Part 2 – criminal justice and procedure
Involvement of children in criminal proceedings: general
Section 12 - meaning of “child”
58.The meaning of “
59.Section 12 amends the definition of “child” in section 307(1) of the 1995 Act both to reflect changes to the definition of “child” in the 2011 Act and to remove the references to section 46(3) and schedule 1 of the 1995 Act. Those references are no longer needed as a result of amendments made by section 13 (see paragraphs 61 to 63 of these Notes). But the definition of “child” will still be linked to the definition in the 2011 Act, meaning that “child” will generally mean the same in both the children’s hearings system and in the criminal justice system, namely a person under 18.(43)
60.Other provisions in the Act make further changes to the 1995 Act to reflect that all persons under 18 will now be children for the purpose of that Act. Most notably, see section 14 which deals with the prosecution of children over the age of criminal responsibility.(44)
Section 13 – offences against children to which special provisions apply
61.Schedule 1 of the 1995 Act contains a list of offences against children under the age of 17 in relation to which special provisions apply. Those provisions are in section 46 of the 1995 Act and include presumptions about the age of a child involved in criminal proceedings (either as the victim or as the offender) relating to offences under the Children and Young Persons (Scotland) Act 1937, those listed in schedule 1 of the 1995 Act and certain offences under the Criminal Law (Consolidation) (Scotland) Act 1995.
62.As all persons under 18 will now be regarded as children for the purposes of the 1995 Act, section 13 amends schedule 1 to remove references to children aged under 17. As a result, schedule 1 and section 46 will apply in relation to offences committed against all children under 18.
63.Section 13(3)(a) also repeals section 46(5)(b) as that paragraph is no longer needed, as whether a person was subject to a CSO is now irrelevant to the question of whether they are a child or not for the purposes of the 1995 Act.
Prosecution of children
Section 14 – prosecution of children over age of criminal responsibility
64.Section 42 of the 1995 Act currently provides that children aged 12(45) to 15 who commit an offence may be prosecuted only if the Lord Advocate authorises the prosecution. Children aged 16 or over can be prosecuted without this extra step, although a child of this age who offends while already subject to a compulsory supervision order may be referred back to a children’s hearing.(46)
65.Section 14 amends section 42 so that all children over the age of criminal responsibility (all those aged 12 or over but under 18) may be prosecuted only if the Lord Advocate authorises this.
Safeguards for children involved in criminal proceedings
Section 15 - custody of children before commencement of proceedings
66.The Criminal Justice (Scotland) Act 2016 (“
67.Sections 38 to 41 of the 2016 Act contain more safeguards for children in police custody. Under section 38, intimation must be sent to a parent of a child under 16. Where the person is 16 or over, the intimation will be sent only on the person requesting it and only to an adult named by the person making the request. Where the person in custody is under 18, the person to whom intimation is sent under section 38 must be asked to attend the place where the person under 18 is in custody. But the constable does not need to ask the person to attend where the person in custody is 16 or 17 years old and requests that the person not be asked to attend. Section 40 makes provision about the circumstances in which a parent or other person can have access to the child in custody. As with other provisions in the 2016 Act, a distinction is made between those under 16 and those under 18. Under section 41, the constable must send intimation that a child subject to a CSO is in custody to the local authority. Intimation must also be sent to the authority where the person in custody is under 18 and the constable delays sending intimation under section 38 in the interests of safeguarding and promoting the wellbeing of the person. The local authority may arrange for someone to visit the child if the child is under 16 or subject to a CSO. Where they do so, sections 38 to 40 of the 2016 Act cease to apply, so that no intimation is sent under section 38 and only the local authority will have access to the child. A local authority, where they do not visit the person in custody, may give advice to the constable as to whether the person to be sent intimation under section 38 should not be sent that intimation and advice as to who intimation should be sent to instead. The constable must have regard to that advice.
68.As a result of treating all under 18s as children for the purposes of the 2011 Act and the 1995 Act, section 15 makes various changes to the 2016 Act aimed at removing, in most cases, the distinction between children under 16 and children aged 16 and 17, and between children subject to CSOs and children not so subject.
