation of Reports to Court


Reports should be delivered to the clerk of court by midday on the day before the court
hearing which will consider the report. In some cases distribution will be attended to by
a social work department court liaison officer, this depends on local arrangements. The
presence of the writer at the court hearing may be requested by the court. It should be
noted that there should be no discussion between the report writer and the judge in
chambers, all discussion should take place in open court in the presence of the offender.22

F.4 Pre-Trial Reports


In cases before the High Court, it was common for a pre-trial report to be requested. This
did not deal with the offending behaviour and was therefore seen by both judges and

15
Ibid., s234B(3)(b).
16
Criminal Justice (Scotland) Act 2003, s21.
17
Criminal Procedure (Scotland) Act 1995, section 254A(11A).
18
Ibid., s229A.
19
Criminal Law (Consolidation)(Scotland) Act 1995, s 4(6).
20
Criminal Procedure (Scotland) act 1995 s 42(8).
21
Sentencing Law and Practice in Scotland, (2nd ed, 1992), § 7-29.
22
W v HMA 1989 SCCR 461.

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social workers as having little value. The Social Work Services Inspectorate
recommended in 1996 that the practice be stopped except when the case was being dealt
with under section 76 of the 1995 Act23, though it appears that this recommendation has
not yet been put into effect.

F.5 Co-operation in the Production of a Report


As we have already seen, if the offender is on bail one of the conditions of bail is that
he/she should make him/herself available for the purpose of preparation of a report. In
other circumstances the law is not clear, nor is it clear what would happen if an offender
on bail was available to be interviewed but was uncooperative. Moore and Wood suggest
that an uncooperative offender would be in contempt of court, this may be a possibility,
but it is by no means a certainty, and there is no legal authority on the issue.

F.6 Risk Assessment Order


A risk assessment order can be made by the High Court where it is to impose a sentence
for an offence other than murder and the offence is either sexual, violent or endangered
life or is of such a nature or committed in such circumstances as to suggest that the
person to be sentenced has a propensity to commit such an offence. The person to be
sentenced must also meet a risk criterion, that if they were at liberty they would seriously
endanger the lives or physical or psychological wellbeing of members of the public at
large.24 The order requires the production of a risk assessment report by someone
accredited by the Risk management Authority, and the report is on the risk which the
person to be sentenced would present to the safety of the public at large were they at
liberty.25 Following such a report the person to be sentenced may be made subject to an
Order for Lifelong Restriction (see 7.3.5 below)

G NON-CUSTODIAL SENTENCES

Significant changes to non-custodial sentences have been made. These involve the
replacement of probation, community service, supervised attendance orders and
community reparation orders by a single Community Playback Order. These orders will
be discussed in more detail in the class, but they are available only for offences
committed AFTER 1st February 2011. Note that what is important is the date of offence
so that offences committed before 1st February will be subject to the disposals described
below and existing orders will continue in force until they come to an end.

G.1 Fines
Fines, the imposition of a monetary penalty, are the most frequently used of disposals.
Generally speaking, some time to pay the fine will be allowed, and the offender may also
be made the subject of a fine supervision order. In deciding on the amount of fine to be
imposed, the court must take into account the means of the offender. 26 Maximum fines

23
Social Work Services Inspectorate, Helping the Court Decide, paras. 9.6-9.9.
24
Criminal Procedure (Scotland) Act 1995, s 210E.
25
Criminal Procedure (Scotland) Act 1995, ss 210 B & 210C.
26
Criminal Procedure (Scotland) Act 1995, section 211(7).

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for offences (and power of the JP Court) are specified by reference to levels. At present
these are:
Level 1 £200
Level 2 £500
Level 3 £1,000
Level 4 £2,500
Level 5 £5,000

In general, offenders will be given time to pay a fine, the Criminal Procedure (Scotland)
Act 1995 specifies that they should have seven days to pay the fine or the first instalment
thereof. The exceptions to this are cases where the court refuses time to pay for one of
the following reasons:
a. the offender appears to have sufficient means to pay the fine on the spot; or
b. the offender, on being asked by the court if he/she wants time to pay, does not ask
for time; or
c. the offender cannot satisfy the court that he/she has a fixed abode; or
d. the court is satisfied that there is some other special reason for refusing time to pay.27

Where time to pay is refused, the offender can be immediately imprisoned for non-
payment.

Where time to pay a fine is allowed, the court may at the same time as imposing the fine
impose a period of imprisonment be served in the event of default. This can only be done
if, for one of the following reasons, the court determines that it is expedient for the
offender to be imprisoned on default without the further inquiry which is normally
necessary:
a. the gravity of the offence,
b. the character of the offender,
c. some other special reason.28

When time to pay has been allowed, the offender may also be made subject to a fine
supervision order. The purpose of the order is to advise and assist the offender in regard
to payment of the fine. A fine supervision order can be used either at the time of the
original sentence, or at a later means enquiry court, and an offender under 21 cannot be
imprisoned for default on a fine unless, where it is practicable, he/she has been subject to
an order. Where a court is considering imposing imprisonment for default on a person
subject to an order, it must first take such steps as are reasonably practicable to obtain a
report from the supervisor, and consider that report before deciding on what action to
take.29

The offender can apply to the court for more time to pay the fine and the court can only
refuse such an application if it considers that the failure to pay has been wilful or that

27
Ibid., section 214(2).
28
Ibid., section 214(4).
29
Ibid., section 217(6).

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there is no reasonable prospect of the offender paying the fine if further time is allowed. 30
The offender can also apply for variation of the instalments.

Imprisonment for default cannot be ordered unless a means enquiry court has been held.
The purpose of a means enquiry court is to establish why default has taken place. As
well as ordering imprisonment, the outcome could be a revision of the instalments or the
use of a fine supervision order. If an individual is imprisoned, there are limits, related to
the amount of the fine, on the period of imprisonment which can be imposed. In
calculating the time to be served, account should be taken of the proportion of the fine
which has already been paid.31 A further restriction imprisonment applies in that, at least
initially someone who owes less that £500 must be made subject to a supervised
attendance officer rather than imprisonment/detention.

