ACRA (Scotland) Act 2019 PDF

OFFICIAL Unit 6 Lesson 8.3...

OFFICIAL Unit 6 Lesson 8.3 ACRA Aim; To provide officers with the relevant knowledge and awareness of the Age of Criminal Responsibility (Scotland) Act 2019 (hereafter referred to as ACRA). Learning Outcomes: Introduction On successful completion of the lesson, The Age of Criminal Responsibility (Scotland) students will be able to:- Act, 2019 has the effect of increasing the age of criminal responsibility from 8 to 12 years for all children in Scotland. 1. Define what constitutes an Age of Children cannot be held criminally Criminal Responsibility (Scotland) Act accountable for harmful behaviour that 2019 (ACRA) Incident. occurred whilst they were under 12 years of age. 2. List the urgent powers available when However, the police still have a duty to record dealing with an ACRA Incident. and fully investigate incidents that would amount to criminal behaviour. This is a basic requirement of the Scottish Crime Recording 3. Identify the Places of Safety to which a Standard and the Police and Fire Reform child can be taken under section 28 (Scotland) Act 2012. and the criteria for using those powers. ACRA also creates the principle that, in the 4. List the powers granted under the exercise of any power or function, the need to authorisation of a Sheriff’s Order. safeguard and promote the wellbeing of the child must be treated as a primary consideration. This legislation commenced on 17th December, 2021. It cannot be applied retrospectively. 1 th Amended 9 April 2024 v.4 OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Why has ACRA been Introduced There is considerable evidence that involvement with the Criminal Justice system at an early age impacts negatively on the life outcomes of children, and may continue into adulthood. The age of criminal responsibility reflects the point at which society deems that a child can be held legally responsible for their actions. Until the commencement of this legislation, Scotland had the lowest age of criminal responsibility in Europe. The United Nations Convention on the Rights of the Child Incorporation (Scotland) Bill 2020 seeks to protect the rights of children. This includes advice from the UN on what a child-friendly justice system should contain. It specifically provides advice on the minimum age of criminal responsibility for Member States. So what has changed? ACRA requires all public bodies to change the language used when referring to children below the age of criminal responsibility. We will no longer use criminal justice terminology in relation to the child, including references to ‘accused’, ‘suspect’, ‘arrest’ and ‘charge’. We will instead refer to ‘harmful behaviour’ or ‘behaviour causing harm’ and we will refer to the child by their name. A Concern Report will still be completed on iVPD, however, this will be in the form of an ‘ACRA Child Concern’ Form and not a ‘Youth Offending Child Concern’ Form. Existing investigatory powers no longer apply in relation to a child identified as being under the age of criminal responsibility, as the child cannot be subject to criminal procedure. ACRA provides formal powers, but only in relation to the most serious of behaviours which meet a threshold for the use of these powers. The threshold will be explained later in this lesson. Where this threshold has not been met, ACRA powers will not apply. The police must, however, continue to conduct investigations into such incidents. This includes, where necessary, speaking informally to children about the incident with agreement from their parent or guardian. 2 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Children aged under 12 years (at the time of the harmful behaviour) can now NEVER be arrested or charged in relation to any act of harmful behaviour What Has Not Changed? The changes in terminology only relate to the child who has caused harm. ACRA does not change the fact that a crime has been committed and there is a victim of that crime, therefore the terminology will not change when dealing with the victim. Officers will continue to ensure victims are kept informed of the progress of the investigation and any outcome. Children who have caused harm whilst aged under 12 years will continue to have their behaviour and needs addressed through the Children’s Hearings system. This process has not changed due to the introduction of ACRA. Note:- Where the person believed to have carried out the harmful behaviour is a child below the age of criminal responsibility, they will be recorded on the National Crime System under ‘Linked People and Organisation – Involvements’ using the appropriate ‘Non-Age’ category (usually ‘Non Age – Harm Suspected’ or ‘Non-Age – Harm Caused’ depending on whether or not the crime is detected). Existing criminal law evidential standards will continue to be applied in determining the final disposal assigned to a crime report. Corroboration that harmful conduct amounting to a crime under Scots Law has occurred and establishing the identity of the child as being the individual responsible, will still be required. The Act commenced on 17th December 2021, its powers are not to be applied retrospectively Existing Powers of Search Police officers may continue to search, a