Prosecution of young people: report

Cohort Review

34. We examined 95 cases of young people reported to COPFS in 2016/17. There were three categories of offenders: under 16 years, 16/17 year olds subject to a CSO or open referral (referred to in the report as 16/17 year olds subject to a CSO) and all other 16/17 year olds. We examined the action taken by the prosecutor, the nature of the offences and the outcomes for each category.

Under 16

35. There is a presumption that jointly reported cases for young people under 16 are dealt with by the Reporter.^[59] Criminal proceedings should only be taken where there are compelling reasons in the public interest to do so and only on the instructions of the Lord Advocate or Crown Counsel.^[60]

36. There were 10 offenders under the age of 16. Nine were jointly reported. One was initially reported by the police, in error, only to the prosecutor resulting in the offender being prosecuted.^[61] A plea of not guilty was ultimately accepted.

Outcomes

Prosecution

37. Two were prosecuted; one in the sheriff solemn court and one in the sheriff summary court.

• For the offender prosecuted by solemn procedure the gravity of the offences, assaults with weapons resulting in severe injury, overruled the presumption for those under 16 to be referred to the Reporter. Contrary to COPFS policy, however, an instruction from Crown Counsel (CCI) was not obtained prior to submitting a request for a petition warrant for the 15 year old offender.^[62] The offender pled guilty and received a CPO with a requirement to complete 250 hours of unpaid work.

• In the case prosecuted in the sheriff summary court for an offence of attempting to break into a garden shed, a plea of not guilty was accepted. This case is discussed in the section on comparative justice below.^[63]

Diversion

38. One was diverted.

• This concerned an assault with a baseball bat. After being advised that the Reporter would not accept a referral, as the offender was approaching his 16th birthday, the prosecutor successfully diverted the offender, achieving a comparable outcome.

Reporter

39. Five were referred to the Reporter:

• Five cases, involving offences of breach of the peace, culpable and reckless conduct, an assault of a police officer, possession of a knife and road traffic offences, were all referred to the Reporter in line with the presumption that those under 16 years old should be dealt with by the Reporter.

No Action

40. No action was taken in two cases:

• In one, relating to an offence of vandalism, there was insufficient evidence.

• In the other, concerning an offence of sexual assault,^[64] the offender had returned to his home abroad which meant it was no longer possible to take action.

Compliance with Lord Advocate's Guidelines

41. To avoid the inclusion of young people, who should be dealt with in the Children's Hearings System entering the criminal justice system, it is important that only cases that fall within the Lord Advocate's Guidelines are jointly reported.

42. Of the 10 cases of offenders under the age of 16 we found:

• Five cases clearly fell within the Guidelines:
  • Four concerned serious offences that will normally give rise to solemn proceedings.
  • One involved dangerous driving along with other offences for which the offender would potentially be liable to disqualification.
• Five cases did not involve offences that would normally give rise to solemn proceedings or for which the offender would be liable to disqualification and consequently should not have been reported to the prosecutor. They included:
  • An assault of a police officer by a 13 year old with no serious injury.
  • Two relatively low-level offences of a breach of the peace and vandalism.
  • The attempted housebreaking of a garden shed by a 15 year old which was sent to the prosecutor in error.
  • An assault where there was no serious injury and the offender had no criminal history.

43. Jointly reporting cases that do not fall within the Lord Advocate's Guidelines increases the risk of young offenders being prosecuted rather than being dealt with by the Reporter. In two cases, in this category, where the 15 year olds were approaching their 16^th birthday, the Reporter declined to accept a referral for one and had to be persuaded by the prosecutor to accept the other.

Recommendation 1

COPFS should guard against "net-widening" by dealing with jointly reported offenders who do not fall within the Lord Advocate's Guidelines and those who have not yet turned 16 where the presumption is that they should be dealt with by the Reporter.

Offenders over 16 years subject to a Compulsory Supervision Order (CSO)

44. There is a presumption that offenders aged 16 or 17 who are subject to a CSO are dealt with by the prosecutor and only referred to the Reporter where there are compelling reasons in the public interest to do so.^[65]

45. The presumption is currently under review by COPFS.

46. There were 13 offenders over the age of 16 subject to a CSO. Eleven were jointly reported and two were reported, in error, only to the prosecutor – in the latter two cases the prosecutor took account of the Reporter's views prior to making a decision on the best course of action.

