'Communication with victim key' in new process for dealing with child sexual offenders

The Lord Advocate has unveiled new processes for handling future rape cases where the accused is a child.

The changes are focused on the decision to use diversion from prosecution or referral to the Children’s Reporter as alternatives to prosecution in solemn-level sexual offending.

Lord Advocate Dorothy Bain KC said: “I am intensely aware of the trauma experienced by victims of sexual crime and their loved ones. These are among the most difficult cases we deal with. We are trusted to make appropriate decisions and must uphold the trust placed in us. “

The changes come after an in-depth review of diversion and referral to the Children’s Reporter and the revised policy incorporates consultation with victim support organisations, youth work services and legal agencies as well as local authorities and academics.

The considerations we will bear in mind in deciding what should be done in these cases are multi-layered and must reflect the rights of everyone involved.

Understanding diversions and referrals

In diversion, an offender is referred by COPFS to local authority social work services or a partner agency for support, treatment, or other action to address the underlying causes of the alleged offending and prevent further criminality. Its application is guided by the Scottish Prosecution Code and its use for offenders under 18 is in keeping with our obligations to children in terms of the UN Convention on the Rights of the Child.

The Children’s Reporter decide if there should be a hearing arranged to consider and make decisions about children and young people who may need legal steps to be taken to address issues in their lives.

The full policy is available to view here

Key points from new policy

The policy emphasises that, “given the seriousness of the offence of rape and other solemn level sexual offending” and its impact, a decision to divert or refer a case as an alternative to prosecution is only possible in certain circumstances.

The guidance is provided for prosecutors when considering if diversion or referral are appropriate.

Communication with the victim

Views of victim should be sought at earliest opportunity whether the victim is a child or an adult

• Before decision is made to refer reported child to Reporter
• In cases of diversion, victim’s views should be obtained before assessing suitable diversion programmes

• Victim’s views should include
  • Impact of offending on them
  • Victim’s view of risk of offender if offered alternative prosecution
  • Need for non-harassment order
  • Victim’s feelings about court proceedings, giving evidence and timescales

Communicating decisions

If offender is referred to Reporter, victim must be made aware. In a case where a diversion is offered, personal details of the reportered child will not be shared but victim should be made aware of the following as early as possible:

• That reported child has been offered and has chosen to undertake diversion programme
• That as a result no special conditions of bail or undertaking conditions will apply
• Timescale for completion of the programme
• Notification when the reported child has either successfully completed or failed to engage with the programme of diversion
• Crucially, a final decision on whether or not the reported child will be prosecuted

The victim has the right to review, for the purposes of section 4(1) of the Victims and Witnesses (Scotland) Act 2014, the final decision not to prosecute

United Nations Committee on the Rights of the Child (UNCRC) position

In terms of Article 40(3)(b) of the UNCRC, alternatives to prosecution in court should be considered by prosecutors, which allow for the child’s reintegration into society, whenever appropriate and desirable. The United Nations Committee on the Rights of the Child emphasises this in General Comment Number 24 (on children’s rights in the criminal justice system) at para 16:

“Diversion should be the preferred manner of dealing with children in the majority of cases. States parties should continually extend the range of offences for which diversion is possible, including serious offences where appropriate…...Diversion should be an integral part of the child justice system, and, in accordance with art. 40(3)(b) of the Convention, children’s human rights and legal safeguards are to be fully respected and protected in all diversion processes and programmes.”

Gravity of the offence

The new guidance sets out a series of factors which indicate a case is not suitable for diversion or referral to the Reporter:

• severe harm to the victim (including physical and psychological harm/trauma)
• repeated offences committed against the same victim
• evidence of the provision of alcohol or controlled substances with the intention of incapacitating the victim
• evidence the victim was criminally exploited by the reported individual, including online exploitation
• evidence of grooming
• the reported individual was in a position of power and particularly if the offence involved a breach of trust
• evidence of the use of force along with the use of violence, threats of violence, and/or coercion or coercive control
• evidence of the use of a weapon or other item to frighten or injure the victim
• evidence that the offence involved prolonged detention or was of a sustained nature
• evidence of a significant degree of planning of the offence
• evidence of deception to facilitate the offence
• evidence of the presence of others during the commission of the offence, especially children
• the victim was vulnerable, due to their age or other circumstances, including evidence that the victim was asleep or unconscious.

Similarly in cases where the offence involves domestic abuse, the presumption in favour of prosecution set out in the Joint Protocol on domestic abuse applies even when reported individual is a child. This presumption in favour of prosecution must therefore be balanced against the presumption against prosecution in court for all individuals under the age of 18.

Ongoing concerns about a reported individual’s behaviour may also indicate diversion or referral is not appropriate.

Lord Advocate statement in full

Lord Advocate Dorothy Bain KC said: “I am intensely aware of the trauma experienced by victims of sexual crime and their loved ones. These are among the most difficult cases we deal with. We are trusted to make appropriate decisions and must uphold the trust placed in us.

“I am pleased to note that communication with victims is central to the new policy. I have instructed that the views of the victim should be obtained before any application is made for a decision to be taken, and victims are to be informed as soon as an outcome is determined.

“The considerations we will bear in mind in deciding what should be done in these cases are multi-layered and must reflect the rights of everyone involved. I hope that the publication of our policy will assist in understanding of how decisions are reached and improve confidence in them.”