child under the age of criminal responsibility, under statute (e.g. as per the Misuse of Drugs 3 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Act 1971, s23(2), and the Civic Government (Scotland) Act 1982, s60(1)), without warrant as they would any other child or adult. However, when evidence to support the commission of an offence is recovered in the course of the search and seized, it should be remembered that a child aged under 12 years cannot be held legally accountable and cannot be subjected to criminal justice procedures What is an ACRA Incident Definition Police Scotland define an ACRA Incident as one where a child below the age of criminal responsibility causes, or risks causing, significant/serious physical harm, or sexual harm to another person. Significant Harm is defined as; harmful behaviour which causes physical and/or psychological damage or; injury which results in suffering, and/or impairment to health and development. Harmful behaviour can be physical, psychological or sexual in nature. Serious Harm has been defined as; harmful behaviour of a violent or sexual nature which is life threatening and/or traumatic, and from which recovery, whether physical or psychological, may reasonably be expected to be difficult or impossible. ACRA Police Powers Removal to a Place of Safety The Act creates some urgent police powers when dealing with an incident involving harmful behaviour by a child below the age of criminal responsibility where the relevant tests have been met. Section 28 of the Act provides police with the power to remove a child below the age of criminal responsibility from any place, and to take that child to a place of safety where there are reasonable grounds to believe that: 4 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA the child has behaved, or is likely to behave, in a way that is causing or risks causing significant harm to another person the removal of the child must be necessary to prevent the immediate risk of significant harm, or further such harm, to another person. This power cannot be used where the risk is not clear and present at that time. Where there is risk of harm to the child but not to any other person (e.g. self-harm incidents), Child Protection Procedures must instead be instigated The power can be applied to any place where the child is found both, public and private. Thus it would be lawful in the appropriate circumstances to remove a child from their home address to a more suitable place of safety. In many cases it will also be appropriate to remove the child from any other place and return them to the family home. A child may be kept in a place of safety only for as long as is necessary; to put in place arrangements for the care or protection of the child or for obtaining a Sheriff’s Order for Forensic Data and Samples (authorising the taking of intimate samples) and in either case, the child may not be kept for longer than 24 hours Note:- In circumstances where Section 28 powers have been used and it is agreed with social work colleagues that the child can be taken to their home address, the Section 28 powers end at the point that the child is left in the care of a parent or guardian at their home address. Practical Considerations When exercising S28 powers, police must contact social work to ascertain the most suitable place to take the child. In practice, the Area Control Room will telephone the relevant Local Authority (social work department) and ask them to identify a suitable place of safety to which the child may be taken. This may be the child's home address or alternatively, in appropriate circumstances, could be the address of a different family member or friend. 5 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA This will be treated on a case by case basis considering nature of the incident the child has just been involved in, and the potential effect of any trauma the child could be experiencing as a result of their harmful behaviour. What is a Place of Safety ACRA lists the following premises as suitable venues to be utilised as places of safety, remembered by the acronym DR CHOP. D. Dwelling. The dwelling-house of a suitable person who is willing to care for the child. This will most commonly be the child's home address but could alternatively be the home of a suitable family member or friend. R. Residential – A residential establishment, for whatever purpose, provided by a local authority. C. Community Home – An establishment, with or without accommodation, provided by a local authority for the care of a child. H. Hospital - A hospital or surgery, where the management is willing temporarily to receive the child O. Other - Any other suitable place, the occupier of which is so willing P. Police - A police station Note:- A police station may only be used as a place of safety when an officer of the rank of Inspector or above considers that it is not reasonably practicable to keep the child elsewhere and should only be used as a last resort (where no alternatives are available). If there is any delay by the Local Authority identifying a Place of Safety or carrying out the necessary checks for suitability, the child should be taken to a police station as an interim measure. A child taken to a police