Chamber and committees

As I have said very clearly, the impact of any act on the victim will already be taken into consideration by the panel, and decisions will be made by the panel on what they feel is the best approach. I cannot be any clearer about the ethos of the children’s hearings system and how it is not a mini-court setting or, going back to my previous response, about how a victim impact statement could impact on the judgment on what is right for the child who is at the centre of the children’s hearings system.

I am sorry, convener, but I really do not understand how I can be any clearer than that. As we debated last week, through the bill there will be increased support and information for the victim. However, we have to remember that the referred child has to be at the centre in the children’s hearings system and that decisions are made to best impact on that child.

The provisions in sections 16 and 17 of the bill as introduced on enabling children who have been detained in secure accommodation to stay in that accommodation after turning 18 are necessary in enabling us to keep the Promise. The independent care review concluded:

“If a young person turns 18 during their time in Secure Care, there must not be an automatic transfer to a Young Offenders Institute. There must be more scope to remain in Secure Care for those who have turned 18.”

Such a change was also recommended by a previous justice committee of this Parliament. The amendments in this group are contrary to that aim, which—although I appreciate that they are probing amendments—is disappointing, given the shared commitment in the Parliament to keeping the Promise to people who have experience of Scotland’s care system.

The approach in the bill as introduced supports stability, continuity of care and support, and enduring relationships for children in secure care, as well as providing for gradual and improved transitions for children as they turn 18, which is crucial to supporting their reintegration and rehabilitation. Those benefits would be lost if Roz McCall’s amendments were agreed to.

In allowing case-by-case decision making, the bill as introduced is consistent with the UNCRC and with international human rights standards. When decisions are made about whether to allow a young person to remain in secure accommodation beyond the age of 18, those decisions will be made on a case-by-case basis to ensure not only that they are in the best interests of the young person concerned, but that they are not contrary to the best interests of the other children in that facility.

I will touch on such matters later in my comments, but, as the issue is one for secure care centres to deal with on a case-by-case basis, I could not say today how that specific instance would be dealt with. I will continue, and if Ms Thomson would like to come back in, I would be more than happy to allow her to do so.

The specific considerations will be detailed in the regulations, which will undergo parliamentary scrutiny and be subject to the affirmative procedure. If it is concluded that remaining in the secure accommodation will not be in the best interests of the young person or of any other child, the young person would not remain in that accommodation. I hope that that alleviates any concerns that the committee and others outside Parliament might have regarding any potential negative implications for the other children who are cared for in the secure accommodation setting.

Although secure care centres do not currently support children over the age of 18, they are supportive of the change. Discussions are on-going about how it will be implemented. Secure care centres are already working to prepare for implementation of that element of the bill, if it is passed, and to ensure that the needs of all children and young people in their care can be met. Those provisions also received positive support in the public consultation on the bill proposals in 2023.

There is no distinction on secure care that is based on gender, as I will discuss later. Each centre has its own considerations on each case and how that would be managed. As I said, discussions are taking place now. I am sure that, if the member wishes further information on the implementation, that could come at a later date.

We have not met with that scenario in recent years. There has been capacity in the secure care centres. Again, we would have to deal with the issue at the time on a case-by-case basis in discussion with the secure care centres. It would be about what was best for the children involved. Although I can imagine that scenario—I am sure that Mr Whitfield can, too—I probably could not lay it out in black and white, because it would not be a decision for me as a minister to take.

Amendments 95, 97, 103 and 104 would remove the ability to allow children who are detained in secure accommodation before the age of 18 to remain there. Obviously, that would mean that those young people would be required to move to a YOI on their 18th birthday—we have seen that happen—regardless of their needs, vulnerabilities or best interests and regardless of how much or how little of their sentence remains to be served, which could be just a few days. I am sure that the committee agrees that it would be a lot of upheaval for a young person to be transferred to a young offenders institution for a matter of days.

There is no provision in law for children who are detained under sections 44 and 216 of the Criminal Procedure (Scotland) Act 1995 to be detained in YOIs. Therefore, on turning 18, they would need to be released or moved to another place. That would be chosen by the local authority but it would not be secure accommodation.

Ms McCall’s amendments would mean that young people who were detained in secure accommodation would be subject to a cliff edge. However, I appreciate that she has said that she does not intend to press them. If they were pressed, I would not be able to support them.

I am confident about that.

Subsequent to the publication of the guidance in 2017, the provision of restorative justice services across Scotland was inconsistent and, in some places, potentially non-existent. Therefore, the Scottish Government subsequently published the “Restorative Justice Action Plan”, which sets out a further vision for restorative justice to be “available across Scotland”. I understand that the delivery of that plan has been slightly delayed. I believe that it was hoped that the services would be available by 2023 but that, in the work to date, great complexities have been revealed in implementing the plan. Coupled with the impact of the pandemic, that has held up delivery.

However, the commitment to establishing restorative justice services across Scotland remains. We need to consider how we get things right in relation to the complexities that have been thrown up, but the commitment absolutely remains. I am more than happy to discuss the matter further with the member or to update him on where we are with that.

I have nothing further to say. I press amendment 105.

Amendment 105 agreed to.

