It is essential that all children and their families understand the court process and are provided with appropriate support, guidance and assistance (Scottish Government, 2011; CYCJ, 2020a). This is key, as children report:

“…[experiencing court 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).

Research with children, their families and professionals has also highlighted that:

“... a lack of understanding of the court process, and the language used throughout all stages of the process, was a barrier to even the most basic participation in justice” (McEwan et al., 2020, p. 14).

The Independent Care Review (2020, p.41) has also concluded:

“Scotland must consider how to ensure that children have the totality of their cases dealt with in an environment that upholds their rights and allows them to effectively participate in proceedings. Traditional criminal courts are not settings in which children’s rights can be upheld and where they can be heard.”

This means all professionals must be able to provide clear and accurate information and any necessary support. The support provided to children should be holistic and individualised. This includes practical supports to address identified needs, process and procedural guidance, links between and across all professionals who are involved in a child’s life and journey through the justice system, and support throughout and until completion of the court process. This must include children’s rights-based legal advice, advocacy and representation (Standard 5 Scottish Government, 2021).

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. The documents which set out the initial details of the charges is a “petition” and the petition hearing is a hearing held in private at the earliest stage of a serious criminal prosecution. The accused is later served with an “indictment” that finalises the charges to be faced.
• Summary procedure covers less serious offences and involves a trial by a sheriff or justice of the peace (JP) without a jury. The “complaint” is the document in summary cases that sets out the charges against the accused.

Types of court

High 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.

Sheriff Court

Deals with other criminal cases and:

• In summary procedure, maximum sentence 12 months in custody; maximum fine £10,000 (unless otherwise provided for in the statute)
• In solemn procedure, maximum sentence five years in custody; no limit on amount of fine
• If a sheriff in a solemn case decides that the maximum sentence at the Sheriff Court level isn’t high enough, they can send (remit) the case to the High Court for sentence.

Justice of the Peace Court

Deals with minor criminal cases. Maximum sentence 60 days in custody; maximum fine £2,500.

At court

Who will be in court?

• The child charged with the crime, known as “the accused”. If 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 justice of the peace (JP). They make sure that the law is followed and are responsible for deciding the sentence if the child 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 child.
• The accused’s solicitor. The child’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 and witnesses into the courtroom, shows the child 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 child’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.

Court appearances and cases will either take place physically within a court building or virtually.

At the start of a case

In all cases, the child will be asked to confirm details about themselves by the clerk of court, name and address. The different options available at the child’s first appearance in court vary dependent on whether their case is under solemn or summary procedure.

Under summary procedure the child can:

• Plead 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 date is also usually set for an intermediate diet in the weeks prior to the trial date that the child must attend unless excused by the court in advance. The purpose of the intermediate diet is as set out in s.148 Criminal Procedure (Scotland) Act 1995. A trial date will then be set.
• Seek a continuation without plea
  If more time is needed before a plea of guilty or not guilty can be entered, a case can be continued without plea with timescales dependent on whether a child has been remanded or not.

Under solemn procedure the child will first appear on petition at the Sheriff Court. This first appearance is in a closed court in private, consists of the child “making no plea”, then an application for bail. The outcome of the first appearance on petition is that the child will be “committed for further examination”. If bail is granted, this means that the child can leave court and will receive an indictment at some point over the next few months and any trial must start within one year of their first appearance in court. If bail is refused, then the child will be remanded in custody for seven days and must appear in court within 10 days - again, they will not be asked if they plead guilty or not guilty - at a hearing which is known as the “full committal”. At this time, the child can again apply for bail and if refused, the child will be remanded pending service of an indictment, and eventual trial which must start within 110 days of full committal if tried by sheriff and jury and 140 days if the case is to be tried in the High Court (as detailed in the Criminal Procedure (Scotland) Act 1995 and Criminal Procedure (Amendment) (Scotland) Act 2004). There are certain circumstances where the time limits can be extended, however it would be expected that these time limits are strictly applied. In the period between a child’s appearance on petition and the service of an indictment, a child can offer to plead guilty as governed by section 76 of the Criminal Procedure (Scotland) Act 1995. If such a plea is accepted by the Crown, the child will also be given notice to appear at court, at which point the plea of guilty can formally be made, and the case will move to sentence. When the child is served with an indictment (the document that specifies the charges on which the accused is to face trial), a court date (either a First Diet if the case is to be heard in the Sheriff Court, or a Preliminary Hearing if it is to be heard in the High Court) will be communicated to the child. The child must attend this hearing. This will be the first opportunity for the child to enter a plea in respect of the charge(s) on the indictment. If the child pleads guilty, the case will move to sentence. If the child pleads not guilty, a trial date will be set.

