Structured deferred sentences: guidance

Section 1: Introduction, legislative basis and policy context

1.1 Introduction

This document provides a high-level guide to the purpose, policy rationale and operation of Structured Deferred Sentences (SDS) in Scotland, for local authority justice social work services, youth justice services, and relevant partners.

SDS aims to provide a structured intervention for individuals upon conviction and prior to final sentencing. They are generally used for people in the justice system with a range of complex needs that may be addressed through social work and/or multi-agency intervention, but without the need for a court order. SDS also offers the opportunity for justice social work services and key partners to directly provide and tailor interventions for individuals. This may include, for example, components on risk-taking behaviour, decision-making, and victim impact, as well as interventions to address identified need.

SDS is used in a variety of ways and can provide a flexible and effective intervention which can help prevent individuals who have offended becoming further drawn into the justice system, as well as address the underlying causes of offending and contribute to safer and fairer communities for all.

This guidance has been developed in collaboration with Social Work Scotland, Community Justice Scotland, local authorities, and other partners. Particular thanks are extended to practitioners with experience of delivering SDS who have contributed to this guidance. It is aimed primarily at those engaged in the delivery of justice social work services and specifically SDS, but should also be of assistance to other organisations involved in the delivery of SDS. While we would encourage justice social work services to continue to offer and/or develop SDS in their areas, judicial engagement at local levels, as well as partnership arrangements with key stakeholders, is crucial to the establishment and operation of any schemes. The use of SDS in any particular area is ultimately at the discretion of the court.

The guidance is not designed to provide detailed instructions on the operational delivery of SDS in Scotland, acknowledging that SDS currently operates in some form in several local authorities and will be tailored to local need and priorities.  Rather, it seeks to highlight the context, purpose, principles, and some important considerations for SDS that should be common to all justice social work services and key partners whether they are currently delivering - or planning to deliver – SDS in Scotland. Services are therefore encouraged to use this guidance as a basis to develop and use SDS flexibly and innovatively in their local areas.

1.2 Legislative basis

Section 202 of the Criminal Procedure (Scotland) Act 1995 allows a court to “defer sentence after conviction for a period and on such conditions as the court may determine”. In practice, this could mean the court may defer the case for technical reasons, or for an update on progress where the individual is engaging with a service. When such a deferment involves a structured intervention managed by justice social work services it is known as a Structured Deferred Sentence.

SDS is also referred to in the Community Payback Order Practice Guidance (2019) which highlights how it might be used.

In all cases, at the end of the period of intervention the court retains the discretion to pass sentence in any manner that would have been appropriate at the time of conviction

1.3 Policy context

The SDS model in Scotland was developed due to policy and practitioner perceptions that ‘low tariff’ individuals were presenting high levels of need when being sentenced at court; they were frequently viewed as being ‘up-tariffed’ to enable them to receive social work support that was otherwise unavailable to them.  Three pilot schemes were thus introduced from 2005-2008 - please see Annex 1 for further information on these early pilot schemes^[1].

Successive policy drivers have served to highlight the broader imperative for expansion of SDS in Scotland. The Scottish Government’s Vision and Priorities for Justice in Scotland, which set out priorities for 2017-2020, had a focus on early intervention and responses which are proportionate, just, effective, and rehabilitative. This approach is complemented by the National Strategy for Community Justice^[2] which emphasises the growing need to shift criminal justice interventions upstream, based on the premise of the least intrusive intervention at the earliest possible time.

Community Justice Scotland’s Community Justice Outcome Activity annual report for 2019 highlighted good practice in SDS and recommended that Community Justice Partnerships should ensure that early opportunities to address needs within the justice system are maximised through the increased use of SDS, amongst other related measures such as Bail Supervision and Diversion from Prosecution.

SDS also fits in with wider evidence drawing attention to the ‘stickability’ of justice social work services, with the Hard Edges (2019) report highlighting that justice social work are frequently the main gateway to the co-ordination of support for people facing severe and multiple disadvantage, and offer proactive engagement – these are some of the core elements of SDS.

SDS has significant potential as an effective intervention which may serve to prevent individuals being further drawn into the justice system.  This complements the range of credible community disposals available across Scotland, as well as the implementation of the extension of the presumption against short sentences and wider efforts by a range of stakeholders to address the causes of offending, prevent re-offending, and improve life chances.

While further research on the operation and effectiveness of SDS in Scotland would be welcome, the evaluations to date alongside stakeholder feedback offer encouraging indications that SDS can be an effective intervention if resourced sufficiently and used in a proportionate and targeted way.

SDS, in some cases, could be more appropriate than the imposition of a longer-term disposal such as a Community Payback Order (CPO), particularly for those where a short-term intervention would more appropriately address areas of risk and need.  It could also be of benefit to those who may find it more difficult to manage the requirements of a CPO or Drug Treatment and Testing Order (DTTO), and reduce the risk, and associated impact of, non-compliance and breach associated with statutory orders.

It may also provide an opportunity for individuals to stabilise their circumstances and assess their motivation and ability to comply with a period of statutory supervision, again potentially reducing the risk of future breach and providing an alternative to short periods of custody.

Please also see Annex 1 for a brief summary of the SDS evaluations thus far.