Criminal Procedure (Scotland) Act 1975

Residential and Borstal Training U.K.

[413 F1 Detention of children. U.K.

(1) Where a child appears before the sheriff in summary proceedings and pleads guilty to, or is found guilty of, an offence to which this section applies, the sheriff may order that he be detained in residential care by the appropriate local authority for such period, not exceeding one year, as the sheriff may determine in such place (in any part of the United Kingdom) as the local authority may, from time to time, consider appropriate.

(2) This section applies to any offence in respect of which it is competent to impose imprisonment on a person of the age of 21 years or more.

(3) In this section—

• “the appropriate local authority” means—

(a) where the child usually resides in Scotland, the regional or islands council for the area in which he usually resides;

(b) in any other case, the regional or islands council for the area in which the offence was committed;

• “care” shall be construed in accordance with section 32(3) of the 1968 Act, and the provisions of that Act specified in section 44(5) of that Act shall apply in respect of a child who is detained in residential care in pursuance of this section as they apply in respect of a child who is subject to a supervision requirement;

• “the 1968 Act” means the M1 Social Work (Scotland) Act 1968.

(4) Where a child in respect of whom an order is made under this section is also subject to a supervision requirement within the meaning of the 1968 Act, subject to subsection (6) below, the supervision requirement shall be of no effect during any period for which he is required to be detained under the order.

(5) The Secretary of State may, by regulations made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, make such provision as he considers necessary as regards the detention in secure accommodation (within the meaning of the 1968 Act) of children in respect of whom orders have been made under this section.

(6) Section 20A of the 1968 Act (review of children in care) shall apply to a child detained in residential care in pursuance of an order under this section as if the references to care in that section were references to care within the meaning of this section; and, without prejudice to their duty to do so by virtue of the said section 20A, the local authority may, at any time, review the case of such a child and may, in consequence of such a review and after having regard to the best interests of the child and the need to protect members of the public, release the child—

(a) for such period and on such conditions as they consider appropriate; or

(b) unconditionally,

and where a child who is released unconditionally is subject to a supervision requirement within the meaning of the 1968 Act, the effect of the supervision requirement shall, in the case of a supervision requirement imposed during the period of detention, commence or, in any other case, resume upon such release.

(7) Where a local authority consider it appropriate that a child in respect of whom an order has been made under subsection (1) above should be detained in a place in any part of the United Kingdom outside Scotland, the order shall be a like authority as in Scotland to the person in charge of the place to restrict the child’s liberty to such an extent as that person may consider appropriate having regard to the terms of the order.]

Textual Amendments

F1 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 10(a)

Marginal Citations

M1 1968 c.49 (81:3).

414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2 S

Textual Amendments

F2 S. 414 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 45(3), Sch. 6 para. 5, Sch. 8 and S.I. 1983/1580, art. 3

[F3 415 Detention of young offenders. S

(1) It shall not be competent to impose imprisonment on a person under 21 years of age.

(2) Subject to subsections (3) and (4) below a court may impose detention (whether by way of sentence or otherwise) on a person, who is not less than 16 but under 21 years of age, where but for subsection (1) above the court would have power to impose a period of imprisonment; and the period of detention imposed under this section on any person shall not exceed the maximum period of imprisonment which might otherwise have been imposed.

(3) The court shall not under subsection (2) above impose detention on a person unless it is of the opinion that no other method of dealing with him is appropriate; and the court shall state its reasons for that opinion, and, except in the case of the High Court, those reasons shall be entered in the record of proceedings.

(4) To enable the court to form an opinion under subsection (3) above, it shall obtain (from an officer of a local authority or otherwise) such information as it can about the offender’s circumstances; and it shall also take into account any information before it concerning the offender’s character and physical and mental condition.

[F4 (5) A sentence of detention imposed under this section shall be a sentence of detention in a young offenders institution.]

(11) [F5 Section 18 (functions of Parole Board), section 24 (remission for good conduct) and sections 22, 26, 28 and 29 (release on licence) of the Prisons (Scotland) Act 1989 shall apply] to a person sentenced under this section as those enactments apply to a person sentenced to a period of imprisonment.]

