CONSULTATION: DRAFT CHILDREN’S HEARINGS (PROVISION OF INFORMATION BY PRINCIPAL REPORTER) (PRESCRIBED PERSONS) ORDER 2003

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Dear Sir / Madam

CONSULTATION: DRAFT CHILDREN’S HEARINGS (PROVISION OF INFORMATION BY PRINCIPAL REPORTER) (PRESCRIBED PERSONS) ORDER 2003

Purpose

1. I enclose for consultation a copy of a draft Order that is to be made under section 53 of the Criminal Justice (Scotland) Act 2003, which received Royal Assent in March 2003.
2. This letter sets out the background to the draft Children’s Hearings (Provision of Information by Principal Reporter) (Prescribed Persons) Order 2003 and explains what the Order is intended to do.
3. The Order identifies Victim Support Scotland, the Criminal Injuries Compensation Authority and insurance companies as being entitled to receive certain information from the Principal Reporter regarding offence cases referred to him.
4. You are invited to comment on the implications of the draft Order which sets out those agencies and third parties with whom the Principal Reporter may share information on offence cases, the uses they can make of that information and the conditions attached to its use.

Background to policy development

5. The Scottish Strategy for Victims provided the framework for work in relation to victims of young people being dealt with through the criminal justice system. Scottish Ministers intend to achieve the same objectives in a different way for the children’s hearings system, reflecting the fact that the hearings system is primarily focussed on identifying and addressing the needs and deeds of children and young people referred to it.
6. Although the ethos of the children’s hearings system is distinct from the criminal justice system, Ministers have considered how relevant information might be imparted to victims and relevant persons within it. Unlike the court process, which takes place in public, children’s hearings take place in private with the focus being on the welfare of the child. By their very nature, discussions in hearings can often be confidential and involve personal details of family life that go wider than the offending behaviour itself. Confidentiality is therefore needed partly to protect often vulnerable children from undue attention and to create an atmosphere in which private matters can be properly discussed. Because of this, information about what is happening hadhas been limited to only a few individuals and agencies and victims, in particular, have been excluded from this process.

Criminal Justice (Scotland) Act 2003

7. Ministers consider that the almost absolute bar on the disclosure of information can no longer be justified. and Tthe Executive has been engaged in discussion with representatives of the children’s hearings system and with Victim Support Scotland since January 2002 to explore what might be done to open up the system and provide information to individual victims and their families. A number of options were developed, considered and evaluated. Section 53 of the Criminal Justice (Scotland) Act 2003 ("the 2003 Act") was the product of those deliberations - it has been approved by the Scottish Parliament, and will enable the Principal Reporter to divulge certain information to victims, relevant persons and others natural persons who have been affected by the actions of children referred to him on offence grounds. The relevant section is attached at Annex A. In order to facilitate this, it is also necessary to identify other persons and agencies with whom the Principal Reporter may share information.

Consultation

8. The draft Order deals with the definition of the third parties that could be entitled to receive information about the processing and outcome of a referral to the hearings system. At present, the Scottish Children’s Reporter Administration (SCRA) deals administratively with enquiries from the Criminal Injuries Compensation Authority and insurance companies, attempting to balance the confidentiality of the child referred against the needs of the victim to gain suitable compensation. Information regarding the receipt of referrals and the decisions taken in certain cases need to be confirmed directly by SCRA to enable compensation claims to be progressed.
9. We propose to define those persons entitled to receive information, including those persons who make determinations as to whether to pay compensation to the victim in respect of any loss injury or damage suffered by the victim arising from the offence, and those offering information, advice , counselling and support to victims.
10. Only natural legal persons against whom offences are committed will be entitled to receive case-specific information. It is not intended to include companies and other legal persons suffering loss as a consequence of child offending. A 12-month pilot project is planned commencing Autumn 2003 in Forth Valley.

Criminal Injuries Compensation Authority

11. Scottish Ministers wish to expressly enable SCRA to provide to third parties involved in compensating victims, in particular the Criminal Injuries Compensation Authority. The Authority was established following the Criminal Injuries Compensation Act 1995, and requires statutory access to information about the decision taken in respect of a referral to the Reporter, to enable the progression of a claim arising from the circumstances of that referral made to the Criminal Injuries Compensation Scheme.

Victim Support Scotland

12. Victim Support Scotland (VSS) is a voluntary organisation that is being funded by the Executive to provide information, advice and support to victims of crime. Victims will be directed to VSS as the first port of call. The Order will enable VSS to request information from the Principal Reporter directly, in order to discuss that information with the victim as part of the counselling service.
13. If the victim decides to participate in the information scheme, the Principal Reporter will contact them directly to advise of decisions taken at key stages in the process, where it is appropriate in all the circumstances of the case.
14. For further support and advice, the victim will be referred to VSS who will have the time, resources and training to manage the victim’s needs sensitively. While VSS are to be the only prescribed body for this purpose at present, the entitlement could be made available to other organisations providing counselling and advice services to victims of crime as are approved by Scottish Ministers.

