Criminal Procedure (Scotland) Act 1995

PART V U.K. Children and Young Persons

[F1 41 Age of criminal responsibility U.K.

A child under the age of 12 years cannot commit an offence.]

Textual Amendments

F1 S. 41 substituted (17.12.2021) by Age of Criminal Responsibility (Scotland) Act 2019 (asp 7), ss. 1, 84(2); S.S.I. 2021/449, reg. 2

F2 41A Prosecution of children under 12 U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2 S. 41A repealed (17.12.2021) by Age of Criminal Responsibility (Scotland) Act 2019 (asp 7), ss. 2(1), 84(2) (with s. 2(2)); S.S.I. 2021/449, reg. 2

42 Prosecution of children. S

(1) [F3 A child aged 12 years or more but under 16 years may not] be prosecuted for any offence except on the instructions of the Lord Advocate, or at [F4 the instance of the Lord Advocate]; and no court other than the High Court and the sheriff court shall have jurisdiction over [F5 such a child] for an offence.

(2) Where a child is charged with any offence, his parent or guardian may in any case, and shall, if he can be found and resides within a reasonable distance, be required to attend at the court before which the case is heard or determined during all the stages of the proceedings, unless the court is satisfied that it would be unreasonable to require his attendance.

F6 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) For the purpose of enforcing the attendance of a parent or guardian and enabling him to take part in the proceedings and enabling orders to be made against him, rules may be made under section 305 of this Act, for applying, with the necessary adaptations and modifications, such of the provisions of this Act relating to summary proceedings as appear appropriate for the purpose.

(5) The parent or guardian whose attendance is required under this section is—

(a) the parent who has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the M1 Children (Scotland) Act 1995) in relation to the child; or

(b) the guardian having actual possession and control of him.

(6) The attendance of the parent of a child shall not be required under this section in any case where the child was before the institution of the proceedings removed from the care or charge of his parent by an order of a court.

F7 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Where a local authority receive notification under [F8 section 24 of the Criminal Justice (Scotland) Act 2016] they shall make such investigations and submit to the court a report which shall contain such information as to the home surroundings of the child as appear to them will assist the court in the disposal of his case, and the report shall contain information, which the appropriate education authority shall have a duty to supply, as to the school record, health and character of the child.

(9) Any child F9 ... being conveyed to or from any criminal court, or waiting before or after attendance in such court, shall be prevented from associating with an adult (not being a relative) who is charged with any offence other than an offence with which the child is jointly charged.

F10 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F3 Words in s. 42(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 52(3)(a), 206(1); S.S.I. 2011/178, art. 2, sch.

F4 Words in s. 42(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 52(3)(b), 206(1); S.S.I. 2011/178, art. 2, sch.

F5 Words in s. 42(1) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 52(3)(c), 206(1); S.S.I. 2011/178, art. 2, sch.

F6 S. 42(3) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 31(a); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F7 S. 42(7) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 31(b); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F8 Words in s. 42(8) substituted (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 31(c); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F9 Words in s. 42(9) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 31(d); S.S.I. 2017/345, art. 3, sch. (with art. 4)

F10 S. 42(10) repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 31(e); S.S.I. 2017/345, art. 3, sch. (with art. 4)

Marginal Citations

M1 1995 c.36.

F11 43 Arrangements where children arrested. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 S. 43 repealed (25.1.2018) by Criminal Justice (Scotland) Act 2016 (asp 1), s. 117(2), sch. 2 para. 27(c); S.S.I. 2017/345, art. 3, sch. (with arts. 4, 5)

44 Detention of children. U.K.

(1) Where a child appears before the sheriff in summary proceedings and pleads guilty to, or is found guilty of, an offence to which this section applies, the sheriff may order that he be detained in residential accommodation provided under Part II of the M2 Children (Scotland) Act 1995 by the appropriate local authority for such period not exceeding one year as may be specified in the order in such place (in any part of the United Kingdom) as the local authority may, from time to time, consider appropriate.

(2) This section applies to any offence [F12 (other than, if the child is under the age of 16 years, an offence under section 9(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) or that section as applied by section 234AA(11) of this Act)] in respect of which it is competent to impose imprisonment on a person of the age of 21 years or more.

