Offending by Children

Transcription

1 Offending by Children Standard Operating Procedure Notice: This document has been made available through the Police Service of Scotland Freedom of Information Publication Scheme. It should not be utilised as guidance or instruction by any police officer or employee as it may have been redacted due to legal exemptions Owning Department: Version Number: Specialist Crime Division 5.00 (Publication Scheme) Date Published: 25/05/2018 (Publication Scheme)

2 Compliance Record Equality and Human Rights Impact Assessment (EqHRIA) Date Completed / Reviewed: Information Management Compliant: Health and Safety Compliant: Publication Scheme Compliant: 01/02/2018 Yes Yes Yes Version Control Table Version History of Amendments Approval Date 1.01 Initial Approved Version 26/04/ Sec 1.2 reference to legislation. Sec 3 Definition of a child update. Sec 5.2 to 5.4 Section 5 Procedures update. Sec 7.3 Update to Scottish Children s Reporter Administration. Sec 7.4 Update to Jointly 07/08/2013 Reported Cases to Scottish Children s Reporter Admin and PF Referrals. Sec 9.1 Update to roles & responsibilities for police officers No change to document Compliance check - Fit for purpose. 31/10/ Appendix E amended to show introduction of new Vulnerable Persons Database. 25/03/ Appendix M removed. Hyperlink added to Appendix J for LAG on Offences Alleged to have been Committed 04/04/2014 by Children Sec 8.4 amended to reflect Victims and Witnesses (Scotland) Act /08/ Sec 7.4 updated to reflect information sharing process with SCRA. 08/10/ The SOP has been completely revised to comply with the legislative changes brought in by the introduction of the Criminal Justice (Scotland) Act 2016 and 23/01/2018 amendments made as part of the consultation process Nomenclature used for Crown Office changed to Crown Office & Procurator Fiscal Service (COPFS). Reminder added to Appendix D. 01/02/ Updated to reflect changes in data protection legislation 24/05/2018 (Publication Scheme) 2

3 Contents 1. Purpose 2. Introduction 3. Scottish Children s Reporter Administration 4. Children s Hearing 5. Definition of a Child 6. Investigating Officer Responsibilities 7. IVPD Concern Forms 8. First Line Manager/ Supervisor s Responsibilities 9. Concern Hub Officers & Staff 10. Custody 11. Case Management 12. Conclusion Appendices Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G List of Associated Legislation List of Associated Reference Documents Getting it Right for Every Child (GIRFEC) Police Direct Measures Lord Advocate s Guidelines Generic Younger Child Offender Flowchart Child Offending Decision Making Model (Publication Scheme) 3

4 1. Purpose 1.1 This Standard Operating Procedure (SOP) supports the Police Service of Scotland, hereafter referred to as Police Scotland; Child Protection Policy Crime Investigation Policy 1.2 The purpose of this Standard Operating Procedure (SOP) is to provide guidance on the investigation, recording, referral and reporting of offences committed by children (under 18 years of age). Whilst this SOP covers all under 18s, there are differing levels of protection depending on the age of a child. This takes account of the different stages of development through the life of a child. Those differing levels of protection are fully explained within this SOP. 1.3 This SOP has been divided into sections to provide specific guidance and support to officers and staff performing any of the functions necessary to respond when a child is suspected or accused of committing a crime. 2. Introduction 2.1 Children who come into contact with Police Officers have the right to expect that they will be treated with fairness, dignity and respect. 2.2 This approach is underpinned by Getting It Right for Every Child (GIRFEC) (See Appendix A). This has now been reinforced through the duties in the Children and Young People (Scotland) Act 2014 (hereafter referred to as the 2014 Act). The GIRFEC principles are designed to ensure that every professional/ agency involved in a child s life works to the same standards to identify the needs of that child and work together to mitigate or reduce those needs. The Police play an important role in this process, including when a child has committed an offence. It is imperative that officers identify any additional considerations for more serious offending, in particular sexual crimes. Reference should be made to the Children Protection SOP and Under Age Sexual Activity SOP (and associated guidance) for such enquiries. 2.3 The introduction of the Criminal Justice (Scotland) Act 2016 (hereafter referred to as the 2016 Act), brings significant reform to the criminal justice system, protecting the rights of suspects, whilst also equipping the police with the necessary powers to carry out their role of investigating and detecting crime. 2.4 The 2016 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 against the need to fully investigate crimes, the requirement for ethical recording of crime in line with the Scottish (Publication Scheme) 4

