Bail and Release from Custody (Scotland) Bill: children's rights and wellbeing impact assessment

1. Which articles of the UNCRC does this policy/measure impact on?

Content of the Bill

The Bill introduces a number of reforms designed to deliver on the Scottish Government’s commitment to refocus how imprisonment is used. They are intended to ensure that, as much as possible, the use of custody for remand is a last resort for the court when a risk of serious harm arises. The Bill is also intended to give greater focus to the rehabilitation and reintegration of individuals leaving prison custody. The Bill is underpinned by a commitment to public safety and the protection of victims, and is intended to support a reduction in future risk of reoffending, fewer victims and improved outcomes for individuals and their families.

Bail Law

For those accused of criminal offences, the Bill to refocuses the legal framework which is used to make decisions as to when custody is able to be imposed by a criminal court, so that accused persons who do not pose a risk of serious harm should be admitted to bail as the criminal justice process proceeds. All bail decisions will remain a matter for the independent courts in each case.

Provisions in the Bill relating to bail can be broadly split into four distinct areas. These are:

• Reform to the legal framework within which bail decisions are made;
• Enhanced role for justice social work in provision of information to the court;
• Recording of reasons when bail is refused;
• How periods on electronically monitored bail conditions affects time served for custodial sentences

Release from prison custody

The Bill will also include reforms on arrangements around release from prison custody, with an emphasis on providing greater opportunities to support the reintegration of people leaving prison to reduce the risk of future offending and to enable people to move on towards more positive outcomes.

The provisions cover four broad areas:

• Point of release
• Improved support for people leaving prison
• Provision of information to victim support organisations on prisoner release
• Early release of prisoners in emergency situations

The policy has the potential to impact any child or young person (CYP^[1]) who comes into contact with the Criminal Justice system. However, in an attempt to clarify how the legislation may impact different groups of CYP, this impact assessment separates the potential impacts by; those accused of an offence, those being released from prison, victims of crime and those whose parent/carer is accused of an offence or being released from prison custody. The impact of the legislation will be different for these groups (although one person may belong to several of the groupings) which is why the impact assessment has been set out in this way.

CYP accused of an offence

• Article 3: In all actions concerning a child, the child’s best interests must be a primary consideration of the court or administrative body.
• Article 9: Ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
• Article 12: In all matters affecting the child, the child has a right for their views to be heard and for such views to be given due weight in accordance with the age and maturity of the child.
• Article 37(b): No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
• Article 40: A child accused or guilty of breaking the law must be treated with dignity and respect. They have the right to legal assistance and a fair trial that takes account of their age. Governments must set a minimum age for children to be tried in a criminal court and manage a justice system that enables children who have been in conflict with the law to reintegrate into society.

CYP as victims of crime

• Article 3: In all actions concerning a child, the child’s best interests must be a primary consideration of the court or administrative body.
• Article 19: States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.

CYP being released from prison custody-

• Article 3: In all actions concerning a child, the child’s best interests must be a primary consideration of the court or administrative body.
• Article 12: In all matters affecting the child, the child has a right for their views to be heard and for such views to be given due weight in accordance with the age and maturity of the child.
• Article 37(c): Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age.

CYP whose parent/carer is accused of an offence or being released from prison custody

• Article 2: Non-discrimination: The State has a duty to protect a child from punishment or discrimination, which they suffer because of the status or activities of their parents.
• Article 3: In all actions concerning a child, the child’s best interests must be a primary consideration of the court or administrative body.
• Article 5: Governments must respect the rights and responsibilities of parents and carers to provide guidance and direction to their child as they grow up, so that they fully enjoy their rights. This must be done in a way that recognises the child’s increasing capacity to make their own choices.
• Article 7: Every child has the right to be registered at birth, to have a name and nationality, and, as far as possible, to know and be cared for by their parents
• Article 9: Ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
• Article 18: Both parents share responsibility for bringing up their child and should always consider what is best for the child. Governments must support parents by creating support services for children and giving parents the help they need to raise their children.
• Article 20: If a child cannot be looked after by their immediate family, the government must give them special protection and assistance. This includes making sure the child is provided with alternative care that is continuous and respects the child’s culture, language and religion.