Assisting young people aged 16 and 17 in court

4. At Court

4.1. Court social worker

At section 3 above we identify the steps which should be taken to ensure that the court social worker or other involved professionals are made aware of the appearance of a young person in court.

The court social worker (definition includes the role of court support worker) has a role to offer the young people information on the court process to ensure they have some understanding of what will happen, the minimum requirements of court social workers is set out in the National Standards for Criminal Justice Social Work. ^[26] Information can be given on what disposals are available to the court and what that will mean for the young person. Once a disposal has been made the young person and their family, where appropriate, should be provided with more detailed information and links to the relevant social work department. (see Appendix 3 under Social Work).

We recommend that court social workers should provide support, guidance and assistance to young people going through the court process. For those who have been held in custody, they should visit the young person in the cells prior to court, and engage with the young person, allowing the court process to be explained and clarified, stressing the significance of attendance at court on all dates that are set by the court. Further to this, the court social worker will answer any questions that they may have and offer any assistance within the boundaries of the post.

Where possible the court social worker should obtain background information concerning their personal circumstances; with the view to identifying areas of need, signposting them to partner agencies and if required set up initial appointments. We would recommend that they are present in court when the young person appears before the judge to make a note of the disposal. This also allows them to be available should the judge require any further information. The court social worker, or other professional involved with the young person, should write to, or telephone them, reminding them to attend court on the given dates and the importance of good behaviour in an attempt to prevent breach of bail conditions, and reoffending. Where possible this should also be explained to the young person in person. Details of other services should be provided if deemed necessary to allow the young person to address the underlying causes of their behaviour.

The court social worker should act as an intermediary between social work and partners to assist young people to successfully attend all the various appointments required by the court or otherwise - i.e. court dates, court report appointments, job centre, interviews, housing, offending focussed services etc.

If a young person is under age 16 more support should be offered and community based social workers included in any discussions or planning, including a review of the their single plan .

4.2. Use of language

Although research in this area is limited, evidence indicates that young people do not fully understand the court process and the language used. ^[27] Scotland's Choice ^[28] , a report by the Scottish Prisons Commission also set out that:

• of all prisoners 80% have the writing skills, 65% the numeracy skills; and 50% the reading skills, no greater than those of an 11 year old; and
• 25% of these young people have clinically significant communication impairment.

For younger prisoners aged 18-20 these problems are even more intense; their basic skills, rates of unemployment and previous levels of school exclusion are a third worse even than those of older prisoners.

This toolkit therefore recommends that the judiciary and other professionals involved with young people in court take account of the additional needs that this group present, prior to, during, and after court. Care should be taken during all stages of the process to avoid legalistic terms. Where it is necessary to use legal terms, these should be explained, either before or afterward, in an accessible way to young people.

It is important that the conditions of any sentence or remand option are explained clearly to assist the young person's understanding of what these will mean for them in practice to help ensure that the do not go to breach conditions. ^{[29] [30]}

Consideration should be given by defence agents, social work and other professionals as to what additional support might be required for young people, paying particular attention to those with mental health problems, learning disabilities and learning difficulties.

4.3. Special measures for vulnerable young people

The Vulnerable Witnesses (Scotland) Act 2004 provides that any witness in the High Court or the Sheriff Court (whether an accused or not) aged under 16 when the complaint or indictment is served is automatically entitled to standard special measures (a live TV link, a screen in the courtroom and a supporter with either of the first two).

A young person aged 16 and over when the proceedings begin, would be classed as a vulnerable witness if the court considers the quality of their evidence will be affected by mental illness, personality disorder, learning disability, or fear or distress. An application can be made in respect of a vulnerable witness for what are called "further" special measures - a live TV link, prior statement, evidence by commissioner, use of a screen, use of a supporter. The use of a screen in the courtroom for a young person on trial is not thought to be appropriate given that the young person is visible to everybody for the rest of the trial. If, for example, a young person has a learning disability an application could be made to the court on their behalf to have an appropriate adult in attendance with them.

Defence agents should be alert to the need to apply for special measures. Also if a social worker or support worker considers that the use of special measures might be appropriate they should bring this to the attention of the defence agent in order that an application might be made to the court.

