Assisting young people aged 16 and 17 in court

3. Prior to Court

3.1. Cases to come to court quickly

In order for young people to associate the sentence with their offending behaviour, it is particularly important that prosecutions of under 18s are dealt with as quickly as possible. ^[8]

In solemn criminal cases, because of the serious nature of the charges involved, and often their complexity, it is not possible to make blanket recommendations on how quickly cases should be processed. However, where possible, the same priority should be given to these cases.

For summary cases, the Summary Justice System Model ^[9] which was developed and agreed by the main criminal justice organisations in 2007, provides the national framework for the handling of summary cases, following on the package of summary justice reforms including the Criminal Proceedings etc (Reform) Scotland Act 2007.

It set standards for cases being reported by the police, for the procurator fiscal marking the case, and for the case's first calling in court. Although, the table below outlines the standards set, it is recommended that these reports are made sooner where possible. The time limits, which depend upon whether the accused is liberated or released on undertaking, are:

	Police report to Procurator Fiscal	Procurator Fiscal marks papers	Case first calls in court
Liberated	28 days from caution and charge 14 days for under 16s	28 days from receipt of police report	28 days from marking of papers by Fiscal
Undertaking	14 days from caution and charge	14 days from receipt of police report	28 days from caution and charge

The Youth Courts in Hamilton and Airdrie were able to provide a fast track procedure into court, and 'fast-tracking of young people into and through the court was the aspect of the Youth Court that was perceived by various professionals as having been most effective. Ensuring that police make all necessary paperwork available to the Procurator Fiscal as quickly as possible, including items of disclosure. Where this information is not made available it can result in the case being adjourned. Fast-tracking was viewed by Sheriffs and other professionals as making the connection between the offence and the resulting sentence more meaningful and was regarded as something to be aspired to in all summary court business.' ^[10] Information on the Hamilton and Airdrie Youth Courts can be found at Appendix 7.

It is recognised that other courts may not be able to resource such fast tracking, but it is recommended that the Implementation Group should explore what methods can be adopted locally to get cases into court quickly. For example, in Aberdeen all cases involving 16 and 17 year olds are being dealt with by way of undertaking, unless the circumstances of the case require remand, and work is in hand to reduce the reporting period for undertaking cases from 28 to 14 days (see Appendix 7).

Legal Aid

It is recognised that fast tracking cases for 16 and 17 year olds will, in some cases, have implications for legal aid applications. It is recommended that this is considered quickly and applications submitted as soon as possible.

3.2. An agreed model of programming court cases involving 16 and 17 year olds

Solemn cases

Indictments for those in custody are served within 80 days of appearance in court. Otherwise, the expectation is that indictments will be served within 8 months. The lengthy timescales are related to the complexity of jury cases. However, the defence agent of a young person placed on petition will receive most statements within 28 days which ensures that the young person knows what the nature and strength of the case against them is at an early stage.

Summary cases

Undertaking s

This toolkit recommends the use of the undertaking procedure to bring cases to court, and the Summary Justice System Model recommends that where an accused has been liberated on undertaking, their case should call in court within 28 days of the undertaking being issued.

Where the young person is under the age of 16, the undertaking is signed by the parent or guardian. ^[11] Cases involving children should be held in a closed court, in a different building or room from those dealing with adult cases. ^[12]

Rolling up outstanding charges

One of the greatest obstacles to working effectively with young people who offend is the knowledge that they are due to appear again in court during their sentence in respect of other charges which were outstanding at the time of sentence. The difficulties were discussed in the Summary Justice Review Committee: Report to Ministers Chapter 16: Dealing with multiple cases against an accused. ^[13] We therefore recommend that procedures be put in place to ensure that wherever possible and practicable all known, outstanding charges requiring prosecution should be rolled up and taken together. Details of outstanding cases can be found on the Scottish Criminal History system.

