Age of Criminal Responsibility (Scotland) Act 2019 - part 4 – Police Investigatory and Other Powers: statutory guidance on investigative interviews

2. Planning - Inter-agency Referral Discussions

2.1 Planning has different elements: planning for the wider needs of the child as a result of the behaviour, planning for consideration of the need for an investigative interview, and planning for the interview itself. Planning for interviews should be included as part of organisations’ wider planning for the needs of the child where possible.

2.2 The Act places specific responsibilities on the police and local authority in relation to a multi-agency approach to investigative interviews. This approach includes all stages in planning and action, including consideration of the need for an interview; and consideration of any interim safety planning needed to protect the child from significant harm.

2.3 Inter-agency referral discussions (IRDs) are established mechanisms that allow a multi-agency approach for children and their needs. They should inform the consideration of an investigative interview. Guidance on holding an IRD for ACR purposes is aligned with the principles and approach for child protection IRDs and are outlined in the operational guidance for investigative interviews.

Considering interview at an inter-agency referral discussion

2.4 The IRD should take place prior to any investigative interview. This does not preclude the police from continuing with the investigation and securing evidence from other sources. The exception to this would be where police need to question the child immediately^[8]. Under these conditions, an IRD will take place as soon as practicable thereafter.

2.5 An IRD is the start of the formal process of information sharing, assessment, analysis and decision-making following the reported concern about the child’s behaviour that has or may have caused serious harm. The police have a duty to conduct a thorough investigation of the incident (whether or not the child needs to be interviewed) and must liaise with social work to conduct this assessment of risk, needs and protective measures for the child. Police will share information relating to the incident under investigation, including the evidence gathered thus far and the facts that have been established.

2.6 This initial discussion will form the basis of a strategy (subject to review, based on new information or changing circumstances) that will be adopted by all participating agencies. Practitioners in police, social work and health must participate in the IRD. Notwithstanding, information gathering should involve education and other services working together to ensure safety and wellbeing of the child, as appropriate.

2.7 The discussion will take cognisance of ongoing police investigation into the incident, including the need to complete routine enquiries.

2.8 To determine whether an investigative interview with the child is necessary, the discussion should try to ascertain:

• the suitability of conducting an interview with the child in question;
• if this would be in the child’s best interests; and
• the necessity of an interview in relation to the police investigation.

2.9 Agencies can share relevant background/chronological information relating to child and family in relation to strengths, risks and needs in context. They must work in partnership with parents^[9] and consult with health, education and other professionals who know the child well and hold key relevant information, as appropriate in each situation.

2.10 Where the victim is a child, then consideration should be given to preparations being made for a joint investigative interview of that child, as any disclosures made and other relevant information may influence the direction of the discussion and the determination of subsequent outcomes. This information will also impact on the requirement for an investigative interview for the child whose behaviour is the subject of interview.

2.11 The information gathered should inform any existing, or the development of a new child’s plan, and the response strategy (all actions must be legitimate, proportionate and justified) to be adopted by all agencies. This will be subject to review as and when new information becomes available that might require a revision of the initial approach.

2.12 In gathering relevant information, it is important to remember that the children’s reporter can only refer the child to a children’s hearing on non-offence grounds. In relation to these grounds the standard of proof is the balance of probabilities and the civil rules of evidence apply (with the principal ones being that no corroboration is required and hearsay evidence is permissible). However, it might be that information comes to light during the course of the interview which could form the basis of offence grounds for another child.

2.13 All evidence and information gathered at that stage must be reviewed and where there is insufficient detail around the child’s behaviour and the circumstances surrounding it, then an investigative interview in terms of this Act should be considered.

2.14 At any stage during the IRD, the police may relay any intentions to make an application for a search or forensics order^[10] from the sheriff and provide the rationale for such an action.^[11]

2.15 Prior to any investigative interview of the child, a decision must be reached as to what information will be provided to the child in relation to a possible outcome. It is important to balance the need to keep the child informed, against making sure the child is fully supported and is not exposed to additional stressors.

2.16 Police will make the final decision in respect of whether an investigative interview is required and justifiable, and whether this can be authorised by agreement or by an application for a child interview order.

2.17 A record must be retained of all IRD discussions, including where there is disagreement between agencies. The rationale for any outcomes must also be accurately recorded and documented in line with operational requirements to ensure they are auditable.

2.18 Operational details for planning and conducting an investigative interview are provided in operational guidance.