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 (High Court of Justiciary)

Factual and Procedural Background

This opinion concerns references made by Her Majesty's Advocate to the High Court of Justiciary under section 288AB(4) of the Criminal Procedure (Scotland) Act 1995, relating to summary prosecutions of two minors, referred to as Minuter JH and Minuter LL. The central matter is whether the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the UNCRC Act) applies to the Lord Advocate when exercising prosecutorial functions, and if so, whether there has been a breach of the Convention in the prosecutions of these minors, particularly regarding procedural safeguards such as court privacy.

JH, aged 17, was arrested for multiple offences including abusive behaviour and assault. His hearings initially took place in public courts without special arrangements for his age, and without recorded views from JH. LL, also 17, faced similar charges and procedural circumstances. Both prosecutions raised questions about compliance with the UNCRC Act, specifically whether prosecuting children in adult forums without appropriate procedural protections breaches the Convention.

The Crown referred these compatibility issues to the High Court, seeking clarity on the applicability of the UNCRC Act to prosecutorial decisions and the consequences of any breaches.

Legal Issues Presented

1. Whether the UNCRC Act applies to the Lord Advocate in the exercise of prosecutorial functions, specifically in relation to children under 18.
2. If applicable, whether the Lord Advocate has a duty to ensure prosecutions comply with the UNCRC, including conducting proceedings in courts excluding the public where appropriate.
3. Whether there has been a breach of the UNCRC requirements in the prosecutions of the two minors.
4. What the consequences should be for the prosecutions if breaches are found.

Arguments of the Parties

Crown's Arguments

• The Lord Advocate's prosecutorial functions are not "relevant functions" within section 6(2) of the UNCRC Act because they are not functions conferred by the Scottish Parliament but arise from common law and statutory requirements.
• Even if prosecutorial functions are relevant, the Lord Advocate did not act unlawfully or incompatibly with the UNCRC requirements in these prosecutions.
• The Lord Advocate acts independently and her functions are protected to maintain impartiality and public confidence.
• The procedural arrangements that led to public hearings were made by the sheriff court, not the Crown, and the Crown took account of the best interests of the children when deciding to prosecute.
• Deserting the prosecutions would be premature and inappropriate given the rights of victims and the wider interests of justice.
• The forthcoming trials should comply with statutory provisions ensuring privacy and special arrangements for child defendants.

The Commissioner for Children and Young People in Scotland's Arguments

• The Lord Advocate is exercising a relevant function under section 6(1) of the UNCRC Act when deciding to prosecute children.
• The prosecutorial powers arise from common law but are subject to statutory incorporation of the UNCRC rights.
• The legislative intent and statutory amendments indicate that prosecutorial decisions are covered by the UNCRC Act.
• The right to privacy and fair trial for children requires closed proceedings and special safeguards to enable effective participation.
• There has been a breach of the UNCRC requirements due to public hearings and lack of adequate procedural protections.
• The appropriate remedy for breaches is desertion of the charges simpliciter or orders ensuring future hearings are held in private.

Minuters' Arguments

• The Lord Advocate's prosecutorial functions in summary criminal proceedings are relevant functions under section 6(2) of the UNCRC Act.
• Public authorities acted unlawfully under section 6(1) by breaching Articles 3, 12, and 40 of the UNCRC.
• The breaches include conducting hearings in public contrary to statutory requirements for children.
• The only appropriate remedy is desertion of the charges simpliciter or orders mandating private hearings in compliance with statutory provisions.
• The UNCRC Act imposes a prohibition removing the power of public authorities to act incompatibly with the Convention.
• The Lord Advocate is personally barred from arguing non-applicability due to legislative history and ministerial statements.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed statutory interpretation of section 6 of the UNCRC Act, focusing on the meaning of "relevant function" and whether prosecutorial functions of the Lord Advocate fall within this definition. The court noted that the Lord Advocate is undisputedly a public authority and that prosecutorial decisions constitute public functions.

The Crown's argument that prosecutorial functions are not relevant functions because they are not conferred by the Scottish Parliament was rejected. The court found that the inclusion of prosecutorial decisions within the scope of the UNCRC Act is consistent with the legislative intent, reinforced by the Children (Care and Justice) (Scotland) Act 2024, which introduced procedural safeguards and remedies relating to prosecutorial breaches.

The court acknowledged the independence and constitutional status of the Lord Advocate but held that this does not exclude her prosecutorial functions from the UNCRC Act's requirements. The statutory scheme, ministerial statements, and legislative history support the application of the UNCRC Act to prosecutorial decisions involving children.

Regarding the facts, the court found that the decision to prosecute both minors was lawful and took the best interests of the children and complainers into account. However, procedural hearings that took place in public may have breached the Convention's requirements for privacy and effective participation, particularly as required by section 142 of the 1995 Act.

Despite these procedural breaches, the court concluded that these did not amount to unlawful acts by the Lord Advocate, as the arrangements were made by the sheriff court and not the Crown. The breaches were characterized as minor or technical and did not affect the minors' ability to present their defence or express their views. Accordingly, desertion of the prosecutions was not deemed appropriate.

The court emphasized the necessity for future hearings and trials to comply strictly with statutory provisions ensuring privacy and special procedural safeguards for child defendants.

Holding and Implications

The court held that:

• The Lord Advocate's prosecutorial functions are "relevant functions" within section 6(1) of the UNCRC Act and thus must comply with the Convention's requirements when prosecuting children.
• The decision to prosecute the two minors was lawful and compatible with the UNCRC requirements.
• Procedural breaches relating to public hearings occurred but were not attributable to the Lord Advocate and did not render the prosecutions unlawful.
• Desertion of the prosecutions is not justified on the basis of the procedural breaches identified.
• Future hearings must comply with section 142 of the 1995 Act, ensuring privacy and appropriate procedural safeguards for child defendants.

Implications: The decision clarifies that prosecutorial decisions by the Lord Advocate are subject to the UNCRC Act, reinforcing the requirement for child-sensitive procedures in criminal prosecutions. However, procedural breaches not caused by the Crown do not necessarily invalidate prosecutions. The ruling upholds the balance between child rights and the interests of justice without setting a new precedent that prosecutions must be deserted for privacy breaches alone. The ruling directs courts and parties to ensure compliance with statutory privacy provisions in future proceedings involving children.