Types of legal detention
Custodial sentences
A custodial sentence is a sentence of imprisonment or detention either:
- of a person (between the ages of 15 and 20) in a young offender's institution
- of an adult offender
The term ‘custodial sentence’ includes a deferred sentence of imprisonment at the end of criminal proceedings in Scotland. This is also known as a suspended sentence in the rest of the UK.
A deferred sentence is when the individual is not in prison but can be sent to prison if they commit an offence during a period of time determined by a judge. This is normally between 3 to 12 months.
Individuals who are given a deferred sentence are still entitled to be paid for entitlement to ADP components, unless they enter legal detention during this time. If this happens, the normal rules above apply for individuals in legal detention after 28 days for 16- and 17-year-olds, and for those aged 18 and over respectively.
Example: an individual commits an offence during a deferred sentence and enters legal detention
David, who is 19, is entitled to the mobility component of ADP at the standard rate. A judge rules during legal proceedings that he should be given a deferred sentence of 8 months. David is still entitled to be paid for the mobility component of ADP, because he is not in legal detention.
However, 6 months later, David commits a second offence and is taken into legal detention. His entitlement to payment of the mobility component of ADP should stop after 28 days in legal detention.
When a sentence has been imposed, a higher court can later either:
- quash or cancel the conviction
- substitute the sentence with an order such as a community pay back order or a fine
An individual’s payments of the daily living component and/or mobility components of ADP should begin again once they are released from legal detention, so long as they still meet the eligibility criteria.
An individual cannot receive backdated payment of ADP for the time they were in legal detention.