Justice Social Work Reports and Court-based Justice Social Work Services - Practice Guidance

2. Legal Framework

The term “Justice Social Work Report” does not exist in law but is used to describe ‘social background reports’ which local authority workers prepare and submit to courts in carrying out their duties under section 27(1)(a) of the Social Work (Scotland) Act 1968 (the 1968 Act).

The Scottish Government document outlining the role of the registered social worker notes that in terms of justice social work provision, a registered social worker must retain accountability for provision of all reports to courts which could have an impact on an individual’s liberty.

The Criminal Procedure (Scotland) Act 1995 (the 1995 Act) outlines the circumstances under which the court is empowered to adjourn a case before sentence; “for the purpose of enabling enquiries to be made or of determining the most suitable method of dealing with a case” (s201(1)).

The 1995 Act sets out the circumstances whereby a court must obtain and consider a report from an officer of the local authority (s203(3)). In all circumstances, the court has the power to adjourn a case before sentencing to enable enquires to be made or to determine the most suitable method of dealing with the case. An adjournment will not usually be for more than four weeks, although in certain circumstances under ‘cause shown’ can be for up to eight weeks (s201(3)). This can be particularly helpful at times when JSW is under specific staffing pressures such as over the festive period when public holidays lead to fewer working days. It is also helpful for more complex reports which may require more time to gather information, undertake risk assessments and address suitability for specific offence focussed programmes. Managers can liaise with the local sheriff clerk to make arrangements for longer deferments to enable reports to be prepared thus avoiding unnecessary adjournments and saving court time.

The following list reflects the circumstances under which the court is required to obtain a report as is specified in section 27(1)(b)(i) to (vi) of the 1968 Act, in cases in which a person is:

• under the supervision of a court
• subject to supervision following release from prison or detention
• subject to a community payback order with an unpaid work or other activity requirement
• subject to a supervision and treatment order
• under 16 years of age and subject to a restriction of liberty order
• aged 16 or 17 years and subject to a Compulsory Supervision Order imposed by Children’s Hearing Scotland.

A report is required when the court is:

• passing an extended sentence
• making a supervised release order
• making a community payback order (an exception to this is a CPO with a Level 1 unpaid work requirement only)
• making a drug treatment and testing order
• considering a custodial sentence for those aged between 16 and 21

years of age

• considering a custodial sentence for those aged over 21 years of age who have not previously been sentenced to imprisonment or detention in the UK

Where a child under 16 years of age is brought before the court, a report must be obtained on the home surroundings of the child and the education authority must supply information on the school record, health and character of the child (s 42(8) of the 1995 Act).

Report writers should be aware that offences committed before the commencement date for the Community Payback Order (February 2011) will be subject to the previous provisions of the 1995 Act, i.e. assessment for suitability for a Probation Order and/or Community Service Order.

Data Protection

2.1 Data / information sharing principles

The following is offered as general guidance for those preparing court reports, but it should be read in conjunction with agreed procedures within the local authority.

There are overarching concepts and legislation which regulate the sharing of information and the rules around secondary processing of information as outlined in the Data Protection Act 2018 which implemented General Data Protection Regulation. Each local authority should be working with their data protection team to set policies and take decisions on processing personal data. The local authorities and Scottish Courts and Tribunal Service must have a Privacy Notice which would be supplied to those using their services and this, along with their Data Protection Impact Assessment will give good insight and understanding of the lawful basis used.

You may find it useful to consider the information contained in the following when thinking about information sharing: A guide to lawful basis | ICO specifically Public task | ICO which is most relevant for provision of information to the court within JSWRs

The purpose of any information sharing activity should be considered in advance. In this context, the legislation that underpins JSWRs is section 27(1)(a) of the 1968 Act which requires the local authority to make:

“…available to any court such social background reports and other reports relating to persons appearing before the court which the court may require for the disposal of a case”.

This establishes the necessity of any information-sharing as the local authority must comply with this legal obligation. As this is a ‘public duty’, the consent of the data subject (the person on whom the report is being compiled) is not required before data is shared. However, in some particular circumstances, the issue of consent can be more complex – see section five of this guidance on information gathering for further information on this.

In order for the information sharing to be lawful, the information shared must demonstrate proportionality in terms of its content. It is not possible to fully define what information should be provided to the court in a JSWR as the circumstances of each case is unique. However, a broad measure would be that if the information is directly related to the person’s circumstances (including factors of risk and need), and that information may impact on the outcome of the case, then it would be lawful to share this with the court.

In most cases of information sharing, the ‘how’ of doing so is, usually, a standardised process facilitated by the use of ‘Single Points of Contact’ or electronically secure email addresses. In this particular case, completed and signed JSWRs are returned to the requesting court through established and secure electronic means.

If the person is sentenced to a period in custody, then Scottish Courts and Tribunal Service(SCTS) will forward the JSWR to the appropriate prison. The information in the report can be made available for both risk assessment purposes and to raise awareness of any on-going issues. It has been established that both the local authority and SCTS are joint data controllers of the information within the court report and as such, if there is any issue with SCTS forwarding the court report to the prison then the local authority can do so instead.