Fourth Session 2011

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SOCIAL WORK LAW & POLICY 2011

Criminal Justice

A ALTERNATIVES TO PROSECUTION

A.1 Procurator Fiscal WarningsThese are warnings given by the Procurator Fiscal. They can only be given when there isenough evidence to prosecute the recipient and where the offence is not so trivial that itshould simply be ignored.

A.2 Fiscal FinesThese allow a fiscal to make an offer of a fixed penalty in any case triable in the JPCourt, subject to the exclusion in general of motoring offences. The limits on thejurisdiction 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, butthis 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 tobe (in descending frequency) breach of the peace, urinating to public annoyance, theft(usually shoplifting), trespass on railway lines, assaults, drunkenness at sports groundsand drunk and incapable 1. If the offer is accepted then no conviction will be recordedagainst the individual. If the offer is not accepted, the individual will be prosecuted inrespect of the offence, though acceptance of an offer within the previous two years willbe disclosed if the individual appears in court charged with an offence. 2 Once accepted, afiscal fine is similar to a fine imposed by a court as regards enforcement in the case of non- payment.

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

A.4 Setting aside of fixed penalties and compensation offerThe fiscal can set aside an offer of a fixed penalty or a compensation offer, even if theoffer has been accepted. This can be done where new information comes to the attentionof 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 CompensationOffer (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 finesexcept that the offer is made by the police.

A.6 DiversionDiversion schemes are in general operated by the social work department in cooperation

with the procurator fiscal. The availability of diversion schemes varies considerablyacross the country. The way in which they operate also varies, some involve a droppingof any possible prosecution once an individual agrees to become involved in a diversionscheme, others involve the suspension of prosecution, which will only be dropped onsatisfactory performance in or completion of the diversion scheme. There are no nationalstandards for diversion schemes, and there are a number of unresolved issues as to thetype of case which is suitable for diversion.

B PROCEDURE IN CRIMINAL COURTS

B.1 Summary ProcedureIn summary procedure, the case proceeds on the basis of a Complaint which sets out thecharge against the accused. The complaint will be accompanied by a list of previousconvictions (if there are any) and, in the case of a statutory offence, a notice of themaximum penalty for the offence. Appearance in court may be from custody or mayfollow 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 makea 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 withoutplea, for example to allow time for further investigation, and on some occasions thedefence 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 itmay 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 ProcedureRegardless of the court in which the trial will take place, the first stage in a solemn casewill be the appearance of the accused before a sheriff in chambers on petition. Thehearing is in private and proceeds on the basis of the petition which sets out, in apreliminary form, the charge against the accused. At this stage the accused may becommitted for trial or committed for further examination. Committal for trial, as thename 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 investigationsare carried out, after this period the accused will be brought back before the sheriff and atthat stage will be committed for trial. At the appearance before the sheriff the accused isnot 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 thejury 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 thetrial diet. The purpose of this first/preliminary diet is essentially the same as that of anintermediate diet in summary cases and the diet may also deal with any challenge to thevalidity of the charge. If the accused changes his/her mind and decides to plead guilty, anaccelerated diet to deal with sentencing will be arranged, this procedure is found insection 76 of the Criminal Procedure (Scotland) Act 1995.

Once the accused has been committed for trial an indictment will be prepared based onthe petition, the indictment is the final form of the charge against the accused, and thetrial proceeds on the basis of the indictment. If the accused to be tried in the sheriff courtis kept in custody his/her trial must start within 110 days of committal for trial, for theHigh Court the preliminary diet must be held within these times and the trial must startwithin 140 days. If these time limits are not kept to the accused will now be released onbail, previously the effect of failure to meet the limits was to bring the prosecution to anend. If the accused is at liberty, the trial must start within one year of appearance onpetition in the sheriff court and in the High Court the preliminary diet must be held within11 months.

B.3 Trial ProcedureThroughout 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 theform 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 alsodesert the case during a trial diet. The desertion may be either simpliciter , in which casethe prosecution cannot be revived, or pro loco et tempore , in which case the prosecutioncan 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 normallyprosecute in the sheriff solemn court, in the High Court prosecutions will normally beconducted by an Advocate-Depute.

