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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> S v Principal Reporter & Anor [2001] ScotCS 82 (30 March 2001)
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Cite as: [2001] ScotCS 82
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord President Lord Penrose Lord Macfadyen |
A2730/00 OPINION OF THE LORD PRESIDENT in REMITTED CASE under the Children (Scotland) At 1995, Section 68 From the Sheriffdom of South Strathclyde, Dumfries and Galloway at Lanark in the cause S. Minuter; against THE PRINCIPAL REPORTER and THE LORD ADVOCATE Respondents: _______ |
Act: Bell, Q.C., Collins; Drummond Miller, W.S. (Ross Harpers, Glasgow)
Alt: J.J. Mitchell, Q.C., J.M. Scott; Biggart Baillie: Solicitor General Shand, Davidson, Q.C.; Solicitor to the Scottish Executive
30 March 2001
[1] History
The minuter ("S") was born in April 1984. In the early hours of the morning of Sunday 31 October 1999, when he was 15, S and his father were involved in an incident in which his father was so badly injured that he died some months later. In the course of the same incident another man, L, was also injured. Following the incident, the police detained S in terms of Section 14 of the Criminal Procedure (Scotland) Act 1995 and, eventually, he was arrested and charged with assaulting L. During the morning of Monday, 1 November, representatives of the Social Work Department took S from Lanark Police Station to the home of a family friend, which was a place of safety in terms of Section 43(4) of the Criminal Procedure Act.
[2] By virtue of Section 17(1)(b) of the Police (Scotland) Act 1967 the police officers concerned were under a duty to make such reports to the procurator fiscal as might be necessary for the purpose of bringing S with all due speed to justice. In addition, however, under Section 53(3) of the Children (Scotland) Act 1995 ("the 1995 Act"), they had also to make the same reports to the relevant Authority Reporter ("the Reporter"). Having considered the papers, the procurator fiscal decided not to proceed with the charge against S, who remained, however, in the place of safety. The Reporter was informed of this by the police in terms of Section 43(5) of the Criminal Procedure Act. In these circumstances it was the Reporter's duty under Section 63(1) of the 1995 Act to arrange a children's hearing and to refer the case of S to that hearing "unless he [considered] that compulsory measures of supervision were not required in relation to the child." The Reporter did not consider that such measures were not required and so he duly arranged a children's hearing which took place on 2 November. S was present at the hearing and apparently already had the benefit of the advice of a solicitor but the solicitor did not actually represent him at the hearing. In terms of Section 63(5) the hearing directed the Reporter to arrange a hearing in seven days for the purposes of Section 65(1) which provides inter alia:
"The Principal Reporter shall refer to the children's hearing, for consideration and determination on the merits, the case of any child in respect of whom he is satisfied that -
(a) compulsory measures of supervision are necessary, and
(b) at least one of the grounds specified in section 52(2) of this Act
is established...".
Under Section 52(1) the question of whether compulsory measures of supervision are necessary arises in respect of a child if at least one of the twelve conditions mentioned in subsection (2) is satisfied with respect to him. Those conditions are various but include condition (i), that "he has committed an offence".
[3] In fact the hearing did not go ahead on 9 November and on 9 December the Reporter eventually notified S and his mother (as the "relevant person" in terms of section 93(2)(b)) that a hearing had been arranged for 22 December to consider his case. The reason for the hearing was
"That he has committed an offence as specified below, being grounds for referral in terms of Section 52(2)(i) of the Children (Scotland) Act 1995"
and the specification in the Statement of Facts was
"That on 31st October 1999, while acting with another, within the dwellinghouse at [an address in] Carstairs, South Lanarkshire District, he did assault [L] (29) c/o Lanark Police Office, and did strike him repeatedly on the head and body with a baseball bat or similar instrument to his serious injury. Being an offence of Assault."
The hearing duly took place on 22 December. Again, although S had the benefit of legal advice and assistance in connexion with the hearing and his solicitor was present in the building where the hearing took place, the solicitor did not actually attend the hearing or represent S at the hearing. Since the Reporter had referred S's case to the hearing under Section 65(1), when the proceedings began the chairman of the hearing was required in terms of Section 65(4) to explain the grounds for referral to S and to his mother, "to ascertain whether these grounds [were] accepted in whole or in part by them." This he did.
[4] What happened next depended on the response of S and his mother to this explanation. Since this aspect of the procedure was the subject of considerable debate in the hearing before us, it is useful to set out the statutory provisions in full, even although, of course, only some of them were activated in this case. Subsections (5) - (9) of Section 65 are in these terms:
"(5) Where the chairman has given the explanation required by subsection (4) above and the child and the relevant person accept the grounds for the referral, the children's hearing shall proceed in accordance with section 69 of this Act.
(6) Where the chairman has given the explanation required by subsection (4) above and the child and the relevant person accept the grounds in part, the children's hearing may, if they consider it appropriate to do so, proceed in accordance with section 69 of this Act with respect to those grounds which are accepted.
(7) Where the chairman has given the explanation required under subsection (4) above and either or both of the child and the relevant person -
(a) do not accept the grounds for the referral, or
(b) accept the grounds in part, but the children's hearing do not
consider it appropriate to proceed with the case under subsection (6) above,
the hearing shall either direct the Principal Reporter to make an application to the sheriff for a finding as to whether such grounds for the referral as are not accepted by the child and the relevant person are established or shall discharge the referral.
(8) Subject to subsection (10) below, it shall be the duty of the chairman to explain to the child and to the relevant person the purpose for which the application to the sheriff is being made and to inform the child that he is under an obligation to attend the hearing before the sheriff.
(9) Where a children's hearing are satisfied that the child -
(a) for any reason will not be capable of understanding the
explanation of the grounds for the referral required under subsection (4) above; or
(b) has not understood an explanation given under that subsection,
they shall either direct the Principal Reporter to make an application to the sheriff for a finding as to whether any of the grounds of the referral are established or discharge the referral."
[5] In fact S and his mother did not accept the ground for referral and the hearing then directed the Reporter in terms of subsection (7) to apply to the sheriff for a finding as to whether the ground for referral was established. As directed, the Reporter applied to the sheriff and on 29 December the sheriff assigned 12 January 2000 in Lanark Sheriff Court for the hearing. The following day the Reporter notified S and his mother that the hearing had been fixed for that date. At the hearing on 12 January S and his mother were present. S had legal aid and was represented by a solicitor. On the joint motion of the Reporter and S's solicitor, the hearing was adjourned until 14 February when a minute was tendered on behalf of S raising a devolution issue. In due course, on 17 August the Sheriff referred the case to this court in terms of paragraph 7 of Schedule 6 to the Scotland Act 1998.
[6] In the proceedings before us counsel concentrated almost entirely on the supposed compatibility or incompatibility of various aspects of procedure before children's hearings in Scotland with the European Convention on Human Rights and Fundamental Freedoms as incorporated into our domestic law by the Human Rights Act 1998. This has led to a procedural complication which I discuss at paragraph 41 below. Moreover, almost no time was devoted to considering exactly how these matters constituted a devolution issue in this particular case. In essence, however, I understood that we were being asked to decide whether certain structural aspects of the children's hearings procedures and powers were incompatible with the rights under Articles 5 and 6 of the Convention of children, such as S, who had to appear before them. If they were, then the Scottish Ministers should have taken steps to correct them and their failure to do so was incompatible with the rights of children, including S, who appeared before children's hearings such as the hearings held and, perhaps, still to be held in the case of S. Any such failure to act would not only be unlawful in terms of Section 6(1) and (6) of the Human Rights Act but, more importantly for present purpose, the question as to whether the Scottish Ministers had failed to act in this way would constitute a devolution issue in terms of paragraph 1(e) of Schedule 6 to the Scotland Act. I should record that neither of the respondents in the proceedings sought to argue that S was not a "victim" in terms of Section 100(1) of the Scotland Act and I am therefore content to proceed on the basis that he is. In considering these issues it is convenient to begin with Article 6.
[7] The Nature of the Proceedings in terms of Article 6
Article 6, which is now headed "Right to a fair trial", is in these terms:
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands
and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his
defence;
(c) to defend himself in person or through legal assistance of his
own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot
understand or speak the language used in court."
In the French text of the Convention the opening sentence of Article 6(1) runs:
"Toute personne a droit à ce que sa cause soit entendue équitablement, publiquement et dans un delai raisonnable, par un tribunal indépendant et impartial, établi par la loi, qui décidera, soit des contestations sur ses droits et obligations de caractère civil, soit du bien-fondé de toute accusation en matière pénale dirigée contre lui."
[8] In the answers which the Lord Advocate lodged, on his own behalf and on behalf of the Scottish Ministers, to the devolution issue minute, he did not admit that Article 6 applied at all to proceedings in a children's hearing. But, at the hearing of the reclaiming motion, counsel for the Lord Advocate indicated that he now accepted that it did indeed apply since the hearing was determining the child's civil rights and obligations. This was on either of two possible bases. First, children's hearing proceedings, such as the present, concerned matters relating to the child's family life in terms of Article 8 of the Convention and the child's Article 8 rights constituted a "civil right" for the purposes of Article 6. See McMichael v. United Kingdom Series A No. 307 (1995), pp. 51 - 42, paragraph 75, where the Court saw no reason to differ from the Commission's conclusion to that effect in a case involving a parent in a children's hearing. The Government conceded the point, indeed, before the Court. Secondly, the right to liberty is a civil right: Aerts v. Belgium Reports of Judgments and Decisions 1998-V 1939, p. 1964, paragraph 59. Therefore proceedings before a children's hearing in which the hearing could make a supervision requirement specifying secure accommodation are proceedings for the determination of the child's civil rights. In view of the concession made by the respondents it is unnecessary to explore these matters in more detail in this case.
[9] The result was that the main area of contention before us came to be whether, in a case where the ground for referral is under Section 52(2)(i), that the child "has committed an offence", the hearing is determining the child's civil rights and obligations, as counsel for the Reporter and Lord Advocate maintained, or is determining a criminal charge against him, as counsel for S maintained. The distinction was said to be of importance for two reasons. First, if the proceedings were for the determination of a criminal charge, then the specific guarantees in Article 6(3) would be engaged. Counsel for the Reporter and the Lord Advocate accepted this, of course. Secondly, if the proceedings in the hearing were for the determination of a serious criminal charge such as assault to severe injury, then those proceedings would in themselves, and without any appeal to the sheriff, require to meet the requirements of Article 6. Mr. Collins cited the judgment of the European Court of Human Rights in Findlay v. United Kingdom Reports of Judgments and Decisions 1997-I 263, paragraph 79 in support of this proposition. Having held that there were fundamental flaws in a court-martial on various charges, including assault and threatening to kill, the Court said:
"Nor could the defects referred to above be corrected by any subsequent review proceedings. Since the applicant's hearing was concerned with serious charges classified as 'criminal' under both domestic and Convention law, he was entitled to a first instance tribunal which fully met the requirements of Article 6(1)."
Counsel for the Reporter and the Lord Advocate argued that this was not an absolute entitlement, as could be seen, for example, from the Court's judgment in Öztürk v. Germany Series A No. 73 (1984), pp. 21 - 22, paragraph 56 and Lutz v. Germany Series A No. 123 (1987), p. 24, paragraph 57. Although in these cases the Court had confined their remarks to the situation where the persons concerned were charged with a minor offence, the significant point was that the Court had acknowledged that an administrative form of procedure could be adopted in certain circumstances and that it was sufficient if the person affected had access to an appeal mechanism which complied with Article 6. By parity of reasoning, we should hold that, in the case of this special procedure by means of a children's hearing for establishing whether a child had committed an offence, it would also be sufficient if the child had access to an appeal mechanism in the sheriff court which satisfied the requirements of Article 6.
[10] Determination of a Criminal Charge?
I turn therefore to determine first whether the proceedings were for the determination of a criminal charge. In this connexion we were referred to a number of cases before the European Court in which the question had arisen as to whether particular proceedings were for the determination of a criminal charge in terms of Article 6(1). Mr. Mitchell, Q.C., who appeared for the Reporter, pointed out that the issue in these cases was, however, somewhat different from the issue in the present case. Here it was now accepted by all concerned that Article 6 applied to the proceedings and the only issue was whether the proceedings were for the determination of civil rights and obligations or for the determination of a criminal charge. In the European Court cases the issue was whether Article 6 applied at all: more particularly, the issue was whether the proceedings were of a disciplinary character, where no civil right or obligation fell to be determined and where Article 6 did not apply, or whether the proceedings were for the determination of a criminal charge, in which event Article 6 would apply. That being so, in these cases the Court was not concerned with the distinction which we were being asked to make between one kind of proceeding covered by Article 6 and another kind of proceeding which is also covered by Article. Indeed in Albert and Le Compte v. Belgium Series A No. 58 (1983) p. 17, paragraph 30, the Court observed that it did not "believe that the two aspects, civil and criminal, of Article 6(1) are necessarily mutually exclusive" and it did not find it necessary to consider whether there was a criminal charge in that case.
[11] In addressing the point in this case I note first that, although the language used in Article 6(2) and (3) ("charged with a criminal offence") is different from that in Article 6(1), which refers to "the determination ... of any criminal charge against" a person, it is well established that the three paragraphs refer to the same situation. See, for instance, Lutz Series A No. 123, p. 22 at paragraph 52. So, there is nothing to be gained by considering one particular formulation rather than the other.
[12] Next, what we have to consider is the significance of the entire phrase "charged with a criminal offence". In other words, the question is not simply whether the children's hearing proceedings in S's case in some way involve "a criminal offence" but whether S is "charged" with that offence. The existence of these two distinct elements was recognised, for instance, by the European Court in its judgment in Engel v. Netherlands Series A No. 22 (1976), p. 34, paragraph 81. The Court first said that it had already held that the word "charge" in Article 6(1) must be understood within the meaning of the Convention and then went on to say that the question of the "autonomy" of the concept of "criminal" in the same paragraph did not call for exactly the same reply.
[13] In many of the cases to which we were referred, therefore, the issue was simply whether the allegation made against the applicant was that he had committed a "criminal" offence, rather than, say, a merely disciplinary or regulatory offence. The Court has identified three criteria for resolving that kind of question. Although the language used to formulate the criteria varies somewhat in the different cases, a convenient summary is found in the Court's judgment in Öztürk Series A No. 73, p. 18, paragraph 50 as follows:
"The first matter to be ascertained is whether or not the text defining the offence in issue belongs, according to the legal system of the respondent State, to criminal law; next, the nature of the offence and, finally, the nature and degree of severity of the penalty that the person concerned risked incurring must be examined, having regard to the object and purpose of Article 6, to the ordinary meaning of the terms of that Article and to the laws of the Contracting States."
In an early judgment, Engel Series A No. 22, p. 34, paragraph 81, the Court expounded the first of these criteria in a passage which has been applied in many of the later cases:
"The Convention without any doubt allows the States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. This is made especially clear by Article 7. Such a choice, which has the effect of rendering applicable Articles 6 and 7, in principle escapes supervision by the Court.
The converse choice, for its part, is subject to stricter rules. If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a 'mixed' offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention. The Court therefore has jurisdiction, under Article 6 and even without reference to Articles 17 and 18, to satisfy itself that the disciplinary does not improperly encroach upon the criminal.
In short, the 'autonomy' of the concept of 'criminal' operates, as it were, one way only."
[14] Citing these passages, counsel for S said that the position was straightforward. Under Section 65(1) of the 1995 Act the Reporter referred a child to the children's hearing where he was satisfied inter alia that at least one of the grounds specified in Section 52(2) was established. When he referred the child, the Reporter had to prepare and sign a statement of the grounds and specify which one or more of the conditions mentioned in Section 52(2) was or were considered to be satisfied with respect to the child and the statement was to "state the facts on the basis of which it is sought to show that any condition is satisfied" (Children's Hearings (Scotland) Rules 1996, Rule 17(1)). In this case, therefore, the Reporter was seeking to show that the condition in Section 52(2)(i) was satisfied, viz. that S had committed an offence. Section 52(2)(i) used the language of Scots law and in Scots law there was no doubt that these words referred to the commission of a criminal offence. Moreover, when one looked at the statement of facts, one saw what was quite obviously specification of conduct which amounted to the offence of assault to severe injury. And indeed, as required by Rule 17(2), the statement specified "an offence of Assault". In these circumstances, counsel said, the responsible authorities had alleged that S had committed something which our domestic system of law had designated as a criminal offence. The first criterion applied by the European Court was therefore satisfied and there was no need to go any further: the proceedings before the hearing were proceedings in which it would determine a criminal charge against S.
[15] There is no doubt, in my view, that in this case the Reporter was seeking to show that S had committed an assault to severe injury, which is a criminal offence according to the law of Scotland. If, on that basis alone, one could say that S was "charged with a criminal offence" in terms of Article 6, then the test would be satisfied. But I consider that such an approach is too narrow and that, on a proper interpretation of Article 6(1), in deciding whether S is "charged" with the "criminal offence", one must have regard to the nature of the proceedings in which the Reporter is seeking to show that S has committed the offence.
[16] Admittedly, certain aspects of those proceedings emphasise the criminal nature of the facts in a Section 52(2)(i) case. If the Reporter is eventually directed to apply to the sheriff in terms, say, of Section 65(7), for a finding as to whether the Section 52(2)(i) ground for referral is established, that application must be to the sheriff who would have jurisdiction if the child were being prosecuted for the offence in question (Section 68(3)(a)). Moreover, where the sheriff is considering whether it has been established that the child committed an offence, the standard of proof required in criminal proceedings is to apply, whereas in other cases only the civil standard applies (Section 68(3)(b)). In other words, proof requires to be beyond reasonable doubt rather than on the balance of probabilities. This court has regarded that safeguard as important and has been concerned to uphold it against well-meaning attempts to find a way round it in the supposed interests of the child. See Constanda v. M 1997 S.C. 217. Moreover, while the relaxation of the rules on corroboration and hearsay evidence introduced by the Civil Evidence (Scotland) Act 1988 applies generally to hearings by sheriffs under Section 68 of the 1995 Act, the definition of "civil proceedings" in Section 9 of the 1988 Act is constructed in such a way that the relaxation does not apply where the ground relates to the condition in Section 52(2)(i).
[17] Counsel for S also drew attention to the provisions of the Rehabilitation of Offenders Act 1974 and in particular to Section 3, which provides:
"Where a ground for the referral of a child's case to a children's hearing under the Children (Scotland) Act 1995 is that mentioned in section 52(2)(i) of that Act (commission by the child of an offence) and that ground has either been accepted by the child and, where necessary, by his parent or been established (or deemed established) to the satisfaction of the sheriff under section 68 or 85 of that Act, the acceptance, establishment (or deemed establishment) of that ground shall be treated for the purposes of this Act (but not otherwise) as a conviction, and any disposal of the case thereafter by a children's hearing shall be treated for those purposes as a sentence: and references in this Act to a person's being charged with or prosecuted for an offence shall be construed accordingly."