5 Crime Recording Standards and the needs and rights of victims. 2.5 The balance of these principles and our commitment to delivering them all is demonstrated in the commitments set out in Police Scotland s Children and Young People 2016/20 - Our Approach. 3. Scottish Children s Reporter Administration 3.1 Scottish Children s Reporter Administration (SCRA) is the statutory body responsible for the Children s Reporter service. Police Officers have certain duties to provide information as detailed below. 3.2 Section 61 of the Children s Hearing (Scotland) Act 2011, sets out the following duties and requirements; A constable has a duty to provide information to the Principal Reporter where a constable considers: (a) that 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. The constable must give the Principal Reporter all relevant information which the constable has been able to discover in relation to the child. If an officer is submitting a Standard Prosecution Report (SPR2) in respect of a child to the Procurator Fiscal, the report must be jointly submitted to the local Principal Reporter. 3.3 For the purposes of this legislation, a child is defined as under the age of 16 years or 16 & 17 years if on a Compulsory Supervision Order (CSO) or open case to SCRA. 3.4 Where a child is already subject to a CSO or has an open referral to the Children s Reporter, there is a presumption that the police will refer the offence to the Children s Reporter. The presumption does not apply in the less serious cases, however, the decision not to report a child who is subject to a CSO or has an open referral should only be done in consultation with the relevant Concern Hub. Further guidance on factors to consider regarding decision making are found in section Children s Hearings 4.1 The Children s Hearing System is the legal process in place for children and young people up to the age of 16 (or 16 & 17 years old and on a CSO). It operates according to a number of key principles contained within Children s Hearings (Scotland) Act These principles also take account of the United Nations Convention on the Rights of the Child. (Publication Scheme) 5

6 5. Definition of a Child 5.1 In relation to this SOP, a child is defined as between 8-17 years inclusive. 5.2 There are different provisions and associated duties depending on the age of the child. The terminology being used is consistent with the Criminal Justice (Scotland) Act This has been broken down into two categories as follows: Younger children - Those aged between 8-15 years of age and those aged 16 & 17 years who are subject to CSO under Section 199 of the Children s Hearings (Scotland) Act Older children - Those aged 16 & 17 years of age who are not on a CSO. 5.3 Remember: Children under 8 years of age cannot be held criminally responsible. They are classed as non-age and will not be subject of report to either the Crown Office & Procurator Fiscal Service (COPFS) or the Children s Reporter via a Standard Prosecution Report (SPR2) no matter how serious the crime or offence is. They may still be referred to the Children s Reporter on care and protection grounds through the submission of a Concern Form. 5.4 Children under 12 in Scotland cannot be prosecuted in court, no matter how serious the offence. However, those aged 8 11 years can be referred to the Children s Reporter. This will be done via an SPR2 with the same requirement to meet the sufficiency of evidence test as any other SPR2. In conjunction with the SPR2, the Concern Form will set out the wellbeing concerns about the child in the context of their alleged offending. 6. Investigating Officer Responsibilities 6.1 It is recognised that there are differing practices across the country; however, the decision making will remain the same. The following factors need to be considered when investigating a crime for a child; The seriousness and nature of the offence; The context in which the crime was committed i.e. time of day or night; The age of the child and any knowledge of their stage of development and maturity; Prior knowledge of the child or their family i.e. have they previously offended or are there previous concerns recorded on the interim Vulnerable Person Database (ivpd)? Any community concerns or ongoing issues i.e. does this form part of wider concerns or previous reports of a similar nature? Is there an adult co-accused? 6.2 The above list is not exhaustive, however, highlighted to remind Investigating Officers of the additional considerations which may influence decision-making (Publication Scheme) 6

