Committal of offence & routes to court


Age

There are different criminal procedure rules for young people depending on when they are aged under 16 years or 16-17. This section provides general information on police procedures to both investigate crimes and charge someone with an offence. Criminal procedure can be quite complex and this section does not cover every possible scenario. However any young person subject of a criminal investigation will have their rights and the procedure being applied explained at the time.

For young people aged 16 or 17 years who are subject to a Compulsory Supervision Order (CSO) or those covered by the categories explained under section 199 Children's Hearings (Scotland) Act 2011 (see Mulholland, 2014), the processes for young people under the age of 16 will be followed.

The age of criminal responsibility in Scotland is eight and the age of criminal prosecution is 12.

A child under the age of eight years old is not deemed to be legally capable of committing a criminal offence. A child aged eight and above can be referred to the Children’s Reporter on offence grounds. A child under the age of twelve cannot be prosecuted in a criminal court (section 41a Criminal Procedure (Scotland) Act 1995).

Appropriate adult schemes

Appropriate adult schemes were set up in 1998 to:

The appropriate adult scheme applies only to those aged 16 and over covered by the above definition.

Police processes

If the police have reason to suspect a young person has committed an offence, they can stop the young person. The young person, if asked, must give their name, address and date of birth and wait until this is checked by the police.

Police try to avoid bringing young people to police stations. However if deemed necessary a young person can be asked to attend a police station:

During this time a young person may be searched and have their fingerprints, palm prints, DNA and photograph taken. The Police can apply for a warrant to take blood, urine or carry out an intimate body search. A Doctor will attend to carry out these examinations.

Rights

Whilst in police custody all young people have rights including the right to a private consultation with a solicitor before or during questioning by the police and to have one other person informed that they are in police custody.

If the young person is under 16 the police will automatically inform the parent or guardian, unless they too are suspected of being involved in the alleged offence. Parental access to a young person may be restricted only if the police:

An adult should be present during the interviewing of young people under the age of 16. This will usually be the parent or guardian: if not available, the police will contact the local authority to provide such an adult.

Release from police custody

A young person may be released from police custody:

Early and Effective Intervention or equivalent processes

Under the Whole System Approach (WSA) , justice agencies should aim to divert young people from prosecution and prevent them entering the adult criminal justice system (Scottish Government, 2011a).

Where a young person has been charged, the police should consider referring the young person for Early and Effective Intervention (EEI), unless the offence is excluded under:

Local EEI processes vary, with the Framework of Core Elements created to aid consistency across Scotland (Scottish Government, 2015).

Actions that can be taken under EEI include:

Referral to the Children’s Reporter

When a young person is referred to the Children's Reporter, the Children’s Reporter may gather information about the young person's circumstances to decide whether there are legal 'grounds' (as detailed in section 67(2) of the Children's Hearings (Scotland) Act 2011) and whether a compulsory supervision order is necessary for the young person. If so, the Children's Reporter will arrange a hearing. Committal of an offence is one such legal ground.

A children’s hearing is a legal meeting arranged to consider and make decisions about children and young people. The hearing consists of three members of the local community who act as lay tribunal members, called panel members. The hearing can make a number of different decisions:

For more information see Children’s Hearings Scotland and Scottish Children Reporter Administration.

Jointly Reported Cases

Young people:

Have to be ‘jointly reported’ by the police to Procurator Fiscal and the Children’s Reporter as per the Lord Advocate’s Guidelines for Reporting to Procurators Fiscal of offences alleged to have been committed by children (Mulholland, 2014).

The presumptions in jointly reported cases are:

The factors that should be taken into account in overriding either presumption are detailed in the Joint Agreement in Relation to the Cases of Children Jointly Reported to the Procurator Fiscal and the Children’s Reporter (COPFS, 2010). Decisions regarding jointly reported cases are for COPFS, although should be made in discussion with the Children’s Reporter.

After referral to Procurator Fiscal

When a case is referred to the Procurator Fiscal and there is sufficient evidence of an offence, the options can include:

The COPFS Prosecution Code (2001) stipulates the factors to be taken into account when making any decision in relation to prosecution and options.

Court

Before court

Assisting Young People aged 16 and 17 in Court (Scottish Government, 2011b) describes what should happen before a court appearance regarding:

If a young person aged under 16 or 16-17 and subject to a CSO is to appear in court, the young person’s social worker should, at the earliest opportunity, contact the Children and Young Person’s (CYP) Placement Manager at Scottish Government (Mary Amos: 0131 244 0996; mary.amos@gov.scot) to share information. This helps ensure the young person, if remanded, is placed in the most appropriate establishment and may allow the provisional booking of a bed in secure care.

When the young person appears in court from police custody or a place of safety, the court social worker should visit the young person in the cells before the court appearance to explain the court process, answer any questions and offer assistance (within set boundaries – Scottish Government, 2011b). Local practice varies but usually there will be arrangements for this service to be available (Scottish Government, 2010a).

If prosecution goes ahead

The criminal justice system can be confusing and frightening both for the young person and their family, especially if they are new to it.

Court-based family support – other than posters, leaflets, or information from the defence solicitor – is not commonly available, and defence solicitors are often unaware of what support might be available.

This means all statutory agencies – local authorities, the judiciary, court staff, police, COPFS – should bear in mind (Scottish Government, 2011b):

It has been highlighted above that not all young people involved in offending will progress to court and prosecution but the remainder of the stages in the map will focus on those who do.

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