69.Section 15(2) amends section 22(1) of the 2016 Act so that all under 18s in police custody must be kept in a place of safety. Section 15(3) amends section 23 so that where an under 18 is in custody and is to be brought to court, a parent will be given notice. Section 24 of the 2016 Act is amended by section 15(4) so that where an under 18 is in custody and is to be brought to court, the local authority will also be informed.
70.Section 15(5) amends section 33 of the 2016 Act so that no under 18 can waive the right to have a solicitor present at a police interview. Section 38 of the 2016 Act is amended by section 15(6) so that a constable may delay sending intimation under that section so that the local authority can give advice as to whether that intimation should be sent and, if not sent, who intimation should be sent to instead.
71.Section 15(7) makes a number of amendments to section 41 of the 2016 Act. The main change is to provide that the local authority is to be given intimation that an under 18 is in custody regardless of whether the child is subject to a CSO. The repeal of subsections (7) and (10) of section 41 is consequential on this change. In addition, new section 41(1A) provides for a number of other facts and events to be intimated to the local authority. Where such intimation is sent, the local authority will be able to consider whether to visit the child in custody as they can when intimation is sent under section 41(1). Section 15(7) also repeals section 41(8). The effect of this is that a local authority’s ability under section 41(9), to advise the constable that the person due to be sent intimation under section 38 should not be sent it, will no longer depend on the local authority not visiting the child but instead can be exercised in response to intimation of any of the facts set out in new section 41(1A).
Section 16 – steps to safeguard welfare and safety of children in criminal proceedings
72.Section 50(6) of the 1995 Act requires every criminal court dealing with an offender who is a child to have regard to the welfare of the child. Section 16 adds a new subsection (7), which modifies this duty by requiring the court to consider what steps might be taken to facilitate the child’s participation in the court proceedings while safeguarding the child’s welfare. In addition, the court must take the steps it identifies unless it is not reasonably practicable to do so.
73.Section 16 also inserts new section 70B into the 1995 Act. Section 70B will make, for solemn proceedings, equivalent provision to that already made for summary proceedings by section 142 of the 1995 Act. Section 142 requires the court, dealing with a child accused of an offence, to sit in a different building or room from that usually used or to sit on different days from other courts in the building and to take other steps to modify the court proceedings. Section 70B(1) gives the court power to do this in solemn cases but leaves it to the discretion of the court whether and how to do so. In addition, section 70B(2) gives the court power to direct that the court be cleared except for essential persons, including representatives of the press. But the general public will be excluded. Section 70B(4) also makes provision for court proceedings in which a child is accused along with an adult in the same proceedings, requiring the court to ensure that the adult accused can participate effectively in the proceedings.
74.Section 142 of the 1995 Act, which makes provision along the same lines as section 70B, but for summary proceedings, does not contain provision equivalent to section 70B(4). Section 16 inserts new section 142A into the 1995 Act which makes that equivalent provision. Section 142A gives power to the court, dealing with a child accused of an offence who is accused along with an adult in the same proceedings, to sit in a different building or room from that usually used or to sit on different days from other courts in the building. Section 142A(2) also gives the court power to direct that the court be cleared except for essential persons, including representatives of the press. But the general public will be excluded. In taking any of these steps or making any direction, the court must ensure that the adult accused along with the child can participate effectively in the proceedings.