7 on the correct course of action when dealing with a child who is the suspect or an accused. 6.3 It is also important to know the disposal options available to Investigating Officers, when dealing with children. These differ depending if it is a younger or older child, set out as follows; Younger Child 1. Police Direct Measures Warnings (verbal or written and can include Restorative Justice Warnings). 2. Referral to Partners to consider local interventions known in most areas as Early and Effective Intervention (EEI). 3. Report by SPR2 either jointly to COPFS and the Scottish Children s Reporter Administration (SCRA) or single report to SCRA (Report to both where there is an adult co-accused). Older Child 1. Recorded Police Warnings (RPWs) 2. Referral to EEI 3. Report by SPR2 to COPFS 6.4 Further information on types of warnings and EEI is shown in Appendix B. For Recorded Police Warnings also see The Use of Recorded Police Warnings and Early and Effective Intervention for 16 and 17 year olds. 6.5 The disposal option chosen must be proportionate and in line with the factors considered above at 6.1. This may also be done in consultation with supervisors and Concern Hub EEI Co-ordinators or divisional equivalent. 6.6 Lord Advocate s Guidelines - For younger children the seriousness of the offence is an important initial consideration. The Investigating Officer should refer to the Lord Advocate s Guidelines on offences alleged to have been committed by children (see Appendix C). 6.7 This guidance provides the categories of offence, which require to be jointly reported to the Procurator Fiscal and the Children s Reporter. This guidance only relates to children aged years or 16 &17 year olds on a CSO. As described in para 5.3, children aged 8-11 years can be referred to SCRA by means of an SPR For Older Children, all offences will be reported in line with the wider guidance for reporting offences committed by adults. This includes the use of the Guidance on the use of Recorded Police Warnings and Early and Effective Intervention for 16 and 17 year olds. 6.9 In situations where a child is a co-accused with an adult offender, then they should only be jointly reported if the offence falls within the Lord Advocate s Guidelines. If the offence does not fall within the guidelines the report should be sent to both COPFS and SCRA and not as a joint report. Most Crime (Publication Scheme) 7

8 Systems have the facility to send an SPR2 as either both or joint. Refer to local system guidance for relevant advice. See Section 16 of the Hate Crime SOP for specific considerations in relation to hate crimes or incidents where there is a child suspect 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. There are further factors which must be considered to make a decision about whether to arrest. The following questions may assist that decision making process: What is the purpose of arrest i.e. interview or obtaining forensic samples? Is there any history of offending behavior 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 (EEI)? Is this offence likely to go before the Court or a Children s Hearing? Are there other factors affecting the child s wellbeing in addition to the reported offending behavior? 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 the law? 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. Where appropriate, Investigating Officers must support Custody Officers to ensure the duties in the 2016 Act are fully complied with (see Criminal Justice (Scotland) Act 2016 (Arrest Process) SOP) The seriousness of the offence and the manner in which the offence will be dealt with/reported is an important factor in establishing if a younger or older child requires to be arrested under the 2016 Act and taken to a custody suite Younger Child - For a minor/low level offence where it is likely that the younger child will be dealt with by means of a warning or referral to EEI, then arresting under the 2016 Act is unlikely to be justified. Consideration of an informal discussion in the presence of a parent/guardian/carer should be given. The purpose of the discussion will be identifying their needs and how the case should be dealt with. Further information is provided at para 6.18 below If the offence falls within the Lord Advocate s Guidelines or an SPR2 is likely to be referred to SCRA and an interview is required, then it is likely that arrest will be justifiable. The arrest of the younger child is to ensure the child (Publication Scheme) 8

9 receives their right of access to a solicitor. This protection is built into the justice system to protect a child s right to a fair trial. Where sufficient evidence exists then it may not always be necessary or proportionate to arrest NB. Section 18 of the Criminal Procedure (Scotland) Act 1995 provides that the police may take, where it is considered appropriate, fingerprints, palm prints and other prints and impressions from external parts of the body from anyone who is arrested under Section 1 of the Criminal Justice (Scotland) Act Further guidance can be found in the Fingerprints SOP Older Child - Where it is likely that the older child will be dealt with by means of a RPW or referral to EEI, then careful consideration should be given as to whether arresting under the 2016 Act is justifiable or necessary. Most of the new duties in respect of older children apply to custody procedures and are explained in the Criminal Justice (Scotland) Act 2016 (Arrest Process) SOP N.B. Where there is any doubt, liaise with your supervisor and/or Concern Hub, EEI Co-ordinator or divisional equivalent for advice REMEMBER: It is crucial that the duties in the 2016 Act are considered before deciding to arrest a child. Arresting a child is a significant decision, a step only taken when it is entirely necessary to do so. Custody Staff will ask the same questions as set out in this section. It is vital that Investigating Officers consider them before deciding to arrest a child and are able to explain them on arrival at the custody suite The following must be considered: There are reasonable grounds for suspecting that the person has committed an offence, and Keeping the person in custody is necessary and proportionate for the purposes of bringing the person before a court or otherwise dealing with the person in accordance with the law Necessary and proportionate includes but is not limited to; a) Whether the person s presence is reasonably required to enable the offence to be investigated fully. b) Whether the person (if liberated) would be likely to interfere with witnesses or evidence, or otherwise obstruct the course of justice. c) The nature and seriousness of the offence REMEMBER: Section 50 of the 2016 Act states A constable must take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody. Compliance with Section 50 will be the responsibility of all officers involved from the arresting and enquiry officers to the custody officer It is important to remember that the sufficiency of evidence test beyond all reasonable doubt, is the same for children as it is for adults. (Publication Scheme) 9

