Together member: Centre for Youth Criminal Justice (CYCJ)
A child accused or guilty of breaking the law must be treated with dignity and respect. They have the right to legal assistance and a fair trial that takes account of their age. Governments must set a minimum age for children to be tried in a criminal court and manage a justice system that enables children who have been in conflict with the law to reintegrate into society.
“I’m still a child at the end of the day.”
(Young person in a Young Offenders Institute, aged 16)
“Grant and his cousin Sandy are both aged 16 and were recently charged by the police because they got in a fight with other young people outside their local shops. Grant was not subject to a Compulsory Supervision Order at the time, however Sandy was. Grant was referred to the Procurator Fiscal, whilst his cousin Sandy was jointly reported the Procurator Fiscal and to the Principal Reporter, the latter of whom convened a Children’s Hearing through which he received support and mentoring. Grant later appeared in Court where he received a 12-month Community Payback Order.”
(Case summary from the Centre for Youth and Criminal Justice (CYCJ))
This case study highlights the difficult situation that some young people aged 16 and 17 find themselves in when they come into conflict with the law, falling out of one system and being pushed into another.
The justice system within the UK can still be said to lean towards a punitive approach to sentencing, even for those still considered children under the UNCRC. This is seen in negative attitudes towards children as ‘youth offenders’ without the additional rights that should be afforded to them under the UNCRC. As such, there has been limited political appetite to address inconsistencies in legislation which means most 16 and 17 year-olds who have a criminal charge are treated as adults by the legal system. They face the prospect of appearance in court, undergoing trial, receiving sentencing and subsequent interventions such as a Community Payback Order. Extensive contact with the formal justice system has been shown to increase likelihood of further criminal offending and may go some way towards explaining higher levels of imprisonment of 16 and 17 year olds in Scotland in comparison to other European countries.
In this case study, Grant faces the challenge of completing a 12-month Order, which – for a 16 year old – can often prove difficult due to their age, as a young person Grant may not be fully aware or able to understand the situation he is experiencing. Failure to adhere to all conditions of a Community Payback Order could result in Grant going to prison.
“Some 16 year olds are pure sound wae nae problems, but some have all sorts of problems. It’s no fair that they can do one thing wrong and have a criminal record, but other folk go to a Hearing.”
(Young person, aged 16)
“Supervision helps me, I know there are folk there to help me. I feel protected.”
(Young person within secure care, aged 17)
Entry into the adult justice system and exclusion from the Children’s Hearing System impacts upon several of young people’s UNCRC rights including:
- Article 1, rights for everyone under 18; Grant has been deprived of access to support and systems which are designed to support people of his age
- Article 2, right to non-discrimination: Grant is not given the same support and services as other young people his age who are supported by the Children’s Hearing System;
- Article 3, best interests of the child: Grant has entered a system which does not necessarily act in his best interests and makes decisions based on other demands;
- Article 12, right to participation: Unlike his cousin, Grant will not be afforded the same opportunities to express his views and opinions on the matters being dealt with by court, or on what option the judge should choose;
- Article 40, right to be treated fairly and with dignity: Grant’s exclusion from the Children’s Hearing System is unfair, resulting in him not receiving the range of support available to his peers.
Failure to have these rights upheld is not only an issue in itself, but such negative experiences can lead to a sense of injustice and resentment in the justice system from young people like Grant. The processes which lead to some 16 and 17 year olds receiving the support of services within the Children’s Hearing System, whilst others are placed in a more punitive, less supportive arena is not reflective of a fair justice system.
Situations such as those outlined within the case study are not unique; they occur regularly and can have significant consequences. In 2016, 2,203 children under the age of 18 were prosecuted in Court rather than through the Children’s Hearing System.
The responses to young people – particularly those aged 16 and 17 – who come into conflict with the law are inconsistent and reflect inequality in treatment. The Childrens Hearings (Scotland) Act 2011 states that Police Scotland must refer a child to the Principal Reporter in instances where it is believed that the child is in need of protection, guidance, treatment or control; and it might be necessary for a Compulsory Supervision Order (CSO) to be made in relation to the child.
This is often the response when a child has come into conflict with the law. The age and legal status of the child, however, affects the range of options available to police and the Procurator Fiscal. The 2011 Act deems a child to be anyone under the age of 16, or a child under the age of 18 who is already subject to a CSO. This is in contrast with the UNCRC which deems all those under the age of 18 as a child and veers away from the path set out in the Riyadh Guidelines.