At the trial, there are no opening statements by the two sides. Instead, the prosecutioncalls 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 thecomplaint/indictment on the grounds that there is no case to answer, i.e. the evidencebrought forward by the prosecution is insufficient to prove the charges. If that motion isunsuccessful 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 inthat order. After the end of these statements, procedure depends on whether it is asummary or a solemn trial. In summary cases the judge(s) will have to decide on guiltand 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 EvidenceEvidence must in general be relevant to the charges before the court and admissible. Themain example of inadmissible evidence is hearsay evidence, that is a report of what wassaid to the witness. For example, a witness might say Smith told me that Brown had justshot Green. All that statement is evidence of is the conversation between the witnessand Smith, it is not admissible evidence as to the shooting of Green by Brown. There arenow 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 begiving evidence for one of a number of listed reasons, e.g. death or refusal to giveevidence. Statements of opinion are not generally admissible, unless made by an expertwitness, whose primary function is give opinions based on his/her expertise.

B.5 VerdictsThe 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 betweennot guilty and guilty where they feel that the charges have not been proved butthey equally cannot say the accused is "not guilty" because of its moralconnotations.

B.6 Continuation and Deferred SentenceAfter conviction the case may be continued for the production of reports, andthere 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 usedeffectively as a sentencing option, often after a report has been obtained on theaccused. Sentence will be deferred (i.e. postponed) for a period, usually, of between three months and one year. Often, the accused has to do somethingduring this period. This may involve simply being of good behaviour, it mayinvolve making reparation to a victim, particularly in cases of theft or fraud, or it5 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 theaccused 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 withwitnesses. In addition, where the accused is charged with certain offences, andhas a previous conviction for the same type of offence as that with which they arenow charged, bail can only be granted if there are exceptional circumstancesjustifying this. The offences involved are violent or sexual offences or offencesinvolving drug trafficking. 6 An offender released on bail may be supervised bythe social work department.

There are certain statutory conditions which apply to all grants of bail by thecourts, and the court may add to these any other conditions, e.g. as to residence ata particular address, as are appropriate in the circumstances. The statutoryconditions 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 thecourt is an offence. Where condition (b) is breached by commission of a further offencewhile on bail this will be treated as an aggravating factor in sentencing for that offence.

D SENTENCING POWERS

D.1 JP CourtThe 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 asentence of imprisonment of up to 60 days. Where a stipendiary magistrate is sitting inthe JP Court he/she has the same powers as the sheriff summary court.

D.2 Sheriff Summary CourtThis court can impose a fine of up to 10,000 and a sentence of imprisonment up to 12months.

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 isnecessary 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, includingtreason, for which the death penalty is still available. In murder cases there is amandatory sentence of life imprisonment.

D.5 Statutory LimitsAs well as these general limits on sentencing powers, it is common for statutes creatingoffences to specify maximum sentences for these offences. These are generally lower than, but may be greater than, the limits given above.

D.6 Other OptionsAs 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 JusticeSystem were introduced to coincide with the introduction of dedicated funding for Criminal Justice Social Work Services by the then Scottish Office. As well as settinggeneral objectives, this document also set out detailed objectives and standards in thefollowing areas: social enquiry reports and court services, probation, throughcare, andcommunity service. In many instances it gave guidance on the exercise of statutorypowers, e.g. to breach probation orders. They were revised in 2004 and have now beenreplaced by the National Outcomes and Standards . These are less detailed that theNational Objectives, but are supplemented by more detailed Practice Guidance onCommunity Payback Orders and on Criminal Justice Social Work Reports .

F PROVISION OF REPORTS 7

F.1 The Obligation to Provide ReportsThe obligation of the social work department to provide reports to courts is contained insection 27(1)(a) of the Social Work (Scotland) Act 1968, which provides that the localauthority must provide a service for the 'making available to any court such socialbackground reports and other reports relating to person appearing before the court whichthe court may require for disposal of the case.' It should be clear from this that theprincipal 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), Chapters4 & 5.

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http://www.scotland.gov.uk/Topics/Justice/public-safety/offender-management/offender/community/16910/Standards/PracticeGuidancehttp://www.scotland.gov.uk/Topics/Justice/public-safety/offender-management/offender/community/16910/Standards/CPOhttp://www.scotland.gov.uk/Topics/Justice/public-safety/offender-management/offender/community/16910/Standards/GuidanceCJSWRhttp://www.scotland.gov.uk/Topics/Justice/public-safety/offender-management/offender/community/16910/Standards/PracticeGuidancehttp://www.scotland.gov.uk/Topics/Justice/public-safety/offender-management/offender/community/16910/Standards/CPOhttp://www.scotland.gov.uk/Topics/Justice/public-safety/offender-management/offender/community/16910/Standards/GuidanceCJSWR


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court. He or she has a responsibility to prepare a report which will assist the court in itsdecision, and to produce it on time.

Clearly, although the main obligation is to the court, this has to be balanced byobligations 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 SocialWork Report (CJSWR, this is the term for the new form of report introduced in February2011). 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, areto provide information on the character and circumstances of the offender andinformation as to arrangements for supervision if a probation order is made.

