Children's Care and Justice Bill - policy proposals: consultation

5. Children and the Criminal Justice System

5.1 Background

The children's hearings system is a cornerstone of Scotland's approach to children who are in conflict with the law, with various presumptions already in existence to support children outwith the system of criminal prosecutions. These include the rebuttable presumption that the Principal Reporter will deal with jointly reported cases; the use of non-court disposals; and of diversion from prosecution. Currently the definition of a child varies across Scots law and is not universally defined as under 18 years. Many provisions in criminal justice legislation apply the definition of a child for 16-17 year olds based on their current involvement with the children's hearings system. If children do not meet this narrow definition, it can mean they are unable to access age-appropriate systems like the children's hearings system or age-appropriate facilities like secure care. The Scottish Government is looking at legislative definitions of children in conflict with the law, and considering whether these can be amended to ensure consistency along with the raising of the maximum age of referral to the Principal Reporter. A significant number of children continue to have their cases dealt with by the Procurator Fiscal and through prosecution at court.

In terms of jointly reported cases, in 2020-21^[78]:

• 1,090 children were the subject of 2,412 joint reports. Of these, 55.3% (1,333) were for children aged 16 or over while 44.7% (1,079) were for children aged under 16.
• The majority of joint reports were made while the child was not in police custody - 1,078 children with 2,327 reports. The Procurator Fiscal retained 28.3% of these cases for those that were decided during the period covered by these statistics.
• 85 joint reports were made for 56 children in custody. The Procurator Fiscal retained 77.6% of these cases for those that were decided during the period covered by these statistics.

Those children who cannot be jointly reported and cannot be effectively managed through alternative measures, where it is in the public interest to do so, are prosecuted in court and may be subject to disposals in the same way as adults.

Information on Criminal Proceedings in Scotland is published on an annual basis and includes additional tables on 12 to 17 year olds^[79]. In 2019-20:

• 7,225 children received non-court disposals most commonly EEI (4,245) followed by Recorded Police Warning (1,822).
• 1,208 children were proceeded against in court.
• The most common crime types which were the subject of court proceedings were miscellaneous offences (including common assault, breach of the peace, and drunkenness and other disorderly conduct) (391). This was followed by other offences (including crimes against public justice,

handling offensive weapons, and drugs) (317); and motor vehicle offences (148). The remainder were crimes of dishonesty (142); non-sexual crimes of violence (104); fire-raising, vandalism etc. (77); and sexual crimes (29).

• The most frequent outcome in these cases were community sentences (such as community payback orders) (392) and other sentences (which includes admonishment and absolute discharge) (286). This is followed by financial penalty (185); remit to children's hearings system (89); and custody (57).
• In 199 cases, the child was found not guilty.

5.2 Children at court

It has been suggested that the criminal justice system has not been designed specifically with children in mind^[80], with criminal trials being adversarial processes designed to determine guilt and to impose appropriate disposals. Concerns have been raised regarding the fulfilment of child-friendly justice^[81]. Evidence^[82] highlights the challenges faced by children in understanding and participating in court proceedings, the traumatising and re-traumatising impact of proceedings and that children's presentation in such settings can be wrongly interpreted as an indication of guilt. These issues are even more concerning given the high prevalence of additional support needs including speech, language and communication needs; learning disabilities; and autism spectrum disorder, experienced by children who come into contact with the justice system. These experiences have important implications for children's perceptions of procedural fairness^[83]. Key components of that include the individual child's ability to understand the process, have a voice, feel treated with respect, and trust the neutrality of the process. This matters because evidence indicates if people feel they have been treated fairly, they are more likely to believe that the courts have a right to make decisions, and are more likely to comply with these decisions. Some observers hold to a view that the criminal court context, even where adapted, is not an optimal forum for considering the needs and developmental and cognitive stage of children^[84].

The UN Committee on the Rights of the Child (CRC), in General Comments No. 24^[85] states: "Children differ from adults in their physical and psychological development. Such differences constitute the basis for the recognition of lesser culpability, and for a separate system with a differentiated, individualised approach".

Whilst this consultation concerns the proposal that all 16/17 year olds could be jointly reported, the Lord Advocate and Procurator Fiscal will retain the discretion to begin criminal proceedings and to prosecute children in court, where appropriate. These decisions will take into account the factors detailed in the prosecution code^[86]. These include considerations related to the law, evidence and public interest such as the nature and gravity of the offence, impact of the offence on the person harmed, and circumstances related to the offence and the child who caused harm.

