Assisting young people aged 16 and 17 in court

Appendix 3

Roles and Responsibilities

Police

The police have a duty to uphold and enforce the law and maintain the peace in Scotland. In particular where an offence has been committed, the police have a duty to investigate it and report to the Procurator Fiscal and/or the Reporter. ^{[64] [65]}

The police have powers to impose fixed penalties and use the formal adult warning system for those young people who are involved in minor offending or have offended for the first time to prevent or delay their entry into Hearing or Court system.

There is also an opportunity for cases to come to court more quickly by increasing the number of accused who appear at court on undertakings.

Establishing systems for communicating with other agencies (schools, social work, voluntary agencies) where the young person's behaviour was not of a serious nature, but there were concerns about their level of vulnerability or adverse personal circumstances, may contribute to the prevention of offending or the avoidance of the young person requiring formal court and children's hearing measures.

The roles of the Police and Procurator Fiscal are complementary and regular dialogue and co-operation enables problems and issues to be dealt with efficiently and effectively. Close liaison between these agencies is essential.

Procurator Fiscal

The Procurator Fiscal Service provides the sole public prosecution service in Scotland, and the Procurator Fiscal has a duty to ensure, in the public interest, that all crimes made known to him or her are investigated, and that effective and consistent use is made of the range of prosecution options, and alternatives to prosecution. The criteria for decision making and the range of options available to prosecutors dealing with reports of crime are set out in the Prosecution Code. ^[66] The Code specifically recognises that the UN Convention on the Rights of the Child is relevant in cases involving children accused of crime and that in all actions concerning children, the best interests of the child shall be a primary consideration. This is supplemented by the Crown Office and Procurator Fiscal Service Book of Regulations. ^[67]

The Fiscal Service has protocols for dealing with certain priority groups ( e.g. those with mental health problems) and it may be of advantage to young people for the Fiscal service to established service requirements for dealing with 16-17 year olds.

For those age 16 years or over, there is a presumption that the Procurator Fiscal will deal with the cases but there is a power to over ride this when the young person's needs and behaviour might be best addressed through the Children's Hearing system. Referral to the Children's Hearing can be made until the young person is 6 months away from their eighteenth birthday.

There are other direct measures a Procurator Fiscal can utilise to respond to alleged offending behaviour by young people. Where appropriate, options such as diversion, fiscal fines and warnings should be more widely considered before the decision is made to instigate Court proceedings.

Once the decision has been made to prosecute, the Procurator Fiscal should endeavour to have cases dealt with at the earliest possible stage in the proceedings. Examples of good practice are, for example, the Procurator Fiscal providing a summary of evidence to enable early investigation by the defence; the roll-up of outstanding cases where appropriate; early, effective preparation enabling full preparation by prosecution and defence prior to the intermediate diet and availability of Procurators Fiscal to discuss the case with the defence.

Judiciary

The Judiciary may be involved at a number of levels. The Sheriff Principal, in his/her capacity as chairman of the Local Criminal Justice Board may seek to have the Board consider how to take forward, at a local level, the implementation of the best practice commended in this report. It might, for example, be considered appropriate to set up a short term working group to ensure effective co-ordination through regular meetings and joint training.

The Sheriff Principal may also have a role in instructing alterations to court programmes where it is considered appropriate to facilitate the prioritisation of cases involving young people. Court programmes should also be monitored to ensure that the time intervals between hearings afford the preparation time recommended in the Summary Justice System Model.

There is a role for individual members of the judiciary, as was observed in the Summary Justice System Model - "A pro-active judicial approach to case management from lay justices and sheriffs, conducting intermediate diets robustly to check on the parties' state of preparation, querying any delays, and vigorously questioning the reasons for any continuations requested is likely to be critical to the success of these reforms. The independent evaluation of High Court reform highlighted that the long-term success of the new High Court procedures was in the hands of the judges as they are in the best position by far to manage cases effectively and are largely responsible for setting the "culture" of the court. Justices of the peace and sheriffs can play a similar role in the summary courts." The judiciary also have a role to play both within the court system and in the wider community, by using their authority to ensure that issues regarding young people at Court are taken seriously.

Social Work

The role of the Criminal Justice Social Worker at Court is laid out in National Outcomes and Standards, Practice Guidance. ^[68] There is no legal requirement for a social worker to be in Court but local arrangements should be in place to ensure that cover is available at critical times and that staff can make themselves available when required.

