Coronavirus (Recovery and Reform) (Scotland) Bill: child rights and wellbeing impact assessment

Introduction

Further information about the background and the policy intention behind the Coronavirus Recovery (Scotland) Bill ("the Bill") and also about the existing temporary Covid legislation is set out in the Policy Memorandum which accompanies the Bill. The Bill, Policy Memorandum and other accompanying documents are available from the Scottish Parliament website and are linked to from this Bill webpage.

This CRWIA particularly focuses on provisions related to education given the significant degree of consultation interest and the particular impact on children and young people.

The Scottish Government has conducted a screening exercise which determined that a CRWIA is required for the following provisions:

• Modifications of the Public Health etc. (Scotland) Act 2008
• Arrangements for vaccination and immunisation
• Educational establishments etc.
• School consultations
• Requirements of writing: Disapplication of physical presence requirements
• Custody at police stations: Custody officers' functions
• Registration of births
• Registration of deaths
• Bankruptcy: meaning of "qualified creditor" and "qualified creditors"
• Legal aid and advice: Claim for interim payment of fees and outlays
• Mental health: removal of need for witnessing of signature of nominated person
• Removal of mandatory eviction grounds
• Pre-action protocol in respect of evictions relating to rent arrears

The Scottish Government considers that the following provisions within the Bill will have no particular direct or indirect impact on children and young people and therefore that a CRWIA is not required for these specific provisions:

• Bankruptcy: remote meetings of creditors
• Civic licensing: how hearings may be held
• Alcohol licensing: how hearings may be held
• Bankruptcy: service of documents
• Civic licensing: how notices may be published
• Land registration
• Freedom of information: giving notice electronically
• Care services: giving of notices by SCSWIS
• Parole Board for Scotland: Chairperson's functions
• Courts and tribunals: conduct of business by electronic means etc. (Documents)
• Courts and tribunals: conduct of business by electronic means etc. (Attending a court or tribunal)
• National jurisdiction for callings from custody etc.
• Proceeds of crime

Although the provisions below were identified as having some direct or indirect impact on children and young people, the Scottish Government considers that a CRWIA is not required for these specific provisions. Further information is provided below.

Failure to appear before court following police liberation

The ability of the police to release an accused person including a child on an undertaking is not new.

While the measure extends the period of time a person may be subject to an undertaking and any conditions of an undertaking, children aged 12 to 16 can only be taken to court for serious crimes and most offences committed by children of this age will be dealt with by early intervention (like a warning or help from a support organisation) or the children's hearings system.

In addition, while individuals aged from 16 to 17 who commit a criminal offence may be dealt with by the courts, per Lord Advocate's Guidelines: Liberation by the Police Covid-19 or Coronavirus, the necessity and proportionality of imposing undertaking conditions on a child must be considered carefully before applying any liberation condition to a child.

Where undertaking conditions are imposed and extended for a longer time period under this measure, they are the same as those that the person initially agreed to when entering into the undertaking (unless they have subsequently been modified prior to the failure to appear). Where a person is subject to any conditions of undertaking which are extended for a longer period and are not standard conditions under section 26(3)(a) of the 2016 Act, the person retains the right to apply to the court to have such a condition/(s) reviewed. If the court is not satisfied that the condition is necessary and proportionate for the purpose for which it was imposed, the sheriff may modify the terms of the undertaking by removing the condition or imposing an alternative condition. The penalty for breaching the undertaking also remains unchanged. The power to extend an undertaking and any conditions attached to it is limited to circumstances where the court considers that the accused person has not attended court for a reason relating to Covid, and as such, it could not be used by the court as a general alternative to issuing a warrant for the person's arrest in instances where, unrelated to Covid, the person has not appeared in court and the undertaking has lapsed.

Fiscal fines

The policy of increasing the maximum level of fiscal fine and making further temporary adjustments to the fiscal fine scale to give effect to the measure is intended to enable alternative action to prosecution be taken in a wider range of summary cases. It is not to increase the fine amount in individual cases which would previously have been dealt with by way of a certain level of fiscal fine pre-April 2020 with the passing of the Coronavirus (Scotland) Act 2020 ("the First Scottish Act").

In addition, fiscal fines have been an integral part of the Scottish criminal justice system for more than 20 years and they are not mandatory penalties. They allow a person offered one to refuse the conditional offer by giving notice to the court to that effect. In such an event, the refusal is treated as a request by the person to be tried for the offence in which case the procurator fiscal will then decide whether to prosecute.

Criminal procedure time limits

While some stakeholders did highlight negative consequences in their consultation responses, these did not relate to the time limits extension provisions themselves, but rather to the impact on children and young people of delays in cases coming to trial caused by the backlog of cases that has built up during the pandemic. These delays are not a consequence of the time limit extension provisions but rather the provisions are intended to assist justice agencies in addressing this backlog of cases, principally by avoiding resources being diverted to extend time limits on a case-by-case basis.

Prisons and young offenders institutions

The detail of the legislation, and the regulations devised for any early release process, would provide an opportunity to address the rights of children, or other individuals, who might potentially be effected.