Chamber and committees

Yes, but that is because of the differences in the settings.

Yes, I have a little left.

Remittal in that case would not affect the non-harassment order, which will remain in place—for example, a breach of a non-harassment order would still be a criminal offence that would be dealt with by the court.

I am sorry—I repeated myself there.

On amendment 90, the committee will be familiar with the bill’s remittal framework concerning road traffic offences. Driving disqualifications can occur when a person accumulates 12 or more penalty points on their licence within three years—the so-called totting-up provision in section 35 of the Road Traffic Offenders Act 1988—and the amendment will extend the court’s ability so that it can impose a totting-up disqualification and still remit the case to the children’s hearing for disposal if that is felt to be appropriate.

I urge members not to press amendments 85, 86, 87, 88 and 206. If they are pressed, I urge the committee not to support them. I will move amendment 89 and the other Government amendments in the group, and I ask members to support them.

Yes, absolutely. We have been committed to exploring and consulting on the matter further, and, as I said, we considered that in relation to the children’s hearings redesign report, too.

I would rather take interventions at the end.

Amendments 195 to 197 are also an ill fit for the criminal setting, because the courts, unlike the children’s hearings, will not be dealing with the prosecution of children under the age of criminal responsibility. Therefore, it is not necessary for there to be presumptions regarding their capacity to give a view in such situations. Furthermore, under article 12 of the UNCRC, a child has the right to express their view freely and must be provided with the opportunity to provide their view in any judicial proceedings. The court is required to act compatibly with ECHR and UNCRC.

The intention behind amendments 193 to 197 is already realised via existing legislation or the application of internal obligations. On that basis, I am opposed to those amendments.

Amendments 198 to 202 roll back the flexibility afforded to the court in section 14 of the bill to decide, on a case-by-case basis, whether it is appropriate to sit in a different building, to sit on a different day or to put in place closed-court measures. Those amendments would require the court to do those things on a blanket basis.

We have discussed the proposals with criminal justice agencies, and there would appear to be various issues with those. First, the amendments place duties on courts with limited or no flexibility or discretion, so they are unduly prescriptive. There is a risk that the amendments would interfere with the court’s powers to consider each case in an appropriate and rights-compliant way, given potential rights considerations of all parties, including the adult co-accused, thereby potentially interfering with judicial independence.

Secondly, the changes have not been fully consulted on with the Scottish Courts and Tribunals Service or the judiciary—the very agencies that the changes would affect. However, based on contact with SCTS, including its response to the consultation on the bill and that of the Summary Sheriffs Association, it is unlikely to be supportive. We must be careful that we do not encroach on the independence of the judiciary and that we do not constrain its discretion. The courts are best placed to make case-by-case decisions, and the amendments appear to overstep their responsibility and expertise in that domain.

The amendments would have corresponding resource implications. They could result in delays in a child’s case being progressed if, for example, a case could be held only on different days from cases in other courts in that building. That would have implications not just for the accused but for the victims and witnesses.

The amendments would have serious implications for a court’s programming and for capacity more broadly, thereby impacting more widely than just on cases involving a child accused. The changes would be challenging, if not impossible, to implement in each court, particularly in smaller courts that have only one court room available, or where there is only one sheriff who already has criminal business set down for the day. The SCTS clearly expressed those concerns in its consultation response, and it has reiterated them to my officials in respect of those amendments.

Although some of the proposed amendments are already requirements in certain cases, they would present particular challenges in respect of solemn proceedings. Additional considerations in those cases, such as the need for juries and the fact that a limited number of buildings in Scotland are set up to accommodate jury trials, as well as the requirements for police presence, access to cells and holding areas before or after court appearances, would inherently limit where those cases could take place.

There would also be challenges where, for example, a child was in custody and the timescales prescribed in legislation would require the case to call on a particular date or before the expiry of a particular period. If other court business was already scheduled and required to happen on that particular date, and if the child’s case could not take place in the same building or on the same day as other court business and no other appropriate facilities were available, the courts would need to decide which case should take place, in the knowledge that doing so would mean that legislative requirements would not be met. That could be a particular issue in smaller or more remote courts. The amendments would also seem to apply to every court hearing, from the first calling until the case concludes, which would only compound the challenges further.