Textual Amendments

F3 S. 415 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), ss. 45(1), Sch. 6 para. 5 and S.I. 1983/1580, art. 3

F4 Words substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 10(b)

F5 S. 384(1A) inserted (1.4.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 61(1)(b); S.I. 1991/850, art. 3, Schedule

Modifications etc. (not altering text)

C1 S. 415 extended by Contempt of Court Act 1981 (c. 49, SIF 39:3), s. 15(3)

C2 S. 415 excluded by Repatriation of Prisoners Act 1984 (c. 47, SIF 39:1), s. 3, Sch. para. 4(2)(b)

416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6 S

Textual Amendments

F6 S. 416 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 8 and S.I. 1983/1580, art. 3

417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F7 S

Textual Amendments

F7 S. 417 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 8

418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F8 S

Textual Amendments

F8 S. 418 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 45(3), Sch. 6 para. 5, Sch. 8 and S.I. 1983/1580, art. 3

419, 420. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F9 S

Textual Amendments

F9 Ss. 419, 420 repealed by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 5, Sch. 8 and S.I. 1983/1580, art. 3

421 Recall to young offenders institution on re-conviction. S

(1) Where a person sentenced to detention . . . F10 [F11 under section 415 of this Act], being under supervision after his release from such [F12 detention], is convicted of an offence punishable with imprisonment, the court may, [F13 , except where the person convicted is subject to a licence granted under section 60(1) or section 61 of the M2 Criminal Justice Act 1967 [F14 or section 22(1) or section 26 of the Prisons (Scotland) Act 1989], make an order for his recall.]

(2) An order for the recall of a person made as aforesaid shall have the like effect as an order for recall made by the Secretary of State under section [F15 32 of the said Act of 1989].

Textual Amendments

F10 Words repealed by Criminal Justice Act 1982 (c. 48, SIF 39:1), Sch. 16

F11 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 5, Sch. 7 para. 67(a) and S.I. 1983/1580, art. 3

F12 Words substituted by Criminal Justice Act 1982 (c. 48, SIF 39:1), Sch. 15 para. 18(b)

F13 Words substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 6 para. 5, Sch. 7 para. 67(b) and S.I. 1983/1580, art. 3

F14 Words in s. 384(4)(a) substituted (1.4.1991) by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 39:1), s. 61(1)(c)(i); S.I. 1991/850, art. 3, Schedule

F15 Words substituted by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(1), Sch. 2 para. 14

Marginal Citations

M2 1967 c. 80.(39:1).

422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F16 S

Textual Amendments

F16 S. 422 repealed by Prisons (Scotland) Act 1989 (c. 45, SIF 39:1), s. 45(2), Sch. 3

Prospective

423 Return to prison in case of breach of supervision. S

(1) If, on sworn information laid by or on behalf of the Secretary of State, it appears to the sheriff that a person, being under supervision under [F17 section 30 of the Prisons (Scotland) Act 1989], has failed to comply with any of the requirements imposed on him by his notice of supervision, the sheriff may issue a warrant for the arrest of that person or may, if he thinks fit, instead of issuing such a warrant in the first instance, issue a citation requiring the person to appear before him at such time as may be specified in the citation.

(2) If it is proved to the satisfaction of the sheriff before whom a person appears or is brought in pursuance of the foregoing subsection that the person has failed to comply with any of the requirements of the notice of supervision, the sheriff shall, unless having regard to all the circumstances of the case, he considers it unnecessary or inexpedient to do so, order that he be sent back to prison for such term as may be specified in that order, not exceeding whichever is the shorter of the following, that is to say—

(a) a period of three months;

(b) a period equal to so much of the period of 12 months referred to in [F18 section 30(4) of the said Act of 1989] as was unexpired on the date on which proceedings were commenced.

(3) Subject to the following provisions of this section, this Part of this Act shall apply in relation to proceedings for an order as aforesaid as it applies in relation to proceedings in respect of a summary offence, and references in this Part of this Act to an offence, trial, conviction or sentence shall be construed accordingly.

(4) Proceedings for an order under subsection (2) of this section may be brought before a sheriff having jurisdiction in the area in which the supervising officer carries out his duties.

(5) A warrant issued for the purposes of proceedings for an order under subsection (2) above may, if the person laying the information so requests, bear an endorsement requiring any constable charged with its execution to communicate with the Secretary of State before arresting the person under supervision if the constable finds that that person is earning an honest livelihood or that there are other circumstances which ought to be brought to the notice of the Secretary of State.

(6) Where a person while under supervision under [F19 section 30 of the said Act of 1989] is convicted of an offence for which the court has power to pass sentence of imprisonment, the court may, instead of dealing with him in any other manner, make such an order as could be made by a sheriff under subsection (2) of this section in proceedings for such an order.

(7) The Secretary of State may at any time release from prison a person who has been sent back to prison under subsection (2) or (6) of this section; and the provisions of this section and of [F20 section 30 of the said Act of 1989] shall apply to a person released by virtue of this subsection, subject to the following modifications:

(a) that the period of 12 months referred to in [F20 subsection (4) of the said section 30] shall be calculated from the date of his original release; and

(b) in relation to any further order for sending him back to prison under this section, the period referred to in subsection (2)(a) of this section shall be reduced by any time during which he has been detained by virtue of the previous order.

