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Criminal Justice
A ALTERNATIVES TO PROSECUTION
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.
1
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.
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.
2
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.
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,
3
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
4
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.
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.
6
Criminal Procedure (Scotland) Act 1995, ss 23B-23D.
5
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.
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
7
G Moore & B Whyte, Moore and Wood's Social Work and Criminal Law in Scotland, (3rd ed), Chapters
4 & 5.
6
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.
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.
7
◊ 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).
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.
8
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.
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).
9
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).
10
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.
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).
11
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.
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.
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.3.2.4 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.
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.
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.
7.5.4 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
7.9 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.
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.
(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.
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.
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.
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.
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.
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
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
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
10.2 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.
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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
27
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
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.
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3 REGULATORY REMEDIES
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
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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.
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