This section aims to provide 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 child subject of a criminal investigation will have their rights and the procedure being applied explained at the time. It is critical children are supported to understand this information, their rights, decisions and their reasons.

Under the UNCRC and particularly Article 40, every child alleged as, accused of, or recognised as having infringed the penal law has various rights, including to be treated in a manner consistent with the promotion of their sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others, and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. To achieve this state parties and agencies have various responsibilities (Scottish Government, 2021a; 2021b).

Age

The age of criminal responsibility in Scotland is 12.

In Scotland, the legal status of a child is complex and defined differently by different pieces of legislation. The Children and Young People (Scotland) Act 2014 and the United Nations Convention on the Rights of the Child define a child as someone under age 18. However, in the Children (Scotland) Act 1995 (section 93), Criminal Procedure (Scotland) Act 1995 (section 307) and Children's Hearings (Scotland) Act 2011 (section 199) a child is defined as:

• A person under the age of 16 years; or
• A person aged 16 and 17 years who is subject to a compulsory supervision order (CSO); or
• A person over the age of 16 years who was referred to the Principal Reporter before they turned 16, but a ‘relevant event’ has not yet occurred (a ‘relevant event’ is defined as: the making of a CSO; the notification to the person that the question of whether a CSO should be made will not be referred to a children’s hearing; or the discharge of the referral to the Principal Reporter).

In this resource the term child is used to describe anyone under the age of 18. We have sought to highlight where there are different criminal procedure rules if the individual does not meet the narrow definition of a child as detailed above.

Police processes

If the police have reason to suspect a child aged under 18 has committed an offence, they can stop the child. The child, 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 children to police stations. However, if deemed necessary a child (aged under 18) may be asked to attend a police station on the following basis:

• Voluntarily (attends of their own free will for the purpose of being questioned on suspicion of having committed an offence); or
• Arrested ‘not officially accused’ (i.e. a suspect) to enable further inquiries including interviewing the child. In such instances the child can be held in a police station for up to 12 hours. They can be released during this time and subsequently re-arrested but generally only for a total period of 12 hours. In exceptional circumstances the total time which a child can be held in police custody can be extended for a further 12 hours; or
• Arrested officially accused (i.e. there is sufficient evidence to charge the child).

During this time a child may be searched. If the child has been arrested (either ‘not officially accused’ or officially accused) they may 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.

Children and young people have co-produced a guide for children and young people about their rights in custody.

Rights

Whilst in police custody all children 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 child is under 16, or aged 16 and 17 and subject to a CSO or Interim CSO (ICSO):

• The police will automatically inform the child’s parent or guardian, who must be granted access to the child
• The child cannot be interviewed by the police without a solicitor being present and this right cannot be waived
• A responsible adult should be present during the interview. This will usually be the parent or guardian: if not available, the police will contact the local authority to provide someone
• If the child is under 16 the local authority may arrange for someone to visit the child

If the child is aged 16-17 and not subject to a CSO:

• The child can request an adult aged over 18 of their choosing be informed of their entry to police custody and they may be able to visit the child if the child requests this
• The child can be interviewed by the police without a solicitor being present but this right can only be waived if the person they have informed they are in custody agrees with this decision.

Appropriate adult schemes

Appropriate adult schemes were set up in 1998 and amended by the Criminal Justice (Scotland) Act 2016 (Support for Vulnerable Persons) Regulations 2019 and Criminal Justice (Scotland) Act 2016. Police have a duty to ensure that:

• Vulnerable persons during a criminal investigation by the police, including who is suspected of committing an offence or alleged offence or, is officially accused of committing an offence or alleged offence; Or
• A person in custody who owing to mental disorder (defined as experiencing any mental illness, personality disorder, learning disability) appears to the constable to be unable to understand sufficiently what is happening, or communicate effectively with the police

Can access appropriate adult support to:

• Help the vulnerable person to understand what is happening, and
• Facilitate effective communication between the vulnerable person and the police.

The appropriate adult scheme applies only to those aged 16 or over involved in any police process, believed by a constable to be vulnerable and that appropriate adult support is required. Local authorities have a duty to deliver Appropriate Adult services and the Care Inspectorate to assess the quality of the services. An appropriate adult must have undertaken specialist training and have specific experience for this role.