G.1.1 Supervised attendance orders32.


Anyone who owes an amount less that £500 cannot be sent to custody/detention but must
instead be made subject to a supervised attendance order.33 A supervised attendance
order cannot be made if the amount owed by the offender exceeds £500.

Criminal justice social work services are responsible for organising schemes to
implement supervised attendance orders. Orders require the offender to attend at a
specified place for between 10 and 100 hours and, during that time, to comply with the
instructions of his/her supervising officer (who is appointed or assigned by the local
authority). The maximum number of hours depends on the amount of the fine which is
outstanding. Where this does not exceed level 1 it is 50 hours, where more is outstanding
but the outstanding amount is less than level 2 (the maximum outstanding amount for
which supervised attendance orders are available) it is 100 hours. Supervised attendance
orders can only be used in respect of offenders over 16 in cases where the offender would
otherwise have been imprisoned. The offender does not have to consent to such an order
being made which may have serious repercussions for its implementation. The order can
be made either at the time of the fine as an alternative in the same way as imprisonment,
or at a later stage on default by the offender. Once a supervised attendance order is
made, the fine it replaces is discharged.

Before the order is made the court must explain, in ordinary language:
1. the purpose and effect of the order,
2. the obligations of the offender, in particular to report to the supervising officer and
advise him/her of any change of address or working hours, and to comply with the
instructions of the supervising officer which, so far as practicable, should not conflict
with the offender's religious beliefs, normal working hours, attendance at school or
other educational institution,
3. the consequences of failure to comply: these are possible revocation of the order and
imposition of imprisonment or a variation of the number of hours specified in the

30
Ibid., section 215(3).
31
Ibid., sections 216 and 219.
32
Ibid., sections 235-237.
33
Criminal Procedure (Scotland) Act 1995, s. 235(4).

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order, subject to the statutory maxima,
4. the court's power to review the order on the application of the offender or a local
authority officer.

The supervised attendance order remains in force, unless revoked, until the specified
number of hours are completed although these should normally be completed during a
twelve month period.

Supervised attendance orders can also be used by summary courts in respect of 16 and 17
year olds as an alternative to a fine rather than as an alternative to custody. If the court
considers that the appropriate sentence is a fine it must decide how much the fine should
be and then consider whether the offender is likely to pay any fine within 28 days. If
they conclude that he/she is likely to pay, the fine is imposed and an order may be
imposed in case of default. If the view is taken that the offender is not likely to pay
within 28 days, then the order is made in place of the fine.

Failure by the offender to comply with his/her obligations will lead to breach of the order.
Proceedings for breach will normally be initiated by the supervising officer. The court
can cite the offender to appear in court or can issue an arrest warrant. If the court is
satisfied that the offender has failed to comply with the order without reasonable cause it
may revoke the order and impose the alternative of imprisonment dictated by the
outstanding amount of fine or it may vary the number of hours, provided the total does
not exceed 60. The maximum custodial sentences which can be imposed are sixty days in
the JP Court and three months in the Sheriff Court. Only one witness is necessary to
provide evidence for breach proceedings.

The offender or supervisor may apply to court for the order to be extended beyond the
normal 12 months, for the number of hours to be varied, for revocation, and for
revocation and the imposition of imprisonment. The court should grant such an
application if it appears to them that ‘it would be in the interests of justice to do so having
regard to circumstances which have risen since the order was made’

There is also provision for transfer of orders where the offender moves and arrangements
exist in the new area for supervised attendance.

G.1.2 Fine Enforcement Officers


Fine enforcement officers have the responsibility for collecting fines. Where time to pay
a fine is granted then a fine enforcement order must be made unless the court considers
that such an order would not be appropriate in the circumstances. (This requirement is
additional to the power to make a supervision order or to impose an alternative of
imprisonment.) Once such an order is made the Fine Enforcement Officer can vary the
time for payment on application by the offender. The FEO also has extensive
enforcement powers. The order authorises them to arrest the offender’s income or other
funds and they can ask the court to make an application for deduction from benefits being
paid to the offender. In addition they have the power to seize and dispose of a motor
vehicle belonging to the offender. Finally the FEO can refer the case of the offender

12
back to the court if he/she believes that payment is unlikely or for other reasons (e.g.
failure to co-operate).

G.2 Admonition
This is the second most common disposal. The statutory provision 34 is to the effect that
admonition may be used in any case where it appears to the court to meet the justice of
the case.

G.3 Probation35
A probation order involves a degree of supervision and restriction of the offender in the
community lasting between six months and three years. As we have noted, before
making a probation order the court must have obtained a social enquiry report. Before the
order is made the court must explain, in ordinary language, the effect of the order,
including the effect of any additional requirements and that failure to comply with the
requirements of the order or commission of a further offence will render the probationer
liable to be sentenced for the offence in respect of which the order is being made.
Finally, an order cannot be made unless the offender indicates that he/she is willing to
comply with the requirements in the order.

G.3.1 Standard Requirements


There are three requirements which apply to all probation orders:
(a) the offender must be of good behaviour;
(b) he/she must comply with any directions given by the supervising officer; and
(c) he/she must inform the supervising officer immediately on change of address or
employment.

G.3.2 Additional requirements


In addition to these requirements the court is given specific power to impose
requirements regarding treatment for a mental condition, residence, performance of
unpaid work, caution and compensation. There is also a general power to impose any
requirement which the court consider conducive to securing the good conduct of the
offender, preventing a repetition of the offence, preventing the commission of other
offences, or securing the performance of unpaid work or the payment of compensation.
The court may also now fix a date for a probation review hearing when making the
probation order.

G.3.2.1 Treatment for a mental condition.36


Before this can be made a requirement, the court must be satisfied that the offender is
suffering from a mental illness which is treatable and which is not such as to justify
detention under the Mental Health (Care and Treatment)(Scotland) Act 2003. This
conclusion is to be based on a medical report produced in addition to the social enquiry
report. Previously the requirement for mental treatment could not last for more than 12

34
Contained in section 246(1) of the Criminal Procedure (Scotland) Act 1995.
35
See G Moore and B Whyte, Moore and Wood's Social Work and Criminal Law in Scotland (3rd ed),
Chapter 8.
36
Ibid., section 230.