(3) Where a child in respect of whom an order is made under this section is detained by the appropriate local authority, that authority shall have the same powers and duties in respect of the child as they would have if he were subject to a [F13 compulsory supervision order].

(4) Where a child in respect of whom an order is made under this section is also subject to a [F14 compulsory supervision order or interim compulsory supervision order], subject to subsection (6) below, the [F14 compulsory supervision order or interim compulsory supervision order] shall be of no effect during any period for which he is required to be detained under the order.

(5) The Secretary of State may, by regulations made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, make such provision as he considers necessary as regards the detention in secure accommodation of children in respect of whom orders have been made under this section.

(6) Where a child is detained in residential accommodation in pursuance of an order under—

(a) subsection (1) above, he shall be released from such detention not later than the date by which half the period specified in the order has (following commencement of the detention) elapsed but, without prejudice to subsection (7) below, until the entire such period has so elapsed may be required by the local authority to submit to supervision in accordance with such conditions as they consider appropriate;

(b) subsection (1) above or (8) below, the local authority may at any time review his case and may, in consequence of such review and after having regard to the best interests of the child and the need to protect members of the public, release the child—

(i) for such period and on such conditions as the local authority consider appropriate; or

(ii) unconditionally.

(7) Where a child released under paragraph (a) or (b)(ii) of subsection (6) above is subject to a [F14 compulsory supervision order or interim compulsory supervision order], the effect of that [F15 order] shall commence or, as the case may be, resume upon such release.

(8) If, while released under paragraph (a) or (b) of subsection (6) above (and before the date on which the entire period mentioned in the said paragraph (a) has, following the commencement of the detention, elapsed), a child commits an offence to which this section applies and (whether before or after that date) pleads guilty to or is found guilty of it a court may, instead of or in addition to making any other order in respect of that plea or finding, order that he be returned to the residential accommodation provided by the authority which released him and that his detention in that accommodation or any other such accommodation provided by that authority shall continue for the whole or any part of the period which—

(a) begins with the date of the order for his return; and

(b) is equal in length to the period between the date on which the new offence was committed and the date on which that entire period elapses.

(9) An order under subsection (8) above for return to residential accommodation provided by the appropriate local authority—

(a) shall be taken to be an order for detention in residential accommodation for the purpose of this Act and any appeal; and

(b) shall, as the court making that order may direct, either be for a period of detention in residential accommodation before and to be followed by, or to be concurrent with, any period of such detention to be imposed in respect of the new offence (being in either case disregarded in determining the appropriate length of the period so imposed).

(10) Where a local authority consider it appropriate that a child in respect of whom an order has been made under subsection (1) or (8) above should be detained in a place in any part of the United Kingdom outside Scotland, the order shall be a like authority as in Scotland to the person in charge of the place to restrict the child’s liberty to such an extent as that person may consider appropriate having regard to the terms of the order.

(11) In this section—

• “the appropriate local authority” means—

  (a)

  where the child usually resides in Scotland, the local authority for the area in which he usually resides;

  (b)

  in any other case, the local authority for the area in which the offence was committed; and

• [F16 “secure accommodation” means accommodation provided for the purpose of restricting the liberty of children which—

  (a)

  in Scotland, is provided in a residential establishment approved in accordance with regulations made under section 78(2) of the Public Service Reform (Scotland) Act 2010;

  (b)

  in England, is provided in a children’s home within the meaning of the [F17 Care Standards Act 2000] in respect of which a person is registered under Part 2 of that Act, except that before the coming into force of section 107(2) of the Health and Social Care (Community Health Standards) Act 2003, “secure accommodation” means accommodation in relation to England which—

  (i)

  is provided in a children’s home, within the meaning of the [F17 Care Standards Act 2000], in respect of which a person is registered under Part 2 of that Act; and

  (ii)

  is approved by the Secretary of State for the purpose of restricting the liberty of children; and

  (c)

  in Wales, is provided in a children’s home within the meaning of the [F17 Care Standards Act 2000] in respect of which a person is registered under Part 2 of that Act;]

