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:
- Ensure that a mentally disordered person (defined as experiencing any mental illness, personality disorder, learning disability) is not at a disadvantage during a police interview
- Support the person to understand sufficiently what is happening and to communicate effectively in criminal investigations or proceedings
The appropriate adult scheme applies only to those aged 16 and over covered by the above definition.
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:
- On a voluntary basis; or
- Having been detained - If the police have reasonable grounds to suspect a young person has committed an offence punishable by imprisonment, they can be detained for up to 12 hours in a police station to enable further inquiries. During this time the young person would be released or arrested: or
- Having been arrested - If the police have sufficient evidence that a young person has committed a more serious offence or it is necessary to prevent further offending, they may be held in custody (or in some instances a place of safety)
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.
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:
- Suspect the parent or guardian is involved in the alleged offence; or
- Deem it essential for the investigation; or
- For the wellbeing of the young person
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:
- If they have been detained and the grounds for detention no longer exist, they will be released without charge; or
- After they have been charged with an offence, they may be released unconditionally – a report may be submitted to the Crown Office Procurator Fiscal Service for consideration of prosecution or (dependant on the age of the child or young person and the nature of the offence) may be diverted to local Early and Effective Intervention processes (see below); or
- After they have been charged with an offence, they may be released on a written undertaking. This is an agreement, by the child or their parent/guardian, that they will attend at court at a specified time (as per Criminal Procedure (Scotland) Act 1995); or
- May (in certain circumstances) be kept in police custody (or in some instances a place of safety) (as detailed in section 43 Criminal Procedure (Scotland) Act 1995).
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:
- Reporting to Procurators Fiscal of offences alleged to have been committed by children (Mulholland, 2014) (see below on Jointly Reported Cases);
- Crown Office and Procurator Fiscal Service (COPFS) guidelines (applies to 16-17 year olds); or
- Police consider a referral to the Children’s Reporter is necessary
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:
- No further action
- Direct police measures
- Single agency support e.g. through education, health, social work
- Referral for targeted intervention e.g. restorative justice, substance misuse work
- Referral to the Children’s Reporter
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:
- That formal, compulsory supervision measures are not required and discharge the case
- The panel members can decide that they need more information to help them make a decision and they can defer the hearing until a later date. In this case they can make decisions about what should happen to the young person in the meantime
- That a compulsory supervision order is needed under the Children’s Hearings (Scotland) Act 2011 (section 83) (see the concurrent orders section).
Jointly Reported Cases
- Aged under 16;
- 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;
- Charged with certain offence types
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:
- For children aged under 16, that the Children’s Reporter will deal with the case
- For young people aged 16 or over, that the Procurator Fiscal will deal with the case
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:
- Prosecution in court;
- Procurator Fiscal direct measures e.g. fiscal warning, fiscal fine, compensation order;
- Diversion from Prosecution – requires an assessment from social work to determine if this is appropriate. If the case is suitable for diversion, the young person would undertake a programme and/or be directed to services tailored to their particular needs during which time prosecution would be suspended. Failure to complete the programme could result in the case returning to court;
- No action being taken, if none is required in the public interest
The COPFS Prosecution Code (2001) stipulates the factors to be taken into account when making any decision in relation to prosecution and options.
Assisting Young People aged 16 and 17 in Court (Scottish Government, 2011b) describes what should happen before a court appearance regarding:
- Identification of young people
- Information gathering and sharing by social work, court social workers, defence agents, and other agencies
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; firstname.lastname@example.org) 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):
- Outcomes for young people are improved by partnership working and effective information sharing and communication, including with young people and their families
- Cases should be dealt with as quickly as possible as sentences have a greater impact upon young people when imposed soon after the offence
- The agreed model of programming court cases involving 16-17 year olds should be followed
- Young people must be supported and their needs addressed as failure to do can result in a cycle of reoffending
- Family members are not guilty and each family is unique, with multi agency working and the inclusion, engagement and connection of family members key (CJAs, 2015)
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.
Resources for this page
- Children’s Hearings Scotland
- Criminal Procedure (Scotland) Act 1995
- Children's Hearings (Scotland) Act 2011
- Crown Office and Procurator Fiscal Service
- Disclosure Scotland
- Edinburgh Study of Youth Transitions and Crime
- Letter of Rights for people in police custody
- Police Scotland
- Police Scotland Know Your Rights
- Scottish Appropriate Adult Network
- Scottish Children Reporter Administration
- Centre for Youth and Criminal Justice (CYCJ). (2015). A Guide to Youth Justice in Scotland: Early and Effective Intervention. Glasgow: CYCJ.
- Community Justice Authorities (CJAs). (2015). Framework for the support of families affected by the Criminal Justice System. Scotland: CJAs.
- COPFS. (2010). Joint Agreement in Relation to the Cases of Children Jointly Reported to the Procurator Fiscal and the Children’s Reporter. Scotland: COPFS.
- Crown Office and Procurator Fiscal Service (COPFS). (2001). Prosecution Code. Scotland: COPFS.
- Mulholland, F. (2014). Lord Advocate's Guidelines to the Chief Constable on the Reporting to Procurators Fiscal of offences alleged to have been committed by children: Revised categories of offence which require to be Jointly Reported. Scotland: COPFS.
- Nolan, D. (2015). Youth Justice: A Study of Local Authority Practice Across Scotland. Glasgow: CYCJ.
- Scottish Government. (2010a). National Outcomes and Standards for Social Work Services in the Criminal Justice System: Criminal Justice Social Work Reports and Court-based Services Practice Guidance. Edinburgh: Scottish Government.
- Scottish Government. (2010b). National Outcomes and Standards for Social Work Services in the Criminal Justice System. Edinburgh: Scottish Government.
- Scottish Government. (2011a). Diversion from Prosecution Toolkit: Diverting Young People from Prosecution. Edinburgh: Scottish Government.
- Scottish Government. (2011b). Assisting Young People aged 16 and 17 in Court: A toolkit for Local Authorities, the Judiciary, Court Staff, Police, Crown Office and Procurator Fiscal Service and Service Providers. Edinburgh: Scottish Government.
- Scottish Government. (2015). Early and Effective Intervention – Framework of Core Elements. Edinburgh: Scottish Government.
- Scottish Law Commission. (2002). Report on Age of Criminal Responsibility. Edinburgh: Scottish Law Commission.