Insurers

15. From time to time, insurance companies and others concerned in evaluating, quantifying and administering claims deal with cases of loss arising from a referral to the Principal Reporter on offence grounds. Some insurance companies require confirmation direct from the Principal Reporter that a referral has been received in respect of a particular incident, or that certain action has been taken with regard to the case in question to allow a claim to be processed. The Reporter will therefore be empowered to share information to the extent that is required to verify and process insurance claims.

Summary of Information to Victims Pilot Service

16. By way of background, the service to victims will broadly be as follows:

• Offence / Incident occurs

• Police notify VSS with victim contact details

• VSS contact victim, providing general and local (but not, at this stage, case-specific) advice and information relating to youth justice and the children's hearings system. Materials and advice will be appropriate to the individual victim, taking account of age, disability and ethnicity. An assessment will be made as to whether VSS should have ongoing direct contact with the victim or whether there is a need to refer the case on to a "specialist" counselling service.

• At this stage the victim or relevant person (for example, the parent of a child victim) would be given the opportunity to opt out of the scheme to provide updates on the progress and outcome of their specific case. Unless the victim (or relevant person) indicates otherwise, information will be supplied as a matter of course.

• VSS will confirm with the Principal Reporter and other appropriate agencies whether the victim wants further information regarding their case.

• If the victim wishes further information relating to their case, the Principal Reporter will write to the victim (or relevant person) after the Reporter’s initial investigation and decision, giving information (this will not include identification of the young person(s) referred to the Reporter). The Reporter can decide to:- not to refer to a hearing ; to seek advice, guidance and assistance from the local authority; or to convene a children’s hearing to consider compulsory supervision.

• The Reporter will have discretion as to what information, if any, it will be appropriate to pass to the victim in all the circumstances of the case. The interests of the child referred will remain paramount in this consideration — practice guidance will be issued to Reporter.

• If a children's hearing is to be convened, the Reporter will again write to the victim, at the end of the hearings process, giving any appropriate information relating to the outcome of the case (whether or not compulsory supervision had been imposed) and in some cases, supplying specific conditions inserted in any supervision requirement. It will be made clear in this communication that VSS — rather than the Reporter- will be the victims’ contact for further advice, clarification and support.

17. The Principal Reporter will produce the appropriate guidance for such cases and any further relevant issues. It has been agreed that project management of the pilot will be through VSS, steered by the Victim’s Issues sub-group of the Youth Justice Steering Group. Independent evaluation will be commissioned.

Consultation

18. In particular, your views are sought as regards:

• Other persons who may require information from the Principal Reporter to provide support and advice to victims

With reference to those persons already identified in the Draft Order, we would welcome your comments on:

• The purposes for which information is provided
• The conditions and restrictions on use of the information

19. Under the Code of Practice on open government, responses will be made available to the public, unless respondents ask that their comments remain confidential.

 

20. Further copies or alternative versions of this paper may be obtained by calling 0131 244 1676 or by emailing Scott Wood at scott.wood@scotland.gsi.gov.uk. Alternatively, the consultation paper will be available in the "Consultation" section of the Scottish Executive website. http://www.scotland.gov.uk/views/views.asp
21. Please send responses and comments to the following address before Thursday 28 August 2003:

Scott Wood
Scottish Executive Education Department
Young People & Looked After Children Division
Area 2B (South)
Victoria Quay
EDINBURGH
EH6 6QQ
Email: CHSVictims@scotland.gsi.gov.uk
Tel: 0131 244 1676

Fax: 0131 244 3547

Youth Justice Team
Young People & Looked After Children Division
Scottish Executive Education Department

Consultation Responses. pdf format (600kb)

ANNEX A — SECTION 53 OF THE CRIMINAL JUSTICE (S) ACT 2003

53 " Provision by Principal Reporter of information to victims

1. Where the Principal Reporter has received information about a case in which it appears that an offence has been committed by a child, the Principal Reporter may provide any information about the case as is mentioned in subsection (2) to any person mentioned in subsection (3) if (and only if)–

1. the information is requested by the person; and
2. the Principal Reporter is satisfied that–

1. the provision of the information would not be detrimental to the best interests of the child concerned in, or any other child connected (in any way) with, the case; and
2. it is appropriate in the circumstances of the case to provide the information.

2. The information is information as to–

1. what action the Principal Reporter has taken in the case; and
2. any disposal of the case,

in so far as the information relates to the offence.

3. The persons are–

1. any person against whom the offence appears to have been committed or, where that person is a child, any relevant person; and
2. any other person or class of persons, subject to such conditions, as may be prescribed.