COPFS electronic system also has the ability to identify cases of repeat offences. When the police report a case the system performs a check against the name of the accused and his/her SCRO number. If the police have reported more than a defined number of cases for that accused during a defined period, the case will be flagged up as a Priority Case due to the presence of a Persistent Offender. The Procurator Fiscal will seek to roll up any outstanding charges. Where the cases are all live within the one court this can be done by using the process for accelerating diets. ^[14] This may be done on the motion of the Procurator Fiscal, or the defence, or on joint motion. The procurator fiscal can also apply to have cases pending in different courts within the sheriffdom moved using the provision for transferring cases. ^[15]

Further where two or more complaints against the same accused are calling on the same day in the same court, the court can, on application by the prosecutor, try the complaints together as one trial under section 152A of the 1995 Act. There are no notice requirements for the prosecutor to make any application under this section and the court is to grant such an application where it appears that it is expedient to do so. ^[16] The two complaints will be treated as separate complaints for the purposes of sentencing.

Defence agents have a responsibility to assist in identifying outstanding cases, as may a social worker who has knowledge of the young person. If rolling up outstanding charges the benefits of doing so should be explained to the young person. ^[17] On occasions, concern is expressed that an agent may be doing his/her client a disservice by drawing the court's attention to other outstanding charges. The young person, however, is much more likely to derive benefit from any sentence imposed if it is known that there are no further cases pending.

Trial diets

Where a young person pleads not guilty and their case is, therefore, proceeding to trial, cases should be allocated the earliest available trial diet.

Whilst the Youth Courts in Hamilton and Airdrie were able to allocate early trial diets, it may be that other courts anticipate difficulty in resourcing this. It should be borne in mind, however, that in the longer term, by making best use of diversion and retaining young people within the Children's Hearings system, fewer 16 and 17 year olds will be coming to court and court resources will accordingly be freed up, and can be redeployed to ensure that those young people appearing in the court can proceed through the court process with appropriate efficiency.

An example of how this works in practice can be seen in Aberdeen. Here it has been agreed that cases involving 16 or 17 year olds should be allocated unused diets which had been held in reserve for custody trials.

The implementation group may wish to set standards for court waiting periods and measure progress towards achievement.

3.3. Identifying young people prior to court

There is value in having a process in place which identifies young people who are suitable for diversion from prosecution. Where the young person is not suitable for diversion, a dedicated court worker should be informed that the young person is going to be prosecuted. This allows them to make contact with the young person prior to their appearance in court, to offer support and information. Community based social workers should also let the court support worker know if one of their young people is going to court, to ensure the young person is supported. The custody list provided at the beginning of the day also allows the court support worker to identify 16 and 17 year olds who will be appearing from custody.

The essential element is for the police/social worker to flag up in the police report to the Procurator Fiscal that a young person may be suitable for diversion and for the multi-agency discussions to be held. If the Procurator Fiscal is not able to attend multiagency meetings, it is recommended that the Procurator Fiscal should provide to court social work a list of young people aged 17 and below where the decision to prosecute has been taken.

In addition, arrangements should be made with court staff to send a copy of the 'court sheets' to social work staff some days in advance of the diets. This allows identification of those young people due to appear in undertaking, cited, trial or remand courts in both the sheriff court and the justice of the peace courts. This list should be available from all courts. Court lists will not include those young people who appear in custody courts. Alternatively, court social workers should explore the scope for gaining access to the court's computer system to retrieve such information themselves.

Local arrangements can also be made for the Procurator Fiscal Office to identify young persons being prosecuted to the court social worker. This option may be more viable where there is a dedicated Procurator Fiscal marking cases for diversion from prosecution.

It may also be possible for court social workers to circulate postcards with these details to defence agents in the court to promote information sharing and provide an avenue for defence agents to support the young person making contact with court social work.

3.4. Defence agents

If a young person appearing at court is under 16 it is recommended that the defence agent (and other agencies see 3.7 and 3.8) ensure that social work are aware of the situation and have provided a single plan. ^[18] Where cases are fast tracked this requires defences cases to be prepared within limited timescales. The Procurator Fiscal should inform defence agents when a case will be fast tracked and provide all necessary information as quickly as possible.

Defence agents should determine whether 16 and 17 year old clients are receiving any support from social work, voluntary sector or other service provider and contact these individuals, to obtain the young person's 'single plan'. GIRFEC ^[19] requires every young person under age 18 working with service providers or local authorities to have a 'single plan' setting out how their risks and needs are being addressed. The 'single plan' should be provided to the court along with the criminal justice social work report for the young person to ensure the judge has all relevant information to inform their decision.