Before making a community service order 9. Here the report is to contain informationregarding the offender and his circumstances, and confirmation that arrangements canbe made for the offender to perform community service.

Before imposing a sentence of detention on an offender between 16 and 20.10

Thecourt is required to obtain (either from a local authority officer or otherwise)information about the offenders circumstances, and to take into account anyinformation before it concerning the offender's character and physical and mentalcondition.

Before passing a sentence of imprisonment on someone aged 21 or over who has notpreviously served a sentence of imprisonment. 11 The court is required to obtain (either from a local authority officer or otherwise) information about the offenderscircumstances, and to take into account any information before it concerning theoffender'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

Thosespecified in the 1968 Act are those under supervision because of a court order (e.g. onprobation); those on supervision following release from prison/detention; those subjectto a Community Service Order, supervised attendance order or supervision andtreatment order; 16 and 17 year olds subject to a supervision requirement imposedbecause of commission of an offence; and, people charged but not prosecuted andreferred to the local authority by the Procurator-Fiscal or Lord Advocate. The reportis 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 order 13

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).11Ibid., section 204(2).12Ibid., section 203.13Ibid., 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 asexual 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 mustprovide a report covering the home surroundings of the child as well as his/her schoolrecord, health and character. 20

There are other cases in which a report may be desirable. Nicholson 21 suggests that areport 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 adecision to defer sentence on the offender.

F.3 Presentation of Reports to CourtReports should be delivered to the clerk of court by midday on the day before the courthearing which will consider the report. In some cases distribution will be attended to bya social work department court liaison officer, this depends on local arrangements. Thepresence of the writer at the court hearing may be requested by the court. It should benoted that there should be no discussion between the report writer and the judge inchambers, all discussion should take place in open court in the presence of the offender. 22

F.4 Pre-Trial ReportsIn cases before the High Court, it was common for a pre-trial report to be requested. Thisdid 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 Inspectoraterecommended in 1996 that the practice be stopped except when the case was being dealtwith under section 76 of the 1995 Act 23, though it appears that this recommendation hasnot yet been put into effect.

F.5 Co-operation in the Production of a ReportAs we have already seen, if the offender is on bail one of the conditions of bail is thathe/she should make him/herself available for the purpose of preparation of a report. Inother 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 suggestthat 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 OrderA risk assessment order can be made by the High Court where it is to impose a sentencefor 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 theperson to be sentenced has a propensity to commit such an offence. The person to besentenced must also meet a risk criterion, that if they were at liberty they would seriouslyendanger the lives or physical or psychological wellbeing of members of the public atlarge. 24 The order requires the production of a risk assessment report by someoneaccredited by the Risk management Authority, and the report is on the risk which theperson to be sentenced would present to the safety of the public at large were they atliberty. 25 Following such a report the person to be sentenced may be made subject to anOrder for Lifelong Restriction (see 7.3.5 below)

G NON-CUSTODIAL SENTENCES

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

G.1 FinesFines, 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 alsobe made the subject of a fine supervision order. In deciding on the amount of fine to beimposed, 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 presentthese are:

Level 1 200Level 2 500Level 3 1,000

Level 4 2,500Level 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 instalmentthereof. 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 fineimpose a period of imprisonment be served in the event of default. This can only be doneif, for one of the following reasons, the court determines that it is expedient for theoffender to be imprisoned on default without the further inquiry which is normallynecessary:

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 finesupervision order. The purpose of the order is to advise and assist the offender in regardto payment of the fine. A fine supervision order can be used either at the time of theoriginal sentence, or at a later means enquiry court, and an offender under 21 cannot beimprisoned for default on a fine unless, where it is practicable, he/she has been subject toan order. Where a court is considering imposing imprisonment for default on a personsubject to an order, it must first take such steps as are reasonably practicable to obtain areport from the supervisor, and consider that report before deciding on what action totake. 29

The offender can apply to the court for more time to pay the fine and the court can onlyrefuse 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 theuse of a fine supervision order. If an individual is imprisoned, there are limits, related tothe amount of the fine, on the period of imprisonment which can be imposed. Incalculating the time to be served, account should be taken of the proportion of the finewhich has already been paid. 31 A further restriction imprisonment applies in that, at leastinitially someone who owes less that 500 must be made subject to a supervisedattendance officer rather than imprisonment/detention.

