Types of legal detention
Custodial sentences
A custodial sentence is a sentence of imprisonment or detention 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 another 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 PADP unless they enter legal detention during this time. If this happens, they will no longer be paid PADP after they spend 28 days in legal detention.
Example: an individual commits an offence during a deferred sentence and enters legal detention
Barry is entitled to PADP at the lower rate. A judge rules during legal proceedings that Barry should be given a deferred sentence of 9 months. Barry should still be paid PADP during this time because he is not in legal detention.
Barry commits a second offence 3 months later and is taken into legal detention. Barry’s payment of PADP 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.
Payment of PADP should begin again once the individual is released from legal detention, so long as they still meet the eligibility criteria.
An individual cannot receive backdated payment of PADP for the time they were in legal detention.