With the young person's consent, contact should also be made with professionals working with the young person to make them aware of the young person's appearance at court as they will be in a position to provide additional support to the young person. They will also have additional information, if they are already working with them, which may be relevant, for example, to a plea in mitigation, or in respect of the sentencing of the young person. Even where the young person is not already known to social work, there may be value in the defence agent discussing their client's circumstances with the court social worker. In particular there will be benefits in liaising with the court social worker when it is likely that an application for bail will require to be made, as the social worker is likely to have collated relevant information in preparation for a report to the court.

It should not be assumed that the young person will understand the court process because they have been to court before (see section 3.5 below). The implementation group should aim to raise awareness of their objectives locally with defence agents using events, written material or meetings.

Defence agents should also determine whether a 16 or 17 year old client is subject to a supervision requirement and ensure that this information is passed on to the court. A supervision requirement may be in force even when there has not been past offending, having been made for other reasons such as lack of parental care. A 16 or 17 year old who is subject to a supervision requirement falls within the legal definition of a child ^[20] and is accordingly subject to the procedures and sentencing provisions applicable to a child, including, the mandatory requirement upon the sheriff and justice of the peace to obtain the advice of a children's hearing. ^[21]

3.5. Ensuring young people have an understanding of the process

It is critical that young people understand what will happen when they attend court, including sentencing options, and what will be required of them. It should not be assumed that the young person will understand the court process and what is expected of them on the basis that they have attended court previously.

There is some evidence to suggest that, despite what they might say, some young people attending court do not have such an understanding. ^[22] Where the decision is made to prosecute, young people should be assisted to understand the process involved in prosecution, including where they have to make decisions that will impact on their current situation and their future. ^[23] Information and support should also be made available for court attendance so that the young person knows where to go, who to see, and how to behave.

If, as discussed, it is in the young person's best interest for any outstanding cases to be heard together then this also needs to be explained to the young person.

Young people at court need to be aware if bail is being opposed and what options are available. This will include advising them of all consequences if they refuse to engage with an option.

With the young person's consent, due to their age, the young person's family should be included in discussions wherever appropriate. They should also be advised of the process and the potential options available. The parent(s) or guardian(s) of children under the age of 16 are required to attend all the court hearings if they reside within a reasonable distance of the court, unless the court is satisfied that it would be unreasonable to require their attendance. ^[24]

Consideration should be given to how best to communicate this information to the young person in a form that would be accessible, attract their interest and facilitate their understanding.

3.6. Local authorities

As set out at 3.3.1 social work and court social workers should identify young people prior to them attending court. This allows them to exchange additional information with the defence and court based social worker, which may be relevant, for example, to a plea in mitigation, or in respect of the sentencing of the young person. Even, where the young person is not currently working with social work or other professionals, every attempt should be made to support that young person by way of explaining the court process, exchanging information with relevant parties and encouraging the support of the young person's family.

Where local authorities identify that a young person they are actively working with is appearing at court consideration should be given to reassessing their single plan to ensure that it is still robust, taking into account the circumstances leading to them appearing at court. If the young person is unknown to services planning and assessment should take place to consider what support is required to address their needs and risks and a single plan subsequently devised. It is recommended that local operating procedures are put in place to ensure that emergency social workers advise the court social worker that a young person is due to appear at court, sharing all relevant information.

Consideration should be given to sharing information on vulnerabilities that may affect how the young person is prosecuted with the Procurator Fiscal, for example, it may be relevant to share that the young person has learning difficulties or a learning disability. The police should include in the standard prosecution report whether a young person is subject to a supervision requirement through the Children's Hearing system or is considered a vulnerable adult.

3.7. Other service providers

Information should also be exchanged with other relevant partners, for example, if the young person is receiving support from a youth justice or voluntary sector service. Evidence suggests that young people receive an in-depth level of support through the court process by workers providing these services ^[25] , such as being accompanied to court, liaising with family members and having the process explained in an accessible manner. This also provides an opportunity for service providers to feed into the young person's single plan with regards to their progress and engagement in the service as well as any ongoing support that can be provided.