Textual Amendments

F12 Words in s. 44(2) inserted (S.) (28.10.2004) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 10(2), 145(2); S.S.I. 2004/420, art. 3, Sch. 1

F13 Words in s. 44(3) substituted (24.6.2013) by The Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (S.I. 2013/1465), art. 1(2), Sch. 3 para. 2(a)

F14 Words in s. 44(4)(7) substituted (24.6.2013) by The Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (S.I. 2013/1465), art. 1(2), Sch. 3 para. 2(b)

F15 Word in s. 44(7) substituted (24.6.2013) by The Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (S.I. 2013/1465), art. 1(2), Sch. 3 para. 2(c)

F16 Definition in s. 44(11) substituted (24.6.2013) by The Children’s Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 (S.I. 2013/1465), art. 1(2), Sch. 3 para. 2(d)

F17 Words in s. 44(11) substituted (S.) (30.9.2015) by Children and Young People (Scotland) Act 2014 (asp 8), s. 102(3), sch. 5 para. 5(2); S.S.I. 2015/317, art. 2, sch. and (E.W.N.I) (30.9.2015) by The Children and Young People (Scotland) Act 2014 (Consequential and Saving Provisions) Order 2015 (S.I. 2015/907), arts. 1(4), 3

Modifications etc. (not altering text)

C1 S. 44 modified (1.4.1997) by S.I. 1996/3255, art. 13(1)

Marginal Citations

M2 1995 c.36.

[F18 44A Appeal against detention in secure accommodation U.K.

(1) A child, or a relevant person in relation to the child, may appeal to the sheriff against a decision by a local authority to detain the child in secure accommodation in pursuance of an order made under section 44 of this Act.

(2) An appeal under subsection (1) may be made jointly by—

(a) the child and one or more relevant persons in relation to the child; or

(b) two or more relevant persons in relation to the child.

(3) An appeal must not be held in open court.

(4) The sheriff may determine an appeal by—

(a) confirming the decision to detain the child in secure accommodation; or

(b) quashing that decision and directing the local authority to move the child to be detained in residential accommodation which is not secure accommodation.

(5) The Scottish Ministers may by regulations make further provision about appeals under subsection (1).

(6) Regulations under subsection (5) may in particular—

(a) specify the period within which an appeal may be made;

(b) make provision about the hearing of evidence during an appeal;

(c) provide for appeals to the [F19 Sheriff Appeal Court] and Court of Session against the determination of an appeal.

(7) Regulations under subsection (5) are subject to the affirmative procedure.

(8) In this section—

• “relevant person”, in relation to a child, means any person who is a relevant person in relation to the child for the purposes of the Children's Hearings (Scotland) Act 2011 (including anyone deemed to be a relevant person in relation to the child by virtue of section 81(3), 160(4)(b) or 164(6) of that Act);

• “secure accommodation” has the same meaning as in section 44 of this Act.]

Textual Amendments

F18 S. 44A inserted (1.8.2014 for specified purposes, 1.2.2016 in so far as not already in force) by Children and Young People (Scotland) Act 2014 (asp 8), ss. 91, 102(3); S.S.I. 2014/131, art. 2(2)(3), sch.; S.S.I. 2015/406, art. 3(1) (with art. 4)

F19 Words in s. 44A(6)(c) substituted (1.1.2016) by The Courts Reform (Scotland) Act 2014 (Consequential and Supplemental Provisions) Order 2015 (S.S.I. 2015/402), art. 1, sch. para. 3 (with art. 5)

45 Security for child’s good behaviour. S

(1) Where a child has been charged with an offence the court may order his parent or guardian to give security for his co-operation in securing the child’s good behaviour.

(2) Subject to subsection (3) below, an order under this section shall not be made unless the parent or guardian has been given the opportunity of being heard.

(3) Where a parent or guardian has been required to attend and fails to do so, the court may make an order under this section.

(4) Any sum ordered to be paid by a parent or guardian on the forfeiture of any security given under this section may be recovered from him by civil diligence or imprisonment in like manner as if the order had been made on the conviction of the parent or guardian of the offence with which the child was charged.

(5) In this section “parent” means either of the child’s parents, if that parent has parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to him.