Amendments 200 and 203 are problematic for a number of reasons. Those include that, in this context, the rights of the co-accused would appear to be given less weight than those of the child. In human rights law, a right does not require “serious” interference in order to be infringed, so the amendments would, arguably, distort existing legal protections. In contrast to section 14 of the bill, the amendments would unduly constrain the court’s discretion to make decisions case by case, in line with its duties under the Human Rights Act 1998 to do all of that in a rights-compliant way. Given those risks, I cannot support those amendments.

Amendment 204 would insert a new subsection into section 305 of the Criminal Procedure (Scotland) Act 1995 to expressly provide that the High Court may, by act of adjournal, also make

“provision ... for the purpose of ensuring that criminal proceedings involving a child are concluded in a way that accords with the needs of the child.”

Again, although I understand the intent behind the amendment, that raises a number of issues. The judiciary has not been consulted on the matter, and the High Court is responsible for making acts of adjournal. Amendments to court conduct, practices and processes in respect of children can already be made, informed by a combination of existing legislation, practice notes, court rules and procedure and guidance. Those considerations and amendments for children at court, by virtue of their age, are in addition to other supports that may be provided owing to a child’s vulnerabilities.

On amendment 205, last week, the committee discussed a similar amendment concerning referrals in the children’s hearings system. In those circumstances, I agreed to discuss further with the member the definitions that are contained in that amendment. I reiterate that I fully agree with the member on the fundamental principle of ensuring appropriate and timely access to support services in cases of domestic abuse. However, I would not support amendment 205. First, I do not think that what it sets out is an appropriate responsibility for the court. It would not seem to be a role of a judge or sheriff, or of the Scottish Courts and Tribunals Service, whose function is to provide administrative support to our courts and tribunals and to the judiciary. The number of children that the amendment would cover could also be significant.

I talked earlier about appropriate and timely access to support services in cases of domestic abuse. With that in mind, I refer to the victim information and advice service, which the Crown Office and Procurator Fiscal Service already provides in criminal court cases. When a case is received, the COPFS will consider it and can refer any victims who should receive extra support to victim information and advice services, including any child victim or victim of domestic abuse. It can, in such cases, already put the child in touch with other services that offer practical and emotional support. It would be for the individual to decide whether they wished to access that support.

Of course. I am happy to.

For those children who are detained under section 205, which is punishment for murder, and section 208, which is conviction on indictment, of the Criminal Procedures (Scotland) Act 1995, the Scottish ministers already have powers to direct the place and conditions of detention, although those powers will be subject to new section 208A, as inserted by section 17 of the bill, which provides that children may not be detained in a prison or a young offenders institution.

In respect of amendments 99 and 101, when a child is convicted and sentenced under solemn proceedings, under sections 205 and 208 of the 1995 act, the Scottish ministers direct where the child is to be detained. Under the provisions of the bill, children under the age of 18 will no longer be placed in a young offenders institution in any circumstances. As I have already noted, that change is essential for Scotland to keep the Promise.

Amendments 99 and 101 clarify that, although Scottish ministers cannot direct that a person while a child is detained in a prison or a young offenders institution, on turning 18 a person can be transferred from secure accommodation to a YOI, should they not remain in secure until the maximum age of 19, and, in due course, they can be transferred to a prison.

Amendment 116 clarifies the early release provisions that apply to certain children convicted on indictment and sentenced to detention under section 208 of the 1995 act. It amends section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. The amendment is of a technical nature, rather than substantive. It ensures that children who are detained under section 208 of the 1995 act will be subject to the same early release provisions if they are then sentenced, while so detained, to a determinate term of detention or imprisonment of four or more years and, by virtue of section 27(5) of the 1993 act, such terms of detention or imprisonment are treated as a single term.

Amendment 115 is consequential on paragraph 7(3) of the schedule to the bill, which amends section 245A of the 1995 act to enable a restriction of liberty order—or RLO—to be made in respect of any child aged under 18, rather than under 16, as is currently the case. A local authority must provide supervision of, and advice, guidance and assistance for, a child during the period when a child is subject to an RLO. The amendment means that the relevant local authority must provide such support to any child aged under 18 who is subject to an RLO, as currently that duty applies only to children aged under 16.

Amendment 117 is consequential and removes from the schedule to the bill paragraph 12, which is no longer required because the change that is made by amendment 116 removes the reference to remand centres, which paragraph 12 seeks to repeal. There are no such facilities in Scotland and no plans to reintroduce them, as doing so would be inconsistent with the Promise.