As counsel freely acknowledged, for their purposes Section 3 is somewhat double-edged. On the one hand it says that where a Section 52(2)(i) ground for referral has been accepted or established, the acceptance or establishment is to be treated for the purposes of the 1974 Act as a conviction and any subsequent disposal is to be treated for the same purposes as a sentence. That might be thought to support the view that the proceedings are for the determination of a criminal charge, since acceptance or establishment of a ground relating to Section 52(2)(i) of the 1995 Act is to be regarded as a conviction and the disposal is to be regarded as a sentence. On the other hand, in making that provision, Parliament emphasises that they are to be so regarded only for the purposes of the 1974 Act "but not otherwise". Which is a powerful indication that, in all other circumstances, Parliament which created the system of children's hearings considers that the acceptance or establishment of the Section 52(2)(i) ground and the related disposal are not to be regarded in the same light as a criminal conviction and sentence. That in turn suggests that children's hearing proceedings are not regarded as criminal.
[18] If one accepts - as I do - that in Section 52(2)(i) cases the Reporter is indeed seeking to show that the child has committed an offence and that this is shown when the child accepts the ground for referral or when it is established, then it follows that in these circumstances it has been officially shown, in a procedure established by law, that the child has committed the offence in question. In that sense, the situation is similar to the situation where a child or an adult has pled guilty to the same offence in a criminal court or has been found guilty by a sheriff or jury. And indeed, as I have just noted, the standard of proof and the nature of the evidence are the same as apply in criminal proceedings. That being so, I do not find it in the least surprising that, when considering in what circumstances it is right not to require persons to reveal that they have committed offences, Parliament treats children involved in Section 52(2)(i) proceedings in the same way as children and others involved in criminal proceedings. So, on the one hand, in certain circumstances they need not reveal that they have committed the offence in question (Sections 4 - 6) but in other circumstances (Sections 7 and 8) they have no such right and have no right not to tell the truth. And indeed it makes eminently good sense, say, in the context of proceedings relating to parental responsibilities or parental rights to ensure that the court deciding the matter should be aware of all the relevant circumstances, however they may have been officially established. So if it has been shown, whether in a criminal trial or in a hearing before the sheriff, that a child has committed a sexual assault, evidence of that matter should be admissible in the later proceedings on parental responsibilities and rights, irrespective of the particular form of those earlier proceedings. For all the purposes of the 1974 Act there is thus a compelling case for treating an acceptance by the child in the same way as a plea of guilty and the establishment of a ground in the same way as a conviction of the same offence. But that does nothing whatever to show that in a children's hearing or in a related hearing before the sheriff the child is "charged with an offence". Rather, the very existence and terms of Section 3 of the 1974 Act show that, except in this one respect, our domestic legal system does not treat such children in the same way as children or adults who are "charged with an offence".
[19] Indeed, in purely domestic law terms, children's hearing proceedings and the related proceedings before the sheriff, whether under Section 68 or on appeal under Section 51, have always been regarded as being civil in character, even where they concern a ground for referral under Section 52(2)(i). Such proceedings are considered civil in nature, even though they display certain features of our criminal procedure. Their civil nature is indeed clear from the fact that they are instituted by the Reporter, whereas the prosecution of a child can take place only on the instruction of the Lord Advocate: Section 42(1) of the Criminal Procedure Act. An equally clear sign is the fact that the ultimate appeal is to the Court of Session and not to the High Court of Justiciary. In McGregor v. T 1975 S.L.T. 76 and Kennedy v. O 1975 S.L.T. 235 the court rejected any idea that the proceedings were criminal. In McGregor v. D 1977 S.C. 330, a case where the child was said to have committed an offence, Lord President Emslie referred to those earlier authorities and observed (at p. 336):
"In no sense are proceedings under Part III of the [Social Work (Scotland) Act 1968] criminal proceedings. They are, on the contrary, civil proceedings sui generis...."
[20] 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 Section 52(2)(i) case, as in any other, the aim of all the measures in Chapter 3 of the 1995 Act is, as its title proclaims, the "Protection and Supervision of Children". More particularly, Section 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 (Section 16(1)). Similarly, the Reporter can refer a case to a hearing under Section 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 Article 6.
[21] The English version of Article 6(1), which uses the term "criminal charge", does not on its face expressly state that it is dealing only with proceedings where a penalty may be imposed. But the point emerges more clearly in the French text, which I have quoted above at paragraph 7. It speaks of the tribunal deciding "du bien-fondé de toute accusation en matière pénale dirigée contre lui." The charge must be "en matière pénale" - which suggests that a penal element is one of the defining characteristics. Many of the States which are subject to the Convention have codified systems of law. In such systems there will often be a separate criminal code and in the passage from paragraph 50 of their judgment in Öztürk which I have quoted already, the Court clearly have such codes in mind when they say that "The first matter to be ascertained is whether or not the text defining the offence in issue belongs, according to the legal system of the respondent State, to criminal law...". But the very titles of such codes of criminal law will often reveal that they are indeed concerned essentially with "matière pénale". For instance, in France there is a "code pénal", in Italy a "codice penale", in Spain a "código penal" and in Germany a "Strafgesetzbuch". It follows that when, in such cases as Öztürk, the Court investigates 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. This is confirmed by the third criterion in Öztürk which relates to "the nature and degree of severity of the penalty" - a formulation which presupposes that there will indeed be a penalty of some kind and that what the Court has to consider is the nature of that penalty and how severe it is. Consistently with that approach, in Kaplan v. United Kingdom (1980) 4 E.H.R.R. 64, the Commission held that proceedings were not criminal when in its view the restrictions which could be imposed on the trading of an insurance company could not be regarded as being equivalent to a penalty (at p. 93, paragraph 170).
[22] Counsel for S accepted that they could not refer us to any case in which the European Court had held that proceedings were criminal even though the proceedings could not result in the imposition of a penalty. In this counsel were in good company. In B. v. Avon and Somerset Constabulary [2001] 1 WLR 340 - to which we were not referred by counsel - the Divisional Court had to consider the nature of an application for a sex offender order. They decided that the proceeding was properly characterised as civil rather than as criminal. One of the arguments which the court had to consider related to the approach which the European Court took to the classification of proceedings under Article 6 of the Convention. In paragraph 28 of his opinion, with which Astill J. concurred, Lord Bingham L.C.J. said (at p. 353 E - F):
"In deciding whether there is a criminal charge for purposes of article 6 of the Convention the court has regard to the classification of proceedings in domestic law, but also to the nature of the offence itself and the severity of the penalty which may be imposed: see Lester & Pannick, Human Rights Law and Practice (1999), para 4.6.13. Here the proceedings are in my judgment classified as civil in domestic law. No offence is charged and the making of an order does not depend on proof of any offence. No penalty may be imposed. I am aware of no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty."
In R (McCann) v. Manchester Crown Court [2001] 1 WLR 358 at p. 367 D - G, in paragraph 31 of his opinion with which Rafferty J. concurred, Lord Woolf L.C.J. adopted and followed the reasoning of Lord Bingham on the Article 6 point. I find in these decisions significant support for the view that the absence of any penal sanction indicates that the proceedings before the children's hearing are not to be classified as criminal for the purposes of Article 6.
[23] I should perhaps add that I accept that, at the stage when S was arrested and charged by the police on 31 October, he was indeed "charged with a criminal offence" in terms of Article 6, since he was liable to be brought before a criminal court in proceedings which could have resulted in the imposition of a penalty. He remained "charged with a criminal offence" in terms of Article 6 until the procurator fiscal decided the following day - in the language of Section 43(5) of the Criminal Procedure Act - "not to proceed with the charge". At that point the criminal proceedings came to an end and the Reporter initiated the procedures under the 1995 Act by arranging a hearing in terms of Section 63(1). In my view, once the procurator fiscal has decided not to proceed with the charge against a child and so there is no longer any possibility of proceedings resulting in a penalty, any subsequent proceedings under the 1995 Act are not criminal for the purposes of Article 6. Although the Reporter does indeed intend to show that the child concerned committed an offence, this is not for the purpose of punishing him but in order to establish a basis for taking appropriate measures for his welfare. That being so, the child who is notified of grounds for referral setting out the offence in question is not thereby "charged with a criminal offence" in terms of Article 6.
[24] It is not now disputed, of course, that the children's hearing proceedings involve the determination of civil rights and obligations. Article 6 therefore applies. But, since the proceedings are not criminal, the specific guarantees in Article 6(2) and (3) do not apply. In this case no point was made in relation to Article 6(2) but counsel for S were concerned with the right to legal representation and to free legal assistance in terms of Article 6(3)(c) and with the right to examine witnesses in terms of Article 6(3)(d). It is, however, trite that the specific guarantees in Article 6(3) relate to aspects of a fair trial which are also embraced by the lex generalis in Article 6(1). For that reason, even though Article 6(3) does not apply, the points made on behalf of S have also to be considered within the framework of Article 6(1). Since, however, the rights are implied in Article 6(1) there is nothing in the Convention itself which expressly governs the extent of what is to be implied. So, the court has to consider the nature of the proceedings and recognise differences of degree. We must also strike a fair balance between the general interest of the community and the personal rights of the children and others involved in the hearing. See Brown v. Stott 2001 SLT 59 passim, but especially at p. 70 G - K per Lord Bingham.
[25] Hearing by an Independent Tribunal
Among the rights secured by Article 6(1 Counsel for S submitted that the structure of the children's hearing system infringed this right, since by paragraph 2 of Schedule 1 to the 1995 Act members of the children's panel are to hold office "for such period as is specified by the Secretary of State, but may be removed from office by the Secretary of State at any time." By virtue of Section 7(1)(e) of, and paragraph 8 of Schedule 1 to, the Tribunals and Inquiries Act 1992, however, the removal of a panel member requires the consent of the Lord President. It appears that in practice members are generally appointed for a period of five years and may be reappointed. See Kearney, Children's Hearings and the Sheriff Court (second edition 2000), paragraph 1.03. Counsel for the Reporter told us that, in fact, no member has been removed in recent times except for refusing to take part in training which was considered necessary for the proper performance of their function as members of hearings. In support of their submission counsel for S referred in general terms to the decisions of the High Court in Starrs v. Ruxton 2000 JC 208 and of the Extra Division in Clancy v. Caird 2000 S.C. 441. Counsel for S accepted that, since the proceedings are for the determination of the child's civil rights and obligations, it is sufficient if the whole proceedings, including any appeal, fulfil the requirement for an independent tribunal. Nevertheless, it may be helpful to consider the point in relation to the hearings alone.
[26] By their very nature children's hearings are unlike courts of the classic kind. Indeed they would not be able to perform the particular role allotted to them if they were like such courts and if their members were like judges of such courts. Rather, the members are lay people who are unpaid and who receive special training in legal and child care matters, both before their appointment and while they are in post. The European Court has recognised that the hearings are different and that it is legitimate for them to be so. In McMichael v. United Kingdom Series A No. 307, pp. 53 - 54, paragraph 80 the Court said:
"As explained by the Government, the function of determining what measures of care would be in the best interest of the child has been conferred on the children's hearing rather than the ordinary courts because the legislature believed that this function is likely to be exercised more successfully by an adjudicatory body of three specially trained persons with substantial experience of children, following a procedure which is less formal and confrontational than that of the ordinary courts. The Court accepts that in this sensitive domain of family law there may be good reasons for opting for an adjudicatory body that does not have the composition or procedures of a court of law of the classic kind. Nevertheless, notwithstanding the special characteristics of the adjudication to be made, as a matter of general principle, the right to a fair - adversarial - trial 'means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party". In the context of the present case, the lack of disclosure of such vital documents as social reports is capable of affecting the ability of participating parents not only to influence the outcome of the children's hearing in question but also to assess their prospects of making an appeal to the Sheriff Court."
I shall return to the passage later in this opinion, but for present purposes the important point is that the Court accepts that there may be good reasons for having an adjudicatory body which does not have the composition of a court of law of the classic kind. That being so, the mere fact that the members of the body do not enjoy the kind of tenure which the Convention requires in a court of law of the classic kind does not in itself show that the body concerned is not an independent tribunal for the purposes of Article 6. This emerges most clearly from the judgment of the Court in Campbell and Fell v. United Kingdom Series A No. 80 (1984). The case concerned prisoners who had been charged with various contraventions of prison disciplinary regulations. The matter had been dealt with by the Board of Visitors to the prison, all of whom were unpaid and had been appointed to serve for a period of three years. Although the Court regarded this as a relatively short period, it noted (p. 40, paragraph 80) that there was a very understandable reason for this:
"the members are unpaid and it might well prove difficult to find individuals willing and suitable to undertake the onerous and important tasks involved if the period were longer."
The Court also proceeded on the basis that the Home Secretary could require the resignation of a member of the Board, but it accepted that this would be done only in the most exceptional circumstances. The Court held (p. 40, paragraph 80) that
"the existence of this possibility cannot be regarded as threatening in any respect the independence of the members of a Board in the performance of their judicial function.
It is true that the irremovability of judges by the executive during their term of office must in general be considered as a corollary of their independence and thus included in the guarantees of Article 6(1). However, the absence of a formal recognition of this irremovability in the law does not in itself imply lack of independence provided that it is recognised in fact and that the other necessary guarantees are present."
[27] Adopting a similar approach in this case, I would hold that, where the members of a hearing are unpaid lay people appointed and trained with the aim of providing assistance to children, the mere fact that they do not enjoy the kind of security of tenure associated with judges of courts of the classic kind does not mean that they are not independent. Nor indeed did counsel even attempt to point to any evidence that the members of hearings had ever been influenced by the Secretary of State or Scottish Ministers or that they actually lacked independence of judgment. Moreover, it is relevant to take account of the fact that they cannot be removed without the consent of an independent Judge, the Lord President, and that in practice no member has been removed except on account of a refusal to take part in training. For these reasons I am entirely satisfied that the hearings constitute an independent tribunal in terms of Article 6(1).
[28] Provision of Documents and Information to the Child
One of the points raised by counsel for S and focused in the reference to this court related to the absence of any provision, either in the 1995 Act or in the Children's Hearing Rules, requiring the Reporter to provide the child with copies of the reports and other documents furnished for the use of the hearing and upon which the hearing might rely in coming to its decision as to the disposal of any case. Counsel for the Reporter explained that, following the decision of the European Court in McMichael, the Rules had been amended so that Rule 5(3) now requires that a copy of all documents provided to the chairman and members of the hearing should also be given to, inter alios, the relevant person. Similarly, any information made available to the chairman and members of the hearing is to be made available to, inter alios, the relevant person. No provision had been made, however, for the same steps to be taken in respect of the child himself. The Principal Reporter had recognised that the failure to provide the documents and information to the child could be regarded as incompatible with the requirements of the kind of adversarial procedure envisaged by Article 6. I refer to the passage which I have quoted above from paragraph 80 of the judgment of the European Court in McMichael and refer also, without quoting, to paragraph 83 of the same judgment. Although the Scottish Ministers had not amended the Regulations, the Principal Reporter had decided to deal with the matter in the meantime by issuing guidance to all reporters which would mean that, in future, reports and other papers provided to the chairman and members of the hearing would also be given to the child. We were given a copy of the Principal Reporter's draft. As it showed, this general rule would be subject to certain exceptions - for example, where the information would cause significant harm to the child or to any other person and where it would significantly prejudice the prevention or detection of crime or the apprehension or prosecution of an offender. If documents were excluded in this way, the child would be entitled to take steps to recover the documents, either by an application to the hearing or by applying for a court order. In broad terms the guidance would follow the guidelines in the speech of Lord Mustill in In re D [1996] AC 593.
[29] This change of policy is obviously of great significance. Indeed counsel for S accepted that, since the Principal Reporter is intending to introduce this system, they could no longer argue that, in the matter of the provision of information to the child, the children's hearing procedure is incompatible with Article 6(1) of the Convention. In this respect, the requirements of a fair - adversarial - hearing would be met. Nor did counsel criticise the detail of the proposed guidance. Despite the concession and change of policy announced by counsel for the Principal Reporter, the Solicitor General continued to maintain on behalf of the Scottish Ministers that Article 6 did not require reports and documents to be supplied to children. The interests of speedy and simple procedure could justify not supplying them. Since documents will in fact be supplied in future, it is not necessary to come to a concluded view on the point. None the less the Court's decision in McMichael suggests that, in proceedings to which, as the Scottish Ministers concede, Article 6 applies, the concept of a fair trial is indeed inconsistent with a blanket policy that documents should not be supplied to the child. For the rest, while the system to be introduced by the Principal Reporter could, of course, break down in any given case, including the present case, and result in an infringement of the child's rights under Article 6(1) of the Convention, no such issue can or does arise at this stage.
[30] O v. Rae
Counsel for S also argued that, following the decision of this court in O v. Rae 1993 S.L.T. 570 the structure of the proceedings in any children's hearing did not meet the requirements of Article 6. More particularly, the proceedings would be unfair because the hearing could consider material even if it related to a ground for referral which had not been established. The child would not be able properly to challenge such material. At certain points the criticisms seemed really to relate, in substance, to the admissibility of evidence in the hearing and so to be a matter for regulation by our domestic law rather than by the Convention. It is not, however, necessary to analyse the question more closely since, as the Solicitor General pointed out, any supposed breach of Article 6 was said to arise out of the decision by this court in O v. Rae. It would therefore be susceptible of correction by a decision of this court. Indeed, having regard to Section 6(1) of the Human Rights Act, this court - and indeed the hearing itself - is bound to act in a manner which is compatible with the Convention. Therefore, in so far as any previous decision involved a breach of Article 6, we should require to depart from it and adopt an approach which was compatible with Article 6. That being so, and without expressing any view on the criticism of O. v. Rae advanced by counsel for S, I am satisfied that there is no merit in their submission.
[31] Legal Aid
The remaining issue under Article 6 relates to legal aid. Under Part II of the Legal Aid (Scotland) Act 1986 legal aid, in the form of advice and assistance, is available for children such as S who are involved in proceedings before a children's hearing. And indeed S had the benefit of such legal aid in relation to the hearings in November and December 1999. Legal aid in the form of representation by a solicitor or, where appropriate, counsel is available in any hearing in the sheriff court to determine whether the grounds for referral are established and also in any appeal to the sheriff under Section 51(1). It is also available for any appeal to the Court of Session. See the Legal Aid (Scotland) Act 1986, Section 29, with Regulation 3(2)(e), (j) and (l) of the Legal Aid(Scotland)(Children) Regulations 1997. Critically, however, legal aid in the form of representation is not available and cannot be made available for the proceedings before a children's hearing since Section 29 does not apply to such proceedings. It follows that the child has no legal representation when the grounds for referral are explained to him and he has to say whether or not he accepts them. In this case, of course, S and his mother did not accept the ground.
[32] It is important to notice that counsel for the Scottish Ministers did not suggest that it was due to financial pressures that legal aid had not been made available for representation before a children's hearing. Rather, it was said to be a matter of policy. The view was taken that the introduction of legal representation would detrimentally affect the informal and flexible nature of the proceedings. In particular, it would interfere with the direct exchange of views between the members of the hearing and the child, which was foreshadowed in Rule 15(1) of the Children's Hearings Rules and which was generally regarded as an important element in the system. If a lawyer were there representing the child, the system would be fundamentally altered for the worse. If the hearing considered that the child's interests were in need of protection, they could appoint a safeguarder under Section 41 of the 1995 Act. That was a satisfactory alternative to legal representation and it was in harmony with the scheme of the Act. Reference was made to the Review of Scottish Child Care Law, especially paragraphs 20.5 - 20.7. The Scottish Ministers were the democratically elected body who had to make policy decisions of this kind. Their decision represented an acceptable balancing of the relevant competing interests and this court should respect that decision.