46 Presumption and determination of age of child. S

(1) Where a person charged with an offence [F20 , whose age is not specified in the indictment or complaint in relation to that offence,]is brought before a court other than for the purpose of giving evidence, and it appears to the court that he is a child, the court shall make due enquiry 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, and the age presumed or declared by the court to be the age of that person shall, for the purposes of this Act or the M3 Children and Young Persons (Scotland) Act 1937, be deemed to be the true age of that person.

(2) The court in making any inquiry in pursuance of subsection (1) above shall have regard to the definition of child for the purposes of this Act.

(3) [F21 Without prejudice to section 255A of this Act,]Where in an indictment or complaint for—

(a) an offence under the Children and Young Persons (Scotland) 1937;

(b) any of the offences mentioned in paragraphs 3 and 4 of Schedule 1 to this Act; or

(c) an offence under section 1, 10(1) to (3) or 12 of the M4 Criminal Law (Consolidation) (Scotland) Act 1995,

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 M5 Children and Young Persons (Scotland) Act 1937 or Part I of the Criminal Law (Consolidation) (Scotland) Act 1995 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 an indictment or complaint for an offence under the 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) An order or judgement of the court shall not be invalidated by any subsequent proof that—

(a) the age of a person mentioned in subsection (1) above has not been correctly stated to the court; or

(b) the court was not informed that at the material time the person was subject to a [F22 compulsory supervision order or interim compulsory supervision order] or that his case had been referred to a children’s hearing by virtue of regulations made under [F23 section 190 of the Children’s Hearings (Scotland) Act 2011 (asp 1).]

(6) Where it appears to the court that a person mentioned in subsection (1) above has attained the age of 17 years, he shall for the purposes of this Act or the Children and Young Persons (Scotland) Act 1937 be deemed not to be a child.

(7) In subsection (3) above, 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 307 of this Act.

Textual Amendments

F20 Words in s. 46(1) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(4)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F21 Words in s. 46(3) inserted (1.8.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 21(4)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F22 Words in s. 46(5)(b) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(3)(a)

F23 Words in s. 46(5)(b) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(3)(b)

Marginal Citations

M3 1937 c.37.

M4 1995 c.39.

M5 1937 c.37.

47 Restriction on report of proceedings involving children. U.K.

(1) Subject to subsection (3) below, no newspaper report of any proceedings in a court shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any person under the age of [F24 18] years concerned in the proceedings, either—

(a) as being a person against or in respect of whom the proceedings are taken; or

(b) as being a witness in the proceedings.

(2) Subject to subsection (3) below, no picture which is, or includes, a picture of a person under the age of [F25 18] years concerned in proceedings as mentioned in subsection (1) above shall be published in any newspaper in a context relevant to the proceedings.

(3) The requirements of subsections (1) and (2) above shall be applied in any case mentioned in any of the following paragraphs to the extent specified in that paragraph—

(a) where a person under the age of [F26 18] years is concerned in the proceedings as a witness only and no one against whom the proceedings are taken is under the age of [F26 18] years, the requirements shall not apply unless the court so directs;

(b) where, at any stage of the proceedings, the court, if it is satisfied that it is in the public interest so to do, directs that the requirements (including the requirements as applied by a direction under paragraph (a) above) shall be dispensed with to such extent as the court may specify; and

(c) where the Secretary of State, after completion of the proceedings, if satisfied as mentioned in paragraph (b) above, by order dispenses with the requirements to such extent as may be specified in the order.

(4) This section shall, with the necessary modifications, apply in relation to sound and television programmes included in a programme service (within the meaning of the M6 Broadcasting Act 1990) as it applies in relation to newspapers.

(5) A person who publishes matter in contravention of this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 of the standard scale.

(6) In this section, references to a court shall not include a court in England, Wales or Northern Ireland.

Textual Amendments

F24 Word in s. 47(1) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 15, 34; S.S.I. 2015/200, art. 2(2), sch.

F25 Word in s. 47(2) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 15, 34; S.S.I. 2015/200, art. 2(2), sch.

F26 Word in s. 47(3)(a) substituted (1.9.2015) by Victims and Witnesses (Scotland) Act 2014 (asp 1), ss. 15, 34; S.S.I. 2015/200, art. 2(2), sch.

