Age of Criminal Responsibility (Scotland) Act 2019 - part 4 – Police Investigatory and Other Powers: statutory guidance on investigative interviews

3. Obtaining and Withdrawal of Agreement

Seeking agreement

3.1 The wellbeing of the child is a primary consideration and it is preferable to hold an interview by agreement where possible. This is likely to reduce the time-lag between the incident taking place and the child being afforded the opportunity to speak about the circumstances surrounding it.

3.2 Agreement by the child and parent authorises an investigative interview of the child about the behaviour to which the investigation relates.

3.3 Prior to seeking agreement to conduct an interview (or to making an application to a sheriff for a child interview order), an IRD should have taken place.

3.4 Before seeking agreement, it should be clear:

• Who needs to agree;
• Who can agree (both in terms of fitting the criteria of parent^[12] and the ability to agree);
• Any issues of suitability for agreement that would mean an order needs to be considered;
• What information can and needs to be provided to inform the child and parent’s decision and in what format the information needs to be presented;
• What supports may be required to allow understanding;
• What the potential outcomes from the interview are;
• Who will ask for the agreement;
• How the agreement will be sought;
• How understanding will be verified;
• Who can be present when the child is asked for their agreement
• How any potential scenarios will be responded to (for example, requests to consult someone, time to consider).

3.5 In determining the ability and suitability of a parent to agree to an interview, the police and local authority should review all available information, including that held by themselves and other agencies. This is particularly important when the parent/s have retained parental rights and responsibilities but the child resides outwith their care and they have no active relationship or contact with the child. This should be discussed during the IRD process.

3.6 It is essential that the police and the local authority fully understand the criteria applied to those who qualify to give agreement to the interview^[13]. Should a child interview order be necessary, this information will be central to the application for the order.

3.7 It is important that all efforts are made in the circumstances to ensure that there is understanding of what is being asked to be agreed to and, the implications of that agreement. Where there is any doubt as to understanding of that agreement, further consideration should be given to whether authorisation needs to be made by way of a child interview order.

3.8 Once agreement has been provided, notice in writing must be provided by the police to the child and parent advising them of their rights and what will happen next as a result of their agreement^[14]. The information in the notice should also be explained. Explanation to the child must be in simple terms that are appropriate to the child’s age and maturity. Consideration should be given as to who (whether police, social work or other person) is most suitable to explain this information to the child^[15].

3.9 The written notice should be given to the child as soon as reasonably practicable and in any case, prior to the commencement of the interview.

3.10 Considerations around the agreement process, decisions made (whether there is agreement or not) and rationale for any delays experienced in delivering the notice should be fully documented and retained.

3.11 The child’s interview rights practitioner, once identified, should also be given a copy of the notice.

Withdrawal of agreement

3.12 An investigative interview authorised by agreement in terms of the Act is no longer authorised if a person withdraws their agreement.

3.13 In agreeing to the interview, the child and parent must be clear that they have the right to withdraw their agreement at any time and how they can exercise this right. They should also be told how police may proceed should agreement be withdrawn.

3.14 See paras 4.12 and 4.13 regarding rights of appeal against a child interview order.

3.15 A child should be clear that in exercising their right to not answer questions (some or all) in the interview, this will not be taken as them withdrawing their agreement to the interview.

3.16 Where interviews are continued over different meetings, the child should be reminded, at each meeting, of their right to withdraw agreement should they wish to do so.

3.17 Those conducting the interview should be satisfied at all times during the interview that the child is in agreement with the interview continuing. Where there is any doubt, they should check that the child is content to continue.

3.18 Where agreement to the interview is withdrawn, the interview must stop. This must be explained to the child and parent and they should be informed that further considerations will be made as to the need for the interview to continue on a future occasion and if so, how this can happen.

3.19 A child or parent who withdraws their agreement to interview can subsequently agree to an interview continuing. This agreement must be freely made.

3.20 Where agreement is withdrawn, the IRD process should consider:

• the need to safeguard and promote the child’s wellbeing;
• the need to interview the child further (based on the criteria and justification for the need to interview the child at all and their best interests);
• whether the person withdrawing agreement is likely to change their mind;
• whether an application for a child interview order is necessary and justified.