Children and young people are treated differently from adults if they get in trouble with the police. What happens depends on their age and how serious the crime is.
Age of criminal responsibility and criminal prosecution
The age of criminal responsibility in Scotland is 12 years old. This means a child under the age of 12 cannot be arrested, charged or prosecuted for a crime. It is not possible for a child under 12 to get a criminal conviction.
The age of criminal prosecution is 12 years old. If the behaviour of a child under 12 has been harmful, they will not go to a criminal court. Instead their case may go to a Children's Hearing. The hearing will focus on the child's behaviour and circumstances. It is not possible for a child under 12 to get a criminal conviction.
Children aged 12 to 16 can go to court but only for serious crimes. For most offences they will get an early intervention, such as:
- a warning
- help from a support organisation
- going to a Children's Hearing
What the police can do
The police can stop and search young people they think have committed a crime.
If you're 12 or older the police can arrest you, take you to a police station and ask you questions about what happened.
Young people have extra rights if they're arrested. For example, the police must try to contact your parent or guardian if you're under 16.
If the police charge you with an offence they'll normally then release you. However, they may keep you in custody if you're 12 or over and you have been charged with a very serious crime.
If the police keep you in custody this must be at a 'place of safety' such as a children's home or secure care. They should only keep you at the police station if there are no other options, for example if they think you'll be a danger to yourself or others.
The police can only keep you in custody at a station if a senior police officer agrees.
What happens next depends on your age and how serious the crime is.
If you're aged 12 to 16 (or have a compulsory supervision order)
The procurator fiscal can discuss the case with the Children's Reporter to decide whether to send your case to either:
- a Children's Hearing
- a criminal court
If you're 16 or 17 (and do not have a compulsory supervision order)
The procurator fiscal can decide whether or not to send your case to a criminal court.
The procurator fiscal is the lawyer who presents the case against you at court. They're also known as prosecutors.
If the police cannot charge a young person (for example, because they have not been able to contact them) they can still refer them to a Children's Reporter to decide what should happen.
If the crime is not serious
If you've been charged with a minor crime the police can decide to:
- send you and your parents a warning letter
- get you help for a problem – for example, for drugs or alcohol
- give you a restorative police warning – a police officer will help you understand the effect of the crime and take responsibility
- give you a recorded police warning – if you're 16 or over and not on a compulsory supervision order
Police warnings or help from a support organisation will not become part of your criminal record. Information about the crime could be included on an enhanced disclosure or a Protecting Vulnerable Groups (PVG) scheme record as 'other relevant information' by the police.
Instead of going to court
If you're 16 or 17 and the police refer your case to the procurator fiscal, they can decide to give you a direct measure (like a fine or warning) if the crime is not serious.
The procurator fiscal can also put you on a 'diversion from prosecution' scheme. You'll get help from a social worker or another organisation (for example, mental health support).
Direct measures do not count as convictions but you must admit to the crime. Information about the direct measure could be included on an enhanced disclosure or a Protecting Vulnerable Groups (PVG) scheme record as 'other relevant information' by the police.
If you do not agree to the direct measure, the procurator fiscal can send your case to a criminal court.
A Children's Hearing is a meeting where a panel of trained people will listen to the problems you're having and decide what could help you.
This could be a compulsory supervision order, a legal order that could say:
- where you should live
- who you should live with or see
- whether anyone should not be told about your situation
Children under 12 can only be referred to a Children's Hearing on 'non-offence grounds'. This means the hearing will be about caring for and protecting the child, and not about the crime they may have committed. This can't become part of a criminal record.
If the child is 12 or older, they could be referred to a Children's Hearing on 'offence grounds'. This can become part of a criminal record.
If your case goes to court
A court support worker or social worker will help you at court, tell you what to expect and answer any questions you have.
If you're under 18 you can use 'special measures' when giving evidence, such as a live TV link or having a supporter to sit next to you.
The court will be closed to the public if you're under 16 (or under 18 with a compulsory supervision order).
The police and the courts try to keep young people out of custody when possible, for example:
- releasing them on a police undertaking or on bail until a trial or sentencing hearing
- giving a community sentence (like Community Payback Orders or tagging) instead of sentencing them to custody
Find out more about what happens if your case goes to court.
Remand and custody
If you are held on remand until a court date or sentenced to custody you may go to:
- secure care (if you're under 18)
- a young offenders institution (if you're aged between 16 and 21)
A child under 12 cannot be held on remand or sentenced to custody.
Help and advice
You can get advice from a solicitor if you need legal help after getting in trouble with the police. This is free at a police station.
Generally, if you're 12 or older, you can choose your own legal representation as long as you understand what you're doing.
If you need help with your legal costs you might be able to get:
- advice and assistance (help with the costs of getting legal advice from a solicitor)
- criminal legal aid (if your case is going to a criminal court)
- Children's Hearing legal aid (including representation at a Children's Hearing or Children's Hearing court case)
If you are under 12 years old and the police are seeking an order to investigate your behaviour, you might be asked to go to court. You can seek legal help from a lawyer and this could be free. You can contact the Scottish Legal Aid Board on 0131 560 2118 or email firstname.lastname@example.org
There are also support organisations who can give you free information and advice, including:
Citizens Advice can provide information on young people's rights and legal aid.
The journey through justice guide gives children and young people information about what happens after you're charged by the police.
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