10 6.11 Details Required for SPR When a child is being reported to the COPFS and/or the Children s Reporter, the Reporting Officer should provide additional information within the Remarks Section of the SPR2 to assist appropriate decision making in dealing with the offence. This will include any previous interventions and previous referrals to EEI; any relevant contextual information; i.e. was the child under the influence of drink or drugs; their attitude to the crime/offence, and any other information deemed pertinent. This will allow the Procurator Fiscal (PF) and/or the Children s Reporter to take an appropriate decision in relation to the offence Informal Discussion (Younger Children Only) The majority of younger children that offend will not require the offer of solicitor access, as their rights to a fair trial will not be engaged. If there is no likelihood that the matter will be subject to report by SPR2, (i.e. the option of a warning or referral to EEI is likely) it is possible to consider dealing with the child out with police custody, in the presence of their parent or the person who has care of them at that time. The purpose of the discussion will be identifying their needs and how the case should be dealt with, rather than focusing on the legal admissibility Where there is any doubt, liaise with your supervisor or EEI Co-ordinator or equivalent for advice It is essential that Investigating Officers inform the child and their parent/carer that the matter will be the subject of a Youth Offending (YO) Concern Report and relevant information may be shared with partner agencies. It is important that Investigating Officers inform the child and their parent/carer that the sharing of such information is to provide appropriate support, where necessary. It is also imperative that the views of the child and parent are recorded in the officers notebook and added to the YO concern report submitted. 7. IVPD/ Concern Forms 7.1 The interim Vulnerable Persons Database (ivpd) is an incident based database that allows officers to record concerns that may be a risk to a person's current or future wellbeing. Youth Offending (YO) concern reports are included on the ivpd. 7.2 Remember: In all cases of offending by children (both younger and older children) a YO Concern Report must be submitted at the time the offence is detected, i.e. do not submit a YO concern report when the child is still a suspect and there is insufficient evidence to caution and charge. The exception for this would be if there were any wellbeing concerns which require to be shared prior to there being sufficient evidence. In these circumstances a (Publication Scheme) 10

11 Child Concern Report would be required at the time, which can be updated with the YO marker and full details of the investigation if the crime is detected. 7.3 Further information on the recording of wellbeing concerns can be found via the Interim Vulnerable Persons Database, Rules, Conventions and Data Input Standards. 8. First Line Manager/ Supervisor s Responsibilities 8.1 It is essential that managers are fully aware of the responsibilities of Investigating Officers, as outlined above. In particular, attention is drawn to the following: The need to consider if the Presumption of Liberty Test has been met before a child is arrested either as Not Officially Accused or Officially Accused (see para 6.17 above); Criminal Justice (Scotland) Act 2016 (Arrest Process) SOP. Ensure that Crime Reports are fully completed with appropriate local crime management procedures followed; Concern Reports are completed and submitted to the relevant Concern Hub. 9. Concern Hub Officers & Staff 9.1 The role of Concern Hub staff does not differ for offending by children. First and foremost their role is to consider the needs of the child in the context of the wellbeing information supplied in the Concern Report. This, as with all Concern Reports, is carried out through: 1. Triage 2. Research 3. Assessment 9.2 The following points should be considered by Hub staff when forming their assessment about the needs of the child: The nature of the offence i.e. is the matter less serious or has the child been held in custody to appear at court for a more serious offence; Lord Advocate s Guidelines on Offences Alleged to have been Committed by Children; Frequency of Offending; Previous interventions/outcome; Level of engagement from the child and their parent/guardian; The nature of the child s actions; o premeditated or impulsive act; (Publication Scheme) 11

