1. Introduction and Background
1.1 This statutory guidance is published by Scottish Ministers in accordance with section 57 of the Age of Criminal Responsibility (Scotland) Act 2019 (“the Act”). It contains information to support the police and local authorities and others with functions related to investigative interviews involving children under the age of 12.
1.2 This guidance covers:
- When an investigative interview can be undertaken;
- planning for interviews (section 2);
- obtaining and withdrawing of agreement to interviewing (section 3);
- applications for child interview orders (section 4);
- the questioning of children in cases where urgent interview is required (section 5).
1.3 In constructing this guidance, the chief constable and each local authority has been consulted and has contributed to its content.
1.4 This guidance is subject to regular review as the procedure is implemented.
1.5 Persons exercising functions to which this guidance relates must, in doing so, have regard to this guidance.
1.6 The policy intention of the Act is to protect children from the harmful effects of early criminalisation, whilst ensuring that the child and their family receive the right support. Where the behaviour of a child under the age of 12 has caused serious harm and requires investigation, their rights must be properly recognised, upheld and protected in line with UNCRC.
1.7 The Scottish Government’s vision of Scotland as the Best Place to Grow Up is one that extends to all children. A holistic approach to understanding and responding to the needs of children, helps improve life chances, promotes more positive outcomes and makes Getting It Right For Every Child (GIRFEC) a reality.
1.8 The Act raised the age of criminal responsibility to 12 years. This means that a child under the age of 12 cannot be charged or arrested with an offence, and police will no longer have recourse to their criminal justice powers.
1.9 Children who require to be interviewed in terms of this Act, must be considered as persons who cannot be held criminally responsible for their actions when under 12. The need to support, promote and safeguard the wellbeing of the child must be a primary consideration.
1.10 To ensure a GIRFEC child-centred approach – whilst continuing to support the police service in their statutory obligation to investigate crime - the police and local authorities must work together to consider the wider influences on a child’s developmental needs when thinking about their wellbeing. The child’s needs must be addressed through multi-agency assessment, planning and support.
1.11 The Police have lead responsibility for the investigation into behaviour that has caused significant harm, and criminal investigations relating to child abuse and neglect; and share responsibilities to keep the child safe. Social Work Services have lead responsibility for enquiries relating to children who are experiencing or are likely to experience significant harm and assessments of children in need.
1.12 The Act defines “investigative interview” as a meeting or a series of meetings planned by a constable in collaboration with a local authority, conducted by a constable or an officer of a local authority, or jointly by a constable and an officer of the local authority, for the purpose of seeking information from a child in relation to an incident which is the subject of a police investigation.
1.13 Investigative interviews under the Act are only for the most serious cases involving concerns about the behaviour of a child whilst under the age of 12 and, only when it is considered necessary, in order to properly investigate the child’s behaviour and the circumstances surrounding it. Where an investigative interview is required, the Act provides a distinct process for this to occur.
1.14 A child who is under 16 years of age (or who is 16 or 17 years of age and subject to a compulsory supervision order) may also be interviewed as long as the behaviour being investigated relates to when the child was under 12 years of age.
1.15 The Act provides for a child who is involved in an investigative interview to be supported by a child interview rights practitioner (ChIRP), who will provide advice, support and assistance to a child in relation to their involvement in such interviews. The ChIRP must be a solicitor registered with the Children’s Legal Assistance Scheme, thereby offering the skills and knowledge of a solicitor required to be registered with that Scheme.
Criteria for Holding Investigative Interview
1.16 The Act limits the power of the police to question a child under 12 years of age to circumstances where a constable has reasonable grounds to suspect that the child:
- by behaving in a violent or dangerous way, has caused or risked causing serious physical harm to another person, OR
- by behaving in a sexually violent or sexually coercive way, has caused or risked causing harm (whether physical or not) to another person.
1.17 The extent to which harm might be considered serious has been defined as harmful behaviour of a violent or sexual nature which is life threatening and/or traumatic, and from which recovery, whether physical or psychological, may reasonably be expected to be difficult or impossible.
1.18 It is a matter of professional judgement, based on the gathered evidence and context, as to whether the degree of harm to which the victim is suspected of having been subjected, or is likely to be subjected, is 'serious'.
1.19 Police can continue to speak with child witnesses of such behaviour and with children suspected of less harmful behaviour, in an age appropriate way, without applying provisions in the Act. Constables should use professional judgement to establish whether using formal investigative powers within this legislation may be necessary and proportionate.
1.20 The child may only be questioned by a constable or participate in an investigative interview, in relation to the incident involving the behaviour, if authorised by:
- agreement of the child and parent, or
- a child interview order granted by a sheriff on application by the police, or
- in urgent cases where there is risk of loss of life (section 5).
1.21 The purpose of the interview is to seek information from a child in relation to an incident which is the subject of a police investigation. The interview must be necessary in order to properly investigate the child’s behaviour and the circumstances surrounding it. The intention is to find out what has happened, and identify needs in order to plan support.
1.22 Any exercise of the functions authorised by this Act must treat the need to safeguard and promote the wellbeing of the child as a primary consideration.
1.23 The approach taken by professionals involved must reflect the non-criminal, non-stigmatising nature of the interview. Language that implies commission of a crime by a child under 12 should not be used.
1.24 At all stages of an investigation in terms of the Act, police officers and social workers (and any others involved) will be alert to the needs and rights of all children and should follow GIRFEC and trauma-informed principles in any interactions.
1.25 The reasons for decisions about holding interviews and the reasons for decisions arising from interviews must both be clearly recorded. Interviews must be recorded and retained for transparency and audit purposes.
1.26 With the exception of questioning under urgent cases (Section 5), planning and conduct of an interview must be collaborative.
1.27 The rights of the child and the parent should be respected and fulfilled.
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