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

5. Questioning in Urgent Cases

5.1 The Act provides for questioning of a child where a constable has reasonable grounds to suspect that a child under 12 years of age by behaving in a violent or dangerous way:

• has caused or risked causing serious physical harm to another person, and
• there is a risk of loss of life if the child is not questioned immediately.

5.2 Sexual, emotional and psychological harm are not included for the purposes of this section.

5.3 Only a senior officer of the rank of superintendent or above can authorise the interview and if so, as soon as is reasonably practicable after authorisation is granted, the police must apply for a child interview order.

5.4 The senior officer must be satisfied that there are reasonable grounds to suspect that the child, while under 12 years of age by behaving in a violent or dangerous way, has caused or risked causing serious physical harm to another person. In addition, the relevant senior officer must deem it necessary that:

• the child must be questioned to properly investigate their behaviour and the surrounding circumstances (including whether someone else has committed an offence); and
• it is not practicable to apply for a child interview order due to a risk of loss of life if the child is not questioned immediately.

5.5 In making a determination, the relevant senior officer must have regard to the:

• nature and seriousness of the child’s behaviour, and
• whether the questioning of the child is appropriate given their circumstances (including age and matters related to the child’s behaviour).

5.6 In exercising this function, the relevant senior officer must treat the need to safeguard and promote the child’s wellbeing as a primary consideration.

5.7 In questioning the child as authorised by the senior officer, the person conducting the interview and any other person involved in the interview should comply with the requirements and the core principles for the conduct of investigative interviews.

5.8 Where questioning occurs on an urgent basis, the child retains their right not to answer any questions and this is to be confirmed when the authorisation for the interview is being provided and explained to the child.

5.9 A parent of the child must, if practicable, be informed that authorisation for questioning has been granted (although this need not be complied with if informing the parent would exacerbate the risk of loss of life. Decisions regarding this and the rationale, should be recorded for audit purposes.

5.10 An application for a child interview order must be made as soon as practicable after the authorisation for emergency questioning is granted and a child interview rights practitioner must also be informed.

An IRD should take place as soon as practicable thereafter.