Modifications etc. (not altering text)

C2 S. 47 modified (S.) (31.3.2006) by Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), ss. 111(6), 145(2); S.S.I. 2004/420, art. 2 (as amended by S.S.I. 2005/553, art. 2)

Marginal Citations

M6 1990 c.42.

48 Power to refer certain children to reporter. S

(1) A court by or before which a person is convicted of having committed an offence to which this section applies may refer—

(a) a child in respect of whom an offence mentioned in paragraph (a) or (b) of subsection (2) below has been committed; or

(b) any child who is, or who is likely to become, a member of the same household as the person who has committed an offence mentioned in paragraph (b) or (c) of that subsection or the person in respect of whom the offence so mentioned was committed,

to the Principal Reporter, and certify that the offence shall be a ground established for the purposes of [F27 the Children’s Hearings (Scotland) Act 2011 (asp 1).]

(2) This section applies to an offence—

(a) under section 21 of the M7 Children and Young Persons (Scotland) Act 1937;

(b) mentioned in Schedule 1 to this Act; or

(c) in respect of a person aged 17 years or over which constitutes the crime of incest.

Textual Amendments

F27 Words in s. 48(1) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(4)

Marginal Citations

M7 1937 c.37.

49 Reference or remit to children’s hearing. S

(1) Where a child who is not subject to a [F28 compulsory supervision order or interim compulsory supervision order] pleads guilty to, or is found guilty of, an offence the court—

(a) instead of making an order on that plea or finding, may remit the case to the Principal Reporter to arrange for the disposal of the case by a children’s hearing; or

(b) on that plea or finding may request the Principal Reporter to arrange a children’s hearing for the purposes of obtaining their advice as to the treatment of the child.

(2) Where a court has acted in pursuance of paragraph (b) of subsection (1) above, the court, after consideration of the advice received from the children’s hearing may, as it thinks proper, itself dispose of the case or remit the case as mentioned in paragraph (a) of that subsection.

(3) Where a child who is subject to a [F29 compulsory supervision order or interim compulsory supervision order] pleads guilty to, or is found guilty of, an offence the court dealing with the case if it is—

(a) the High Court, may; and

(b) the sheriff [F30 JP court] , shall,

request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the child, and on consideration of that advice may, as it thinks proper, itself dispose of the case or remit the case as mentioned in subsection (1)(a) above [F31 except that where [F32 section 51A of the Firearms Act 1968 or section 29 of the Violent Crime Reduction Act 2006 applies] it shall itself dispose of the case] .

(4) [F33 Subject to any appeal against any decision to remit made under subsection (1)(a) above or (7)(b) below,] where a court has remitted a case to the Principal Reporter under this section, the jurisdiction of the court in respect of the child shall cease, and his case shall stand referred to a children’s hearing.

(5) Nothing in this section shall apply to a case in respect of an offence the sentence for which is fixed by law.

(6) Where a person who is—

(a) not subject to a [F34 compulsory supervision order or interim compulsory supervision order] ;

(b) over the age of 16; and

(c) not within six months of attaining the age of 18,

is charged summarily with an offence and pleads guilty to, or has been found guilty of, the offence the court may request the Principal Reporter to arrange a children’s hearing for the purpose of obtaining their advice as to the treatment of the person.

(7) On consideration of any advice obtained under subsection (6) above, the court may, as it thinks proper—

(a) itself dispose of the case; or

(b) where the hearing have so advised, remit the case to the Principal Reporter for the disposal of the case by a children’s hearing.

Textual Amendments

F28 Words in s. 49(1) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(5)

F29 Words in s. 49(3) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(5)

F30 Words in s. 49(3)(b) substituted (10.3.2008, 2.6.2008, 8.12.2008, 23.2.2009 and 14.12.2009 for certain purposes, otherwise 22.2.2010) by Criminal Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6), ss. 80, 84, Sch. para. 26(d); S.S.I. 2008/42, art. 3, Sch.; S.S.I. 2008/192, art. 3, Sch.; S.S.I. 2008/329, art. 3, Sch.; S.S.I. 2008/362, art. 3, Sch.; S.S.I. 2009/432, art. 3, Schs. 1, 2

