Youth Offending and Grounds for Statutory Referral (Scotland) 2024 PDF

OFFICIAL Unit 6 Lesson 8.2...

OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral Lesson Aim: The learner will be able to outline police powers and procedures to protect and report children. Learning Outcomes: Introduction On successful completion of the lesson, students will be able to:- Children who come into contact with Police have a right to expect to be treated with 1. Explain the procedures and guidelines for fairness, dignity and respect. the arrest of youth offenders. The manner in which child offenders are treated is underpinned by GIRFEC, designed 2. Explain the statutory grounds that must be to ensure all agencies involved in youth satisfied to determine if a report should be offending work together to identify and reduce submitted to the Reporter to the Children’s those needs. Panel. The introduction of the Criminal Justice (Scotland) Act 2016 reformed the criminal 3. Explain the procedures for youth offenders justice system protecting the rights of including Early and Effective Intervention. suspects. The Act provides a duty to consider a child’s (all persons under 18) wellbeing in respect of arrest, holding in police custody, interviewing, and charging with an offence. Officers must treat the need to safeguard and promote the wellbeing of the child as a primary consideration. This is not the only consideration and must be balanced with the need to fully investigate crime, the need to record crime in line with SRCS and the needs and rights of victims. 1 th Amended 14 March 2024 v.3 OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral Age of Criminal Responsibility A child under 12 years of age cannot currently be held criminally responsible. They are classed as ‘non age’ and will not be subject of a police report to the COPFS or Children’s Reporter, regardless of how serious the crime or offence. They may still, however be referred to the Children’s Reporter on care and protection grounds through the submission of a Concern Form (iVPD). Note:- The Age of Criminal Responsibility (Scotland) Act, 2019 received Royal Assent in June 2019 raising the age of criminal responsibility from age 8 to 12. This came into effect on 17th December, 2021. Please see ACRA Lesson note. Is Prosecution in a Court an Option? The Lord Advocate decides whether a child is to be prosecuted by the courts or referred to the reporter. In practice the PF will make this decision based on ‘The Lord Advocate’s Guidelines’ These guidelines dictate that a child will only be prosecuted in the courts if:- The crime/offence would be dealt with on indictment or solemn procedure. The alleged offence would result in a child of 15 years or over being disqualified from driving. (The reporter would not have the authority to impose this). The child is 16 years but not yet 18 years and the reporter has terminated the supervision order. Hence, they are now an adult and will be treated as such. If the reporter deals with the case, it is not classed as a prosecution. Any guilty decision is not classed as a conviction but a “finding of guilt”. Disposal options There are different provisions and associated duties depending on the age of the child. The terminology being used here is consistent with the Criminal Justice (Scotland) Act, 2016. This is broken down into the following categories:- 2 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral Younger children - Those aged 8 – 15 and those aged 16 and 17 who are subject of a Compulsory Supervision Order (CSO) Older Children - Those aged 16 and 17 who are not subject of a CSO. Note:- Compulsory Supervision Orders will be fully explained further on in this lesson. It is important to know the disposal options available when dealing with children. These differ depending on if the accused is a younger or older child. Younger Child Police direct measures – Warnings (verbal or written and can include Restorative Justice Warnings) Referral to Partners to consider local interventions – known in most areas as Early and Effective Intervention (EEI) Report by SPR – either jointly to COPFS and SCRA or a single report to SCRA (refer to Lord Advocate Guidelines referred to previously) Note: Restorative Warning is a process facilitated by trained personnel that involves the warning of a child whilst addressing the impact on the victim and the community. The victim will have opportunity to be informed of the outcome. The decision to apply this measure will be made by the Concern Hub (PPU) and the information shared lawfully with partners. Restorative Warnings should only be carried out where; The child admits the offence and There is no information that would prevent a warning being delivered. 