Part 2Criminal justice and procedure
Safeguards for children involved in criminal proceedings
15Custody of children before commencement of proceedings
(1)
The Criminal Justice (Scotland) Act 2016 (“the 2016 Act”) is amended as follows.
(2)
“(b)
a constable believes the person is under 18 years of age.”.
(3)
In section 23 (notice to parent that under 18 to be brought before court)—
(a)
in subsection (1), for “16 years of age or over and subject to a supervision order or under 16” substitute “under 18”
,
(b)
in subsection (4), the definition of “supervision order” is repealed.
(4)
In section 24 (notice to local authority that under 18 to be brought before court)—
(a)
in subsection (1), in paragraph (a), for “either subsection (2) or (3)” substitute “subsection (2)”
,
(b)
“(2)
This subsection applies to a person who is under 18 years of age.”,
(c)
subsection (3) is repealed.
(5)
In section 33 (consent to interview without solicitor)—
(a)
in subsection (1), for “Subsections (2) and (3) apply” substitute “Subsection (2) applies”
,
(b)
in subsection (2)—
(i)
in paragraph (a), for “16” substitute “18”
,
(ii)
paragraph (b) is repealed,
(iii)
in paragraph (c), for “16” substitute “18”
,
(c)
subsections (3), (4) and (5) are repealed.
(6)
In section 38 (right to have intimation sent to other person), in subsection (7)—
(a)
the words from “to ascertain” to the end become paragraph (a),
(b)
“, or
(b)
for a local authority to give advice by virtue of section 41(9).”.
(7)
In section 41 (social work involvement in relation to under 18s)—
(a)
in subsection (1)—
(i)
in paragraph (a), for “the person may be subject to a supervision order” substitute “person to be under 18 years of age”
,
(ii)
paragraph (b) and “or” immediately preceding it are repealed,
(b)
“(1A)
Intimation of the following facts must also be sent to a local authority—
(a)
where the person in custody declines to exercise the right to have intimation sent under section 38, that fact,
(b)
where the person in custody requests under section 39(3)(b) that the person to whom intimation is to be sent under section 38 is not asked to attend at the place where the person in custody is being held, that fact,
(c)
where the person in custody requests under section 39(6)(b) that no further attempt to send intimation under section 38 is made, that fact,
(d)
where the person to whom intimation is sent under section 38—
(i)
does not access the person in custody by virtue of the person in custody not wishing that person to have access by virtue of section 40(2), or
(ii)
is refused access to the person in custody or has such access restricted by virtue of section 40(4),
that fact.”,
(c)
in subsection (2)—
(i)
in the opening words, after “subsection (1)” insert “or (1A)”
,
(ii)
paragraph (a) is repealed,
(iii)
in paragraph (b)—
(A)
sub-paragraph (i) and “and” following it are repealed,
(B)
in sub-paragraph (ii), “(having regard to the effect of subsection (4)(a))” is repealed,
(d)
in subsection (4), paragraph (a) and “and” following it are repealed,
(e)
subsections (7) and (8) are repealed,
(f)
in subsection (9), for “The local authority” substitute “A local authority sent intimation under subsection (1) or (1A)”
,
(g)
subsection (10) is repealed.
16Steps to safeguard welfare and safety of children in criminal proceedings
(1)
The 1995 Act is amended as follows.
(2)
“(7)
In complying with subsection (6) the court must, in particular, consider what steps might be taken to facilitate the participation of the child in the proceedings while safeguarding the child’s welfare and, where reasonably practicable, take those steps.”.
(3)
“Children
70BSolemn proceedings against children
(1)
Where solemn proceedings are brought in respect of an offence alleged to have been committed by a child, the court may sit either in a different building or room from that in which it usually sits or on different days from those on which other courts in the building are engaged in criminal proceedings.
(2)
Where solemn proceedings are brought in respect of an offence alleged to have been committed by a child, the court may direct that no person is to be present at any sitting for the purposes of such proceedings except—
(a)
members and officers of the court,
(b)
parties to the case before the court, their solicitors and counsel, jurors, witnesses and other persons directly concerned in that case,
(c)
bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings,
(d)
such other persons as the court may specially authorise to be present.
(3)
A court sitting for the purpose of hearing a charge against, or an application relating to, a person who is believed to be a child may, if it thinks fit, proceed with the hearing and determination of the charge or application even though it is discovered that the person in question is not a child.
(4)
Where solemn proceedings are brought in respect of an offence alleged to have been committed by a child who is charged jointly with a person who is not a child, the court must, in considering whether to take the steps mentioned in subsection (1) or to make a direction as mentioned in subsection (2), have regard to the rights of the person with whom the child is jointly charged to effectively participate in the proceedings.”.
(4)
In section 142 (summary proceedings against children), in subsection (5), at the end insert “: but see section 142A”
.
(5)
“142ASummary proceedings where child accused along with an adult
(1)
Where summary proceedings are brought in respect of an offence alleged to have been committed by a child who is charged jointly with a person who is not a child, the sheriff may sit either in a different building or room from that in which the sheriff usually sits or on different days from those on which other courts in the building are engaged in criminal proceedings.
(2)
Where summary proceedings are brought in respect of an offence alleged to have been committed by a child who is charged jointly with a person who is not a child, the sheriff may direct that no person is to be present at any sitting for the purposes of such proceedings except—
(a)
members and officers of the court,
(b)
parties to the case before the court, their solicitors and counsel, and witnesses and other persons directly concerned in that case,
(c)
bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings,
(d)
such other persons as the sheriff may specially authorise to be present.
(3)
A sheriff sitting summarily for the purpose of hearing a charge against, or an application relating to, a person who is believed to be a child may, if the sheriff thinks fit, proceed with the hearing and determination of the charge or application even though it is discovered that the person in question is not a child.
(4)
Subsections (3) and (4) of section 142 apply to summary proceedings to which this section applies as they apply to such proceedings to which section 142 applies.
(5)
The sheriff must, in considering whether to take the steps mentioned in subsection (1) or to make a direction as mentioned in subsection (2), have regard to the rights of the person with whom the child is jointly charged to effectively participate in the proceedings.”.