Assisting young people aged 16 and 17 in court

A toolkit for local authorities, the judiciary, court staff, police, Crown Office and Procurator Fiscal Service and service providers.

Appendix 2

Policy and practice developments in respect of young people

As was observed in section 1 of this report, since 2008 there have been a number of significant developments in the way in which services for children and young people have been delivered in Scotland, and running in parallel with these have been considerable changes in criminal justice policy. The purpose of this Appendix is to provide a summary of those changes, and to provide the reader with links to the policy documents referred to.

The Scottish Government is committed to giving children the best start in life and to improving the life chances of children, young people and families at risk. Tackling the causes and effects of offending by young people is key to building safe and strong communities, within which Scotland's future generation can fulfil its enormous potential.

Preventing Offending by Young People - A Framework for Action [52]

The partnership framework Preventing Offending by Young People - A Framework for Action was published in June 2008. The Framework outlines a shared vision of what national and local agencies working with children and young people who offend, or are at risk of offending, should do to prevent, divert, manage and change that behaviour. In driving forward this work the Framework focuses on the key areas of:

  • Prevention;
  • Early and Effective Intervention;
  • Managing High Risk;
  • Victims and Community Confidence;
  • Planning and Performance Improvement.

The framework is formally owned by the SG, COSLA, ACPOS, SCRA and COPFS as the key delivery agencies, and is endorsed by relevant inspectorates and professional organisations ( ADSW, ADES) and a range of third sector organisations.

The framework is broad in scope - spanning prevention, early intervention and risk management, with reference to the individual, the family and the wider community. While the framework focuses effort on young people between the ages of 8 and 16 it recognises the need to start prevention work earlier and sustain effort on the transition to adulthood. The over-arching purpose of the framework is to deliver real improvements on the ground - to identify and develop good practice and embed this as standard practice, to support the development of effective interventions and improve the range, quality and effectiveness of provision. This approach is based on the belief that demonstrating what works and how, and proving the benefits to both children and young people and the agencies involved, is the most compelling way to secure practice change and improvement.

The framework reflects a joint commitment to setting shared objectives. Work to tackle offending by young people contributes to the Governments national outcomes: [53]

  • Our children have the best start in life and are ready to succeed.
  • Our young people are successful learners, confident individuals, effective contributors and responsible citizens.
  • We have improved life chances for children, young people and families at risk.
  • We live our lives safe from crime, disorder and danger.

Details of the work which has been done in the five key areas can be found at

Scottish Prisons Commission report Scotland's Choice [54]

In July 2008 the Scottish Prisons Commission published their report Scotland's Choice which observed that "unlike in most other countries, at the age of 16, many young people who commit offences face a very abrupt transition from the Hearings System, where the emphasis is on helping them to develop and change, to the adult courts, where the emphasis is on punishing them. The suddenness of that transition makes no sense; young people judged not fit to decide what films they can watch or what drinks they can buy are nonetheless held fully accountable for their actions in adult court."

The report noted that young people can have series of unmet needs on entry to the criminal justice system, for example, communication impairments, and observed that while they may present a risk their communities, failing to support them through the criminal justice process and failing to address their risks and needs can lock them into a cycle of reoffending.

The report went on to recommend that the Scottish Government re-examine how 16 and 17 year olds who offend were dealt with.

Protecting Scotland's Communities: Fair, Fast and Flexible Justice [55]

Protecting Scotland's Communities: Fair, Fast and Flexible Justice, published in December 2008 built on the Scottish Prisons Commission's report, reinforced the case for early intervention to prevent offending, and committed the Scottish Government "to reducing the flow into the criminal justice system by:

  • Committing with COSLA to transform Scotland's approach to Early Years, the next milestone being the publication of the Early Years Framework in December 2008.
  • Continuing to work with COSLA and other partners to deliver Preventing Offending by Young People: A Framework for Action and embed the principles and practice of Getting It Right For Every Child in all our work with vulnerable children and young people.
  • Strengthening the sharing of information and joint working across the transition from the Children's Hearings system into adult services and, where necessary, to the criminal justice system.
  • Ensuring that the needs of young people are met and their risks effectively managed, with a focus on preventing re-offending, whichever system they are in, including by learning lessons from the youth court pilot evaluation.
  • Ending the practice of sending under 16s to prison, and strengthening the regime for under 18s in custody to prevent offending and get young people back into productive lives."