F31 Words in s. 49(3) inserted (22.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 290(2), 336; S.I. 2004/81, art. 3(2)(b)

F32 Words in s. 49(3) substituted (6.4.2007) by Violent Crime Reduction Act 2006 (c. 38), ss. 49, 66(2), Sch. 1 para. 4(2); S.I. 2007/858, art. 2(g)

F33 Words in s. 49(4) inserted (1.8.1997) by 1997 c. 48, s. 23(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F34 Words in s. 49(6)(a) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(5)

Modifications etc. (not altering text)

C3 S. 49(3): power to amend conferred (22.1.2004) by Criminal Justice Act 2003 (c. 44), ss. 291(1)(c), 336; S.I. 2004/81, art. 3(2)(b)

50 Children and certain proceedings. S

(1) No child under 14 years of age (other than an infant in arms) shall be permitted to be present in court during any proceedings against any other person charged with an offence unless his presence is required as a witness or otherwise for the purposes of justice [F35 or the court consents to his presence].

(2) Any child present in court when, under subsection (1) above, he is not to be permitted to be so shall be ordered to be removed.

(3) Where, in any proceedings in relation to an offence against, or any conduct contrary to, decency or morality, a person who, in the opinion of the court, is a child is called as a witness, the court may direct that all or any persons, not being—

(a) members or officers of the court;

(b) parties to the case before the court, their counsel or solicitors or persons otherwise directly concerned in the case;

(c) bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings; or

(d) such other persons as the court may specially authorise to be present,

shall be excluded from the court during the taking of the evidence of that witness.

(4) The powers conferred on a court by subsection (3) above shall be in addition and without prejudice to any other powers of the court to hear proceedingsin camera.

(5) Where in any proceedings relating to any of the offences mentioned in Schedule 1 to this Act, the court is satisfied that the attendance before the court of any person under the age of 17 years in respect of whom the offence is alleged to have been committed is not essential to the just hearing of the case, the case may be proceeded with and determined in the absence of that person.

(6) Every court in dealing with a child who is brought before it as an offender shall have regard to the welfare of the child and shall in a proper case take steps for removing him from undesirable surroundings.

Textual Amendments

F35 Words in s. 50(1) inserted (27.9.1999) by 1999 c. 22, ss. 73(2), 108(3)(b) (with s. 107, Sch. 14 para. 7(2))

51 Remand and committal of children and young persons. S

(1) Where a court remands or commits for trial or for sentence a person under 21 years of age who is charged with or convicted of an offence and is not released on bail or ordained to appear, then, except as otherwise expressly provided by this section, the following provisions shall have effect—

(a) F36 . . . if he is under 16 years of age F37 [F38 . . . , the court shall] commit him to the local authority [F39 which it considers appropriate] to be detained—

(i) where the court so requires, in secure accommodation [F40 (as defined in section 202(1) of the Children’s Hearings (Scotland) Act 2011 (asp 1))] ; and

(ii) in any other case, in a suitable place of safety chosen by the authority;

[F41 (aa) if the person [F42 has attained the age of 16 years and is] subject to a [F43 compulsory supervision order or interim compulsory supervision order] , the court may F44 . . . commit him to the local authority which it considers appropriate to be detained as mentioned in sub-paragraphs (i) or (ii) of paragraph (a) above [F45 or may commit him either to prison or to a young offenders institution] ;]

[F46 (b) if he is a person who has attained the age of 16 years and to whom paragraph (aa) above does not apply, then where—

(i) the court has been notified by the Scottish Ministers that a remand centre is available for the reception from that court of persons of his class or description, it shall commit him to a remand centre; or

(ii) the court has not been so notified, it may commit him either to prison or to a young offenders institution;

(bb) F47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(2) Where any person is committed to a local authority F48 . . . under any provision of this Act, that authority F49 . . . shall be specified in the warrant, and he shall be detained by the authority F50 . . . for the period for which he is committed or until he is liberated in due course of law.

[F51 (2A) F52 . . . Where any person is committed to a remand centre under any provision of this Act, he shall be detained in a remand centre for the period for which he is committed or until he is liberated in due course of law.]

