Custody of convicted children and young people: practice guidance

The procedures to be followed regarding children sentenced under section 205(2) or section 208 of the Criminal Procedure (Scotland) Act 1995.

Arrest, Charge and Interim Detention Arrangements

First Court Appearance

12. A child who is arrested and charged with murder or any other offence to be prosecuted on indictment[1], either as an individual or as co-accused, must be brought before a sheriff or judge on the first lawful day. The decision on whether or not to grant bail must be made before the end of the day after the child is brought before the sheriff (not counting Saturdays, Sundays or court holidays).

13. If bail is refused, the sheriff or judge will remand the child on a "due course of law" (DCL) Warrant, which is competent for 110 days (sheriff court case) and 140 days (high court case) if all the procedural time limits regarding service of the indictment and preliminary hearings are met.

14. If the child is to be remanded, the processes outlined immediately below should be followed. If the child is not remanded, but the case is being dealt with under solemn proceedings, it is still good practice for social work to inform the CYP Placement Manager as early as possible to alert them of cases where custody may occur.

Remand – Onus on Local Authority to Identify a Place of Safety

15. The relevant provisions are section 51 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") and the Secure Accommodation (Scotland) Regulations 2013. Under section 51, where a court remands a child who is not released on bail, it normally commits the child to the local authority which it considers appropriate to be detained either in secure accommodation or in a suitable place of safety chosen by the authority. If a child is age 16 or 17 and subject to a compulsory supervision the court also has the power to commit the child to a YOI. If the child is age 16 or 17 and not subject to compulsory supervision then the court must commit him to a YOI.

16. If the court commits the child to the local authority to be detained in a place of safety, it is the duty of that local authority under the 1995 Act to arrange for the detention of the child in a place of safety of its choosing (which may be secure accommodation) for the period of remand or until liberation in due course of law. They also have responsibility for any associated travel arrangements. If the responsible local authority is different from the child's home authority, the latter should be informed of both the placement details and travel arrangements.

17. Social work should include details of the placement in the Criminal Justice Social Work Report so the court is aware that a place has been made available. Social work will also have to provide details of the placement to the escort when booking transport.

18. The child may not be placed in secure accommodation under the "place of safety" arrangements unless the chief social work officer and the person in charge of the secure unit are satisfied this is necessary because the child:

  • has previously absconded and is likely to abscond again and, if the child were to abscond, it is likely that the child's physical, mental or moral welfare would be at risk;
  • is likely to engage in self-harming conduct; or
  • is likely to cause injury to another person[2].

19. In these circumstances the chief social work officer must also be satisfied that it is in the child's best interests that he or she is placed and kept in secure accommodation and that the placement is appropriate to the child's needs having regard to the establishment's statement of functions and objectives.

20. When a young person is remanded, it would be beneficial for both the local authority and secure care providers to ensure that the CYP Placement Manager is made aware of the case as this would assist with any future placement plans in the event that a custodial sentence is given.

21. With regard to those under the age of 18 who are remanded in custody in a YOI on a charge of murder, Governors are asked to notify details of the person to the CYP Placement Manager. Scottish Ministers have responsibility for these young people and will issue an order placing them in YOI (or elsewhere) to ensure they go out on a licence when released.




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