(8) In any proceedings, a certificate purporting to be signed by or on behalf of the Secretary of State and certifying—

(a) that a notice of supervision was given to any person in the terms specified in the certificate and on the date so specified; and

(b) either that no notice has been given to him under [F21 subsection (5) of section 30 of the said Act of 1989] or that a notice has been so given in the terms specified in the certificate,

shall be sufficient evidence of the matters so certified; and the fact that a notice of supervision was given to any person shall be sufficient evidence that he was a person to whom [F21 the said section 30] applies.

(9) For the purposes of Part III of the M3 Criminal Justice Act 1961, a person who has been sent back to prison under subsection (2) or (6) of this section, and has not been released again, shall be deemed to be serving part of his original sentence, whether or not the term of that sentence has in fact expired.

Textual Amendments

F17 Words inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(3)

F18 S. 384(5B)(5C) inserted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 65(1)(2)(b)

F19 S. 384(1A)(a)(b) substituted (1.10.1992) for certain words by Criminal Justice Act 1991 (c. 53), s. 16, Sch. 3, Pt. II, para. 7(2) (with s. 28); S.I. 1992/333, art. 2(2), Sch. 2.

F20 Words in s. 384(1) substituted (31.3.1996 subject to transitional provisions and savings in commencing S.I.) by 1995 c. 20, s. 38(3)(a)(i); S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

F21 Words in s. 384(1) repealed (31.3.1996 subject to transitional provisions and savings in the commencing S.I.) by 1995 c. 20, ss. 38(3)(a)(ii), 117(2), Sch. 7 Pt. I; S.I. 1996/517, arts. 3(2), 4-6, Sch. 2

Marginal Citations

M3 1961 c. 39(39:1).

424 Detention in precincts of court. S

Where a court of summary jurisdiction has power to impose imprisonment [F22 or detention] on an offender it may, in lieu of so doing, order that the offender be detained within the precincts of the court or at any police station, till such hour, not later than eight in the evening on the day on which he is convicted, as the court may direct:

Provided that before making an order under this section a court shall take into consideration the distance between the proposed place of detention and the offender’s residence (if known to, or ascertainable by, the court), and shall not make any such order under this section as would deprive the offender of a reasonable opportunity of returning to his residence on the day on which the order is made.

Textual Amendments

F22 Words inserted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), s. 84(2), Sch. 7 para. 68 and S.I. 1983/1580, art. 3

425 No imprisonment for less than five days. S

(1) No person shall be sentenced to imprisonment by a court of summary jurisdiction for a period of less than five days.

(2) Where a court of summary jurisdiction has power to impose imprisonment on an offender, it may, if any suitable place provided and certified as hereinafter mentioned is available for the purpose, sentence the offender to be detained therein, for such period not exceeding four days as the court thinks fit, and an extract of the finding and sentence shall be delivered with the offender to the person in charge of the place where the offender is to be detained and shall be a sufficient authority for his detention in that place in accordance with the sentence.

(3) The expenses of the maintenance of offenders detained under this section shall be defrayed in like manner as the expenses of the maintenance of prisoners under the M4 Prisons (Scotland) Act 1952.

(4) The Secretary of State may, on the application of any police authority, certify any police cells or other similar places provided by the authority to be suitable places for the detention of persons sentenced to detention under this section, and may by statutory instrument make regulations for the inspection of places so provided, the treatment of persons detained therein and generally for carrying this section into effect.

(5) No place certified under this section shall be used for the detention of females unless provision is made for their supervision by female officers.

(6) In this section the expression “police authority” means a regional or islands council, except that where there is an amalgamation scheme under the M5 Police (Scotland) Act 1967 in force it means a joint police committee.

(7) Until 16th May 1975 the last foregoing subsection shall have effect as if, for the words “regional or islands council”, there were substituted the words “council of a county or of a burgh which maintains a separate police force”.

Marginal Citations

M4 1952 c. 61(39:1).

M5 1967 c. 77(95).

[F23 426 Legal custody. S

Any person required or authorised by or under this Act or [F24 any other enactment or any subordinate instrument] to be taken to any place, or to be detained or kept in custody shall, while being so taken or detained or kept, be deemed to be in legal custody.]

Textual Amendments

F23 S. 426 substituted by Criminal Justice (Scotland) Act 1980 (c. 62, SIF 39:1), Sch. 7 para. 69

F24 Words substituted by Criminal Justice (Scotland) Act 1987 (c. 41, SIF 39:1), ss. 47(4)(a), 70(1), Sch. 1 para. 12