In respect of children and young people, the then Scottish Executive introduced a youth court pilot in Hamilton in 2003 and a second in Airdrie in 2004. The policy priorities at this time were very different, being focused on children who were classed as 'persistent offenders', and the requirement of the youth court was to prosecute these children, regardless of the type or seriousness of offences committed. While the evaluation of the pilots found they had met their objectives, there were concerns about 'up-tariffing' these children through the encouragement of prosecution where an alternative would have been possible^[87]. The pilots did not continue.

Around that time, Structured Deferred Sentence (SDS) courts were piloted in some areas, which have been extended over recent years, with children and young people often a priority group for such courts. In Lanarkshire, for example, the purpose of a pilot SDS court was to improve sentencing outcomes for children and young people aged between the ages of 16-21 years old, through a combination of deferring sentencing and regular engagement with an intensive social work support package focusing on the child or young person's needs. The pilot involved dedicated courts and sheriffs, with the latter taking a welfare-based approach, speaking directly to the child or young person and engaging differently with them, alongside social work being in attendance, with closed courts being held at set times. The sentencing outcomes, re-offending rates and social improvements for children and young people were found to be overwhelmingly positive ^[88]. A Sentencing Youth Court is also currently being piloted in Glasgow. There is also instructive national and international evidence in respect of youth courts, including in respect of problem-solving courts and practice^[89].

These initiatives are in addition to the existing legislative requirements^[90] that in summary proceedings where a child is the accused, that the sheriff must sit either in a different building or room from that in which he or she usually sits, or on different days from those on which other courts in the building are engaged in criminal proceedings. The people who can attend court are also limited, often referred to as a "closed" court. These provisions do not apply to children aged 16-17 who are not subject to measures through the children's hearings system.

Children appearing at court can also apply for the use of special measures^[91] including the use of television link and/or a supporter. In addition, under the WSA and the Standards for those working with children in conflict with the law all children must have access to support when going through the judicial processes. It is however recognised that practice in respect of such measures and support varies across Scotland.

The Scottish Sentencing Council Sentencing Young People Sentencing Guideline recently came into effect. The guideline applies to the sentencing of those who are under the age of 25 at the date they plead or are found guilty. The guideline reflects evidence^[92] that children and young people, by virtue of brain development, have a lower level of maturity, and therefore a greater capacity for change and rehabilitation, than an older person. Rehabilitation should be a primary consideration when sentencing a young person. The maturity of the young person at the time that the offence was committed should also be considered. In determining the sentence, the court should ensure account is taken of the young person's particular and individual circumstances and that some sentences could have more of an adverse effect on a young person than on an older person because of their age, maturity, or circumstances.

A number of factors based on research^[93] and international human rights instruments offer underpinnings to any approach to children at court, namely:

• Adopting an individualised approach, that recognises and takes full account of the age and stage of development of the child, level of maturity, intellectual and emotional capacities and their experiences, focusing on the needs, rights and best interests of child, protecting children from discrimination and further pain or hardship.
• Treating children with dignity, respect, care, sensitivity and fairness, paying particular attention to their personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity.
• Operating in a manner and using language that is accessible, understandable and relatable, listening to children taking their views seriously and upholds their rights to participation.
• Delivering access to justice that is accessible, age-appropriate, speedy, diligent, procedurally fair, adapted to and focused on the needs and rights of the child.
• Separately considering and assessing the best interests of all children involved in the same procedure or case and seeking to balance these with a view to reconciling possible conflicting interests.
• Is appropriate; proportionate not only to the circumstances and the gravity of the offence, but also to the personal circumstances of the child and the various and particularly long term needs of society; and is trauma informed and responsive.
• Ensuring that professionals are sufficiently trained and experienced to ensure the needs, experiences, maturity and development of the child are considered; and that all age-appropriate disposals and supports are discussed and available, to encourage desistance, rehabilitation and the child's reintegration to society.

5.2.1 Proposals

The Scottish Government's Youth Justice Action Plan^[94] committed to scoping out options for a future approach where no under 18s are in an "adult court" setting, through the development of a child-friendly approach; including gathering data, views from key partners and evidence of good practice from other countries. Any changes would be for cases where it had been determined that a child should be prosecuted and therefore could not have their case dealt with through the children's hearings system. Given the changes proposed elsewhere in this consultation, we would therefore anticipate a reducing number of cases.

Should any changes be considered to current approaches, it will be necessary to accommodate the legitimate societal interest in accountability where serious harm has been caused, to uphold the rights of people harmed and to account for any risks to public safety. It will also be essential that this builds on our understanding of children and young people's needs and experiences; the learning from existing and previous pilots and initiatives; and is clear about who this would apply to (i.e. children or children and young people)^[95].