Irrespective of whether special measures are used, defence agents and the Procurator Fiscal should share information with regards to the young person's vulnerabilities, particularly when this will impact on how they are questioned when giving evidence.

4.4. Bail and remand

Unless a case is disposed of the first time it calls in court, one of the early judicial decisions will relate to whether the young person should be ordained to appear at the next calling of their case, whether they should be remanded in custody until their next court appearance, or whether they should be released on bail.

Evidence shows that young people are part of a vulnerable group who may suffer extreme difficulties if remanded to custody. ^[31] It is essential to ensure that the courts have available to them alternatives to secure care and custody, including intensive support packages and bail supervision, as an alternative to remanding young people, that are evidence based, lead to positive outcomes and that decision makers have confidence in. It is anticipated that ensuring robust services are in place will ultimately reduce the use of custody, thereby supporting young people in their own community, leading to better outcomes for the young people and their communities.

There is a plethora of services for young people in the community and local initiatives should be undertaken to harness these into a cohesive and intensive package of support that can be offered to the court as a means of retaining the young person in the community when there is a risk of remand or custody. 'Community Alternative' programmes devised for those under 16 years of age can be adapted to be used for 16 an 17 year olds with the possible addition of group work programmes to address offending behaviour. ^[32]

Identifying cases involving young people who are suitable for bail supervision will enable support services to be put in place at the earliest possible stage. Local agreements should be in place to ensure early identification of those for whom bail is opposed or where there is a high risk of remand. Assessments for bail supervision can be requested by judges, Procurators Fiscal and defence agents. Should Social Work identify possible candidates, a referral should be made through the young person's defence agent. Bail supervision is intended to have a monitoring and support role for the young person. The level of weekly contact can vary depending on whether the case is a summary or solemn matter and supervision aims to encourage and support the young person to keep any court appearances or meet other court requirements such as appointments for preparation of reports; signpost them to appropriate services to meet their assessed needs; and work with them to avoid breaching bail by further offending. In this way, young people will be offered supports at an early stage and successful completion of a period of bail supervision increases the young person's chance of being made subject to a community disposal if their case progresses to sentencing.

Bail supervision is particularly appropriate for young people to offer them support to adhere to their conditions. Experience has shown that reminding young people that breaching bail conditions could lead to custody may also be enough to deter breach.

In order that judges can take appropriate decisions about young people pending trial and/or sentence they must be satisfied that:

• they have all relevant information about the young person
• appropriate bail supervision or support schemes are available

Bail opposition

It is recommended that the Procurator Fiscal make the court social worker aware of cases in which it is considered that there are risks associated with ordaining the young person or releasing him/her on bail. In order that the court has available to it all the relevant information when the case calls, it is recommended that all courts adopt the practice (see Appendix 8) whereby the Procurator Fiscal makes a bail opposition list available to the Court Support/Social Worker prior to the court day commencing. This will ensure that they can gather information to offer the courts on the suitability of the young person's circumstances in the community and any arrangements for alternatives to remand e.g. supervised bail.

Bail Information Reports

Bail should not be refused due to a lack of information about the young person's circumstances. Every effort should be made to identify young people due to appear at court to ensure all the required information is available. Where this has not happened it should still be possible for the court based social worker to obtain this information on the day, where the young person is known to services.

The Implementation Group should work to establish local protocols to ensure that no young person is remanded in custody solely because they have nowhere to live. Where a young person is known to be homeless, every effort should be made to secure an address before the young person appears in court. The court social worker being made aware of a young person appearing from custody (court custody lists, contact from the Procurator Fiscal or other professionals working with the young person) and where no alternative family address is available, should make a referral to the housing department. Care should be taken, in arranging an address, to ensure any concerns expressed by the Procurator Fiscal are taken into account, for example that it should not be close to the victim.

Occasionally it may not be possible to obtain an alternative address before the end of the court day, but every effort should be made to do this at the earliest possible opportunity.

The court social worker should ensure that as much relevant information as possible is available about the young person before their appearance in court. The Implementation Group should seek to establish protocols with the local schools or Education Department to enable quick feedback about the young person. The Implementation Group should also establish the procedure to be followed in making bail information reports available to both summary and solemn courts.

