Interviews and the minimum criminal age

The Age of Criminal Responsibility (Scotland) Bill was introduced to the Scottish Parliament on 13 March 2018. The bill notably increases the age of criminal responsibility to 12 from the current age of eight. Its objective is “to better protect children from the harmful effects of early criminalisation, while ensuring that incidents of harmful behaviour by those aged under 12 can continue to be effectively investigated and responded to”.

However, the bill makes provision for “child interview orders”. This article explores the provisions laid down for such orders, and considers their implications in regard to both young people and solicitors.

Section 31 of the bill makes it unlawful to question a child (being a person under the age of 16, or aged 16 or 17 and on a compulsory supervision order), about an incident that occurred whilst the child was under the age of 12, unless the constable has sought and has been granted a child interview order under s 34. Alternatively, such an interview can proceed where it can be demonstrated that there is a degree of urgency (s 44). However, by s 31(2)(b) the unlawfulness only applies “where a constable has reasonable grounds to suspect that the child – (i) by behaving in a violent or dangerous way, has caused or risked causing serious physical harm to another person, or (ii) by behaving in a sexually violent or sexually coercive way, has caused or risked causing harm (whether physical or not) to another person”.

By s 33(3), the sheriff is obliged to consider whether the child (among other persons) should be given the opportunity to make representations about the child interview application. Section 43 affords a right of appeal generally, with permission of the sheriff.

The test as to whether an order be granted by a sheriff is outlined in s 34(2) and (3). Broadly speaking, the sheriff must be satisfied that there are reasonable grounds to suspect that the child has committed act(s) of the type referred to in s 31(2)(b), and that an investigative interview is necessary.

Section 38 states that there is no obligation to answer questions. Presumably therefore it would still be appropriate to advise a child to provide a no comment answer.

Scope for conflict

However, the bill itself appears to conflict with s 33(2)(a) of the Criminal Justice and Licensing (Scotland) Act 2016, by which a person under 16 cannot consent to be interviewed without a solicitor being present. The suggestion in the bill (s 40) is that the child will have the right to a private consultation with an advocacy worker and for the advocacy worker to be present throughout the interview. But as the Law Society of Scotland correctly pointed out, “a mere law qualification will in our view not suffice. They would need to have an understanding as well as experience of the practice of criminal law and of the children’s hearings system, including the implications of the evidence or information provided during an interview”.

In my view, there cannot be a substitute for a fully qualified solicitor being present at interviews. A young person would almost certainly find an interview to be a stressful and difficult situation. It appears that the bill is intended to be underpinned by the need to consider the child’s best interests. It is therefore a contradiction that a child’s best interests are to be served by them (potentially) being represented by someone who has no legal training or qualifications. Alternatively, if it is the intention that s 33(2)(a) remains in force, there is the potential for a conflict of interest between the solicitor and the personal advocate. Does the child therefore have the right to expect separate private consultations between the solicitor and the personal advocate? It is not clear. In any event, urgent clarification is required about this conflict between s 33(2)(a) and the bill. If solicitors are to be excluded from the process, then almost certainly the Scottish Government will risk judicial review proceedings.

If the child is under 12 at the point of interview, one could understand why they would feel aggrieved about being questioned about a matter that in itself would not relate to criminal conduct. In such case, the minister’s comments that the bill was about “decriminalisation of children under 12 so that their contact with the justice system is not traumatic for them” appear to be contradictory. A view could be taken that if the police can still competently question persons who are under 12, for example, this would have the potential to create more contact between the police and young persons, rather than less or none at all.

The bill is drafted by those who mean well, but one cannot help getting a sense of something that is overengineered. Simplicity is key.