office as a place of safety must be held temporarily in a suitable, safe part of the police building designated 6 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA for use as place of safety. The child will be moved from a police office as soon as a more appropriate alternative venue can be found. The child should not be taken into the custody area of the police station for any reason unless, due to their continuing unruly behaviour, it is necessary to place the child in a cell. Note:- Rooms within police stations designated as a place of safety will always be out-with the cells complex. Questioning of children Under ACRA ACRA provides police powers relating to the questioning of a child who is believed to have behaved in a seriously harmful way, where this meets the threshold for an ACRA incident. Except in limited urgent circumstances, the child may only be questioned by means of an ACRA Investigative Interview. This may be conducted by agreement with the parent and the child, or via a Sheriff's Child Interview Order if consent is absent. The officer undertaking the interview must have received specialist training. Note:- A list of specialist trained officers to undertake ACRA Investigative Interviews is populated on SCOPE. Questioning of children for non-ACRA incidents Where the child’s harmful behaviour does not meet the threshold for an ACRA incident, there are no longer formal police powers to interview the child about the incident. This does not prevent officers from carrying out their duty to speak to anyone, including children, whom they come across at the scene of an incident, to establish the facts. This includes speaking to a child below the age of criminal responsibility who is later identified as the person responsible. Such a conversation may take place on an informal basis, with parental consent, as per existing local practice. 7 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Where parental consent is not forthcoming, this conversation is not permissible and officers must rely on evidence gathered by other lawful means. Please see Appendix A for the suggested form of words to protect the child’s rights Questioning of a Child in urgent cases Urgent questioning of a child aged under 12 years must be authorised by a senior officer holding the rank of Superintendent or above and may be carried out where there are reasonable grounds to suspect that the child: Has behaved in a violent or dangerous way that has caused or risked causing serious physical harm to another person; And there is a risk of loss of life if the child is not questioned immediately. This questioning must be limited to the gathering of information to prevent the loss of life. Due to the urgent nature of this type of questioning, it will likely take place at the scene of the incident, or at a police station or other suitable place shortly after the incident. The officer conducting the questioning need not have received additional training or be accompanied by a social worker. Note:- More detailed questioning about the child’s behaviour or the circumstances surrounding it will require a planned and structured ACRA Investigative Interview by trained officers. THE CHILD RETAINS THE RIGHT NOT TO ANSWER THE QUESTIONS. 8 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Example 1 E1 About 0830 hours, a member of the public was driving in Station Road and observed a violent disturbance involving boys who were making their way to the local primary school which resulted in a boy being stabbed. Police were contacted. Police attend and trace two young boys (Craig and Brian) in the middle of the road. Craig is in possession of a knife and is standing over Brian who is lying motionless on the ground. Police immediately intervene, restraining Craig and take the knife from his hand. He is agitated and screaming “I’m going to kill him”. Consider the ACRA Place of Safety Powers – Craig has acted in a seriously harmful way and is causing immediate significant harm to Brian. The Place of Safety test is met. The crime scene is secured and an investigation is to be carried out. Police take a statement from the witness. Police inform Craig that he is being taken to a Place of Safety – he says nothing. Police contact the Control Room, who telephone the ACRA contact number for the local authority, who advise Craig should be taken to their local Social Work office. Police convey Craig to the Social Work office and are directed to an interview room set aside for Craig. Police contact the Control Room, explain the circumstances, confirm that Craig has blood on his hands and you wish to use the power to take urgent samples from him under ACRA. The Control Room contact the on duty Superintendent who authorises the taking of samples. 9 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Example 1 Cont. E1 Police liaise with the Social Worker, and it is agreed that an ACRA Inter-Agency Referral Discussion (IRD) in relation to Craig will take place. The Social Worker informs Police that Craig's mum has offered to take Craig to stay with his Gran who lives 5 miles away, to address any potential community tension. Police raise a crime report, record a Child Concern Report on iVPD and lodge the knife and evidential swab as productions in line with local procedures. Officers involved submit statements to the SIO prior to termination of duty. The investigation will be progressed under the direction of the SIO, as appropriate. 