Outcomes

Prosecution

47. Three were prosecuted in the sheriff summary court:

• All three were persistent offenders with criminal convictions, outstanding cases and were reported for breach of curfew conditions:^[66]
  • In one, following a period of deferral for the offender to demonstrate he would not further offend, he was admonished.
  • In one a not guilty plea was accepted after enquiries provided a complete defence to the charges.
  • In the remaining case a plea of not guilty was accepted after the offender pled guilty to more serious offences.

Reporter

48. Eight were referred to the Reporter overriding the presumption in favour of the prosecutor dealing with offenders aged 16 or over subject to a CSO.

49. All involved low-level offences. For one offender, in accordance with good practice, the prosecutor collated and referred all outstanding cases to the Reporter.

No Action

50. No action was taken in two cases:

• In one the prosecutor decided to take no action due to the delay by the police submitting the report – over six months had elapsed since the offence.

• In the other the offender was remanded in custody for more serious offences and it was decided that further action would be disproportionate.

51. Of the 11 cases where action was taken, the presumption that the prosecutor should retain 16/17 year olds subject to a CSO was applied in the three cases involving persistent offenders who had acquired criminal convictions and were subject to bail conditions. It was, however, overridden in eight cases (73%).

52. For cases of low-level offending, where there is ongoing engagement with the Reporter, continuing to deal with young people, often with complex needs and vulnerabilities, within the welfare orientated Children's Hearing System is preferable to the alternative of entering the adult criminal justice system. The eight cases demonstrate that this approach is being taken in practice

53. We welcome the on-going review by COPFS on the continuing applicability of the presumption for offenders in this category to be dealt with by the prosecutor.

Recommendation 2

COPFS should prioritise consideration of the review that offenders aged 16/17 subject to a CSO are presumed to be dealt with by the prosecutor.

16/17 year olds

54. 16 or 17 year olds with no prior/ongoing contact with the Reporter are effectively dealt with as adults.

55. 72 offenders fell into this category.

Outcomes

Prosecution

56. 38 (53%) of the 16/17 year olds were prosecuted.

• 6 (16%) were prosecuted in the sheriff solemn court.
• 26 (68%) were prosecuted in the sheriff summary court.
• 6 (16%) were prosecuted in the Justice of the Peace Court.

Solemn Cases

57. For the six prosecuted by solemn procedure:

• Three involved serious assault/robbery offences: two pled guilty, one received a sentence of detention and the other was given a CPO; in one a plea of not guilty was accepted following a plea of guilty by a co-accused.

• One involved possession of a knife: the offender pled guilty and sentence has been deferred for the offender to demonstrate he will not further offend.^[67]

• In one, the original offence of being concerned in the supply of class A drugs was subsequently amended to an offence of being in possession of the drugs which was prosecuted in the sheriff summary court. The offender pled guilty and was fined £675.

• Due to insufficient evidence, proceedings concerning an offence of introducing a proscribed article into prison were discontinued.

Sheriff Summary Cases

58. For the 26 prosecuted in the sheriff summary court:

59. 18 pled guilty with the following sentences being imposed:

• Eight were given a CPO – three concerned offences of assault and five involved offences of breach of bail, supply of class B drugs, theft, wilful fire-raising and police assault;

• Three were admonished for offences of theft, police assault and assault;

• One was made subject of a restriction of liberty order (RLO)^[68] for an offence of supplying class A drugs;

• One was disqualified from driving for an offence of driving whilst disqualified;

• One was fined for possession of class A drugs;

• In one a compensation order was imposed for an offence of vandalism;

• One was remitted to the Reporter for an offence of theft by housebreaking;

• One was given an absolute discharge for possession of an offensive weapon; and;

• In one, for an offence of being concerned in the supply of class B drugs, sentence has been deferred for the offender to demonstrate he will not further offend.

60. Five were discontinued: four due to insufficient evidence and one because the offender was not fit to stand trial;

61. In one there was a finding of not proven;^[69]

62. In one a not guilty plea was accepted; and

63. One case is ongoing.^[70]

Justice of the Peace Cases

64. For the six prosecuted in the Justice of the Peace court:

• Four pled guilty and were admonished for offences of theft, assault, housebreaking with intent and being within the garden area of residential premises with intent to steal; and

• Two pled guilty and were fined – one for an offence of vandalism and the other for road traffic offences.

