THE KILBRANDON REPORT
The Juvenile Courts-The Existing Arrangements
BACKGROUND TO THE EXISTING ARRANGEMENTS
40. Under the common law, no child under the age of 7 could be charged with a criminal offence. Beyond that age children were assumed to be criminally responsible, though the element of youth was recognised as a mitigating factor in relation to punishment. The principle that the hearing of cases involving juveniles raises special considerations and that juvenile offenders should receive different treatment from adults seems to have been implicitly recognised from very early times, though it may largely have been lost sight of at various periods. In the first half of the nineteenth century, the harshness of the penal code and the social conditions following the Industrial Revolution led to many young offenders being sentenced to imprisonment or transportation. Public opinion reacted increasingly against such methods of punishment of the young, and consequent reforms helped to mitigate the severity of the law-notably through the evolution of reformatory or industrial schools as alternatives to prison, the trial of children summarily for most offences, and the development of what is now the probation system.
41. The Children Act, 1908-which applied to England and Scotland alike was a major landmark, in that it established certain principles which continue to govern the operation of the juvenile courts today, later legislation being more in the direction of amplifying and expanding the detailed arrangements rather than introducing any new basis of approach. The 1908 Act proceeded on the footing that young offenders should be treated differently from adults, and that the aim should be to seek to educate and reform, rather than to punish. Courts of summary jurisdiction when hearing charges against children and young persons were to sit either in a different building or room from that in which the ordinary sittings of the court were held, or on different days or at different times from those at which the ordinary sittings took place. Proceedings were to be in private, and special provision was made for the segregation of juveniles and adults during the hearings.
42. In 1925 a Scottish departmental committee, under the chairmanship of Sir George Morton, K.C., was appointed to enquire into the treatment of young offenders and young people requiring care or protection. The Committee * found that throughout Scotland the general pattern was for juvenile cases to be heard by the Sheriff Courts or the Burgh Courts, and that, except in Lanarkshire, juvenile courts attached to the Justice of the Peace Courts were not functioning to any extent. The Committee recommended transfer of jurisdiction in the case of children and young offenders to specially constituted Justice of the Peace juvenile courts-the members of the court to be drawn from a panel of justices, appointed by the body of justices as a whole from their own number, and comprising persons who by knowledge and experience were specially qualified to consider juvenile cases. The Children and Young Persons (Scotland) Act, 1932 (later consolidated in the Children and Young Persons (Scotland) Act, 1937), provided for the setting up of such courts in any area where an order to that effect has been made by the Secretary of State. Only four such orders have been made-all prior to 1940-applying to the counties of Ayr, Fife, Renfrew and the city of Aberdeen. A further recommendation of the 1925 Committee for the raising of the minimum age of criminal responsibility from 7 to 8 years of age-was also enacted in 1932.
THE EXISTING JUVENILE COURTS
43. We were thus faced at the outset of our inquiry with the fact that throughout Scotland four distinct types of court are at present dealing with juvenile cases, namely, the Sheriff Court, the Burgh (or Police) Courts, the Justice of the Peace Courts, and-in Ayrshire, Renfrewshire, Fife and the city of Aberdeen-the specially constituted J.P. Juvenile Courts. The Sheriff Juvenile Court is, of course, presided over by a single judge (normally a Sheriff Substitute) who is legally qualified and whose appointment is permanent. The Burgh (or Police) Courts on the other hand are presided over by a single bailie, who holds office normally for three years, and is an elected town councillor appointed to this office by his fellow councillors. Justice of the Peace Courts comprise lay justices from the roll of justices appointed to the Commission of the Peace on the nomination of the Secretary of State, appointments being permanent, subject only to an upper age-limit. In the four areas having specially constituted J.P. Juvenile Courts, the special panel of justices for this purpose is appointed by the body of Justices from their own number for a period of three years, appointments being renewable and subject to a retiring age-limit of 65. In the city of Glasgow the work of the Police Courts is spread among three courts (the Central, Marine and Govan Police Courts). The former is presided over by the Stipendiary Magistrate, who is legally qualified and holds full-time appointment, while the two latter are presided over by bailies. These three courts, which sit as courts of summary jurisdiction dealing with adult offenders in the city, also sit as juvenile courts.
