Prosecution of young people: report

Introduction

The approach to youth justice in Scotland builds on the key principles and ethos of the highly influential Kilbrandon Report published in 1964.^[1] Concerned with legal provisions and systems to treat "children in trouble",^[2] it concluded that there was little distinction between those who commit offences and those in need of care and protection^[3] and advocated, for both, a welfare-based approach.

Its visionary recommendations led to the establishment of the Children's Hearing System,^[4] a distinct system with the responsibility of making decisions in the best interests of the child and where, for all but the most serious offences, children and young people who commit offences and those in need of care and protection are dealt with in the same forum, in the same way.

Over 50 years later research, underpinned by scientific evidence, has established a strong association between young people who have experienced some form of Adverse Childhood Experiences (ACEs)^[5] and other adversities and those engaging in harmful or risk-taking behaviours bringing them into contact with the criminal justice system, whether as a perpetrator or as a victim. The recognition of the impact of prolonged exposure to stress and trauma in childhood resonates with the central premise of the Kilbrandon Report; that many young people who present a high risk of offending are often highly vulnerable, with complex needs.

The focus on early intervention and a welfare-centred approach to children and young people is at the heart of the current approach to Youth Justice in Scotland – Getting it Right for Every Child (GIRFEC)^[6] – offering the right help at the right time. It is a child-centred, welfare-focused approach promoting, in a multi-agency context, early interventions to respond to the first signs of harmful behaviour.

Tackling the cause and impact of offending behaviour through addressing the wider needs of the young person and keeping young people out of the formal criminal justice system, wherever possible, is a key objective of the Scottish Government's Youth Justice Strategy.^[7]

There have been some notable reductions in the number of offence referrals to the Children's Reporter and of 16/17 year olds being detained in a Young Offenders Institution (YOI):

• 3,060 children were referred to the Reporter on offence grounds in 2017/18, a 78% decrease since 2007-08 but a 2.2% increase from 2016/17.^[8]

• 2,203 young people were prosecuted in Scotland's courts in 2015/16,^[9] a 78% reduction since 2006/07.

• 51 under 18 year olds were detained in custody in 2016/17, a 77% reduction since 2006-07.^[10]

While the reductions are encouraging, the substantial number of young people that continue to be prosecuted and a higher imprisonment rate than most other European countries,^[11] including a disproportionate number of looked after or formerly looked after children or young people,^[12] remains a source of concern.

Children and Young People

In Scotland, the definition of a child or young person differs depending on the context. In this report, aligned with the definition of a "child" as any person under 18 in recent legislative provisions^[13] and the UN Convention on the Rights of the Child,^[14] we have used the terms "young person" or "offender" to include all children and young people under the age of 18.

Aim

In the Scottish Government 'Year of Young People' – "Bliadhna na h-oigridh",^[15] it is timely to review and assess the effectiveness of Crown Office and Procurator Fiscal Service (COPFS) processes and procedures for prosecuting offenders up to the age of 18 in the Justice of the Peace and Sheriff Courts and the use of alternative actions having particular regard to:

• Compliance with the Lord Advocate's guidelines for offences alleged to have been committed by young people^[16] and COPFS policies.

• The effectiveness of procedures, processes and systems to ensure that cases with young offenders are progressed expeditiously and in a proportionate and effective manner.

• The effective use of early intervention and diversion.

• Whether there is scope to further reduce the number of young people being prosecuted.

In doing so we examined:

• Liaison arrangements with Police Scotland and other relevant criminal justice and social work agencies, including the Scottish Children's Reporter Administration (SCRA);

• The use of all available alternatives to prosecution, including diversion;

• The impact of the legislative framework for different categories of young people;

• Communication with young offenders; and

• Outcomes of decisions taken by prosecutors.

Objectives/Outcomes

We seek to identify:

• Any weaknesses in the procedures, processes and systems aimed at dealing with young people who offend and make recommendations for improvement;

• Any barriers/impediments/gaps in service provision for alternatives to prosecution, specifically the use of diversion, and make recommendations for improvement; and

• Good practice.

