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 currently 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).
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, date of birth, place of birth and nationality 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 the following basis:
- Voluntarily (attends of 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 young person. In such instances the young person can be held in a police station for up to 12 hours. The young person 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 young person 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 young person).
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, or where the younger child is under 18 and is subject to a CSO the police will contact the local authority to help identify the most appropriate person to support the child.
Parental contact with the young person may be restricted only if the police deem this to be necessary in the interests of:
- The investigation or prevention of crime; or
- The apprehension of offenders; or
- For the wellbeing of the younger child person.
If the child is under 16 the local authority may arrange for someone to visit the child, although this contact may be restricted in exceptional cases.
If the child is under 16 (or under 18 and subject to a CSO), a lawyer must be with them during the police interview, unless there are exceptional circumstances.
An adult should be present during the interviewing of child under the age of 16 (or under 18 and subject to a CSO). This will usually be the parent or guardian: if not available, the police will contact the local authority to provide someone.
If the young person is aged 16-17 and not subject to a CSO, they can request an adult aged over 18 of their choosing to be informed of their entry to police custody and they may be able to visit the young person if requested. The young person can only waive access to a solicitor, if they are being interviewed, should the person they have informed they are in custody agrees with this decision.
Release from police custody
If a young person has attended voluntarily they are free to leave at any point unless they are arrested officially or not officially accused.
If a young person has been arrested "not officially accused" they can be released from police custody:
- Without charge because they are no longer a suspect;
- Because there are no longer grounds for their continued arrest but the young person is still a suspect , meaning they could be re-arrested should further evidence come to light;
- On investigative liberation to allow further investigation into the alleged offence. The young person will be released with conditions e.g. not to interfere with witnesses or evidence, for up to 28 days. The police have the power to re-arrest the young person during this time. If the young person breaches the conditions of their investigative liberation they could be arrested and charged. The young person can also apply to the Court to have these conditions reviewed.
If a young person has been arrested officially accused and charged, 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
- They may be released on a written undertaking. This is a signed agreement that states that they will attend at court at a specified time and can include other conditions. If a child or young person subject to a CSO refuses to sign an undertaking agreement, their parent/guardian can be asked to sign on their behalf. If it is a young person aged16-17, only they can sign the undertaking. (as per Criminal Justice (Scotland) Act 2018); or
- They may (in certain circumstances) be kept in police custody (or in some instances a place of safety) (as detailed in section 22 of the Criminal Justice (Scotland) Act 2018).
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, 2015). Decisions regarding jointly reported cases are for COPFS, although should be made in discussion with the Children's Reporter.
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 sentenced, 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).
Resources for this page
- Children's Hearings Scotland
- Criminal Justice (Scotland) Act 2016
- 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
- SCRA Offence Grounds
- Centre for Youth & Criminal Justice (CYCJ). (2016). 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. (2015). int 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.
- CYCJ. (2016). Disclosure of charges by Young People under 18. Glasgow: CYCJ.
- CYCJ. (2016). Disclosure of Criminal Convictions by Young People up to age 18. Glasgow: CYCJ.
- 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 Government (2016). Consultation on the Minimum Age of Criminal Responsibility. Edinburgh: Scottish Government.