Remit to children’s hearing from criminal courts
Section 17 – referral or remit to Principal Reporter of children guilty of offences
75.Section 49 of the 1995 Act is one of a number of sections that govern what the courts may do when a child pleads, or is found, guilty of an offence.(48) Section 49 deals with the interrelationship between the children’s hearings system and the criminal justice system and provides that the court may seek advice from a children’s hearing as to the appropriate disposal to make in the child’s case, may remit the child’s case to a children’s hearing for that hearing to dispose of the case under the 2011 Act, or can dispose of the case itself (either straightaway or after getting advice from a children’s hearing). How this works depends on the age of the child, whether the child is subject to a CSO, whether the court is the Justice of the Peace court, the sheriff court or the High Court, and whether the proceedings are solemn proceedings or summary proceedings. For instance, where a child is subject to a CSO, the sheriff court must seek advice from a children’s hearing before it can dispose of the child’s case.(49) It also depends on the offence involved.(50)
76.Section 17 makes a number of changes to section 49 of the 1995 Act, substituting new subsections (1) to (1F) for subsections (1) to (3) of section 49. The main change is that no distinction is made between a child subject to a CSO and a child not so subject. All under 18s will now be treated the same way. Summary cases and solemn cases are treated differently, and solemn cases in the sheriff court are treated differently from High Court cases.
77.In summary cases, the court has a duty to either request advice on the disposal of the child’s case from a children’s hearing or to remit the case to the hearing for disposal. See subsection (1A). The court can proceed straight to remitting the case to a children’s hearing for disposal without first requesting advice. But it cannot generally dispose of the case itself without first requesting advice and considering that advice. See subsection (1E). The exception is where the child is within 6 months of turning 18. Where that is the case, and the court considers that it would not be practicable to either seek advice or remit the case for disposal by a children’s hearing, the court may dispose of the case itself. See subsection (1C). As currently provided for by section 49(3), the court cannot remit the case to a children’s hearing for disposal where the offence is one mentioned in new subsection (1F) (and for which there is a minimum sentence). And as currently provided for by section 49(5), where the offence is one for which the sentence is fixed by law, the court must dispose of the case itself.
78.In sheriff court solemn cases, the sheriff has a choice – to request advice from a children’s hearing, to remit the case to a hearing for disposal, or to dispose of the case without a remit. See subsection (1A). But before the sheriff can dispose of the case without a remit, the sheriff must request advice from a children’s hearing. The sheriff can proceed to dispose of the case without requesting advice in two circumstances. Either where the sheriff determines that it would not be in the interests of justice to do so. Or where the child is within 6 months of turning 18 and the sheriff considers that it would not be practicable to request advice before disposing of the case. See subsections (1B) and (1C). Subsections (1E), (1F) and (5) apply to the sheriff in a solemn case as they apply in summary cases.
79.In solemn cases in the High Court of Justiciary, the court has discretion as to how to proceed (subject to subsections (1F) and (5)), so may request advice before deciding how to dispose of the case, or remit the case to a children’s hearing (with or without first requesting advice), or dispose of the case itself (again, with or without first requesting advice). See subsection (1D).
80.Section 17(2)(c) makes another amendment of section 49. Currently, section 49(4) provides that where a court remits a case to a children’s hearing for disposal, the jurisdiction of the court in respect of the child comes to an end. As was decided in the case of McCulloch v. Murray,(51) this means that a court cannot disqualify a child from driving while at the same time otherwise remitting the disposal of the child’s case to a children’s hearing. The court must either remit the whole case or keep the case for disposal itself.
81.New subsections (4A) to (4C) modify section 49(4) in the case of three types of offence.
82.The first type is road traffic offences in relation to which a court can disqualify the person found guilty from driving or impose penalty points on the person’s licence. As a result of subsection (4A), the court will be able to do so while otherwise remitting the disposal of the case to the children’s hearing.
83.The second type is certain sexual offences in relation to which the notification requirements of Part 2 of the Sexual Offences Act 2003 apply.(52) Where the child pleads or is found guilty of one of these offences, subsection (4B) will make it clear that the notification requirements apply even though the child’s case has been remitted to a children’s hearing for disposal. However, in the case of some offences listed in schedule 3 of the 2003 Act, the notification requirements do not automatically apply but do so only where the court makes a finding of some sort. For instance, paragraph 60 of schedule 3, read with section 80 of the 2003 Act, provides that an offence in Scotland, other than an offence listed in paragraphs 36 to 59ZL of the schedule, triggers the notification requirements only if the court, in imposing sentence or otherwise disposing of the case, determines that there was a significant sexual aspect to the offender’s behaviour in committing the offence. Where, however, the court remits the child’s case to a children’s hearing for disposal, the court will not impose sentence or otherwise dispose of the case and so no determination as to the sexual aspects of the offence will be made. Other offences listed in the schedule trigger the notification requirements only if the sentencing court determines that it is appropriate for the person convicted to be regarded for the purposes of Part 2 of the 2003 Act as a person who has committed the offence or that it is appropriate for Part 2 to apply to the person. Subsection (4B)(a), (b) and (c) therefore recognises this and makes clear that the notification requirements will not apply in such cases.