13
months though this limit was removed in late 2005. The requirement will specify either
in-patient treatment, out-patient treatment at a particular place, or treatment by a
particular doctor or chartered psychologist. Where a change in the method or location of
treatment from that specified in the order is necessary it can normally be achieved
without resort to court. The initiative for the change comes from the doctor or
psychologist treating the offender, and if it is agreed by the offender and his/her
supervising officer, then it can be carried into effect. It is then the responsibility of the
supervising officer to notify the court as to these changes, which are then regarded as
having been incorporated into the order. Where agreement cannot be obtained to a
change of treatment, or where the doctor/psychologist considers that treatment for a
period longer than that contained in the order is necessary he/she will report to the
supervising officer and the supervising officer will then apply to court for variation of the
order (subject to the constraints on length of medical treatment noted below).

G.3.2.2 Residence37
A requirement concerning residence can be made only after consideration of the home
circumstances of the offender. Regardless of the duration of the order as a whole, such
an order can only last for up to 12 months.

G.3.2.3 Performance of unpaid work38 .


This requirement can impose between 40 and 240 hours unpaid work on the offender.
The option is only available if the offender is 16 or over, arrangements exist in the
appropriate area for the performance of unpaid work, and provision can be made for the
offender within these arrangements.

G.3.2.4 Compensation39
A requirement requiring the payment of compensation to the victim of the crime can be
incorporated into the order. Payment of the compensation must be completed within the
first eighteen months of the order or, if this date is earlier, two months before the end of
the order. If the offenders circumstances change after the making of this requirement, an
application can be made by the offender or supervising officer for variation of the terms
of the requirement, e.g. reduction of the amount of the instalments.

G.3.2.5 Remote Monitoring


Restrictions on movement of the probationer for up to 12 months, supervised by remote
monitoring can be imposed.

G.3.3 Variation or Discharge of the Order40


An application for variation or discharge of the order can be made by the supervising
officer. This may be needed, for example, because the offender is moving to a new area
or it might be thought to be appropriate, in light of progress made by the offender, to
discharge the order early. There are three restrictions on the power to vary:
37
Ibid., sections 229(2) and (3).
38
Ibid., sections 229(4) and(5).
39
Ibid., sections 229(6) and(7).
40
Ibid., Schedule 6.

14
(a) the order cannot be reduced in length or extended to last more than three years;
(b) a requirement for residence or treatment for a mental condition cannot be
extended to require residence or treatment for more than 12 months;
(c) addition of a requirement to submit to treatment for a mental condition can only
be made within three months of the date of the original order.

G.3.4 Breach of requirements of probation order41


Where the requirements of the probation order are breached by the probationer, the
supervising officer will have to decide what action should be taken. If a decision is
made to initiate breach proceedings the matter is reported to the appropriate court, of if
there is no appropriate court, the court making the original order. It is then for the court to
pursue the matter, although the supervising officer will be involved in giving evidence
against the probationer if he/she denies the breach. If breach is proved the court has the
following powers:
(a) do nothing and continue the order in force;
(b) to impose a fine of up to £1,000 (level 3) and continue the order in force, this
option is not available in cases of breach of a requirement to pay compensation;
(c) sentence the offender for the original offence (or if the order was made by a
summary court, convict and sentence him/her);
(d) vary the requirements of the order, the order cannot be extended to last more than
three years from the date of original imposition;
(e) make a community service order to run in tandem with the continued probation
order, this course can only be taken if the requirements for making a CSO (see
below) are fulfilled.

G.3.5 Breach by commission of a further offence42


Where an offence is committed after imposition of the order the court has the option of
either continuing the order in force or of imposing a sentence (or convicting and
sentencing) for the original offence.

G.3.6 Probation Review Hearings


These were introduced in February 2006. A report on progress must be prepared by the
supervisor for the hearing, and the probationer must attend the hearing. At a hearing the
order can be amended and a further review hearing fixed.

G.4 Community Service43


Community Service involves the offender performing, usually within a 12 month period,
a number of hours of unpaid work. The number of hours is between 80 and 240 (300 if
convicted on indictment). Before making the order the court must obtain a social enquiry
report and must be informed that provision can be made for the offender on a community
service scheme.

41
Ibid., section 232.
42
Ibid., section 233.
43
See Moore and Whyte, Chapter 7.

15
7.5.1 Preconditions for making the order44
The order of community service is explicitly viewed in the legislation as an alternative to
prison, in other words the offender should only be sentenced to community service where
the alternative is a custodial sentence. Before an order can be made the court must
explain the purpose and effect of the order, the obligations of the offender, the
consequences of failure to comply with the requirements and the courts power to review
the order. An order can then only be made f the offender consents too it.

7.5.2 Obligations of the offender45


The obligations of the offender stated expressly in the legislation are to notify the person
supervising the community service of any change in address or hours of employment and
to carry out the number of hours specified in the order at the times specified by the
supervisor. In addition the offender has to perform the work satisfactorily (as this can be
grounds for breach proceedings) and comply with the instructions of the supervisor. In
turn, the supervisor should avoid, as far as practicable, instructions which conflict with
the offender's religious beliefs or attendance at an educational establishment.

7.5.3 Amendment or Revocation46


The powers of the court are:
a. to extend the order beyond 12 months;
b. to vary the number of hours (as long as these do not exceed 240);
c. to revoke the order; and
d. to revoke the order and sentence for the original offence.
Where the offender moves, the order can only be transferred if there are suitable
arrangements for community service performance in the new area.

7.5.4 Breach47
Where the offender is in breach of the CSO there is, as in the case of probation orders, a
discretion left to the supervisor as to when to initiate breach proceedings. The breach
proceedings are initiated by the supervisor. If the court finds breach proved it has the
following options:
(a) impose a fine up to £1,000 (level 3) and continue the order;
(b) revoke the order and sentence for the original offence;
(c) vary the number of hours in the order, subject to the statutory maximum.
Commission of an offence whilst subject to a CSO is not in itself a breach of the
order. Instead if the offence has been committed whilst on premises for the purposes of
completing the CSO this will be treated as an aggravating factor in sentencing for the
offence.