Any changes and identified resource requirements should also be considered in light of wider related initiatives within the overall justice system. These include the extension of the provisions within the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 around pre-recorded evidence for child complainers and witness aged under 16 in sheriff and jury cases; the three-year rollout of the new Scottish Child Interview Model for Joint Investigative Interviews which is designed to improve the quality of interviews so that they can be more routinely used as evidence in chief, again increasing the use of pre-recorded evidence; and, as previously referenced the commitment around access to holistic services within a 'Bairns' Hoose' by 2025. These are three significant and resource intensive developments, which will deliver significant benefits to eligible children and improve their experience of our justice and child protection systems.

The Scottish Government recognises that the independence of the Lord President is protected in legislation^[96]. It is for the Lord President, as head of the Scottish Judiciary, to make and maintain arrangements for securing the efficient disposal of business in the Scottish courts. This role must continue to be respected.

Change would also require the involvement of a range of stakeholders, including children with experience of the justice system and people who have been harmed. At this stage, four suggestions for change present themselves, on which we are keen to gather views:

1. A re-examination of the decision-making framework between which system should deal with a child's case and the consequent interfaces between the children's hearings system and the courts, as outlined currently in Section 4 above.

2. The continued use of traditional court settings, recognising the local innovations that are already underway across different areas of Scotland to improve children's experiences. There may also be learning from previous and current innovations in different areas of Scotland as detailed above, and wider developments in terms of justice that can continue to be shared^[97].

3. Making changes to practice, conduct in court and support for all children, whilst retaining children in court settings. Evidence would suggest such changes could include^[98]:

• Holding dedicated, separate courts for children.
• Ensuring children are kept separate from adults attending court/other settings, for example through separate entrances or waiting areas.
• Cases being held in a more child-friendly environment, not traditional court rooms, which could either be specifically designed for children, in a different building or different room within existing court premises (such as a jury room).
• The prioritisation of children's cases, set for a specific time to reduce waiting times, with the court closed to the public^[99].
• Dedicated personnel for such courts, all of whom adopt a welfare-based and trauma-informed approach. All personnel should be sufficiently and, as necessary, additionally trained in matters including child development; trauma; speech, language and communication needs; and communicating with children additional needs to promote their ability to communicate and deliver process of justice in a manner that is effective and child centred.
• The child sits round a table with a sheriff/judge (not in traditional court dress), their solicitor (not in traditional court dress), social worker and parent/carer where appropriate, to allow all parties, but particularly the child's, full participation.
• That the language used is modified to ensure that the child understands the process, with all procedures fully explained to them in a way they understand.
• The child is spoken to directly by the sheriff/judge and not through their solicitor or social worker.
• Adaptation of proceedings including adopting a slower pace, for example through regular breaks or shortened court day.
• The provision of enhanced needs and developmentally led, trauma informed support to children throughout the court process and in respect of any disposal from court, with multi-disciplinary support available as required.
• Access to independent advocacy as well as legal representation.
• These facilities and supports being available to children throughout their journey through the justice system (i.e. from the decision being made that the child's case cannot be progressed through the children's hearings system, to conclusion of any disposal, as opposed to just after sentencing).
• Timescales for cases being dealt with should be shorter than for adults, whilst still allowing legal safeguards to be fully respected.
• Where cases involve older co-accused, the same processes should apply.
• All age-appropriate disposals and supports are discussed and available. In particular maximising the use of structured deferred sentences, during which period children are intensively supported and are provided with the opportunity to engage with services and to evidence behavioural change.
• Supportive, regular reviews by the sheriff/judge throughout, not just following sentence, which the child can fully participate in and has the chance to provide an update on their life and progress overall, as in respect of any disposals.

4. The Promise stated that: "…Scotland must consider how to ensure that children have the totality of their cases dealt with in an environment that upholds their rights and allows them to effectively participate in proceedings. Traditional criminal courts are not settings in which children's rights can be upheld and where they can be heard". In light of this we would welcome views on any other proposals beyond options 1-3 that should be considered.

5.2.2 Question

Question 9: Should any of the above options be considered further?

Yes / No

• If yes, which option(s)?