84.The third type is offences in relation to which the court is entitled (under section 234A of the 1995 Act) or obliged (under section 234AZA of that Act) to impose a non-harassment order on the offender.(53) New subsection (4C) makes it clear that, where the court remits the child’s case to a children’s hearing for disposal, the court may still impose a non-harassment order.
85.Finally, section 17 repeals section 49(6) and (7) as these subsections are no longer necessary, the matters they deal with now being incorporated into new subsections (1) to (1F).
Remand, committal and detention of children
Section 18 – remand and committal of children before trial or sentence
Section 19 – detention of children on conviction
86.Sections 18 and 19 make provision about the detention of children involved in criminal proceedings, either on remand before trial, or after conviction but before sentence, or on sentence. They do so by amending sections 44, 51, 205, 207, 208 and 216 of the 1995 Act and by inserting new section 208A into that Act.
87.The amendments make two main changes. The first, in consequence of the change made by section 12 to the meaning of “
88.Section 51 of the 1995 Act deals with detention on remand of persons under 21. Section 18 modifies section 51(1)(a), (aa) and (b) so that all children (i.e. persons under 18) will be dealt with the same way and, as a result, will be committed to a local authority to be detained, while on remand, either in secure accommodation(56) or in a place of safety.
89.New subsections (6) to (8) are inserted into section 51 so that the Scottish Ministers can, by regulations, make provision about the detention of such children in secure accommodation. This will allow provision to be made, similar to that already contained in the Secure Accommodation (Scotland) Regulations 2013 (“
90.Note also that section 51(2A), which relates to the use of remand centres, is repealed by paragraph 16(2) of the schedule.(59)
91.Section 44 of the 1995 Act deals with the detention of children who plead guilty or are found guilty in summary proceedings. Such children may be detained in “residential accommodation” provided by local authorities under Part 2 of the Children (Scotland) Act 1995(60) for up to one year. By virtue of the regulation-making power in section 44(5), the Scottish Ministers can provide for such children to be detained in secure accommodation. The 2013 Regulations were made under this power.(61)
92.The amendments of section 44 made by section 19(2) change references to “residential accommodation” to references to “residential establishments”, as it is the latter that local authorities provide under Part 2 of the Children (Scotland) Act 1995, as well as inserting a definition of “residential establishment” into section 44(11). The amendments also insert new subsections (5A) and (5B) into section 44, mirroring the amendments made to section 51, and providing power for the regulations made under section 44(5) to make provision for 18 year olds to remain in secure accommodation rather than automatically being transferred to young offenders institutions. The definition of “secure accommodation” in section 44(11) is also replaced with a definition that ties in to the definition in the 2011 Act.(62)
93.Section 19(6) inserts new section 208A into the 1995 Act. That section makes provision for the detention of children under section 205 (children guilty of murder) and to children convicted on indictment of other offences. Under those sections, the place of detention is determined by direction made by the Scottish Ministers.(63) Section 208A(2) modifies those direction-making powers so that children cannot be detained in young offenders institutions or in prison. It also makes clear that secure accommodation can be used as the place of detention. Section 208A(4) to (6) make the same provision, for this section, as is made in sections 44(5) to (5B) and 51(6) to (8), for regulations about the use of secure accommodation.