CHOICE OF COURT IN INDIVIDUAL CASES
44. In relation to individual cases, the choice of court may be affected by the following considerations. First, the Summary Jurisdiction (Scotland) Act, 1954, provides that various common law offences, principally those involving dishonesty (theft, fraud, etc.) in which the value of the stolen goods exceeds a certain figure, are not to be taken in burgh or J.P. courts but in the Sheriff Court, and outside the four areas with special J.P. Juvenile Courts, this has the effect that an appreciable number of juvenile cases are heard in the Sheriff Court (sitting as a juvenile court). Secondly, in many landward areas, J.P. courts do not function, or function only rarely, and in practice in these areas all juvenile cases are heard by the Sheriff Court since it is functioning permanently. Thirdly, while the 1937 Act proceeds on the general assumption that juvenile cases will be heard summarily, this is subject to the over-riding discretion of the Lord Advocate under the common law to direct the taking of particular cases in the Sheriff Court or a higher court, either summarily or on indictment. Fourthly, while the specially constituted J.P. Juvenile Courts in the four areas mentioned have the same jurisdiction to hear juvenile cases as the Sheriff Court, and their powers are in practice similar (except in relation to the power to order borstal training), the Act expressly saves the power of the Lord Advocate to order proceedings to be taken in the Sheriff Court or the High Court. Moreover, it was held in Weir v. Cruickshank (1959, J.C. 94) that in these areas the Sheriff Court retains a concurrent jurisdiction with the special J.P. Juvenile Court. Fifthly, we understand that in view of doubts as to the power of courts of summary jurisdiction (other than the Sheriff Court) to order disqualification on conviction of road traffic offences, it has hitherto been the general practice to take juvenile cases involving offences carrying such a liability in the Sheriff Court. (Under the Road Traffic Act, 1962, the Sheriff Court is now the sole court of summary jurisdiction with power to order disqualification.)
DISTRIBUTION OF JUVENILE COURT BUSINESS
45. All these factors influence the distribution of business in the juvenile courts, which in 1962 was broadly as follows:
Sheriff Courts-32 per cent;
Burgh (Police) Courts-45 per cent (the Glasgow Police Courts accounting for about 33 per cent);
Specially constituted J.P. Juvenile Courts-16 per cent;
Other J.P. Courts-7 per cent.
THE NON-CRIMINAL JURISDICTION OF THE JUVENILE COURTS
46. All juvenile courts, in addition to exercising a criminal jurisdiction in respect of juvenile offenders, have a civil or protective jurisdiction in relation to "care or protection" cases (including truancy and refractory cases beyond parental control), though as the figures indicate, these occupy only a small proportion of the courts' time. In most areas, the same juvenile court deals with juvenile offenders and juveniles in need of care or protection alike. In Edinburgh, however, the Burgh Juvenile Court does not deal with truancy cases, or in Glasgow with care or protection proceedings (including truancy cases). These are in both cities dealt with by the J.P. Juvenile Courts, or, in some cases, by the Sheriff Juvenile Courts.
VARIETY OF JUVENILE COURTS PRELIMINARY OBSERVATIONS ON THE EVIDENCE RECEIVED
47. These local arrangements rest in many cases simply on practice and have no doubt been developed in response to the needs of particular local situations rather than on any consciouslyaimed principle. It is, however, clear that- the four special areas apart-the Justice of the Peace Courts in Scotland play only a limited part in the hearing of juvenile cases, that in this field, as in criminal cases generally, even allowing for the special juvenile courts in the four areas, the J.P. Court has not taken extensive root in Scotland, and that in this respect the situation is very different from that prevailing in England and Wales.
48. Faced with this variety of juvenile courts, a number of the witnesses who appeared before us urged the adoption of a uniform system, or, short of that, a reduction in the number of existing types of juvenile court. Contrast was drawn, at one level of discussion, between the characteristics of each of the main types of court, it being said, for example, that the hearing of juvenile cases demanded special knowledge, experience and sympathetic understanding of children qualities not necessarily to be found among those presiding in the Sheriff or Burgh Courts, though within both it was no doubt possible to point to individual persons who admirably fulfilled this criterion. It was equally conceded that while the Juvenile Court Rules governing the appointment of panels for the specially constituted J.P. Juvenile Courts assumed that those concerned were to be "specially qualified," there was no clear criterion as to qualifications; that in fact in some areas such appointments (made by the Justices from their own number) tended to be on a somewhat arbitrary basis; and that even in these areas there was sometimes very little continuity of service on the juvenile court bench. On the other hand, in support of the burgh courts, it was said that the magistrates usually had a reasonably intimate practical knowledge of local social conditions and great familiarity with the local idiom, and might in that sense be expected to establish closer contact with the children appearing before them. It was, however, recognised that local knowledge was not in itself a sufficient criterion, that the qualities to be looked for were essentially personal, and could not be guaranteed by the present or any other preconceived arrangement.
49. Those of our witnesses who were concerned about the effects of lack of continuity tended to assume that a preferable solution might lie in the transfer of all juvenile court business to the Sheriff Courts, and some visualised that in such a situation the Sheriff- Substitute might sit with lay assessors, a hybrid bench of this kind combining the advantages of legal training (of advantage in relation to the determination of innocence or guilt) and of special qualities of experience and understanding of children (of special value in considering the methods of treatment to be applied). We do not consider it necessary at this stage to comment in detail on the various arguments, save to indicate that they point to two separate aspects of court procedure, namely, the legal issue of determination of guilt or innocence; and, in cases in which there is a finding of guilt, the subsequent question of sentence, or measures to be applied appropriate to the circumstances of the case.
* Report of the Departmental Committee. "Protection and Training", 1928.