Criminal Appeal Court issues judgment on sentencing of ‘statutory child’

Lady Dorrian
Lady Dorrian

The Crown has successfully challenged the sentence of detention in a young offenders’ institution imposed on a 16-year-old boy convicted of sex offences.

The High Court of Justiciary Appeal Court upheld the Lord Advocate’s submission, which was adopted by the respondent, that as a “statutory child” the sentence imposed upon him ought to have proceeded in terms of section 208 of the Criminal Procedure (Scotland) Act 1995, under which the Scottish Ministers could direct the place and conditions for the detainment, as opposed section 207.


The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that the respondent “GO’D” pled guilty to two charges contrary to the Sexual Offences (Scotland) Act 2009 at a preliminary hearing at Glasgow High Court in November 2018.

At the time of sentence, the 16-year-old was the subject of a compulsory supervision order in terms of the Children’s Hearings (Scotland) Act 2011.

In mitigation, referring to a psychological report, counsel for the respondent had submitted that any period of detention should be made in terms of section 208 as opposed to section 207, which would have had the effect that his detention would have taken place in such place and on such conditions as may be directed by the Scottish Ministers. 

However, he was sentenced to periods of detention in a young offenders’ institution, under section 207 of the 1995 Act. 

The appeal raised the question of the competency of a sentence imposed under section 207 . 

In support of an argument that it was not competent to proceed under section 207, reference was made to Anderson v McGlennan 1998 SCCR 552, a summary case in which the Crown had conceded that the imposition of a sentence of detention on a “statutory child” such as the respondent was not competent, and that the sentence of detention should have been imposed under section 44 of the 1995 Act, which provides that in a summary case the sheriff may order a child to be detained in residential accommodation for up to a year for any offence for which it would be competent to impose imprisonment on someone over the age of 21.

‘Statutory child’

The Crown argued that the respondent was someone who fell within the definition of “child” in section 307 of the 1995 Act, being someone between 16 and 18 subject to compulsory measures of supervision. 

As such the sentence imposed upon him ought to have proceeded in terms of section 208(1) of that Act, under which the Scottish Ministers could direct the place and conditions for the detainment. 

Where the accused is a “statutory child”, it was not competent to proceed to sentence under section 207, and any detention which the court determines to be necessary must be imposed under section 208. 

In Anderson v McGlennan – a case which proceeded under section 44 of the 1995 Act, which is the analogue of section 208 in the context of summary proceedings – the Crown’s concession that the imposition of a sentence of detention on a statutory child was not competent had been accepted, the court passing the bill of suspension challenging the competency of the sentence imposed. 

It was reasonable to infer that the court accepted that where detention was imposed on a statutory child the sentence required to proceed in terms of section 208. 

Textual consideration of sections 207 and 208 also supported this conclusion: both sections provide for a sentence of detention to be imposed, but only where no other method of dealing with the offender is appropriate: the difference relates only to the place and conditions which apply to that sentence. 

Section 208, it was submitted, should be regarded as a “lex specialis” to the effect that while a sentence of detention may be imposed on a person not less than 16 but under 21, where that individual is a statutory child, he falls to be sentenced only under section 208.

Sentence ‘not competent’

Allowing the appeal, the judges observed that the concept of such a person as a “statutory child” has been part of the definition of “child” since the enactment of the Criminal Procedure (Scotland) Act 1975, the effect of which is that the respondent was indeed a “child” at the time of being sentenced.

Delivering the opinion of the court, the Lord Justice Clerk said: “The question which arises is whether, in the case of someone such as the appellant, the fact that the individual is a statutory child means that he must be sentenced under section 208 rather than under section 207. In our view there are good reasons to think that this is so.

“Each section is concerned with the imposition of a sentence of detention, one in respect of a young person, the other in respect of a child. In each the test is that no other method of dealing with the offender is appropriate. 

“In each case the court requires to be satisfied that nothing other than detention is appropriate: it is not the case that the court may determine under section 208 that another type of detention ie. detention in a Young Offenders’ Institution under section 207, is appropriate. Where the young person is also a child by virtue of the statutory definition, it is in our view section 208 which applies, not section 207.”

Lady Dorrian concluded: “We accept the submission of the Lord Advocate that the underlying policy of the Act is that children should be dealt with differently from more mature offenders; and that the principle is to enable a flexible approach to be taken to the sentencing of children, according to their changing circumstances and needs. 

“The clear policy is that a statutory child should not be treated any differently to a natural child. The interpretation which we have identified is also consistent with the modern approach to dealing with child offenders.” 

The court therefore allowed the appeal, quashed the sentences and imposed periods of detention under section 208, namely “in such place and on such conditions as the [Scottish Ministers] may direct”, consisting of 19 months in respect of charge 2; and an extended sentence of six years and four months, being a custodial term two years and four months and an extension period of four years in respect of charge 6.

© Scottish Legal News Ltd 2020

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