Diversion

65. 18 (25%) of the 72 offenders were diverted (two were diverted to the driver improvement scheme). All 18 had no criminal convictions.

66. 12 of the 18 diverted were recorded as successful. Of the six where diversion failed: one was due to process or system issues^[71] and three offenders were assessed as unsuitable. Only two failed due to the attitude of the offender; one denied responsibility for the offending behaviour and one failed to co-operate. A separate in-depth review of cases where the prosecutor used diversion as an alternative to prosecution is discussed in Chapter 3.

Direct Measures

67. Eight were given a direct measure – all for low-level offences.

• Six were given a fiscal fine;
• One was given a compensation order; and
• One was given a warning letter.

Reporter

68. Two were referred to the Reporter as they were already engaging with social work services.^[72]

No Action

69. Six were marked no action:

• In three there was insufficient evidence;

• In two the prosecutor decided to take no action due to the delay by the police submitting the report; and

• In the remaining case, where there was a counter-allegation of serious assault, proceedings were discontinued as the offender was required as a witness for the more serious assault case.

Analysis of Outcomes

Fiscal Work Orders

70. Of note, no Fiscal Work Orders (FWO) were issued. A FWO is an alternative to prosecution which allows the prosecutor to offer an offender the opportunity of completing between 10 to 50 hours of unpaid work in the community.^[73] Of all cases reported in 2016/17, only 79 (1%) FWOs were issued in cases involving young people.^[74] As a disposal designed to make reparation for offending behaviour with the aim of encouraging social responsibility, it is disappointing that more use is not being made of FWOs as an alternative to prosecution.

Remitted to the Reporter

71. Following the advice of the Reporter, in only one of the 32 cases prosecuted in the sheriff summary and Justice of the Peace courts did the court remit the offender to the Reporter. There were no cases where the Sheriff or Justice of the Peace requested the Reporter to arrange a hearing for the purpose of obtaining advice on the treatment of the offender. Given that 20 offenders had no criminal convictions, it may have been anticipated that the court would have sought the advice of the Reporter in more cases.

Disposals

72. Of the 32 cases prosecuted in the sheriff summary and Justice of the Peace courts, looking through the lens of an outcome focused approach and having regard to the sentence imposed, there were 13 (41%) disposals that could have been achieved through the use of alternatives to prosecution. Seven were admonished; three were fined; for one a compensation order was imposed; and for one sentence has been deferred to allow the offender to demonstrate they will not further offend. The remaining case was remitted to the Children's Hearing System by the court. A similar outcome may have been achieved through diverting the offender rather than prosecution.

Key Findings

• 16/17 year olds were twice as likely to be prosecuted as 16/17 year old offenders subject to a Compulsory Supervision Order (CSO). 53% were prosecuted in comparison to 23% of the offenders subject to a CSO.

• Of those prosecuted in the sheriff summary and Justice of the Peace courts the sentence imposed in 41% of cases could have been achieved by an alternative to prosecution.

Thematic Analysis

73. We examined all cases to assess: why some offenders were reported in custody, the approach of the prosecutor to opposition of bail and the decision of the court; whether the police report disclosed relevant information on the individual and family circumstances of the offender; communication with the Reporter; the timeliness of decision-making; and whether there were any comparative justice issues between the three categories of young people.

Reporting of Young People in Custody

"Any form of deprivation of liberty of children should be a measure of last resort."^[75]

74. 17 (18%) of the 95 cases were reported with the offender in custody. All were 16/17 year olds not subject to a CSO.

75. Of the 17 cases, reasons for reporting the offender in custody were provided in 15 police reports:

• Eight were assessed as being likely to re-offend, with 3 of the 8 likely to cause public disorder and one posing a risk to public safety;

• For six, it was to prevent the offender contacting witnesses and to seek special conditions of bail; and

• One was assessed as being likely to cause public disorder.

76. For the remaining two no reasons were provided although both were for relatively serious offences of being concerned in the supply of drugs.

77. Five cases had a bail aggravation and/or a bail contravention charge in addition to the main charge.

Opposition to Bail

78. The risk of re-offending which could cause harm to others is the critical assessment to be undertaken by the prosecutor when considering whether or not to oppose bail or seek special conditions, including curfew conditions. In assessing the risk prosecutors have regard to: public/personal safety of victims and witnesses; public protection – offences that might impact on the public and communities, including economic crimes; and propensity to re-offend and breach court orders.