Please give reasons for your answer, including any positive or negative implications of any of the options. We are particularly interested in implications for people who have been harmed

5.3 Children in custody

For children in conflict with the law, their rights, including their right to liberty must all be respected in line with the international standards of child-friendly juvenile justice and legislation^[100]. The deprivation of liberty of a child should be a last resort, to be used only for the shortest possible period of time. In Scotland, individuals accused of any criminal offence can be allowed to remain in the community pending trial including by ordaining them to appear or granting of bail. The presumption of liberty can be overridden in certain circumstances^[101]. Research has highlighted complexities related to remanding children^[102] including 16-17 year olds subject to measures through the hearings system and thus legally defined as a child; financial imperatives in that local authorities are responsible for funding remand places in secure care but not YOIs; and the various factors considered in decision-making.

In the Scottish Government Programme for Government 2021-22 and via the consultation on bail and release from custody arrangements^[103], changes are being considered to prevent individuals being remanded in custody wherever possible, unless a risk of serious harm is posed and sufficient public safety concerns exist.

The proposed changes will apply to all those being considered by criminal justice system processes including under 18s. Alongside this, efforts are being made to expand the availability of intensive community-based supports to augment youth and community justice services supporting diversion from prosecution, alternatives to remand and community sentencing. The bail and release consultation specifically invited views on whether the legislation should require courts to take an individual's age into account when deciding whether to grant them bail.

In 2019-20^[104]:

• 124 16-17 year olds were in prison / YOI, 119 of whom were male.
• Three children aged 16-17 years made up the full-year population of the analytical period, while 121 made up the part-year population.
• Those aged 16-17 years spent an average of 59.8 days in custody. This is important in the context of the presumption against short prison sentences of 12 months or less.

During 2021, on average 16-21 children aged under 18 were in YOIs/prisons each month, 76-94% of whom were on remand (i.e. had not been found guilty of an offence)^[105]. The proportion of children held on remand has increased as the total number of children held in custody has decreased and as a proportion is much higher than for adults^[106].

Nationally and internationally^[107], there is increased recognition of the significant detrimental impact on children being deprived of their liberty, even for short periods particularly within custodial institutions.

Where children require to be deprived of their liberty, our responses must be rights-based, relationship-based, psychologically and trauma informed, in therapeutic environments^[108]. According to international human rights instruments^[109], this should take place in correctional or educational facilities which are more akin to secure care in Scotland rather than YOIs / prisons, in a manner that takes account of children's needs and age. The priority must always be ensuring the child's effective reintegration into their community as soon as possible.

Secure care is usually referenced - and often equated with - custody. Whilst this is inevitable due to the comparable deprivations of liberty, there are unintended consequences which impact on perceptions, expectations and children's experiences of secure care^[110].

There are increasing calls in Scotland for children not to be placed in YOIs or prison-like settings, echoing calls from other jurisdictions^[111]. YOIs are not primarily designed to be therapeutic environments. They cannot offer the same level of trauma and attachment informed support as secure care, nor the high staff to child ratio sometimes necessary to meet the needs of these children.

The previous HMIPS inspection of HMP YOI Polmont, although identifying a number of positive factors, concluded that the setting is inappropriate for children, with staffing and an architectural structure more appropriate for an adult prison^[112]. Particular concerns have also been raised about the upholding of children's rights in such institutions^[113].

The above concerns have been exacerbated by COVID-19, with the restrictions, treatment and conditions experienced by children akin to those of adults, in contrast to those experienced by children in secure care^[114]. The HMIPS Year of Childhood Pre-Inspection Survey^[115] raised particular concerns about meeting children's psychological, educational, social or cultural rights and needs. Children on remand are treated differently to those who are sentenced in YOIs, but this can impact on the supports and opportunities that are available for these children^[116].

The Expert Review Of The Provision Of Mental Health Services For Young People Entering And In Custody At HMP & YOI Polmont^[117] made 80 findings, highlighting seven key recommendations and two high level strategic issues which have or are being addressed through a multi-agency action group.

As a result, a Scottish Parliament Justice Committee^[118] inquiry into secure care and prison places for children in Scotland recommended that "…unless there is strong evidence to the contrary, no young person under the age of 18 should be placed in HMP & YOI Polmont when a place in a secure care unit would be more suitable". Similarly, the Promise stated that in line with the UNCRC, 16 and 17 year olds who are remanded or sentenced must be accommodated within secure care rather than a YOI. They concluded "Young Offenders Institutions are not appropriate places for children and only serve to perpetuate the pain that many of them have experienced". This has been committed to within the Scottish Government's Youth Justice Vision that as far as possible, "no under-18s are detained in young offenders' institutions, including those on remand, with secure care and intensive residential and community-based alternatives being used, where trauma-informed approaches are required for the safety of the child or those around them" and also within the Programme for Government 2021-22.

