Justice social work - reports and court-based services: practice guidance

6. Specific Areas for Consideration

6.1 Women in the Justice System

Since the Angiolini report, Commission on Women Offenders Final Report was published in 2012 services for women within the justice system have been developed to address their needs in a more holistic way. Many areas now have specialist Women’s Justice Teams often involving a multi-disciplinary approach co-locating with colleagues from mental health, addictions services and the third sector. It is recognised that women within the justice system often have a background of trauma involving loss, abuse, poor mental and physical health and addiction issues. It is those factors that can underlie their involvement in the justice system with violent or acquisitive offences being common. There is also recent research The lifetime prevalence of hospitalised head injury in Scottish prisons: A population study | PLOS ONE noting a high number of women with acquired brain injury within custodial settings often as a result of experiencing head injury in domestic abuse situations.

Report writers therefore need to keep these factors at the forefront of their thinking when meeting with women to complete a JSWR. Questions should be tailored to gather as much information as possible about the woman’s background, whilst being aware of the potential sensitivity of the situation. This will enable an assessment to be made regarding the circumstances surrounding the index offence and whether there is scope for supports to be made available that could mitigate against further offending.

The complex nature of the trauma experienced by women involved in the justice system often results in them displaying trauma symptoms. It is not uncommon for people who have experienced a number of traumatic events to struggle with emotional dysregulation and re-experiencing of trauma in the form of flashbacks and nightmares. Whilst this can mean that they can present as overwhelmed and struggling with coping strategies for day-to-day living leading the social worker compiling the court report to feel disempowered in terms of how to address the issues being presented. However, it is suggested that specialised reports (i.e. a psychiatric or psychological report) should only be sought if it is if it is clear that the woman is experiencing acute mental health issues or psychological distress which has a direct bearing on the court case.

Further Information which may be useful for consideration can be found at:

• Equally Safe- Scotland’s strategy for preventing and eradicating violence against women and girls
• Safer. Scot – signposts to support for individuals/ practitioners on areas of violence against women- including domestic abuse and commercial sexual exploitation.

6.2 Children and Young People in the Justice System

Tackling the cause and impact of offending behaviour through addressing the wider needs of the child or young person and keeping them out of formal criminal justice systems, wherever possible, is a key objective of the Scottish Government’s Youth Justice Vision and Priorities (2021)

The Promise reiterates the need for care and protection instead of punishment for children in conflict with the law, with many entering the criminal justice system having a range of unmet needs that can lock them into a cycle of reoffending. However, from the age of 12 years, children can be involved in the adult criminal justice system, irrespective of whether they are involved in the Children’s Hearing System.

The Children and Young People’s Centre for Justice has a number of articles and practice related papers that can assist when considering issues particularly relating to young people within the justice system: Children and Young People's Centre for Justice (cycj.org.uk).

In addition, the Scottish Sentencing Council issued a sentencing guideline for children and young people under the age of 25 in 2022, available at:

sentencing-young-people-guideline-for-publication.pdf (scottishsentencingcouncil.org.uk)

Every child aged under 18 years referred to a Children’s Hearing on offence grounds or court should undergo a comprehensive assessment, guided by GIRFEC principles. Assessments and subsequent reports to the court or Children’s Hearing should be completed by practitioners who have undergone the relevant risk assessment training as they will require to take a holistic, developmental, trauma and systems informed approach to establish whether there are other relevant factors for consideration that could impact on the child’s capacity to engage with interventions - for example mental health difficulties, learning or communication needs. Depending on the service structure, these practitioners may be located in Children’s Services, adult JSW or specialist teams such as youth justice or throughcare/aftercare The views of the child or young person should always be sought, and a home visit should always be undertaken to fully assess any developmental and cognitive needs, systems around them to support intervention plans and if there is the need for independent advocacy. The social worker will need to be mindful that the child may, in addition to having committed an offence, experience other forms of vulnerability or victimisation as well and the National Guidance for Child Protection in Scotland may need to be followed.

Assessments in respect of offending behaviour should include a structured risk assessment completed using recognised tools and other specialist structured risk assessments as appropriate. Risk assessments accredited for use for adults or young people over 18 will not be appropriate for use with children. There is a move towards a more structured professional judgement (SPJ) approach, such as the use of the Short-Term Assessment of Risk and Treatability: Adolescent Version (START: AV). Details of different risk assessment tools can be found in the Risk Management Authority’s (RMA) Risk Assessment Tools Evaluation Directory (RATED).

