Justice Social Work Services: national throughcare guidance

2. Types of statutory throughcare sentences

2.1 JSW has a duty to provide a service to people subject to statutory supervision on release. This includes people subject to: a life sentence; an Order for Lifelong Restriction (OLR); a long term determinate sentence (4 years and over); an extended sentence; a short term sex offender sentence; a short term sentence; or a Supervised Release Order (SRO).

Life Sentences

2.2 Persons convicted of murder (mandatory life sentence) are sentenced to life imprisonment. A person is not eligible for parole until they have served the punishment part of their sentence.

2.3 Progression: A person serving a life sentence will be eligible to progress to National Top End estate (NTE) and the open estate once there is two years left of the punishment element of the sentence.

2.4 Persons serving a life sentence are referred to the Risk Management Team (RMT) in the same manner as persons subject to long term sentences (see Long term determinate sentences). Once in the NTE or open estate there is a further decision-making process prior to First Grant of Temporary Release (FGTR).

2.5 If released on parole licence, the person will be supported and supervised in the same manner as people subject to statutory supervision on licence. This includes recall to custody if they breach their licence conditions and the risk they pose can no longer be safely managed in the community.

2.6 For people sentenced in a Court in Scotland, who have spent 10 years in the community without negative incidents (e.g. disciplinary procedures, further offending or recall), the supervising social worker can make an application to the PBS to request removal of the conditions to be subject to supervision. This would be through completion of the Request for Amendment to Licence Conditions (Community) template. The Scottish Government Community Licence Team can support with the correct documentation - communitylicence@gov.scot.

Order for Lifelong Restriction (OLR)

2.7 Under Section 210F of the Criminal Procedure (Scotland) Act 1995 a person can be sentenced to an OLR at the High Court.

2.8 The Court’s decision to impose an OLR is based on the findings of a Risk Assessment Report (RAR) undertaken by an assessor accredited by the RMA. It may be the case that the court also asks for a Justice Social Work Report (JSWR) so it is important that there is liaison and sharing of appropriate information between the allocated social worker and the risk assessor.

2.9 The person being assessed for an OLR has the right to instruct an independent RAR which the Court must consider at the time of sentencing. If the person has instructed an independent assessment, the CBSW’s role will be to share relevant information with the independent assessor as requested.

2.10 An OLR sentence includes a ‘punishment part’ set at sentencing, where the judge at the High Court sets a minimum term the person must spend in prison. Once the person has served their punishment part in custody, they will be eligible for parole. The Parole Board will only direct release when satisfied imprisonment is no longer necessary for the protection of the public. If the person’s release is directed, they will be subject to licence conditions for the rest of their life. The Parole Board has a duty to have regard to the Risk Management Plan (RMP) that has been approved by the RMA when making any decision about the person being released.

2.11 All persons subject to an OLR must have an RMP. The lead authority for the preparation of the RMP is either SPS, NHS or Social Work Service. While in custody, SPS are the lead authority. In the community, responsibility sits with the designated local authority. For full information on the RMP for OLR cases please refer to: Standards and Guidelines for Risk Management.

2.12 Progression: The progression of a person subject to an OLR will follow a similar pathway to other long term sentences. They will be eligible for progression to the National Top End (NTE) and thereafter, the open estate, or direct to the open estate if they have less than two years of the “punishment” part of their sentence remaining and meet the other progression pathway criteria.

2.13 If a person is directed for release by the Parole Board, within the pre-release Integrated Case Management Case Conference (ICMCC), there must be consideration for a Multi-Agency Public Protection Arrangements (MAPPA) referral in line with the MAPPA guidelines. While there is no requirement that a person should be subject to MAPPA (unless they have been convicted of a sexual offence), they should be considered against the criteria for Category 3 (other risk of serious harm), given the nature of offending which led to the imposition of the OLR.

2.14 If released on parole licence, the person will be managed and supported in the same manner as people subject to statutory supervision on licence, including recall to custody if they breach their licence conditions and the risk they pose can no longer be safely managed in the community.

Long term determinate sentences

2.15 For a long term determinate sentence, a person will become eligible for parole review at the half-way point of the sentence, this is known as the Parole Qualifying Date (PQD).

2.16 If parole is not granted and the individual is not released on parole licence, they will have a further parole review on an annual basis until they are automatically released on licence at six months prior to the sentence expiry date on a non-parole licence.

2.17 JSW has a role in these cases to write reports to be included in the dossier, which is provided to the PBS and to attend, when cited, associated oral hearings. This cohort would also be likely to undertake programmes and be considered for progression to the open estate as part of this. PBSW have a role in supporting consideration for programme suitability via the Programmes Case Management Board (PCMB), and progression via RMT.

Extended Sentence

2.18 Section 210A of the Criminal Procedure (Scotland) Act 1995 allows persons convicted in solemn court proceedings to be sentenced to an extended sentence (where the person has been convicted of a sexual offence (of any length), violent, or terrorist offences of 4 years or over committed on, or after, 30 September 1998). An extended sentence has the maximum extension of 10 years; except for violent offences committed before 28 January 2003, when the maximum is 5 years.

2.19 Extended sentences are used by the Court to protect the public given the specific supervision element, which is part of the sentence. The Court cannot impose an extended sentence without considering a JSW report. The Court may also ask the social worker who prepared the JSWR to speak to it before passing sentence.

2.20 The nature of extended sentences means that someone subject to statutory supervision from an extended sentence can be subject to licence conditions for a long period of time post release.

2.21 The extended sentence is the aggregate of two elements, with the total period being the sum of:

a) the duration of the custodial term (the term which otherwise would have been imposed by a Court for the offence in question); and

b) the duration of the extension period (additional period of supervision on licence).

