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The Report of the Feasibility Group on Youth Crime Pilots

Annex D

Giving Reporter Power to Liberate

Section 63: Further changes are also recommended to primary legislation. First, giving the Reporter power to liberate 16 and 17 year olds.

(Changes to secondary legislation would be required)

Where a child who has been charged with an offence is detained under the Criminal Procedure (Scotland) Act 1995 and subsequently referred to the Reporter, s.63 of the Children (Scotland) Act 1995 currently offers the Reporter only two options:

• to refer within three days to a Children's Hearing;

or

• to determine within that time that compulsory measures are not required - in common parlance, to take no action on the referral.

Prior to April 1997 the Reporter had a third option - to liberate the child from the place of safety pending further investigation. Since April 1997, although the incidence of the use of custody powers has dropped significantly, the proportion of cases that are 'no actioned' under section 63 has remained about 30%. Previously, a similar proportion resulted in liberation pending further enquiries, with very few cases immediately 'no actioned'.

There are likely to be situations in which 16 and 17 year olds detained by the Police are then referred to the Reporter in terms of the proposed pilots. For a number of reasons, some of which are collateral to the proposed pilots, it is now appropriate to consider restoring the power to liberate:

• ECHR Article 5 considerations impel the Reporter to make as early as possible a decision on the cases of detained children and young people, but this limits severely the scope to undertake a full investigation and thus to make an informed decision
• statistical and anecdotal evidence both indicate that early 'no action' decisions are frequently being taken where immediate referral to a Hearing cannot be justified, but where further enquiries would nevertheless be appropriate if the option existed
• in a climate of heightened public and political awareness this appears regrettable
• given that all cases in the pilots will involve a choice between criminal or Children's Hearings proceedings, it is important to re-align the first-stage options open to the Reporter in custody cases with those open to the Procurator Fiscal.

This objective could be achieved by amending s.63 of the Children (Scotland) Act 1995 as follows:

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