Chwilio Deddfwriaeth

Age of Criminal Responsibility (Scotland) Act 2019

Planning and conduct of investigative interviews authorised by agreement under section 40 or by child interview order

168.Section 47 requires that an investigative interview authorised by agreement under section 40 or by a child interview order must be jointly planned by the police and the relevant local authority. In the case of a child interview order, depending on the amount of detail contained in the provisional plans submitted with the application for the order (and the relevant local authority’s involvement in drawing up those plans), the plans may only require finalisation at this point. Subsection (3) sets out the information to be included in the plans. Once finalised, the plans are to be provided to the child and, in the case of interview by agreement, to the parent who has given agreement (and in the case of a child interview order, to a parent if practicable). The plans must also be explained to the child in an appropriate way and, once the supporter and child interview rights practitioner are identified, provided to those individuals.

169.Section 48 provides that the interview cannot start unless the child has been given a copy of the interview plans. The interview must be carried out in accordance with the plans and also, where the interview is authorised by a child interview order, in accordance with any directions given by the sheriff in the order. These points also apply to any other actions authorised by the order. Sections 49, 50 and 51 set out the child’s rights in relation to the interview, which are as follows:

  • the right not to say anything,

  • the right to have a supporter present: in the case of interview by agreement, the supporter must be the parent who has agreed to the interview under section 40 – unless that parent is not considered appropriate to act as supporter under section 50(7). In that circumstance, that parent’s agreement to the interview is treated as withdrawn and the interview may not proceed unless another parent of the child gives agreement under section 40 or a child interview order is applied for and granted. In the case of an interview authorised by a child interview order, the supporter may be any person aged over 18. The supporter may, but need not, be a parent of the child. The child’s views will be taken into account in identifying the supporter, but again a person can only act as a supporter if they are considered appropriate by the person conducting the interview (this issue may also be covered in guidance under section 57). In both cases, the supporter is not required to be in the room where the child is being questioned at all times – they may be absent if the child is content with this or if their absence is considered (by a police sergeant who has not had any previous involvement with the case and a local authority officer) necessary for the child’s wellbeing or some other reason (see section 50(4)). But to ensure that the supporter can be in the interview room when the child wants this (or where the supporter considers that they should be present (subject to section 50(4)) the supporter must be present at the location where the interview is taking place at all times (section 52(2)(a)). The interview may not continue if the child is alone in the interview room with the person or persons conducting the interview – at least one of the supporter or the child interview rights practitioner must be present at all times (section 52(2)(b)).

  • the right to have a child interview rights practitioner present: section 51(7) sets out some examples of the type of advice, support and assistance that may be provided by such a practitioner. As with the supporter, the child interview rights practitioner need not be present in the interview room all of the time if the child is content with this. But if the child wishes the practitioner to be present or the practitioner wishes to be present, then access cannot be denied – there is no basis on which a child interview rights practitioner can be excluded from the interview room. As already noted, section 52(2)(b) requires at least one of the supporter or the child interview rights practitioner to be present in the interview room at all times. See paragraph 173 for more detail on child interview rights practitioners.

170.Section 53 also requires the person conducting the interview to ensure, before starting the interview, that the child is given certain information about the interview (in particular, information about the child’s rights) in an appropriate format and that the information is explained to the child. If the interview is taking place by agreement, the child and the parent who has given agreement must also be reminded at this point of their rights to withdraw agreement and of other related matters (see section 41(2)).

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Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.

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