2.22 Where the custodial element of the extended sentence is four years or more, parole eligibility follows the same rules as any long term sentence, such that a person becomes eligible for parole at the halfway point of their custodial sentence (or at the two-thirds point for those serving sentences for terrorism offences). If the Parole Board recommends release, they can be released early on licence conditions into the community. If parole is not granted, they will be released at the end of their custodial part of their sentence.

2.23 Example: Person sentenced at sheriff Court to a short term sentence of 3 years custodial period, with an extension period of 3 years, for a sexual offence. The person will be released after serving 50% of their custodial part (after 18 months in custody). They will then be supervised in the community under licence conditions for a period of 4 years and 6 months (18 months remaining part of custodial sentence + 3 years extension). The person can be recalled to custody if they do not adhere to their licence conditions up until their full sentence end date.

2.24 Example: Person sentenced at High Court to 5 years custodial term for sex or violent (non-terrorism) offence with an extension period of 8 years. After 2.5 years in custody (50% of custodial sentence), the person is eligible for parole. If released on parole licence at their first hearing, they will be supervised in the community for a total of 10.5 years (for 2.5 years for remainder of custodial sentence and 8 years as the extended part of their sentence). Person can be recalled to custody if they do not adhere to their licence conditions until full sentence end date.

Short term sex offender licence

2.25 Under Section 1A of the Prisoners and Criminal Proceedings (Scotland) Act 1993, anyone convicted of a sexual offence and sentenced to a custodial sentence between 6 months and 4 years will automatically be released once they have served 50% of their sentence and will be subject to licence conditions for the rest of their sentence in their community.

2.26 The person will be managed and supported in the same manner as people subject to statutory supervision on licence, including recall to custody if they breach their licence conditions and the risk they pose can no longer be safely managed in the community.

2.27 While in the community they will be subject to MAPPA and relevant processes must be followed.

Short Term Sentences (Voluntary Throughcare)

2.28 For short term sentences not covered by statutory supervision (see above section), JSW still has an important role to play in offering support when requested for people leaving custody as detailed within section 27 of the Social Work (Scotland) Act 1968 (as amended by section 71 of the Criminal Justice (Scotland) Act 2003). This support can come from a variety of sources within local authorities (JSW, housing, welfare fund), third sector services, NHS and addiction services. Information on access to a local social worker should be provided at the point of sentencing by the court-based social worker, and at the point of induction into a prison establishment (by the PBSW). This information will again be given to a person at the point of their release, either by SPS staff or by PBSW.

2.29 The Scottish Government provides funding for a national throughcare service to support people leaving prison following a short term sentence or period of remand. Many of these persons will have complex needs which require multiple levels of support including (but not limited to): access to suitable housing, mental health support, physical health support – including access to GP or for ongoing care (long term illnesses or addiction support), and personal relationship needs.

2.30 The current partnership, Upside commenced on 1 April 2025 and is commissioned for three years.

2.31 In addition to the national service, there are also a number of smaller, third sector throughcare services which operate at a local level. JSW should ensure they are engaging with relevant third sector services in their local area in order to support a collaborative approach to meeting people’s throughcare needs.

Supervised Release Orders (SRO)

2.32 Under Section 209 of the Criminal Procedure (Scotland) Act 1995 a person can be placed on an SRO by a Court if they have been convicted on indictment of an offence; sentenced to less than 4 years in custody; and for the purpose of public protection are assessed as needing supervision in the community after they have been released from custody.

2.33 The Court cannot impose an SRO without considering a JSW report. If an SRO is presented as an option, the report author should be clear about any conditions that they recommend be included, and these should be both necessary and proportionate.

2.34 Where the Court imposes an SRO, the period of supervision in the community under it cannot exceed 12 months from the date of the person’s release, nor can it extend beyond the sentence expiry date. For example, if the person is sentenced to 2 years custody, the maximum length of an SRO (i.e. 12 months) can be imposed on them. If they are released at the 40% point of their sentence, they will serve 9.6 months in custody and can be subject to supervision under the SRO for 12 months from the date of release. If they are released at the 50% point of their sentence, they will serve 12 months in custody and can be subject to supervision under the SRO until their sentence expiry date. If the person is sentenced to 18 months custody, the SRO can extend only to the sentence expiry date. For a person sentenced to 18 months in custody and released at the 40% point of their sentence, they will serve 7.2 months in custody and they can be subject to supervision under the SRO for a maximum of 10.8 months. For a person sentenced to 18 months in custody and released at the 50% point of their sentence, the maximum period that they can be subject to supervision under the SRO is 9 months.

2.35 Where it is considered there may have been a breach of a SRO requirement, an element of discretion may be applied by CBSW in conjunction with their line manager. An initial warning or re-engagement review could be used at this stage.

2.36 For serious or repeated breaches of an SRO, CBSW must inform the court. If the decision is to submit a breach application under section 18 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 for consideration by the Court, the report should contain information on all measures implemented to promote engagement prior to the application being made.

2.37 Breaches should be processed in a timely manner, and statutory responsibility for the efficient throughput of business sits with the Sheriffs Principal. While the breach is pending, the JSW can monitor progress via the Scottish Courts and Tribunals Service (SCTS) portal and continue to offer supervision appointments where appropriate.

2.38 Applications for changes or variations to the SRO are made to the sentencing Court under section 15(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Applications can be made by the person being supervised or CBSW.

2.39 Please refer to local procedures as to whether a completion report is required to be sent to the sentencing Court. If required, it should be submitted within 10 working days of the order end date. This will be completed with in line with local procedures.