Review of sheriff’s determination
Section 110 – Application for review of grounds determination
164.This section restricts an application for a review of the grounds determination to the person who was the subject of that grounds determination (even if that person is no longer a child); or a person who is a relevant person in relation to the child. The right to request a review of the establishment of the ground does not apply to any offence ground remitted under section 71. The child in these circumstances has appeal rights under the Criminal Procedure (Scotland) Act 1995.
Section 111 – Sheriff: review or dismissal of application
165.This section sets out the circumstances in which a sheriff must review the establishment of grounds for referral where an application has been made under section 110. The sheriff must review the case if they consider: that there is evidence in relation to the ground that was not considered by the sheriff when making the grounds determination; that this evidence would have been admissible at the time; and that there is a reasonable explanation for the failure to lead that evidence during the initial grounds determination. The evidence must be significant and relevant to the question of whether the grounds determination should have been made. If these conditions are not satisfied, then the sheriff must dismiss the application for a review of the grounds determination.
Section 112 – Child’s duty to attend review hearing unless excused
166.This section requires that, where an application for the review of the grounds determination is made in relation to a person who is still a child, that child must attend the review hearing. The child must attend the review hearing unless they are excused by the sheriff. If excused the child may still attend the hearing. This places the child under the same obligations and provides the same right to attend as in relation to the original hearing to establish the grounds. Subsection (4) provides that the sheriff may grant a warrant to secure the child’s attendance at the hearing if the sheriff considers that there is reason to believe that the child would not attend voluntarily.
Section 113 – Child and relevant person: representation at review hearing
167.This section provides that the child and relevant person have the same right to choose to be represented at a review of a grounds determination by a representative of their choice (who may or may not be a legal representative) as at the original hearing to establish the grounds. This right applies whether or not the person to whom the review relates to is still a child, and does not affect their right to legal representation.
Section 114 – Sheriff’s powers on review of grounds determination
168.This section sets out the options available to the sheriff after the sheriff has reviewed the establishment of grounds for referral under section 111. If the sheriff determines that the ground for referral is established, then the sheriff must dismiss the application without further consideration. Subsection (3) provides that if the sheriff finds that one or more of the original grounds are not established, the sheriff must uphold the application, recall the grounds determination and discharge the referral to the Children’s Hearing, in whole or part to the extent that it relates to the ground.
Section 115 – Recall: power to refer other grounds
169.This section applies when the sheriff makes an order under section 114(3) above recalling the grounds determination but another ground for referral is accepted or established. That ground must be specified in the same statement of grounds which gave rise to the grounds determination. Subsection (2) provides that, if the person who is the subject of the grounds hearing is still a child, the sheriff must direct the Principal Reporter to arrange a Children’s Hearing to consider whether a compulsory supervision order should be made in relation to the child. Subsection (3) provides that the sheriff may make an interim compulsory supervision order for the child if the sheriff is satisfied that the nature of the child’s circumstances is such that urgent action is necessary for protection, guidance, treatment or control of the child. Subsection (4) provides that the sheriff may grant a warrant to secure the child’s attendance at the hearing if the sheriff considers that there is reason to believe that the child would not attend voluntarily.
Section 116 – Recall: powers where no grounds accepted or established
170.This section applies where the sheriff makes an order under section 114(3) recalling the grounds determination and no other grounds for referral specified in the statement of grounds which gave rise to the grounds determination are accepted or established. Subsection (2) provides a duty on the sheriff to refer the child’s case back to the Children’s Hearing to review the compulsory supervision order that was in force at the time of the grounds determination by the sheriff. This applies where a child was already subject to a compulsory supervision order and the reporter referred new grounds for consideration by the Children’s Hearing.
171.Subsection (3) provides that the sheriff must terminate any compulsory supervision order that is in force and consider whether the person, if still a child, requires any supervision or guidance. Subsection (4) provides that, where the person is still a child, and the sheriff considers that the child requires supervision or guidance, then the sheriff must order the local authority to provide that supervision or guidance. Subsection (5) places a duty on the local authority to comply with the sheriff’s order. The duty on the local authority extends to supervision and guidance that the child will accept. The supervision or guidance is voluntary and cannot be enforced upon the child.
Section 117 – New section 67 ground established: sheriff to refer to children’s hearing
172.This section applies in cases where the sheriff is reviewing a grounds determination under section 110. It provides that, where the sheriff is satisfied that there is sufficient evidence to establish any ground for referral that was not specified in the statement of grounds that gave rise to the grounds determination, the sheriff must determine that ground to be established. Subsection (2)(b) provides that if the person to whom the grounds determination relates is still a child, the sheriff must direct the Principal Reporter to arrange a Children’s Hearing to consider whether a compulsory supervision order should be made in relation to the child.
173.Subsection (3) provides that the sheriff may make an interim compulsory supervision order for the child if the sheriff is satisfied that the nature of the child’s circumstances is such that urgent action is considered necessary for the protection, guidance, treatment or control of the child. Subsection (4) provides that the sheriff may grant a warrant to secure the child’s attendance at the subsequent Children’s Hearing if the sheriff is satisfied that there is reason to believe that the child would not otherwise attend.
