After an assault S, aged 15, was detained, arrested and charged with assaulting L. The procurator fiscal decided not to prosecute, and the matter was reported to the police and to the reporter and on to a children’s hearing to consider if measures of supervision were necessary and also if he had committed an offence. S to denied an assault, and that question was referred to a sheriff for determination. Such a proceeding had some features of a criminal proceeding. The criminal burden applied and an adverse finding would be a conviction to which the Rehabilitation of Offenders Act 1974 applied. It was accepted by S in the Court of Session that the children’s hearing would determine S’s civil rights and obligations within the meaning of article 6; the question was whether, as S contended, it would determine a criminal charge against him within the meaning of the article. The reporter tried to show that S had committed a criminal assault, but the proceedings were categorised as civil and not criminal.
Held: Ruling against S on this issue. Lord Rodger of Earlsferry Lord President: ‘In itself the character which the proceedings have in our domestic law is not, of course, conclusive of the character which they should have under the Convention. Nevertheless, if one asks why, ultimately, Parliament has provided for civil rather than criminal proceedings, then the answer must be that, even though they may involve establishing that the child has committed an offence, there is no possibility of the child being punished, having a penalty imposed. On the contrary, in a sec 52(2)(i) case, as in any other, the aim of all the measures in chap 3 of the 1995 Act is, as its title proclaims, the ‘Protection and Supervision of Children’. More particularly, sec 52 deals with ‘Children requiring compulsory measures of supervision’ and so the aim of all such proceedings is for the hearing to determine whether the child concerned requires such compulsory supervision in his own interests, the decision always being taken with the child’s welfare as the paramount consideration (sec 16(1)). Similarly, the reporter can refer a case to a hearing under sec 65(1) for determination on the merits only if he is satisfied, not merely that the child has committed an offence, but also that compulsory measures of supervision are necessary. In my view such proceedings which are instituted to promote the child’s welfare and have no penal element at all do not involve ‘the determination . . of any criminal charge against’ the child in terms of art 6.’
and ‘the very titles of such codes of criminal law will often reveal that they are indeed concerned essentially with ‘matiere penale’. For instance, in France there is a ‘code penale’, in Italy a ‘codice penale’, in Spain a ‘codigo penal’ and in Germany a ‘Strafgesetzbuch’. It follows that when, in such cases as Ozturk, the court investgiates whether the text defining the offence belongs to criminal law, it is investigating whether the text belongs to an area of the law where proceedings can result in a penalty being imposed.’
Lord Penrose and Lord Macfadyen concluded that the proceedings did not involve the determination of a criminal charge since they were not of a penal character but were designed to promote the welfare of the child. The criminal proceedings against S came to an end when the procurator fiscal decided not to proceed with the charge.
Judges:
Lord President (Rodger), Lord Penrose, Lord Macfadyen
Citations:
2001 SC 977
Statutes:
Children (Scotland) Act 1995 52(2)
Jurisdiction:
Scotland
Cited by:
Cited – R, Regina (on the Application of) v Durham Constabulary and Another HL 17-Mar-2005
The appellant, a boy aged 15, had been warned as to admitted indecent assaults on girls. He complained that it had not been explained to him that the result would be that his name would be placed on the sex offenders register. The Chief Constable . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.
Children, Criminal Practice
Updated: 13 May 2022; Ref: scu.224205