Citizen Participation and Public Petitions Committee 25 June 2025
With regard to the cases that are reported by the police to the Crown Office, the police operate under guidelines that I have issued to determine whether the case is reported either to the children’s reporter, or jointly to the Crown Office and the children’s reporter.
Children who are reported to the Crown Office and Procurator Fiscal Service are often the most vulnerable children in Scottish society; many of them will have suffered trauma and might be experienced in the care system. Therefore, decisions relating to children who come into contact with the law must take into account the rights, needs and best interests of the child in line with the United Nations Convention on the Rights of the Child, while at the same time balancing such considerations with the rights of the victim, who will often also be a child, and the wider public interest. There is a need to strike a balance between supporting children who come into contact with the law and ensuring that victims are supported and communities are safe.
All reports involving violent or sexual offending are treated seriously, and where such offending merits prosecution, action will be taken, even when the offender is a child. The prosecutorial response to children and adults needs to be different; fundamentally, a child is treated as such, because of the impact of their age and maturity. Such aspects also have a bearing on the assessment of their culpability and their potential to change and to be reintegrated into society, ultimately reducing the risk of reoffending.
The presumption, as Mr Hogg has said, is for all children not to be prosecuted. However, that is not to say that a child cannot, and should never, be prosecuted, nor does the UN Convention on the Rights of the Child dictate that children accused of crime cannot be prosecuted. The presumption against prosecution is rebuttable, and it should be rebuffed when it is in the public interest to prosecute. The more serious the offending, the more likely it is that the offence will be prosecuted in court.
In particular, given the seriousness of the offence of rape and other sexual offending and the impact of such offending on victims, referral to the reporter or diversion from prosecution for such offences will be appropriate only in certain circumstances. Those circumstances are also outlined in publicly available guidance that sets down the parameters within which counsel determine whether a case should be diverted from prosecution.
Fundamentally, I would say that, in relation to children, the justice system must be responsive to vulnerability, trauma and need. However, it must also be clear that serious offending has serious consequences.