(3) F53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) F53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F54 (4A) The local authority which may be appropriate in relation to a power to commit a person under paragraphs (a) or (aa) of subsection (1) F55 . . . may, without prejudice to the generality of those powers, be—

(a) the local authority for the area in which the court is situated;

(b) if the person is usually resident in Scotland, the local authority for the area in which he is usually resident;

(c) if the person is subject to a [F56 compulsory supervision order or interim compulsory supervision order, the implementation authority (as defined in section 202(1) of the Children’s Hearings (Scotland) Act 2011 (asp 1).]

[F57 (5) Where by virtue of subsection [F58 (1)(aa) or (b)(ii)] of this section a person is committed either to prison or to a young offenders institution, the warrant issued by the court is warrant also, without further application to the court in that regard, for committal to whichever of the two the court does not specify.]]

Textual Amendments

F36 Words in s. 51(1)(a) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 23(3)(a)(i), 89; S.S.I. 2003/288, art. 2, Sch.

F37 Words in s. 51(1)(a) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 64(2)(a)(i), 206(1); S.S.I. 2010/413, art. 2, Sch.

F38 Words in s. 51(1)(a) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(3)(a)(ii)}, 89; S.S.I. 2003/288, art. 2, Sch.

F39 Words in s. 51(1)(a) substituted (1.8.1997) by 1997 c. 48, s. 56(2)(a); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F40 Words in s. 51(1)(a)(i) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(6)(a)

F41 S. 51(1)(aa) inserted (1.8.1997) by 1997 c. 48, s. 56(2)(b); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F42 Words in s. 51(1)(aa) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(3)(b)(i)}, 89; S.S.I. 2003/288, art. 2, Sch.

F43 Words in s. 51(1)(aa) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(6)(b)

F44 Words in s. 51(1)(aa) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(3)(b)(ii)}, 89; S.S.I. 2003/288, art. 2, Sch.

F45 Words in s. 51(1)(aa) added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(3)(b)(iii)}, 89; S.S.I. 2003/288, art. 2, Sch.

F46 S. 51(1)(b)(bb) substituted for (b) (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(3)(c)}, 89; S.S.I. 2003/288, art. 2, Sch.

F47 S. 51(1)(bb) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 64(2)(a)(ii), 206(1); S.S.I. 2010/413, art. 2, Sch.

F48 Words in s. 51(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(4)}, 89; S.S.I. 2003/288, art. 2, Sch.

F49 Words in s. 51(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(4)}, 89; S.S.I. 2003/288, art. 2, Sch.

F50 Words in s. 51(2) repealed (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(4)}, 89; S.S.I. 2003/288, art. 2, Sch.

F51 S. 51(2A) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(5)}, 89; S.S.I. 2003/288, art. 2, Sch.

F52 Words in s. 51(2A) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 64(2)(b), 206(1); S.S.I. 2010/413, art. 2, Sch.

F53 S. 51(3)(4) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 64(2)(c), 206(1); S.S.I. 2010/413, art. 2, Sch.

F54 S. 51(4A) inserted (1.8.1997) by 1997 c. 48, s. 56(4); S.I. 1997/1712, art. 3, Sch. (subject to arts. 4, 5)

F55 Words in s. 51(4A) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 64(2)(d), 206(1); S.S.I. 2010/413, art. 2, Sch.

F56 Words in s. 51(4A)(c) substituted (24.6.2013) by The Childrens Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 10(6)(c)

F57 S. 51(5) added (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss.{23(8)}, 89; S.S.I. 2003/288, art. 2, Sch.

F58 Words in s. 51(5) substituted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 64(3), 206(1); S.S.I. 2010/413, art. 2, Sch.

Modifications etc. (not altering text)

C4 S. 51 applied (1.12.2014) by The Mutual Recognition of Supervision Measures in the European Union (Scotland) Regulations 2014 (S.S.I. 2014/337), reg. 1, sch. 2 para. 18(1)

C5 S. 51(1)(a)(ii) modified (1.4.1997) by S.I. 1996/3255, reg. 14(1)(a)

S. 51(4)(b) modified (1.4.1997) by S.I. 1996/3255, reg. 14(1)(a)