Release from police custody

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

If a child has been arrested “not officially accused” they can be released from police custody:

• Without charge because they are no longer a suspect; or
• Because there are no longer grounds for their continued arrest but the child is still a suspect, meaning they could be re-arrested should further evidence come to light; or
• On investigative liberation to allow further investigation into the alleged offence. The child will be released with conditions e.g. not to interfere with witnesses or evidence, for up to 28 days. The police must demonstrate how the investigative liberation assists in the proper conduct of the ongoing investigation, with this rationale being recorded and available for scrutiny at any subsequent review or appeal. The police have the power to re-arrest the child during the period of investigative liberation. If they breach the conditions of their investigative liberation they could be arrested and charged. The child can also apply to the Court to have these conditions reviewed.

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

• Released unconditionally - a report may be submitted to the Crown Office Procurator Fiscal Service for consideration, including of prosecution, or the child (dependant on the nature of the offence) may be diverted to local Early and Effective Intervention processes (see below); or
• Released on a written undertaking. This is a signed agreement that states that they will attend court at a specified time and can include other conditions. If a child subject to a CSO refuses to sign an undertaking agreement, their parent/guardian can be asked to sign on their behalf. If a child is aged 16-17 and not subject to a CSO, only they can sign the undertaking which is necessary prior to leaving police custody (as per Criminal Justice (Scotland) Act 2016); or
• Kept in a place of safety. There is a presumption of liberty and a duty on police not to detain people unreasonably or unnecessarily (as per Criminal Justice (Scotland) Act 2016), although this must be balanced against full consideration of risk and other factors. In certain circumstances a child may be kept in police custody or a place of safety (as detailed in section 22 of the Criminal Justice (Scotland) Act 2016). If the child is under 16 or under 18 and subject to a CSO or ICSO, they must not be kept in a police custody unless keeping the child in a place of safety other than a police station would be impracticable, unsafe or inadvisable due to their physical or mental health. Police are responsible for transporting these children to court. If the child is aged 16-17 and not subject to a CSO, they will be transported to court by GEOAmey.

Early and Effective Intervention or equivalent processes

Under the Whole System Approach (WSA), justice agencies should aim to divert children from formal systems, the Children’s Hearings System and prevent them entering the justice system (Scottish Government, 2011a; Standard 2 Scottish Government, 2021b).

Where a child aged under 18 has been charged, the police should consider referring them 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

EEI may also be implemented as a preventative response where a child’s behaviour has not yet resulted in them being charged; however, action is required which may prevent further needs arising. The implementation and application of EEI is supported by UNCRC Article 40 3(b) “whenever and appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected” on condition all other aspects of the article are met.

The overall aim of EEI is to improve the outcomes for children by ensuring proportionate responses, support and interventions, which are individualised to the needs and context of that child and provided at the right time (Scottish Government, 2021b; CYCJ, 2020a). Such support should be offered on a voluntary basis, to meet a child’s needs, promote their wellbeing and reduce the risk of coming into conflict with the law (CYCJ, 2020a; Scottish Government, 2021b). Supports must uphold-rights, be holistic, consider the circumstances of the whole family and actively include the child’s views and voice and that of their family in decision making (Scottish Government, 2021b; 2021c). The EEI Framework of Core Elements sets out best practice for the effective delivery of EEI, providing a shared language and a commonality of processes which is crucial as local EEI processes vary (Scottish Government, 2021c).

Actions that can be taken under EEI include:

• No further action (either due to no need for intervention having been identified or current measures and existing supports deemed to be sufficient to address the child’s needs)
• Direct police measures
• Single agency support (e.g. through education, health, social work) which should be individualised to the needs of the child or young person
• Referral to a targeted intervention such as restorative justice, fire service programme, training and employment or substance use service
• Referral to the Children’s Reporter and/or COPFS

Referral to the Children’s Reporter

Under the Whole System Approach, children should be supported through the Children’s Hearing System as opposed to the adult court, where possible and appropriate. Courts have consistently been identified as settings in which children’s rights cannot be upheld and where it is difficult for children to understand, participate and be heard in proceedings (Independent Care Review, 2020; Lightowler, 2020).

