Dorothy Bain KC

Appearing before Holyrood’s Public Petitions Committee yesterday, Ms Bain defended the Crown Office’s policy of offering “diversion” as an “alternative to prosecution, where the reported individual is referred to a local authority or other partner agency” – or to the children’s reporter administration.

Ms Bain said: “All reports involving violent or sexual offending are treated seriously. Where such offending merits prosecution, action will be taken, even when the offender is a child. 

“The prosecutorial response to adults and children needs to be different. Fundamentally, a child is treated as such because of the impact of their age and maturity.

“The presumption is for all children not to be prosecuted. However, that is not to say that a child cannot and should never be prosecuted. The presumption against prosecution is are but table presumption and should be rebuffed when it is in the public interest to prosecute.

“The more serious the offence, the more likely it is that the offence is prosecuted in court.”

She added: “In particular, given the seriousness of rape and other sexual offending and the impact of such offending on victims, referral to the reporter or diversion from prosecution for such offences will only be appropriate in certain circumstances.

“Fundamentally in relation to children, the justice system must be responsive to vulnerability, trauma and need, but it also must be clear that serious offending has serious consequences.”

Scottish Conservative MSP Maurice Golden said: “It strikes me that the presumption against prosecution in these cases is perhaps out of kilter with public opinion – the scope of which we are discussing is serious violence or sexual offences.”

Ms Bain insisted that “serious sexual offending” was “treated with the utmost seriousness by the Crown Office and Procurator Fiscal Service”.