It is essential that children and young people aged under 18 and their families understand the court process and are provided with appropriate support, guidance and assistance (Scottish Government, 2011; CYCJ, 2019). This is key as children and young people report experiencing the court process as:
“…a series of ‘rapid fire judgements’, from being in the cells, to seeing the social worker, to meeting your legal advisor and on to the courtroom. They felt lost and unsupported by all those they came into contact with during the process” (Cook, 2015, p.9).
This means all professionals must be able to provide clear and accurate information and any necessary support.
Types of criminal justice procedure
- Solemn procedure covers the most serious cases and involves trial in front of a judge or sheriff and a jury made up of 15 members of the public
- Summary procedure covers less serious offences and involves a trial by a sheriff or justice of the peace (JP) without a jury
Types of court
Deals with the most serious criminal cases. There is no limit on the length of custodial sentence or amount of fine that this court may impose.
Deals with all other criminal cases and:
- In solemn procedure, maximum sentence five years in custody; no limit on amount of fine
- In summary procedure, maximum sentence 12 months in custody; maximum fine £10,000 (unless otherwise provided for in the statute)
Justice of the Peace Court
Deals with minor criminal cases. Maximum sentence 60 days in custody; maximum fine £2,500.
Who will be in court?
- The child or young person charged with the crime, known as “the accused”. If a young person is told to appear in court they must do so. If they do not, a warrant could be issued for their arrest.
- The judge, sheriff or JP. They make sure that the law is followed and are responsible for deciding the sentence if the accused is convicted. Where there is no jury they will also decide upon a verdict having heard all the evidence.
- The jury (in serious cases). They decide upon a verdict having heard the evidence in the case.
- The prosecutor. Presents the evidence against the accused.
- The accused’s solicitor. The child or young person’s legal representative.
- The clerk of court. Calls the case, records the court’s proceedings, can give advice on court procedures and will issue and sign any relevant documentation. They may also provide legal advice to the JP in the JP court.
- The court officer or macer. Calls the child or young person and witnesses into the courtroom, shows the child or young person where to sit or stand and helps keep order in the courtroom.
- Possibly the court based social worker (although there is no legal requirement and local practice varies) to note what happens and provide any further information to the judge, sheriff or JP if required.
- Possibly an appropriate adult.
The accused’s solicitor, the prosecutor and the clerk of court, will normally sit below the judge in an area known as the well of the court. The judge’s seat is known as the bench.
At the start of a case
The child or young person may be asked if they plead guilty or not guilty to the charges:
- Pleads guilty
The case will move to sentence. The accused may plead guilty to the charges at any stage in the proceedings.
- Pleads not guilty
A date will be fixed for a trial at which evidence will be heard (a few weeks before this date there will be a hearing to confirm all parties – prosecution, defence – are ready for the trial to go ahead. If not, a new date will be fixed).
The court will decide what happens to the child or young person while awaiting trial:
- Detained in a place of safety determined by the local authority, secure care, or custody on remand as detailed in section 51 Criminal Procedure (Scotland) Act 1995. This can be for a period of seven to 140 days. This time may be deducted from any subsequent custodial sentence. Usually the court commits the child or young person to the local authority which it considers appropriate to be detained either in secure accommodation or in a suitable place of safety chosen by the authority (Scottish Government, 2018). The child may not be placed in secure accommodation under the “place of safety” arrangements unless the Chief Social Work Officer and the person in charge of the secure unit are satisfied this is necessary because the child:
- has previously absconded and is likely to abscond again and, if the child were to abscond, it is likely that the child’s physical, mental or moral welfare would be at risk;
- is likely to engage in self-harming conduct; or
- is likely to cause injury to another person.
