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.
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:
- 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). We have sought to highlight where there are different criminal procedure rules if the individual is defined as a “child”.
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, 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.
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:
- 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 child or young person. In such instances the child or young person 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 or 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 child or young person).
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.
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:
- The investigation or prevention of crime; or
- The apprehension of offenders; or
- For the wellbeing of the individual.
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:
- Without charge because they are no longer a suspect;
- Because there are no longer grounds for their continued arrest but the child or 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 child or 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 child or young person during this time. If they breach the conditions of their investigative liberation they could be arrested and charged. The child or young person can also apply to the Court to have these conditions reviewed.
If a child or young person 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 or young person (dependant on 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 aged 16-17, only they can sign the undertaking which is necessary prior to leaving police custody (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). If the child is under 16 (or under 18 and subject to a CSO or ICSO), police are responsible for transporting the young person to court. If the young person 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 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:
- 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
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:
- No further action (either due to no need for intervention having been identified or current measures and existing supports are deemed to be sufficient to address the child or young person’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 the Children’s Reporter
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:
- That formal, compulsory supervision measures are not required and discharge the case
- The panel members can decide that they need more information to help them 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 young person in the meantime.
- That a compulsory supervision order is needed under the Children’s Hearings (Scotland) Act 2011 (section 83) (see the concurrent orders section)
Jointly Reported Cases
- Aged under 16 charged with certain serious offence types;
- A person aged 16 to17 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).
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:
- Prosecution in court;
- Procurator Fiscal direct measures e.g. fiscal warning, fiscal fine, compensation order;
- Diversion from Prosecution - requires an assessment from social work to determine if this is appropriate. If the case is suitable for diversion, the young person 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, 2014) stipulates the factors to be taken into account when making any decision in relation to prosecution and options.
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:
- Identification of children and young people
- Information gathering and sharing by social work, court social workers, defence agents, and other agencies
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, email@example.com) 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):
- Outcomes for children and young people are improved by partnership working and effective information sharing and communication, including with children, young people and their families.
- Cases should be dealt with as quickly as possible as sentences have a greater impact upon children and young people when imposed soon after the offence
- The agreed model of programming court cases involving 16-17 year olds should be followed
- Children and young people must be supported and their needs addressed as failure to do can result in a cycle of reoffending
- Each family is unique, with multi-agency working and the inclusion, engagement and connection of family members key (CJAs, 2015)
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:
- 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 the court
…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.
Resources for this page
- Age of Criminal Responsibility (Scotland) Act 2019
- Appropriate Adults
- Children’s Hearings Improvement Partnership
- Children and Young People (Scotland) Act 2014
- Children's Hearings Scotland
- Criminal Justice (Scotland) Act 2016
- Criminal Procedure (Scotland) Act 1995
- Criminal Justice (Scotland) Act 2016 (Support for Vulnerable Persons) Regulations 2019
- Children (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 Children Reporter Administration
- Scotland Works for You
- Understanding Criminal Justice
- United Nations Convention on the Rights of the Child
- Centre for Youth & Criminal Justice (CYCJ). (2019a). A Guide to Youth Justice in Scotland: policy, practice and legislation: Early and Effective Intervention & Diversion from Prosecution. Glasgow: CYCJ.
- CYCJ. (2019b). A Guide to Youth Justice in Scotland: policy, practice and legislation: Supporting all under 18s in the court system. Glasgow: CYCJ.
- Community Justice Authorities (CJAs). (2015). Framework for the support of families affected by the Criminal Justice System. Scotland: CJAs.
- Community Justice Scotland. (2020). National Guidelines on Diversion from Prosecution in Scotland. Edinburgh: Community Justice Scotland.
- Crown Office and Procurator Fiscal Service (COPFS). (2018). Prosecution Code. Scotland: COPFS.
- COPFS/SCRA (2014). Joint Agreement in Relation to the Cases of Children Jointly Reported to the Procurator Fiscal and the Children's Reporter. Scotland: COPFS.
- COPFS/SCRA. (2015). Decision making in cases of children jointly reported to the Procurator Fiscal and Children’s Reporter. Scotland: COPFS.
- Inspectorate of Prosecution in Scotland. (2018). Thematic Report on the Prosecution of Young People. Edinburgh: Scottish Government.
- 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.
- Police Scotland. (2018). Criminal Justice (Scotland) Act 2016 (Arrest Process) Standard Operating Procedure. Scotland: Police Scotland.
- SCRA. (2015). Guidance on Referral to the Reporter - Information for Partners. Stirling: SCRA.
- 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. (2011). 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. (2018). Practice guidance: Convicted on Indictment Under Section 205(2) or Section 208 of the Criminal Procedure (Scotland) Act 1995. Edinburgh: Scottish Government.
- Scottish Government. (2020). Appropriate Adults: guidance for local authorities. Edinburgh: Scottish Government.
- Vaswani, N. and Gillon, F. (2018). CYCJ Stakeholder Consultation 2018. Glasgow: CYCJ.