12 o weapon used; o acting alone or with others; o part of a pattern of behaviour and any other aggravating or minimising factors; o their response/reaction to their offending e.g. remorseful, belligerent, minimising, etc. and o for serious sexual and violent offending it is essential that Concern Hub Staff follow the guidance in the Framework for Risk Assessment Management and Evaluation (FRAME) 9.3 The above list is not exhaustive and the full circumstances of each child must be considered. Research and assessment will thereafter follow the same criteria and considerations as any other wellbeing concern. 10. Custody 10.1 For further guidance custody staff should see the Children s Section of the Criminal Justice (Scotland) Act 2016 (Arrest Process) SOP. 11. Case Management 11.1 Case Management staff will continue to follow local practice consistent with the existing IT support relevant to their specific Division. The following Standard Operating Procedures are also relevant in relation to national policy and guidance: Crime Recording SOP Case Reporting SOP Criminal Justice (Scotland) Act 2016 (Arrest Process) SOP 12. Conclusion 12.1 For further advice and assistance, please contact the Children and Young People Business Area, Safer Communities SCD.ChildrenandYoungPeopleBusiness@scotland.pnn.police.uk (Publication Scheme) 12

13 Appendix A List of Associated Legislation Criminal Justice (Scotland) Act 2016 Children & Young People (Scotland) Act 2014 Children s Hearings (Scotland) Act 2011 Protection of Children (Scotland) Act 2003 Anti-Social Behaviour etc. (Scotland) Act 2004 Human Rights Act 1998 Disability Discrimination Act 1995 The Race Relations (Amendment) Act 2000 The Equality Act 2010 The Data Protection Act 2018 The Freedom of Information (Scotland) Act 2002 Victims and Witnesses (Scotland) Act 2014 (Publication Scheme) 13

14 Appendix B List of Associated Reference Documents Policy Child Protection Policy Crime Investigation Policy Standard Operating Procedures Child Protection SOP Fingerprints SOP Crime Recording SOP Case Reporting SOP Under Age Sexual Activity SOP Criminal Justice (Scotland) Act 2016 (Arrest Process) SOP Guidance A Guide to Getting It Right for Every Child (GIRFEC) Interim Vulnerable Persons Database, Rules, Conventions and Data Input Standards Early and Effective Intervention - Framework of Core Elements Guidance on the Retention of Forensic Data from Children's Hearings Lord Advocate's Guidelines On Offences Alleged To Have Been Committed By Children The Use of Recorded Police Warnings and Early and Effective Intervention for 16 and 17 year olds Preventing Offending - Getting it right for children and young people Memorandum of Understanding between the Scottish Children s Reporter Administration and the Police Service of Scotland on the Child Concern Report Submission Process Children and Young People 2016/20 - Our Approach Framework for Risk Assessment Management and Evaluation (FRAME) Joint Agreement in Relation to the Cases of Children Jointly Reported to the Procurator Fiscal and Children s Reporter (Publication Scheme) 14

15 Appendix C Getting it Right for Every Child (GIRFEC) Wellbeing GIRFEC identifies key areas of wellbeing to be considered when dealing with a Child (known as SHANARRI indicators. Safe; Healthy; Achieving; Nurtured; Active; Respected; Responsible and Included). It is essential that these wellbeing indicators are fully considered in all interactions that the enquiry officer has with a child offender, their family and partner agencies. The eight wellbeing indicators are: Safe - Protected from abuse, neglect or harm at home, at school and in the community; Healthy - Having the highest attainable standards of physical and mental health, access to suitable healthcare and support in learning to make healthy, safe choices; Achieving - Being supported and guided in learning and in the development of skills, confidence and self-esteem, at home, in school and in the community; Nurtured - Having a nurturing place to live in a family setting, with additional help if needed, or, where possible, in a suitable care setting; Active - Having opportunities to take part in activities such as play, recreation and sport, which contribute to healthy growth and development, at home, in school and in the community; Respected - Having the opportunity, along with carers, to be heard and involved in decisions that affect them; Responsible - Having opportunities and encouragement to play active and responsible roles at home, in school and in the community, and where necessary, having appropriate guidance and supervision, and being involved in decisions that affect them; Included - Having help to overcome social, educational, physical and economic inequalities, and being accepted as part of the community in which they live and learn. (Publication Scheme) 15