7.6 Caution
Caution involves a requirement to deposit a sum of money with the court as security
against good behaviour for a period of up to 12 months. Caution can now only be
44
Ibid., section 238.
45
Ibid., section 239.
46
Ibid., section 240.
47
Ibid., sections 239(4) and(5).

16
ordered following conviction on indictment. A requirement to find caution can be
imposed in addition to a fine or sentence of imprisonment.48

7.7 Compensation Order49


A Compensation Order is designed to provide compensation to the victim of an offence
for the loss caused to him/her. It can be imposed in addition to or in place of any other
penalty, except that no order can be made in conjunction with a probation order or an
absolute discharge, and no order can be made when sentence is deferred. In assessing the
amount of compensation to order the court must consider not only the victim's loss but
also the offender's means, and in particular if it considers that it would be appropriate to
impose a fine and a compensation order but the offender only has the means for the latter,
a compensation order alone should be imposed. The sheriff court can award
compensation up to £5,000, the JP Court up to £2,500 (level 4) and solemn courts an
unlimited amount.
Payments made by an offender who is both fined and ordered to pay
compensation will be applied first to the compensation order. The provisions as to
enforcement and application for time to pay etc. applying to fines are applied to
Compensation Orders. In addition the offender can seek a review of the order if the
victim's loss turns out to be less than that on which the award of the compensation order
was calculated.
The award of a compensation order does not prevent the victim raising a civil
action for damages against the offender. However, any award in the civil case will be
reduced by the amount paid under the compensation order.

7.8 Absolute Discharge50


An absolute discharge is appropriate if the court is:
of the opinion, having regard to the circumstances, including the nature of
the offence and the character of the offender, that it is inexpedient to
inflict punishment and that a probation order is not appropriate.

7.9 Disqualification
In October 1997, provision was made for courts to disqualify an offender from driving as
well as or instead of imposing any other penalty.51 This power is currently only available
in two pilot schemes at Perth and Paisley Sheriff Courts.

7.10 Restriction of Liberty Orders


These can be imposed on anyone convicted of an offence punishable by imprisonment
and require them either to be at a particular place at a particular time or not to be at a
particular place at a particular time. The legislation has recently been amended to make it
clear that this type of order is to be imposed as an alternative to a custodial sentence.52

48
Ibid., section 227.
49
Ibid., sections 249-253.
50
Ibid., sections 246(2) and (3).
51
Ibid., s248A.
52
Ibid. s. 245A, as amended by the Criminal Justice (Scotland) act 2003, s. 50.

17
Orders cannot impose requirements covering more than 12 hours per day and can
last for up to 12 months. Remote monitoring of compliance is permitted. There are
provisions allowing application to court for variation or amendment of the order. On
breach of the order the court has the power to impose a fine up to level 3, amend the
order or revoke the order and sentence for the original offence. It is clear from the
background to this provision that there will be little or no social work involvement unless
the offender is, concurrently with the order, subject to a probation order. The exception
to this is where the Order is made in respect of someone under the age of 16. In this case
the order cannot be made unless the court is satisfied as to the support and rehabilitation
services the offender will receive from the local authority for the duration of the order.

7.11 Drug Treatment and Testing Orders53


The order can be made where the following conditions are met:
(3) A court shall not make a drug treatment and testing order unless it-

(a) has been notified by the Secretary of State that arrangements for implementing such
orders are available in the area of the local authority proposed to be specified in the
order under section 234C(6) of this Act and the notice has not been withdrawn;
(b) has obtained a report by, and if necessary heard evidence from, an officer of the
local authority in whose area the offender is resident about the offender and his
circumstances; and
(c) is satisfied that-
(i) the offender is dependent on, or has a propensity to misuse, drugs;
(ii) his dependency or propensity is such as requires and is susceptible to
treatment; and
(iii) he is a suitable person to be subject to such an order.
(4) For the purpose of determining for the purposes of subsection (3)(c) above whether
the offender has any drug in his body, the court may by order require him to provide
samples of such description as it may specify.

(5) A drug treatment and testing order or an order under subsection (4) above shall not
be made unless the offender expresses his willingness to comply with its requirements.
The order requires the offender to submit to treatment for their drug addiction and
to testing for a period between 6 months and three years. The court will appoint both a
treatment provider and a supervising officer, the latter being a local authority social
worker. The role of the supervisor is to keep track of the offender, provide court reports
for the periodic reviews of the order, to liaise with the treatment provider and to take
decisions on breaching or applying for revocation of the order. The offender must be
tested at periods set by the court (though this cannot be more than once every month).
The order must also be reviewed periodically by the court and, at least initially, the
attendance of the offender is necessary. If the court is satisfied that satisfactory progress
is being made then the offender's attendance can be dispensed with. Reviews have the
power to vary or revoke the order. The order can be revoked on application of the
supervisor or of the offender, and can be used in combination with a probation order
and/or a restriction of liberty order. In addition movements of the subject of the order
53
Criminal Procedure (Scotland) Act 1995, ss234A-234K.

18
can be restricted for up to 12 months and the offender can be tagged to monitor this.
Drugs courts also have the power to impose a short custodial sentence (up to 28 days) or
period of community service (up to 40 hours) for failure to comply with the requirements
of a DTTO. In both cases the DTTO can be kept in force.

7.12 Non-Harassment Order


'Where a person is convicted of an offence involving harassment of a person ("the
victim"), the prosecutor may apply to the court to make a non-harassment order against
the offender requiring him to refrain from such conduct in relation to the victim as may
be specified in the order for such period (which includes an indeterminate period) as may
be so specified, in addition to any other disposal which may be made in relation to the
offence.'54
Before a non-harassment order can be made, it must follow on from a conviction
for an offence or offences involving harassment, this in turn requires a course of conduct,
that is, conduct on at least two occasions. In order to set up this course of conduct it is
not permissible to look back over previous convictions, McGlennan v McKinnon 1998
SCCR 285. The consequence of this decision appears to be that in order for a non-
harassment order to be obtained the prosecutor will have to draw the charge(s) carefully
to make it clear that the offences were directed against the person being harassed and that
there were at least two incidents. Where a non-harassment order is not available the
victim may have a remedy under the civil provisions of the 1997 Act or by way of
interdict at common law.