79. The court, in determining a question of bail, will consider the extent to which the public interest could, if bail was granted, be safeguarded by the imposition of bail conditions.^[76]

80. Of the 17 cases reported in custody where there was a decision to prosecute in the sheriff summary or Justice of the Peace courts (11 cases), the prosecutor only opposed bail in two cases (18%). In both, the police had reported there was a likelihood of re-offending; the offenders had criminal convictions for similar offences and were on bail when the offence was committed. The court granted bail in both cases, one subject to curfew conditions.

81. Of the four cases where the offender was reported in custody and placed on petition the prosecutor opposed bail in one case where the police had reported that the offender posed a risk to public safety. The court remanded the offender.

82. In the remaining two cases, the prosecutor diverted one and took no action in the other.

83. In the comparative justice case review of 93 cases, where all offenders were prosecuted, 35 (38%) offenders were reported in custody. All were 16/17 year olds. The prosecutor opposed bail in 11 (31%) of cases. Of the 11:

• Four pled guilty;
• Two were remanded by the court; and
• Five were liberated: two with conditions to protect the victim; two subject to a curfew and one on standard bail conditions.

84. In four of the five cases where the offender was liberated by the court, the prosecutor opposed bail due to previous offending and/or the offender being subject to bail orders. In one, the basis of opposition was the nature of the offence and the likelihood of re-offending.

85. Overall, the grounds for opposing bail by prosecutors were in accordance with COPFS policy and the relevant considerations provided by statute.^[77]

86. The lack of opposition to bail by prosecutors in almost 70% of cases where the offender was reported in custody and the low proportion of offenders being remanded in custody by courts indicates that there is scope for more cases being reported by an undertaking where the police can attach conditions to protect victims and witnesses.

87. The Lord Advocate's Guidelines on liberation have recently been revised to emphasise the presumption of the right to liberty in accordance with Article 5 of the European Convention on Human Rights^[78] and to curtail liberty only where there are substantial risks that cannot be mitigated through the use of conditions attached to undertakings.

88. The introduction of investigative liberation,^[79] which allows the police to release a person arrested, but not charged, and impose conditions, similar to bail conditions, for a maximum period of 28 days, while they complete their investigation provides the police with scope to release more young offenders, particularly for more serious offences, while managing the risk.

89. The implementation of the revised Guidelines emphasising the presumption of the right to liberty and the use of investigative liberation should further reduce the number of young people reported from custody.

Provision of Information

"On purely practical grounds it would seem essential to provide for preventive measures at the earliest possible stage. Such measures cannot … operate with any reasonable expectation of success unless under a procedure which from the outset seeks to establish the individual child's needs in the light of the fullest information about his personal and family circumstances."^[80]

90. Information on the individual and family circumstances and/or vulnerabilities of the ten offenders aged under 16 years was provided in five (50%) police reports, and in one information on the offender's family circumstances was provided by the Reporter. Five (50%) of the offenders had an open referral with the Children's Hearing System or were subject to a CSO and/or had social work involvement with the family.

91. For the 13 offenders aged 16/17 years subject to a CSO information on the individual and family circumstances and/or vulnerabilities was provided in 12 (92%) reports. Five (38%) of the offenders were looked after or formerly looked after young people.

92. For the largest group of offenders – the 72 aged 16/17 not subject to a CSO – information on the individual and family circumstances and/or vulnerabilities of the offenders was provided in only 24 (33%) reports. Nine of the 24 (38%) offenders were looked after or formerly looked after young people and/or had social work involvement with their family. No information on the individual circumstances of the offender was provided in 48 (67%) police reports. In the main this category of offenders was reported in the same manner as adults.

93. The disproportionate number of offenders who were looked after or formerly looked after or have been involved with the Children's Hearing System correlates with the third (33%) of those detained in HMYOI Polmont who have experienced being looked after as a child^[81] or have indicated that their family had involvement with the Children's Hearing System.^[82]

Key Finding

Compared to the police reports for the categories of offenders under 16 or 16/17 year olds subject to a CSO, there was a significantly higher percentage of reports where no information was provided on the offender's individual or family circumstances or vulnerabilities for those in the 16/17 year olds category.

94. We are aware of the intention of CJS and CYCJ to deliver training to police officers to raise awareness of the impact of trauma on young people, with a view to the police providing more information on any known vulnerabilities or individual or family circumstances, that may assist prosecutors to make more informed decisions as demonstrated by the following case study.

