Introduction

The case titled References by HMA to the High Court of Judiciary in the summary prosecutions by the Procurator Fiscal Dundee against JH & LL and the Commissioner for Children and Young People in Scotland ([2025] HCJAC 2) represents a pivotal moment in Scottish legal history. This case examined whether the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (UNCRC Act) applies to the Lord Advocate in the exercise of prosecutorial functions. The key issues revolved around the legal obligations of prosecuting children under 18, ensuring compliance with the Convention, and the implications for public versus private court proceedings. The parties involved included the Procurator Fiscal Dundee, defendants JH and LL Minuters, and the Commissioner for Children and Young People in Scotland, with the case being heard in the Scottish High Court of Justiciary.

Summary of the Judgment

The High Court of Justiciary, presided over by Lord Justice General Lord Armstrong and other Justices, delivered a comprehensive opinion addressing the applicability of the UNCRC Act to prosecutorial functions. The court concluded that the Lord Advocate is indeed a public authority under section 6(1) of the UNCRC Act when exercising prosecutorial duties. Consequently, the prosecutions of minors JH and LL were scrutinized for compliance with the Convention's requirements.

The court found that certain procedural breaches occurred, such as public hearings involving minors, which conflicted with Articles 12 and 40 of the UNCRC. However, these breaches were deemed minor or technical, and the court ultimately decided that continuing the prosecutions would not be unlawful. The court emphasized the necessity for future proceedings to adhere strictly to the UNCRC requirements, ensuring hearings involving minors are conducted privately to protect their rights and dignity.

Analysis

Precedents Cited

The judgment referenced several key precedents to shape its reasoning. Notable among them was Dyer v Watson 2002 SC (PC) 98, which highlighted the Lord Advocate's commitment to the UNCRC's spirit. Additionally, R (Jackson) v Attorney General [2006] 1 AC 262 underscored the constitutional duty to ascertain statutory applicability swiftly. The case also invoked Thom v HM Advocate 1976 JC 48 and HM Advocate v Cooney 2022 JC 108, which affirmed the Lord Advocate's prosecutorial powers. These precedents collectively reinforced the Lord Advocate's role and the necessity to interpret the UNCRC Act in alignment with established legal principles.

Legal Reasoning

The court meticulously analyzed the statutory language of the UNCRC Act, particularly section 6, which prohibits public authorities from acting in ways incompatible with the Convention. Central to the reasoning was the interpretation of "relevant function," determined through the lens of legislative intent and statutory context. The court concluded that prosecutorial functions inherently fall within relevant functions, thereby subjecting the Lord Advocate to the Act's provisions.

Furthermore, the court assessed whether the Lord Advocate’s actions in prosecuting minors complied with articles emphasizing the child’s best interests, right to be heard, and privacy. While procedural lapses were identified, the overarching decision to prosecute was deemed lawful, provided future proceedings align with the Convention's safeguards. The court emphasized the balance between public interest and the protection of children's rights, ultimately advocating for procedural reforms to ensure compliance.

Impact

This judgment sets a significant precedent in Scottish law by unequivocally applying the UNCRC Act to prosecutorial functions. It mandates that all prosecutions involving minors must adhere to the Convention's requirements, particularly concerning privacy and the child’s participation in proceedings. Future cases will require the Lord Advocate and prosecutorial bodies to conduct proceedings in a manner that safeguards children's rights, potentially leading to systemic changes in court procedures and prosecutorial practices.

Additionally, the decision reinforces the accountability of public authorities in upholding international conventions within domestic law. It serves as a legal benchmark for assessing prosecutorial actions and ensures that children's rights are prioritized in the justice system. Over time, this could lead to enhanced training for legal professionals and the implementation of child-friendly judicial processes.

Complex Concepts Simplified

UNCRC Incorporation Act 2024

This Act integrates the United Nations Convention on the Rights of the Child into Scottish law, making its provisions legally binding. It ensures that all public authorities act in ways that respect and promote children's rights as outlined in the Convention.

Relevant Function

A "relevant function" refers to any role or duty performed by a public authority that falls within the scope of powers granted by the Scottish Parliament. In this context, the Lord Advocate's prosecutorial duties are considered relevant functions subject to the UNCRC Act's requirements.

Section 6 of the UNCRC Act

This section prohibits public authorities from acting in ways that conflict with the UNCRC's provisions. It establishes that any action or inaction by a public authority, including prosecutorial decisions, must comply with the Convention's standards.

Compatibility Minute

A compatibility minute is a procedural tool used to raise concerns that a prosecution may violate the UNCRC Act. It allows defendants or their representatives to request the court to examine whether prosecutorial actions are compatible with children's rights under the Convention.

Conclusion

The High Court of Justiciary's judgment in [2025] HCJAC 2 marks a transformative step in aligning Scottish prosecutorial practices with international standards on children's rights. By affirming that the UNCRC Incorporation Act 2024 applies to the Lord Advocate's functions, the court has reinforced the imperative to protect minors within the criminal justice system. This decision not only safeguards the rights and dignity of child defendants but also ensures that prosecutorial decisions are subject to rigorous legal scrutiny to prevent violations of the Convention.

Moving forward, legal practitioners, the Lord Advocate, and judicial bodies must integrate the principles of the UNCRC Act into their operations, ensuring that all prosecutions involving minors are conducted with sensitivity and adherence to established rights. The judgment underscores the judiciary's role in upholding human rights and sets a clear mandate for the evolution of child-centric legal processes in Scotland.