Amendment 118 makes minor consequential amendments to local authorities’ duties in relation to children who have been detained under the Criminal Procedure (Scotland) Act 1995. The amendment is in consequence of part 2 of the bill and is important in ensuring that there is effective oversight of the discharge of local authorities’ duties to children who are detained by the different criminal justice routes. Such oversight is important, given the particular needs, risks and vulnerabilities that those children are likely to have experienced and the significant impact that being detained has for those children and their rights.

Local authorities have key duties towards those children. The amendment to section 5 of the Social Work (Scotland) Act 1968 ensures that Scottish ministers have the powers to issue directions to local authorities, not just for the children and young people who have been detained under section 51 of the 1995 act while awaiting trial or sentence, but for those children and young people who have been detained in summary proceedings under section 44 or detained for default on a fine under section 216 of the 1995 act. That important change ensures that such directions can be provided consistently in order to cover all the criminal justice routes through which a child may be detained.

The amendment to the Public Services Reform (Scotland) Act 2010 removes the existing definition of social work services, which is unnecessary due to other changes in the bill. The number of children who are subject to an RLO is relatively low at any one time, but, from April 2022 to March 2023, there were 43 new RLOs for under-18s. None of those were for children who were under the age of 16, and 83 per cent of the orders that were made were for those who were 17 years old at the order start date. Only 17 per cent were aged 16 on the order start date. Although that may have some financial implications for local authorities, that is likely to be minimal, given the small number of children who are being made subject to those orders. I note that, owing to other changes in the bill, the demand that is placed by children on justice social work is likely to reduce. However, owing to the funding structures of justice social work, no transfer of those savings is possible at this time.

I invite members to support amendment 99 and all the other amendments in the group.

I move amendment 99.

Amendment 99 agreed to.

Amendment 100 not moved.

Amendment 101 moved—[Natalie Don]—and agreed to.

Amendments 102 to 104 not moved.

Section 17, as amended, agreed to.

After section 17

My amendment 105 aims to ensure that children and young people with a mental disorder who have been convicted on indictment and sentenced to detention are provided with the most appropriate level of care and treatment at the right time.

Currently, although a court can make a hospital direction in respect of some 16 and 17-year-olds—those who are not subject to a compulsory supervision order—a court cannot make a hospital direction in respect of a child who is under the age of 16 or someone who is aged between 16 and 18 years old who is subject to a CSO. The Scottish Government considers that that issue should be addressed, given the clear benefits to the child of going straight to hospital for mental health care and treatment as opposed to their being transferred to a hospital from another detention setting. Hospital directions are very rarely used for 16 to 17-year-olds. However, ensuring that they may be applied for in exceptional, defined circumstances for children is both desirable and necessary.

The inception of specialised facilities at Foxgrove, which is the first medium-secure national secure adolescent in-patient service in Scotland, changes the backdrop of how the complex mental health needs of children and young people are met in Scotland. The opening of Foxgrove later this year means that there will be age-appropriate forensic mental health provision for adolescents in Scotland, including those who are subject to hospital directions.

Amendment 105 makes no change to the nature of hospital directions or to the conditions that must be satisfied for them to be applied, other than by making them available to all children with a mental disorder aged 12 to 17 who are convicted on indictment and sentenced to detention.

Although I understand the intention behind Martin Whitfield’s amendments 207 to 209, I do not support them.

Amendment 207 would place a duty on the Scottish ministers to promote the use of alternatives to the detention of children who are convicted of an offence and to report annually on the steps taken to achieve that. It is not entirely clear whether that is a general duty to promote alternatives to detention or whether Mr Whitfield wants ministers to promote alternatives in specific cases of individual children who have been convicted of an offence. If the amendment is intended to be general, which we assume to be the case, there is already provision in that regard. If the amendment is intended to be specific to an individual case, that would undermine the independence of the judiciary, and I am sure that Mr Whitfield does not intend that.

Except in respect of punishment for murder, the decision to deprive a child of their liberty on conviction is an independent decision of the courts. In doing so, the court is required to comply with the ECHR. For children convicted on indictment under section 208 of the 1995 act, there is a presumption against detention, ensuring that the court can impose a period of detention only if it considers that no other method of dealing with the individual is appropriate.