[33] In considering this important submission on behalf of the Scottish Ministers, it is important to recall that there is no bar on representation of the child or relevant person in a children's hearing. On the contrary, paragraphs (1) and (2) of Rule 11 ("Representation for the purposes of assisting children and relevant person at children's hearing") of the Children's Hearings Rules provide:
"(1) Any child whose case comes before a children's hearing and any relevant person who attends that children's hearing may each be accompanied by one person for the purpose of assisting the child, or as the case may be, the relevant person at the hearing.
(2) Any representative attending any children's hearing may assist the person whom he represents in the discussion of the case of the child with the children's hearing."
Not only, therefore, do the rules - for which the Scottish Ministers are responsible - envisage that a child may be represented at a hearing, but they also envisage quite specifically that one thing which the representative may do is to assist the child in the discussion of his case with the hearing. This is clearly not thought in itself to be inconsistent with the proper operation of the hearing. Moreover, there is nothing in any of the Rules or in the 1995 Act to prevent a lawyer from acting as the "representative" in terms of Rule 11. And indeed in his book on Children's Hearings and the Sheriff Court, paragraph 22.18, Sheriff Kearney points out that it is by no means rare for solicitors to appear as the representative in a hearing, even though they are not entitled to charge a fee under the legal aid scheme. Moreover, we were presented with no actual concrete information which showed that, when solicitors appear in this way, the result is that the hearing is hampered or that its decision is either flawed or in any way less satisfactory. I do not find that surprising since skilled lawyers are chameleons who readily adapt their approach and techniques to the particular tribunal in which they appear. I would therefore expect them to be sensitive to the atmosphere and ethos of a children's hearing and to perform their role accordingly. Furthermore, if the Scottish Ministers considered that legal representation was fundamentally inconsistent with the whole working of the children's hearing system, then logically one would expect to find that they had introduced rules barring such representation. Of course, that is not the position. In practice, therefore, at present children can be represented by a lawyer if their parents can afford to pay for one or if they have a family friend who is a lawyer, or if they are lucky enough to find a lawyer who will represent them for nothing. Others who are not so fortunate cannot be. It is hard to see what principle as to the participation of lawyers lies behind procedural rules which work in this way or how they can be, as the Solicitor General contended, a "proportionate" response to any need for legal representation in children's hearings.
[34] Under Section 70(9) and (10) of the 1995 Act a children's hearing has the power, not only to insert into a supervision requirement a requirement that the child should reside in a named residential establishment, but also to specify in the requirement that the child is to be liable to be placed and kept in secure accommodation in the establishment for such period as the person in charge of the establishment, with the agreement of the chief social work officer of the relevant local authority, considers necessary. It was common ground that this disposal involved a deprivation of liberty. It follows that proceedings before a children's hearing, such as those involving S, are proceedings in which a child may be deprived of his or her liberty. The European Court has consistently held that
"where deprivation of liberty is at stake, the interests of justice in principle call for legal representation."
See Benham v. United Kingdom Reports of Judgments and Decisions 1996-III 738, p. 757, paragraph 61; Perks v. United Kingdom (1999) 30 E.H.R.R. 33, paragraphs 75 - 76. In Benham the applicant had been imprisoned for non-payment of the community charge and, although he had the benefit of advice and assistance, he did not have legal aid for representation in the hearing before the magistrates in which he faced a maximum penalty of three months imprisonment. The Court said (p. 757, paragraph 64):
"In view of the severity of the penalty risked by Mr. Benham and the complexity of the applicable law, the Court considers that the interests of justice demanded that, in order to receive a fair hearing, Mr. Benham ought to have benefited from free legal representation during the proceedings before the magistrates.
In conclusion, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention taken together."
On the basis of these decisions I consider that, under Article 6, in proceedings before a children's hearing where deprivation of liberty is at stake, in principle the interests of justice call for legal representation. That in turn is an indication that, in such proceedings, the interests of justice may well require that a child be given free legal representation. As I have noted, the legislation at present in force does not allow legal aid to be granted for this purpose.
[35] One of the factors which the Court took into account in the Benham case was the complexity of the applicable law. That is simply one of a range of factors which may have a bearing on whether the interests of justice require that free legal representation should be made available in a civil case. The position was explored by the Court in Airey v. Ireland Series A No. 32 (1979) where the applicant wished to petition for a judicial separation in the Irish High Court but lacked the means to employ a lawyer. Legal aid for civil proceedings was not available. The Court held that there had been a breach of her right to a fair hearing under Article 6(1). In reaching that conclusion the Court observed (pp. 12 - 13, paragraph 24):
"The Government contend that the applicant does enjoy access to the High Court, since she is free to go before that court without the assistance of a lawyer.
The Court does not regard this possibility, of itself, as conclusive of the matter. The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial. It must therefore be ascertained whether Mrs. Airey's appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily.
Contradictory views on this question were expressed by the Government and the Commission during the oral hearings. It seems certain to the Court that the applicant would be at a disadvantage if her husband were represented by a lawyer and she were not. Quite apart from this eventuality, it is not realistic, in the Court's opinion, to suppose that, in litigation of this nature, the applicant could effectively conduct her own case, despite the assistance which, as was stressed by the Government, the judge affords to parties acting in person."
The Court was anxious to stress that its conclusion that the failure to provide Mrs. Airey with legal aid was a breach of Article 6 did not mean that legal aid had to be granted to all litigants in all civil actions:
"It would be erroneous to generalise the conclusion that the possibility to appear in person before the High Court does not provide Mrs. Airey with an effective right of access; that conclusion does not hold good for all cases concerning 'civil rights and obligations' or for everyone involved therein. In certain eventualities, the possibility of appearing before the court in person, even without a lawyer's assistance, will meet the requirements of Article 6 § 1; there may be occasions when such a possibility secures adequate access even to the High Court. Indeed, much must depend on the particular circumstances.
In addition, whilst Article 6 § 1 guarantees to litigants an effective right of access to the courts for the determination of their "civil rights and obligations", it leaves to the State a free choice of the means to be used towards this end. The institution of a legal aid scheme - which Ireland now envisages in family law matters ... - constitutes one of those means but there are others such as, for example, a simplification of procedure. In any event, it is not the Court's function to indicate, let alone dictate, which measures should be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6 § 1.
The conclusion appearing at the end of paragraph 24 above does not therefore imply that the State must provide free legal aid for every dispute relating to a 'civil right'.
To hold that so far-reaching an obligation exists would, the Court agrees, sit ill with the fact that the Convention contains no provision on legal aid for those disputes, Article 6 § 3(c) dealing only with criminal proceedings. However, despite the absence of a similar clause for civil litigation, Article 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case" (pp. 15 - 16, paragraph 26).
[36] The decision in Airey reaffirms that Article 6(1) does not require a State to provide free legal representation in all disputes relating to a civil right. But, at the same time, the Court envisages that there will be cases, such as that of Mrs. Airey, where the circumstances are such that free legal representation will in fact be required. The key consideration would appear to be whether the person involved in the litigation could effectively conduct his or her own case. Approaching the matter in that way, one might well conclude that, before it would be compatible with the Convention for the Scottish Ministers to have decided to make it impossible for a child to have free legal representation before a children's hearing, one would have to be able to say that in no case could a child ever be unable to conduct his own case effectively before the hearing. I am unable to say this. It may, of course, be that in some cases the issues are so straightforward and the child so mature and capable that he can indeed conduct his own case quite satisfactorily, especially since the procedure before the hearing is designed to be informal and is intended to enable the hearing to elicit the child's views. On the other hand, it is important to bear in mind that many of the children who appear before hearings will be young, unable to read well and unused to expressing themselves beyond the circle of their family and friends, especially to adults whom they do not know. I find it quite impossible to conclude that all the children appearing before a hearing would be able to understand, far less to criticise or to elucidate, all the reports and other documents and all the factors which the hearing may be called upon to consider when deciding what measures are most appropriate to deal with their case. The present case is itself by no means straightforward, involving, as it does, an incident where S may claim to have acted in defence of his father. I note that, for other purposes, counsel for the Reporter were at pains to impress upon the court the wide range and considerable sensitivity of the issues which a hearing might have to consider in any particular case. In these circumstances, it cannot be assumed, either, that the lay representative will always be able to provide the kind of skilled assistance that may be required if the child's case is to be presented effectively.
[37] Up until now, of course, children have not even been provided with the material being considered by the hearing. But, as I noted in paragraph 27 above, the Principal Reporter has taken the view that this is incompatible with the child's right to a fair trial under Article 6. So this material will in future be made available to children aged eight and above. The Principal Reporter must have considered that supplying the material to the children will be of benefit to them by allowing them to use it in presenting their views to the hearing. But supplying the material to them will be at best an empty gesture if the children are in fact unable to deal with it effectively. So, the decision by the Principal Reporter to make this material available to the children emphasises the role which the children may be called upon to play in proceedings before a hearing. That in turn might seem to emphasise the need for legal representation to be available in cases where the child cannot be expected to fulfil this role effectively for himself. I should add that the possibility of appointing a safeguarder does not appear to be an adequate alternative, since the decision to appoint such a safeguarder lies entirely with the hearing and the child has no right to have one appointed. Indeed I understand that, at present, safeguarders are appointed in only a small percentage of cases. Moreover, the appointment is made only to safeguard "the interests" of the child and not to vindicate his rights.
[38] Counsel for the respondents argued that, whereas the absence of free legal representation before the hearing might have been fatal if the proceedings had been criminal in nature, it did not give rise to a breach of Article 6(1) where the proceedings were civil and there was an appeal to the sheriff at which free legal representation would be available. This is, perhaps, the most difficult point in relation to the legal aid issue. Undoubtedly, as I noticed in paragraph 8 above, the European Court has recognised that in civil, as opposed to criminal, proceedings it may be sufficient if the proceedings, when taken as a whole, comply with Article 6(1), even if one stage of them, when considered in isolation, does not. On the other hand, in paragraph 25 above I quoted a passage from paragraph 80 of the judgment of the Court in McMichael where the Court held that certain vital documents should have been disclosed to the applicant, as the child's mother. They were not disclosed either at the hearing or at the subsequent appeal. The Court went on to hold (in paragraph 84) that the applicant had not received a "fair hearing" within the meaning of Article 6(1) "at either of the two stages" in the proceedings concerning her son. In other words, there was a breach of Article 6(1) both before the children's hearing and before the sheriff. In that situation, of course, the appeal procedure could not cure the defect in the children's hearing procedure. Most importantly, for present purposes, however, the Court noted that the failure to provide the documents at the hearing had been capable of affecting the applicant's ability not only to influence the outcome of the hearing but also to assess her prospects of appealing successfully to the sheriff. The second of these factors does not arise in the case of a child, since legal aid in the form of advice and assistance would be available to the child for the purpose of considering the prospects of an appeal. But the first does seem relevant since, as I have tried to show, the lack of free legal representation before the hearing might well significantly impair the child's ability to affect the outcome of the hearing. In that event the child would not receive a fair hearing within the meaning of Article 6(1) before the children's hearing.
[39] There is another factor which needs to be considered in the present context. The respondents' argument, that it was sufficient if legal aid were available for the appeal to the sheriff, was out of line with all the other submissions which they made about children's hearing proceedings. In these other submissions counsel had stressed that children's hearings, with their informal approach and specially trained lay people experienced in dealing with children, were the ideal body to deal with children's problems and to decide how they should be remedied. If that is indeed so, then it would appear desirable, at the very least, that children should have a fair hearing before this, the tribunal of choice. It is almost perverse to say that, if he wants to have a fair hearing, the child should look, not to the tribunal of choice, but to an appeal to a sheriff who, whatever his or her skills may be, will not have those particular advantages which are said to reside in the children's hearing. This is another factor which would suggest that there may well be cases where legal representation is necessary if the child is to have a fair hearing in terms of Article 6 and that it is not sufficient that in such cases legal representation will be available in any appeal.
[40] In the result I am satisfied that there are substantial grounds for considering that S's right to a fair trial in terms of Article 6(1) requires that he should have the right to apply for legal aid in the form of legal representation in the proceedings before the children's hearing. The right to apply would not, of course, mean that he or any other child would always be entitled to be granted such free representation. They would be entitled to it only where it was required in the interests of justice so that they could present their case effectively. At present, Section 29 of the Legal Aid (Scotland) Act 1986 is cast in such a way as to make no provision for legal aid in the form of representation in children's hearing proceedings. If Article 6(1) did require that a child should have a right to apply for legal aid in the form of legal representation, then it could be argued that the legislative scheme was incompatible with Article 6 of the Convention. We were shown a copy of the Convention Rights (Compliance)(Scotland) Bill which the Minister of Justice has presented to the Scottish Parliament. As I understood the submission, Section 6 (2) of the Bill, if enacted, would amend Section 13 of the Legal Aid Act in such a way that a children's hearing would be included among the courts and tribunals for which legal aid in the form of representation could be made available. If this provision is enacted, it appears that the legislative structure would be compatible with any right of S and other children to legal representation under Article 6.
[41] Presumably because of the existence of the draft Bill, neither counsel for S nor counsel for the respondents made any detailed submissions as to whether the court should make a declaration of incompatibility in terms of Section 4(2) of the 1998 Act if it came to the view that the existing statutory provisions, or any of them, were incompatible with the Convention rights of children appearing before children's hearings. It appeared to be thought that it would be both sufficient and appropriate if the court were simply to indicate a view to that effect, to which the Scottish Ministers and Scottish Parliament could have regard. At first sight, at least, that is an attractive approach, especially since any declaration would not be binding on, and would indeed have no practical effect for, the parties in these proceedings.
[42] I have come to the view, however, that the court should not simply adopt that approach without further consideration. Section 4(2) of the 1998 Act provides:
"If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility."
Section 5(1) of the same Act is to this effect:
"Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court."
Rather than imposing a duty, Section 4(2) confers a power on the court to make a declaration of incompatibility if it is satisfied that a provision is incompatible with a Convention right. For the reasons which I have indicated, I have certainly reached the stage where I am considering whether this court could and should make such a declaration of incompatibility in respect of the provisions relating to legal aid. In terms of Section 5(1), at this stage the Crown is entitled to notice in terms of Section 5(1) and Rule of Court 82.3. Of course, in this case, the Solicitor General was present and represented both the Lord Advocate and the Scottish Ministers at the hearing. He and his junior presented submissions on the various issues, including legal aid. On the other hand, the Advocate General was not represented. Even though she will have been aware of the proceedings because intimation of the devolution issue was made to her, she has not been given notice that the court is considering whether to make a declaration of incompatibility. Such a declaration would be an indication of the court's view that the United Kingdom was in breach of its obligations under the Convention. That is a matter of significance for the United Kingdom Government. It is, accordingly, in my view appropriate that notice should be given at this stage to the Advocate General in accordance with Rule of Court 82.3. She can then decide whether she wishes to be joined as a party to the proceedings and to present argument in relation to a possible declaration of incompatibility. I should add that it might well have been appropriate for notice to be given to the Advocate General somewhat earlier. I refer to the opinion of the court in Dunn v. Newman 21 March 2001, unreported, and to the reasons of the committee of the House of Lords given by Lord Hope of Craighead in R. v. A (Joinder of a minister) The Times 21 March 2001 where some consideration is given to the role of the Crown when a court is considering whether to make a declaration of incompatibility.
[43] If the court were to adopt the less formal approach that counsel appeared to envisage, this would appear to have at least two consequences. First, it would in effect circumvent the provisions of Section 5(1) of the 1998 Act requiring notice to be given to the Crown. In the present case, as it happens, the Crown in the shape of the Scottish Ministers is represented. In other cases, however, that would not be the position. Secondly, Section 10 of, and Schedule 2 to, the 1998 Act contain important powers by which the appropriate authorities can, if so advised, take remedial action where a provision is found to be incompatible with the Convention. But those powers are available only where a provision has been declared incompatible under Section 4. So, a decision by the court not to make a formal declaration but to confine itself to a mere indication of its view would have the effect of depriving the responsible authorities of the powers which Parliament intended they should have to deal with incompatible legislation. Not surprisingly, therefore, when the Human Rights Bill was before the House of Lords, the Lord Chancellor indicated that he expected that, where a court had found a provision to be incompatible, it would declare that incompatibility. I refer generally to the helpful discussion in Grosz, Beatson and Duffy, Human Rights, paragraph 3-47.
[44] Article 5
I turn finally to the submission, advanced somewhat tentatively by Mr. Collins, on the basis of Article 5 of the Convention, which bears the title "Right to liberty and security". Article 5(1) provides inter alia:
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(d) the detention of a minor by lawful order for the purpose of
educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority...".
Mr. Collins' first submission was that in cases where the children's hearing pronounced an order under Section 70(9) specifying that the child should be placed and kept in secure accommodation, the order involved a deprivation of liberty. This was not disputed by counsel for the respondents. I am therefore content to proceed on that basis, especially since a conclusion to the same effect was reached by a majority of the Court of Appeal (Dame Elizabeth Butler-Sloss P. and Judge L.J.) when considering the equivalent provision under the legislation in force in England and Wales. See W. Borough Council v. D.K. and others 15 November 2000, unreported, at paragraphs 22 - 32 and 99 - 104.
[45] Mr. Collins then submitted that detention of a child in terms of Section 70(9) was incompatible with Article 5(1)(d) since it was not "for the purpose of educational supervision". In particular there was nothing in the criteria in Section 70(10) to indicate that the purpose of the supervision involved education. Indeed, in terms of subsection (9), the hearing would simply specify that the child should be liable to be placed and kept in "secure accommodation" and "secure accommodation" was really nothing more than accommodation approved by the Secretary of State "for the purpose of restricting the liberty of children" (Section 93(1)). So the order would be for placing and keeping a child in secure accommodation, not for an educational purpose of any kind, but simply for the purpose of restricting the child's liberty. As such, it did not fall within the scope of the exception in Article 5(1)(d).
[46] In my view this submission is misconceived. In the first place, it must be remembered that when the hearing makes an order for a child to be placed and kept in secure accommodation, it does so only because this is in the interests of the child's welfare (Section 16(1)). If the child's education were indeed to be neglected in secure accommodation, then one might well wonder whether such an order could be in the interest of the child's welfare, but in fact Regulation 4(1) of the Secure Accommodation (Scotland) Regulations 1996 provides:
"[t]he managers in consultation with the person in charge shall ensure that the welfare of a child placed and kept in such accommodation is safeguarded and promoted and that the child received such provision for his education, development and control as is conducive to his best interests."
It is therefore plain that this form of supervision is specifically designed to promote the child's education in the widest sense. That is wholly consistent with detention for the purpose of "educational supervision" within the meaning of Article 5(1)(d) of the Convention, as can be seen from the judgment of the European Court in Koniarska v. United Kingdom 12 October 2000 where the Court observed:
"The Court considers that, in the context of the detention of minors, the words 'educational supervision' must not be equated rigidly with notions of classroom teaching. In particular, in the present context a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned."