10 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Example 2 E2 About 0200 hours, Jack (11 years) breaks into a local primary school by smashing a window, climbing through and entering one of the classrooms. He removes 10 iPads and places them within his rucksack. The school is overlooked by a block of flats and one of the residents hears the sound of breaking glass, followed by a security alarm sounding and contacts Police. Police attend and trace Jack in the playground of the school carrying a rucksack. Police explain to Jack the reason for their attendance at the school and ask him to provide his personal details, which he does, they ask why he is in the school grounds at 0200 hours and what is in his rucksack. Jack starts crying and refuses to answer any questions. Police inform Jack he will be searched under Section 60 of the Civic Government (Scotland) Act 1982 (stolen goods). Police recover 10 iPads from within the rucksack, all bearing labels ‘property of Lochhill Primary School’. The property is seized as productions, however, Jack can’t be arrested due to being under the age of criminal responsibility. He cannot be held criminally accountable for any crime. Consider the ACRA Criteria – as Jack does not meet this test, he cannot be subject to the other police powers under ACRA Police take Jack home under section 20 and 32 of the Police and Fire Reform (Scotland) Act 2012, due to wellbeing concerns around the circumstances of this incident He is spoken to informally in the presence of his parent/carer and admits he stole the laptops but offers no explanation why. In this case the crime report will be detected and closed and an ACRA Child Concern Report will be submitted for Jack setting out the circumstances and the concerns this raises for his wellbeing 11 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Taking Forensic Samples in Urgent Circumstances – section 69 Where the threshold for an ACRA incident is met, urgent taking of physical data and forensic samples from a child aged under 12 years may be authorised by a senior officer holding the rank of Superintendent or above, who has not previously been involved in the investigation. This emergency power only applies where it is not practicable to delay taking the data and samples while a Sheriff's Order for Forensic Data and Samples is sought, due to the risk of evidence being lost or destroyed. Note:- The emergency authorisation by a senior officer does not include the power to obtain intimate samples. These may only be taken on the authority of a Sheriff's Order for Forensic Data and Samples. All intimate medical examinations of a child must be carried out by a Forensic Physician on the authority of a Sheriff’s Order for Forensic Data and Samples Use of Force - Section 74 Officers may, if necessary, use reasonable force when exercising powers to; Remove a child to a place of safety and keep them there Interview a child under a Sheriffs interview order or by urgent questioning Obtain physical data or samples (forensic) from a child under a Sheriffs order or under urgent circumstances Search under a Sheriffs order or search under an existing statutory power which authorises reasonable force Note:- Reasonable Force may NOT be used where the interview is by Agreement When using reasonable force with children below the age of criminal responsibility, officers must: Only use it as a last resort Take all reasonable steps to seek and obtain the child’s co- operation 12 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Use no more force than is absolutely necessary and; Where practicable explain to the child why force has to be used Note:- Prior to the completion of any tour of duty, the officer must complete and submit a Use of Force Form to their Supervisor Offences - Obstruction – section 75 It is an offence if, without reasonable excuse, a person intentionally obstructs an officer or other person from; Taking a child to a place of safety and keeping them there Acting in pursuance of a Sheriffs Order under the Act Conducting ‘Urgent Questioning’ of a child Taking physical data and forensic samples where authorised under urgent circumstances It is also an offence under this section for a person, without reasonable excuse, to intentionally interfere with the police investigation of behaviour that meets the threshold for an ACRA incident. Note:- Remember, none of the foregoing offences can be committed by a child aged under 12 years. It will most commonly be committed by an older family member or associate of the child. The Act is silent on the power of arrest. These offences are punishable by a fine. Sheriffs Orders There are 3 types of Orders Search Forensic Data Interview and Samples 13 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Interview An ACRA Investigative Interview will only be considered where: The harmful behaviour meets the threshold for an ACRA incident; and The circumstances of the incident have not yet been established; and/or It is necessary to properly investigate the child’s behaviour and the circumstances