Do the Right Thing: children's rights progress report

21 16 and 17 year olds in the youth justice system

What the Committee said:

"The Committee recommends that the State party fully implement international standards of juvenile justice, in particular articles 37, 39 and 40 of the Convention, as well as the General Comment no. 10 on "Children's rights in Juvenile Justice" the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("the Beijing Rules"), the United Nations Guidelines for the Prevention of Juvenile Delinquency ('the Riyadh Guidelines') and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty ("the Havana Rules"). It also recommends that the State Party:

a) raise the minimum age of criminal responsibility in accordance with the Committee's General Comment no. 10, and notably its paragraphs 32 and 33;

b) develop a broad range of alternative measures to detention for children in conflict with the law; and establish the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle;

c) children in conflict with the law are always dealt with within the juvenile justice system and never tried as adults in ordinary courts, irrespective of the gravity of the crime;

d) following the welcomed withdrawal of its reservation to article 37(c) of the Convention, ensure that, unless in his or her best interests, every child deprived of liberty is separated from adults in all places of deprivation of liberty;

e) provide for a statutory right to education for all children deprived of their liberty;

f) adopt appropriate measures to protect the rights and interests of child victims or witnesses of crime at all stages of the criminal justice process.

The Committee recommends that the State party conduct an independent review on ASBOs with a view to abolishing their application to children."

Progress to date

• The Scottish Government has prioritised work that supports partners to develop a 'whole system approach'. This approach involves putting in place streamlined and consistent planning, assessment and decision-making processes for young people under 18 who offend, ensuring they get the right help at the right time. The ethos of the whole system approach is that many young people could and should be diverted from statutory measures, prosecution and custody through early intervention and intensive support in the community. The Scottish Government has worked with key partners to develop and publish a number of guidance documents and toolkits to support implementation, including:
• the Framework for Risk Assessment, Management and Evaluation for Young People;
• the Diverting Young People from Prosecution toolkit which promotes greater use of diversion from prosecution as well as the need for child-specific diversion programmes;
• Reintegration and Transitions guidance which promotes the continuity of support into adulthood;
• Assisting Young People aged 16 and 17 Year Olds in Court. The purpose of this toolkit is to share the best practice which has emerged, and to assist those who are involved with young people under 18 who are appearing in court, to develop efficient and effective local approaches to handling these cases; and
• Alternatives to Secure Care and Custody guidance which promotes a number of options for the courts such as remitting cases back to the children's hearing system, intensive fostering, intensive support and monitoring services and deferred sentence. The aim is to increase the use of such options by ensuring that they are supported by appropriate risk and need assessments, tailored intervention, and consistent decision making.
• The Criminal Justice and Licensing (Scotland) Act 2011 introduced provisions that abolished 'unruly certificates' ending the very rare practice of remanding 14 and 15 year olds in the prison estate. Accordingly, no legal mechanism exists for the courts to either remand or sentence a young person under age 16 to prison estate.
• The Scottish Prison Service ( SPS) recognises the vulnerability and significant care requirements of offenders sentenced to a period of imprisonment when they are under 18. The SPS is committed to caring for, and meeting the needs of, young people in custody through their Strategy Framework for 16 and 17 Year Olds in Custody. A dedicated facility - Blair House - has been set up in HM Young Offenders Institute Polmont to care for all male under-18s who are admitted. No young people aged 18 or over are accommodated in this dedicated facility. Youth workers - employed by Barnardo's - work with prison staff and social workers through our 'Plan B' initiative to provide ongoing care and support during the time spent in custody, upon release and during community re-integration. All convicted young people under the age of 18 get a psychological assessment to ensure their individual needs are identified and - through the integrated case management process - appropriate actions are taken in a coordinated manner to address those needs.

Next steps

• Following the raising of the age of criminal prosecution in the Criminal Justice and Licensing (Scotland) Act 2010, we will give fresh consideration to raising the age of criminal responsibility from 8 to 12 with a view to bringing forward any legislative change in the lifetime of this Parliament.