105.Section 38 amends part 2 of the 2003 Act to make provision about the giving of information under that part where the victim of the relevant offence is a child. Subsection (2) amends section 16 of the 2003 Act by inserting a new run of subsections (4A) to (4F) into that section. New subsection (4A) provides that, where the victim is a child, references to the victim are to be treated as references to both the child and the person who cares for them – such as their parent. This means that an intimation that the person wishes to receive information can be made by either the child or the person who cares for them.
106.New subsection (4B) provides that where an intimation is made under section 16(1) by a child or a person who cares for a child, in respect of a child victim, the Scottish Ministers are to determine whether the information should be given to the child, to the child and the person who cares for them, only to the person who cares for them, or to another adult who has a relationship to the child. Such a determination is only to be made if the Scottish Ministers are satisfied that the person to whom information is to be given by virtue of the determination consents to receiving it. In making a determination, the Scottish Ministers are to consider the age and maturity of the child, any views expressed by the child, and the best interests of the child. The Scottish Ministers are also to have regard to the code of practice to be issued under new section 18ZA of the 2003 Act, being inserted by paragraph (4) of part 1 of schedule 3. A determination may be reviewed by the Scottish Ministers at any time, including at the request of the child or of any adult who, under the determination made by the Scottish Ministers, is to receive the information as well as or instead of the child. A new determination can be made as a result of such a review.
107.New subsection (4F) provides that where a child has been receiving information as a result of a determination, the Scottish Ministers must contact the child before the child turns 18 to establish how the information is to be provided once the child turns 18. However, a new intimation will be required to be made under section 16(1), after the child has turned 18, in order to effect a change. Otherwise, the child is to continue to receive information in accordance with the existing determination.
108.Section 38(3) amends section 16B of the 2003 Act, so that child victims are treated the same in respect of the provision of information under section 16A as they are in respect of the provision of information under section 16.
109.Section 38(4) amends section 17 of the 2003 Act so that references to “the victim” become references to “P”. This is for consistency with other sections in part 2 of the 2003 Act and reflects the fact that the relevant person might be a designated person, a nominee of the victim, or an adult receiving information on behalf of a child victim.
Crown Application Part 3 – Victims’ Rights to Receive Information Section 38 – provision of information where victim is a child