In W. Borough the Court of Appeal followed the approach of the Court in Koniarska. Having referred to this passage, Judge L.J. continued (at paragraph 116):
"Accordingly, in my judgment the principle is simply expressed: the concept of 'educational supervision' goes well beyond either normal parental control or academic lessons taught in the classroom, but, to the extent that the arrangements for the welfare of the child interfere with his liberty beyond the interference envisaged in normal parental control, and to avoid any arbitrary exercise of power by a local authority, judicial authorisation is required. That is provided by Section 25(4). In this case the secure accommodation order was properly made. I can find no inconsistency or incompatibility between such an order under section 25 and the practical application of the Convention rights under Article 5. A declaration of incompatibility should be refused."
[47] Mr. Collins recognised that if this court were to adopt the same approach as the Court of Appeal, then his submission would be bound to fail. For my part, having regard to what is said by the European Court in Koniarska, I am, with respect, satisfied that the decision of the Court of Appeal was correct and that we should follow it. On that basis I have no hesitation in concluding that the provision for making an order which specifies that a child should reside in secure accommodation is wholly compatible with Article 5(1)(d).
[48] The Questions Referred to the Court
The questions in the reference were reformulated in the course of the hearing and I should propose that the reformulated questions, in a slightly amended form, should be answered at this stage as follows:
1. Is Article 6 applicable to proceedings before a children's hearing from the
stage ascertaining under Section 65(4) of the Children (Scotland) Act 1995 whether the child accepts the referral to the final disposal of the referral under Section 50 of the Act? Yes. Indeed Article 6 applies also at any hearing arranged by the Reporter under Section 63(2) of the Act.
2(a). Is a hearing before a children's hearing in respect of a referral under Section
52(2)(i) of the Act proceedings for the determination of a criminal charge to which Article 6(1) and Article 6(3) apply? No.
2(b) In the event that Question 2(a) is answered in the affirmative, does the present
structure of the hearing system comply with Article 6(1) and Article 6(3) in its application to criminal proceedings? Superseded.
3(a) Is a hearing before a children's hearing under Section 52(2)(i) of the Children
(Scotland) Act 1995 proceedings for the determination of civil rights and obligations of the child referred? It can be and, in this case, it is.
3(b) In the event that Question 3(a) is answered in the affirmative, does the
structure of the children's hearing system comply with the requirements of Article 6 in its application to civil proceedings? On all the other matters except legal aid, it does so comply. I reserve my opinion at present as to whether or not it complies when legal aid in the form of legal representation cannot be made available to the child, even where the child is unable to represent himself properly and satisfactorily.
4(a). Does Article 5 of the Convention apply to an order relative to secure
accommodation granted by a hearing? Yes.
4(b) In the event that Question 4(a) is answered in the affirmative, is the structure
of the children's hearing system Article 5 compliant in respect of any order granted in respect of secure accommodation? Yes.
[49] I would therefore move your Lordships to answer the questions as I have proposed and to give notice to the Advocate General in terms of Section 5(1) of the 1998 Act and Rule of Court 82.3. The case should then be put out by order so that the court can consider whether it could and should make a declaration of incompatibility in respect of the legislative provisions dealing with legal aid.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President Lord Penrose Lord Macfadyen
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A2730/00 OPINION OF LORD PENROSE in REMITTED CASE under the Children (Scotland) At 1995, Section 68 From the Sheriffdom of South Strathclyde, Dumfries and Galloway at Lanark in the cause S. Minuter; against THE PRINCIPAL REPORTER and THE LORD ADVOCATE Respondents: _______ |
Act: Bell, Q.C., Collins; Drummond Miller, W.S. (Ross Harpers, Glasgow)
Alt: J.J. Mitchell, Q.C., J.M. Scott; Biggart Baillie: Solicitor General Shand, Davidson, Q.C.; Solicitor to the Scottish Executive
30 March 2001
[1] On 31 October 1999 there was an incident in a house in Carstairs. The minuter's father suffered head injuries which were to prove fatal. The minuter and another male, I.L., were also injured. The minuter was detained by the police at Carstairs under section 14 of the Criminal Procedure (Scotland) Act 1995 on suspicion that he had committed an offence of assault. He was taken to Lanark Police Office and initially held there.
[2] At Lanark the minuter was interviewed by the police, and thereafter arrested. He was charged with assault of I.L. to his serious injury. He remained in police custody until the morning of 1 November. He was due to appear before the sheriff on petition in the afternoon of that day. Before that happened, he was removed from police custody to a place of safety, at some distance from Carstairs, where he remained until 2 November 1999. On 2 November, he was brought before a children's hearing. The hearing resolved that no further order was required for his immediate care on the view that they were assured that the minuter would be living well away from the Carstairs area. The reporter was directed to hold a hearing within seven days to consider grounds for referral.
[3] The minuter was under sixteen years of age at the material time. The reporting officer was therefore obliged by section 53 (3) of the Children (Scotland) Act 1995, in addition to reporting to the procurator fiscal in terms of section 17 of the Police (Scotland) Act 1967, to report the facts to the Principal Reporter appointed under section 127 of the Local Government (Scotland) Act 1994 or an officer of the Scottish Children's Reporter Administration having appropriate delegated powers under section 131 (1) of the 1994 Act. For brevity I shall refer to the Principal Reporter and his delegates as "the reporter".
[4] Section 43 of the Criminal Procedure (Scotland) Act 1995 regulates the arrangements to be made by the police after the apprehension of a child which were followed in the initial stages of the case. The child may be liberated on an undertaking. Failing that the officer must cause the child to be kept in a place of safety other than a police office: section 43 (4).
[5] Where reports are made to the procurator fiscal and the reporter, it is the practice for those officers to enter into discussions whether the matter should be retained for criminal prosecution or dealt with under the Children (Scotland) Act: Renton & Brown's Criminal Procedure Legislation para A4.98. In terms of section 42 (1) of the Criminal Procedure (Scotland) Act 1995 any prosecution of a child requires to be raised in the High Court or Sheriff Court. The policy of the legislation as a whole is that, so far as may be, allegations of criminal conduct by children should be dealt with under the children's hearing system rather than by prosecution before the criminal courts.
[6] In the present case the procurator fiscal did not initiate a prosecution against the minuter and the hearing before the sheriff scheduled for the afternoon of 1 November did not take place. In such circumstances, since the minuter had not been liberated on an undertaking, the police were obliged to inform the reporter: Criminal Procedure (Scotland) Act 1995 section 43 (5). Responsibility for any further initiative required in the case passed to the reporter at that stage. In particular it was his responsibility to consider whether the child should be referred to a children's hearing, as was done in this case.
[7] The Children (Scotland) Act provides for the referral of a child to a children's hearing in a wide range of circumstances where a question has arisen whether compulsory measures of supervision are required in respect of the child and certain procedures have been completed: section 52 (1). "Supervision" may include measures taken for the protection, guidance, treatment or control of the child: section 52 (3)
[8] A question may arise as to the need for compulsory measures of supervision, in terms of Section 52 (2), where he or she:
- is beyond the control of any 'relevant person' that is, a parent
- is falling into bad associations or is exposed to moral danger;
- is likely -
- is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply) has been committed. (These include sexual offences and other offences involving bodily harm.);
- is, or is likely to become, a member of the same household as a child in respect of whom any of the offences referred to in paragraph (d) has been committed;
- is , or is likely to become, a member of the same household as a person who has committed any of the offences referred in paragraph (d);
- is, or is likely to become, a member of the same household as a person in respect of whom an offence under sections 1 to 3 of the Criminal Law (Consolidation)(Scotland) Act 1995 (incest and intercourse with a child by step-parent or person in position of trust) has been committed by a member of that household;
- has failed to attend school regularly without reasonable excuse;
- has committed an offence;
- has misused alcohol or any drug, whether or not a controlled drug within the meaning of the Misuse of Drugs Act 1971;
- has misused a volatile substance by deliberately inhaling its vapour, other than for medicinal purposes; and
- is being provided with accommodation by a local authority under section 25, or is the subject of a parental responsibilities order obtained under section 86 of the Act and, in either case, his behaviour is such that special measures are necessary for his adequate supervision in his interest or the interest of another.
enjoying parental responsibilities or rights, a person in whom such responsibilities or rights are vested, or any person who ordinarily has charge of or control over the child;
(i) to suffer unnecessarily; or
(ii) be impaired seriously in his health or development, due to a
lack of parental care;
[9] The question of a child's needs may be raised in a number of ways. If information is received by a local authority suggesting that compulsory measures of supervision may be necessary, the local authority, with or without investigation, if satisfied that such measures are necessary, is required to inform the reporter: Children (Scotland) Act 1995 section 53 (1). A person other than a local authority who has reasonable cause to believe that compulsory measures of supervision may be necessary may give that information to the reporter, and, if a constable, must give the reporter such information: section 52 (2). Particular provision is made for informing the reporter of allegations of offences by the child, as already noted: Children (Scotland) Act 1995 section 52 (3); paragraph [3] above.
[10] Section 56 (1) of the Act provides:
"Where the Principal Reporter receives information from any source about a case which may require a children's hearing to be arranged he shall, after making such initial investigation as he thinks necessary, proceed with the case in accordance with subsection (4) or (6) below."
Subsection (4) provides for the situation where the reporter decides that a hearing is not required. The action permitted under section 56 (4) covers a range of welfare disposals, and is not relevant for present purposes. Sub-section (6) applies where he considers that compulsory measures of supervision are required and obliges the reporter to arrange a hearing "to which he shall refer the case for consideration and determination". This appears to apply even where the source of the information is a constable, and the procurator fiscal is continuing to pursue prosecution. The section is expressed in general terms. The reporter is entitled, but not obliged, to make an initial investigation where he thinks that a hearing may be required. He then has two options: (a) to decide that a hearing is not required and take action as permitted by section 56 (4); or (b) to arrange a hearing to which to refer the case for consideration and determination. We were informed that the pattern of disposals at this stage has been roughly as follows:
- In 44% of all cases the reporter takes no action because he considers that intervention is unnecessary;
- In 6% of all cases there is a lack of evidence on which to proceed;
- In 13% of all cases the child is already under supervision for other reasons;
- In 2% of all cases action is taken under other provisions;
- In 11% of all cases the child is referred for voluntary help;
- In 1% of all cases the child is referred to the juvenile liaison officer;
- In 22% of all cases a children's hearing is arranged.
[11] Some cases involving allegations of offences are reported only to the reporter in terms of guidelines approved by the Lord Advocate. Others, generally involving the most serious of offences, are prosecuted as a matter of rule under the same guidelines. These cases are not included in the analysis in the last paragraph. In a third category it is a matter of circumstances. The categories as currently defined are set out in Kearney: Children's Hearings and the Sheriff Court paragraph 1.26. Assault to severe, or serious, injury falls into the third category. In such cases, the position of the reporter while the procurator fiscal is continuing with his investigations appears to have been left unregulated by the Children (Scotland) Act 1995. It was agreed that in practice matters continue to be discussed between the reporter and the procurator fiscal. While the police report to the reporter as required by section 53 (3) of the Act will have been received early in the history of the case, the reporter must await the procurator fiscal's decision before proceeding.
[12] Where the child is detained in a place of safety following on initial police enquiries, section 63 (1) provides for subsequent proceedings if the procurator fiscal decides that charges are not to be proceeded with. The police receive notification of that decision from the procurator fiscal in ordinary course. When they inform the reporter of the procurator fiscal's decision, he has power to decide that compulsory measures of supervision are not required, but otherwise must arrange a children's hearing to which to refer the case. Among the options open at that stage is the continued detention of the child at a place of safety in terms of section 63 (4) until the beginning of the hearing arranged under subsection (1). In terms of section 63 (5) the hearing may grant warrant to keep the child in a place of safety thereafter if the conditions prescribed by section 66 are satisfied, and direct the reporter to arrange a hearing to dispose of the case on its merits. On the terms of the legislation, a hearing for the disposal of the case might already have been arranged under section 56. But we understand that informal arrangements in place between the reporter and the procurator fiscal avoid any practical overlap in the operation of these provisions.
[13] It is a feature of the scheme of these provisions that a child who has been arrested by the police and held pending appearance before a sheriff, or a child who has appeared before the sheriff and been refused bail pending further enquiries, or a child who has been fully committed and detained, may, following a decision by the procurator fiscal not to proceed with charges, continue to be held in a place of safety before the reporter has reached a decision whether or not to proceed on the merits of the case. The police, during this period, have a continuing obligation to report to the reporter in terms of section 17 of the Police (Scotland) Act 1967, but the reporter has no power to direct the police as to any further enquiries they might make in connection with the case. The procedure under the Children (Scotland) Act is not fully integrated with police operations, nor with the operations of the procurator fiscal, at this stage, and there is a risk of delay. In the present case it was some weeks before the reporter was ready to proceed.
[14] Section 65 of the Children (Scotland) Act takes up the procedure "on the merits". Before the reporter is entitled to refer the child for consideration and determination of the case, he must be satisfied that compulsory measures of supervision are required and that at least one of the grounds for referral specified in section 52 (2) is established. Specific provision is made for children subject to a child protection order or already subject to a supervision requirement which do not require discussion in this case. The provisions of section 65 which are material for present purposes are as follows:
"(4) Subject to subsections (9) and (10) below, it shall be the duty of the chairman of the children's hearing to whom a child's case has been referred under subsection (1) above to explain to the child and the relevant person, at the opening of the proceedings on the referral, the grounds stated by the Principal Reporter for the referral in order to ascertain whether these grounds are accepted in whole or in part by them.
(5) Where the chairman has given the explanation required by subsection (4) above and the child and the relevant person accept the grounds for the referral, the children's hearing shall proceed in accordance with section 69 of this Act.
(6) Where the chairman has given the explanation required by subsection (4) above and the child and the relevant person accept the grounds in part, the children's hearing may, if they consider it appropriate to do so, proceed in accordance with section 69 of this Act with respect to those grounds of appeal which are accepted.
(7) Where the chairman has given the explanation required by subsection (4) above and either or both of the child and the relevant person-
- do not accept the grounds for the referral; or
- accept the grounds in part, but the children's hearing do not consider it appropriate to proceed with the case under subsection (6) above,
the hearing shall either direct the Principal Reporter to make an application to the sheriff for a finding as to whether such grounds for the referral as are not accepted by the child and the relevant person are established or shall discharge the referral.
(8) Subject to subsection (10) below, it shall be the duty of the chairman to explain to the child and the relevant person the purpose for which the application to the sheriff is being made and to inform the child that he is under an obligation to attend the hearing before the sheriff.
(9) Where a children's hearing are satisfied that the child-
- for any reason will not be capable of understanding the explanation of the grounds for the referral required under subsection (4) above; or
- has not understood an explanation given under that subsection,
they shall either direct the Principal Reporter to make an application to the sheriff for a finding as to whether any of the grounds of the referral are established or discharge the referral.
(10) The acceptance by the relevant person of the grounds of the referral shall not be a requirement for a children's hearing proceeding under this section to consider a case where that person is not present."
These rules envisage direct communication between the members of the hearing and the child without the child having legal representation.
[15] The child and any relevant person are notified by the reporter of the hearing by the service of standard forms. In the case of the child, the forms intimate the place and date of the hearing, inform the child of his right to attend, refer to an explanatory leaflet, and inform the child of his right to be heard, and, separately, specify the ground or grounds for referral. The form intimating the reason for the referral contains footnotes as follows:
"The children's hearing will ask the child and relevant persons if they accept the reasons for arranging the hearing. If the reasons are accepted the children's hearing will discuss with the child and relevant persons what is best for the child. If any of the reasons are not accepted, the hearing may either discharge them or tell the reporter to apply to the sheriff who will decide if any of the reasons are proved.
If the sheriff decides that any of the reasons are proved, the children's hearing will then discuss what is best for the child, as if these reasons had been accepted. If the sheriff decides that no reasons are proved the case will be discharged."
[16] The form intimating the diet gives the child the following advice:
"You may want to tell the hearing what you think would be best for you. You have the right to do that. If you do want to, you can tell me before the hearing starts or you can say it at the hearing.
You can write to me if you want. Whatever you tell me or write to me will be passed on to the panel members and also to your parents or main carers and to the safeguarder if one is appointed by the hearing. ....
If you want to, you can bring someone with you to the hearing, a representative, to help you talk to the panel members....
If you do not understand this form you may get free help from a solicitor or you may contact the Scottish Child Law Centre on their free advice line..."
[17] Each relevant person receives similar information and advice. In addition, the relevant person receives a notice intimating that he or she will receive copies of all of the written information that the members of the hearing will have when discussing the child's case. This information is not made available to the child. The position before the hearing therefore is that the child, and any legal adviser contacted under the legal advice and assistance scheme or the Scottish Child Law Centre, must consider the child's position with reference to the grounds for referral without access to the reports and written information available to the relevant person, typically the parents or a parent, or other carer of the child, and to the members of the hearing. The child will be asked at the hearing whether the grounds for referral are accepted without knowing the range of information relevant to the consequences of his answer.
[18] It was emphasised by counsel for the reporter that there is a clear conceptual division of functions at this stage. The hearing has no power to determine whether the grounds for referral have been established in whole or in part. The hearing cannot decide, by reference to the material before it or otherwise, whether it has jurisdiction to deal with the child. That is in the hands of the child and any relevant person, on the one hand, and the sheriff on the other. The hearing clearly does not have power to determine any issue of fact at this stage. It is, however, important to note that the hearing does have significant powers of disposal. In terms of section 65 (7) the hearing may discharge the referral without instructing proceedings before the sheriff. Such a decision must reflect the contents of the written material before the hearing in addition to any information provided orally at the hearing. The advice received by a child whether to accept grounds for referral or to reject them and speak in favour of such a disposal cannot be fully informed without reference to the material on which the hearing must rely in exercising its discretion. There is a further discretionary disposal available in terms of subsection (9). Again the child could not suggest such a disposal without access to the whole material available to the hearing.
[19] In terms of these provisions, there is no specified opportunity for a change of mind after a child has accepted grounds for referral. In particular where an offence is alleged and accepted and subsequent discussion discloses that the child had a defence to the allegation, there is no formal mechanism for reconsideration of the appropriateness of the acceptance. We were informed that this matter is dealt with by application of subsection (9), on the basis that a child who has made an inappropriate admission of an offence to which he had a defence cannot have understood the explanation given to him by the chairman. It is not clear that that device will always reflect the realities of the situation. Apart from other considerations its effectiveness may depend on the extent to which the members of the hearing, who may not have any legal training or experience, and the chairman in particular, understand that the circumstances do disclose a defence, and that the child must have misunderstood the position.
[20] Where the children's hearing directs that an application be made to the sheriff, the application must be heard within twenty-eight days. Section 68 then regulates the procedure before the sheriff. Subsection (3) provides that the sheriff to whom the application is made in the case of a referral under section 52 (2) (i) shall be the sheriff who would have had jurisdiction if the child were being prosecuted for the offence in question. It further provides that in hearing the application on that ground the sheriff shall apply the standard of proof required in criminal proceedings. The section further provides:
"(8) Where in the course of the hearing of an application-
- under section 65 (7) of this Act, the child and the relevant person accept any of the grounds for referral to which the application relates, the sheriff shall; or
- under section 65 (9) of this Act, the relevant person accepts any of the grounds for referral to which the application relates, the sheriff may, if it appears to him reasonable to do so,
dispense with the hearing of evidence relating to that ground and deem the ground to be established for the purposes of the application, unless he is satisfied that, in all the circumstances of the case, the evidence should be heard.