Currently, 16 and 17 year olds are reported to both the Principal Reporter of Scottish Children’s Reporter Administration and the Procurator Fiscal where:
- they are subject to a CSO or
- they were referred to the Principal Reporter before their 16th birthday, but where a decision has not yet been made either to make them subject to a CSO, not to refer them to a Children’s Hearing or to discharge the referral, or
- their case was remitted by a court to a Children’s Hearing for disposal after pleading guilty to or being found guilty of an offence, but the Children’s Hearing has not made a final disposal of the case.
The local Reporter and the Procurator Fiscal will then discuss what response would be most appropriate for that young person. However, in cases of 16 and 17 year old children who don’t meet these criteria, their case will be considered by the Procurator Fiscal alone.
Existing legislation can create a confusing and contradictory landscape for 16 and 17 year-olds, leaving some children without access to the support that the Children’s Hearings System offers. Consequently, they are often inappropriately subject to criminal prosecution – contrary to the founding Kilbrandon welfare ethos – and in contravention of international standards.
Recent findings have shown that: “16 and 17 year olds were twice as likely to be prosecuted as 16 and 17 year old offenders subject to a CSO. 53% were prosecuted in comparison to 23% of the offenders subject to a CSO.”
Such trends may contribute to a prison population which remains among the largest per head of population in Europe. Of note is the significant number of young people within prison of which Breach of Bail contributed to their incarceration.
Even in cases of 16 and 17 year olds subject to a CSO and jointly reported to the Principal Reporter and to the Procurator Fiscal, there continues to be a culture of prosecution through Court. A significant proportion of cases (45%) are handled by the Procurator Fiscal, despite the availability of the Children’s Hearing System. This is due to “a presumption that offenders aged 16 or 17 who are subject to a CSO are dealt with by the prosecutor” with the Procurator Fiscal requiring to ascertain that “it is considered to be in the public interest not to prosecute the child” in order for the Principal Report to assume responsibility for the matter.
Outcomes for those children who are processed within the Children’s Hearing System compared to those who appear in Court are significantly different. Whilst the Children’s Hearing System will consider a holistic, case-by-case response to individual needs – such as the circumstances of the charge – verdicts through Court are far narrower, focussed on the offence rather than the child or young person and lack the full range of resources that may best support them.
If steps were taken to widen access to the Children’s Hearing System to all young people under the age of 18 who come into conflict with the law, greater support and protection could be offered to these young people. In the case of Grant, he could be considered for compulsory measures of supervision in the same way that a younger child currently can. This would avoid young people being subject to harsher punishment than is necessary which has been found to increase the risk of reoffending whilst still providing access to robust responses such as Movement Restriction Conditions, admission into secure care and in some cases, other measures suitable for young people who pose a significant risk of harm to others.
Such a change would recognise that criminal behaviour is often a symptom of circumstance and adversity present in the young person’s immediate environment, and that an understanding of the difficulties at play is necessary in order to address underlying root causes. Such an approach is not always offered within the criminal justice system, with court processes often focussing on punishment when deciding how to deal with those who break the law.
Upholding UNCRC Article 2 would have a knock-on effect of all other Articles of the UNCRC applying to those under the age of 18. This change would assist Scotland to meet its commitment to the UNCRC through adding a layer of protection and support to children and young people of that age and go some way towards governmental ambition of making Scotland ‘the best place in the world to bring up children.’
Responding to a young person’s involvement in criminal behaviour through the lens of child welfare, rather than criminal responsibility and punishment would enable them to enjoy the rights associated with UNCRC Article 3. The Children’s Hearing System is already established to deal with such matters, with explicit reference to child welfare being the “paramount concern.”
This approach would have enabled Grant to express his views, discuss how best to respond to the issue and to participate in the decision-making process upholding UNCRC Article 12, this level of participation would not be available through the adult court system.
Finally, universal access to the Children’s Hearing System would lead to equality in the way that Scotland responds to children who come in to conflict with the law, thus meeting UNCRC Articles 2 and 40. Other than in a few matters reserved by the Lord Advocate, it would result in children not being dealt with harshly by the justice system. Whilst there remains much to be done to improve the overall response to young people in the justice system, incorporation can go some way at achieving the ambition of getting it right for every child.