Commentary on Provisions Remand, committal and detention of children Section 19 – detention of children on conviction
86.Sections 18 and 19 make provision about the detention of children involved in criminal proceedings, either on remand before trial, or after conviction but before sentence, or on sentence. They do so by amending sections 44, 51, 205, 207, 208 and 216 of the 1995 Act and by inserting new section 208A into that Act.
87.The amendments make two main changes. The first, in consequence of the change made by section 12 to the meaning of “child” for the purposes of the 1995 Act,(54) is to ensure that the provisions that apply to children apply to all persons under 18, with no distinction made between children subject to CSOs and other children. Currently, some provisions of the 1995 Act, such as section 51(1), refer to a person under 16 rather than to a child and distinguish between children aged 16 and above subject to CSOs and those not subject to CSOs. The other main change is to provide that a child cannot be held on remand or sentenced to detention in a young offenders institution. Generally, as a result of these amendments, children will be held in secure accommodation.(55)
88.Section 51 of the 1995 Act deals with detention on remand of persons under 21. Section 18 modifies section 51(1)(a), (aa) and (b) so that all children (i.e. persons under 18) will be dealt with the same way and, as a result, will be committed to a local authority to be detained, while on remand, either in secure accommodation(56) or in a place of safety.
89.New subsections (6) to (8) are inserted into section 51 so that the Scottish Ministers can, by regulations, make provision about the detention of such children in secure accommodation. This will allow provision to be made, similar to that already contained in the Secure Accommodation (Scotland) Regulations 2013 (“the 2013 Regulations”),(57) for the welfare of children detained in secure accommodation, including the review of their cases. The 2013 Regulations deal with children detained in a place of safety under section 51(1)(a)(ii),(58) and make provision for such children to be moved to secure accommodation if necessary, but they do not currently apply to children detained in secure accommodation by virtue of section 51(1)(a)(i). As subsection (7) makes clear, the regulations may also make provision for children to stay in secure accommodation after they turn 18, provided the provision made by the regulations does not permit them to so remain after turning 19. Without this sort of provision, a child in secure accommodation who turns 18 would be transferred to a young offenders institution. The power in subsections (6) and (7) will allow provision to be made to avoid this happening automatically, and allow the transfer to be tailored to the circumstances of the child and of the accommodation in which they are detained.
90.Note also that section 51(2A), which relates to the use of remand centres, is repealed by paragraph 16(2) of the schedule.(59)
91.Section 44 of the 1995 Act deals with the detention of children who plead guilty or are found guilty in summary proceedings. Such children may be detained in “residential accommodation” provided by local authorities under Part 2 of the Children (Scotland) Act 1995(60) for up to one year. By virtue of the regulation-making power in section 44(5), the Scottish Ministers can provide for such children to be detained in secure accommodation. The 2013 Regulations were made under this power.(61)
92.The amendments of section 44 made by section 19(2) change references to “residential accommodation” to references to “residential establishments”, as it is the latter that local authorities provide under Part 2 of the Children (Scotland) Act 1995, as well as inserting a definition of “residential establishment” into section 44(11). The amendments also insert new subsections (5A) and (5B) into section 44, mirroring the amendments made to section 51, and providing power for the regulations made under section 44(5) to make provision for 18 year olds to remain in secure accommodation rather than automatically being transferred to young offenders institutions. The definition of “secure accommodation” in section 44(11) is also replaced with a definition that ties in to the definition in the 2011 Act.(62)
93.Section 19(6) inserts new section 208A into the 1995 Act. That section makes provision for the detention of children under section 205 (children guilty of murder) and to children convicted on indictment of other offences. Under those sections, the place of detention is determined by direction made by the Scottish Ministers.(63) Section 208A(2) modifies those direction-making powers so that children cannot be detained in young offenders institutions or in prison. It also makes clear that secure accommodation can be used as the place of detention. Section 208A(4) to (6) make the same provision, for this section, as is made in sections 44(5) to (5B) and 51(6) to (8), for regulations about the use of secure accommodation.
94.Section 19(7) amends section 216 of the 1995 to insert a similar regulation-making power into that section. Section 216 makes provision for imprisonment and detention for non-payment of fines. Section 216(7) deals with cases where the person who has failed to pay a fine is a child, and provides for detention, rather than imprisonment, in a place chosen by a local authority. New subsections (8) to (10) will allow regulations to make provision for the use of secure accommodation in such cases.
95.Finally, section 19(5) amends section 208 of the 1995 to provide that, where a court orders that a child, convicted on indictment, be detained, the place of detention can be in any part of the United Kingdom.(64)