G.1.1 Supervised attendance orders 32.Anyone who owes an amount less that 500 cannot be sent to custody/detention but mustinstead 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 toimplement supervised attendance orders. Orders require the offender to attend at aspecified place for between 10 and 100 hours and, during that time, to comply with theinstructions of his/her supervising officer (who is appointed or assigned by the localauthority). The maximum number of hours depends on the amount of the fine which isoutstanding. Where this does not exceed level 1 it is 50 hours, where more is outstandingbut the outstanding amount is less than level 2 (the maximum outstanding amount for which supervised attendance orders are available) it is 100 hours. Supervised attendanceorders can only be used in respect of offenders over 16 in cases where the offender wouldotherwise 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 canbe 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 ismade, 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 theinstructions of the supervising officer which, so far as practicable, should not conflictwith 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 andimposition 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 atwelve month period.

Supervised attendance orders can also be used by summary courts in respect of 16 and 17year olds as an alternative to a fine rather than as an alternative to custody. If the courtconsiders that the appropriate sentence is a fine it must decide how much the fine shouldbe 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 beimposed in case of default. If the view is taken that the offender is not likely to paywithin 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 courtcan cite the offender to appear in court or can issue an arrest warrant. If the court issatisfied that the offender has failed to comply with the order without reasonable cause itmay revoke the order and impose the alternative of imprisonment dictated by theoutstanding amount of fine or it may vary the number of hours, provided the total doesnot exceed 60. The maximum custodial sentences which can be imposed are sixty days inthe JP Court and three months in the Sheriff Court. Only one witness is necessary toprovide evidence for breach proceedings.

The offender or supervisor may apply to court for the order to be extended beyond thenormal 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 anapplication if it appears to them that it would be in the interests of justice to do so havingregard to circumstances which have risen since the order was made

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

G.1.2 Fine Enforcement OfficersFine enforcement officers have the responsibility for collecting fines. Where time to paya fine is granted then a fine enforcement order must be made unless the court considersthat such an order would not be appropriate in the circumstances. (This requirement isadditional 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 thetime for payment on application by the offender. The FEO also has extensiveenforcement powers. The order authorises them to arrest the offenders income or other funds and they can ask the court to make an application for deduction from benefits beingpaid 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

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

G.2 AdmonitionThis 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 Probation 35

A probation order involves a degree of supervision and restriction of the offender in thecommunity lasting between six months and three years. As we have noted, beforemaking a probation order the court must have obtained a social enquiry report. Before theorder 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 therequirements 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 tocomply with the requirements in the order.

G.3.1 Standard RequirementsThere 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 requirementsIn addition to these requirements the court is given specific power to imposerequirements regarding treatment for a mental condition, residence, performance of unpaid work, caution and compensation. There is also a general power to impose anyrequirement which the court consider conducive to securing the good conduct of theoffender, 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 theprobation 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 issuffering from a mental illness which is treatable and which is not such as to justifydetention under the Mental Health (Care and Treatment)(Scotland) Act 2003. Thisconclusion is to be based on a medical report produced in addition to the social enquiryreport. 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.

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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 aparticular 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 achievedwithout 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 thesupervising officer to notify the court as to these changes, which are then regarded ashaving been incorporated into the order. Where agreement cannot be obtained to achange of treatment, or where the doctor/psychologist considers that treatment for aperiod longer than that contained in the order is necessary he/she will report to thesupervising officer and the supervising officer will then apply to court for variation of theorder (subject to the constraints on length of medical treatment noted below).

G.3.2.2 Residence 37

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, suchan order can only last for up to 12 months.

G.3.2.3 Performance of unpaid work 38 .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 theappropriate area for the performance of unpaid work, and provision can be made for theoffender within these arrangements.

G.3.2.4 Compensation 39 A requirement requiring the payment of compensation to the victim of the crime can beincorporated into the order. Payment of the compensation must be completed within thefirst 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, anapplication can be made by the offender or supervising officer for variation of the termsof 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 remotemonitoring can be imposed.

G.3.3 Variation or Discharge of the Order 40

An application for variation or discharge of the order can be made by the supervisingofficer. This may be needed, for example, because the offender is moving to a new areaor it might be thought to be appropriate, in light of progress made by the offender, todischarge 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.

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(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 order 41

Where the requirements of the probation order are breached by the probationer, thesupervising officer will have to decide what action should be taken. If a decision ismade 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 topursue the matter, although the supervising officer will be involved in giving evidenceagainst the probationer if he/she denies the breach. If breach is proved the court has thefollowing 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 asummary court, convict and sentence him/her);

(d) vary the requirements of the order, the order cannot be extended to last more thanthree years from the date of original imposition;

(e) make a community service order to run in tandem with the continued probationorder, this course can only be taken if the requirements for making a CSO (seebelow) are fulfilled.