94.Section 19(7) amends section 216 of the 1995 to insert a similar regulation-making power into that section. Section 216 makes provision for imprisonment and detention for non-payment of fines. Section 216(7) deals with cases where the person who has failed to pay a fine is a child, and provides for detention, rather than imprisonment, in a place chosen by a local authority. New subsections (8) to (10) will allow regulations to make provision for the use of secure accommodation in such cases.
95.Finally, section 19(5) amends section 208 of the 1995 to provide that, where a court orders that a child, convicted on indictment, be detained, the place of detention can be in any part of the United Kingdom.(64)
Mental health disposals for convicted children
Section 20 – hospital directions
96.Under section 59A of the 1995 Act, the court can, in certain circumstances, make a hospital direction in relation to a person convicted on indictment who has a mental disorder. A hospital direction authorises the detention of the person in hospital (rather than in prison). However, hospital directions cannot be made in relation to children (as defined in section 307(1) of the 1995 Act). This means that they cannot be made in relation to persons under 16. In addition, where the person is under 18 and subject to a CSO, a hospital direction cannot be made. As a result, hospital directions can be made in relation to some 16 and 17 year olds – that is, those not subject to CSOs.
97.Following the amendments made by sections 1 and 12 of this Act, “child” will be defined as meaning a person under 18.
98.Section 20 amends section 59A to remove the restriction on making hospital directions in relation to children. This permits hospital directions to be made, where appropriate, in relation to all under 18s.(65)
Places where children can no longer be detained
Section 21 – meanings of “young offenders institution” and “young offender”
99.Section 21 amends section 19 of the Prisons (Scotland) Act 1989.(66) Under that section, the Scottish Ministers have a duty to provide young offenders institutions – places where offenders sentenced to detention in a young offenders institution, and those aged at least 14 but under 21 who are remanded in custody for trial or while awaiting sentence, can be held. As a result of amendments made to the 1995 Act by sections 18 and 19, no one under 18 will now be held in a young offenders institution. Section 21 amends section 19 of the 1989 Act so that young offenders institutions are defined as places for the detention of those aged 18 but under 21. Section 21 also amends the Prisons and Young Offenders Institutions (Scotland) Rules 2011,(67) which defines “young offender” to mean a person aged at least 16 but under 21 so that that expression will now mean a person aged at least 18 but under 21.
Section 22 – abolition of remand centres
100.Section 22 also amends section 19 of the Prisons (Scotland) Act 1989. Under that section, the Scottish Ministers have a duty to provide remand centres – places where those aged at least 14 but under 21 and remanded in custody either for trial or while awaiting sentence can be held. There are no remand centres in Scotland and the amendments remove the duty to provide them.
101.Part 6 of the schedule of the Act contains a number of further repeals which remove redundant and unnecessary references to “remand centres” in legislation.
Local authority duties in relation to detained children
Section 23 – duty of local authority to provide residential establishments for detained children
102.Sections 18 and 19 make changes to the places in which children can be detained, with the result that most children are likely to be detained in secure accommodation. As defined in the 2011 Act, as it is amended by section 26, “secure accommodation” in Scotland is accommodation provided for the purposes of depriving children of their liberty which is provided in a residential establishment by a secure accommodation service. A “residential establishment”, also defined in the 2011 Act, is an establishment provided by a local authority, a voluntary organisation or by another person which provides accommodation for the purposes of the 2011 Act, the Children (Scotland) Act 1995 and the Social Work (Scotland) Act 1968.
103.Under section 59 of the 1968 Act, local authorities have a duty to provide and maintain residential establishments that are required for their functions under a number of enactments.(68) But the list of enactments does not currently include the 1995 Act. Section 23 will add the 1995 Act to that list, so that the duty to provide and maintain residential establishments includes providing and maintaining these establishments for the purposes of local authority functions conferred under or by virtue of the 1995 Act.
