Criminal Procedure (Scotland) Act 1975

368 Presumption and determination of age of child. S

(1) Where a person charged with an offence is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child, the court shall make due inquiry as to the age of that person, and for that purpose shall take such evidence as may be forthcoming at the hearing of the case, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act or the M1 Children and Young Persons (Scotland) Act 1937, be deemed to be the true age of that person, and, where it appears to the court that the person so brought before it has attained the age of 17 years, that person shall for the purposes of this Act or the M2 Children and Young Persons (Scotland) Act 1937 be deemed not to be a child.

(2) The court in making any inquiry in pursuance of the foregoing subsection shall have regard to the application of the provisions of section 30(1) of the M3 Social Work (Scotland) Act 1968 but an order or judgment of the court shall not be invalidated by any subsequent proof that the court was not informed that at the material time the person was subject to a supervision requirement or that his case had been referred to a children’s hearing under Part V of that Act.

(3) Where in any complaint in respect of any offence under the M4 Children and Young Persons (Scotland) Act 1937 or any of the offences mentioned in [F1 paragraphs [F2 (c)][F3 (d) and (e)] of Schedule 1 to this Act or any offence under section [F4 2A,] 11(1) to (3) or 14 of the M5 Sexual Offences (Scotland) Act 1976], it is alleged that the person by or in respect of whom the offence was committed was a child or was under or had attained any specified age, and he appears to the court to have been at the date of the commission of the alleged offence a child, or to have been under or to have attained the specified age, as the case may be, he shall for the purposes of this Act or the M6 Children and Young Persons (Scotland) Act 1937 [F1 or the M7 Sexual Offences (Scotland) Act 1976 be presumed] at that date to have been a child or to have been under or to have attained that age, as the case may be, unless the contrary is proved.

(4) Where, in any complaint in respect of any offence under the M8 Children and Young Persons (Scotland) Act 1937 or any of the offences mentioned in Schedule 1 to this Act, it is alleged that the person in respect of whom the offence was committed was a child or was a young person, it shall not be a defence to prove that the person alleged to have been a child was a young person or the person alleged to have been a young person was a child in any case where the acts constituting the alleged offence would equally have been an offence if committed in respect of a young person or child respectively.

(5) Where a person is charged with an offence under the M9 Children and Young Persons (Scotland) Act 1937 in respect of a person apparently under a specified age, it shall be a defence to prove that the person was actually of or over that age.

(6) In subsection (3) of this section, references to a child (other than a child charged with an offence) shall be construed as references to a child under the age of 17 years; but except as aforesaid references in this section to a child shall be construed as references to a child within the meaning of section 462 of this Act.

Textual Amendments

F1 Words substituted by Sexual Offences (Scotland) Act 1976 (c. 67, SIF 39:5), Sch. 1

F2 Words “(c) and” substituted by virtue of the Incest and Related Offences (Scotland) Act 1986 (c. 36, SIF 39:5), s. 3(2), Sch. 1 para. 3

F3 Words “(d) and (e)” substituted for words “and (d)” by virtue of the Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 170, Sch. 8 para. 16, Sch. 15 para. 48

F4 Words inserted by Incest and Related Offences (Scotland) Act 1986 (c. 36, SIF 39:5), s. 3(2), Sch. 1 para. 3

Marginal Citations

M1 1937 c. 37(20).

M2 1937 c. 37(20).

M3 1968 c. 49(81:3).

M4 1937 c. 37(20).

M5 1976 c. 67(39:5).

M6 1937 c. 37(20).

M7 1976 c. 67(39:5).

M8 1937 c. 37(20).

M9 1937 c. 37(20).