3 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral All restorative warnings must be recorded on the relevant crime systems and victims should be updated with action taken. Older Child Recorded Police Warnings Referral to EEI SPR to COPFS Where a child is a co-accused with an adult offender, then they should only be reported if the offence falls within the Lord Advocate Guidelines (see previous). If the offence does not fall into the guidelines the adult offender should be reported to COPFS and the child offender to SCRA. On each occasion when reporting a child offender, a submission to the VPD system will be made. This assists in sharing information with other agencies in line with GIRFEC values Deciding Whether or Not to Arrest a Child (Officially Accused or Not Officially Accused) Whilst the seriousness of the offence is the primary question to be answered this is not the only consideration. The following questions may assist that decision making process; What is the purpose of the arrest (i.e. interview or obtaining forensic samples?) Is there any history of offending behaviour by the child? What kind of response is in the best interest of the child? Is this offence of a sufficiently minor nature that it may be dealt with by a warning/RPW or referral to partners? Is the offence likely to go before a court or Children’s Hearing? Are there other factors affecting the child’s wellbeing in addition to the reported behaviour. Do I have sufficient evidence to arrest (officially accused) If so, is keeping the child in custody necessary and proportionate for the purposes of bringing the child before a court or otherwise dealing with the child in accordance with law. 4 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral It is essential that Investigating Officers provide all relevant information to the Custody Officer on arrival at the Custody Suite. There are duties which must be carried out as part of the arrest procedure for both younger and older children. Remember:- Arresting a child is significant, a step only taken where necessary to do so. (The Section 14 Criminal Justice (Scotland) Act 2016 test regarding necessity and proportionality will still apply when the arrested child is presented in custody as per the Arrest lesson, Unit 3). Reporting Youth Offenders Where there is a sufficiency of evidence in the case, the child will be cautioned and charged. The caution and charge should be done in the presence of the parent or guardian. The report should then be forwarded to the Reporter and/or Procurator Fiscal depending on local arrangements and circumstances of the case. If brought into police custody the duty officer will then decide if the child should be held in custody. Note:- You must ensure that you include any vulnerabilities, individual and/or family circumstances if known that relate to the child in the Antecedents section of the SPR. If this information is not available this should also be recorded. Similarly if the child accused is known to the police, a summary of any EEI (page 10) should also be detailed in the SPR. Custody Prior to Appearance at Court It is essential that all options are explored in respect of the care of younger children and possible alternatives to retention in police custody prior to appearance in court. Retention in police custody of a younger child should always be considered the very last resort. Where a younger child is to be held in custody to appear in court, they must be held in a place of safety which is not a police station unless an Inspector or above certifies (through completion of a Child Detention Certificate, Appendix A), that keeping the child in a place other than a police station would be; 5 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral Impracticable Unsafe; or Inadvisable due to the persons state of health (physical and mental) There are no specific criteria set out in legislation where a younger child should be kept in custody. The nature of the offence along with other impact factors which will govern any decision. The following factors are not exhaustive however they should be considered in that decision making process:- Seriousness of the crime Demeanour (unruly behaviour) of the child Length of time they are expected to be in custody. Older Children continue to be dealt with through the adult Criminal Justice system and will continue to be held at a police station if being kept for court. Note:- The custody Inspector will make the decision if a child or young person will be kept in custody. It is the responsibility of officers dealing to ensure that all relevant information is provided to custody staff. Scottish Children’s Reporter Administration (SCRA) SCRA is the statutory body responsible for the Children’s Reporter Service headed by the Principal Reporter. There are number of Children’s Reporter offices across the country. The Reporter is the key figure when dealing with children. They will liaise with the Procurator Fiscal, Police and any other relevant authorities required in order to make the best decision in relation to a particular child. The Reporter’s primary function is to receive referrals for children and young people who are believed to require compulsory measures of supervision. The Reporter then decides whether the child or young person should be referred to a Children’s Hearing. A referral to the Reporter will be made where there are concerns for the welfare of a child and where the person or agency making that referral considers that intervention on a compulsory basis may be required. 6 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral In terms of S61 of the Children’s Hearing (Scotland) Act 2011, police have a statutory obligation to provide the Principal Reporter information where we consider:- A. A child is in need of protection, guidance, treatment or control; and B. That it might be necessary for a compulsory supervision order to be made in relation to the child. We must provide the Principal Reporter with all relevant information we have been able to discover in relation to that child. The Reporter will consider the circumstances looking at the bigger picture with the best interests of the child in mind. Children's Hearings - Supervision Requirements At every children’s hearing three Panel Members are present. Panel Members are lay people with a wide range of backgrounds who are recruited from all