Commentary on Provisions Safeguards for children involved in criminal proceedings Section 15 - custody of children before commencement of proceedings
66.The Criminal Justice (Scotland) Act 2016 (“the 2016 Act”)(47) makes provision for what happens if a child is arrested and taken into police custody. Under section 22 of that Act, a child (being a person a constable believes is under 16 or a person subject to a CSO) must be kept in a place of safety until that person can be brought to court. Under section 23 of that Act, a parent of the child (if one can be found) must be informed. Section 24 also requires the local authority to be informed. Sections 31 to 37 make provision for the police to interview children suspected of or charged with offences, including the right to have a solicitor present. In the case of a child under 16, the right to a solicitor cannot be waived (see section 33 of the 2016 Act). A distinction is currently made between children aged 16 and 17 who are subject to a CSO and those who are not. The latter can waive the right to a solicitor if not subject to a CSO, whereas 16 and 17 year olds who are subject to a CSO cannot waive this right.
67.Sections 38 to 41 of the 2016 Act contain more safeguards for children in police custody. Under section 38, intimation must be sent to a parent of a child under 16. Where the person is 16 or over, the intimation will be sent only on the person requesting it and only to an adult named by the person making the request. Where the person in custody is under 18, the person to whom intimation is sent under section 38 must be asked to attend the place where the person under 18 is in custody. But the constable does not need to ask the person to attend where the person in custody is 16 or 17 years old and requests that the person not be asked to attend. Section 40 makes provision about the circumstances in which a parent or other person can have access to the child in custody. As with other provisions in the 2016 Act, a distinction is made between those under 16 and those under 18. Under section 41, the constable must send intimation that a child subject to a CSO is in custody to the local authority. Intimation must also be sent to the authority where the person in custody is under 18 and the constable delays sending intimation under section 38 in the interests of safeguarding and promoting the wellbeing of the person. The local authority may arrange for someone to visit the child if the child is under 16 or subject to a CSO. Where they do so, sections 38 to 40 of the 2016 Act cease to apply, so that no intimation is sent under section 38 and only the local authority will have access to the child. A local authority, where they do not visit the person in custody, may give advice to the constable as to whether the person to be sent intimation under section 38 should not be sent that intimation and advice as to who intimation should be sent to instead. The constable must have regard to that advice.
68.As a result of treating all under 18s as children for the purposes of the 2011 Act and the 1995 Act, section 15 makes various changes to the 2016 Act aimed at removing, in most cases, the distinction between children under 16 and children aged 16 and 17, and between children subject to CSOs and children not so subject.
69.Section 15(2) amends section 22(1) of the 2016 Act so that all under 18s in police custody must be kept in a place of safety. Section 15(3) amends section 23 so that where an under 18 is in custody and is to be brought to court, a parent will be given notice. Section 24 of the 2016 Act is amended by section 15(4) so that where an under 18 is in custody and is to be brought to court, the local authority will also be informed.
70.Section 15(5) amends section 33 of the 2016 Act so that no under 18 can waive the right to have a solicitor present at a police interview. Section 38 of the 2016 Act is amended by section 15(6) so that a constable may delay sending intimation under that section so that the local authority can give advice as to whether that intimation should be sent and, if not sent, who intimation should be sent to instead.
71.Section 15(7) makes a number of amendments to section 41 of the 2016 Act. The main change is to provide that the local authority is to be given intimation that an under 18 is in custody regardless of whether the child is subject to a CSO. The repeal of subsections (7) and (10) of section 41 is consequential on this change. In addition, new section 41(1A) provides for a number of other facts and events to be intimated to the local authority. Where such intimation is sent, the local authority will be able to consider whether to visit the child in custody as they can when intimation is sent under section 41(1). Section 15(7) also repeals section 41(8). The effect of this is that a local authority’s ability under section 41(9), to advise the constable that the person due to be sent intimation under section 38 should not be sent it, will no longer depend on the local authority not visiting the child but instead can be exercised in response to intimation of any of the facts set out in new section 41(1A).