Fiona Dyer is practice development manager of the Youth Justice National Development Team within the Centre for Youth and Criminal Justice.
The justice system in Scotland is a very confusing landscape where young people are concerned. When I first qualified as a social worker nearly 20 years ago, I had no idea just how contradictory the system in Scotland was. I was full of ideals and believed that our Children’s Hearing System Scotland (CHS) was superior to elsewhere in the UK because our system prioritised the needs of young people. This was a system that recognised that young people hadn’t fully developed, and therefore should not be expected to take full responsibility for their actions. It supported the view that many young people who were involved in offending had, or previously had, care needs and therefore had suffered in their young lives. Ultimately they needed help to change behaviour, rather than punishment. In reality, however, this ‘ideal’ picture is not quite accurate.
For some young people the Children’s Hearing System does work and their needs, not deeds, are the priority, but for others unfortunately this is not the case. Today, many young people under 18 are prosecuted as adults, in adult courts. This includes children as young as 12 and 13 years old. Why are we letting this happen?
Accepting that young people can be prosecuted and have an adult conviction not only contradicts the purpose of having a welfare based system to meet their needs, but also goes against the United Nations Convention on the Rights of the Child.
Our legal system and legislation is partly at fault, in the first instance, for allowing young people under age 18 to even enter an adult court. Accepting that young people can be prosecuted and have an adult conviction not only contradicts the purpose of having a welfare based system to meet their needs, but also goes against the United Nations Convention on the Rights of the Child (UNCRC), which Scotland has agreed to endorse. The UNCRC stipulates no child under 18 should be prosecuted in adult courts – but little has changed as a result. In fact, we actively promote children being prosecuted through the Lord Advocate’s Guidance, the ‘Joint Agreement in Relation to the Cases of Children Jointly Reported to the Procurator Fiscal and the Children’s Reporter’ (COPFS/SCRA, 2014, p.7) which includes the presumption to prosecute anyone age 16 or 17 years, as opposed to addressing their behaviour in the system designed to help and support them and take their age and stage of development into account.
If sent to court, legislation in Scotland allows another route out and into the Children’s Hearing System (just in case these young people should not have been there in the first place). Section 49(3) of the Criminal Procedure (Scotland) Act 1995 gives the Sheriff the option of advice and disposal at the Children’s Hearing System. And just in case sheriffs forget that this option is open to them, the social workers have a duty to highlight this to them regarding all young people under age 17 and a half, through guidance for criminal justice social work reports. Over a five year period from 2009 – 2014, on average only 5 % of young people were remitted from Court to the Children’s Hearing System. Why are such high numbers of young people remaining in adult courts?
Different Government policies have also been introduced over recent years, based on research such as the Edinburgh Study of Youth, Transitions and Crime, which keeps children at the centre (Getting it Right For Every Child) and seeks to divert young people from formal process wherever possible (The Whole System Approach). But this is obviously not enough, as many young people are still being prosecuted in adult courts. Some may argue that until we have a suitable alternative to address serious offending then this is the only option available – which if true, means we need to act to rectify this and create a suitable alternative. But given that 93% of young people age 12-18 who were prosecuted in adult courts in Scotland between 2009-2014 were there on summary proceedings (ie, not the most serious offences), where is the argument ? Could these children not be dealt with by the Children’s Hearing System? In some instances, other young people are actually having their Compulsory Supervision Orders (CSOs) terminated at the Children’s Hearing, to allow them to have ‘their day in court’. Where is the child in that decision?
To address these issues, the Centre for Youth and Criminal Justice (CYCJ) recently published a paper, Young People at Court, which made the following recommendations:
- All young people under age 18 must be legally defined as children and not adults and treated as such. Amendments to Children (Scotland) Act 1995, Criminal Procedures (Scotland) Act 1995 and Children’s Hearing (Scotland) Act 2011 would be required.
- All young people under age 18 who offend and cannot be diverted to non-formal measures such as EEI (Early Effective Intervention), should be reported to the Children’s Reporter.
- Only in the most serious cases/harm caused should a young person be reported to the Procurator Fiscal.
- Until a legislative change is made, there is a change in policy that the presumption is for ALL those under 18 are to be dealt with in the CHS, or diverted from prosecution.
- The CHS increases its age limit to allow children to remain on a CSO until their 18th year. This would allow time for work to be undertaken with them to address their needs/risks/behaviour.
- The CHS has more disposals available to them, or more conditions are attached to CSO to meet the needs of the young people referred.
- Only on those occasions, where it is in the public interest/the most serious of cases, should the decision be made to prosecute.
- No young person under age 18 should appear in an adult court. Youth hearings, based on a child-centred ethos, should be created for the most serious offences.
Will these recommendations be taken on board and the appropriate changes made? How can we support change to happen? Endorsed by the National Youth Justice Advisory Group, the Young People in Court paper has started discussions. How can we make change happen?
We would love to hear your views at email@example.com
The full Young People at Court paper can be found at www.cycj.org.uk/resource/young-people-at-court-in-scotland.
 United Nations (1989) United Nations Convention on the Rights of the Child. New York, United States.
 Crown Office and Procurator Fiscal Service/SCAR (2014) Joint Agreement in Relation to Cases of Children Jointly Reported to the Procurator Fiscal and Children’s reporter. Edinburgh: Crown Office and Procurator Fiscal Service
 National Outcomes and Standards for Social Work Services in the Criminal Justice System: Criminal Justice Social Work Reports and Court-based services – Practice Guidance (Scottish Government, 2010)
 McAra, L & McVie, S (2013), ‘Delivering Justice for Children and Young People: Key Messages from the Edinburgh Study of Youth Transitions and Crime’ in A Dockley (ed.), Justice for Young People: Papers by Winners of the Research Medal 2013. Howard League for Penal Reform, pp. 3-14.