7.13 Community Reparation Orders


Introduced by the Antisocial Behaviour etc. (Scotland) Act 2004 these allow a court to
order between 10 and 100 hours of community reparation work on conviction of an
offence involving antisocial behaviour. These were only ever piloted and never made
widely available, they have now been abolished with the introduction of the Community
Payback Order.

7.14 Antisocial Behaviour Order


Criminal courts have the power to make an antisocial behaviour order either instead of or
in addition to any other sentence imposed on conviction. Before the power can be
exercised the offence must have involved the offender engaging in antisocial behaviour
and the order must be necessary to protect others from antisocial behaviour. The
standard of proof to be satisfied in establishing the necessity for the order is the balance
of probabilities. Once an order has been made it can be varied or discharged on the
application of the offender made to the court which made the order. The only restriction
on the powers of variation is that the order cannot be extended, though in the case of
indefinite orders this will not be an issue. The case for variation or discharge has to be
established on the balance of probabilities. Notification of the order has to be made not
only to the offender, but also to the authority which the court considers most relevant.
This need not be the authority of the offender’s residence, but may be the authority for
the area where it is likely that future antisocial behaviour will take place.

54
Criminal Procedure (Scotland) Act 1995, s234A.

19
20
H CUSTODIAL SENTENCES

The place of detention following imposition of a custodial sentence depends on the age of
the offender. Those over 21 serve their time in prison, those between 16 and 21 are
detained in a young offenders institution. The length of sentence that can be imposed is,
subject to one exception, at the discretion of the court within the bounds of its sentencing
powers or the penalties set out for a statutory offence. The exception is murder. Those
over 21 must be sentenced to life imprisonment on conviction of murder, those under 21
must be sentenced to detention without limit of time. Life sentences are, of course,
available as optional sentences for crimes other than murder. When a court imposes a
custodial sentence on someone under 21 or a summary court imprisons someone over 21
for the first time it must state its opinion that no other means of dealing with the offender
is appropriate.

H.1 Release from Custody

H.1.1 Short-term prisoners


Short term prisoners are those imprisoned/detained for less than 4 years. They are, in
general, released unconditionally after serving half of their sentence. This release may be
subject to a supervised release order, but even if it is not the released prisoner may, on
commission of a further offence, be returned to serve the outstanding portion of his/her
sentence. Special provisions apply in the case of prisoners who are sentenced to 6
months or more and who will be subject to the notification requirements of the Sexual
Offences Act 2003. Such prisoners will not be released unconditionally, but will be
released on licence after serving half of their sentence. The licence will last until the end
of the sentence.

H.1.2 Long-term prisoners


These are prisoners serving a sentence of 4 years or more imposed after 1 October 1993.
They can be released on a parole licence after serving half of their sentence and are
entitled to be released after service of ⅔ of the sentence. Prisoners released in this second
way will be subject a licence (a Non-Parole Licence) until the date on which their
sentence would have been served in full.

H.1.3 Home Detention Curfew


This system allows a prisoner to be released home early on a number of conditions, 55 the
most important of which is that they are subject to a curfew for at least 9 hours per day.56
This curfew condition will be remotely monitored.

In order to qualify for release on Home Detention Curfew the prisoner must either be a
short-term prisoner serving three months or more (and who has served at least four weeks
of his/her sentence) or a long term prisoner whom the Parole Board has recommended be
released on licence after serving half of his/her sentence. In both cases the prisoner must
55
Mainly set out in the Home Detention Curfew Licence (Prescribed Standard Conditions)(Scotland)(No
2) Order 2008, SSI 2008/125, different conditions apply to the different categories of prisoner released on
HDC.
56
Prisoners and Criminal Proceedings (Scotland) Act 1993, s 12AB.

21
have served at least one quarter of their sentence before they can be released. In addition,
release cannot take place more than 166 days57 before the day which is 14 days before the
half way point of the sentence, meaning that the effective maximum period on Home
Detention Curfew is 180 days, with a minimum period of 14 days (as release cannot be in
the 14 days before the half way stage of the sentence is reached).

Before release on Home Detention Curfew a risk assessment will be carried out, which
will involve the social work department. The final decision on release will be taken by a
Prison Governor on the basis of this risk assessment and taking account of the following
factors:
(a) protecting the public at large;
(b) preventing re-offending by the prisoner; and
(c) securing the successful re-integration of the prisoner into the community.

H.1.4 Life prisoners


All life prisoners must have a period of time specified as the ‘punishment period’
(transitional arrangements for current life prisoners who were not designated are set out
in the Schedule to the Convention Rights (Compliance)(Scotland) Act 2001). Only after
serving this period will the prisoner be eligible to be considered for release on licence.
Where the Parole Board recommend release the prisoner must be released.

H.1.5 Compassionate Release


The Secretary of State can release any prisoner on compassionate grounds. The prisoner
will be released on licence.

H.1.6 Release on Licence


All prisoners released on parole, and all long-term and life prisoners are released on
licence. The licence will contain a variety of conditions, some of which are standard and
appear in every licence. Being on licence involves supervision by a social worker. The
terms of the licence may be varied on application to the Parole and Life Sentences
Division of the Scottish Government’s Criminal Justice Directorate. Life prisoners
remain on licence for life (though eventually all of the conditions attaching to the licence
may have been cancelled), other prisoners are on licence until the date on which their
determinate sentence would have been served in full, though the licence can be cancelled
early. If the released prisoner breaches the licence conditions the licence can be revoked
and he/she is returned to prison/detention.

H.1.7 Commission of a further offence by released prisoner


Both long term prisoners released on licence and short term prisoners can be returned to
prison if they commit an offence before their term of imprisonment has expired. The
maximum period of return is the period between commission of the offence and the date
on which the sentence would have been served in full. For example a prisoner sentenced
to two years in September 2004 and released in September 2005 who commits an offence
in January 2006 could be returned to prison for up to 8 months.