G.3.5 Breach by commission of a further offence 42

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 andsentencing) for the original offence.

G.3.6 Probation Review HearingsThese were introduced in February 2006. A report on progress must be prepared by thesupervisor for the hearing, and the probationer must attend the hearing. At a hearing theorder can be amended and a further review hearing fixed.

G.4 Community Service 43

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 enquiryreport and must be informed that provision can be made for the offender on a communityservice scheme.

41 Ibid., section 232.42 Ibid., section 233.43 See Moore and Whyte, Chapter 7.

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7.5.1 Preconditions for making the order 44

The order of community service is explicitly viewed in the legislation as an alternative toprison, in other words the offender should only be sentenced to community service wherethe alternative is a custodial sentence. Before an order can be made the court mustexplain 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 reviewthe order. An order can then only be made f the offender consents too it.

7.5.2 Obligations of the offender 45

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

7.5.3 Amendment or Revocation 46

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; andd. to revoke the order and sentence for the original offence.

Where the offender moves, the order can only be transferred if there are suitablearrangements for community service performance in the new area.

7.5.4 Breach 47

Where the offender is in breach of the CSO there is, as in the case of probation orders, adiscretion left to the supervisor as to when to initiate breach proceedings. The breachproceedings are initiated by the supervisor. If the court finds breach proved it has thefollowing 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 theorder. 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 theoffence.

7.6 CautionCaution involves a requirement to deposit a sum of money with the court as securityagainst 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).

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

7.7 Compensation Order 49

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 anabsolute discharge, and no order can be made when sentence is deferred. In assessing theamount of compensation to order the court must consider not only the victim's loss butalso the offender's means, and in particular if it considers that it would be appropriate toimpose 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 awardcompensation up to 5,000, the JP Court up to 2,500 (level 4) and solemn courts anunlimited amount.

Payments made by an offender who is both fined and ordered to paycompensation 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 toCompensation Orders. In addition the offender can seek a review of the order if thevictim'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 civilaction for damages against the offender. However, any award in the civil case will bereduced by the amount paid under the compensation order.

7.8 Absolute Discharge 50

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 toinflict punishment and that a probation order is not appropriate.

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

7.10 Restriction of Liberty OrdersThese can be imposed on anyone convicted of an offence punishable by imprisonmentand require them either to be at a particular place at a particular time or not to be at aparticular place at a particular time. The legislation has recently been amended to make itclear 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.

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Orders cannot impose requirements covering more than 12 hours per day and canlast for up to 12 months. Remote monitoring of compliance is permitted. There areprovisions allowing application to court for variation or amendment of the order. Onbreach of the order the court has the power to impose a fine up to level 3, amend theorder 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 unlessthe offender is, concurrently with the order, subject to a probation order. The exceptionto this is where the Order is made in respect of someone under the age of 16. In this casethe order cannot be made unless the court is satisfied as to the support and rehabilitationservices the offender will receive from the local authority for the duration of the order.

7.11 Drug Treatment and Testing Orders 53

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 theorder 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 thelocal authority in whose area the offender is resident about the offender and hiscircumstances; 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 totreatment; 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 providesamples of such description as it may specify.

(5) A drug treatment and testing order or an order under subsection (4) above shall notbe 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 andto testing for a period between 6 months and three years. The court will appoint both atreatment provider and a supervising officer, the latter being a local authority socialworker. The role of the supervisor is to keep track of the offender, provide court reportsfor the periodic reviews of the order, to liaise with the treatment provider and to takedecisions on breaching or applying for revocation of the order. The offender must betested 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, theattendance of the offender is necessary. If the court is satisfied that satisfactory progressis being made then the offender's attendance can be dispensed with. Reviews have thepower to vary or revoke the order. The order can be revoked on application of thesupervisor 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.

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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 requirementsof 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 ("thevictim"), the prosecutor may apply to the court to make a non-harassment order againstthe offender requiring him to refrain from such conduct in relation to the victim as maybe specified in the order for such period (which includes an indeterminate period) as maybe so specified, in addition to any other disposal which may be made in relation to theoffence. '54

Before a non-harassment order can be made, it must follow on from a convictionfor 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 isnot 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) carefullyto make it clear that the offences were directed against the person being harassed and thatthere were at least two incidents. Where a non-harassment order is not available thevictim may have a remedy under the civil provisions of the 1997 Act or by way of interdict at common law.

7.13 Community Reparation OrdersIntroduced by the Antisocial Behaviour etc. (Scotland) Act 2004 these allow a court toorder between 10 and 100 hours of community reparation work on conviction of anoffence involving antisocial behaviour. These were only ever piloted and never madewidely available, they have now been abolished with the introduction of the CommunityPayback Order.

