Investigation and prosecution of sexual crimes: review

Chapter 6 – Children

375. The increasing number of children subjected to, or engaging in, sexual behaviour that constitutes criminal conduct is of significant concern. Cases reported to COPFS, involving a sexual offence committed against a child by a child, rose by 34% between 2011-12 and 2015-16. ^[110] Cyber-related crime through the use of electronic devices and the internet, including “sexting” – sharing intimate images without consent or possessing images of a person aged 18 or under – is responsible for much of the increase.

COPFS Policy on Juvenile Offenders

376. Where crimes are required by law to be prosecuted on indictment or are so serious to normally give rise to solemn proceedings, the police are required to report juvenile offenders, jointly to the procurator fiscal and the Children’s Reporter. ^[111] (the Reporter). This includes serious sexual crimes.

377. For jointly reported cases where a child is under the age of 16 but over the age of 12, there is a presumption in favour of the Reporter dealing with the offender and proceedings should only be taken were there are compelling public interest reasons; for children 16 and 17 subject to a supervision order ^[112] there is a rebuttable presumption that the procurator fiscal will deal with the case. ^[113]

378. In serious sexual crime cases, it has been agreed that the procurator fiscal and the Reporter will make contact at the earliest stage of proceedings to obtain the necessary information regarding the child and discuss who is best placed to deal with the case. Any discussions with the Reporter should be carried out as a matter of urgency to avoid any unnecessary delay in dealing with the case.

Case Review

379. Given the small number of child offenders in our 50 case indicted sample, we undertook a review of a significant sample of 18 cases ^[114] , involving 19 child offenders and 43 victims, where the offender was placed on petition, at least one charge was sexual, and where some High Court preparation had taken place ^[115] . As the review is concerned with cases likely to proceed in the High Court, the cases involve the most serious sexual crimes.

380. Of note, 35 of the 43 victims were female and 41 were aged under 18.

381. Where the crime involves an offence of rape of a younger child (under 13) by an older child (aged 13-15) – a section 18 offence in the 2009 Act – the initial report to NSCU must contain; information on the victim; the accused; the circumstances of the offending; and the discussions which have taken place with the Reporter including:

• Any views of the Reporter on whether referral is an appropriate disposal.
• What action the Reporter would/is likely to undertake, if there was a referral.

Initial Decision-Making

382. Of the 19 offenders:

• 16 were placed on petition; and
• 3 were liberated for pre-petition investigation – all were subsequently placed on petition.

Liaison with the Reporter

• In eight cases, involving nine offenders, information was provided in the initial report regarding discussions that had taken place with the Reporter and their attitude to prosecution/referral.

• In three, all involving section 18 crimes, there was limited information in the initial report on the attitude of the Reporter to accepting a referral.

• In one, there was a record of discussions with the Reporter but only after the IA was submitted.

• In two, where the offenders were aged 16 and 17 respectively and subject to a supervision order, there was no record of a discussion, although there is a presumption that the prosecution would deal with these offenders.

• In the remaining four, there was no information in the initial report on whether discussion had taken place between the prosecutor and the Reporter.

383. We recognise that a high proportion of the sample, 14 cases, were reported with the offender remanded in secure accommodation or police custody, restricting the time available for the prosecutor to make a decision on how to proceed and discussions often take the form of an urgent telephone call. Given the sensitivity of such cases, however, the absence of any record of discussion is unhelpful and contrary to COPFS policy.

Outcomes

384. Following investigation:

• 11 cases involving 12 offenders were indicted
• 5 were referred to the Reporter
• 1 was prosecuted by summary complaint
• In 1, due to the disengagement of the victim, there were no proceedings

385. Of the 12 offenders indicted:

• 5 were found guilty and received the following sentences:
• 2 offenders received community payback orders and 3 years supervision
• 2 offenders in the same case received 2 years and 6 years imprisonment respectively
• 1 offender received 3 years imprisonment with an extension of 1 year ^[116]
• 1 pled guilty to several charges and was sentenced to 5 years 6 months with an extension of 4 years
• 3 were found not guilty or not proven
• For 3, ^[117] proceedings were discontinued, one followed a decision of the court that essential evidence was inadmissible and one due to disengagement of the victim

386. Of the five offenders referred to the Reporter:

• For two, the provision of additional information resulted in the Reporter accepting a referral;

• For one, following the initial decision to prosecute, NSCU, having regard to the young age of the offender and troubled history, sought additional information on what action the Reporter was likely to undertake if a referral was made. Following discussion, the offender was referred recognising that this would address the concerns of both offender and victim more quickly and probably provide the same outcome as any court disposal;

• For one, the Reporter had indicated that they would be content to accept a referral at the outset. After appearing in court, the offender was referred to the Reporter on another matter. He was progressing well and it was, therefore, decided to also refer this case.

• For one, the Reporter had indicated that a referral was not appropriate but, following investigation, the offender was referred for a less serious charge.

Timelines

387. COPFS policy is to prioritise cases involving child witnesses/offenders and manage such cases within the timescales that apply where the accused has been remanded in custody.

388. The average time taken to refer the five offenders to the Reporter was eight months.

389. For the eight offenders prosecuted, the average time from receipt of the SPR to serving the indictment was 8½ months and the average time to trial was 17 months. ^[118] One trial still has to conclude.

Key Finding

Whilst cases involving child offenders/victims are being given some priority they are not being progressed to custody timescales.