A 17 year old was reported for a breach of the peace and assaulting a police officer.

The police report advised that the offender was currently homeless, making poor choices of associates and regularly consuming alcohol leading to his life spiralling downwards. It recommended a social work intervention may avoid further offending.

The prosecutor diverted the case. A programme of work was undertaken incorporating elements of:

• Offending behaviour
• Peer relationships
• Safe/Positive decision making
• Alcohol misuse
• Anger management

The intervention had a positive outcome with the offender distancing himself from the disruptive peer group, securing full time employment and planning to return to college.

Recommendation 3

COPFS should liaise with Police Scotland to standardise the provision of information on any known vulnerabilities or individual and/or family circumstances that may have a bearing on the appropriate prosecutorial action. The report should specify if there are none identified or whether the offender refused to divulge such information.

Communication with the Reporter

95. On receipt of a joint report, in most cases, the Reporter sends the prosecutor a template form containing information on the young person, including whether they are currently subject to a CSO and their view on whether the needs and behaviour of the young person can be best addressed within the Children's Hearing System or in the criminal justice system. It indicates if a telephone discussion would be beneficial. In custody cases, due to time constraints, the discussion tends to take place by telephone.

96. Of the 20 cases jointly reported for those aged under 16 or subject to a CSO, there was a record of a discussion between the prosecutor and the Reporter in 16 (80%) cases. In 4 (20%), there was no record of any discussion. In 13 (65%) cases, the Reporter submitted the template form outlining their views, providing a clear audit trail of the contact between the Reporter and the prosecutor.

97. In only 7 (35%) was information on the individual or family circumstances of the offender provided on the template form from the Reporter. Three concerned offenders under 16 and four were subject to a CSO. Given the likely knowledge of the Reporter of the background of the offender, it is disappointing that more information of this nature is not routinely provided. It may be that such information is exchanged through discussion by telephone. If so, good practice dictates a written record of such discussions should be retained.

98. In late 2017, NICP refined existing arrangements to enable a dedicated prosecutor to deal with the majority of jointly reported cases.^[83] In the 2018 review, we found a notable improvement in the extent of communication and exchange of information between COPFS and the Reporter, including feedback from the prosecutor providing reasons for decisions. A dedicated prosecutor has the benefit of providing a single point of contact for Reporters.

99. In March 2018, a specialist prosecutor was assigned to specifically consider cases involving 16/17 year olds. This has also provided more consistency and a point of contact for CJSW and Youth Justice teams to discuss cases.

Recommendation 4

COPFS should ensure that there is a written record of discussion with the Reporter, in all jointly reported cases, including the factors taken into account in determining who should deal with the young person.

Timeliness of Decision-making

"In all proceedings involving children, the urgency principle should be applied to provide a speedy response and protect the best interests of the child."^[84]

100. COPFS has an agreement with SCRA to make an initial decision, following discussion with the Reporter, within 10 working days, for jointly reported cases. Recognising the importance of prioritising such cases, there is an escalation process to bring any case not resolved within 45 working days to the attention of senior management in COPFS.

101. There is also a target to take and implement decisions in at least 75% of all cases within four weeks of the date on which the report is received.

102. Exposure to the criminal justice system is traumatic for adults but even more so for young people who have a different perception of time. In accordance with the Council of Europe Guidelines on Child-friendly Justice, any formal proceedings should be commenced as speedily as possible.

103. There were 37 (39%) cases where the time taken to make an initial decision took longer than the four week target. On average it took seven weeks.

104. We examined the timeline of decisions taken in the 2018 review. We found timelines had significantly improved with decisions being taken on average 3.2 weeks after receipt of the police report. There were, however, 27 cases (33%) where decisions still took more than four weeks.

105. For the 43 offenders prosecuted in the case review, the average time from receipt of the police report to the conclusion of the court proceedings was 7.6 months.

106. While there has been a significant improvement on the time taken to make prosecutorial decisions, there is scope for further improvement.

Comparative Justice

107. In addition to this review we examined cases across the 2018, comparative justice, and solemn reviews to identify the impact, if any, of the current legislative landscape and, in particular, the arbitrary cut-off age of 16, for many young people, where the Reporter can deal with offenders.