7.14 Antisocial Behaviour OrderCriminal 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 beexercised the offence must have involved the offender engaging in antisocial behaviour and the order must be necessary to protect others from antisocial behaviour. Thestandard of proof to be satisfied in establishing the necessity for the order is the balanceof probabilities. Once an order has been made it can be varied or discharged on theapplication of the offender made to the court which made the order. The only restrictionon 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 beestablished on the balance of probabilities. Notification of the order has to be made notonly to the offender, but also to the authority which the court considers most relevant.This need not be the authority of the offenders 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.

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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 aredetained 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 sentencingpowers or the penalties set out for a statutory offence. The exception is murder. Thoseover 21 must be sentenced to life imprisonment on conviction of murder, those under 21must 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 acustodial sentence on someone under 21 or a summary court imprisons someone over 21for 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 prisonersShort term prisoners are those imprisoned/detained for less than 4 years. They are, ingeneral, released unconditionally after serving half of their sentence. This release may besubject to a supervised release order, but even if it is not the released prisoner may, oncommission 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 6months or more and who will be subject to the notification requirements of the SexualOffences Act 2003. Such prisoners will not be released unconditionally, but will bereleased on licence after serving half of their sentence. The licence will last until the endof the sentence.

H.1.2 Long-term prisonersThese 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 areentitled to be released after service of of the sentence. Prisoners released in this secondway 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 CurfewThis system allows a prisoner to be released home early on a number of conditions, 55 themost 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 ashort-term prisoner serving three months or more (and who has served at least four weeksof his/her sentence) or a long term prisoner whom the Parole Board has recommended bereleased on licence after serving half of his/her sentence. In both cases the prisoner must55 Mainly set out in the Home Detention Curfew Licence (Prescribed Standard Conditions)(Scotland)(No2) Order 2008, SSI 2008/125, different conditions apply to the different categories of prisoner released onHDC.56 Prisoners and Criminal Proceedings (Scotland) Act 1993, s 12AB.

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have served at least one quarter of their sentence before they can be released. In addition,release cannot take place more than 166 days 57 before the day which is 14 days before thehalf way point of the sentence, meaning that the effective maximum period on HomeDetention Curfew is 180 days, with a minimum period of 14 days (as release cannot be inthe 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, whichwill involve the social work department. The final decision on release will be taken by aPrison Governor on the basis of this risk assessment and taking account of the followingfactors:(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 prisonersAll 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 outin 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 ReleaseThe Secretary of State can release any prisoner on compassionate grounds. The prisoner will be released on licence.

H.1.6 Release on LicenceAll prisoners released on parole, and all long-term and life prisoners are released onlicence. The licence will contain a variety of conditions, some of which are standard andappear in every licence. Being on licence involves supervision by a social worker. Theterms of the licence may be varied on application to the Parole and Life SentencesDivision of the Scottish Governments Criminal Justice Directorate. Life prisonersremain on licence for life (though eventually all of the conditions attaching to the licencemay 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 cancelledearly. If the released prisoner breaches the licence conditions the licence can be revokedand 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 toprison if they commit an offence before their term of imprisonment has expired. Themaximum period of return is the period between commission of the offence and the dateon which the sentence would have been served in full. For example a prisoner sentencedto two years in September 2004 and released in September 2005 who commits an offencein 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.

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H.1.8 Supervised release ordersThese are designed to secure supervision of short term prisoners after release. Asupervised release order can only be made where it is considered by the sentencing courtto be necessary to protect the public from serious harm.

H.2 Extended sentences 58

Extended sentences were introduced by the Crime and Disorder Act 1998 introducingnew provisions into the Criminal Procedure (Scotland ) Act 1995. Extended sentencescan 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 aperiod of imprisonment or detention. The length of this will determine the date of releasefrom this part of the sentence. Once the prisoner is released the further period of supervision (the 'extension period') begins. The beginning of this extension perioddepends 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 itshould be noted that they remain liable to be returned to prison until the date on whichthe 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 sexualoffence 10 years. The maximum extension period in a sheriff court is three years, andonly applies to sexual offences.

H.3. Standard Licence ConditionsThe 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.