57
Home Detention Curfew (Amendment of Specified Days)(Scotland) Order 2008, SSI 2008/126.

22
H.1.8 Supervised release orders
These are designed to secure supervision of short term prisoners after release. A
supervised release order can only be made where it is considered by the sentencing court
to be necessary to protect the public from serious harm.

H.2 Extended sentences58


Extended sentences were introduced by the Crime and Disorder Act 1998 introducing
new provisions into the Criminal Procedure (Scotland ) Act 1995. Extended sentences
can be passed if a number of conditions are fulfilled:
(i) the offender has been convicted of a sexual offence and the court intends
to impose a custodial sentence; OR
(ii) the offender has been convicted of a crime of violence and the court
intends to impose a sentence of more than 4 years imprisonment; AND
(iii) the court is of the opinion, after considering a report from a local authority
officer, that an extended sentence is necessary to protect the public from serious
harm.

An extended sentence is designed to provide for an extended period of supervision after


release, and consists of two components. The first of these is the custodial term, that is a
period of imprisonment or detention. The length of this will determine the date of release
from this part of the sentence. Once the prisoner is released the further period of
supervision (the 'extension period') begins. The beginning of this extension period
depends on whether the offender was a short term or long term prisoner in terms of their
custodial term. For short term prisoners the extension period begins on release, though it
should be noted that they remain liable to be returned to prison until the date on which
the whole of the original custody plus the extension period expires.

The maximum extension period for a crime of violence is 10 years and for a sexual
offence 10 years. The maximum extension period in a sheriff court is three years, and
only applies to sexual offences.

H.3. Standard Licence Conditions


The standard licence conditions are that the released prisoner:
 must report forthwith to the officer in charge of a named social worke office;
 must be under the supervision of an officer assigned by the local authority;
 must comply with such requirements as that officer may specify for the purposes
of the supervision;
 must keep in touch with the supervising officer in accordance with that officer's
instructions;
 must inform the supervising officer of any change in residence or employment;
 must be of good behaviour and shall keep the peace;
 must not travel outside Great Britain without the prior permission of the
supervising officer.

58
Criminal Procedure (Scotland) Act 1995, s210A.

23
There is now provision for a condition requiring remote monitoring in order to secure
compliance with other licence conditions.59

H.4 Orders for Lifelong Restriction


These are essentially indeterminate sentences. They can be made only if specified risk
criteria are considered to be met after a risk assessment report has been produced in
respect of the offender. The risk critetria are that the nature of, or the circumstances of
the commission of, the offence of which the convicted person has been found guilty
either in themselves or as part of a pattern of behaviour are such as to demonstrate that
there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or
psychological well-being, of members of the public at large.60 Once such an order has
been made a risk management plan must be made up for the offender. A Risk
Management Authority61 was set up to provide accreditation for those who have to
produce the risk assessment reports and to participate in the formulation of the plans.
This type of order can only be made where a sexual offence, a violent offence or an
offence endangering life has been committed or where the offender has committed an
offence the nature of which, or circumstances of the commission of which, are such that
it appears to the court that the person has a propensity to commit one of these offences.62

7.15 Patterns of Use of Sentencing Options


The pattern of use of the various sentencing options can be seen from the table below:63

Main Penalty 1985 1991 2001 2002 2003 2008/9


Prison 5 5 10 11 10 11
YOI 3 2 4 3 3 2
CSO 1 3 4 4 4 5
Probation 2 3 7 7 7 8
Fine 78 76 63 62 64 59
Admonition/ 9 10 10 10 10 13
Caution

The most obvious feature of this table is that the percentage of offenders sentenced to
custody has increased from 8% in 1985 to 12% in 2007/8, despite an increase in the
combined use of probation and community service from 3% in 1985 to 11% in 2007/8.

59
Criminal Justice (Scotland) Act 2003, s. 40.
60
Criminal Procedure (Scotland) act 1995, s. 210E.
61
http://www.rmascotland.gov.uk/home.aspx.
62
Ibid. s210 B.
63
Taken from Criminal Proceedings in Scottish Courts 2008/9.

24
8 Victims

8.1 Victim statements64


These give victims of certain crimes the right to submit a statement to a court setting out
the impact of the crime on them. The crimes involved include crimes of violence, sexual
offences, crimes of indecency, housebreaking and racially motivated crimes. 65 The court
will have to take the statement into account in sentencing. The statement must be
disclosed to the accused and the victim may be questioned about it. The opportunity to
make such statements is available in all solemn courts.

8.2 Victim notification66


Victims of a large number of crimes67 in cases where the offender has been sentence to a
custodial sentence of 18 months or more are entitled to indicate that they wish to be
notified of certain events involving the person found guilty of the offence. The victim is
to be informed, for example, when the prisoner is released, dies, is transferred outside
Scotland, is eligible for temporary release, is being released on Home Detention Curfew
or has escaped. In addition the victim must be given the opportunity to make
representations before a decision is taken to release the offender on licence. If release is
recommended the victim must be notified of this.

9 COSTS OF DISPOSALS
The costs of various court disposals in the financial year 2004-2005 are estimated to be as
follows (2003-2004 figures in brackets):
• cost of 6 months in prison: £16, 342 (£16,622)
• average cost of a probation order: £1,157 (£1,173)
• average cost of a community service order: £1,432 (£1,499)68

10 CRIMES AND OFFENCES


10.1 Assault An assault involves an attack on someone which either causes physical
injury to the victim or causes him/her to fear physical injury. This means that as well as
the stereotypical assault which causes actual injury, it is just as much assault if the
offender acts in such a way as to make the victim afraid that he or she is going to suffer
injury. Examples of this latter sort of assault would be cases where someone is
threatened with a knife or other weapon or a case where a fist was shaken menacingly in
the face of the victim.