The court will decide what happens to the child while awaiting trial, which can be that the child is remanded, bailed or ordained to appear:

Remand

• The impacts of remanding a child can be significant, disruptive and traumatic (McEwan et al., 2020). Under Article 37 of the UNCRC “…no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child…shall be used only as a measure of last resort and for the shortest appropriate period of time”. Depriving a child of their liberty has significant and potentially catastrophic impacts and significant implications for children’s rights and wellbeing (see Lightowler, 2020; Armstrong and McGhee, 2020). It is crucial that all alternatives to remand are fully explored and information about intensive community supports is provided to the court.
• If remanded, a child can be 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 (as above). This time may be deducted from any subsequent custodial sentence.
• Where a court remands a child under 16, it shall commit the child to local authority care. The court can require this to either be in secure accommodation or a suitable place of safety chosen by the authority (which can include secure accommodation). 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 (see The Secure Accommodation (Scotland) Regulations 2013).
• Should the court require that the child is remanded to secure accommodation, this is not at the discretion of the local authority, though they may express a view if asked by the court. In each of the above situations, the child’s home local authority is responsible for and funds the child’s placement in secure care, and they must arrange transport to secure care and for future court appearances as required. Transport should be appropriate for children, minimise delays and not put them in contact with adult prisoners or accused. Children should be supported to understand what to expect of their transport and be treated with dignity, compassion, sensitivity and respect (Scottish Government, 2020).  
• When a child is remanded to secure care, it would be beneficial for both the local authority and secure care providers to make the CYP Placement Manager aware as this would assist with any future placement plans if the child is sentenced.
• If the child is aged 16/17 and subject to a CSO, the court can commit the child to secure accommodation as above. Alternatively, the court also has the power to commit the child to a Young Offenders Institution (YOI). In such cases, in keeping with the Whole System Approach (WSA) and Standards for those working with children in conflict with the law, children should be committed to secure care. This has been strengthened with the Independent Care Review (2020, p.91) concluding that “Young Offenders Institutions are not appropriate places for children and only serve to perpetuate the pain that many of them have experienced. There are times where it is right for children to have their liberty restricted, but that must only be done when other options have been fully explored and for the shortest time possible and in small, secure, safe, trauma-informed environments that uphold the totality of their rights”.
• If the child is aged 16/17 and not subject to a CSO, as there are no remand centres in Scotland, the court has no other option but to commit to a YOI. The child would be transported by GEOAmey. Where a child has been remanded in a YOI on a charge of murder, governors are asked to notify the CYP Placement Manager.

These arrangements and responsibilities apply for the period of remand, until the case returns to court (if a different decision about the child’s placement is made) or until liberation.

Further information on the arrangements and processes for children entering secure care and custody can be found in the relevant sections of this resource. Further information on roles and responsibilities can be found at the Scottish Government (2018).

Where a child has been remanded and is then released (for example through the processes detailed above, PF release or bail), the child should be provided with support by their social worker, secure care, and/or from the Scottish Prison Service as appropriate.

Release on bail

Released on bail with conditions that the child must adhere to. These conditions will be read to the child 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. Bail conditions can have significant impact on children’s lives, families and pro-social opportunities and can be difficult for children to comply with (McEwan et al., 2020). Breaching these conditions is a criminal offence. It is therefore crucial that the child fully understands the conditions and may benefit from consistent encouragement and reminders provided in a manner that fits with their stage of development and cognitive functioning, as breaching them can lead to a custodial sentence. As part of court support provision, the child should be encouraged and enabled to comply with bail conditions and this may be provided through bail supervision that is responsive to the different needs of children as opposed to adults.

Child friendly resources on the use and impact of bail and remand with children in Scotland are available.

Ordained to appear

The child is bound 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:

• Guilty
• Not guilty – the child faces no further action
• Not proven – the child faces no further action