Remand, committal and detention of children
Section 18 – remand and committal of children before trial or sentence
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 “
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 (“
90.Note also that section 51(2A), which relates to the use of remand centres, is repealed by paragraph 16(2) of the schedule.(59)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)
Which itself depends on the change made by section 1 to the meaning of “child” in the 2011 Act.
For more on the meaning of secure accommodation, and the regulation of providers of “secure accommodation services”, see Part 4 of the Act and paragraphs 110 to 138 of these Notes.
Defined in section 51(1)(a)(i) of the 1995 Act by reference to the definition in section 202(1) of the 2011 Act. Note that section 26 of this Act amends the definition of “secure accommodation” in section 202(1).
See regulation 12 of the 2013 Regulations.
That repeal is linked to section 22 of the Act. See paragraphs 100 and 101 of these Notes.
They were also made under a number of other Acts.
So the definition in section 44 of the 1995 Act now matches that in section 51 of that Act.
See sections 205(2) and 208(1) of the 1995 Act. See also section 117 of the Scotland Act 1998, under which references to the “
Section 44(1) of the 1995 Act already makes provision for this for summary proceedings.