For those children convicted summarily under section 44 of the 1995 act, the court may order that the child be detained in residential accommodation for a period not exceeding one year. A presumption against detention is set out in guidance, including that published by the Scottish ministers. That is in line with the UNCRC, which says that deprivation of a child’s liberty should be

“used only as a measure of last resort and for the shortest appropriate period of time”.

Indeed, the use of alternatives to deprivation of liberty for children is a cornerstone of the Scottish Government’s whole-system approach, in which alternatives to detention are already promoted. In practice, local authorities have available to them a range of alternatives to depriving a child of their liberty that they can put to the court as options instead of detention.

The Scottish Government’s vision for youth justice and the standards for those working with children in conflict with the law, which were both published in 2011, represent a foundation shared between the Scottish Government and partners to continue to support an approach that keeps children out of the criminal justice system and promotes the use of alternatives to detention. Data on the use of alternatives to detention for under-21s is published annually on the criminal proceedings in Scotland statistics page of the Scottish Government’s website.

On amendment 208, restorative justice is a voluntary supported process of contact between someone who has been harmed and the person who has caused that harm. Both parties can withdraw consent at any time.

Section 5 of the Victims and Witnesses (Scotland) Act 2014 already gives Scottish ministers powers to issue guidance about the provision of restorative justice services. Guidance, which is aimed at service providers and facilitators, was published in 2017. It outlines the key principles of restorative justice to ensure that, where restorative justice processes are available, they are delivered in a coherent, consistent and victim-focused manner across Scotland. That approach includes children who are the victim or the alleged perpetrator.

In addition, the Restorative Justice (Prescribed Persons) (Scotland) Order 2021 was made under the 2014 act and provides a list of prescribed persons who must have regard to the guidance. The list includes

“the Scottish Ministers ... a local authority”

and

“any person who provides restorative justice services”.

The Scottish Government is committed to ensuring that restorative justice services are available across Scotland, with the needs and voices of persons harmed being central to the process. Such services must be available at a time that is appropriate to the people and the cases that are involved, and they must be consistent, evidence led, trauma informed and of a high standard.

The Scottish Government has been working in partnership with Community Justice Scotland and the Children and Young People’s Centre for Justice to deliver on that commitment. Information about restorative justice and the work that is being undertaken to achieve the vision is already published on the Community Justice Scotland website, which provides a means of reporting. In addition, the Scottish Government has committed to exploring or consulting on the recommendations in respect of restorative justice in the “Hearings for Children” report.

On amendment 209, measures in the bill already aim to enhance the rehabilitation and reintegration of children by ensuring that they can, when required, access age and stage-appropriate welfare-based systems, supports and services—namely, the children’s hearings system and secure accommodation. They also enhance the safeguards that are available to children who need to go through the criminal justice system, including in respect of reporting restrictions.

Section 21 includes provisions to ensure that those detained in secure accommodation are treated as looked after for the purposes of sections 29, 30 and 31 of the Children (Scotland) Act 1995, and those provisions include aftercare up to the age of 19—and 26 in certain circumstances—to aid a child’s transition to adulthood.

As is detailed in the bill’s policy memorandum, the “Sentencing young people” guideline states:

“Rehabilitation is a primary consideration when sentencing a young person.”

That is in line with article 40 of the UNCRC, which provides that all children under 18 who have been accused of committing a crime have the right

“to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”

The rehabilitation and reintegration of children who have committed an offence is already a key tenet of the Scottish Government’s whole-system approach to preventing offending by children and young people. A package of support should be detailed in a child’s plan to help them to successfully integrate back into their community, and that is incorporated into the standards for those working with children in conflict with the law. Adding a duty for the Scottish ministers to report on something that is led by local authorities does not appear to fit with the role that the Scottish ministers play.

In summary, therefore, I cannot support the other amendments in this group and ask members not to move them.

I move amendment 105.

I thank Mr Macpherson for that contribution. I do not believe that I have had sight of that submission as yet, but I will certainly look at that ahead of stage 3. I appreciate Mr Macpherson’s support for the amendments.

Amendment 20 agreed to.

This is quite a lengthy group of amendments. I will take the intervention, but I may respond in relation to all the amendments in the group.

Convener, I have gone against my aim of taking interventions after I speak to all the amendments in a group—I will return to that approach, but I am happy to take this one.

I am urging the committee to get it right. The bill, as it stands, makes provisions for victims and witnesses, but, as I said, deceased victims are not covered. We need to have further discussion on that, and there are vehicles in which we could make progress on it. I have been quite clear.