over Scotland. The hearing listens to the child or young person’s circumstances, and makes decisions with and for them. If the hearing thinks compulsory measures of supervision are appropriate it will impose a supervision requirement, which may be renewed annually until the child becomes 18. The hearing has a wide scope to insert any condition in a supervision requirement, and the local authority (Children and Families Social Work) is responsible for ensuring that it is implemented. In most cases the child will continue to live at home but will be under the supervision of a social worker. In some cases the hearing will decide that the child should live away from their home with relatives or foster parents. The Antisocial Behaviour Etc. (Scotland) Act 2004 may, however, specify in the supervision requirement that the child should be placed and kept in secure accommodation in a specified residential establishment. As a police officer you will come into contact with children and young persons on a regular basis who may require compulsory measures of supervision. 7 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral Grounds for Compulsory Measures of Supervision Where there are grounds for believing that a child requires compulsory measures of supervision a report outlining the circumstances must be submitted immediately to the Reporter to the Children's Panel whether this is via SPR or a concern report (VPD). Section 67 of the Children’s Hearings (Scotland) Act 2011 lists the grounds which must be satisfied with respect to a child in determining whether or not the child requires statutory grounds for referral. The grounds are: A. The child is likely to suffer unnecessarily, or the health or development of the child is likely to be seriously impaired, due to a lack of parental care, Example:- The parents are neglecting the child by failing to provide adequate food and clothing and are not ensuring the child is taking essential prescribed medication. B. a schedule 1 offence (see appendix B) has been committed in respect of the child, C. the child has or is likely to have, a close connection with a person who has committed a schedule 1 offence, For the purposes of (c), (f) and (g) a child is seen to have a "close connection" with a person if they are a member of the same household as the person, or have significant contact with the person. D. the child is or is likely to become a member of the same household as a child in respect of whom a schedule 1 offence has been committed. E. the child is being, or is likely to be, exposed to persons whose conduct is (or has been) such that it is likely that:- the child will be abused or harmed, or the child's health, safety or development will be seriously adversely affected, 8 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral Example:- a child whose home is frequented by drug addicts or alcoholics. F. the child has, or is likely to have, a close connection with a person who has carried out domestic abuse, G. the child has or is likely to have, a close connection with a person who has committed an offence under Part 1, 4 or 5 of the Sexual Offences (Scotland) Act 2009 Note:- Part 1 of Sexual Offences (Scotland) Act 2009 are sexual offences relating to adults and older children in the absence of consent (sections 1 – 11) Part 4 - Sexual offences relating to children (both younger and older) Part 5 – Abuse of Position of Trust offences H. the child is being provided with accommodation by a local authority and special measures are needed to support the child, I. a permanence order (Adoption and Children (Scotland) Act 2007) is in force in respect of the child and special measures are needed to support the child, Example:- The court grants a Local Authority with some aspects of parental responsibility i.e. maintaining the child's residence. J. the child has committed an offence, K. the child has misused alcohol, L. the child has misused a drug (whether or not a controlled drug), M. the child's conduct has had, or is likely to have, a serious adverse effect on the health, safety or development of the child or another person, Example:- a child who repeatedly plays on railway tracks or is involved in gang behaviour. 9 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral N. the child is beyond the control of a relevant person, Example:- a child who repeatedly runs away or stays out overnight against the wishes of a parent/carer. O. the child has failed without reasonable excuse to attend regularly at school, P. the child - i. has been, is being, or is likely to be, subjected to physical, emotional or other pressure to enter into a civil partnership, or ii. is, or is likely to become, a member of the same household as such a child. Q. the child— i. has been, is being or is likely to be forced into a marriage (that expression being construed in accordance with section 1 of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011or, ii. is, or is likely to become, a member of the same household as such a child. Early and Effective Intervention for Young Offenders (EEI) Research has shown that offending in childhood if dealt with effectively may not continue into adulthood, hence the importance of catching and dealing with this behaviour early. Factors which can contribute to on-going offending:- background of childhood abuse domestic abuse poor parental attachments care experienced behavioural problems truancy & poor educational outcomes The earlier we can provide help and support the better. 