(9) Where a sheriff decides that none of the grounds for referral in respect of which an application has been made are established, he shall dismiss the application, discharge the referral to the children's hearing in respect of those grounds and recall, discharge or cancel any order, warrant, or direction under this Chapter of this Act which relates to the child in respect of those grounds.
(10) Where the sheriff, after the hearing of any evidence or on acceptance in accordance with subsection (8) above, finds that any of the grounds for the referral to which the application relates is, or should be deemed to be, established-
- he shall remit the case to the Principal Reporter to make arrangements for a children's hearing to consider and determine the case; ..."
In terms of these provisions, it is the sheriff who has the power to determine disputed matters of fact arising from the grounds for referral. He has no wider power of investigation than that arising from the specified grounds for referral.
[21] In any of the proceedings before the hearing or the sheriff, the hearing or the sheriff, as the case may be, may appoint a person to safeguard the interests of the child in the proceedings if that is thought necessary: section 41. The reasons for the appointment must be stated. The expenses of the safeguarder incurred in safeguarding the interests of the child at the hearing, so far as not met by the Scottish Ministers under section 101 of the Act, are met by the local authority. This is an important provision increasing the scope for protective measures where the child requires support. The safeguarder may be a person with professional or other skills appropriate to the child's needs in the circumstances. But we were given no information about the frequency of use of the provision.
[22] Once a child has become subject to the jurisdiction of the hearing, either by accepting the grounds for referral or as a result of proceedings before the sheriff, the children's hearing is obliged to consider the relevant grounds, any report received from the local authority, and "any other relevant information": section 69 (1). The hearing may then continue the case if further investigation is required, discharge the referral if it decides not to make a supervision requirement, or make a supervision requirement under section 70. In the exercise of those powers, the hearing is obliged to give paramount consideration to the welfare of the child throughout his or her childhood: section 16(1). If considering a supervision requirement, the hearing must give the child an opportunity to be heard, and have regard to his or her views so far as practicable having regard to the child's age and maturity. A child is presumed to be of sufficient age and maturity to form a view at twelve years of age. If the child is younger, maturity is a matter for the hearing to determine. No supervision requirement, or warrant for keeping the child in a place of safety, may be made unless the hearing consider that it would be better for the child that the order be made than that no order should be made at all: section 16 (3) and (4). These are the same principles as apply to orders relating to parental rights and responsibility, guardianship, and the administration of the child's property and to adoption.
[23] The procedures to be adopted at the hearing considering the disposal of the case are regulated by the Children's Hearings (Scotland) Rules 1996 and in particular rule 20. We were referred to a helpful article by Rose, 1994 S.L.T. (News) 137, for a practical account of the application of the statutory provisions and the rules. It is clear that children's hearings are conducted with scrupulous fairness and with unqualified commitment to the pursuit of the child's best interests. If there are deficiencies in the system, they are structural and do not reflect adversely on the dedication of the volunteers who carry out this work. The hearing's powers of disposal are set out in section 70 of the Act. A supervision requirement may be made where the hearing is satisfied that compulsory measures of supervision are required: subsection (1). The supervision requirement may require the child to reside at a specified place or places and to comply with any condition contained in that requirement: subsection (3). The supervision requirement may authorise the person in charge of the place or places to restrict the child's liberty to such extent as that person may consider appropriate: subsection (4). There may be restrictions on contact with any specified person or class of persons: subsections (2) and (5). Any of these requirements is subject to review: subsection (7).
[24] The duration of supervision requirements is restricted. No child may be subject to supervision for any period longer than is necessary in the interests of promoting or safeguarding his welfare: section 73 (1). Generally, no supervision requirement can remain in force for longer than one year: section 73 (2). The relevant local authority may seek a review: subsection (4). The child or any relevant person may require a review at intervals of not less than three months: subsection (6). The hearing has wide powers of disposal on review: subsection (9).
[25] The children's hearings system had its origins in the report of the Kilbrandon Committee published in April 1964: Cmnd 2306 "Children and Young Persons Scotland". As implemented, the system sought to decriminalise offenders' behaviour and effectively to treat children as potential victims where they were alleged to have offended in the same way as when they were offended against. Offending behaviour was treated as a manifestation of a possible need for care along with all of the other possible grounds for referral: paragraphs 15 and 138 of the Kilbrandon report. The child's interests were the focal feature of the system. The view reflected in the report was that if the child received proper care, society would benefit in the long term. The structure of the system also reflected a view that in the determination of the child's interests different skills were required from those which characterised the judicial process. The judicial process was adapted to resolve disputed issues of fact, and that role was preserved where there were disputes, or where the child's understanding was limited. Subject to that, the rationale of the system was the pursuit of the child's best interests. The respondents contended that the system had stood intact, and unchallenged, for over three decades. Its value was established. Informality and conciliation were the hallmarks of the proceedings.
[26] It is against this general background that the issues in this case have to be considered. In light of his instructions from the hearing on 2 November 1999, the reporter in due course prepared a statement of a ground for referral of the matter to a children's hearing. The time limits imposed by the hearing were not met. In the event it was 9 December before grounds were intimated, and 22 December before the hearing met to consider the case. The ground was that the minuter had committed an offence. The specification of the alleged offence was that he had on 31 October 1999, while acting with another, assaulted I.L. by striking him repeatedly on the head and body with a baseball bat or similar instrument to his serious injury. The minuter contends that the ground for referral "libelled a charge of assault to severe injury being a criminal offence." The minuter and his mother did not accept the ground for referral, and the hearing instructed that an application should be made to the sheriff to determine whether the ground for referral was established Before the sheriff the minuter contended that his Convention rights under the European Convention on Fundamental Rights and Freedoms were being infringed, and that a devolution issue arose from the failure of the Scottish Ministers to take action to remedy structural deficiencies in the system. The sheriff remitted the case to the court.
[27] As remitted by the sheriff the case contained eighteen questions relating to the application of the Convention. In the course of debate it was agreed among counsel that the court was concerned with seven issues which were formulated as questions in these terms:
1. Is Article 6 applicable to proceedings before a Children's Hearing from the stage of ascertaining under section 65 (4) of the Children (Scotland) Act 1995 whether the child accepts the Grounds of Referral to the final disposal of the referral under section 70 of the Act?
2(a) Is a hearing before a Children's Hearing in respect of a referral under section 52 (2) (i) of the Children (Scotland) Act 1995 proceedings for determination of a criminal charge to which Article 6.1 and 6.3 apply?
2(b) In the event that Question 2 is answered in the affirmative does the present structure of the Hearing system comply with Article 6.1 and 6.3 in its application to criminal proceedings?
3(a) Is a Hearing before a Children's Hearing under section 52 (2) (i) of the Children (Scotland) Act 1995 proceedings for determination of civil rights and obligations of the child referred?
3(b) In the event that Question 4 is answered in the affirmative does the structure of the Children's Hearing system comply with the requirements of Article 6 in its application to civil proceedings?
4(a) Does Article 5 of the Convention apply to an order relative to secure accommodation granted by a Hearing?
4(b) In the event that Question 4 is answered in the affirmative is the structure of the Children's Hearing system Article 5 compliant in respect of any order granted in respect of secure accommodation?
Questions 2 (b), 3 (b) and 4 (b) require the court to consider the compatibility of the children's hearing system with the minuter's Convention rights. A negative answer to any of the questions would at least raise a question whether the court should exercise the power conferred by section 4 (2) of the Human Rights Act 1998, and that in turn would trigger the procedural provisions of section 5 of that Act.
[28] Article 6.1 of the Convention guarantees a person's right to a fair trial: "In the determination of his civil rights and obligations or of any criminal charge against him.." Counsel for the minuter argued that in deciding whether proceedings were concerned with the determination of a criminal charge for the purposes of Article 6 the European Court of Human Rights had taken an autonomous approach focusing on three considerations:
1. the classification of the offence under domestic law;
2. the inherent nature of the offence; and
3. the nature and severity of the penalty attached to the offence.
The focus for the enquiry was on the nature of the offence, not the classification of the procedure by which the determination was arrived at, and the issue was approached as one of substance. If an offence was classified as criminal under domestic law, the European Court did not question that classification for the purposes of the Convention. Rather it was taken as an election by the State that Article 6 should apply to the proceedings. It was relevant when considering the inherent nature of the offence whether the legal rule infringed was one of general application to the population at large or was confined to a particular group possessing a special status. The three considerations were alternative not cumulative. It followed that a person might be charged with a criminal offence whether or not the offence was punished or was punishable. A person was "charged" within the meaning of the Convention when he or she was given official notification by a competent authority of an allegation that he or she had committed a criminal offence. Once a criminal charge was notified, the proceedings determining that charge required thereafter to comply with Article 6 in their entirety until a final determination was made. It followed that a person subject to a criminal charge was entitled to the protection of Article 6: (a) if he pleaded guilty to the charge; (b) at any hearing solely concerned with sentencing or other disposal following a plea of guilty or a conviction; and (c) at any appeal hearing.
[29] For the respondents it was argued that the minuter's analysis of the European jurisprudence was flawed. According to the reporter, the correct approach was to form an overall impression of the character of the proceedings under review, having regard to the three considerations that had been identified. The minuter's analysis put an inappropriate gloss on the European jurisprudence in seeking to divert attention from the proceedings in question to a narrow consideration of the nature of the allegation. Some of the propositions were not in dispute. It was accepted that if a domestic system classified proceedings as criminal that was the end of the matter. But in other respects the European Court had not used such consistent language nor applied such a consistent approach as would justify the propositions advanced by the minuter's counsel. The question whether the outcome of the proceedings initiated by the statement of the ground for referral is properly characterised as the determination of a criminal charge is central to the present case.
[30] The first issue which arises is the classification of the case in domestic law. Proceedings before the children's hearing have been characterised in Scots domestic law as civil proceedings sui generis: McGregor v T 1975 S.L.T. 76; Kennedy v O 1975 S.L.T. 235; and McGregor v D 1977 S.L.T. 182. In McGregor v T at page 81 Lord President Emslie said: "In my opinion, whatever else this judicial proceeding is, it is not a criminal proceeding." It is not concerned with a prosecution and it can lead to no conviction. In contrast, specific provision is made for prosecution of a child where that is necessary in terms of the Lord Advocate's guidelines, or on his instructions (paragraph [11] above). In terms of section 42 (1) of the Criminal Procedure (Scotland) Act 1995, no child under sixteen years of age may be prosecuted for any offence except on the instructions of the Lord Advocate, or at his instance, and then only in the sheriff court or high court. Where the ground for referral to the children's hearing is that an offence has been committed by the child, there are a number of references to substantive and procedural criminal law both in primary legislation and in regulation. It has been held by the court that the word "offence" is necessarily a "criminal offence" and so cannot be committed by a child under the age of criminal responsibility: Merrin v S 1987 S.L.T. 193. A child under the age of criminal responsibility who may have acted in a way suggesting that he had committed an offence is therefore protected from proceedings before the children's hearing as he would be before the ordinary criminal courts.
[31] The scheme of the hearings system differs in some respects from the Kilbrandon proposals. Lord Kilbrandon envisaged that the "allegation issue" in the case of offences should be resolved by criminal process before a court of law: paragraph 72. The system adopted goes further in decriminalising the procedure as a whole. However, it preserves the criminal standard of proof, and the requirement for corroboration in respect of essential facts, where the ground for referral is an offence under section 52 (2) (i). The sheriff to whom application is made for the determination of disputed grounds for referral alleging an offence is the sheriff who would have jurisdiction of the child were being prosecuted for the offence: Children (Scotland) Act 1995 section 68 (3) (a). The definition of "civil proceedings" in section 9 of the Civil Evidence (Scotland) Act 1988, as amended by the Children (Scotland) Act 1995 includes proceedings before the sheriff generally, but specifically excludes grounds for referral under section 52 (2) (i). The requirement for corroboration and the rule excluding hearsay evidence subsist in relation to such grounds for referral. The criminal standard of proof is applied by section 68 (3) (b). Further the criminal standard applies to the degree of specification required in allegations under section 52 (2) (i): Children's Hearings (Scotland) Rules 1996 rule 17 (2). Section 138 of the Criminal Procedure (Scotland) Act applies for that purpose. So far as proceedings before the sheriff are concerned, the procedure on an application for determination of the question whether a ground for referral is established has most of the characteristics of ordinary summary criminal procedure. [32] In addition to these points, it was contended by counsel for the minuter that the Rehabilitation of Offenders Act 1974 illustrated the treatment by the legislature of a disposal under the Children (Scotland) Act 1995 of an offence ground for referral under section 52 (2) (i) as a criminal conviction. It is clearly the case that for the purposes of that Act the disposal is treated as a conviction. This was said to be of particular importance to the minuter, in respect that he wanted to join the army.
[33] In my view, these features of the hearing system, and of the treatment by Parliament of determinations made under it, are not indicative of a domestic view that the proceedings are criminal. The evidential and procedural protection provided by the 1995 Act was considered and taken into account in McGregor v T. The provisions ensure that the same guarantees are available to the child as would have been available had he been prosecuted for the offence, even if the result is to deprive him of the benefits of care under the Act. As was pointed out by Lord President Rodger in Constanda v M 1997 S.C. 217 at pages 223-4:
"Parliament must have judged that the protection of the child's right to be treated .. like anyone else who is alleged to have committed an offence was sufficiently important to justify any risk to the child which might stem from him not receiving care under the Act as a result of the ground not being established."
The legislation anticipates proof, beyond reasonable doubt, on corroborative evidence. Anything less would have exposed the child to the risk of being held to have carried out conduct indicative of an offence without the protection available at common law. But the leap from these particular protective provisions to the general characterisation of the procedure as criminal is not justified in logic or common sense.
[34] Similarly, the 1974 Act extends to a child dealt with under the hearings system the benefit of that Act which would otherwise not have been available. The Act protects persons from any obligation to disclose convictions in answer to what would otherwise be legitimate questions in certain circumstances. A child who had been held to have committed an offence in proceedings before the hearing would not have been entitled to deny that fact after the event, however far in the past the event had happened, but for the provision, notwithstanding that had he been convicted and sentenced by a criminal court he would have had that protection. In my view none of the provisions of the Act extends the obligation to give a true answer to a question focused on past offending. A child who had been found to have committed a sexual offence against another child would be under the same obligation to disclose it in a job application related to the care of children as if the Act had not been passed. The 1974 Act for the purpose of conferring the benefits of rehabilitation on the child treats the disposal by the hearing as a conviction. It is in that limited sense only that the domestic legislation treats the determination under the hearings system as a criminal conviction. But again it is an illogical leap from this particular form of protection to the general conclusion that the proceedings are or can be characterised as criminal in domestic law.
[35] The statutory definition of a criminal offence is usually as close as one can come to the jurisprudential idea of a general order by the legislature, backed by threats. The threat of punishment is an inherent element of the concept of the offence. In domestic law, the exercise of judgment on the question of penalty is an inherent part of the disposal of criminal business. In my view, the State cannot be said to have elected to accept the application of Article 6 in its criminal aspects to proceedings under the Children (Scotland) Act 1995, not least because it is of the essence of the system that it is non-penal. The fundamental characteristic of the system is the provision of care for children in need, not the imposition of a penalty for conduct, whether that conduct might be characterised as criminal in the ordinary sense, or deviant in some other respect from accepted social norms. However, it is clearly established that a domestic election to treat proceedings as civil is not determinative of their classification for Convention purposes: Engel v The Netherlands (No. 1) (1976) 1 EHRR 647. The case was concerned with military discipline. It was accepted that all Contracting States made a distinction of long standing, albeit in different forms and degrees, between disciplinary proceedings and criminal proceedings: paragraph 80. At paragraph 81 of its judgment the Court stated:
"If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a 'mixed' offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention."
It is necessary therefore to consider the criteria applicable to the identification of criminal proceedings in the European jurisprudence.
[36] In the context of military discipline, the Court in Engel attached great weight to "the very nature of the offence" involved in the case: paragraph 82. It recognised that in principle the State might employ disciplinary law rather than criminal law against a serviceman accused of an act or omission alleged to contravene a rule of military discipline. But the Court's supervision of Contracting States' systems:
"would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the 'criminal' sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so."
In disposing of the individual cases before it, the Court distinguished the allegations as criminal or disciplinary as a function of penalty.
[37] Deweer v Belgium (1980) 2 EHRR 439 was concerned with an infringement of a Ministerial Decree prohibiting illegal profits. The procureur du Roi intimated to Mr Deweer that his business would be provisionally closed, but offered a "friendly settlement" of a fine. There was no arrest and no official notification of impending prosecution: paragraph 43 of the Court's judgment. The closure order was, however, made in the normal course of criminal proceedings that would have had to be taken following the complaint against Mr Deweer if the friendly settlement proposal were rejected. The terms of the proposed settlement implied in substance an admission of guilt. And the fine was entered in municipal criminal files. It was held that there had been a criminal charge on a combination of the features found in the case. At paragraph 46 the Court observed that the test whether the situation of a suspect had been substantially affected was closely related to the official notification to a person by a competent authority of an allegation that he had committed an offence. The procedure put him in a position in which he would be subjected to penal consequences for an admitted offence, albeit as part of a settlement which avoided more formal criminal proceedings. The defining characteristic of the system was again the enforcement of a prohibition backed by threatened penalties.
[38] Engel and Deweer were referred to in Öztürk v Germany (1984) 6 EHRR 409. The case was concerned with a statutory provisions for the decriminalisation of petty offences, and particularly road traffic offences. Mr Öztürk drove his car into a parked car damaging both vehicles. The Court acknowledged that the legislation represented a material innovation in dealing with road traffic offences. But it stated, at paragraph 53 pp. 423-424:
"Nonetheless, the Court would firstly note that, according to the ordinary meaning of the terms, there generally come within the ambit of the criminal law offences that make their perpetrator liable to penalties intended, inter alia, to be deterrent and usually consisting of fines and of measures depriving the person of his liberty.
In addition, misconduct of the kind committed by Mr Öztürk continues to be classified as part of the criminal law in the vast majority of the Contracting States, ...; in those other States such misconduct, being regarded as illegal and reprehensible, is punishable by criminal penalties.....
Above all, the general character of the rule and the purpose of the penalty, being both deterrent and punitive, suffice to show that the offence in question was, in terms of Article 6 of the Convention, criminal in nature."
Although the intention was to take the proceedings out of the ordinary criminal courts, the essential characteristics of a criminal prosecution remained. In my opinion, the notions of criminality of conduct and liability to punishment are inextricably bound up with each other in these cases. None of the judgments suggests that one could properly characterise as a criminal charge an allegation which could not in any circumstances lead to punishment.