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

H.4 Orders for Lifelong RestrictionThese 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 inrespect 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 guiltyeither in themselves or as part of a pattern of behaviour are such as to demonstrate thatthere 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 hasbeen made a risk management plan must be made up for the offender. A Risk Management Authority 61 was set up to provide accreditation for those who have toproduce 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 anoffence 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 thatit appears to the court that the person has a propensity to commit one of these offences. 62

7.15 Patterns of Use of Sentencing OptionsThe pattern of use of the various sentencing options can be seen from the table below: 63

Main Penalty 1985 1991 2001 2002 2003 2008/9Prison 5 5 10 11 10 11YOI 3 2 4 3 3 2CSO 1 3 4 4 4 5

Probation 2 3 7 7 7 8Fine 78 76 63 62 64 59Admonition/Caution

9 10 10 10 10 13

The most obvious feature of this table is that the percentage of offenders sentenced tocustody has increased from 8% in 1985 to 12% in 2007/8, despite an increase in thecombined 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 .

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8 Victims

8.1 Victim statements 64

These give victims of certain crimes the right to submit a statement to a court setting outthe 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 courtwill have to take the statement into account in sentencing. The statement must bedisclosed to the accused and the victim may be questioned about it. The opportunity tomake such statements is available in all solemn courts.

8.2 Victim notification 66

Victims of a large number of crimes 67 in cases where the offender has been sentence to acustodial sentence of 18 months or more are entitled to indicate that they wish to benotified of certain events involving the person found guilty of the offence. The victim isto be informed, for example, when the prisoner is released, dies, is transferred outsideScotland, 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 makerepresentations before a decision is taken to release the offender on licence. If release isrecommended the victim must be notified of this.

9 COSTS OF DISPOSALSThe costs of various court disposals in the financial year 2004-2005 are estimated to be asfollows (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 OFFENCES10.1 Assault An assault involves an attack on someone which either causes physicalinjury to the victim or causes him/her to fear physical injury. This means that as well asthe stereotypical assault which causes actual injury, it is just as much assault if theoffender 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 isthreatened with a knife or other weapon or a case where a fist was shaken menacingly inthe 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, SSI2009/7166 See http://www.victimsofcrimeinscotland.org.uk/the-justice-process/after-the-verdict/victim-notification-scheme/.67 Victim Notification (Prescribed Offences) (Scotland) Order 2004, SSI 2004/41168 From, Costs, Sentencing Profiles and the Scottish Criminal Justice System 2004/2005 .

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outrage or some similar emotion in members of the public, even if there are no membersof the public available to give evidence of being annoyed etc. It has recently beenredefined, slightly narrowing its scope, as requiring:

conduct which does present as genuinely alarming and disturbing, in itscontext, to any reasonable person. 69

10.3 Fraud Fraud simply involves getting someone to take some form of action on thebasis 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, thenundertakes some action which they would not have undertaken. In most cases the objectof the fraud will be to acquire goods or money. An example of the latter is use of a stolencheque book.

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

10.5 Murder and Culpable Homicide Murder involves a killing of another humanbeing where either the assailant intended to murder the victim or he/she attacked thevictim violently without caring whether the victim was killed. Culpable homicideinvolves 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 dishonestlyacquired, knowing that they are dishonestly acquired and with the intention of keepingthe goods from their true owner. In this context dishonest acquisition covers theft, fraudand embezzlement: it is not necessary for someone to be guilty of reset that theyacquired the goods from their owner, all that is necessary is knowledge that they havebeen dishonestly acquired. Indeed, it is not necessary for the resetter to know theidentity of the owner of the goods.

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

10.9 Theft This simply involves the appropriation of property belonging toanother with the intention of depriving them of it permanently or of deprivingthem of it temporarily for a nefarious purpose. There are two commonaggravations of theft. Theft by housebreaking involves breaking into premiseswhich are closed against entry, normally forcible entry is involved, buthousebreaking can be committed with a stolen key or a skeleton key. Theft byopening a lockfast place describes breaking into anything which is locked other than premises, for example, it includes breaking into a car and breaking into alocked 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 alockfast place with intent to steal where nothing is in fact stolen.

11 MANAGEMENT OF OFFENDERS

11.1 Community Justice AuthoritiesThe Management of Offenders (Scotland) Act 2005 introduced the community justiceauthority, to co-ordinate the provision of services to offenders across a number of localauthority areas.

There are eight authorities covering Scotland, including a large authority coveringthe 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, interms of preparing a plan for services, and operational, they have the power to requireaction by individual authorities and may also take over directly the provision of certainservices, 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 inrespect of whom criminal justice services are being provided. Local authorities arethen under an obligation to carry out their functions in accordance with this plan.

(b) Monitoring the actions of the Scottish Ministers and local authorities inimplementation of the plan.