The tasks of the court based social worker pertain to all those who appear in court but are highly relevant to under 18 year olds and include:

• Dealing with requests for reports, ensuring that the reports are available within locally agreed timescales and speaking to them in Court when necessary. Social Work should arrange to interview the young person immediately after the Court has asked for a report to ensure that the he/she understands the Court's decision and its implications; to confirm contact details and availability for interviews and pass on the information to the worker preparing the report; to provide information leaflets about Court reports; to complete medical mandates where significant medical issues have been highlighted; and in some cases, arrange a first appointment to prepare the report.
• Providing information for sentencers including same day oral/written reports to help expedite dealing with cases and therefore cutting down the number of times a young person needs to attend Court. This is in line with the statement in 'Scotland's Choice: The Report of the Prison Commission' ^[69] paragraph 3.31 that 'In many cases better resourced, court-based social work units, working day in and day out alongside the judges, would be able to get the information that judges need there and then, reducing delays and the need for bail or remand'.
• Interviewing young people immediately after the Court has passed a custodial sentence or a remand. Young people under 18 years who are not accompanied by a social worker are named as one of the priority groups. This interview is to clarify the decision of the Court; establish if the person has any pressing problems which require urgent attention; and advising of prison based social work services and how the service can be accessed and the availability of voluntary throughcare in the case of those who have been given short term sentences.
• Forwarding relevant information to prisons in the event of a custodial sentence being imposed including details of those who may pose a risk to themselves or others.
• Highlight 16 and 17 year olds who receive a custodial sentence to a central point/person), who could then allocate a worker or advise an allocated worker to share information with the prison/support agencies if no worker is allocated. This should ensure that the young person has someone to attend post sentence meetings (Scottish Prison Service are aiming to have these meetings for all under 18s), and to contribute to their plans (Child's Plan).
• Helping to divert persons suffering from a mental disorder who may be at risk to themselves from a custodial remand to hospital (in conjunction with medical, forensic or psychiatric services) or appropriate bail accommodation.
• Providing advice to family and friends of individuals who have been sentenced.
• Highlighting those young people who have a high risk of being remanded and initiating an assessment for bail supervision where young people are one of the priority groups.

There is benefit in having a worker at court to support young people. Where the young person is known to statutory or voluntary services, he/she should have the choice of whether he/she is accompanied by a case worker or support worker.

Local arrangements should be made to identify those young people appearing in Court who are not known to any services, to establish a means of supporting them through the Court process if they require it. Consideration should be given to utilising the Court Case Enquiry System for those who have planned appearances in Court and making arrangements for information sharing with the Police, Fiscal Service or court and prison escort service provider to identify those appearing from custody. Examples of how this is managed include having a young people's worker based in the Court, support workers from teams dealing with young people attending Court on a duty rota basis and/or cooperative arrangements between Child Care and Court Social Work teams to identify the young people and support them through the Court process as well as collating any information about them which might be used to help the Court deal with them more quickly and appropriately.

Young people involved in the Court process will have access to the complete range of services available to young people from each Local Authority and their contracted provider agencies.

In order to enhance assessment and planning of services that young people are involved in, every young person receiving intervention as part of diversion, bail supervision, structured deferment, court orders and post-custody supervision will have an allocated Social Worker or support worker. This worker will:

• Monitor progress through programmed work
• Monitor compliance and report non-compliance in accordance with breach procedures
• Evaluate effectiveness of the services offered to each young person and modify approaches where necessary.

Children's Hearings

Children's hearings consider the cases of children referred to them by the Reporter because of concerns about the child's welfare. The children's hearing is comprised of lay decision-makers, called panel members. When the children's hearing decide that compulsory measures of supervision are necessary in order to protect and promote the welfare of the child it makes a supervision requirement for the child. A child can be subject to a supervision requirement until they turn 18.

Although children's hearings are not directly involved in criminal court proceedings there is an important interface between courts and children's hearings. This arises when a child or young person pleads guilty to, or is found guilty of, an offence, and the court considers disposing of the case by remitting it to a children's hearing. The law and procedure for remitting a case to a children's hearing is explained in detail in section 4.7 of the Toolkit on 'sentencing options'.