[39] Engel and Deweer were also relied on in Adolf v Austria (1982) 4 EHRR 313. Mr Adolf was said to have assaulted a lady in a minor way causing insignificant injuries. In terms of section 42 of the Austrian Penal Code, designed to "decriminalise" certain acts of a trivial nature by making them non-punishable, the case was struck out. In doing so, the Innsbruck District Court effectively held that the assault had been committed without hearing Mr Adolf. The offence remained within the criminal code notwithstanding the decriminalising procedures, and Mr Adolf had the stigma of a criminal conviction on his record. It was decided by the Court that he had been charged with a criminal offence. Counsel for the minuter argued that Adolf came closest to a case in which proceedings were criminal notwithstanding that there could not be a criminal penalty. However, the case falls short of supporting the positive proposition that there can be a criminal charge without liability to punishment. In the event the offender was not punished. The offence was a criminal offence in terms of the criminal code, however, and was essentially punishable. There were diversion procedures which allowed for the removal of the case from criminal procedure where it was thought that the level of criminality was low. But they applied only where the case was in its nature within the code, and liable to punishment but for the administrative provisions employed.
[40] The tension between disciplinary proceedings and criminal proceedings emerged again in Campbell & Fell v United Kingdom (1984) 7 E.H.R.R. 165, a case concerned with prison disciplinary regulations, and in particular with the role of the Board of Visitors. The court rehearsed the findings in Engel and Öztürk at paragraphs 68 and 69. At paragraph 70 the judgment stated:
"The first matter to be ascertained is whether or not the text defining the offences in issue belongs, according to the domestic legal system, to criminal law, disciplinary law or both concurrently."
The findings on that test were that the indications were equivocal. In paragraph 71, the court said:
"In any event, the indications so afforded by the national law have only a relative value; the very nature of the offence is a factor of greater importance."
Having considered the nature of the offences against prison discipline, and noted that certain conduct may infringe both disciplinary and criminal codes, the Court held that the nature of the conduct did not of itself lead to the conclusion that the offences with which the applicant had been charged had to be regarded as "criminal" for Convention purposes, but considered that there were indications which gave the allegations "a certain colouring which does not entirely coincide with that of a purely disciplinary matter." The Court proceeded at paragraph 72 to deal with the last criterion derived from Engel and Öztürk: the nature and degree of severity of the penalty that Mr Campbell risked incurring. That criterion, taking into account the nature of the offences, was held to be satisfied under reference to the observation in Engel that deprivation of liberty liable to be imposed as a punishment was, in general, in the "criminal" sphere.
[41] Öztürk was again applied in Lutz v Germany (1987) 10 E.H.R.R. 182 and in Kadubec v Slovakia RJD 1998 VI 2783. At paragraph 51 of its judgment in Kadubec, which involved a minor offence punishable by fine in administrative procedures, the Court repeated the three criteria derived from earlier authorities. It emphasised that the three criteria were alternative and not cumulative. A similar approach was adopted in Ravensborg v Sweden (1994) 18 EHRR 38: paragraph 30. However, a cumulative approach might be adopted where the separate analysis of each criterion failed to allow of a clear conclusion on the issue whether there was a criminal charge. In conclusion, the Court stated:
"In sum, the general character of the legal provision infringed by the applicant together with the deterrent and punitive purpose of the penalty imposed on him, suffice to show that the offence in question was, in terms of Article 6 of the Convention, criminal in nature."
There was no need to consider the third criterion. "The relative lack of seriousness of the penalty at stake cannot deprive an offence of its inherently criminal character."
[42] In the cases related to decriminalisation laws so far referred to, with the possible exception of Adolf, the State was, essentially, adopting alternative methods of pursuing criminal allegations with a view to the imposition of penalties on those who admitted committing or were found to have committed the acts complained of. It was in that context that the Court repeatedly stated that domestic legislatures could not in that way deprive the Convention of its supremacy. The procedures adopted could not cloak the fact that there was still the determination of a criminal charge at the heart of the provisions. In my view, Adolf is not distinguishable in that respect. The emphasis in the language used in relation to the second criterion was consistently placed on the nature of the offence. In context nothing else was required. But that was generally bound up with the notion of punishment as the end product of the exercise.
[43] In Benham v United Kingdom (1996) 22 EHRR 293, a case relating to collection of the community charge, the Court adopted different language. In view of the importance attached to the decision by the respondents, it is necessary to set out the relevant passages from the judgment:
"56. The case law of the Court establishes that there are three criteria to be taken into account when deciding whether a person was "charged with a criminal offence" for the purposes of Article 6. These are the classification of the proceedings under national law, the nature of the proceedings, and the nature and degree of severity of the penalty.
As to the first of these criteria, ..... this factor is of relative weight and serves only as a starting point.
The second criterion, the nature of the proceedings, carries more weight. In this connection, the Court notes that the law concerning liability to pay the community charge and the procedure upon non-payment was of general application to all citizens, and that the proceedings in question were brought by a public authority under statutory powers of enforcement. In addition, the proceedings had some punitive elements. For example, the magistrates could only exercise their powers of committal to prison on a finding of wilful refusal to pay or of culpable neglect.
Finally, it is to be recalled that the applicant faced a relatively severe maximum penalty of three months' imprisonment, and was in fact ordered to be detained for 30 days.
Having regard to these factors, the Court concludes that B was "charged with a criminal offence" for the purposes of Article 6.1.."
[44] It is clear that the Court did not consider that the decision in Benham and the reasoning in the paragraphs quoted involved any material development of the previous case law notwithstanding the change of terminology used in relation to the second criterion. As already mentioned none of the cases to which we were referred involved proceedings in which there was no possibility of penalty. In that context identification of the determination which might be arrived at, and of the procedures available to arrive at that determination, are of particular relevance. Benham, in particular, underlines the fact that the expression "charged with a criminal offence" does not exist in a procedural vacuum, but relates to a process, judicial or administrative, which will result in a determination whether the alleged offence has been committed and what the disposal might be. That was already inherent in inter-relationship of offence and penalty in the earlier cases. In my opinion the European jurisprudence has its focus in that aspect of the exercise of sovereign power which relates to the punishment of offenders against the criminal law. It is only in the context of the exercise of that power that the protection of Article 6 guarantees is required in the criminal sphere. Criminal conduct may be alleged in civil proceedings at the instance of private parties claiming damages or some other form of remedy. Such cases do not engage the criminal guarantees of the Convention because the State does not make the allegation and does not seek imposition of any penalty. In the children's hearing system an authorised official might be said to make an allegation of an offence where the ground for referral is under section 52 (2) (i). However, whatever the general significance of that might be, the issue in the present case is whether there are any penal consequences, and, if there are none, what the result is.
[45] In diverting allegations of offences from the ordinary criminal courts, with limited exceptions, the children's hearing system can be distinguished from the cases dealing with decriminalisation provisions which retain the essentially penal character of the criminal law. Punishment is not a factor in the disposal of cases coming before a hearing. The only permitted disposals have as their focus the child's welfare, in the broadest sense, in terms of section 16 of the Act. Not every system of juvenile justice will have such a character. The system of juvenile courts in operation prior to implement of the Kilbrandon proposals in Scotland had a welfare component, but nevertheless presented as a system of criminal prosecution. Similarly, the Dutch system of dealing with juveniles which was considered in Nortier v The Netherlands (1993) 17 E.H.R.R. 273 was admittedly criminal in domestic terms, and had all of the characteristics of a criminal prosecution. The hearings system reflects a deliberate departure from that approach.
[46] In argument relating primarily to Article 5, the only situation in which the paramount welfare principle was challenged was where a requirement was made for residence in secure accommodation. Secure accommodation is defined for the purposes of the Children (Scotland) Act, 1995, by section 93 (1) as:
"accommodation provided in a residential establishment, approved by the Scottish Ministers in accordance with regulations made under section 60 (1) (bb) of the Social Work (Scotland) Act 1968 or under paragraph 4 (2) (i) of Schedule 4 to the Children Act 1989, for the purpose of restricting the liberty of children."
That provision must be read along with the Secure Accommodation (Scotland) Regulations 1996. Regulation 3 provides that accommodation shall not be used as secure accommodation unless it has been approved by the Scottish Ministers for that purpose. Regulation 4 provides that the managers of secure accommodation in consultation with the person in charge:
".. shall ensure that the welfare of a child placed and kept in such accommodation is safeguarded and promoted and that the child receives such provision for his education, development and control as is conducive to his best interests."
There are strict conditions on placing a child in secure accommodation, and on a local authority's power to recommend such placement, which reinforce the central importance of the child's best interests: regulations 6(1) and 10. The welfare principle is therefore preserved.
[47] The Court's discussion of the Belgian system for the treatment of juvenile offenders in Bouamar v Belgium (1987) 11 E.H.R.R. 1, at paragraphs 47 to 52, supports the view that a properly funded system of juvenile treatment, with adequate provision of appropriate institutional facilities, providing secure accommodation and meeting the requirement for educational objectives, would not necessarily contravene Article 5 (1). The case demonstrated that in some circumstances the use purportedly made of the powers provided might amount to an infringement of a child's rights. But the institutional provision was not criticised in general terms. In my opinion this view could not have been taken if the system had been regarded as penal simply because it provided for the detention of the child in secure accommodation in certain circumstances. The minuter's widest proposition that deprivation of liberty was a penalty in absolute terms cannot be accepted. The Scottish legislation does not penalise the child for what he has done. It takes the offence as an indication of a need for care which then has to be assessed independently and expressed in terms of compulsory measures of supervision. In some circumstances one can envisage a certain stigma attaching to the child who has been subject to a secure accommodation order. But that would be an ill-informed view of the disposal. As already mentioned, we were not referred to any case in which it had been held that there was determination of a criminal charge notwithstanding that there was no possibility of a penal disposal.
[48] The relevance of penalty is underlined by the decision in Kaplan v United Kingdom (1980) 4 E.H.R.R. 64, which was concerned with the regulation of the insurance industry inter alia by the imposition of restrictions on trading. At paragraph 170 of its decision, the Commission stated:
"Both parties have referred to the criteria laid down by the Court in the Engel case for determining the applicability of Article 6 to military disciplinary proceedings. The Commission recalls that one factor the Court took into account was 'the degree of severity of the penalty that the person concerned risks incurring'. In the present case the proceedings were not concerned with the imposition of any penalty on the applicant. The restrictions imposed on the company cannot, in the Commission's opinion, be regarded as equivalent to a penalty and in its view the proceedings in question did not therefore fall into the category of penal proceedings covered by Article 6 (1), despite the nature of the allegations made."
[49] Finally, some assistance can be obtained from the approach of the Court to the continuity of criminal proceedings. The determination of a criminal charge includes not only the determination of the guilt or innocence of the accused, but also the determination of his sentence: Eckle v Germany (1982) 5 EHRR 1; Findlay v United Kingdom (1997) 24 EHRR 221, paragraph 79 of the Commission's decision and paragraph 69 of the Court's judgment, and Garcia v Spain R.J.D. 1997 VIII 2783. In Eckle the Court stated in paragraph 77 of its judgment: "..there is no 'determination of any criminal charge' within the meaning of Article 6 (1) as long as sentence is not definitively fixed." Mr Findlay pleaded guilty to court martial offences. Sentence is, in terms of these cases, an essential element in the notion of the determination of a criminal charge considered as a procedural matter. In a children's hearing the equivalent step to a plea of guilty in ordinary criminal procedure, or a court martial, would be an acceptance by the child of the grounds for referral. At that stage the hearing could proceed to dispose of the case or adjourn for reports or other investigation. The child's Article 6 guarantees would continue until the final disposal. Similarly if the child refused to accept the grounds for referral and the matter came before the sheriff, since disposal would remain a matter for the hearing, the guarantees would continue. Since there could be no "sentence", the position would not change until the child attained the age at which the system no longer applied in his case.
[50] In my opinion, having regard to the European jurisprudence, and in particular the basis of the decision in Kaplan, proceedings before the children's hearing cannot be characterised as proceedings for the determination of a criminal charge. There is no penal component in the range of disposals available. On the contrary the sole purpose of the hearing is to find a solution to the child's problems which best suits the child's needs on a proper application of the welfare principle. In my view the submissions by counsel for the reporter that each of the grounds for referral specified in the Act, including paragraph (i), was an indication or symptom of a need for compulsory means of supervision was correct.
[51] Had I been of opinion that the proceedings were criminal in the relevant sense, there would, in my view, have been a substantial issue whether the system was structurally defective in failing to provide adequate guarantees for the purposes of Article 6. The accused person's Convention guarantees subsist on review of sentence even after the initial disposal: V. v United Kingdom (Thomson & Venables) (1999) 30 E.H.R.R. 121. There could have been a serious and substantial deficiency in the regulatory framework. In the criminal sphere Article 6 guarantees extend to the right to legal representation at all stages of the procedure, and to free legal aid, subject to means and the interests of justice in the circumstances of the particular case. It would be for the child to decide whether to represent himself or seek legal assistance: Pakelli v Germany (1983) 6 EHRR 1. It could have been contended therefore that there would have had to be some regulatory mechanism by which the child's wish for legal representation and for legal aid in appropriate cases could be determined. While provision is made for legal representation and legal aid before the sheriff, there is no such provision for the stages of the procedure before the children's hearing. The issue would have been whether there would have had to be provision for legal representation and, where appropriate, legal aid throughout the proceedings: S v Switzerland (1991) 14 E.H.R.R. 670; Belziuk v Poland RJD 1998 II 558. Similarly the right to a fair trial could have required that, in accordance with adversarial principles, the child should have access to all evidence available to the reporter and the hearing: Belziuk. These questions would necessarily have driven one to consider whether a declaration of incompatibility with the minuter's rights should be made.
[52] Turning to the third set of questions, the first issue is whether the hearing system involves the determination of the child's civil rights and obligations. In my view it is clear that the proceedings may interfere with the child's civil right to liberty of the person, whether that is considered as a matter of domestic law or under Article 5 of the Convention. A child who has been held in a place of safety pending criminal proceedings, but against whom the procurator fiscal does not proceed with criminal charges, may be released on the direction of the reporter if the reporter considers that compulsory measures of supervision are not required: section 63 (3) of the Children (Scotland) Act 1995. If the reporter does not reach that view, the child must be brought before a children's hearing within three days: subsection (2), and may be held pending that hearing: subsection (4). The hearing may grant warrant to keep the child in a place of safety: subsection (5). The conditions which have to be satisfied before such a warrant can be issued are set out in section 66 (2). There must be reason to believe that the child may not attend any hearing of his case, or may not comply with a requirement to attend for medical investigation in terms of section 69 (3), or that it is necessary to keep the child in a place of safety in order to safeguard or promote his welfare. The first two alternatives are related to the effectiveness of the process of investigation and of the proceedings, in the interests of the child. The variety of circumstances in which detention can be ordered is discussed in Humphries v S 1986 S.L.T. 683. The welfare principle is not abandoned. It is qualified by section 16 (5) of the Children (Scotland) Act 1995. Preventative detention may be ordered where public protection requires it. Apart from that, the exercise of the power to grant warrant for the continued detention of the child may be, and commonly will be, exercised before the reporter is in a position to proceed to intimate grounds for referral. The child may be kept in a place of safety for some time during that process. Leaving aside the question of justification for the grant of a warrant, this is a power restrictive of the liberty of the child.
[53] If the grounds for referral are accepted or established, the range of disposals includes a requirement that the child reside in secure accommodation: section 70. That again creates a risk of a restriction on the child's liberty: I agree with the observations to that effect with reference to the equivalent English provisions in Wigan Borough Council v DK 15 November 2000, unreported, paragraph 29 and paragraphs 101 to 104. The children's hearing will ultimately determine the extent of interference with the child's liberty.
[54] Quite apart from these specific examples, compulsory measures of supervision inevitably encroach on the relationships otherwise subsisting between the child and his or her parent or parents or other carer. It was suggested that in Convention terms this might involve infringement of Article 8. But it is sufficient that the rights and obligations of the parties as a matter of domestic family law would be affected. The child's civil rights and obligations are liable to be affected in some degree whenever a children's hearing resolves on compulsory measures of supervision. The disposal is likely to determine in some respect the child's civil rights and obligations accordingly.
[55] In these circumstances, in terms of Article 6 (1) the child is entitled to a fair hearing before an independent and impartial tribunal. In general, the application of Article 6 (1) was not a matter of controversy among the parties. The reporter accepted that the children's hearing system must comply with Article 6 (1). The Scottish Ministers accepted that there could be cases in which a child's right to liberty was involved, and that that could involve disputes. The hearing system had to be Article 6 compliant. What was controversial was the extent to which the existing system met the requirements of the Article. The minuter's complaints in the civil sphere were similar to those related to the criminal sphere: lack of access to documents, lack of any provision for legal representation, and lack of legal aid. The respondents contend that having regard to the legitimate aims of the hearings system, the means used to make it effective are reasonably proportionate. It is important that the European jurisprudence gives a broad interpretation to Article 6 (1). In Moreira de Azevedo v Portugal (1991) 13 EHRR 721 at page 737, paragraph 66, in relation to the civil aspects of proceedings against a man accused of assault, the Court said:
"In the Court's opinion, the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6 (1) of the Convention restrictively."
[56] However, the approach to be adopted to assessing the fairness of the children's hearing system must take account of the observations of the Judicial Committee of the Privy Council in Brown v Stott 2001 SLT 59. Though that case was concerned with criminal proceedings, there are statements of general application which are of considerable importance for present purposes. At page 64 Lord Bingham said:
"What a fair trial requires cannot, .., be the subject of a single, unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done."
At page 65, his Lordship quoted passages from Golder v United Kingdom (1975) 1 EHRR 524; Ashindane v United Kingdom (1985) 7 EHRR 528; and Tinnelly & Sons Ltd v United Kingdom (1998) 27 E.H.R.R. 249 and cited a number of other cases relating to the right of access to the court. A number of propositions can be derived from these sources:
right, for limitations by implication.
according to the needs and resources of the community and of individuals.
individual's access in such a way or to such an extent that the essence of the right is impaired.
pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
[57] At pp. 69-70, Lord Bingham emphasised the role of the legislature:
"Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies."
Similar observations were made by Lord Steyn at page 74.
[58] At page 79, Lord Hope summarised his views as follows:
"I would hold therefore that the jurisprudence of the European Court tells us that the questions that should be addressed when issues are raised about an alleged incompatibility with a right under Article 6 of the Convention are the following: (1) is the right which is in question an absolute right, or is it a right which is open to modification or restriction because it is not absolute?; (2) if it is not absolute, does the modification or restriction which is contended for have a legitimate aim in the public interest?; (3) if so, is there a reasonable relationship of proportionality between the means employed and the aim sought to be realised? The answer to the question whether the right is or is not absolute is to be found by examining the terms of the article in the light of the judgments of the court. The question whether a legitimate aim is being pursued enables account to be taken of the public interest in the rule of law. The principle of proportionality directs attention to the question whether a fair balance has been struck between then general interest of the community in the realisation of that aim and the protection of the fundamental rights of the individual."