10.2 Breach of the Peace This covers a variety of circumstances in which someone
behaves in a way that causes or is likely to arouse annoyance, upset, embarrassment,
64
See http://www.victimsofcrimeinscotland.org.uk/the-justice-process/court-
process/victim-statement-scheme/
65
Victim Statements (Prescribed Offences) (No. 2) (Scotland) Order 2009, SSI
2009/71
66
See http://www.victimsofcrimeinscotland.org.uk/the-justice-process/after-the-
verdict/victim-notification-scheme/.
67
Victim Notification (Prescribed Offences) (Scotland) Order 2004, SSI 2004/411
68
From, Costs, Sentencing Profiles and the Scottish Criminal Justice System 2004/2005.

25
outrage or some similar emotion in members of the public, even if there are no members
of the public available to give evidence of being annoyed etc. It has recently been
redefined, slightly narrowing its scope, as requiring:
conduct which does present as genuinely alarming and disturbing, in its
context, to any reasonable person.69

10.3 Fraud Fraud simply involves getting someone to take some form of action on the
basis of a false pretence. The important elements are that some false statement is made,
that the recipient believes it to be true, and that he or she, relying on the statement, then
undertakes some action which they would not have undertaken. In most cases the object
of the fraud will be to acquire goods or money. An example of the latter is use of a stolen
cheque book.

10.4 Malicious Mischief This involves causing damage to property either intentionally
or recklessly. It is closely linked to the statutory crime of vandalism

10.5 Murder and Culpable Homicide Murder involves a killing of another human
being where either the assailant intended to murder the victim or he/she attacked the
victim violently without caring whether the victim was killed. Culpable homicide
involves killing which does not amount to murder.

10.6 Rape In Scotland, rape involves intercourse with a woman by force or threat of
force and against her will.

10.7 Reset This involves being in possession of goods which have been dishonestly
acquired, knowing that they are dishonestly acquired and with the intention of keeping
the goods from their true owner. In this context dishonest acquisition covers theft, fraud
and embezzlement: it is not necessary for someone to be guilty of reset that they
acquired the goods from their owner, all that is necessary is knowledge that they have
been dishonestly acquired. Indeed, it is not necessary for the resetter to know the
identity of the owner of the goods.

10.8 Robbery This describes a theft achieved by force or violence, the force or violence
need not amount to assault, but it is common to find this charged as assault and robbery
where the force does amount to assault.

10.9 Theft This simply involves the appropriation of property belonging to


another with the intention of depriving them of it permanently or of depriving
them of it temporarily for a nefarious purpose. There are two common
aggravations of theft. Theft by housebreaking involves breaking into premises
which are closed against entry, normally forcible entry is involved, but
housebreaking can be committed with a stolen key or a skeleton key. Theft by
opening a lockfast place describes breaking into anything which is locked other
than premises, for example, it includes breaking into a car and breaking into a
locked room in a house which has been entered by housebreaking. Other possible
69
Smith v Donnelly 2001 SCCR 800.

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charges are attempts at theft in these ways and housebreaking or opening a
lockfast place with intent to steal where nothing is in fact stolen.

11 MANAGEMENT OF OFFENDERS

11.1 Community Justice Authorities


The Management of Offenders (Scotland) Act 2005 introduced the community justice
authority, to co-ordinate the provision of services to offenders across a number of local
authority areas.
There are eight authorities covering Scotland, including a large authority covering
the North of Scotland and the three Islands authorities. Each will have, at least, a chief
officer and a small number of administrative staff. Their functions are both strategic, in
terms of preparing a plan for services, and operational, they have the power to require
action by individual authorities and may also take over directly the provision of certain
services, both on behalf of local authorities and on behalf of the Scottish Ministers.
More specifically, their powers and duties are:
(a) Preparation of an area plan ‘for reducing re-offending’ by those to whom or in
respect of whom criminal justice services are being provided. Local authorities are
then under an obligation to carry out their functions in accordance with this plan.
(b) Monitoring the actions of the Scottish Ministers and local authorities in
implementation of the plan.
(c) The power to give directions to a local authority where it considers that the
performance of the authority in implementing the plan or in co-operating with others
to implement the plan. Unlike the provisions noted below for the giving of
directions by the Scottish Ministers to the community justice authority, there is no
right of appeal by local authorities against directions made by the community justice
authority. Where the same failings are observed on the part of the Scottish Ministers,
recommendations can be made to them.
(d) Promotion of good practice.
(e) Allocation of certain grants and the ability to impose conditions on the use of
these.
(f) To make arrangements for information sharing.
(g) To provide an annual report.
(h) To undertake any functions of a local authority or the Scottish Ministers which
have been transferred it.
The authority also has powers of enforcement against individual local
authorities. In addition to these authorities there is also a specific duty on local
authorities to cooperate, included within this is an obligation to share information.

11.2 Risk Management,


The 2005 Act imposes an obligation on local authorities and other bodies (the police,
Scottish Ministers and health boards) to establish and implement arrangements for
assessing the risk posed by certain groups of offenders and then for managing that risk.
This replaces current non-statutory guidance, for example relating to sex offenders
subject to notification requirements under the Sexual Offences Act 2003.

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Further References
G Moore & B Whyte, Moore and Wood's Social Work and Criminal Law in
Scotland, (3rd ed)
T Guthrie, Social Work Law in Scotland (3rd ed), Chapters 10
Gibbons-Wood, L (ed), Social Work Law in Scotland (2nd ed), Chapter 8.
Sentencing Information for Scotland: www.sentencinginformationscotland.com

1 CHILDREN IN THE CRIMINAL JUSTICE PROCESS

1.1 Prosecution of children


With only limited exceptions children between the ages of 8 (the age of criminal
responsibility in Scotland) and 16 who are alleged to have committed criminal offences
will be dealt with through the children’s hearing system. Children who commit very
serious crimes will, however, be prosecuted in the criminal courts. Children who commit
lesser crimes may also be prosecuted in the sheriff or high court where they are accused
of committing a crime together with an adult, or where the court has powers, such as
disqualification from driving, which a hearing does not have and which might be
appropriate in a particular case. Where a child is to be prosecuted the local authority
must be notified and must produce a report on the child. If there is a finding of guilt a
report is required before the court decides on the appropriate disposal.

