Prosecution of young people: report

Chapter 1: Criminal Justice Response to Youth Offending

"The key to reducing offending may lie in minimal intervention and maximum diversion".^[31]

Background

1. In recent years, through the prism of GIRFEC and the Whole Systems Approach (WSA), there has been a drive to reduce and, where possible, prevent offending by young people, to improve outcomes not only for the individual involved but the wider community.

2. The WSA was introduced nationally in 2011 and is a key component of the Youth Justice Strategy: Preventing Offending, launched in 2015.^[32] WSA promotes a multi-agency, multi-disciplinary approach to youth offending with an ethos that young people who offend could and should be diverted through early intervention, diversion and use of robust community alternatives to keep them out of the criminal justice system. This co-ordinated approach is known as Early and Effective Intervention (EEI).

3. EEI aims to divert young people from referral to the Reporter or COPFS and prevent future offending by providing timely and proportionate interventions, including counselling and drug/ alcohol support.

4. The police have a range of options to respond to offending. They can use direct measures including verbal, restorative justice^[33] or written warnings; referral to partners for local interventions (EEI), Recorded Police Warnings (RPWs) and sending reports to SCRA and/or COPFS where compulsory measures may be required.

5. Recorded Police Warnings may be used for some low-level offending by 16/17 year olds. There is a presumption against reporting offences considered suitable for RPWs to the prosecutor. To achieve the maximum impact the warning should, wherever possible, be issued within seven days of the commission of the offence.

6. All police interventions should be accompanied by a recording of any wellbeing concerns regarding the young person^[34] which should be shared with relevant partners.

The Children's Hearings System

7. Children and Young people aged eight to 16 (or if over 16, subject to a referral already under consideration, children's hearing proceedings or a Compulsory Supervision Order) can be referred to the Principal Reporter^[35] (the Reporter) where it is considered that they are in need of protection, guidance, treatment or control through compulsory measures.

8. Where the Reporter considers that the child or young person may require to be made subject to a Compulsory Supervision Order (CSO) a children's hearing will be arranged.

9. If the grounds for referral are accepted or established at the children's hearing,^[36] the panel members will consider making the child subject to a CSO. Where a case is not referred to a children's hearing, the Reporter may refer the child to the local authority to work with them on a voluntary basis or take no further action.

10. In taking decisions, the children's hearings must have the need to safeguard and promote the welfare of the child as their paramount consideration.^[37]

11. Most young people involved in offending behaviour are dealt with by EEI or within the children's hearings system.

Legal Framework

• No child under the age of 12 can be prosecuted.^[38] Any offending behaviour is dealt with through the application of EEI, police direct measures or the children's hearings system should compulsory measures be required.

• Children aged between 12 and below the age of 16 can be prosecuted in accordance with the Lord Advocate's Guidelines to the Chief Constable on the Reporting to Procurators Fiscal of offences alleged to have been committed by children (LA Guidelines).^[39] They provide:
  • Children should only be jointly reported to the Procurator Fiscal and the Reporter if the offence(s) is so serious it will normally give rise to solemn proceedings or for 15 year olds and above in cases that may result in disqualification from driving;
  • Children in this age group can be prosecuted only on the instructions of the Lord Advocate or at his instance.^[40]

If not within the above criteria the police may use direct measures, EEI or submit a report to the Reporter.

• Young People aged 16 and 17 can be jointly reported to the Procurator Fiscal and Reporter where:^[41]
  • They are subject to a Compulsory Supervision Order or
  • They were referred to the Reporter before their 16th birthday, but a decision has not yet been made either to make them subject to a CSO, or to refer them to a children's hearing or to discharge the referral (referred to in the report as open referral).

There are two categories of 16/17 year olds subject to a CSO or open referral:

1) 16/17 year olds who commit certain low-level offences: For such offenders the police have discretion to use direct measures, EEI or send a report only to the Reporter.

2) For 16/17 year olds jointly reported cases:

• The offender can continue to have their offending managed within the hearing system or (following discussion with the Prosecutor and Reporter) can be dealt with in the criminal justice system.

• If prosecuted, following any conviction, the court is required to request the Reporter to arrange a children's hearing for the purpose of obtaining their advice as to the treatment of the child, and following that advice it may dispose of the case or remit it to the Reporter.^[42]

• Other 16 and 17 year olds:

• Are dealt with through the use of RPWs, local EEI arrangements or by a report to the Procurator Fiscal.

• Following any conviction at summary level for any person aged between 16 and 17½, the court may request the Reporter to arrange a children's hearing for the purpose of obtaining their advice as to the treatment of the person.^[43]

12. The current legislative framework precludes recourse to the Children's Hearing System for many 16/17 year olds who offend. Contrary to the definition of a child in the UN Convention, for many young people, 16 represents the age at which they are considered an adult within the criminal justice system.