Risk assessment forms a central function for practitioners when supporting children and young people who may pose a risk of harm to others, or themselves and is not only relevant when producing reports for the court and Children’s Hearing System, but also in scenario planning for children and young people as their circumstances and environment change. All children and young people involved in Children’s Hearings or court should have a Single Plan which incorporates any current single agency plans and should directly address strengths, needs, vulnerabilities and risks, including criminogenic needs. The Lead Professional will be responsible for ensuring an agreed multi-agency Single Plan is produced and that agencies have specific roles in respect of this plan.

In respect of Children’s Hearings, the practitioner’s role will also include preparing and supporting the child, attending Children’s Hearings and implementing decisions, including any compulsory measures of supervision. In terms of court, this role will include supporting children and young people to understand processes and expectations, implementing disposals and supporting the child/young person at court.

Should a child aged 16 and 17 who is not subject to a Compulsory Supervision Order (CSO) be remanded or sentenced to a period of custody, they may be held in a Young Offender Institution rather than secure care. Decisions about where a child is placed should take full account of their needs and circumstances, with secure care being the most appropriate therapeutic and trauma informed environment should community-based alternatives be exhausted (The Promise, 2021). Information regarding the process of sharing reports and other relevant information, alongside review timescales when a child/young person is remanded or receives a custodial sentence is located here.

6.3 Mental Health in the Justice System

Many people involved in the justice system experience mental health issues. For example, the Mental Welfare Commission found in 2022 that 76% of prisoners had a history of mental ill health which was identified at reception screening. 60% had been receiving support for mental illness before arriving in prison. PrisonReport-April2022.pdf (mwcscot.org.uk).

This can be wide ranging and cover anything from acute emotional distress to diagnosed mental illness, learning disabilities to neuro-divergent conditions and often undiagnosed personality disorder. Given the broad range of potential issues presented, this can lead to heightened concerns from the court in terms of how best to support people whilst also addressing the behaviours which have led to the court appearance.

The role of the JSWR is crucial in highlighting concerns and offering suggestions on how best to address these. The main source of information to assist in sentencing for the court is the JSWR which has three main purposes in cases involving mental health or welfare issues:

• to address the extent to which mental health issues may be a treated as a mitigating factor in the sentencing process (based on the level of insight that the person had when they committed the offence, and therefore their level of culpability);
• to assess the likelihood and impact of further offending, and the risk of harm being caused to others or to themselves; and
• to suggest a plan involving relevant health professionals that could address the person’s mental health needs.

The JSWR should review potential disposals, consider the role of social work intervention and outline the available resources for the implementation of any disposals.

It is recognised that availability of resources can be an issue but that should not prevent social work staff based in courts or preparing court reports from highlighting a need and identifying what could be done to address this.

If, in the course of meeting to gather information for a court report, it appears to the report writer that a specialised report addressing particular issues identified would be beneficial then this should be highlighted. For example, if it is clear that the person is experiencing acute mental health issues or psychological distress which has a direct bearing on the court case then this should be brought to the court’s attention and a deferment sought for psychiatric or psychological reports to be obtained. It would be helpful to the court if the report writer identified which would be most beneficial or if both are required.

However, this should be weighed up in terms of the value that this would bring to the sentencing process. The report writer needs to consider the potential impact for the person of having their case further deferred often for several weeks until the required report can be obtained and having to recount distressing life events again with no discernible impact on the eventual court outcome.

In some areas, courts have access to forensic community mental health teams or specialist health staff which enables assessment and support to be accessed more readily. Justice social work staff should have access to a mental health officer (MHO) within their local authority if not within their specific service. These social workers have specialist knowledge of mental illness, the law in relation to mental health and criminal proceedings and local resources that could be utilised to ensure the person is best supported. It may be that a discussion with the duty MHO regarding the specific issues or concerns about the person would assist the justice worker when considering information to share with the court regarding possible disposal of the case.

In order to address both the needs of the court and the person appearing, justice social work staff have a pivotal role in providing advice and assistance. Court based staff can ensure that they meet with the person and offer any immediate support or practical assistance. Report writers can identify any supports that could be put into place as part of community supervision. It is recognised that the mental health treatment requirement of a Community Payback Order is not commonly used and mental health disposals such as Guardianship or Compulsion Orders are relatively rare in day to day court proceedings. However, social workers compiling JSWRs should consider whether a mental health disposal may be appropriate to consider and take advice accordingly.