Section 18—Meanings of “young offenders institution” and “young offender”

I am sorry, but I am already responding to another intervention.

With regard to the resource challenges that Mr Whitfield referred to, I understand what he is saying—indeed, I do not want to say, “No, we can’t do this.” However, for the reasons that I have outlined, if the amendments were to be agreed to in their current form, they could impact on children’s rights today and tomorrow, and I am not comfortable with that. Might that be something that we need to look at as we move forward? Absolutely, but, as I have said, the amendments could impact on children’s rights immediately.

As for the co-accused issue, it will again be down to the court to look at that on a case-by-case basis. I think that the amendments are problematic for a number of reasons, including, as I have said, the fact that the co-accused’s rights appear to have been given less weighting than the child’s rights. I appreciate the member’s comments in that respect, but, again, it should be down to the courts to make that decision on a case-by-case basis instead of our putting it in statute. As I said in my opening comments, under human rights law, a right does not require serious interference to be infringed, and I think that this particular amendment distorts the existing legal protections and confuses matters.

Summing up, I believe that a lot of what is covered in the amendments is already covered under the ECHR and the UNCRC, and we have to give the judiciary and the courts discretion to look at matters on a case-by-case basis. As a result, I do not support the amendments.

Good morning, everyone.

Sections 12 and 13 of the bill as introduced place restrictions on the reporting of certain information that could identify a person in relation to an offence or suspected offence that occurred while they were children, whether they were a suspect, a victim or a witness in relation to that offence. The restrictions apply respectively before, during or after any court proceedings in respect of the offence.

On introduction, the bill did not make provision to allow such persons to self-identify by publishing information that was covered by the reporting restrictions without committing an offence, unless a court had dispensed with those restrictions or they had otherwise come to an end. Therefore, it could potentially have criminalised a person for publishing their own information.

That approach was criticised by stakeholders, including the campaign for complainer anonymity and the Children and Young People’s Commissioner Scotland, at stage 1. We accept that it did not necessarily strike the correct balance between children’s rights to freedom of expression, autonomy and control over their own information and experiences and their rights to privacy and protection of other rights in the context of their evolving capabilities and development.

Therefore, the amendments in this group make provision to enable a person to self-identify by publishing information that would otherwise be subject to a reporting restriction, without committing a criminal offence.

Amendment 24 will enable a child victim or witness to self-identify prior to any court proceedings for the alleged offence when a court has not already dispensed with reporting restrictions.

Once court proceedings have been raised, amendment 48, which seeks to insert new subsection (1BB) into section 47 of the Criminal Procedure (Scotland) Act 1995, will enable a child victim or witness to self-publish information that can identify them at any stage of proceedings without seeking the prior authority of the court to do so. That echoes the provisions that are made in the Victims, Witnesses, and Justice Reform (Scotland) Bill in relation to victims of certain offences that are listed in that bill.

For those persons who are suspected, accused or convicted of committing an offence in childhood, because the considerations are particularly nuanced, that has resulted in provisions that are slightly different in scope. Before any court proceedings, those persons will therefore be able to self-identify only with the consent of the court, as provided for in section 12 of the bill. That is in recognition of the different risks involved for child suspects, which include the risk of self-incrimination during an on-going police investigation.

Moreover, once court proceedings have been raised, as is provided for in amendment 48, which seeks to insert new subsection (1BA) into section 47 of the 1995 act, those persons will be able to self-identify only on the disposal of proceedings, in line with other provisions in the bill. The intention is to prevent other risks from arising, including to the right to a fair trial, whether of the accused or of other persons.

Amendments 49 and 50 are consequential to amendment 48.

We consider that the provisions that are proposed by the amendments in this group strike a more appropriate balance, and I ask the committee to support them.

I move amendment 20.

The group contains a large number of amendments that cover a wide range of important areas. Some of the amendments are quite technical, so I require to speak to each of them in turn.

First, there are a number of Government amendments that concern dispensing with reporting restrictions. Those follow on from the amendments that we have just debated, concerning a person’s right to self-identify through publishing information that is otherwise subject to a reporting restriction, without committing a criminal offence.

Amendment 42 is my main amendment on the topic. It would insert new section 106BA into the Criminal Justice (Scotland) Act 2016 to enable an application dispensing with reporting restrictions to be made in relation to the publication of information relating to a child victim or witness to a suspected offence when no court proceedings are already under way in respect of the offence. That reflects provisions in the Victims, Witnesses, and Justice Reform (Scotland) Bill in relation to victims of the offences to which that bill applies. It would essentially enable a person other than a child victim or witness to whom information subject to a reporting restriction relates to apply to the court for an order to dispense with the restriction in order to be able to publish that information. The granting of any dispensation order would, however, be subject to important safeguards. It would require the court to have regard to the best interests of the child as a primary consideration and to consider any relevant representations made by or on behalf of the child or by anyone who is considered to have an interest in the application.

Moreover, the court would also require to be satisfied that the child has understood and appreciates the effect of any dispensation and has given consent to the publication of the information, and that there is no good reason why such an order should not be made. Subject to those safeguards, it would enable a child victim or witness to consent to a third party publishing the information rather than the child self-identifying through publishing their own information.