When a child is referred to the Children's Reporter, the Children’s Reporter may gather information about their 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 (CSO) is necessary for the child. If so, the Children's Reporter will arrange a hearing. Committal of an offence is one such legal ground for children over the age of 12.

A children’s hearing is a legal meeting arranged to consider and make decisions about a child. 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 including that:

• Formal, compulsory supervision measures are not required and discharge the case
• More information is needed to help the panel 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 child in the meantime.
• A compulsory supervision order is needed under the Children’s Hearings (Scotland) Act 2011 (section 83) (see the concurrent orders section) which can include various conditions such as a requirement that the child reside at a specified place, regulating contact between the child and a specified person, a movement restriction condition, or a secure accommodation authorisation

All children in conflict with the law in the Children's Hearings System should have their needs and risks assessed using the GIRFEC National Practice Model and appropriate structured professional judgment risk assessment tools for behaviours which may pose a risk of harm to others (Scottish Government, 2021b). The evidence base in the Risk Management Authority (RMA) Risk Assessment Tools Evaluation Directory (RATED) can be utilised to inform the use of appropriate tools. When a child continues to be in need of care and protection, a CSO must not be terminated due to their non-engagement alone, or due to there being an outstanding matter or order via the Criminal Justice System in place (or pending) (Scottish Government, 2021b).

For more information see Children’s Hearings Scotland and Scottish Children Reporter Administration (including specific sections and materials, including film and audio, for children and young people) and Standard 3 Standards for those working with children in conflict with the law.

Jointly Reported Cases

Children:

• Aged under 16 charged with certain serious offence types;
• A person aged 16 to 17 years who is subject to a compulsory supervision order (CSO); or
• A person over the age of 16 years who was referred to the Principal Reporter before they turned 16, but a ‘relevant event’ has not yet occurred (a ‘relevant event’ is defined as: the making of a CSO; the notification to the person that the question of whether a CSO should be made will not be referred to a children’s hearing; or the discharge of the referral to the Principal Reporter)

have to be ‘jointly reported’ by the police to the Crown Office and Procurator Fiscal Service (COPFS) 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; see also Standard 4 Scottish Government, 2021b).

In relation to any child (as defined above) who has been jointly reported, there is a presumption that the child will be referred to the Children’s Reporter in relation to the jointly reported offence.

The factors that should be taken into account in overriding this presumption are detailed in the decision making in cases of children jointly reported to the COPFS and Children’s Reporter (COPFS/SCRA, 2019). Decisions regarding jointly reported cases are for COPFS, although should be made in discussion with the Children’s Reporter.

After referral to COPFS

“Where appropriate, children must not enter formal systems. Where that is not possible consideration must be given to the use of alternatives to prosecutorial action, which includes diversion. Any decisions should be compliant with Human Rights legislation” (Scottish Government, 2021b, p.11).

In relation to children reported to COPFS there is a rebuttable presumption that an alternative to prosecution will be in the public interest and, in cases where an identifiable need has contributed to the offending, active consideration will be given to referring the case for diversion (CYCJ, 2020a). 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 - Where the nature of an offence does not demand prosecution in court the Procurator Fiscal has the option to utilise diversion as an option of prosecutorial action in order that a meaningful intervention can be delivered to address the identified needs and risks for that child . Diversion requires an assessment from social work to determine if this is appropriate. If the case is suitable for diversion, the child would be directed to services tailored to their particular needs during which time prosecution would usually be suspended. Failure to engage could result in the case returning to the Procurator Fiscal for further action;
• No action being taken, if none is required in the public interest

The Crown Office and Procurator Fiscal Service Prosecution Code (2018) and Joint Agreement in relation to the cases of children jointly reported to the Procurator Fiscal and the Children’s Reporter (COPFS/SCRA, 2019) stipulates the factors to be taken into account when making any decision in relation to prosecution and options (see also Standard 4 Standards for those working with children in conflict with the law).

Court

“All children must have access to support when going through the judicial processes. Criminal court proceedings should only be engaged in exceptional cases and as a last resort in the public interest” (Scottish Government, 2021b, p.12).