(c) The power to give directions to a local authority where it considers that theperformance of the authority in implementing the plan or in co-operating with othersto implement the plan. Unlike the provisions noted below for the giving of directions by the Scottish Ministers to the community justice authority, there is noright of appeal by local authorities against directions made by the community justiceauthority. 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 localauthorities 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 offenderssubject to notification requirements under the Sexual Offences Act 2003.

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Further ReferencesG Moore & B Whyte, Moore and Wood's Social Work and Criminal Law inScotland , (3 rd 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 childrenWith only limited exceptions children between the ages of 8 (the age of criminalresponsibility in Scotland) and 16 who are alleged to have committed criminal offenceswill be dealt with through the childrens hearing system. Children who commit veryserious 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 accusedof committing a crime together with an adult, or where the court has powers, such asdisqualification from driving, which a hearing does not have and which might beappropriate in a particular case. Where a child is to be prosecuted the local authoritymust be notified and must produce a report on the child. If there is a finding of guilt areport is required before the court decides on the appropriate disposal.

1.2 Use of custodyCustody may be used by the court either before trial or after a finding of guilt. Beforetrial or sentence a child under 16 will generally be remanded to a local authority and thecourt has the power to require detention in secure accommodation. If the child isbetween 14 and 16 and has been certified as unruly or depraved he/she may be sent to aremand centre if there is a place available. For children of 16 or over the options are aremand centre, young offenders institution or, where the child is still subject to asupervision requirement from a hearing, committal to a local authority.

After a finding of guilt the sheriff summary court can impose a sentence of up toone year in accommodation provided by a local authority. Where this happens decisionsabout release are taken by the local authority. Children sentenced in this way are lookedafter children. Where a sentence is passed by a solemn court a child under 16 is to bedetained in a place determined by the Scottish Ministers. Initially this is likely to be localauthority accommodation with transfer then into a young offenders institution and then toadult prison. The rules for release of children sentenced to a determinate sentence aresimilar to those applying to adult determinate sentence prisoners. Where a child issentenced to detention at her majestys pleasure release provisions are similar to those for life sentence prisoners.

1.3 Involvement of the hearings systemWhere a person under the age of 17 and not subject to a supervision requirement isfound or pleads guilty the court may refer his/her case to the reporter for advice. Onreceipt of this advice the court can then either dispose of the case itself or refer it back to

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the reporter for disposal. Where a child is subject to a supervision requirement and isappearing 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 hasthe power to make such a referral. Referral to the reporter will not be appropriate wherethe 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 NOTIFICATIONThe Sex Offenders Act 1997 requires certain sex offenders to register with their localpolice force. There are fairly tight time limits for this registration. The duration of therequirement for registration will depend on the sentence imposed by the court for theoffence. Once the offender has been registered, guidance indicates that he/she should bethe subject of a risk assessment on the basis of which it may be necessary to develop aplan for managing that risk. The guidance indicates that such a risk management planwill 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 uparrangements 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. Anapplication 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. Aninterim order can be made pending the making of a full order. The order can contain anyprohibitions necessary to protect the public from serious harm, it may be for a fixedperiod of 5 years or more or may last indefinitely. The sheriff is to grant the order wherehe/she is satisfied that the person's behaviour since the conviction or finding makes itnecessary to make such an order, for the purposes of protecting the public or anyparticular 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 toimprisonment for up to 6 months or an unlimited fine if tried in a summary court or up to5 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 OrdersA 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 amoving 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 hasreasonable 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 theseacts on at least two occasions and it is necessary to make the order either to protect aparticular 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 asfollows:

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 thatthe orders would be used.

172. Given the potentially criminal nature of the offences which could lead tosuch 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 civilproceedings for RSHOs and potential criminal proceedings for related offencesand has concluded that the primacy of criminal proceedings should be madeexplicit on the face of the Bill.

173. The proposed introduction of risk of sexual harm orders represents asignificant shift in public policy from attempting to deal with offendingbehaviour of a sexual nature exclusively through the criminal justice system, toan increase in the use of civil procedures. This has been driven, it appears, bydifficulties encountered in relation to the standard of evidence and proof

required in order to secure a criminal conviction for certain sexual offencesagainst children. One option would be to water down the rules of evidencerequired in criminal proceedings or, alternatively, to remove the questionentirely from the context of criminal procedure and deal with the issue via a civilroute. One major concern about the selection of the latter option is that thetraditionally accepted protections which an accused person derives from thecriminal justice system, including enhanced protection from the ECHR, is notapplicable to civil proceedings. A lower standard of evidence (including hearsayevidence) 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 securinga conviction for a criminal offence.

Fourth Session 2011

Documents

Transcript of Fourth Session 2011