- In these circumstances the Chief Social Work Officer must also be satisfied that it is in the child’s best interests that he or she is placed and kept in secure accommodation and that the placement is appropriate to the child’s needs having regard to the establishment’s statement of functions and objectives. Should the court decide the child needs to be remanded and seeks a secure care placement, this is not at the discretion of the local authority, though they may express a view if asked by the court. The home local authority is responsible for and funds the placement of a child in secure care for remand purposes and they must arrange transport to secure care and for future court appearances as required. When a young person is remanded, it would be beneficial for both the local authority and secure care providers to make the CYP Placement Manager aware of the case as this would assist with any future placement plans in the event that a custodial sentence is given.
- If a child is aged 16 or 17 and subject to a CSO, the court also has the power to commit the child to a YOI. If the young person is aged 16 or 17 and not subject to compulsory supervision then the court must commit him to a YOI (Scottish Government, 2018). The young person would be transported by GEOAmey. Where a young person under 18 has been remanded in custody in a YOI on a charge of murder, governors are asked to notify the CYP Placement Manager. Further information on the arrangements and processes for young people entering secure care or custody on remand can be found in the relevant sections of this resource.
- Released on bail with conditions that the child or young person must adhere to. These conditions will be read to the child or young person and provided in writing. There are standard conditions (set out in section 24 Criminal Procedure (Scotland) Act 1995) but the court may also impose special conditions. Breaching these conditions is a criminal offence. It is therefore crucial that the child or young person fully understands the conditions as breaching them can lead to a custodial sentence.
- Ordained (ordered) to appear at the next calling of their case.
At the trial
Both the prosecutor and the accused may call witnesses to give evidence.
The length of time needed for a trial varies.
After all the evidence has been presented
The jury, sheriff, judge or JP decides on one of three verdicts:
- Not guilty – the child or young person faces no further action
- Not proven – the child or young person faces no further action
Resources for this page
- A Guide to Bail Conditions in Scotland
- Attending a Criminal Court
- Courts, tribunals, sentencing and witnesses
- Courts Reform (Scotland) Act 2014
- Criminal Justice and Licensing (Scotland) Act 2010
- Criminal Procedure (Scotland) Act 1995
- Crown Office and Procurator Fiscal Service
- Families Outside Preparing for a Prison Sentence Information Sheet
- Find a court
- Information for those charged with an offence
- Judiciary and Courts (Scotland) Act 2008
- Scottish Courts and Tribunals
- Scottish Legal Aid Board
- CYCJ/Scottish Government. (2018). Child Accused Roundtable – summary of key themes. Glasgow: CYCJ.
- Centre for Youth and Criminal Justice (CYCJ). (2019). A Guide to Youth Justice in Scotland: policy, practice and legislation: Supporting all under 18s in the court system. Glasgow: CYCJ.
- Community Justice Authorities (CJAs). (2015). Framework for the support of families affected by the Criminal Justice System. Scotland: CJAs.
- Cook, O. (2015). Youth in justice: Young people explore what their role in improving youth justice should be. Glasgow: CYCJ.
- Inspectorate of Prosecution in Scotland. (2018). Thematic Report on the Prosecution of Young People. Edinburgh: Scottish Government.
- Nolan, D. (2015). Youth Justice: A Study of Local Authority Practice Across Scotland. Glasgow: Centre for Youth and Criminal Justice (CYCJ).
- Nolan, D., Dyer, F. and Vaswani, N. (2018). "Just a wee boy not cut out for prison" : Policy and reality in children and young people's journeys through justice in Scotland, Criminology and Criminal Justice, 18(5).
- Scottish Government. (2010). 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. (2010). National Outcomes and Standards for Social Work Services in the Criminal Justice System. Edinburgh: Scottish Government.
- Scottish Government. (2011). 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. (2018). Practice guidance: Convicted on Indictment Under Section 205(2) or Section 208 of the Criminal Procedure (Scotland) Act 1995. Edinburgh: Scottish Government.
- Smith, S., Dyer, F. and Connelly, G. (2014). Young Men in Custody: A report on the pathways into and out of prison of young men aged 16 and 17. Glasgow: CYCJ.