UN convention against torture: our position statement

Youth justice

“ All professionals, regardless of their organisation, have roles and responsibilities in respect of child protection and children’s rights. Children and young people who are involved in offending behaviour are first and foremost, children. Their welfare and potential need for protection must be the paramount concern for all agencies involved with the child and their family.”

Centre for Youth and Criminal Justice, A Guide to Youth Justice in Scotland: policy, practice and legislation (2018)

Special needs of minors in detention

27. Please provide information on the efforts by the State party to meet the special needs of minors in detention.

Secure accommodation

The majority of young people placed in secure accommodation are placed through the children’s hearings system as a result of a secure accommodation authorisation (SAA) made in conjunction with, for example, a compulsory supervision order (CSO). A CSO may only include an SAA if:

(a) the order contains a requirement that the child resides at a specified place;

(b) one or more of the following conditions are met:

(i) the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is likely that the child’s physical, mental or moral welfare would be at risk

(ii) the child is likely to engage in self-harming conduct

(iii) the child is likely to cause injury to another person; and

(c) having considered other options available (including a movement restriction condition) the children’s hearing is satisfied that it is necessary to include an SAA in the order.

Responsibility for implementing an SAA rests with the chief social work officer (CSWO) and can only be done with the consent of the person in charge of the establishment containing the secure accommodation. In considering the possibility of placing a child in secure accommodation, a CSWO needs to identify the aims and objectives of such a placement in terms of the child’s assessed behaviour and needs, and the capacity of the establishment to meet those aims and objectives.

Placement in secure accommodation is designed to rehabilitate the child and, where necessary, protect the public. Secure placements, once made, are only for so long as it is in the best interests of the child. The suitability of the placement must be reviewed at intervals of not more than three months, or sooner if necessary or appropriate in light of the child’s development.

A Secure Care Strategic Board (SCSB) was set up in October 2017 to lead the development of a strategic approach to responses to children and young people in, and on the edges of, secure care in Scotland, providing a clear set of strategic proposals. The board was tasked with developing Secure Care National Standards to improve the experiences and outcomes for some of Scotland’s most vulnerable young people. The Board will report to Ministers in early 2019.

Children and young people in custody

No child in Scotland under the age of 16 years is detained in a prison. Young people aged 16 to 17 who are not subject to a CSO can be sentenced or remanded by the court to a YOI.

The Scottish Government is championing the use of the Whole System Approach (WSA),^[112] which continues to see a marked reduction in the number of young people receiving custodial sentences (see paragraph 17 above). The Youth Justice Strategy, Preventing Offending: Getting it right for children and young people (2015),^[113] promotes the use of the WSA, ensuring that children and young people receive appropriate interventions and services that help to address and reduce the risk of offending and improve life chances.

Improving life chances and supporting young people to move on is the best way of reducing reoffending and minimising the number of future victims, contributing to improving public life, and reducing the prison population. Where a child or young person does require to be detained, the WSA encourages support to be initiated from the outset to support effective transitions back to the community.

The SPS has adopted as policy a Vision for Young People in Custody,^[114] which sets out medium- and longer-term intentions for young people’s learning and development while in custody, based upon individual needs. At HMYOI Polmont:

• a community safety unit has been created, working with a wide range of partner organisations from the community, education sector and Scottish Government. Polmont has been designated as a “community” for specific focus by the Scottish Government Community Safety Steering Group.
• Police Scotland has committed to a “campus cop” resource on site to challenge constructively attitudes to authority and support anti-violence work, both in the establishment and in the community on release. A range of interventions is being developed and deployed on site:
  • restorative practices for conflict resolution
  • anti-violence and anti-bullying workbooks
  • group work for bullying and knife crime
  • associated staff training
• SPS is undertaking development work on issues such as domestic abuse and those types of crime which undermine equality and diversity in society, as well as creating links between the community safety and parenting teams on site to support integrated learning.
• Research is being taken forward on a number of issues to inform understanding of the needs of young men. Many of the underlying issues which lead to violent behaviour, such as trauma, bereavement, and learning difficulty, are being addressed through education-based interventions and assessment. Speech and language therapy resources from NHS have been increased and a review of the wider regime is in progress.
• Arrangements have been put in place to reduce the population on-site at Polmont, with a view to each young man having access, where possible, to a room of their own. This is already improving the environment and allowing more intensive staff interaction.
• Following a curriculum review undertaken by Education Scotland, a wide range of additional activities, including those focused on relationship skills and citizenship, is being developed. These include life skills, parenting, peer support and one-to-one support for those who are most disengaged, many of whom also exhibit violent behaviour.
• All staff at Polmont are receiving training, co-delivered with Education Scotland, which focuses on the emotional and social wellbeing of young people and their personal development.