Where the young person is already known to social work it will be necessary to obtain information from the lead professional for that young person and obtain a copy of their 'single plan'. ^[33]

There is a statutory requirement on the Chief Constable to notify the Local Authority for the area in which the court sits, of any child under the age of 16 who is to appear in court, and provide details of when they will appear and the offence with which they are being charged. The Local Authority then have a statutory duty to provide the court with a report on any child under the age of 16, covering their home surroundings, their school record, and their health and character. ^[34]

Bail Options

As mentioned at 4.2 above, the court will also wish to be satisfied that appropriate bail supervision schemes are in place. ^[35]

The Implementation Group may wish to ensure that the judiciary are made aware of the options available locally as part of the awareness raising, and that procedures are established to ensure the needs of the young people are brought to attention of the judiciary before decisions affecting their liberty are taken.

A wide range of bail supervision schemes which are specifically targeted at young people are now available, as outlined in Appendix 8.

Remand Options

Appendix 8 sets out some examples of alternatives to remand.

Where a decision has been made to remand a young person to secure care or custody they should be interviewed by the court social worker before leaving court. ^[36] This will be particularly relevant where it has not been possible to identify that the young person was appearing at court in advance to obtain further information which may be relevant for future court appearances. It may, for example, be possible to identify information which may support a review of the decision to remand.

The interview should include support to the young person, for example, the offer to make contact with family if unaccompanied. An assessment of the vulnerability of the young person and of the risks to self and others should be undertaken. Where risks or vulnerabilities are identified this should be communicated to the prison or secure care estate and the allocated worker or appropriate social work office.

If a young person is subject to a supervision requirement through the Children's Hearing system, a secure placement should always be sought and where appropriate/available, offered to the court as an alternative to a Young Offenders Institute ( YOI).

When a young person subject to a supervision requirement is remanded, as part of good practice, a 72 hour Looked After Review should be arranged by the local authority to take place in the YOI or secure unit. This will allow continued support to the young person during their remand as well as planning to take place for robust community alternatives to be put in place if necessary, and for their effective reintegration back into the community.

4.5. Completion of criminal justice social work court reports

When a young person pleads guilty or is found guilty, the judge may request social work to prepare a criminal justice social work report. The court social worker should contact the relevant Social Work service to get an appointment which can be passed on to the young person before they leave court that day. The requirements for writing court reports are set out in the National Objectives for Social Work Services in the Criminal Justice System: Standards ^[37] and the requirements for the young person's single plan are set out in the Getting it Right for Every Child Framework ^[38] .

Where appropriate, court reports should consider community alternatives as a disposal; in particular a remit to the children's hearing even where the young person is not subject to a supervision requirement. They should include the young person's single plan, in line with the requirements of GIRFEC. Plans should be tailored to meet the needs of the young person as should the disposal options included within the report. In order to ensure that information for the court is as comprehensive as possible, liaison should take place between all social work services, and where appropriate other partners who have been working with the young person.

It may be helpful to contact the young person's solicitor to discuss the proposed disposals and explain how they would address the risks and needs of the young person.

All risk assessments used to inform court reports and the young person's single plan should be informed by a structured risk assessment tool. The selection of appropriate risk instruments is the responsibility of the practitioner and the agency, and may be guided by criteria outlined by the RMA. ^[39] The assessment tool should be appropriate for the age and developmental stage of the child or young person. Assessments need to be grounded in research and evidence in relation to children rather than a knowledge base exclusively relating to adult offending.

There is recognition that some young people cannot always be managed in their communities and custodial sentences are the only option. Where this is the case the following options can be considered:

• a young person is appearing at court on indictment who is a Looked After Child at risk of a custodial sentence, section 208 of the Criminal Procedures (Scotland) Act 1995 where the young person could be sentenced to a secure unit, should be considered and written within the court report; and
• if a young person is not subject to a supervision requirement but is under 17 years and 6 months, remit to a children's hearing for disposal remains an option under section 49(6) of the Criminal Procedure (Scotland) Act 1995. In making a supervision requirement the hearing can authorise that the young person be kept in secure accommodation if the young person meets the criteria in section 70(10) of the Children (Scotland) Act 1995; Children's Hearing (Scotland) Act 2011, section 97(5)(c). (See section 4.6 below, 'Advice of and Remit to a Children's Hearing'.)