Section 24 – children detained in secure accommodation to be treated as “looked after” children
104.Section 24 inserts new section 17A into the Children (Scotland) Act 1995. It provides that where a child is detained in secure accommodation under section 51, 205, 208 or 216(69) of the 1995 Act, the child will be treated as a child “looked after” by the local authority for the purposes of section 17 of the Children (Scotland) Act 1995. Section 17(70) puts various duties on local authorities, primarily to safeguard and promote the welfare of looked after children, which will now apply to children detained by order of the court in criminal proceedings.
105.Section 17A also provides that a child detained by order of the criminal court is treated as a looked after child for the purposes of sections 29, 30 and 31 of the Children (Scotland) Act 1995. These sections are about the provision of after-care for looked after children after they cease to be so looked after, including financial support for education or training, as well as about reviewing the cases of looked after children. These sections will now apply to detained children as they apply to former looked after children.
In some circumstances, however, different provision is still made in the 1995 Act: see, for instance, section 227J(1) (unpaid work or other activity requirement: further provision) and section 234B(1) (drug treatment and testing order).
That age is 12 years old by virtue of section 41 of the 1995 Act.
12 years old being the age of criminal responsibility by virtue of section 41 of the 1995 Act.
See section 49 of the 1995 Act, which is amended by section 17 of the Act. See paragraphs 75 to 85 of these Notes.
See also sections 44, 205, 207 and 208 of the 1995 Act, amended by section 19 of this Act.
See section 49(3)(b) of the 1995 Act.
Where the offence is under section 51A of the Firearms Act 1968 or section 29 of the Violent Crime Reduction Act 2006 – offences for which a minimum sentence is specified – then the court cannot remit the child’s case for disposal but must dispose of the case itself. See section 49(3) of the 1995 Act. Where the offence is one for which the sentence is fixed by law – for instance, murder – then section 49 of the 1995 Act does not apply. See section 49(5). Instead, section 205(2) of the 1995 Act applies and stipulates that a child found guilty of murder must be sentenced to be detained without limit of time.
2005 SCCR 775.
See section 80(1)(a) of the Sexual Offences Act 2003 (legislation.gov.uk), which provides that a person becomes subject to the notification requirements if convicted of an offence listed in schedule 3. Colloquially, being subject to the notification requirements is known as being on the “sex offenders register”.
For the offences involved, see sections 234A and 234AZA of the 1995 Act.
Which itself depends on the change made by section 1 to the meaning of “child” in the 2011 Act.
For more on the meaning of secure accommodation, and the regulation of providers of “secure accommodation services”, see Part 4 of the Act and paragraphs 110 to 138 of these Notes.
Defined in section 51(1)(a)(i) of the 1995 Act by reference to the definition in section 202(1) of the 2011 Act. Note that section 26 of this Act amends the definition of “secure accommodation” in section 202(1).
See regulation 12 of the 2013 Regulations.
That repeal is linked to section 22 of the Act. See paragraphs 100 and 101 of these Notes.
They were also made under a number of other Acts.
So the definition in section 44 of the 1995 Act now matches that in section 51 of that Act.
See sections 205(2) and 208(1) of the 1995 Act. See also section 117 of the Scotland Act 1998, under which references to the “
Section 44(1) of the 1995 Act already makes provision for this for summary proceedings.
Subject to the age of criminal responsibility, which means hospital directions cannot be made in relation to those under 12: see section 41 of the 1995 Act.
Local authorities may provide and maintain residential establishments themselves, jointly with other local authorities or by securing their provision by voluntary organisations or other person. See section 59(2) of the Social Work (Scotland) Act 1968 (legislation.gov.uk).
These sections deal with detention on remand or committal before trial or sentence (section 51), detention without limit of time where the child is convicted of murder (section 205), detention when convicted on indictment (section 208) and detention for non-payment of fine (section 216). Although children can also be detained in secure accommodation by virtue of section 44 of the 1995 Act, section 17A does not need to apply to such children as section 44(3) provides that the local authority has the same powers and duties in relation to the child as if they were subject to a CSO. Section 17(6) of the Children (Scotland) Act 1995 provides that a “looked after” child includes a child subject to a CSO. So a child detained under section 44 is already treated as a looked after child.
