Part 4: Police Investigatory and Other Powers Chapter 3: Questioning of certain children Child interview orders
157.Section 42 sets out the process for applying for an order to interview a child (as defined in section 39(3)) in relation to suspected behaviour by the child that falls within section 39(1). Interviews authorised by a child interview order must be jointly planned by the police and the relevant local authority in relation to the child(78) (see section 47). Section 42(3) therefore requires the constable to identify the relevant local authority and, if practicable, consult that authority about the provisional plans for the interview to be submitted with the application for the child interview order. The application must also state the grounds on which the application is made (that is, explain the behaviour to which the application relates and the reasons why the questioning of the child is necessary) and contain supporting evidence.
158.Section 43 governs the procedure the sheriff must follow when considering an application under section 42. The sheriff has discretion as to whether to hold a hearing or to determine the application without hearing from the constable or anyone else. The sheriff also has discretion over whether to consider the application in open court or in the sheriff chambers (which would provide a degree of privacy to the proceedings).
159.Subsection (3) requires the sheriff, before deciding the application, to consider whether the constable, the child, a parent of the child,(79) or anyone else the sheriff thinks has an interest, should be given an opportunity to make representations to the sheriff on the application and whether an order should be made.
160.The matters as to which the sheriff must be satisfied before making an order, and what the order authorises, are set out in section 44. The sheriff must be satisfied that there are reasonable grounds to suspect that the child in relation to whom the application is made, by behaving in a violent or dangerous way, has caused or could have caused serious physical harm to another person or, by behaving in a sexually violent or sexually coercive way, caused or could have caused harm (physical or psychological) to another person. In addition, the sheriff must be satisfied that questioning of the child is necessary to fully investigate the incident to which the application relates. The factors to be taken into account in this consideration are set out in subsection (3).
161.If the sheriff is satisfied as mentioned in subsection (2)(a), but considers that the circumstances surrounding the incident are clear from information that is already available, then the making of a child interview order may not be necessary. In this type of case, a local authority interview of the child to consider the child’s welfare may be appropriate. Police questioning will continue to be prohibited under section 39(2). In contrast, if the sheriff refuses to make a child interview order because he or she is not satisfied as mentioned in subsection (2)(a) (either because there are no reasonable grounds to suspect that the behaviour involved in the incident falls within subsection (2)(a) or that such behaviour was involved but there are no reasonable grounds on which to suspect that it was the child who behaved in this way) then the police may seek to question the child in relation to the incident on a voluntary basis.
162.A child interview order authorises an investigative interview of the child. It may also authorise other things (such as transportation of the child to and from the interview location). In addition, the sheriff can give directions as to how the interview should be conducted (and any other authorised actions carried out).
163.In particular, the sheriff can specify a period over which the interview should be conducted – as is made clear in the definition of “investigative interview” in section 39, an interview may take place over a number of meetings. Depending on the child’s circumstances, it may be necessary for the interview to take place over a number of days. The maximum period over which the interview can be conducted is 7 days, although the sheriff can specify a shorter period for the conduct of the interview. The sheriff can specify that the 7 day (or shorter) period for the conduct of the interview is not to start on the day after the order is made but on a specified later day (for example, if there is a need for the planning of the interview to be completed once the order is made). The interview does not have to start on the day on which the specified period begins (unless a direction to this effect is included in the order under section 44(6)(a)), but if it doesn’t, the number of days available to conduct the interview will reduce accordingly. Once the order ceases to have effect, further questioning of the child is prohibited by section 39(2).
164.Section 45 requires that the child and, if practicable, a parent of the child be notified of the making of a child interview order and that the order be explained to the child in a way that is appropriate to that particular child. Once the individuals who will act as the child’s supporter (see section 50) and as the child’s interview rights practitioner (see section 51) during the interview are known they must also be provided with a copy of the order.