As with remand, good practice includes a 72 hour Looked After Review being arranged by the local authority to take place in the YOI or secure unit for those who are Looked After Children, or post sentence meeting for those who are not. This will allow continued support to the young person during their sentence as well as planning to take place for effective reintegration back into their communities. ^[40]

If a young person is subject to a supervision requirement, this should not be terminated due to the fact that they have been given a custodial sentence. Any decision to terminate should be based on a need and risk assessment.

4.6. Sentencing Options

Whilst recognising that for some young people a custodial sentence may be an appropriate disposal, this toolkit, seeks to raise awareness and promote the robustness of the following sentencing options:

• Remit to the Children's Hearing;
• Structured/deferred sentences to include a package of support tailored to meet the needs of young people;
• Community sentences, including, Community Payback Orders and their predecessors, Probation and Community Service Orders (see Appendix 9).

This Toolkit should be read in conjunction with the Guidance on Community Alternatives to Secure Care and Custody. ^[41]

Locally the implementation group could raise awareness of the options available amongst the judiciary, procurator fiscals, court staff and other relevant professionals using events, meetings or written materials.

Informing sentencing decisions

Reference has been made above to the need to ensure that alternative to secure care and custody packages are available for young people who commit the most serious offences. Decision makers and other professionals involved with the young person need to have confidence that these are robust evidenced based services that lead to positive outcomes; this is of most importance when new packages of support have been developed. This may be done through awareness raising events, briefings and/or leaflets. Care must be taken to ensure that the same information is made available to visiting (part-time) judges.

Lead professionals and other agencies must ensure that appropriate risk assessment and risk management is in place for the critical few young people who pose a significant risk of harm to others. ^[42]

Advice of and Remit to a Children's Hearing

When a child or young person who is aged 17 ½ years or less pleads guilty to, or is found guilty of an offence the court may dispose of the case by remitting it to the children's hearing. The court can seek the advice of the children's hearing prior to disposing of the case. Where the child is subject to a supervision requirement the Sheriff court must obtain the advice of the children's hearing before disposing of the case.

Where the court remits a case to a children's hearing for disposal, in some cases it may be necessary that robust risk management protocols ^[43] are in place for young people and the young person's social worker should seek to evidence this to panel members in order to build confidence in the ability to manage young people within the children's hearing system.

The rules that apply to advice and remit to a children's hearing are set out below.

Child on a supervision requirement (under 18 years) ^[44]

• The Sheriff or Justice of the Peace Court must obtain the advice of a children's hearing before disposing of the case;
• The High Court may obtain the advice of the children's hearing before disposing of the case;
• After considering the advice of the children's hearing the sentencing court either disposes of the case itself or remits it to the children's hearing for disposal.

Child not subject to a supervision requirement (under 16 years) ^[45]

• The Court may remit the case to a children's hearing for disposal without first seeking the advice of a children's hearing;
• The Court may obtain the advice of a children's hearing and then dispose of the case itself or remit it to a children's hearing for disposal.

Young Person not subject to a supervision requirement (16 -17½ years) ^[46]

• Applies only when a young person is charged summarily;
• The Court may obtain the advice of a children's hearing before disposing of the case;
• After considering the advice the Court may either dispose of the case itself or, if the children's hearing has so advised, remit it to a children's hearing for disposal.

Appendix 10 provides 2 flow charts setting out the advice and remit process for young people under 16 and those over 16 years.