10 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral EEI uses the skills and experience of agencies to assess and meet the needs of young offenders. The aim is to reduce offending through the child’s plan in various diversions or interventions for those who pose a high risk to themselves or others. Sometimes referred to as a Flexible Approach to Offending, this process will deal with young offenders under the age of 16 or those under 18 that are subject to compulsory measures of supervision (A Whole Systems Approach, which extends EEI to all 16 & 17yr olds is currently being rolled out across Scotland). The process links the police service to partners involved in children and families and allows information to be shared about offending behaviour. The aim is to divert the child from statutory measures of care and prosecution in a way which is timely, proportionate and fair not only to the child or young person but the victim of any crime they have committed. The process is built upon proportionality and uses information sharing, the commitment and participation of all relevant agencies, and a shared understanding of the impact offending behaviour has on the wider communities. The model used ensures a consistency of approach across Scotland and a decision making process which is designed to enhance the wellbeing of affected children and young people while reducing the risk of future offending and anti-social behaviour. The actual referral process and delivery of EEI will differ slightly across local authority areas. When you are deployed in your division you will be made aware of local arrangements. Conclusion Unfortunately not all children live trouble-free lives. Some are neglected or abused emotionally, physically or sexually, often by their parents or members of the immediate family, the very people they should be able to trust. Consequently, some run away from home or from residential establishments and are further exploited. Some children commit crime which may lead to a pattern of persistent offending. You will come into contact with many of these children. The law recognises that they need to be protected and you must ensure that when necessary, this protection is delivered. You can make a difference to a child's life. You may be the only positive interaction a child has with an adult in their life, use any interaction you have with a child as an opportunity to have a positive influence. 11 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral Appendix A 12 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral 13 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral Appendix B SCHEDULE 1 OFFENCES AGAINST CHILDREN UNDER THE AGE OF 17 YEARS TO WHICH SPECIAL PROVISIONS APPLY Any offence under Part I of the Criminal Law (Consolidation) (Scotland) Act 1995. (incest and related offences) Any offence under section 18 (rape of a young child) or 28 (having intercourse with an older child) of the Sexual Offences (Scotland) Act 2009 Any offence under section 19 (sexual assault on a young child by penetration) or 29 (engaging in penetrative sexual activity with or towards an older child) of that Act. Any offence under section 20 (sexual assault on a young child) or 30 (engaging in sexual activity with or towards an older child) of that Act. Any offence under section 42 of that Act (sexual abuse of trust) towards a child under the age of 17 years Any offence under section 12, 15, 22 or 33 of the Children and Young Persons (Scotland) Act 1937 12. Cruelty to persons under sixteen. 15. Causing or allowing persons under sixteen to be used for begging. 22. Exposing children under seven to risk of burning 33. Prohibition of persons under sixteen taking part in performances endangering life or limb Any offence under the Prohibition of Female Genital Mutilation (Scotland) Act 2005 where the person mutilated or, as the case may be, proposed to be mutilated, is a child under the age of 17 years. Any offence under section 52 or 52A of the Civic Government (Scotland) Act 1982 in relation to an indecent photograph or pseudo- photograph of a child under the age of 17 years. 14 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral Any offence under section 1, 9, 10, 11 or 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 in respect of a child under the age of 17 years 1. Meeting a child following certain preliminary contact 9. Paying for sexual services of a child 10. Causing or inciting provision by child of sexual services or child pornography 11. Controlling a child providing sexual services or involved in pornography 12. Arranging or facilitating provision by child of sexual services or child pornography Any other offence involving bodily injury to a child under the age of 17 years. Any offence involving the use of lewd, indecent or libidinous practice or behaviour towards a child under the age of 17 years. Note:- A list of Schedule 1 offences has been provided in order to enhance understanding in terms of statutory grounds for referral. 15 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.2 Youth Offending and Grounds for Statutory Referral For further information, use the resources shown below:- Offending by Children SOP Review: You can explain the procedures and guidelines for the arrest of youth offenders. You can explain the statutory grounds that must be satisfied to determine if a report should be submitted to the Reporter to the Children’s Panel You can explain the procedures for youth offenders including Early and Effective Intervention Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 16 Protection and Wellbeing in Our Communities OFFICIAL