5.3.1 Proposals

To address the above concerns and to support Scotland to Keep The Promise, we propose to make specific provisions related to children. Where it is determined that parts of a child's behaviour would pose significant risk to public safety, and that no other options for mitigating this risk are available or proportionate, deprivation of liberty may be necessary but should be an option of last resort. Where it is required, children should be remanded or sentenced to secure care, not to a YOI or prison. Through keeping The Promise, we are committed to ending the placement of 16 and 17 year olds in YOI without delay.

We are interested in views on whether there should be a statutory prohibition on placing children in a YOI. This would include in the gravest cases where a child faces a significant post-18 custodial sentence.Currently, the needs, welfare and best interests of all children in secure care require to be considered in making any placement decision, as do the rights of all children including to be protected and kept safe.

Where any child is deprived of their liberty, be this having been remanded or sentenced, this should be taken as an indicator of wellbeing needs and that the child may require support – either in parallel or on release - to promote positive outcomes. There are existing duties on local authorities to assess the needs and wellbeing of children where there are concerns and to provide support (including coordinated support) as necessary. There is also a duty to make a referral to the Principal Reporter where the existing criteria are met. These duties are set out in policy and legislation relating to all children, which are extended in relation to children in conflict with the law, for example under the WSA. In addition, children in YOIs and secure care may be looked after children or care leavers who have additional entitlements to support, including aftercare potentially up to the age of 26. For care leavers, deprivation of liberty should warrant a re-assessment of that young person's needs and welfare, along with the provision of aftercare support where necessary taking account of existing legislative entitlements. The desire is to ensure all children and care leavers who are sentenced or remanded have access to support that they require at the point of sentence or remand, during any period in secure care or custody, and following their return to the community.

5.3.2 Questions

Question 10: Where a child requires to be deprived of their liberty, should this be secure care rather than a YOI in all cases?

Yes / No

Please give reasons for your answer

Question 11: Should there be an explicit statutory prohibition on placing any child in a YOI, even in the gravest cases where a child faces a significant post-18 custodial sentence and/or where parts of a child's behaviour pose the greatest risk of serious harm?

Yes / No

• If no, in what exceptional circumstances should use of a YOI be considered?

Please give reasons for your answer

Question 12: Should existing duties on local authorities to assess and support children and care leavers who are remanded or sentenced be strengthened?

Yes / No

Please give reasons for your answer

• If yes, please provide details of how could this be achieved

5.4 Anonymity

A child's general right to privacy is given additional attention in cases where a child is in conflict with the law^[119]. In Scotland the identification of a child as either accused or acting as a witness in a criminal case is prevented, although the judge has discretion to make an exception when the court is satisfied this is in the public interest^[120]. These provisions do not apply pre-charge when a child is a suspect or after the age of 18. In the children's hearings system, protected information must not be published if this is intended, or is likely, to identify a child, their address or school^[121]. Any other child connected with the case – including a child who has been harmed – has similar rights to anonymity.

Whilst the public may have an interest in knowing the identity of a child, particular in cases of serious offending, it has been argued that doing so is not justified, given the need to keep these children safe, support their rehabilitation and reintegration, and uphold their rights. There are also impacts for children's families. In England, it has been recommended that children should have lifelong anonymity through the review of youth justice^[122], with this position supported by the UK's four Children's Commissioners ^[123]. As such it has been recommended in Scotland that: "… all persons who are under 18 at the time of the offence must be granted lifelong anonymity, with any exceptions to this extremely limited and clearly stated in law"^[124].

5.4.1 Proposals

Three interlinked proposals are being made:

1) That the judge's discretion to make an exception to identify a child accused should be further limited. Instead of this being permissible when in the public interest, instead this should only apply when the court is satisfied this is necessary for the purpose of protecting the public from serious harm^[125] and/or in the interests of justice^[126].

2) That legislative change is made to enable a child's right to anonymity to apply from their first contact with the criminal justice system, including pre-charge.

3) That the post-18 automatic identification of children who have come into conflict with the law aged under 18 ceases. Where a child has been convicted of an offence aged under 18, their right to anonymity should be maintained into adulthood, unless it is determined subsequent to the child turning 18 that, for reasons of protecting the public from serious harm and/ or the interests of justice, such identification is necessary. That anonymity should persist until that young person turns 26.

5.4.2 Question

Question 13: Do you agree that the three above changes related to anonymity should be made?

• Yes to all changes
• Yes but only to some changes (please identify which ones)
• No

Please give reasons for your answer