4. In this section–

"child" means a person who has not attained the age of eighteen years;

"the Principal Reporter" has the same meaning as it has in Part II of the Children (Scotland) Act 1995 (c.36);

"relevant person" in relation to a child means–

1. any parent enjoying parental responsibilities or parental rights under Part I of that Act;
2. any person in whom parental responsibilities or rights are vested by, under or by virtue of that Act; and

any person who appears to be a person who ordinarily (and other than by reason only of that person’s employment) has charge of, or control over, the child.

SCOTTISH STATUTORY INSTRUMENTS

2003 No. [     ]

CHILDREN AND YOUNG PERSONS

The Children’s Hearings (Provision of Information by Principal Reporter) (Prescribed Persons) Order 2003

The Scottish Ministers, in exercise of the powers conferred by section 53(3)(b) of the Criminal Justice (Scotland) Act 2003(), and of all other powers enabling them in that behalf, hereby make the following Order:

Citation, commencement and interpretation

1.–(1) This Order may be cited as the Children’s Hearings (Provision of Information by Principal Reporter) (Prescribed Persons) Order 2003 and shall come into force on [        ] 2003.

(2) In this Order-

"the 2003 Act" means the Criminal Justice (Scotland) Act 2003;

"the 2000 Act" means the Financial Services and Markets Act 2000();

"authorised person" means a person who is authorised for the purposes of Part IV of the 2000 Act; and

"insurer" means an authorised person who is permitted to carry on a regulated activity of the kind specified in articles 10 (1) or (2) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001().

Prescribed Persons

2. The following persons and classes of person are prescribed under section 53(3)(b) of the 2003 Act:—

(i) Victim Support Scotland;

(ii) Criminal Injuries Compensation Authority; and

(iii) Insurers

Prescribed Conditions

3. (1) Any information provided to Victim Support Scotland pursuant to section 53(1) of the 2000 Act shall be used solely for the purpose of providing counselling and support services to a person specified in section 53(3)(a) of the 2003 Act and Victim Support Scotland shall not disclose the information other than to such a person.

(2) Any information provided to the Criminal Injuries Compensation Authority pursuant to section 53(1) of the 2003 Act shall be used solely for the purpose of [verifying that the offence in question has been referred to, and is being investigated by, the Principal Reporter] to enable any claim for compensation submitted by a person specified in section 53 (a) of the 2003 Act to be processed and the Authority shall not disclose the information to any other person.

(3) Any information provided to an insurer pursuant to section 53(1) of the 2003 Act shall be used solely for the purpose of verifying that the offence in question has been referred to, and is being investigated by, the Principal Reporter to enable any claim on a policy of insurance made by or on behalf of a person specified in section 53 (a) of the 2003 Act to be processed and the insurer shall not disclose the information to any other person.

A member of the Scottish Executive
St Andrew’s House,
Edinburgh
[SEPTEMBER]  2003

(1) 2003 asp 7.
(2) 2000 c50.
(3) S.I. 2001 No 544

EXPLANATORY NOTE

(This note is not part of the Order)

This Order specifies persons [and classes of person] in relation to whom the Principal Reporter is entitled to provide information in relation to a case where it appears that an offence has been committed by a child.

Article 3 of the Order sets out certain conditions restricting the manner in which the information may be used.

Distribution List:

Aberlour Childcare Trust
Apex Scotland
Association of British Insurers
Association of Directors of Education in Scotland
Association of Directors of Social Work
Association of Chief Police Officers Scotland
Association of Scottish Police Superintendents
Barnardo’s Scotland
Black and Ethnic Minorities Infrastructure in Scotland
Chief Executives of Local Authorities
Children First
Children in Scotland
Children’s Panel Advisory Group
Children’s Panel Advisory Committee Chairs
Children’s Panel Chairmen’s Group
Children’s Panel Training Units
Commission for Racial Equality
Convention of Scottish Local Authorities
Criminal Injuries Compensation Authority
Criminal Justice Social Work Development Centre
Crown Office and Procurator Fiscal Service
Disability Rights Commission
Equality Network
Equal Opportunities Commission
Financial Ombudsman Service
Financial Services Authority
General Insurance Standards Council
Human Rights Centre
INCLUDEM
Information Commissioner
NCH Action for Children Scotland
Residential Schools
SACRO
Save the Children Fund
Scottish Association of Children’s Panels
Scottish Child Law Centre
Scottish Children’s Reporter Administration
Scottish Police Federation
Scottish Safeguarders’ Association
Scottish Youth Parliament
Secure Units
Who Cares? Scotland
Victim Support Scotland
Young Scot
Youth Justice Local Authority Co-ordinators
Youth Justice Steering Group