[59] Counsel for the reporter contended that the existing system satisfied the requirements of Article 6 (1). The Children (Scotland) Act 1995 was enacted with a view to the requirements of the Convention as was clear from the debate on the Bill in the Special Standing Committee on 7 March 1995. Parliament had sought to maintain a balance between the child's Convention rights and the public interest in maintaining the children's hearings system. The right to legal aid was not absolute in the criminal context. There were important considerations against its introduction in children's hearings at all. There was within the system a recognised benefit in allowing direct discussion between the members of the hearing and the child without the intervention of lawyers. That was recognised in the Review of Scottish Child Care Law, 1990, paragraphs 2.05, 2.06, and 2.07. The interests of justice did not require that legal aid be available. In this respect there was no discernible difference between civil and criminal proceedings. It was fundamental that all of the grounds for referral were treated in the same way. It was accepted that children who could afford it could have a legal representative. But research showed that though the child's contribution to discussion was minor in quantitative terms, it was major in qualitative input. It was a defensible position that there should not be legal representation, and that legal aid should not be available.
[60] The reporter further argued that at the first stage of the hearing the availability of legal advice and assistance was adequate for the purpose. All that the child required to be advised was whether or not to accept the grounds for referral. A lawyer could give advice on that matter in advance. The lawyer could write the answer on a piece of paper for the child to read. While there was no disadvantage in the lawyer being present to advise the child at the hearing, that was not in the interests of justice. If the view were that in relation to a ground for referral under section 52 (2) (i) there was a determination of a criminal charge, the relevant determination occurred in the sheriff court where there was a right to legal representation and full legal aid. The third stage, if the grounds for referral were held established, was the most significant for present purposes. It was at that stage, when the case returned to the hearing, that the disposal fell to be determined. The interests of justice did not require that the child have legal representation. The characteristics of the hearing were emphasised in McGregor v D. Informality was a paramount consideration, aided by the absence of lawyers. The members were not lawyers and did not have the advice of a legally qualified clerk. The grounds for referral had already been admitted or established at the disposal stage. The child's liberty might be at stake, but that happened in a very small number of cases. There could be no circumstances in which the provision of legal aid could be in the interests of justice.
[61] It was accepted by the reporter that it was highly likely that there would be discussion of the events underlying the ground for referral, and in the case of an offence, of any mitigatory circumstances. The hearing would be interested in the child's attitude to the offence and other matters which would be sharply focused in the qualitative assessment of the child's needs. None of this required the protection of the child by a lawyer. Any information mediated through a lawyer would receive a gloss. It was possible that the discussion would lead to a more serious view being taken of the child's conduct. Although there would be no lawyer in sight, and the hearing would be totally unguided in relation to the law, there would be no deficit, because there could be no legal ramification to be considered. It was recognised in Airey v Ireland (1979) 2 E.H.R.R. 305, that there were numerous ways of making a tribunal accessible to individuals. One was simplicity of procedure. That was the approach adopted in the children's hearings system, and it met adequately the requirements of compliance with Article 6 (1).
[62] Counsel for the Scottish Ministers contended that the children's hearing scheme pursued a legitimate aim in relation to allegations of criminal offences, under section 52 (2) (i), namely the provision of a welfare-based system, focused on the interests of the child, in substitution for the criminal justice system. The exclusion of legal aid other than in proceedings before the sheriff, and the maintenance of a non-adversarial approach were in pursuit of that legitimate aim.
[63] The Solicitor General contended that there was a clear and proper public objective in denying the possibility of legal representation and of legal aid. It was justifiable on grounds of proportionality. There was no objection to the presence of lawyers at a hearing, as such. The objection was to legal representation. If a lawyer were present legally to represent the child there would be a danger that he would take the place of the child. The members of the hearing were lay people. They did not have the benefit of a legally qualified clerk. Even if the hearing did not lose the right to question the child, the presence of a lawyer would undermine the dynamic of the existing system. A lawyer would be likely to interfere with the questioning of the child, advising that some questions should not be answered. In current practice the proceedings were essentially non-adversarial. Lawyers trained in adversarial litigation techniques could be disruptive, taking "lawyer's points". The system would inevitably change to the disadvantage of the child. The exclusion of legal representation had enabled the hearings system to develop procedures that were well adapted to ensuring that the best interests of the child were paramount.
[64] The Solicitor General argued further that there was no certainty that the introduction of legal representation would be beneficial to the system. It could be said that there was a material risk that it would be detrimental. Lawyers had a legitimate contribution to make to the resolution of legal issues. But the children's hearing proceeded in an essentially non-legalistic way. The current balance achieved a positive outcome. It was apparent that the system had achieved a tolerably satisfactory output for decades without material adverse comment. The positive advantages of not having legal representation: the informality of procedure at the hearing, the non-adversarial ethos which prevailed, the processes of decision making by a non-judicial, non-legal body of lay people properly trained in the application of welfare principles, the expression of decisions which were not based on legal analysis, all of the elements of the system which were deliberately aimed at getting away from the formality of a court, demonstrated the proportionality of the means employed to the legitimate aims of the system.
[65] An appropriate factor in weighing these submissions is the issue of the availability of documents and reports. In McMichael v United Kingdom (1995) 22 E.H.R.R. 205 it was held that the children's hearing system infringed Article 6 (1). Mrs McMichael was denied access to reports and other documents which were before the hearing and the sheriff. The Court held that that created a basic inequality vis-à-vis the other parties and placed her at a substantial disadvantage. Since the decision in McMichael practice has changed, and relevant persons, such as parents, do receive the documents available to the hearing and the sheriff. But the child currently does not. It is difficult to identify any material difference in principle between the position of the child and the position of the parent in this respect. The failure to supply the child with the documents available to other parties appears to create a similar inequality. The child may not understand the material personally. But prior to any hearing the child is entitled to seek legal advice, and, if appropriate, to obtain free legal advice and assistance in formulating his answer to the questions the hearing will put to him. Any legal adviser the child instructs is likely to be restricted in the consideration of the case by lack of a right of access to the documents. The child is no better off before the sheriff. There is an apparent lack of equality in the provision of access to documents which may well have a material bearing on the resolution of issues before the hearing, whatever the subjective objections some people may have to lawyers generally and litigation lawyers in particular.
[66] The reporter acknowledges that this is a deficiency. The Scottish Ministers do not. The reporter proposes to alter his procedure and to make all reports and other documents available to the child, in effect extending to the child the advantages offered to relevant persons following McMichael, subject to the deletion of material which would be harmful to the child. It would be premature to express any view on the prospects of the new procedure avoiding problems in every case. It is inevitable that there will be children before the hearing who are incapable of understanding such documents. Access to advice in advance of the hearing may assist many children. But it cannot be assumed that every vulnerable child will be able to cope with such material in the face of the hearing without competent support. As matters stand the existing practice gives rise to a question whether the court should make a declaration of incompatibility in this respect. The proposal may simply draw attention to the second structural deficiency founded on by the minuter, the lack of legal representation before the hearing, but the question of the response to the existing system cannot be avoided.
[67] A qualified lawyer can attend a children's hearing as a child's representative: Children's Hearings (Scotland) Rules 1996 rule 11, Kearney paragraph 22.18. The rule does not restrict the class of person who may attend the hearing as the child's representative. Legal aid is not available for the hearing. In this respect there was more substance in the position adopted by the Scottish Ministers than that advanced on behalf of the reporter. The representative does not have the opportunity fully to "represent" the child in the ordinary sense in which that expression is understood in ordinary adversarial practice in a domestic context. But a lawyer may assist the child before the hearing. Kearney shows that this happens, and that some lawyers on occasion appear with a child for no fee or a nominal fee. There is an obvious difficulty with the reporter's apparent absolute position that would deny the possibility of the attendance of a lawyer under the present system. And the practice which has built up would tend to undermine the allegation that the very presence of a lawyer would be detrimental to the operation of the system. One might expect legal practitioners to adapt their advocacy styles and practices to the requirements of whatever tribunal they appeared before. That is what has apparently happened. In my opinion, there is no obvious objective basis for dismissing the possibility of responsible advocacy before the children's hearing.
[68] It could not be in every case that legal representation was appropriate or necessary, however the wider issue was resolved. But there is a question whether the possibility that there are cases in which legal representation before the hearing would be in the interests of justice can be excluded on any valid a priori basis. Similarly there is a question whether the possibility that there are cases in which legal aid of some kind should be available can be absolutely excluded. In my opinion there is a strong argument that the lack of any provision allowing for appropriate legal representation in case of need is prima facie a structural defect in the scheme. One cannot exclude the risk of the need to determine issues with a significant legal content. This gives rise to a substantial issue whether the provisions for resolution of disputed facts by the sheriff, and the appeal provisions, resolve any deficiencies there might be in respect the provision of legal representation at the hearing. Apart from the reporter's proposed change of practice, a similar issue arises in respect of the provision of documents before the hearing.
[69] In McMichael the Commission held that the children's hearing was not a tribunal or court within the meaning of Article 6 (1). Its members did not offer the necessary guarantees of independence and impartiality: page 229, paragraph 114. The Court did not consider it necessary to resolve the issue: page 236 paragraph 78 because having regard to the proceedings as a whole, including the provision for proceedings before the sheriff to establish facts and the rights of appeal provided, there was compliance with Article 6. I agree with the observations in paragraphs 24 to 26 of the opinion of your Lordship in the Chair. If there were any deficiencies in respect of the independence or impartiality of the members of the hearing, the provisions relating to proceedings before the sheriff would ensure that the system as a whole complied with the Article. It does not follow that the same provisions resolve all deficiencies identified in the existing system, and in particular those that have particular reference to the risk of deprivation of liberty.
[70] Observations such as one finds in Belziuk on the availability of legal representation are so specifically related to the criminal case that they are likely to provide little direct guidance to the resolution of the issue in the civil context. But in my view there are some general observations in the criminal context which may assist.
[71] Benham involved proceedings that were civil in domestic English law, but criminal in terms of the Convention: judgment of the Court, page 324 paragraph 56. Article 6 (1) and (3) applied, and they were considered together. This necessarily qualifies the generality of some of the views expressed. But at paragraph 61 the Court stated that "where deprivation of liberty is at stake, the interests of justice in principle call for legal representation". It was also held that free legal representation should have been available. The same approach was adopted in Perks v United Kingdom (1999) 30 E.H.R.R. 33. Despite the criminal context for the observations, it is difficult to identify any basis in these cases for a material difference in treatment where deprivation of liberty results from civil proceedings. In Engel and other cases referred to above there was specific reference to deprivation of liberty "as a punishment" as a factor. But the Court has not had to express a view on its approach where there is a risk of deprivation of liberty in a purely civil case. Prima facie the focus for the later observations was on the deprivation of liberty as such, and that has the same functional impact on the child whatever the grounds on which the power of the state is exercised, and by whatever agency.
[72] In Megyeri v Germany (1993) 15 EHRR 584 at p. 593, the Court considered the position of a person compulsorily confined in a psychiatric institution. At page 593 of the judgment the Court said:
"22(c) The judicial proceedings referred to in Article 5 (4) need not always be attended by the same guarantees as those required under Article 6 (1) for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. Special procedural safeguards may prove called for inn order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.
"23 It follows from the foregoing that where a person is confined in a psychiatric institution on the ground of the commission of acts which constituted criminal offences but for which he could not be held responsible on account of mental illness, he should - unless there are special circumstances - receive legal assistance in subsequent proceedings relating to the continuation, suspension or termination of his detention. The importance of what is at stake for him - personal liberty - taken together with the very nature of his affliction - diminished mental capacity - compels this conclusion."
The position of a fit child is not on all fours with that of the mentally incapacitated adult. But there are parallels. The child may not have full capacity. If liberty is at stake there should at least be provision to consider his needs. In my opinion, this case suggests that there is weight in the argument that where liberty is at stake in civil proceedings, there should be provision for legal representation in appropriate cases.
[73] More generally, and even where the liberty of the child is not at stake, the decision of the Court in Airey, supports the argument for free legal representation where the interests of justice require it in civil proceedings. The case involved judicial separation, plainly a civil matter. Mrs Airey could not afford legal representation. The Court found it most improbable that a person in her position could effectively present her case: paragraph 24 of the judgment. Free legal assistance should have been made available. At paragraph 26, the Court said:
"It would be erroneous to generalise the conclusion that the possibility to appear in person before the High Court does not provide Mrs Airey with an effective right of access; that conclusion does not hold good for all cases concerning 'civil rights and obligations' or for everyone involved therein. In certain eventualities, the possibility of appearing before a court in person, even without a lawyer's assistance, will meet the requirements of Article 6 (1); there may be occasions when such a possibility secures adequate access even to the High Court. Indeed much must depend on the particular circumstances."
There is a distinction between a person who seeks access to a civil court and a person who is brought before such a court. But, in my opinion, that is not a distinction of substance. Every litigant has a right of access to the court. The tests of the effectiveness of that right do not depend on the part played by the litigant in the process.
[74] In my opinion there are several factors which suggest that the failure to make any provision for legal aid or for full representation may reflect structural defects in the system which can be contrary to the interests of justice in some cases. Most cases will not share these features, and many apparent deficiencies will be curable on appeal to the sheriff. There is no justification in the information and argument before us for a blanket requirement for any form of legal aid or assistance in all cases. But at least in a case where there is an allegation of a criminal offence of such seriousness that the liberty of the child may be at issue, either at the interim stage or on final disposal, it appears highly likely that the possibility of representation and, where appropriate, legal aid, must be open. The allegation of what in ordinary terms is a criminal offence, which might raise complex issues of law, is a factor which may be taken to point to the need for legal representation and legal aid to be considered. The age of criminal responsibility is eight years, four years less than the age at which a child is to be presumed to be able to form a view on matters relevant to the hearing: Children (Scotland) Act 1995 section 16 (2). Some offences which come to the notice of a children's hearing may be uncomplicated and readily understood by children at the upper limit of the age range, but less than clear to a child at the lower age limit of criminal responsibility. If the present case is considered as an example, it is apparent that there may be complex issues of fact. The evidential requirements are unlikely to be understood by a teenager. The possibility of a defence of self-defence, perhaps in an effort to save the child's father, could raise difficult issues of law. There is a possible question of provocation. Superficially this is the type of case in which serious thought would have to be given to the provision of legal aid from the outset if that possibility existed in the children's hearing system. In addition there will be complex documents and reports to consider. It would be unrealistic to expect a child to understand these if made available to him. It is not a sufficient answer that disputed issues of fact will be determined by the sheriff. At the initial stage before the children's hearing the child will require to take decisions which may affect the impression he creates in the minds of the members thereafter.
[75] There are further factors which may provide incidental support for this view. In disposing of the case, the hearing is enjoined to have regard to all relevant facts and circumstances. In O v Rae 1993 S.L.T. 570 at p. 574, it was said, under reference to the earlier provisions of the Social Work (Scotland) Act 1968:
"It can be seen therefore that the children's hearing have wide powers of investigation. As counsel for the reporter pointed out, they are not just a disposing body, and their powers are not to be seen as confined within narrow limits determined by the grounds for the referral. They are entitled to ask for and to consider information across a wide range and to obtain the views of various people, including social workers and any safeguarder, as to what would be in the best interests of the child. To restrict their consideration of the child's best interests by requiring them to have regard only to what had been stated in the grounds for referral would be inconsistent with the scheme of the Act, to which the rules are designed to give effect."
It was accepted by counsel for the reporter that if this were correct, in disposing of the case, the hearing could have regard to a report, produced after grounds for referral had been admitted or established, alleging criminal behaviour by the child which had neither been accepted by the child nor established before the sheriff. It is not entirely clear how well that can be reconciled with provisions such as section 65 (6) of the Act, which appears to permit the hearing to proceed with respect to grounds of appeal which are accepted in part. But to the extent that the decision is sound, it would appear strongly to suggest that there are rights of the child which could be adversely affected at a critical stage in the hearing process which a lawyer would be well placed to comment on.
[76] Rule 20 of the Children's Hearings (Scotland) Rules 1996 provides for the conduct of proceedings before the hearing. The chairman is required to explain the purpose of the hearing to those present: rule 20 (2). He is required to inform the child of the substance of any reports, documents and other information, subject to a provision preventing the disclosure of material detrimental to the interests of the child: rule 20 (4). The assumption is that the chairman, not legally qualified, and without legal assistance, will be able adequately to communicate to a child alleged to have committed a criminal offence, who may be only eight years of age, what the hearing is about, and will be able to identify and communicate the relevant parts of any documents. The child, at this stage, has no right to a lawyer to interpret and assist him in understanding what is said, or to assess and comment on the sufficiency of the chairman's analysis of any legal issue dealt with. Whatever the skills of the chairman, and however adequate for the vast majority of cases which come before the hearing, it is at least questionable whether it can be said that this system is adequate for every possible case. Similarly there must be doubt whether is it sufficient that the case may be referred to the sheriff if the child lacks understanding. The chairman may not understand the intricacies of the legal issues which arise, and cannot be assumed to appreciate the nature and degree of lack of understanding of the child.
[77] These questions would have less significance if it could be said that the right of appeal to the sheriff made good any structural deficiencies in relation to these features of the hearings system. It appears clear that there will be many issues which can be resolved on appeal. A Convention compliant interpretation of the appeal provisions in section 51 of the Children (Scotland) Act 1995 implies an unqualified right of appeal. Any issue of fact or law disposed of by a children's hearing, or by the sheriff, may be reviewed on appeal. In O v Rae there are contrary indications at page 575. But these cannot survive the changes in the law following the implementation of the Human Rights Act.
[78] However, in my opinion, there would remain possible deficiencies, which are readily identifiable, and which could not be cured by a right of appeal. If the child has been deprived of his or her liberty by a decision of a children's hearing, for example under section 63 (5), disposal of the appeal cannot be instantaneous. If the appeal succeeds the child will inevitably have been detained without legitimate cause for the intervening period. If the child could have been protected from that result by the presence of legal representation at the children's hearing which granted the warrant to keep the child in a place of safety, there may be a claim for compensation, but there can never be a restoration of the child's freedom over that period. That damage is irreversible.
[79] To return to the tests derived from Brown v Stott, I am of opinion that it is eminently arguable that the total exclusion of the right of legal representation, with no provision for legal aid in some form even where, objectively, one could say that that was required by the interests of justice having regard to the means of the child, is not proportional to the achievement of the aims of informality and other features relied on by the respondents in this case and discussed in paragraph [64] above. What form the public assistance should take, whether full legal aid or ABWOR, or something specifically tailored to the situation, it would not be appropriate to say. That is primarily a matter for the legislature within the discretionary area of its judgment. But without the possibility of legal representation, free where the interests of justice require it and the child does not have the financial means to obtain it, the essence of the right of access to the court would appear to be materially impaired. A fair balance must be struck between the general interests of the community and the protection of the rights of the child. It is not obvious that that balance is struck where the very possibility of legal representation and legal aid is excluded. It is unnecessary for the purposes of this case to comment on any ground for referral other than those arising under section 52 (2) (i). I consider that special treatment of allegations of criminal conduct is justified, even though that disturbs the equality of treatment of the several grounds for referral. Unequal treatment is inherent in the Act. I reserve my views on the existence of structural defects in cases under other grounds for referral where the liberty of the child may be at stake.
[80] It would not be appropriate to express any concluded view on these issues at this stage. The court would be driven to consider whether a declaration of incompatibility should be made in terms of section 4 of the Scotland Act. The procedural requirements for the proper disposal of that issue will have to be complied with. At this stage it appears that it is eminently arguable that there are structural defects in the present system which are material in at least some cases under section 25 (2) (i) of the Children (Scotland) Act 1995 at the initial stages of the hearing, at the stage of disposal, and at any review, at least where the child's liberty is a stake.
