Commentary on Provisions Part 6 – UNCRC compatibility issues in criminal proceedings Section 33 – UNCRC compatibility issues in relation to decisions to prosecute children
143.Section 33(2) inserts new section 288BZA into the 1995 Act. This makes provision about certain cases where a “UNCRC compatibility issue” (as defined by section 288BZA(7)) is raised(102) in criminal proceedings brought against a person who either is a child or was a child when the proceedings were brought. Criminal proceedings in this context exclude post-conviction appeal proceedings, and section 288BZA(6) sets out when proceedings are taken to be brought against a person.
144.Section 288BZA(2) limits how section 8(1) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (“the UNCRC Incorporation Act”) applies to those cases. Under section 8(1), a criminal court may grant such relief or remedy, or make such order, within its powers as it considers effective, just and appropriate in relation to any act (or proposed act) of a public authority which it finds is (or would be) unlawful under section 6(1) of the UNCRC Incorporation Act. That is, unlawful because it is (or would be) incompatible with the UNCRC requirements (as defined by section 288BZA(7)). Section 288BZA(2) restricts the granting of two specific types of judicial remedy. The first is the desertion of proceedings either pro loco et tempore(103) or simpliciter.(104) The second is the dismissal of the indictment (in solemn proceedings) or the complaint (in summary proceedings) or any part of the indictment or complaint. This restriction applies only where a criminal court is contemplating granting either type of remedy solely because of a court finding that the prosecutor, by bringing criminal proceedings against the child accused, has acted unlawfully under section 6(1) of the UNCRC Incorporation Act. It will not apply where a court is (instead or also) contemplating granting either type of remedy in consequence of determining any other kind of plea, issue or challenge (whether or not related to the bringing of proceedings). A court will therefore be free to use its remedial powers as it sees fit when determining, say, a common law plea in bar of trial, a plea to the competency of the indictment or complaint, an ECHR “compatibility issue”,(105) or a UNCRC compatibility issue concerning the fairness of proceedings rather than the decision to prosecute.
145.So, where a court determines that a particular decision to prosecute was incompatible with the UNCRC requirements, it may not desert the proceedings or otherwise dismiss the indictment or complaint (either wholly or partially). Instead, it must give the prosecutor an opportunity to reconsider the decision to prosecute in a UNCRC-compatible way and adjourn or continue the proceedings to another diet to allow for this. Section 288BZA(5) further requires the court, before adjourning or continuing the case, to give the prosecutor an opportunity to apply for any necessary extension of a time bar which applies in respect of the proceedings.(106)
146.It will be for the prosecutor to decide whether or not to take up the opportunity to reconsider the decision to prosecute. The prosecutor may instead decide to appeal the finding of incompatibility.(107) Alternatively, the prosecutor may decide not to proceed with the prosecution (if, say, the prosecutor concedes the UNCRC compatibility issue and considers that the incompatibility cannot be remedied by reconsidering the case). But where the prosecutor does reconsider the decision to prosecute, and ultimately determines that the bringing of criminal proceedings is UNCRC-compatible, the court must decide anew under section 288BZA(2)(b)(iii) whether that is the case.
147.If, at the adjourned or continued diet, the court decides anew that the bringing of criminal proceedings is incompatible with the UNCRC requirements, it will then be able to desert or dismiss the case if it considers it just and appropriate to do so (subject to any successful appeal against that decision by the prosecutor). Otherwise, if the court is satisfied that the incompatibility has been remedied by a reconsideration of the case, the prosecution may then proceed (subject to any successful defence appeal against the court’s decision under section 288BZA(2)(b)(iii)).
148.However, the restriction on judicial remedies will not apply if any of the three exceptions set out in section 288BZA(3) is relevant. The first exception is where there is no reasonable prospect of the decision to prosecute being reconsidered in a UNCRC-compatible way. For example, no reconsideration of a decision to prosecute a case based on facts that did not constitute a crime known to the law of Scotland at the time of the alleged wrongdoing could remedy such a breach of Article 40(2)(a) of the UNCRC.(108) The second exception is where there are exceptional circumstances which justify a court denying a reconsideration. A court may therefore proceed directly to desert the proceedings, or dismiss the indictment or complaint, where this is merited in a special case. The third exception is where the prosecutor has already had an opportunity to reconsider the decision to prosecute and the court decides under section 288BZA(2)(b)(iii) that the bringing of criminal proceedings remains incompatible with the UNCRC requirements. This means that the prosecutor gets only one chance to reconsider the decision to prosecute (unless a further, separate UNCRC compatibility issue is raised and the criteria in section 288BZA(1)(b) and (c) are met in relation to that other issue).
149.Finally, section 33(4) of the Act simply amends section 8 of the UNCRC Incoproration Act to signpost the restriction on judicial remedies contained in section 288BZA of the 1995 Act.