Delays in Reporting Cases

108. To avoid inclusion of young people, who should be dealt with in the Children's Hearing System entering the criminal justice system, it is important that delays in submitting reports and taking decisions are minimised.

Offenders aged 15 at Date of Offence and 16 on Receipt of the Police Report

109. Seven of the 95 cases in the case review fell into this category.

110. In five delays in submitting the police report was a factor:

• In two, involving offences of possession of cannabis and coercing a person to view sexual images^[85] a period of four months elapsed between the offence and the police report being submitted. The offenders had their 16th birthday two and three months into that period. The prosecutor diverted both offenders with successful outcomes.

• In one, involving an offence of breach of the peace, a period of almost six months elapsed between the offence and the police report being submitted. The offender had their 16th birthday three months into that period. The prosecutor issued a written warning.

• In two, involving offences of theft and vandalism, periods of over seven and 11 months elapsed between the offence and the police report being submitted. The offenders had their 16th birthday four months into that period. Given the delay in receiving the report the prosecutor decided it was no longer in the public interest to take any action.

111. In two the offenders had their 16th birthday a matter of days after the offence was committed.

• One involving an offence of vandalism was referred to the Reporter as, although the offender was 16 and not subject to a CSO, they were receiving assistance from social work services on a voluntary basis.

• One involving an offence of assault was diverted with a successful outcome.

112. The decision to divert three of the offenders achieved a comparable outcome to being referred to the Reporter.

113. While none of the offenders in our review were adversely prejudiced by delays in reporting there is a risk that such delays may result in offenders, who should have been referred to the Reporter, being prosecuted.

Key Finding

Delays in reporting or taking decisions when an offender is approaching 16 or has an intervening birthday has the potential to create a different outcome for young people who are older by a few days or weeks.

114. The following case studies demonstrate the potential for different outcomes for offenders depending on how swiftly their cases are progressed and where they fall within the legal framework.

A police report was submitted for three offenders, two aged 15 and one aged 16 with offences of being in a garden area of residential premises without lawful authority so it could reasonably be inferred that they intended to commit theft. Offenders 2 and 3 were also charged with attempting to break into a shed at another address. None had any criminal convictions.

• Offender 1, one of the 15 year olds, was referred to the Reporter.

• Offender 2, the 16 year old, who was not subject to a CSO and had no contact with the Reporter at the time the report was sent to the prosecutor, was prosecuted in the sheriff summary court.

• The police initially sent the report for offender 3, aged 15, to the prosecutor in error. By the time it was referred to the Reporter the offender had turned 16 and, as he was not subject to a CSO and had no open referral, the Reporter had no jurisdiction resulting in the offender being dealt with in the criminal justice system.

A decision was taken to prosecute offender 3 with the 16 year old. At court, offender 2 pled guilty and a plea of not guilty was accepted from offender 3. As a result, neither of the offenders who were 15 when the report was sent to the prosecutor has a criminal conviction.

The delay in reporting the case to the Reporter and the eight month age difference between offenders 1 and 3 did, however, result in them being dealt with in different systems with the possibility of offender 3 obtaining a criminal record.

From a comparative justice perspective offender 3 was disadvantaged in relation to the 15 year old co-offender.

Three offenders were jointly reported for a number of offences including assaults on a number of 13 year old victims.

Offender 1 was 15 years old when the offences were committed but 16 when the report was submitted. He was well known to the police for anti-social behaviour but had no criminal convictions or outstanding cases. His initial behaviour in committing a breach of the peace and assaulting an unknown male was the catalyst for the assaults on the children committed with his co-offenders.

Offender 2 was 2 months older than offender 1 and had just turned 16 at the time of the offences. He was also known to the police for anti-social behaviour and had previously received a warning for an assault.

Offender 3 was 15 at the time the offences were committed and at the time of report. He was also known for anti-social behaviour, had outstanding cases and had received police warnings including one for an offence of assault.

Following discussion between the prosecutor and the Reporter, offenders 1 and 3 were referred to the Reporter. As offender 1 was 16 years old, it is assumed that he had ongoing contact with the Reporter.

Offender 2 was prosecuted in the sheriff summary court. He pled guilty to two assault charges and the court remitted him to the Children's Hearing System.

From a comparative justice perspective offender 1, as the main instigator of the offences, was dealt with by the Reporter in contrast to offender 2 who was prosecuted in the criminal justice system and while remitted to the Children's Hearing System, he now has a criminal conviction.