When someone is acquitted of an offence on the grounds of lack of criminal responsibility - or is found unfit for trial and an examination of facts decides that the person committed the offence - the court may make a supervision and treatment order. Such an order can only be imposed after a partial acquittal (i.e. a finding that a person is unfit to stand trial or not guilty by reason of mental disorder). A supervision and treatment order requires a person to accept supervision from a social worker and submit to medical treatment. There are no sanctions for non-compliance. This order cannot be made if it would be appropriate to impose a compulsion order. As such, this is clearly to be seen as a lesser intervention than a compulsion order.

It is crucial that when cases involving a mental health issue arise, justice social work staff link in with health colleagues to seek advice. This will help to ensure the best outcome for the court and the person who is appearing, to ensure they are better supported to access appropriate treatment and reduce risks of further offending and promote victim safety.

6.4 Hate Crime

Hate crime is ‘a crime motivated by malice or ill will towards a social group’, with five current protected characteristics in Scotland:

• Race
• Religion
• Sexual orientation
• Disability
• Transgender identity(which at present includes protection for those with variations in sex characteristics).

Any offence type can feature an aggravation in relation to one or more of the above protected characteristics, for example ‘Assault to Injury (aggravated: sexual orientation)’. Section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 provides for the offence of ‘racially aggravated harassment’. Sections 18, 19 and 23(1)(a) of the Public Order Act 1980 and section 96 of the Crime and Disorder Act 1998 also cover racially aggravated harassment and behaviour.

Report authors should note any specific pattern of these types of offences, and potential risk factors when considering Likelihood. These may include:

A distorted idea about the victim and perceived differences

This might involve placing responsibility on the victim for the offence(s) and making counter-accusations or a distorted sense of having been ‘provoked’ into the behaviour. An absence of victim empathy – failing to accept or acknowledge the realities of victims’ experiences or the consequences of their own actions and minimising their actions. A tendency to dehumanise victims in order to justify the offending.

Conflict with/a poor sense of their own identity

The person may resent the perceived stronger identity of other cultures (this may also be in relation to the erosion of traditional notions of ‘masculinity’ and linked with homophobic or transphobic hate crime). This is potentially linked to feelings of shame relating to their own self-esteem and position in the world.

A perception of ‘territorial invasion’/a sense of entitlement and alienation

Being unable to accept the realities of multi-culturalism, feeling that the presence of other cultures detracts from their own. They might draw on social support in their own communities for prejudiced attitudes and stereotypical views. They relate to ideas of superior and inferior ‘ingroups’ and ‘outgroups’, and notions that resources of ways of life are under ‘threat’ due to ‘outgroups’.

Thinking styles

For example rigid thinking; not being able to differentiate between fact and myth; absorbing racial or other prejudicial myths without question. They might be easily influenced by the media and/or the internet/social media.

A predisposition to resort to violence as a means of conflict resolution

They might have previous convictions for violence. Many offences associated with this type of offending involve conflict or the use of violence; the prejudice element of the offence is often not the single motivating factor.

Additional factors to consider

• Being a victim of discrimination themselves (may contribute to a distorted worldview);
• Peer influences;
• Experiences of loss or bereavement;
• Mental health difficulties;
• Disability hate crime – offence(s) may involve exploitation and/or differential motivations;
• Affiliation with far right/extremist groups – consider a referral to Prevent.

Given the specific types of harm caused by hate crime, it is suggested that the following paragraph is included in the ‘Seriousness’ section of the report:

Offences motivated by prejudice can be particularly harmful to victims and communities due to the targeting of a core aspect of the person’s identity. Emotional and psychological trauma can be heightened, and vicarious trauma can be experienced by those who have the same identity characteristics as the victim, such as family members or the wider community.

6.5 Cases where serious harm has been caused

Writing court reports in relation to cases where the person has caused serious harm to others can be some of the most challenging to complete for social workers. The Risk Management Authority (RMA) definition of serious harm is defined as:

“ the likelihood of harmful behaviour of a violent or sexual nature, which is life threatening and/or traumatic, and from which recovery, whether physical or psychological, may reasonably be expected to be difficult or impossible"

In cases involving sexual abuse, domestic abuse or loss of life, social workers need to be able to separate the actions of the individual from the process of gathering and assessing the required information to complete a report to assist with sentencing.

This requires significant skill and consideration should be given when allocating a piece of work such as this to the level of report writing experience required to undertake these more complex court reports. Social workers need to be appropriately trained in the relevant risk assessment tools and feel confident in their abilities to present comprehensive risk assessment information. This will include a view of the ongoing risk to others balanced with a picture of the person’s life in the lead up to the commission of the offence(s) to best assist the court to reach a decision on disposal.