390. In four cases that proceeded to trial, evidence was taken on commission from the victims. In all of these cases, evidence was taken on commission in close proximity to the trial, ranging between seven weeks before to the morning of the trial itself. In the latter, the victim was unable to give evidence resulting in the rape charge being deserted simpliciter by the court.

391. Exposure to the criminal justice system is a traumatic experience for adults but even more so for children whether as a victim or an offender. The timelines that apply cause distress and anxiety for adults but for children who measure time in sleeps, birthdays, holidays and special events such as Christmas, months and years form a significant proportion of their life time.

Special Measures

392. COPFS has introduced a presumption in favour of taking evidence by way of a commissioner where the witness is aged 12 and under and the offence is sexual in nature. In contrast to our earlier observations regarding special measures for adults, consideration of whether a child should give evidence by way of commission should be addressed at the earliest possible stage as the preparation for the application and hearing involves a number of arrangements to be put in place. The time this takes is by far out-weighed by the benefits of reducing stress to the child victim and obtaining the best evidence. We recognise that current legal requirements mean that applications to take evidence on commission cannot be made before an indictment is served, however, preparatory work/discussions can and should take place as early as possible.

High Court Practice Note

393. To provide impetus for early consideration to be given by both prosecution and defence to whether a commission is necessary where there is a child witness, a Court Practice Note on Taking of Evidence by a Commissioner was recently issued by the High Court of Justiciary. ^[119] As of 8 May 2017, all child and vulnerable witness applications seeking to take evidence on commission must comply with the requirements of the Practice Note. It emphasises the importance of early consideration of whether any witness is, or may be, a vulnerable witness and aims to encourage better preparation to allow child and other vulnerable witnesses to provide pre-recorded evidence in front of a person commissioned by the court, avoiding the need to attend court.

Way Forward

394. It is widely accepted that the arrangements for child witnesses and offenders in the criminal justice system are not conducive to obtaining the best evidence and thus securing justice.

395. The prosecution requires to implement practices that fast track such cases but longer term solutions require a wider criminal justice system response.

396. We found consensus from all support agencies that the future lies in the use of pre-recorded evidence to deal with certain types of cases, including those with children and vulnerable witnesses. The overwhelming view is that this would be a transformative change for the better.

397. The Cabinet Secretary for Justice during his evidence to the Justice Committee, stated:

“There is a compelling case for further action to be taken to allow child witnesses in criminal proceedings to be able to give pre-recorded evidence well in advance of the trial and to remove children from the court room setting.” ^[120]

Evidence and Procedure Review

398. A recommendation of the Evidence and Procedure Review ^[121] and the Next Steps Report ^[122] is that:

Initially for solemn cases, the evidence of children or vulnerable witnesses should be captured at as close a point in time to the incident as possible and presented at trial in pre-recorded form, with any subsequent cross-examination also being recorded in advance of trial.

399. The Scottish Government is currently considering potential models for introducing pre-recorded evidence to avoid children and vulnerable witnesses having to endure the stress and anxiety of giving evidence in the formal court environment, whilst safeguarding the necessary rights of accused persons.

400. All support agencies we met fully supported the principles underpinning the Evidence and Procedure Review as their best hope of transformative change that will have a meaningful impact for child witnesses and offenders.

Advocacy Support for Child Victims

401. Any allegation of abuse of a child will trigger child protection procedures, of which the over-riding consideration is to ensure the safety of the child. Social services and the police have a statutory duty to decide whether an investigation should take place. In cases of sexual abuse this will often take the form of a joint investigation involving joint interviews conducted by specially trained police officers and social workers. The purpose of such investigations is to share information to inform risk assessment; ascertain the need for any protective measures; establish the facts regarding a potential crime against a child and provide evidence for any legal proceedings that may follow, such as a Children’s Hearing or a criminal trial.

402. Social services and charities and organisations, such as Barnardo’s and Children 1st, provide a wide range of support services for children who have disclosed sexual abuse, including the provision of trauma and recovery services and dealing with issues arising from Child Sexual Exploitation ( CSE).

403. However, we found little in the way of advocacy services or support to assist children going through the criminal justice system.

Victim’s Voice

404. We met with the mothers of two children who had reported sexual crimes where COPFS had made a decision to prosecute the alleged perpetrator. They told us that, following the initial police investigation, they had been provided with no support and felt “cast adrift.”

405. Through their own efforts they made contact with their local Rape Crisis Centre which had agreed to provide support, despite one of the children being younger than 13, the minimum age for referrals to RCS. Both parents advised that the support provided had been invaluable.

406. Children 1st and Barnardo’s gave examples of providing support to children going through the criminal justice system and giving evidence, with positive outcomes. However, such support was an extension of the trauma and recovery services being provided to children, with whom they had prior contact, rather than as a systematic or routine service.

407. We heard from many who support child victims of sexual abuse, that there is a vacuum when it comes to court based support for children. The main focus of social services is child protection rather than providing an advocacy service designed to assist children navigate the criminal justice system.

408. These findings concur with the research undertaken by the National Scoping Report. ^[123]

“The most frequently mentioned gap in advocacy services from those we interviewed was for children and young people. The lack of specific advocacy services for children and young people is consistently identified as a problem for services and victims.”

Key Finding

We found a significant gap in the availability of any advocacy or court based support for children. No agency or organisation provides such support on a national or systematic basis.