16/17 year olds

115. The distinction between those aged 16/17 who are subject to a CSO and those aged 16 or 17 with no prior/ongoing contact with the Reporter within the current legal framework and the presumptions that apply result in different pathways for some young people, as demonstrated by the following case studies:

Two young people were reported for charges of theft by shoplifting and vandalism. One offender was 15 at the time of the offence but had turned 16 by the time the police report was submitted over three months later. He had no criminal convictions but had two outstanding cases. He was not subject to a CSO.

The other offender was 17 at the time of offence and when the case was reported. He had five criminal convictions, 14 outstanding cases and was subject to two bail orders and a CSO.

The 17 year old was referred to the Reporter. The younger offender with no criminal convictions was dealt with by the prosecutor, as the Reporter had no jurisdiction.

Ultimately, it was decided that there was insufficient evidence for the 16 year old and no action was taken. If there had been sufficient evidence, however, the 16 year old, if convicted, would have acquired a criminal record in contrast to the older offender, with a criminal history, who was dealt with in the Children's Hearing System.

Two offenders aged 17 were jointly reported for an offence of theft.

Offender 1 had previous involvement with the Children's Hearing System but was no longer subject to a CSO. Offender 2 was subject to a CSO.

Both were described in the police report as regularly being reported as missing persons and being involved in offending and anti-social behaviour.

Offender 1 was prosecuted in the sheriff summary court and pled guilty. Following a period to allow him to demonstrate that he would not further offend, he was admonished. He now has a criminal conviction.

Offender 2 was referred to the Reporter and did not obtain a criminal record.

116. The consequences of public policy considerations and the cut-off age for the Reporter to deal with offenders are demonstrated by the following case studies.

A young person, who turned 16, 22 days prior to the offence, was arrested for having a knife at a railway station. He was held in custody over the weekend and appeared on petition at Glasgow Sheriff Court. He had no previous involvement with the police or the criminal justice system. He pled guilty and was sentenced to a CPO for 12 months with a requirement to undertake 100 hours of unpaid work.

If the offence had occurred 23 days earlier, it is highly likely, in absence of any criminal record that he would have been referred to the Reporter and would not have acquired a criminal conviction.

117. In contrast:

A young person aged 15, who was engaging with social work, was jointly reported for an offence of having possession of a knife at a railway station. The police report was submitted only one month before his 16th birthday. One week before his birthday the prosecutor contacted the Reporter to discuss who was best placed to deal with the offender. After discussion the Reporter agreed to continue to work with the young person.

118. The case studies illustrate the potential of different outcomes for young people aged 16/17 who are unable to access the support and assistance available to those who are subject to a CSO.

Key Finding

There is a disconnect between the emerging consensus that young people aged under 18 should be treated as a child or young person in the criminal justice context and the current legal framework where, for many, 16 still represents the transition from a child to an adult.

119. In March 2017 the independently chaired Child Protection Systems Review submitted their report entitled 'Protecting Scotland's Children and Young People: It is Still Everyone's Job', to the Scottish Government.^[86] The report stated that:

120. "We still see too many 16 and 17 year olds (where there are offence concerns) being dealt with through the court system rather than the CHS. The experiences and outcomes for these young people would be better if they were treated as children first and foremost, whether the presenting issues are care and protection or offending, and they received the required support and services via a child-centred system."

121. It made the following recommendation:

122. "The Scottish Government should review both the measures available to protect 16 and 17 year olds and whether the Children's Hearings (Scotland) Act 2011 should be amended to allow any young person aged 16 and 17 years old to be referred to the Principal Reporter where there is a need for compulsory measures."

123. We understand that the implications and consequences of such an approach are currently being considered.

124. Taking account of the established body of evidence, highlighting links between vulnerability, victimisation and offending for young people, this would apply a level playing field for all young people aged between 16 and 18 and avoid the different outcomes that can apply from the current cut-off age of 16 that catapults some young people into the criminal justice system. It would also align the framework with the policy objective of treating all young people under 18 as a child and provide many young people, who may have fallen through the net, with an opportunity of support and assistance in a welfare-orientated system and go some way to further reducing the number of young people in the criminal justice system.

125. It would, however, represent a significant cultural shift and to retain public confidence and address serious offending, the common law power of the Lord Advocate, to direct the prosecution of cases where there are compelling reasons in the public interest to do so, as exists at present, would require to be retained.