It is important for report writers to bear in mind that remit to a children's hearing may be an appropriate disposal even in cases where the offence is serious and a custodial sentence would be a consideration were the court disposing of the case. If the case is remitted to the children's hearing the hearing will decide whether to make a supervision requirement, or if there is a supervision requirement in place, whether to continue or vary that supervision requirement. In making, continuing or varying a supervision requirement the hearing can authorise that the young person be kept in secure accommodation or impose a movement restriction condition if the young person meets the criteria in section 70(10) of the Children (Scotland) Act 1995 and the hearing is satisfied that such measures are necessary. This may be a more appropriate and effective intervention than custody because such measures are primarily directed towards meeting the needs of the child, they last for as long as is necessary to promote the welfare of the child and are the subject of regular review. In particular, a child or young person cannot be kept in secure accommodation for longer than 3 months unless the children's hearing, on review of the case, continue that authorisation. In this way, the length of the young person's detention is based on their level of need and risk rather than on a pre-determined 'sentence', which better supports their reintegration to the community.

Structured Deferred Sentence

Although not strictly a sentence, we include the Structured Deferred Sentence ( SDS) in this category, because it falls to be considered at the same time as other sentencing options. The SDS provides a structured social work intervention for individuals post conviction but prior to sentencing. It is intended for those with underlying problems such as drug or alcohol dependency, mental health or learning difficulties or unemployment that might be addressed through social work intervention. Details of the scheme can be found in the Evaluation of the Structured Deferred Sentence Pilots. ^[47]

From these pilots, evidence suggested that compliance was higher than for community service or probation, with one fifth or less of orders in Angus and Highland incomplete or 'defaulted', moderate to high attendance levels, or participants who were motivated, engaged, benefiting or participating well in SDS. A lesser sentence after SDS was achieved in a notable number of cases, with admonishment common. Around a third of high tariff SDS orders resulted in the desired outcome of a non-custodial sentence. The majority of practitioners were positive about SDS, feeling that it filled a gap in the current court options, and benefited offenders. There is evidence to suggest that offenders did address their needs, but this is not comprehensive and may not apply to all given SDS. In terms of cost, the pilot sites were funded on the basis of expected numbers of cases. Depending upon up-take, the cost of SDS overall can be comparable with a community service order, or probation.

Community sentences (see Appendix 11)

Local authorities should ensure the provision of robust alternatives services to secure care, custody and remand, to minimise the occasions on which young people require to be detained in the prison estate. ^{[48] [49]}

Young people frequently fail to adhere to the conditions associated with bail orders and community sentences, but there is evidence that these high rates of non-compliance are associated with a failure to provide programmes etc. which recognise the specific needs of these young people. This is one of the reasons why a supervision requirement ^[50] has been made mandatory for all under 18 as part of a Community Payback Order. This means that they will have an allocated worker who will provide support to fulfil the requirements of their Order. The allocated worker can also provide support on personal motivation, behaviour change, anger management, substance misuse, engagement with education, training or employment, support with accommodation issues and individual counselling. There are nine requirements which can be imposed as part of a Community Payback Order and, depending on the circumstances of the case, there may in limited situations be other requirements attached, for example a mental health treatment requirement. These could also contribute additional support to the young person (see appendix 11).

As with Bail Supervision schemes, judges require to be satisfied that robust community sentences offer appropriate alternatives to custodial sentences, and we found evidence of a wide range of options across a number of local authorities ( Appendix 9).

There is provision for continuing regular judicial oversight of the response of the young person to the Community Payback Order or Drug Treatment and Testing Order, and a number of the previous community sentences including Probation Orders, and Deferred Sentences. This periodic return to court could be undertaken by means of regular Court Review hearings where non compliance can be addressed or fast track breach process instigated. The regularity of such hearings is at the discretion of the presiding judge, taking into account the circumstances presented in each individual case. It is recommended that review hearings are kept to a minimum as this places extra stress on court programming, social work and procurator fiscal time.

One means of ensuring a timely response to a breach of Probation for a further offence is to establish local arrangements for breaching from the bench (Criminal Procedure (Scotland) Act 1995 Sections 233) and dealing with the breach at the same time as the offence that constitutes the breach (Criminal Procedure (Scotland) Act 1995 Sections 232). Thus, there would be no time lapse while awaiting a breach report to be submitted and the matter dealt with in court and the young person would avoid further court appearances with regard to the breach. This does not apply to Community Payback Orders where a further offence is not a breach of the Order.

Where young people are subject to court orders, the judge who imposed the order should where possible deal with any reviews or breaches of the order or any new offences.