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

4. Applications for Child Interview Orders

4.1 A child interview order authorises an investigative interview of the child to whose behaviour the application relates.

4.2 In any consideration of the need for an order and in making an application for the order, there are specific responsibilities on the police to apply for an order and to consult the relevant local authority, so that a multi-agency approach is taken.

4.3 A child interview order may be required:

where a decision has been made that an interview is required and meets the criteria, and

• agreement is not provided (due to actively not agreeing or being unable to agree through a lack of capacity or understanding); or
• agreement provided is subsequently withdrawn; or
• where a child has been questioned under urgent circumstances^[16] (see Section 5); or
• where in the particular circumstances of the matter, the police believe it is justifiable to apply for an order without seeking agreement first, eg where there is no ‘parent’ and therefore no possibility of seeking agreement or where the local authority has parental responsibilities.

4.4 The police have the power to apply for a child interview order at any time during the investigation. This power is not dependent on withdrawal of an agreement.

4.5 An order can:

• require a person, in a position to do so, to produce the child to a specified person, to ensure the child’s attendance at the interview;
• authorise the person above or another person to transport the child to and from the interview;
• authorise any other action required in connection with the interview (including to safeguard and promote the child’s wellbeing).

4.6 Police in consultation with the local authority (and others if relevant) can identify if these measures are required in advance of the application and in their considerations have regard to the need to safeguard and promote the child’s wellbeing in any measures applied for.

4.7 Police, in consultation with the local authority, can identify if there is a need to ask for directions to be included in the order and specify this in their application^[17]. In their considerations they should have regard to the need to safeguard and promote the child’s wellbeing in any directions requested.

4.8 An order specifies the period of time within which the interview can be conducted up to a maximum of 7 days. The time for any period given begins on the day after the day that the order is made, or a later date if specified in the order. Provisional planning should reflect the impact of this potentially narrow timing for interview.

4.9 It is the responsibility of the police to notify the local authority, as soon as reasonably practicable upon receipt of notification that an order has been made or an intention to appeal against any decision on the order. The police and local authority have a duty to comply with any directions in the order.

4.10 Once an order has been made, the child and parent must be provided with a copy of the order as soon as reasonably practicable and have the order explained to them, ensuring that the child’s explanation is appropriate to their age and maturity^[18]. The police should do this in collaboration with the local authority.

4.11 Intimation of the granting of the order and other matters connected to application for orders will be contained in court rules.

4.12 The child (or another person acting on the child’s behalf) can, within the time-limits specified, apply to the sheriff for permission to appeal. The decision of the Sheriff Appeal Court is final. The making of an appeal suspends the effect of any child interview order originally made by the sheriff.

4.13 A child who wishes to appeal an order is entitled to legal representation and children’s legal aid to help them to do this. This will be dependent on their capacity to instruct a solicitor and their wish to do so. Where the child has a child interview rights practitioner, this person may be able to advise and represent the child as a solicitor in relation to an appeal.

4.14 Further detail on applying to the sheriff for an order is outlined in operational guidance.