Commentary on Provisions Remit to children’s hearing from criminal courts Section 17 – referral or remit to Principal Reporter of children guilty of offences
75.Section 49 of the 1995 Act is one of a number of sections that govern what the courts may do when a child pleads, or is found, guilty of an offence.(48) Section 49 deals with the interrelationship between the children’s hearings system and the criminal justice system and provides that the court may seek advice from a children’s hearing as to the appropriate disposal to make in the child’s case, may remit the child’s case to a children’s hearing for that hearing to dispose of the case under the 2011 Act, or can dispose of the case itself (either straightaway or after getting advice from a children’s hearing). How this works depends on the age of the child, whether the child is subject to a CSO, whether the court is the Justice of the Peace court, the sheriff court or the High Court, and whether the proceedings are solemn proceedings or summary proceedings. For instance, where a child is subject to a CSO, the sheriff court must seek advice from a children’s hearing before it can dispose of the child’s case.(49) It also depends on the offence involved.(50)
76.Section 17 makes a number of changes to section 49 of the 1995 Act, substituting new subsections (1) to (1F) for subsections (1) to (3) of section 49. The main change is that no distinction is made between a child subject to a CSO and a child not so subject. All under 18s will now be treated the same way. Summary cases and solemn cases are treated differently, and solemn cases in the sheriff court are treated differently from High Court cases.
77.In summary cases, the court has a duty to either request advice on the disposal of the child’s case from a children’s hearing or to remit the case to the hearing for disposal. See subsection (1A). The court can proceed straight to remitting the case to a children’s hearing for disposal without first requesting advice. But it cannot generally dispose of the case itself without first requesting advice and considering that advice. See subsection (1E). The exception is where the child is within 6 months of turning 18. Where that is the case, and the court considers that it would not be practicable to either seek advice or remit the case for disposal by a children’s hearing, the court may dispose of the case itself. See subsection (1C). As currently provided for by section 49(3), the court cannot remit the case to a children’s hearing for disposal where the offence is one mentioned in new subsection (1F) (and for which there is a minimum sentence). And as currently provided for by section 49(5), where the offence is one for which the sentence is fixed by law, the court must dispose of the case itself.
78.In sheriff court solemn cases, the sheriff has a choice – to request advice from a children’s hearing, to remit the case to a hearing for disposal, or to dispose of the case without a remit. See subsection (1A). But before the sheriff can dispose of the case without a remit, the sheriff must request advice from a children’s hearing. The sheriff can proceed to dispose of the case without requesting advice in two circumstances. Either where the sheriff determines that it would not be in the interests of justice to do so. Or where the child is within 6 months of turning 18 and the sheriff considers that it would not be practicable to request advice before disposing of the case. See subsections (1B) and (1C). Subsections (1E), (1F) and (5) apply to the sheriff in a solemn case as they apply in summary cases.
79.In solemn cases in the High Court of Justiciary, the court has discretion as to how to proceed (subject to subsections (1F) and (5)), so may request advice before deciding how to dispose of the case, or remit the case to a children’s hearing (with or without first requesting advice), or dispose of the case itself (again, with or without first requesting advice). See subsection (1D).
80.Section 17(2)(c) makes another amendment of section 49. Currently, section 49(4) provides that where a court remits a case to a children’s hearing for disposal, the jurisdiction of the court in respect of the child comes to an end. As was decided in the case of McCulloch v. Murray,(51) this means that a court cannot disqualify a child from driving while at the same time otherwise remitting the disposal of the child’s case to a children’s hearing. The court must either remit the whole case or keep the case for disposal itself.
81.New subsections (4A) to (4C) modify section 49(4) in the case of three types of offence.
82.The first type is road traffic offences in relation to which a court can disqualify the person found guilty from driving or impose penalty points on the person’s licence. As a result of subsection (4A), the court will be able to do so while otherwise remitting the disposal of the case to the children’s hearing.
83.The second type is certain sexual offences in relation to which the notification requirements of Part 2 of the Sexual Offences Act 2003 apply.(52) Where the child pleads or is found guilty of one of these offences, subsection (4B) will make it clear that the notification requirements apply even though the child’s case has been remitted to a children’s hearing for disposal. However, in the case of some offences listed in schedule 3 of the 2003 Act, the notification requirements do not automatically apply but do so only where the court makes a finding of some sort. For instance, paragraph 60 of schedule 3, read with section 80 of the 2003 Act, provides that an offence in Scotland, other than an offence listed in paragraphs 36 to 59ZL of the schedule, triggers the notification requirements only if the court, in imposing sentence or otherwise disposing of the case, determines that there was a significant sexual aspect to the offender’s behaviour in committing the offence. Where, however, the court remits the child’s case to a children’s hearing for disposal, the court will not impose sentence or otherwise dispose of the case and so no determination as to the sexual aspects of the offence will be made. Other offences listed in the schedule trigger the notification requirements only if the sentencing court determines that it is appropriate for the person convicted to be regarded for the purposes of Part 2 of the 2003 Act as a person who has committed the offence or that it is appropriate for Part 2 to apply to the person. Subsection (4B)(a), (b) and (c) therefore recognises this and makes clear that the notification requirements will not apply in such cases.
84.The third type is offences in relation to which the court is entitled (under section 234A of the 1995 Act) or obliged (under section 234AZA of that Act) to impose a non-harassment order on the offender.(53) New subsection (4C) makes it clear that, where the court remits the child’s case to a children’s hearing for disposal, the court may still impose a non-harassment order.
85.Finally, section 17 repeals section 49(6) and (7) as these subsections are no longer necessary, the matters they deal with now being incorporated into new subsections (1) to (1F).