The Act
Overview
3.The Act makes provision about the care of children (who are not involved in the criminal justice system) and the treatment of children within the criminal justice system, as well as about the interrelationship between the care system and the criminal justice system. It consists of eight Parts, seven of which contain substantive provision and the eighth contains the usual final provisions.
4.Part 1 deals with aspects of the children’s hearings system, with the main change being to the meaning of “child” in section 199 of the Children’s Hearings (Scotland) Act 2011. This will mean all under 18s will be children for the purposes of the children’s hearings system, without any distinction made between children over 16 who are subject to compulsory supervision orders and those who are not. Other changes to the 2011 Act made by Part 1 relate to: placing a duty on children’s hearings to have due regard to the effects of trauma on children; the measures that may be included in compulsory supervision orders; placing a duty on the Principal Reporter to inform people, who have a right to request information about the disposal of a child’s case by the children’s hearings system, that they have that right; providing support to such persons in the children’s hearings system; and, finally, providing for supervision and guidance for children after they turn 18 up to age 19.
5.Part 2 deals with children who are involved with the criminal justice system when suspected or accused of offences or when involved as victims or witnesses. Section 12 maintains the current link between the meaning of “child” in the Criminal Procedure (Scotland) Act 1995 and the definition in the Children’s Hearings (Scotland) Act 2011 so that, for almost all purposes, under 18s will be regarded as children. Most of the other provisions in this Part are consequential on this age change (like section 14) and amend provision for the treatment of children from the point of being arrested by the police through to detention after pleading, or being found, guilty. And section 19 will provide, among other things, that under 18s will no longer be detained in young offenders institutions. Where they are detained in secure accommodation, section 24 will make provision for how local authority duties in relation to “looked after” children will apply to children so detained.
6.Part 3 deals with the regulation of secure transportation used to transport children and young people to and from secure accommodation. It places a duty on the Scottish Ministers to prepare and publish standards for secure transporation services and a corresponding duty on those providing, or arranging the provision of, those services to ensure the standards are met.
7.Part 4 has links to both Part 1 and Part 2 as it is mainly aimed at reforming the legislative landscape around the provision of secure accommodation and the approval and regulation of those who provide it. Part 4 also reforms and extends ministerial powers to regulate cross-border placements of children into residential accommodation in Scotland from other parts of the UK.
8.Part 5 makes two changes. It changes the meaning of “child” in the Antisocial Behaviour etc. (Scotland) Act 2004 so that it covers under 18s (except in the case of parenting orders, where it will remain as under 16s). And it repeals Parts 4 and 5 of the Children and Young People (Scotland) Act 2014.
9.Part 6 includes new provision in the Criminal Procedure (Scotland) Act 1995 that restricts the judicial remedies available where a court finds that a prosecutor, in deciding to prosecute a child, has acted unlawfully under section 6(1) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.
10.Part 7 makes provision for the operation of the Act, including the sufficiency of resources in place for its effective implementation, to be reviewed and reported on annually.
Crown application
11.Section 20 of the Interpretation and Legislative Reform (Scotland) Act 2010(1) provides that the Crown will be bound by an Act of the Scottish Parliament or Scottish statutory instrument unless the provision expressly exempts it. So, technically, this Act applies to the Crown in the same way as it applies to everyone else. But the Act’s substantive provisions mainly amend a number of existing enactments, some of which do, and some of which do not, apply to the Crown. The Act makes no change to the application of those enactments to the Crown.
Interpretation
12.In these Notes, the following abbreviations are used—
“the 1995 Act”, which refers to the Criminal Procedure (Scotland) Act 1995,(2)
“the 2010 Act”, which refers to the Public Services Reform (Scotland) Act 2010,(3)
“the 2011 Act”, which refers to the Children’s Hearings (Scotland) Act 2011,(4)
“CSO”, which refers to a compulsory supervision order,
“ICSO”, which refers to an interim compulsory supervision order.
13.The Act’s freestanding text (that is, any provision which is not a textual amendment of another piece of legislation) is to be interpreted in accordance with section 36 of the Act and the Interpretation and Legislative Reform (Scotland) Act 2010. Among other things, the latter provides default definitions for certain expressions and sets out default rules for common situations.
14.Text that the Act inserts into other enactments is to be interpreted in accordance with the interpretation legislation that applies to that enactment. For example—
text inserted into the 1995 Act, or the Children (Scotland) Act 1995, is to be interpreted in accordance with the Interpretation Act 1978,(5)
text inserted into the 2010 Act is to be interpreted in accordance with the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999,(6)
text inserted into the 2011 Act, or the Children and Young People (Scotland) Act 2014, is to be interpreted in accordance with the Interpretation and Legislative Reform (Scotland) Act 2010.
