Committal of offence & routes to court

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).


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:

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:

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.


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):

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

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:

Can access appropriate adult support to:

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:

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

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:

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:

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:

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


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:

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).


“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:

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, 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):

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:

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.

Resources for this page