Reducing Reoffending programme [56]

The Reducing Reoffending programme was established shortly thereafter to take this work forward. The programme aims to reduce offending and reoffending, as well as Scotland's prison population, and enhance public safety. Effective Community Disposals; Pre-Disposal; Community Integration; and Young People Who Offend projects were commenced.

The Young People Who Offend strand of the programme is reviewing the current systems, processes and practices in place for dealing with the offending behaviour of 16 and 17 year olds and those presenting a risk of serious harm.

Following upon successive breaches of court orders, the judiciary sometimes feel they have no option but to impose a custodial sentence, but short custodial sentences provide limited opportunities for young people to engage in behavioural change or education programmes which are critical in reducing reoffending. Approximately 70% of 16 to 20 year olds released from custody are reconvicted within two years with 45% receiving further custodial sentences. It is hoped that the work of the Young People Who Offend project will make a contribution to the reduction in offending and reoffending by 16 and 17 year olds.

The aim of the project is to reduce the number of young people (under 18) being dealt with in the criminal justice system and receiving custodial sentences. This is being achieved by working with all stakeholders to:

  • develop integrated processes and services across children's and adults systems;
  • increase opportunities for diversion from formal measures targeted at young people; and
  • increase opportunities for community alternatives to custodial sentences designed for young people.

This work will contribute to the 4 main overarching national outcomes detailed above, and also to the following 2 outcomes:

  • We live our lives safe from crime, disorder and danger; and
  • We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others.

This toolkit is one element of the work of the Young People Who Offend project. Other documents issued by the Project Implementation Board include:

  • Diversion from prosecution toolkit [57] ,
  • Alternatives to secure care and custody guidance [58] ,
  • Reintegration and transitions guidance [59] ,
  • Information Sharing in relation to risk assessment and risk management, Guidance for Local Authorities. [60]

Getting it Right for Every Child

Getting it Right for Every Child ( GIRFEC) underpins the principles of the Young People Who Offend project and Young People in Court toolkit. GIRFEC is a programme which aims to improve outcomes for all children and young people.

Getting it right places children's and young people's needs first, ensures that they are listened to and understand decisions which affect them, and that they get more co-ordinated help where this is required for their well-being, health and development. It requires that all services for children and young people - social work, health, education, police, housing and voluntary organisations - adapt and streamline their systems and practices to improve how they work together to support children and young people, including strengthening information sharing.

The approach helps those facing the greatest social or health inequalities. It also encourages earlier intervention by professionals to avoid crisis situations at a later date so that children and young people get the help they need when they need it.

Of particular relevance is the work which has been done by Scottish Government and partner organisations on Getting it right for young people who offend, and the guidance issued on Multi agency early and effective intervention [61] which is designed to ensure that children get the help they need when they need it and do not enter the children's hearing system unnecessarily.

Other developments - International Context

Scotland is internationally renowned for its welfare based response to children and young people who offend, but stands alone as the only western European country to routinely deal with 16 and 17 year olds in the criminal justice system, and Scottish Courts imprison this age group at a higher rate than elsewhere in Europe.

In June 2008 the Council of Europe, recognising the United Nations Convention on the Rights of the Child [62] , ratified recommendations on the European Rules for juvenile offenders subject to sanctions or measures [63] . The 142 recommendations include:


21.1. "juvenile offender" means any person below the age of 18 who is alleged to have or who has committed an offence.

Alternatives to remand and custody

10. Deprivation of liberty of a juvenile shall be a measure of last resort and imposed and implemented for the shortest period possible. Special efforts must be undertaken to avoid pre-trial detention.

23.1. A wide range of community sanctions and measures, adjusted to the different stages of development of juveniles, shall be provided at all stages of the process.

Ensuring young people have an understanding of the process

13. Any justice system dealing with juveniles shall ensure their effective participation in the proceedings concerning the imposition as well as the implementation of sanctions or measures. Juveniles shall not have fewer legal rights and safeguards than those provided to adult offenders by the general rules of criminal procedure.

33.1. Juveniles shall be informed, in a manner and language they understand, as to how the community sanction or measure imposed on them will be implemented and about their rights and duties in regard to its implementation.

Multi agency working

15. Any justice system dealing with juveniles shall follow a multi-disciplinary and multi-agency approach and be integrated with wider social initiatives for juveniles in order to ensure a holistic approach to and continuity of the care of such juveniles (principles of community involvement and continuous care).

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