Pre-trial proceedings against 16- and 17-year-old in Dundee Sheriff Court not in breach of new children’s rights law

Pre-trial proceedings against 16- and 17-year-old in Dundee Sheriff Court not in breach of new children’s rights law

The High Court of Justiciary has answered in the negative two questions relating to whether the Crown had acted unlawfully in the separate prosecution of two teenagers in Dundee Sheriff Court by acting in a manner said to be unlawful under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.

Minuters JH and LL both had pre-trial hearings heard in open court, which they argued was contrary to the form for summary proceedings against children provided by the Criminal Procedure (Scotland) Act 1995 and prompted their representatives to lodge compatibility minutes with the UNCRC Act.

The case was heard by the Lord Justice General, Lord Carloway, sitting with Lord Armstrong and Lord Beckett. HM Advocate was represented by Gill KC AD, Stalker AD and Jadelski AD, the minuters by

Mackintosh KC and Loosemore, advocate. An intervention in the case was made by the Commissioner for Children and Young People in Scotland, who were represented by Mure KC and Reid, advocate.

Adult forum

The UNCRC Act came into force on 16 July 2024 and incorporated the Convention into Scots law. Under Section 6, it is unlawful for a public authority to act, or fail to act, in connection with a relevant function in a way which is incompatible with the UNCRC requirements. On the same day, the Children (Care and Justice) Scotland Act 2024 came into force. It modified the 1995 Act to provide that, where a court finds that a prosecutor has acted unlawfully by section 6(1) of the UNCRC Act and is considering deserting the diet or dismissing the complaint, it must give the prosecutor an opportunity to reconsider bringing the proceedings first.

Minuter JH was arrested on a number of statutory offences including abusive behaviour and assault in May 2024, when he was aged 16. He appeared at a custody hearing on 6 June at Dundee Sheriff Court which was open to the public, without legal representation. He appeared at two further public hearings represented by the Public Defence Solicitor’s office, and at a third on 16 August his new counsel sought to bring a compatibility issue minute based on breaches on the UNCRC Act.

By this time, similar issues had emerged in the prosecution of LL, aged 17, who was arrested and charged with assault on 16 July 2024 and also appeared at an open public hearing in Dundee Sheriff Court. In both cases, the issues raised by the reference were whether the Crown, in raising the proceedings and continuing with a prosecution in an adult forum without regard to the special guarantees afforded to children in the UNCRC, were acting in a way that was unlawful with section 6(1) of the UNRC Act.

The Crown position was that section 6(1) of the UNCRC Act was of no application to the Lord Advocate’s exercise of her functions as head of the prosecution system. They were not functions which it was within the legislative competence of the Scottish Parliament to confer upon the Lord Advocate, arising instead at common law, and thus not an enactment of a kind mentioned in section 6(2)(b).

For the minuters it was submitted that section 6(1) was structured as a prohibition that removed the power of a public authority to act in a way that is incompatible with the UNCRC. The breach of their right to privacy could not be undone, and the only remedy was desertion simpliciter.

Minor or technical nature

Lord Carloway, delivering the opinion of the court, said of the principal legal issue: “It is not disputed that the Lord Advocate is a public authority for the purposes of section 6(1) of the UNCRC Act. In deciding to prosecute a child, and in continuing the prosecution, she is carrying out a public function. She is not required to do so by the Criminal Procedure (Scotland) Act 1995. Section 6(4) of the UNCRC Act is not engaged.”

He continued: “The court has not found it easy to grasp the intricacies of the Crown’s submission that the Lord Advocate’s function as prosecutor is not a relevant one. In particular, it was not clear to the court what the relevance of the origins of the office of Lord Advocate or its independent status had to what is a relatively straightforward issue of interpretation.”

Having established that the Lord Advocate was carrying out a relevant function, Lord Carloway turned to the questions posed in the reference: “The Crown contend that the arrangements for the calling of the cases were not made by the Crown but by Dundee Sheriff Court. If that is correct, it would be difficult to find that it was the Crown who had acted unlawfully. Even if they had, any breach would have been of a minor or technical nature. It cannot be said that these hearings, which were purely procedural in nature, affected either JH or LL in respect of the presentation of their defences or in their ability to express their views.”

He concluded: “What is certainly correct is that the forthcoming trials ought to take place in compliance with section 142 of the 1995 Act. That means that they must call at least in a different room from that in which the sheriff usually sits or on days when criminal proceedings are not taking place. The proceedings should be behind closed doors, but allowing the press or other specially authorised persons to be present. The court does not consider that a declarator requires to be pronounced to that effect. It is in the 1995 Act and both the court and parties should ensure that the section is complied with.”

The court therefore considered that the Crown would not be acting unlawfully by continuing with either prosecution, and answered the stated questions in the negative.

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