CIRCULAR NO: SWSG 16/95

14 September 1995

Dear Sir/Madam

CRIMINAL JUSTICE (SCOTLAND) ACT 1995:

COMMENCEMENT OF SUPERVISED ATTENDANCE ORDER PROVISION

Summary

1. This circular contains further guidance on the provisions of section 35 of the Criminal Justice (Scotland) Act 1995 which will be brought into force on 26 September 1995. It builds on the general commencement guidance set out in Circular HHD 17/1995. It also invites local authorities in areas with existing SAO schemes to submit proposals to SWSG for establishment of projects to pilot the new arrangements for 16 and 17 year olds.

Background

2. Section 35 amends section 62 of, and Schedule 6 to, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (the 1990 Act), and inserts new sections 412A and 412B in the Criminal Procedure (Scotland) Act 1975 (the 1975 Act). Section 35 is being commenced by the Criminal Justice (Scotland) Act 1995 (Commencement No. 1, Transitional Provisions and Savings) Order 1995, with effect from 26 September 1995. Commencement does not affect the powers of a court in relation to an offence committed before 26 September 1995.

Detailed Provisions

3. The provisions of section 35 are summarised below.

Supervised Attendance Orders (SAOs) to be imposed by the court without the consent of the offender.

The maximum number of hours which may be imposes under an SAO is increased from 60 to 100, with a limit of 50 hours for fines up to level 1 on the standard scale (£200). The maximum of 100 hours also applies to the maximum length of outstanding SAO where multiple orders are made - see paragraph 2(2) of Schedule 6 to the 1990 Act.

The penalties for breach of an SAO are increased to 3 months in the Sheriff court and 60 days in the district court. The powers of the court to vary orders under paragraph 5 of Schedule 6 to the 1990 Act are similarly extended.

The minimum age of offender for the existing SAO provisions is increased from 16 to 18.

4. Section 35(6) also clarifies the existing provisions by ensuring that the coming into force of a supervised attendance order discharges the fine for which it is imposed.

5. Provision is made under section 35(5) for the Secretary of State to make an Order, the effect of which is to remove from a specified court the power to impose imprisonment for fine default, requiring an SAO to be made instead. This will only apply for offenders aged 18 or over, for fines up to level 2 (£500) and where the offender is not already serving a sentence of imprisonment. It is not anticipated that such an order will be made before a scheme for dealing with 16 and 17 year old offenders is available in an area (see paragraph 6).

6. The new section 412A of the 1975 Act provides new arrangements for dealing with offenders aged 16 or 17 years. Where this is made available to the court, and the court is of the opinion that a fine is the appropriate sentence for the offence, the court must determine the amount of fine which should be paid. The court must then consider whether the offender is likely to pay the fine within 28 days. If so, the fine is imposed and an SAO made which will come into effect in the event of default. If not, an SAO is imposed instead of the fine. Where time is allowed for payment of the fine, and part of the fine is paid before default, the length of the SAO to be served is reduced pro rata. The application of this section removes the need for fine supervision orders and the limitations on imprisonment under the 1975 Act.

7. New section 412B of the 1975 Act provides for courts to allow an offender further time to pay a fine or instalments and impose a supervised attendance in default of payment. As with the arrangements under section 412A, where part of the fine is paid, the length of the order is reduced pro rata.

Effect of Commencement

8. The effect of commencement is such that the new provisions will not affect the powers of the court in response of offences committed before 26 September 1995, with the existing provisions remaining in force for offences committed before that date. The new breach provisions will therefore only have once an offender has progressed through the system.

9. Where schemes are in existence, the current SAO provisions in section 62 of the 1990 Act will apply with the amendments described above for offences committed on or after 26 September 1995. Provision for making orders under section 412B will also be available in all schemes.

10. The Secretary of State will consult with relevant interests before making an order under section 35(5) to remove the power of a particular court to impose imprisonment for default.

11. The new arrangements for 16 and 17 year olds under section 412A will not initially be available in any area. Pilot schemes will be established (see paragraph 13 below), and courts

and schemes will be notified accordingly. Until such time as pilot schemes are established in an area, it will not be possible to deal with this age group except using the powers contained in section 412B.

12. The new provisions in paragraph 177 of Schedule 6 to the 1995 Act, allowing courts to send the offender’s copy of the order by registered post or recorded delivery and removing the requirement for evidence to be given on oath to initiate breach action, will not be commenced on 26 September 1995. It is expected that these provisions will commence on 1 April 1996, along with the other provisions of the 1995 Act.

Establishment of Pilot Schemes for 16 and 17 Year Olds

13. Local authority social work departments currently operating supervised attendance order schemes are hereby invited to submit proposals to SWSG for establishment of pilot schemes for 16 and 17 year olds under section 412A. Applications should set out the court and area to be served, the programme to be delivered, the anticipated level of demand and the costs of set-up and operation. Applications will be considered by SWSG along side other proposals for development of service for 1996-97.

National Standards for Supervised Attendance Orders

14. The existing interim guidance for SAOs, issued in March 1992, is currently being revised by COSLA, SWSG and other organisations. It is expected that National Standards, covering the interests of all practitioners involved in the operation of supervised attendance orders, will be available in early 1996.

Conclusion

15. Recipients are invited to note the changes which will result from commencement of section 35 of the 1995 Act, and local authority social work departments are further invited to consider the establishment of pilot schemes as described in paragraph 13 above.

16. Enquiries about any aspect of this Circular may be addressed to: Mr J Kirby, Social Work Services Group, Room 16, James Craig Walk - telephone 0131-244-5438 [ To holders of SWSG Circulars and Guidance Package: This Circular should be placed in Section G6 of the volume containing "G. Criminal Justice and H. Voluntary Activity" circulars.] .

Yours faithfully

LESLEY CLARE