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 or young person subject of a criminal investigation will have their rights and the procedure being applied explained at the time, with it critical children and young people are supported to understand this information.

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 defines a child as someone under age 18. However, 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:

Appropriate adult schemes

Appropriate adult schemes were set up in 1998 to:

Police processes

If the police have reason to suspect a child or young person has committed an offence, they can stop the young person. The child or 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 children and young people to police stations. However, if deemed necessary a child or young person can be asked to attend a police station on the following basis:

During this time a child or young person may be searched. If the child or young person 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.

Rights

Whilst in police custody all children and 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 child is under 16, or aged 16 and 17 and subject to a CSO or Interim CSO (ICSO), the police will automatically inform the parent or guardian. For those aged under 18 and 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 child or young person may be restricted only if the police deem this to be necessary in the interests of:

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 or ICSO), a lawyer must be with them during the police interview, unless there are exceptional circumstances.

An adult should be present during the interviewing of a child under the age of 16 (or under 18 and subject to a CSO or ICSO). 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 (this can be restricted as detailed above in respect of parental contact). 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 agree with this decision.

Release from police custody

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

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

If a child or young person 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 and young people from prosecution and prevent them entering the adult criminal justice system (Scottish Government, 2011a).

Where a child or young person has been charged, the police should consider referring them for Early and Effective Intervention (EEI), unless the offence is excluded under:

Local EEI processes vary, with the Framework of Core Elements created to aid consistency across Scotland (Scottish Government, 2015).

Actions that can be taken under EEI include:

Referral to the Children’s Reporter

When a child or young person 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 is necessary for the child or young person. If so, the Children's Reporter will arrange a hearing. Committal of an offence is one such legal ground.

A children’s hearing is a legal meeting arranged to consider and make decisions about children and young people. 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:

For more information see Children’s Hearings Scotland and Scottish Children Reporter Administration

Jointly Reported Cases

Children:

…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).

In relation to any child 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 either 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

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, 2014) stipulates the factors to be taken into account when making any decision in relation to prosecution and options.

Court

Before court

A Guide to Youth Justice in Scotland: policy, practice and legislation: Supporting all under 18s in the court system (CYCJ, 2019b) describes what should happen before a court appearance regarding:

When a child under 16 (or under 18 and subject to a CSO) is going to appear in court and there is a likelihood they will be remanded, the responsible local authority should explore alternatives to remand and make enquiries regarding secure care provision and availability. The Secure Accommodation Network Scotland website, advising of available secure care places, should be checked first. If there are no places available, all units should nevertheless be contacted by phone to discuss the case as they may be able to offer an “emergency” bed or assist with a support package of care.

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.cjsm.net) at Scottish Government to share information.

When the child or young person 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 or young person before the court appearance to explain the court process, answer any questions and offer assistance and liaise with the lead professional/named person (within set boundaries - Scottish Government, 2011b). Local practice varies but usually there will be arrangements for this service to be available (Scottish Government, 2010a; CYCJ, 2019b).

If prosecution goes ahead

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

Court-based family support - other than posters, leaflets, or information from the defence solicitor - is not commonly available, and defence solicitors are often 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, 2011b; CYCJ, 2019b):

It has been highlighted above that not all children and young people involved in offending will progress to court and prosecution but the remainder of the stages in the map will focus on those who do.

Disclosure of charges and criminal convictions

Where children or young people have:

…they may have information that they are asked 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.

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