Governance

Youth Justice Strategy

13. The primary role of the Youth Justice Improvement Board (YJIB),^[44] of which COPFS is a key member, is to support the Youth Justice Strategy. It reports to the Justice Board, comprising of Scottish Government Directors and heads of justice organisations, including the Crown Agent, Chief Executive of COPFS. The Justice Board seeks to deliver the Visions and Priorities for Justice in Scotland.^[45]

14. The Youth Justice Strategy focuses on prevention, diversion and managing and supporting children and young people to change their behaviour.

15. Taking account of the age and capacity of the offender, their background and personal circumstances, the nature/seriousness of the offence and the impact of the offence on any victim and the wider community, the approach taken should seek to use the minimal intervention necessary to address the offending behaviour and escalate actions in a proportionate and targeted manner.^[46]

16. Wherever possible, it aims to keep young people out of the criminal justice system.^[47]

Local Court and National Initial Case Processing Unit (NICP)

17. Summary business is delivered by the Local Court Function of COPFS through a geographical structure aligned with six Sheriffdoms.^[48] Local Court also incorporates the National Initial Case Processing Unit (NICP) which has responsibility for the initial decision taken for most cases likely to be prosecuted in the summary courts. Local Court is headed by a Deputy Crown Agent^[49] and NICP by a Senior Civil Servant.

18. Prosecutions in the Justice of the Peace or Sheriff Courts are conducted by local prosecutors.

Standard Prosecution Report (SPR)

19. Cases are reported by the police or other reporting agencies by way of a Standard Prosecution Report. The SPR includes information on: the offence(s); the circumstances of the offence(s); an analysis of the evidence; and information on the background of the offender and, where appropriate, victims. For young people, it should provide information on their background, including whether they are subject to a CSO and any offending history.

20. An offender may be reported in custody or liberated on an undertaking^[50] or for report.^[51]

Initial Decision-Making

21. There are four possible options available to prosecutors on receipt of a SPR:

• To prosecute;
• To instruct investigation prior to deciding the appropriate action;
• To use an alternative to prosecution, for example, to refer to the Reporter and;
• To take no action.

Prosecution Policy

22. In deciding whether to prosecute a young person, the overriding consideration for prosecutors, as in all cases, is whether it is in the public interest (if there is sufficient evidence) to do so. In assessing the public interest, the prosecutor will take account of competing interests, including those of the victim, the offender and the wider community. A relevant consideration is the age, background and personal circumstances of the offender. Age may, depending on other circumstances, be a factor which influences the prosecutor in favour of action other than prosecution.

23. COPFS prosecution policy was revised in 2017. Of relevance, it emphasises:

An outcome focussed approach is to be adopted – taking the lowest competent form of prosecutorial action that can achieve the key sentencing objective and the appropriate outcome unless there is a specific instruction requiring a particular form of action.

Public Policy Considerations

24. For public policy reasons, there are some offences where there is a presumption in favour of prosecution. They include offences of domestic abuse, wilful fire-raising, theft by housebreaking and hate crimes. In exceptional circumstances, the presumption may be rebutted and alternative action taken. A mandatory prosecution policy applies to offences of being in possession of a knife in certain locations or circumstances, including licensed premises, a railway or bus station or in a town/city centre – other than for offenders under 16 – all such offences must be commenced in the sheriff solemn court. Such cases can subsequently be prosecuted in the sheriff summary court if there are exceptional circumstances.

Alternatives to Prosecution

25. There are a number of actions that should be considered before a decision is taken to prosecute a young person, with all of the consequences that flow from that decision, including the stigma and potential to impact on the person's future life chances by having a criminal record. These include:

• Referral to the Reporter – to refer a person to the Children's Hearing System.

• Warning Letters – to issue a warning.

• Fixed Penalty – to issue a monetary penalty for less serious road traffic/motor vehicle offences^[52] and the imposition of penalty points.

• Fiscal Fines – to issue a monetary fine ranging between £50 and £300.

• Compensation Order – to issue a monetary compensation order, to the maximum value of £3,000, to victims who have suffered monetary or personal loss or alarm or distress.

• Combined Order – to issue a combination of a fiscal fine and a compensation order.

• Diversion – to refer a person to a social work criminal justice team for the purpose of receiving support, treatment or other action designed to deal with the underlying cause of the offending or, for road traffic offences, to the Driver Improvement Scheme.

• Fiscal Work Order (FWO) – to offer a period of unpaid work of between 10 and 50 hours.^[53]

26. Taking an outcome focussed approach prosecutors should utilise the lowest competent alternative necessary to address the offending behaviour. Of these, FWOs and diversion have traditionally been regarded as higher tariff alternatives.

A Young Person's Journey through the Criminal Justice System

27. A young person's journey through the criminal justice system can differ greatly. For some, there may be contact with the police resulting in use of direct measures, early interventions or Recorded Police Warnings. This may graduate to interventions through the Children's Hearing System and some may receive an alternative to prosecution such as a warning, fiscal fine or diversion. Further offending may result in prosecution and criminal convictions.

28. For others, aged 16/17, who have no history with the Children's Hearing System or have not come to the attention of the police, their offending can take them directly into the adult criminal justice system.

29. We tracked the journey of 95 young people reported to COPFS in 2016/17 and their outcomes. Our findings are reported in the next Chapter.