1.2 Use of custody


Custody may be used by the court either before trial or after a finding of guilt. Before
trial or sentence a child under 16 will generally be remanded to a local authority and the
court has the power to require detention in secure accommodation. If the child is
between 14 and 16 and has been certified as unruly or depraved he/she may be sent to a
remand centre if there is a place available. For children of 16 or over the options are a
remand centre, young offenders institution or, where the child is still subject to a
supervision requirement from a hearing, committal to a local authority.
After a finding of guilt the sheriff summary court can impose a sentence of up to
one year in accommodation provided by a local authority. Where this happens decisions
about release are taken by the local authority. Children sentenced in this way are looked
after children. Where a sentence is passed by a solemn court a child under 16 is to be
detained in a place determined by the Scottish Ministers. Initially this is likely to be local
authority accommodation with transfer then into a young offenders institution and then to
adult prison. The rules for release of children sentenced to a determinate sentence are
similar to those applying to adult determinate sentence prisoners. Where a child is
sentenced to detention at her majesty’s pleasure release provisions are similar to those for
life sentence prisoners.

1.3 Involvement of the hearings system


Where a person under the age of 17½ and not subject to a supervision requirement is
found or pleads guilty the court may refer his/her case to the reporter for advice. On
receipt of this advice the court can then either dispose of the case itself or refer it back to

28
the reporter for disposal. Where a child is subject to a supervision requirement and is
appearing in the sheriff court his/her case must be referred to the reporter for advice if
under 16. The same requirement does not apply to the High Court, though this court has
the power to make such a referral. Referral to the reporter will not be appropriate where
the sentence for the crime the child has been found guilty of is fixed by law, this would
include murder and certain penalties for road traffic offences.

2 SEX OFFENDERS NOTIFICATION


The Sex Offenders Act 1997 requires certain sex offenders to register with their local
police force. There are fairly tight time limits for this registration. The duration of the
requirement for registration will depend on the sentence imposed by the court for the
offence. Once the offender has been registered, guidance indicates that he/she should be
the subject of a risk assessment on the basis of which it may be necessary to develop a
plan for managing that risk. The guidance indicates that such a risk management plan
will be appropriate even if the offender is not subject to other forms of supervision, e.g.
probation or a parole or non parole licence. Under statutory provisions still to be brought
into force local authorities and the police will have a statutory obligation to set up
arrangements for the assessment and management of the risk posed by such offenders.

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3 REGULATORY REMEDIES

3.2 Sexual Offences Prevention Orders


The chief constable of a police force can apply to the sheriff court for this type of order.
The order has the effect of restricting the activities of convicted sex offenders. An
application can be made when the following conditions are satisfied:
(i) the person against whom the order is sought is a convicted sex offender;
(ii) he/she has acted since their conviction in such a way as to give reasonable cause to
believe that the order is necessary to protect the public from serious harm.
The proceedings for a sexual offences prevention order are civil proceedings and
therefore the civil standard of proof - on the balance of probabilities – applies. An
interim order can be made pending the making of a full order. The order can contain any
prohibitions necessary to protect the public from serious harm, it may be for a fixed
period of 5 years or more or may last indefinitely. The sheriff is to grant the order where
he/she is satisfied that the person's behaviour since the conviction or finding makes it
necessary to make such an order, for the purposes of protecting the public or any
particular members of the public from serious sexual harm from the person.
Breach of the order is an offence and on conviction the offender is liable to
imprisonment for up to 6 months or an unlimited fine if tried in a summary court or up to
5 years imprisonment if tried in a solemn court. Probation is not available as a disposal.
A SOPO can also be made by a criminal court on conviction.

3.3 Restriction of Sexual Harm Orders


A chief constable is able to apply for such an order against someone aged 18 or over
where that person has done one of the following acts on at least two occasions:
(i) engaged in sexual activity involving a child or in the presence of a child;
(ii) caused or incited a child to watch a person engaging in sexual activity or to look at a
moving or still image that is sexual;
(iii) given a child anything that relates to sexual activity or contains a reference to such
activity;
(iv) communicated with a child, where any part of the communication is sexual.
The chief constable must also be satisfied that as a result of thids he/she has
reasonable cause to believe that making the order is necessary.
The sheriff is to make the order if satisfied that the person has done one of these
acts on at least two occasions and it is necessary to make the order either to protect a
particular child or children generally from harm from the person against whom the order
is sought. Breach of an RSHO will be a criminal offence. The order will contain a list of
prohibitions limiting the actions of the person subject to it.

After its consideration of the Bill at stage 1 the Justice 1 Committee concluded as
follows:

171. The Committee remains concerned about the proposed introduction of risk
of sexual harm orders. It has been difficult to obtain from the Scottish Executive

30
or enforcement agencies, detailed examples of cases in which it is envisaged that
the orders would be used.

172. Given the potentially criminal nature of the offences which could lead to
such an order being sought against an individual, the Committee also questions
whether a civil standard of proof is appropriate for determining the imposition of
an RSHO. Committee has also considered the interaction between civil
proceedings for RSHOs and potential criminal proceedings for related offences
and has concluded that the primacy of criminal proceedings should be made
explicit on the face of the Bill.

173. The proposed introduction of risk of sexual harm orders represents a


significant shift in public policy from attempting to deal with offending
behaviour of a sexual nature exclusively through the criminal justice system, to
an increase in the use of civil procedures. This has been driven, it appears, by
difficulties encountered in relation to the standard of evidence and proof
required in order to secure a criminal conviction for certain sexual offences
against children. One option would be to water down the rules of evidence
required in criminal proceedings or, alternatively, to remove the question
entirely from the context of criminal procedure and deal with the issue via a civil
route. One major concern about the selection of the latter option is that the
traditionally accepted protections which an accused person derives from the
criminal justice system, including enhanced protection from the ECHR, is not
applicable to civil proceedings. A lower standard of evidence (including hearsay
evidence) and a lower standard of proof (on the balance of probabilities) would,
therefore, make it easier to impose a civil RSHO on an individual than securing
a conviction for a criminal offence.

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