surrounding it, (including whether a person other than the child has committed an offence). Where an interview of the child is necessary to properly investigate the incident and it is not possible to do this by agreement with the parent and child e.g. consent is absent, a Sheriff’s Child Interview Order is required. An Order will most commonly be required where the child or parent refuses to provide agreement for an interview. However, there are other exceptional circumstances where an application for a Sheriff’s Child Interview Order will be necessary. In practice, the application for a Sheriff’s Child Interview Order will be made by ACRA Investigative Interview trained detective officers to the Scottish Courts and Tribunals Service (SCTS). The Sheriff will examine the application and may grant or refuse the Order. If granting it, the Sheriff may choose to impose directions on the Order that must be followed during the interview. Search ACRA provides the police with the power to apply for a Sheriff’s Order for Search for the: search of the child, entry to and search of any premises, entry to and search of any vehicle, seizure of anything the constable may find on the child or in the premises or vehicle, in relation to a child aged under 12 years, who is reasonably suspected to have behaved in a way that meets the threshold for an ACRA incident. 14 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Forensic Data and Samples Police officers can apply to a Sheriff for an Order to take physical data or samples from a child who caused harm whilst aged under 12 years, but it may only be granted if the Sheriff is satisfied that there are reasonable grounds to suspect that the child has behaved in a way that meets the threshold for an ACRA incident. Where the child is aged 12 years or over, but the incident under investigation occurred while they were below the age of criminal responsibility, the child may give consent to the taking of the physical data and samples, or alternatively a Sheriff’s Order for Forensic Data and Samples may still be sought. ‘Physical data’ includes fingerprints, palm prints and photographs. ‘Samples’ includes forensic material such as hair, nail scrapings and mouth swabs. The Act creates a category of ‘intimate samples’ which may only be collected by a forensic medical professional. Intimate samples consist of pubic hair, blood, semen, urine, dental impressions, and the swabbing of the genitals or a bodily orifice other than the mouth. Summary – Key Points of Note You may NEVER arrest or charge a child under the age of criminal responsibility (i.e. under 12) You will never use criminal justice language in terms of a child under 12 (i.e. crime, offence, accused, suspect) You will not submit an SPR in terms of harmful behaviour exhibited by a child under 12, you will submit a concern iVPD to the Children’s Reporter. Any iVPD submitted will be in relation to an ACRA child concern (ACRA) rather than Youth Offender Child Concern (YO) You may continue to exercise statutory powers of search (i.e Drugs stolen property)however any item of evidence recovered will not result in a charge or arrest of the child 15 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA A child under the age of 12 will not be brought into a police custody centre, unless this course of action is authorised by an Inspector due to the child’s continued unruly behaviour. 16 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA Appendix A (Child’s name), I am (lead officer’s name). This is (second officer’s name). We are police officers. We have been told (insert nature of the harm e.g. that a window was smashed on Main Street last night). We are here to talk about this. It is our job to find out what happened and if anyone needs help You do not have to talk to us. You do not have to answer our questions. It is your choice We might write down what you say. This means we won’t forget what you tell us or get it wrong We are going to ask you some questions You don’t have to say anything. We’d like to check you know that Do you have to answer our questions? (If child’s response indicates a lack of understanding of their right to silence, explain this further prior to continuing Do you have any questions for us? (Await any response) (Child’s name), what are we here to talk about today? If no or minimal answer): Tell us about… (Insert nature of the harm e.g. how a window on Main Street was smashed last night) 17 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA For further information, use the resources shown below:- Age of Criminal Responsibility National Guidance Review: You can define what constitutes an Age of Criminal Responsibility (Scotland) Act 2019 (ACRA) Incident. You can list the urgent powers available when dealing with an ACRA Incident. You can identify the Places of Safety to which a child can be taken under section 28 and the criteria for using those power You can list the powers granted under the authorisation of a Sheriff’s Order 18 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA 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 19 Protection and Wellbeing in Our Communities OFFICIAL  OFFICIAL Unit 6 Lesson 8.3 ACRA 20 Protection and Wellbeing in Our Communities OFFICIAL