Citizen Participation and Public Petitions Committee 25 June 2025
I am happy to start, if that is okay.
Good morning, committee. I guess I should start by referring to the Lord Advocate’s guidelines. Obviously, the Lord Advocate is here and can speak to those guidelines herself, but it all begins with the police’s own investigation. When they feel that they have sufficient evidence, they will consider the appropriate route for directing their concern.
The Lord Advocate’s guidelines give direction on what the police should do in such circumstances. The first thing that I should mention is that the guidelines recognise those circumstances in which a child is involved and make it clear that children should not ordinarily be prosecuted through the adult criminal justice system. Instead, their cases should be considered through the children’s hearings system, which provides a more appropriate welfare-based approach for children.
However, the guidelines also recognise circumstances in which, as has been stated, particularly serious harm has been caused by a child, and they set out situations in which the police should jointly report the young person. That joint report will come to the Crown Office and Procurator Fiscal Service and the SCRA. There is a joint agreement between our two organisations—which is publicly available, certainly on the COPFS website—and that very comprehensive document outlines the process, the care that is taken in considering cases and the criteria to apply when considering the appropriate route for dealing with such matters.
Broadly, the current definition of a child is anyone under 16, but there are some 16 and 17-year-olds who meet the definition of a child—for example, those on a compulsory supervision order through the children’s hearings system. Those issues are all covered in the Lord Advocate’s guidelines. Indeed, they cover other circumstances such as road traffic offences involving those aged 15 or over that might attract disqualification.
As for the process that is followed, the children’s reporter is required to provide information to the COPFS. There is a template that directs what type of information to provide, and all the details are contained in the joint agreement and are there for everyone to see. It covers, for example, the child’s current status in the hearings system, their known circumstances, any supports or interventions that are currently in place, and what might be available through the children’s hearings system if the child were to be referred to the children’s reporter.
The decision about which route to take lies with the procurator fiscal. The presumption is that, if a child has been jointly reported, they will be directed to the children’s hearings system; however, that can be rebutted, or overcome, if the procurator fiscal considers that to be in the public interest. Again, there are criteria that direct such consideration according to the circumstances in question, and obviously the seriousness—the gravity—of the offence and the impact on the victim will be high in those considerations.
Some children are prosecuted, and some are referred to the children’s reporter. I can go through the children’s reporter’s process, if you want me to.