Placement in police detention of children with mental disabilities

28. Please clarify the current policy regarding the placement in police detention of children with mental disabilities.

In terms of current operational practice, Police Scotland attempts to ensure that all children and young people are kept in custody for as short a time as possible. When very minor crimes are committed it is common for children not to be taken to a custody centre at all, but rather taken home and, if deemed necessary, cautioned and charged in front of their parents or carers.

Sections 50 and 51 of the Criminal Justice (Scotland) Act 2016, which came into force on 25 January 2018, place a duty on Police Scotland not to detain a person (which includes a child) unnecessarily in custody and to consider a child’s wellbeing as a primary consideration when making decisions in relation to a child, including a decision whether or not to hold a child in custody. Police Scotland operating procedures have been updated to reflect these provisions (see paragraph 16 above).

Age of criminal responsibility

29. With regard to the Committee’s previous concluding observations (para. 27), is the State party considering the possibility of increasing the minimum age of criminal responsibility in line with international standards?

The current age of criminal responsibility in Scotland is 8 years old, however a child under 12 cannot be prosecuted through the courts but can be referred on an offence ground to the children’s hearing system. A Minimum Age of Criminal Responsibility Advisory Group was established to address the underlying issues of a change in the minimum age of criminal responsibility, with a view to bringing forward recommendations for public consultation in early 2016. The Advisory Group report^[115] recommended that the age be raised from 8 to 12, and that the move be accompanied by a number of safeguards.

On 1 December 2016, the Scottish Government announced that it would introduce a Bill in the current Parliamentary session, which will increase the age from which a child can be held criminally responsible from 8 to 12 years old, aligning it with the current minimum age of prosecution and reflecting Scotland’s commitment to international human rights standards.

The Age of Criminal Responsibility (Scotland) Bill^[116] was introduced in the Scottish Parliament on 13 March 2018. The Bill will mean that:

• children under the age of 12 will no longer be stigmatised at such a young age due to being criminalised and labelled as “an offender”
• harmful behaviour involving children under 12 will continue to be addressed with bespoke new measures introduced to ensure police can thoroughly investigate the most serious incidents
• victims of harm will continue to receive appropriate support and information
• release of information on Disclosure certificates about harmful behaviour by children under 12 will no longer be automatic but will be subject to independent review on a case-by-case basis

Physical punishment of children

Corporal punishment

30. With respect to the previous concluding observations (para. 29), please indicate the measures taken to ensure that corporal punishment of children is explicitly prohibited in all settings, including in the family, schools and alternative care settings.

The existing legislation in Scotland makes it illegal to punish children by shaking, hitting on the head or using an implement. John Finnie MSP is bringing forward a member’s Bill in the Scottish Parliament to remove the existing defence for parents. This would have the effect of prohibiting all forms of physical punishment. The Scottish Government has indicated that it is in favour of removing the defence and has set up an implementation group to consider what steps need to be taken if Mr Finnie’s Bill should be enacted by Parliament.