16 Appendix D Police Direct Measures Younger Children - It is recognised that the manner in which warnings are given differs across the country to ensure that Police Scotland continue to support local partnerships. It is vital that this practice continues to ensure a local response in the context of the different communities and partnerships which exist across the country. At the heart of this is discretion. It is essential that Investigating Officers and Concern Hub staff are empowered to make decisions about the most proportionate and effective response to the child s offending which considers their needs. The Scottish Crime Recording System (SCRS) makes provision for the use of a formal warning where a child has committed a minor crime/offence. It is equally essential that the needs of victims are considered and their voice is considered in the context of warnings for children who offend. This can be achieved by ensuring that the following key principles are present in all local practice. A warning: is a formal recordable verbal/written warning given to a child by police for low level/minor crimes or offences. A minor crime/offence has not been defined to allow Investigating Officers the ability to use their discretion in determining if the offence, the child who has committed it and the circumstances in which the offence has been committed are suitable for this, most minimal form, of intervention. It is essential that local guidance is followed in this regard; may still be issued when a child does not accept responsibility for the offence. This will be a discretionary decision based on the circumstances of the case and consistent with any agreed local process and practice; will not be issued if significant harm has been caused to an individual or community, including economic harm; will not be issued if the offence forms part of persistent or alarming conduct which makes individuals fearful for their safety; will not be issued if the offence involves a major disturbance; will not be issued if the offence involves conduct related to or involving an aggravation (e.g. racial, religious, domestic, football, sexual, breach of a court order, etc.); will be possible on more than one occasion, however, the Investigating Officer must have a clear rationale for the issue of further warnings which must be explained in the associated Concern Report. Again, this must be consistent with any local process and practice; should not be confused with an informal warning given by officers, at the scene, for minor antisocial behaviour which does not need to be formally recorded on the Criminal History System; (Publication Scheme) 16

17 will only be issued if there is a sufficiency of evidence to record the child as an accused on the crime report before the warning is administered; should be given in a restorative manner, focusing on the impact of the offence and future consequences of continued offending. Only officers appropriately trained can carry out a full Restorative Justice Warning (see below). Police Restorative Warnings: Police Restorative Warnings and Conferences are part of a wider range of preventative, diversionary and more intensive youth justice measures designed to prevent, address and reduce offending behaviour amongst children. A 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 the opportunity to be informed of the outcome. The decision to apply this measure will be made by the Concern Hub and the information shared lawfully with relevant partners via the EEI Co-ordinator or equivalent, consistent with local processes and practice. See the Scottish Government Guidance for the Delivery of Restorative Justice in Scotland. 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. All Restorative Warnings must be recorded on the relevant crime system and victims should be updated on the action taken. Signed paper copies of Restorative Warnings must be filed locally in line with local retention procedures. Referral to Partners Early and Effective Intervention: As a general rule, where an offence is not suitable for a warning, however, does not meet the test for report by SPR2, such cases will be referred to local partners for consideration of interventions. As previously stated, in most parts of the country this is referred to as Early and Effective Intervention (EEI). In all Divisions this is facilitated and managed through the Concern Hub, using the information provided on the Concern Report. The greater the level of detail about the needs of the child, the more informed the decisions of the Concern Hub staff will be and the better our collective ability to refer the child to services which best meet their needs. It is therefore essential that officers follow both national and local guidance in relation to the submission of Concern Reports and provide as much detail as possible to best support the child. N.B. Remember the above guidance only applies to Younger Children. For Older Children the Use of Recorded Police Warnings and Early and Effective Intervention for 16 and 17 Year old guidance must be followed. (Publication Scheme) 17

18 Appendix E Lord Advocate s Guidelines to the Chief Constable on the Reporting to Procurator Fiscal of Offences Alleged to have been committed by Children Revised Categories of Offence which require to be Jointly Reported This document contains guidance to police officers in Scotland on the categories of offence which require to be jointly reported to the Procurator Fiscal and the Children s Reporter. Children under the age of twelve years will, from the commencement of Section 52 of the Criminal Justice and Licensing (Scotland) Act 2010, no longer be liable to prosecution in respect of any alleged criminal conduct and will therefore not be jointly reported to the Procurator Fiscal. Category 1 Offences which require by law to be prosecuted on indictment or which are so serious as normally to give rise to solemn proceedings on the instructions of the Lord Advocate in the public interest. Category 2 Offences alleged to have been committed by children aged 15 years or over which in the event of conviction oblige or permit a court to order disqualification from driving. Category 3 Offences alleged to have been committed by people who are aged 16 or 17, and who are classified as children by section 199 of the Children s Hearings (Scotland) Act In terms of section 199 of the Children s Hearings (Scotland) Act 2011, the definition of a child includes: A person aged 16 and 17 years who is subject to a compulsory supervision order; or A person over the age of 16 years who was referred to the Principal Reporter before they turned 16, but a relevant event has not yet occurred. A relevant event is defined as being: i. The making of a compulsory order; ii. The notification to the person that the question of whether a compulsory supervisions order should be made will not be referred to a children s hearing or iii. The discharge of the referral to the Principal Reporter. However, there is no requirement to jointly report the child to the Procurator Fiscal and the Children s Reporter if the offence falls within the Framework on the use of (Publication Scheme) 18