Scope of Review

There is a wealth of research and expertise on the influences and drivers of youth offending, the challenges it provides and the legislative and policy approaches^[17] that have been implemented to improve outcomes for children and young people.

The focus of this inspection is what happens to young people reported by the police and other reporting agencies to COPFS. It aims to provide evidence to inform policy, practices and procedures that may further reduce the number of young people entering the criminal justice system.

While the review is concerned with decisions taken by COPFS, in the context of prosecuting young people and use of alternative actions, other criminal justice partners including the Centre for Youth and Criminal Justice (CYJC), Community Justice Scotland (CJS), Local Authority Criminal Justice Social Work (CJSW), Police Scotland, Scottish Children's Reporter Administration (SCRA), Scottish Courts and Tribunals Service (SCTS) and the Scottish Government Youth Justice Improvement Board (YJIB) all have a role in supporting the priorities of the Youth Justice Strategy and, in particular, reducing the number of young people in the criminal justice system.

While our recommendations are directed to COPFS, our findings in some areas go beyond the remit of COPFS recognising that system-wide solutions are required to address offending by children and young people.

Methodology

We adopted a mixed-method approach which combined the following evidence gathering methods:

Interviews with personnel, organisations and parties involved in the prosecution of young people and the delivery of services including:

• Key personnel involved with the policy and prosecution of young offenders in COPFS;

• Audit Scotland, Children's Commissioner for Scotland, CJS, CYCJ, a legal representative for offenders, the Governor of Her Majesty's Young Offenders Institution (HMYOI) Polmont, One Glasgow,^[18] Police Scotland, including Youth Justice Management teams, SCRA and relevant Scottish Government Directorates.

• Representatives from voluntary sector groups and service providers including Barnardo's, Criminal Justice Social Work (CJSW) and Sacro.

Observation: The Problem Solving Court in Aberdeen and the Structured Deferred Sentencing Court in Hamilton.

Document Review: A review of COPFS departmental protocols, policies and guidance, management information; current statistics and academic research/reports.

File reviews: We collated the actions taken and outcome of all cases where the offender was under 18 and reported to COPFS in 2016/17.^[19] It included cases where proceedings were discontinued or charges were conjoined^[20] into another case and excluded any offenders prosecuted in the High Court.

Using this data, we conducted five reviews.

• We examined a significant sample^[21] of 95 reports of offenders under 18. (Case Review) The review considered prosecutorial actions and outcomes, the reporting of offenders in custody, provision of information on the individual and family circumstances of the offender, communication with the Reporter, timescales, compliance with COPFS policies and procedures and comparative justice for different age groups of offenders.

• We examined a significant sample^[22] of 86 offenders who were offered the opportunity of diversion. (Diversion review) The review considered decision-making, compliance with COPFS policies and procedures, timescales, communication with offenders and outcomes.

• We examined a significant sample^[23] of 72 reports involving 76 offenders where there was a decision to prosecute under solemn procedure. (Solemn Review) The review considered decision-making, compliance with COPFS policies and procedures and outcomes.

• To assess whether the current framework for dealing with young people raised any issues of comparative justice, we examined a significant sample^[24] of 93 cases of young offenders, including any co-accused, totalling 141 offenders, where there was a prosecution in the Justice of the Peace or Sheriff Courts. (Comparative Review).

• We examined a significant sample^[25] of 76 cases involving road traffic offences and a further 28 cases diverted to the Driver Improvement Scheme.^[26] (Road Traffic Review) The review considered decision-making, compliance with COPFS policies and procedures, timescales and outcomes.

• To assess the impact of the COPFS prosecution policy review in 2017 and the introduction of dedicated prosecutors to deal with cases involving children and young people, we reviewed a significant sample of 83 offenders reported to COPFS in April 2018.^[27] (2018 Review).

ACKNOWLEDGEMENT

We wish to extend thanks to all who facilitated our visits and shared their experience and knowledge. We found many committed and dedicated professionals and examples of excellent partnership working, including One Glasgow and the Police Scotland Youth Management Unit at Aberdeen, who through collaborative efforts seek to achieve the best outcome for victims and young offenders.