It is recognised that these reports can take longer to compile given the need for more detailed risk assessments and verification of information and this should be a consideration when allocating the report. These more complex reports require significant enquiry skills as social workers seek information from a variety of sources in addition to interviewing the person. Best practice would suggest that a minimum of two interviews should be undertaken where resources permit; one of which should be a home visit if the person is at liberty in accordance with local lone working procedures as appropriate

If a custodial sentence appears to be inevitable, given the severity of the offence, there needs to be consideration given to post release supervision and what that may look like. A proposed case management plan should be presented within the review of relevant sentencing options within the JSWR to include measures to protect the victim during the sentence and on the person’s release. This is particularly important in cases involving domestic abuse, stalking, rape and sexual assault, forced marriage and honour-based abuse.

In cases involving domestic abuse the local authority areas that have information sharing protocols in place with Police Scotland will be able to request information which can assist to build a picture of non-convicted behaviours. In addition, if children are involved, the social worker compiling the JSWR should check that a referral has been made to the Children’s Services Team and liaise with their social work colleagues regarding any child protection actions taken or required.

This information and any follow up actions taken by Children’s Services colleagues will be documented within social work records and therefore accessible to the social worker completing the report. In areas that have access to the Caledonian System the allocated Women’s worker and/or Children’s worker will be in a position to offer the social worker compiling the court report an invaluable perspective of the victim’s views.

In addition, some areas have criminal court based advocacy services. These hold information about victims of domestic abuse that would be extremely useful to be aware of when considering patterns of behaviour. It is suggested that in these areas contact be made with the court advocacy worker prior to meeting the person for their court report interview. This would provide an opportunity to gain a context and background to the offence from the victim’s perspective. This contact would also enable the social worker to consider information from the advocacy service of the victim’s views on the imposition of a non-harassment order which can be taken into account when presenting their professional view on sentencing options in the court report. It should be noted however that information should not be sourced to the victim or the court advocacy service.

Contact can also be made with specialist organisations supporting victims of domestic abuse if these details are known and the organisation has the person’s permission to disclose information. Having information on the impact of the offending on the victim, any history of abuse, impact on children, safety issues and concerns, patterns and nature of the abuse and information about the victim’s experience can become an integral part of the risk assessment. Again, that information should not be sourced to the victim or the support service.

Obtaining information from various sources will enable the social worker to provide information in the court report on patterns of behaviour and/or coercive control- What is domestic abuse? | Scottish Women's Aid (womensaid.scot) This information is crucial in enabling comprehensive risk assessments to be undertaken and effective case management plans for those that perpetrated the offence and safety plans for victims that can be implemented.

As noted previously, caution is required as to how information that could be sourced to the victim is presented to the court. Consideration can be given, if the case has been discussed at MARAC (Marac in Scotland | Safelives) or within a child protection case conference for example, to refer to information as having….” been obtained following a multi-agency meeting” or stating that.. ‘information has come from departmental records.’ It should only be noted in those broad terms rather than stating the name of the meeting the information has come from to avoid presenting a service generated risk to the victim.

If the person has been convicted of sexual offences and been made subject to notification requirements. Sometimes referred to as the 'sex offender register' this blog from the Scottish Sentencing Council may be of interest Sex offenders register explained (scottishsentencingcouncil.org.uk) to provide a more detailed explanation of how it works in practice. In these cases, there will already be involvement from the Police Scotland specialist sex offender unit within the local division. It would therefore be expected that the social worker compiling the JSWR would liaise with police colleagues to gather information prior to interviewing the person. The social worker should make it clear during the court report interview with the person that there will be ongoing liaison with the local police unit that monitors those subject to notification requirements.

Where resources permit, a joint meeting with the police to discuss respective roles and potential disposals would be beneficial. As a minimum, it would be expected that there would be contact via a telephone call between police and JSW whilst the case has been adjourned for preparation of the justice social work report.

If the sexual abuse has involved a child victim or the victim or perpetrator has contact with children there will have been measures taken by Children’s Social Work services in order to ensure their safety and that of any other children who may have ongoing contact with the person. It is therefore crucial that the social worker compiling the justice social work report is able to access information on the current situation with the child(ren) and liaise with other professionals involved. This will ensure that the risk assessment is as comprehensive as possible and if a community based supervision plan is proposed it takes into account any ongoing safeguarding issues relating to child contact. Consideration should be given to specific requirements attached to a licence or Community Payback Order to curtail any potential victim access.

Given the complexity of these reports and the subject matter, it is important that the social worker has support and guidance from experienced practitioners both during the assessment process and also to review the report content prior to submission. The opportunity to de-brief and reflect should be offered as part of one to one supervision sessions and learning shared with colleagues as appropriate.