19 Police Direct Measures and Early and Effective Intervention for 16 and 17 year olds. Such offences should be submitted to the Children's Reporter alone. Explanatory Notes Category 1 Offences which require by law to be prosecuted on indictment These offences fall under two heads 1. Common law offences which are within the exclusive jurisdiction of the High Court of Justiciary namely treason, murder and rape; 2. Statutory offences for which the statute only makes provision for prosecution on indictment or for a penalty on conviction on indictment - for example, contraventions of the: Firearms Act 1968, Section 16, 17(1) and (2), and 18(1), Road Traffic Act 1988, Section 1, Criminal Law (Consolidation) (Scotland) Act 1995 Section 5(1), and Sexual Offences (Scotland) Act 2009, Section 1, 2, 18 and 19. Offences Which Normally Give Rise to Solemn Proceedings Offences which may be prosecuted on indictment on the instructions of the Lord Advocate in the public interest is a wider category of offences, which often depends on the facts and circumstances of a particular case. Early discussion with the local Procurator Fiscal is advised where there is any doubt. Some common areas of offending which may fall to be considered under this heading are: 1) Offences which are normally indicted in the High Court of Justiciary these are offences of culpable homicide, attempted murder, assault to the danger of life, assault and robbery involving the use of firearms, attempted rape, incest and related offences (contrary to the Criminal Law (Consolidation) (Scotland) Act 1995 Sections 1-2). This category also includes sodomy and contraventions of section 3 of Criminal Law Consolidation (Scotland) Act 1995 (intercourse with a child under 16 by a person in a position of trust) where the offence occurred on a date prior to 1 December ) Other offences which may fall into this category as being those normally prosecuted on indictment are assault to severe injury or permanent disfigurement, assault with intent to rape, serious assault and robbery (in particular involving the use of weapons other than firearms), assault with intent to rob involving the use of firearms, fire-raising and malicious mischief causing or likely to cause great damage to property or danger to life, all Misuse of Drugs Act 1971 offences involving possession of Class A drugs and being concerned in the supply of any controlled drugs. 3) The following Sections of the Sexual Offences (Scotland) Act 2009 contains offences that can be prosecuted on indictment: (Publication Scheme) 19

20 Sections 3, 4, 5, 6, 7, 8, 9 and 11 - offences capable of being committed against adults (aged over 16) and younger (aged under 13) and older (Aged 13, 14 and 15) children who do not consent to the conduct. Sections 20, 21, 22, 23, 24, 25 and 26, - offences capable of being committed against a younger child (aged under 13) who consents to the conduct. Sections 28, 29, 30, 31, 32, 33, 34, 35 and 36 offences only capable of being committed by a person who has attained the age of 16 against an older child (aged 13, 14 or 15) who consents to the conduct. These offences should only be considered for joint reporting where the offence has been committed by a child aged 16 or 17 who is subject to a supervision order or where a relevant event has not yet occurred. Section 37 offences involving older children engaging in sexual conduct with each other. See paragraph (4) below. Offending behaviour which is covered by any of the aforementioned offences may fall to be jointly reported for consideration. The facts and circumstances of the offence are therefore vitally important when considering whether the offence is so serious in its nature as to merit being prosecuted on indictment. Where there is any doubt at all that the offence may fall into this category, contact is to be made with the local Area Sexual Offences Team to discuss the facts of the particular case, either by telephone or by submission of an occurrence report for advice & direction prior to submitting a full report. 4) Section 37 of the Sexual Offences (Scotland) Act 2009 creates the offence of older children engaging in sexual conduct with one another. This is not an offence which requires by law to be prosecuted on indictment but it may, depending on the facts and circumstances, be so prosecuted. When considering whether to report jointly allegations which are covered by this Section, officers should pay regard to the following indicators: Age of the parties involved; Any power imbalance between the parties, for whatever reason; Overt aggression, manipulation, coercion or bribery; misuse of substances as a disinhibitor, especially where this is at the instigation of the more dominant party; Whether the child s own behaviour, because of the misuse of substances, places him/her at risk so that he/she is unable to make an informed choice about any activity; Whether any attempts to secure secrecy have been made by the dominant party beyond what would be considered usual in a teenage relationship; Whether the either party is known to one of the agencies; Whether the parties deny, minimise or accept concerns; Whether the evidence is suggestive of grooming. This is not an exhaustive list. Where, however, elements in this list or other circumstances are present which indicate that a young person may not have given free agreement to the activity concerned the matter should be jointly reported. (Publication Scheme) 20

