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 currently 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).

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, date of birth, place of birth and nationality 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 on the following basis:

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, or where the younger child is under 18 and is subject to a CSO the police will contact the local authority to help identify the most appropriate person to support the child.

Parental contact with the young person may be restricted only if the police deem this to be necessary in the interests of:

If the child is under 16 the local authority may arrange for someone to visit the child, although this contact may be restricted in exceptional cases.

If the child is under 16 (or under 18 and subject to a CSO), a lawyer must be with them during the police interview, unless there are exceptional circumstances.

An adult should be present during the interviewing of child under the age of 16 (or under 18 and subject to a CSO). This will usually be the parent or guardian: if not available, the police will contact the local authority to provide someone.

If the young person is aged 16-17 and not subject to a CSO, they can request an adult aged over 18 of their choosing to be informed of their entry to police custody and they may be able to visit the young person if requested. The young person can only waive access to a solicitor, if they are being interviewed, should the person they have informed they are in custody agrees with this decision.

Release from police custody

If a young person has attended voluntarily they are free to leave at any point unless they are arrested officially or not officially accused.

If a young person has been arrested "not officially accused" they can be released from police custody:

If a young person has been arrested officially accused and charged, they may be:

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, 2015). Decisions regarding jointly reported cases are for COPFS, although should be made in discussion with the Children's Reporter.

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 sentenced, 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).

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