Section 16 of the Standards in Scotland’s Schools etc. Act 2000^[117] bans corporal punishment in local authority and independent schools. Corporal punishment is also banned in residential accommodation^[118] and in relation to day care of children, child minding or a child care agency.^[119]

Asylum seekers

Immigration detention

31. In the light of the previous concluding observations (para. 30), please indicate the measures taken by the State party to ensure that detention of asylum seekers and migrants is used only as a last resort, where necessary and for as short a period as possible, and to further implement in practice alternatives to detention. Please provide information on the steps taken to ensure the early identification of victims of torture and to ensure that such individuals are not detained within the context of asylum procedures. What measures have been taken to introduce a limit for immigration detention and to prevent cases of de facto indefinite detention? According to the information before the Committee, judgments handed down by the High Court and the Court of Appeal in June and July 2015 found significant deficiencies in the State party’s “detained fast-track” asylum process, including a failure to prevent torture survivors from entering the detained fast-track system and to provide effective access to legal representation. Please clarify whether the State party is planning to reintroduce the fast-track procedure as a central pillar for managing asylum in the country. If so, please provide detailed information on the measures taken to ensure that the detained fast-track system is fully compliant with the State party’s obligations under the Convention.

Immigration and asylum are matters reserved to the UK Government. The Scottish Government believes that asylum seekers must be treated fairly and with dignity and respect at all stages of the asylum process, maintaining that integration should begin from day one, not just when leave to remain has been granted. This is reflected in Scotland’s second New Scots Refugee Integration Strategy, which was launched in January 2018.^[120]

Immigration detention is a matter reserved to the UK Government. The Scottish Government supports calls for a 28-day time limit on immigration detention and for the presumption to be in favour of community-based solutions. The Scottish Government believes that children should not be held in immigration detention.

Hate crime

Measures to combat hate crime and increase reporting

32. What measures have been taken to combat hate crimes, including crimes committed on the basis of race, nationality and religion? Please comment on reports of a rise in Islamophobic and anti-Semitic hate crimes. Please provide information on the specific measures taken to address underreporting of disability and transgender-motivated hate crimes.

Since 2012, the Scottish Government has invested over £100 million to promote equality and tackle discrimination, and is continuing to work closely with partner organisations to advance the vision of “One Scotland”. Ministers have shown leadership in condemning hate crime as unacceptable and in challenging rhetoric that seeks to divide communities.

On 13 June 2017 the Scottish Government published an ambitious programme of work, Tackling Prejudice and Building Connected Communities,^[121] in response to the recommendations made by the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion.^[122] A Tackling Prejudice and Building Connected Communities Action Group has been established to take this work forward. It will be chaired by the Cabinet Secretary for Communities and Local Government and includes representation from COSLA, Police Scotland, COPFS, Education Scotland and equalities organisations.

The Tackling Prejudice and Building Connected Communities Action Plan contains a commitment to consider how terminology and definitions may become more useful in seeking to tackle and address these issues. On 13 June 2017 the Scottish Government formally adopted the International Holocaust Remembrance Alliance’s definition of anti-Semitism to help inform work in this area, and will continue to work with key partners, including Police Scotland, to explore how using this definition translates into operational practice.

There are also a number of actions that seek to address the issue of under-reporting, including:

• a six-week “Hate has no home in Scotland” campaign, which launched on 13 October 2017 and aimed to raise awareness of hate crime and encourage reporting
• working with disabled people’s organisations to implement A Fairer Scotland for Disabled People^[123] and address under-reporting of disability hate crime
• consideration of how to break down barriers to reporting, which will be informed by Police Scotland’s work on developing the third party reporting infrastructure

The Scottish Government is also developing its approach to gathering evidence around hate crime. This will include publication of a research report later in 2019 on hate crime recorded by the police, which will contribute to a better understanding of the scale and severity of hate crime in Scotland.

In January 2017 Scottish Ministers appointed Lord Bracadale to undertake a review of hate crime legislation in Scotland. The Scottish Government welcomed Lord Bracadale’s report,^[124] which was published on 31 May 2018, and accepted his recommendation to consolidate all Scottish hate crime legislation into one new hate crime statute. On 14 November a fourteen week public consultation was launched to seek views on the detail of what should be included in a new hate crime bill, using Lord Bracadale’s recommendations as a basis for the consultation.^[125] This will provide a range of organisations and groups, as well as members of the public, with an opportunity to share their views and inform what is included in the new hate crime legislation. All concerns will be listened to – updated hate crime legislation must balance protections required with human rights, freedom of speech and civil liberties.

The Scottish Government recognises that legislation in and of itself is not enough to build an inclusive and equal society, however it forms the basis of understanding what is not acceptable in society.