21 It should be re-emphasised that only offences which are normally prosecuted on indictment are to be reported jointly and that any cases of doubt should be discussed with the local Procurator Fiscal in advance of any report being submitted. Category 2 This category applies exclusively to children aged 15 years or over. Children will be prosecuted for this type of offence only if the Procurator Fiscal considers that it would be in the public interest to obtain a disqualification which would still be in force when the child became 16 and that in the event of conviction it was likely that the court would impose such a disqualification. Minor Road Traffic Act offences carrying a liability to discretionary disqualification should not normally be reported. Category 3 There is no restriction on the forum for the prosecution of children of or over 16 years of age who can be proceeded against in the Justice of the Peace Court. However, where the child is 16 or 17 years old and subject to a supervision order (or a relevant event has not yet occurred) and the offence alleged to have been committed falls within the Framework on the use of Police Direct Measures and Early and Effective Intervention for 16 and 17 year olds then there is no requirement for the case to be jointly reported. Such cases may be reported directly to the Children s Reporter. Frank Mulholland, QC March 2014 (Publication Scheme) 21

22 Appendix F Generic Younger Child Offender Flowchart Consider: Seriousness of Crime Context (i.e. time of night, etc.) Age of Child (maturity) Prior Knowledge (of child or family) Community Concerns or Ongoing Issues Likely to be dealt with by warnings, EEI, etc.? YES NO Likely to be subject of report to SCRA or PF? YES Consider arrest OA/NOA and follow custody procedures Meet Test for Arrest-(S14 CJ Act 2016)? NO NO Sufficiency of Evidence? YES Sufficiency of Evidence? Arrest NOA Offence meets LAG 3? Forensic samples required? YES Caution and Charge in presence of a parent 1 at a suitable location NO Discussion 2 in presence of a parent at a suitable location In presence of a parent- PIRoS procedure, interview and caution and charge if sufficient evidence YES Consider Arrest OA NO Caution and charge in presence of a parent at home Submit Youth Offending concern report 4 highlighting wellbeing concerns related to offending behaviour to local Youth Justice/EEI Coordinator (or divisional equivalent) for suitable disposal Sufficiency of evidence? Caution and charge 1 in presence of a parent Meets LAG- Joint report to PF/SCRA Not LAG- Report to both (PF for adult/scra for child) Adult Co-Accused? YES NO Meets LAG- Joint report to PF/SCRA Not LAG- Report to SCRA only 1. See local divisional procedures for issuing formal child warning 2. An interview at home CANNOT be used for evidential purposes (i.e. SPR2 to either PF or SCRA) - this should be considered at the early stages of your investigation and during the decision making process 3. LAG- Lord Version Advocates 5.00 Guidelines for the Chief Constable to report to the PF of offences alleged to have been committed by children (see appendix C) 4. Only once (Publication a suspect has Scheme) been cautioned and charged or formally warned can a youth offending IVPD be submitted- if insufficient evidence to charge 22 a suspect consider submitting a child concern report if circumstances merit one (e.g. identified wellbeing concerns during your investigation)

23 Appendix G Child Offending Decision Making Model Gathering Information & Intelligence Crime Sufficiency of Evidence Age Check ivpd, CHS/PNC Lord Advocates Guidelines Take Action & Review Caution and Charge Concern Report Crime Report Warning Refer to EEI SPR2 (outcomes) Code of Ethics, Integrity, Fairness, Respect & Human Rights GIRFEC Assess Threat & Risk & Develop Strategy Response of Child to crime Response of Parent/guardian to Crime Concerns Vulnerability Background Information Identify Options & Contingencies Formal Police Warning Restorative Justice Warning EEI Report to SCRA Joint Report COPFS/SCRA Adult co-accused Consider Powers & Policy Lord Advocates Guidelines Arrest Detention Parent/Guardian Solicitor Access (Publication Scheme) 23