Before court

A Guide to Youth Justice in Scotland: policy, practice and legislation: Supporting all under 18s in the court system (CYCJ, 2020b) describes what should happen before a court appearance regarding:

• Identification of children
• Information gathering and sharing by social work, court social workers, defence agents, and other agencies
• Where possible link with PF to consider whether diversion from prosecution may be appropriate

When a child is going to appear in court and there is a likelihood they will be remanded, the responsible local authority should explore alternatives to remand. The impacts of remanding a child can be significant, disruptive and traumatic (CYCJ, 2020b). 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”. Under Standard 6 of the Standards for those working with children in conflict with the law before authorising that a child is deprived of their liberty, all community-based alternatives must be explored and the potential suitability for this shared with the child, family and key decision makers. The provision of alternative services and support settings in communities that can provide enhanced, intensive community-based support and monitoring is crucial, with various key elements and approaches having been identified, which align with the principles of intensive family support as identified by the Independent Care Review (2020; CYCJ, 2020c). Children should not be deprived of their liberty due to a lack of alternative provision. As appropriate the local authority should also make enquiries regarding secure care provision and availability. The SANS website advising of available secure care places should be checked first. If there are no places available, all secure care centres should nevertheless be contacted by phone to discuss the child’s case as they may be able to offer an “emergency” bed or assist with a support package of care.

Where alternative options are not pursued and the child is to be deprived of their liberty, the reasons must be human rights compliant and should be clearly recorded and explained to the child (Scottish Government, 2021b). The child should be advised of their rights to appeal against the decision to deprive them of their liberty (Scottish Government, 2021b).

It would be best practice when the charges are of a serious nature and the case is being dealt with under solemn proceedings that the lead professional makes contact at the earliest opportunity with the Children and Young Person’s (CYP) Placement Manager (Mary Amos: 0131 244 0996; Out of Hours contact: 07554 332310, childplacementmanager@scotland.gsi.gov.uk) at Scottish Government to share information.

When the child appears in court, especially when appearing from police custody or a place of safety, either dedicated court support workers where available under the Whole System Approach and if not then court social work staff should see the child before the court appearance. They should explain the court process, answer any questions, offer assistance and liaise with the lead professional/named person (Scottish Government, 2011). Local practice varies but usually there will be arrangements for this service to be available (Scottish Government, 2010a; CYCJ, 2020a).

If prosecution goes ahead

The criminal justice system can be confusing and frightening both for the child and their family.

Court-based family support - other than posters, leaflets, or information from the defence solicitor - varies , and defence solicitors may be 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, 2011; CYCJ, 2020a; Independent Care Review, 2020):

• Outcomes for children are improved by partnership working and effective, timely information sharing and communication, including with children and their families, Police Scotland, Scottish Courts, COPFS, Children's Reporter, Court Based Social Work Services, third sector and local authorities.
• Cases should be dealt with as quickly as possible as sentences have a greater impact upon children when imposed soon after the offence
• The agreed model of programming court cases involving 16-17 year olds should be followed
• Children must be supported practically and emotionally throughout their court journey and their needs addressed, as failure to do so can result in child’s rights being breached, children becoming more entrenched in the justice system, and further coming into conflict with the law.
• Any additional support needs, including speech, language and communication needs (SLCN), should be identified and understood, with any necessary measures to mitigate these provided.
• The use of special measures for child accused should be actively considered and sought as appropriate
• Children must be responded to in a way that is appropriate, proportionate, recognises their age and is trauma-informed and responsive
• Each family is unique, with multi-agency working and the inclusion, engagement and connection of family members key. All practice with families should promote and be characterised by family support principles.

It has been highlighted above that not all children in conflict with the law will progress to court and prosecution, but a sizable proportion do. As a result the remainder of the stages in the map will focus on those who do.

Disclosure of charges and criminal convictions

Where children have:

• Information recorded on the Criminal History System, or
• Offences dealt with through Early and Effective Intervention or equivalent processes, the Children’s Hearings System, or court

they may have information that they are required to self-disclose, or that could be disclosed on disclosure certificates, in accessing certain opportunities, including education, training, volunteering or employment. The arrangements surrounding disclosure are complex and as required legal advice should be sought. Scotland Works for You and Disclosure Scotland offer further information to help people understand the current disclosure system.