[81] It is not for the court to prescribe the form that any change in the system might take, nor to prescribe the form of legal aid or legal assistance that might be made available. There might be an attraction in providing for some form of ABWOR as an alternative to full legal aid for lawyers of the child's choosing. It is a matter primarily for the legislature, however, and not the court. We were referred to the Convention Rights Compliance Bill which might provide a vehicle for change in this respect. But the enactment of that Bill into law, and its content and terms, are wholly a matter for the Scottish Parliament.
[82] The two remaining questions relate to the application of Article 5 of the Convention. I agree with the reasoning of your Lordship in the Chair in paragraphs 44 to 47 of your opinion. In my opinion there is no possible infringement of that article having regard to the views expressed in Bouamar, and already referred to, and the decision of the Court in Koniarska v United Kingdom Application no 33670/96; 12 October 2000. In the end the contrary was not seriously argued.
[83] I agree that the questions should be answered in the terms proposed by your Lordship in the Chair, and that further procedure should be initiated as proposed.
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President Lord Penrose Lord Macfadyen |
A2730/00 OPINION OF LORD MACFADYEN in REMITTED CASE under the Children (Scotland) At 1995, Section 68 From the Sheriffdom of South Strathclyde, Dumfries and Galloway at Lanark in the cause S. Minuter; against THE PRINCIPAL REPORTER and THE LORD ADVOCATE Respondents: _______ |
Act: Bell, Q.C., Collins; Drummond Miller, W.S. (Ross Harpers, Glasgow)
Alt: J.J. Mitchell, Q.C., J.M. Scott; Biggart Baillie: Solicitor General (Davidson, Q.C.), Shand; Solicitor to the Scottish Executive
30 March 2001
Introduction
[1] This reference arises in connection with proceedings under Chapter 3 of Part II of the Children (Scotland) Act 1995. S ("the minuter"), who was born on 14 April 1984, was referred by the reporter to a children's hearing under section 65(1) of the Children (Scotland) Act. The grounds for referral stated were that he had committed an offence. Neither the minuter nor his mother accepted the grounds for referral, and the hearing accordingly directed the reporter under section 65(7) to make an application to the sheriff for a finding as to whether the grounds for referral were established. The reporter duly made application to the sheriff under section 68. In the proceedings before the sheriff the minuter lodged a minute seeking to raise a devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998. The minute was answered by the Principal Reporter and by the Lord Advocate. In outline the issue which the minuter sought to raise was whether the proceedings brought by the reporter were incompatible with his convention rights within the meaning of section 126(1) of the Scotland Act, and in particular with his rights under Articles 5 and 6 of the European Convention on Human Rights ("the Convention"). A devolution issue arose, he contended, because of failure on the part of the Scottish Ministers so to act as to introduce legislation to ensure that he was not deprived of his convention rights (Scotland Act, Schedule 6, paragraph 1(e)). On 17 August 2000 the sheriff pronounced an interlocutor referring a number of questions arising from the terms of the minute to this court in terms of paragraph 7 of Schedule 6.
Factual Background
[2] In the early hours of the morning of Sunday 31 October 1999 an incident took place at an address in Carstairs. The minuter, his father, and one other were involved in the incident. As a result of injuries which he suffered in the course of the incident, the minuter's father died on 12 November 1999. Both the minuter and the other person involved were detained by police officers after the incident. The minuter was taken to Lanark Police Office where he was detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. He was interviewed by police officers and in due course arrested, cautioned and charged with serious assault on the other person involved in the incident. In the course of the morning of Monday 1 November 1999 the minuter was taken to a place of safety in accordance with the provisions of section 43(4) of the Criminal Procedure (Scotland) Act. The place of safety was the home of a family friend or relative.
[3] On 1 November the incident was reported by the police to the procurator fiscal at Lanark and to the reporter. The report to the procurator fiscal was made in accordance with the duty incumbent on the police under section 17(1)(b) of the Police (Scotland) Act 1967. The report to the reporter was made under section 53(3) of the Children (Scotland) Act, which provides for any report required by section 17(1)(b) in respect of a child to be made to the reporter as well as to the procurator fiscal. In the course of the morning of 1 November discussion took place between the procurator fiscal and the reporter, and the procurator fiscal informed the reporter that he had decided not to bring criminal charges against the minuter in respect of the incident. As a result of that decision, the minuter was not brought before the sheriff on 1 November as he would otherwise have been.
[4] The reporter arranged for a children's hearing in respect of the minuter to take place on 2 November. The minute narrates that that was done in accordance with section 63(1) of the Children (Scotland) Act, which makes provision for the review of the case of a child arrested by the police. Section 43(5) of the Criminal Procedure (Scotland) Act provides that where a child has been kept in a place of safety under section 43(4) and it is decided not to proceed with the charge against him, a constable shall so inform the reporter. Section 63(1) of the Children (Scotland) Act addresses the case where the reporter has been informed by a constable under section 43(5) that charges are not to be proceeded with against the child. It places on the reporter a duty in these circumstances, unless he considers that compulsory measures of supervision are not required, to arrange a children's hearing and refer the case to it. In the present case the intention not to proceed with charges against the minuter seems to have been communicated to the reporter by the procurator fiscal rather than by a constable, but that in my view does not undermine the validity or appropriateness of the step which the reporter took in arranging a children's hearing under section 63(1). Section 63(5) empowers the hearing to grant warrant to keep the child in a place of safety, and to direct the reporter to arrange a children's hearing for the purposes of section 65(1) of the Act. In the minuter's case the hearing decided that it was not necessary for a warrant to be granted, since voluntary arrangements would ensure that he resided safely away from the Carstairs area. The reporter was, however, directed to arrange a hearing to consider grounds for referral.
[5] The reporter prepared grounds for referral of the minuter to the children's hearing in terms of section 65(1). The grounds for referral were:
"That he has committed an offence as specified below, being grounds for referral in terms of Section 52(2)(i) of the Children (Scotland) Act 1995",
and the statement of facts in support of the grounds for referral was in the following terms:
"That on 31st October 1999, while acting with another, within [a dwellinghouse in] Carstairs, South Lanarkshire District, he did assault [the other person involved], and did strike him repeatedly, on the head and body with a baseball bat or similar instrument to his serious injury. Being an offence of Assault."
[6] The hearing arranged, in terms of section 65(1), for consideration and determination of the minuter's case took place on 22 December 1999. It was attended by the minuter and his mother (who was, as such, the "relevant person" for the purpose of the proceedings - see section 93(2)(b)). Neither of them was legally represented at the hearing, although they had had the benefit of legal advice beforehand. In accordance with section 65(4) the grounds for referral were explained to them in order to ascertain whether these grounds were accepted in whole or in part by them. Neither the minuter nor his mother accepted the grounds for referral. In these circumstances the hearing, in accordance with section 65(7), directed the reporter to make application to the sheriff for a finding as to whether the grounds for referral were established.
[7] On 12 January 2000 the reporter made application to the sheriff in accordance with section 68 for a finding as to whether the grounds for referral were established. For the purpose of that application the minuter had the benefit of legal aid and legal representation. On 14 February the minuter gave notice by minute of his intention to raise a devolution issue. The present reference was then drafted, adjusted, signed by the sheriff and transmitted to the Deputy Principal Clerk of Session, all in accordance with the Act of Sederunt (Proceedings for Determination of Devolution Issues Rules) 1999.
The Issues
[8] In section 8 of the reference the questions referred are formulated in some detail. In the course of the hearing, however, it was accepted by all parties that it was competent and desirable to recast the questions in simpler form. Counsel for the minuter proposed revised questions, which can, with some further simplification and clarification, be expressed as follows:
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1. |
Is Article 6 [of the Convention] applicable to proceedings before a children's hearing from the stage of ascertaining whether the child accepts the grounds for referral to the stage of final disposal of the referral? |
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2. |
Is a hearing in respect of a referral under section 52(2)(i) of the Children (Scotland) Act proceedings for the determination of a criminal charge to which Articles 6(1) and 6(3) apply? |
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2(a). |
If so, does the present structure of the children's hearing system comply with the requirements of Article 6 as it applies in relation to the determination of a criminal charge? |
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3. |
Is a hearing in respect of a referral under section 52(2)(i) proceedings for determination of civil rights and obligations of the child referred? |
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3(a). |
If so, does the present structure of the children's hearing system comply with the requirements of Article 6 as it applies in relation to the determination of civil rights and obligations? |
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4. |
Does Article 5 apply to a supervision requirement made by a children's hearing specifying that the child shall be liable to be placed and kept in secure accommodation? |
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4(a). |
If so, does the present structure of the children's hearing system comply with the requirements of Article 5 in relation to the making of a supervision requirement specifying secure accommodation? |
The Relevant Provisions of the Convention
[9] For the purposes of this reference the provisions of the Convention which are relevant are certain parts of Articles 5 and 6. It is sufficient to quote the following extracts:
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Article 5 |
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Right to Liberty and Security |
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1. |
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: |
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(a) |
the lawful detention of a person after conviction by a competent court; |
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(d) |
the detention of a minor by lawful order for the purpose of educational supervision ... |
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Article 6 |
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Right to a Fair Trial |
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1. |
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... |
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3. |
Everyone charged with a criminal offence has the following minimum rights: |
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(a) |
to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; |
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(b) |
to have adequate time and facilities for the preparation of his defence; |
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(c) |
to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; |
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(d) |
to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. |
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Determination of a Criminal Charge
[10] I find it convenient to begin consideration of the issues raised in the reference by addressing the question whether a children's hearing considering and determining on its merits a referral on the ground mentioned in section 52(2)(i) of the Children (Scotland) Act, namely that the child "has committed an offence", falls to be regarded for the purposes of the Convention as determining a criminal charge against the child. Before that question can be answered, it is necessary, in my opinion, to develop a clear understanding of the nature and purpose of the children's hearing system as a whole, as well as of a referral under section 52(2)(i) in particular. It is also necessary to consider the Convention jurisprudence on the meaning, in Article 6, of determination of a criminal charge.
(a) The Origin, Nature and Purpose of the Children's Hearing System
[11] The children's hearing system, which is now regulated by Chapters 2 and 3 of Part II of the Children (Scotland) Act, was originally set up under Part III of the Social Work (Scotland) Act 1968, the long title of which narrated inter alia that it was "An Act ... to restrict the prosecution of children for offences; to establish children's panels to provide children's hearings in the case of children requiring compulsory measures of care; and for purposes connected with the aforesaid matters". The first part of that purpose was achieved by section 31(1) (now re-enacted in section 42(1) of the Criminal Procedure (Scotland) Act 1995) which provided inter alia that:
"No child shall be prosecuted for any offence except on the instruction of the Lord Advocate, or at his instance".
[12] Part III of the Social Work (Scotland) Act gave effect to proposals put forward by a committee under the chairmanship of Lord Kilbrandon, whose Report (Cmnd. 2306) was presented to Parliament in April 1964. What was put in place was an integrated system for dealing with all children who are in need of compulsory measures of care, whether on the ground that they have committed an offence or on one of a number of other grounds. All such cases were to be dealt with in the same way, in respect that proceedings would be instituted before a children's hearing which would, if one or more of a number of conditions for intervention existed, determine what measures should be taken by way of disposal in the best interests of the child. It was also a feature common to all such cases that, if the ground for intervention was disputed by the child (or the child's parent) or not understood by the child, the fact-finding process necessary to determine whether intervention was justified would take place before the sheriff, before the case returned to the children's hearing for disposal. It is necessary to examine the structure of the system in greater detail, but, having noted its origins in the Kilbrandon Report and its initial enactment in the Social Work (Scotland) Act, I propose to conduct that examination by reference to the current legislation.
[13] For every local government area in Scotland there exists a children's panel constituted for the purposes of the Children (Scotland) Act (section 39(1)). The members of the panel are appointed by the Scottish Ministers on the advice of the Children's Panel Advisory Committee for the local authority area in question, hold office for such period as the Scottish Ministers specify, and may be removed from office by them at any time (Schedule 1, paragraphs 1, 2 and 6), subject to the consent of the Lord President of the Court of Session (Tribunals and Inquiries Act 1992, section 7(1)(e)). The members of the panel are lay persons, no qualifications being specified, although there is provision for training (Schedule 1, paragraphs 9 and 10). They are paid expenses (Schedule 1, paragraph 11), but not remunerated. A children's hearing consists of three members of the panel, one of whom acts as chairman (section 39(5)).
[14] The other structural component of the system is the office of reporter. Under the Social Work (Scotland) Act each local authority was obliged to appoint an officer to carry out the duties imposed on the reporter by that Act. The Local Government etc. (Scotland) Act 1994, however, constituted a body to be known as the Scottish Children's Reporter Administration (section 128(1)) and provided for the appointment of an officer to be known as the "Principal Reporter", who was to be the chief officer of the Administration (section 128(2)) and to whom were transferred the functions of the reporters appointed by local authorities (section 127(1)). Provision was also made for the appointment of other officers to assist the Principal Reporter (section 128(5)), to whom the Principal Reporter might delegate the majority of his functions (section 131(1)), and who might be deployed throughout Scotland by the Administration for the purpose of performing their duties (section 128(7)). The result is that the reporter's functions under the Children (Scotland) Act are now all functions of the Principal Reporter, but are in practice carried out locally in each local authority area by other officers of the Administration in pursuance of delegated powers. In this Opinion I have followed section 40(5) of the Children (Scotland) Act in using the term "reporter" to refer to the Principal Reporter, or to any other officer of the Administration exercising delegated powers, as the context requires.
[15] The business of a children's hearing in relation to any child brought before it is to determine whether any compulsory measures of supervision are necessary in respect of the child and, if so, what those measures should be. It is important to note the breadth of the concept of "supervision": in relation to compulsory measures of supervision it may include measures taken for the protection, guidance, treatment or control of the child (Children (Scotland) Act, section 52(3)). In the Social Work (Scotland) Act, the expression "compulsory measures of care" was used, but the definition of "care" incorporated the same elements as are now comprised in the definition of "supervision" (Social Work (Scotland) Act, section 32(3)). Section 53(1) of the Children (Scotland) Act introduces the matter thus:
"The question of whether compulsory measures of supervision are necessary in respect of a child arises if at least one of the conditions mentioned in subsection (2) below is satisfied with respect to him".
It is important for a proper appreciation of the nature of the system to take note of the range of conditions which may give rise to the question of whether compulsory measures of supervision are required. Although in the minuter's case the ground relied upon in referring him to the children's hearing was that he had committed an offence, that is only one of twelve conditions listed. The breadth of the whole range may be seen by quoting the whole of section 52(2) which provides as follows:
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"The conditions referred to in subsection (1) above are that the child - |
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(a) |
is beyond the control of any relevant person; |
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(b) |
is falling into bad associations or is exposed to moral danger; |
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(c) |
is likely - |
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(i) |
to suffer unnecessarily, or |
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(ii) |
be impaired seriously in his health or development, |
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due to a lack of parental care; |
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(d) |
is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act ... has been committed; |
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(e) |
is, or is likely to become, a member of the same household as a child in respect of whom any of the offences referred to in paragraph (d) above has been committed; |
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(f) |
is, or is likely to become, a member of the same household as a person who has committed any of the offences referred to in paragraph (d) above; |
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(g) |
is, or is likely to become, a member of the same household as a person in respect of whom an offence under sections 1 to 3 of the Criminal Law (Consolidation) (Scotland) Act 1995 ... has been committed by a member of that household; |
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(h) |
has failed to attend school regularly without reasonable excuse; |
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(i) |
has committed an offence; |
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(j) |
has misused alcohol or any drug, whether or not a controlled drug ...; |
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(k) |
has misused a volatile substance by deliberately inhaling its vapour, other than for medicinal purposes; |
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(l) |
is being provided with accommodation by a local authority under section 25, or is the subject of a parental responsibilities order under section 86, of this Act and, in either case, his behaviour is such that special measures are necessary for his adequate supervision in his interest or in the interest of others." |
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[16] In order that the case of a child who may be in need of compulsory measures of supervision may be brought before the children's hearing, the statutory scheme provides for relevant information to be passed to the reporter. Such information may come to the reporter from a local authority (section 53(1)), or from the police (section 53(2)(a)), both of which are under a statutory duty to give such information to the reporter, or from any other person (section 53(2)(b)). The duty incumbent on the police is not confined to cases where the child has committed an offence, but in such cases there is a specific duty to make the report under section 17(1) of the Police (Scotland) Act to the reporter as well as to the procurator fiscal (section 53(3)). Whatever the source of his information, the reporter's first duty is to make such initial investigation as he thinks necessary (section 56(1)), for which purpose he may request a report from the local authority (section 56(2)). In light of the information provided to him and his own investigations, the reporter must then take a view as to whether compulsory measures of supervision are required. It is important to note that it is only if the reporter takes the view that such measures are required that the matter will be brought to the attention of the children's hearing. That is made clear primarily by section 65(1) which provides that the reporter:
"shall refer to the children's hearing, for consideration and determination on the merits, the case of any child in respect of whom he is satisfied that -
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(a) |
compulsory measures of supervision are necessary, and |
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(b) |
at least one of the grounds specified in section 52(2) of this Act is established". |
The reporter's view that compulsory measures of supervision are required is thus the first condition that requires to be satisfied if the child's case is to be referred to the children's hearing. If that condition is not satisfied, the existence of one or more of the grounds specified in section 52(2) is not by itself sufficient to result in the case being referred to the hearing. The same applies in the case of a child who has been arrested by the police and detained by them in a place of safety. In such a case, the reporter's duty to arrange a children's hearing and refer the case to it is qualified by the words "unless he considers that compulsory measures of supervision are not required in relation to the child" (section 63(1)).
[17] In order to bring a child's case before the children's hearing, the reporter must formulate grounds for referral, which must identify one or more of the grounds set out in section 52(2) (section 65(1)). Copies of the statement of the grounds for referral must be given to the child and the relevant person in advance of the hearing (Children's Hearing (Scotland) Rules 1996, rule 18(1)(b)). The form which the statement of grounds for referral must take is laid down in rule 17. It must specify which of the section 52(2) conditions is relied upon and must include a statement of the facts on the basis of which it is sought to show that that condition is satisfied (rule 17(1)). In a case where the condition mentioned in section 52(2)(i) is relied upon, it is further required that:
"the statement of facts constituting the offence shall have the same degree of specification as is required by section 138(4) of the [Criminal Procedure (Scotland) Act 1995] in a charge in a complaint and the statement shall also specify the nature of the offence in question" (rule 17(2)).
That is the first of a number of differences between the procedure in section 52(2)(i) cases and that in other cases.
[18] The child has a right and, in most cases, an obligation to attend the hearing (section 45(1)). So too does his parent or other relevant person within the meaning of section 93(2)(b) (section 45(8)). They will each be notified of the hearing (Children's Hearing (Scotland) Rules 1996, rules 6 and 7). They are each entitled to be "accompanied by one person [a 'representative'] for the purpose of assisting [them] at the hearing" (rule 11(1)). There is no express provision for legal representation, but conversely there is no provision precluding a legally qualified representative. At the hearing, the chairman must at the opening of the proceedings explain to the child and the relevant person the grounds stated by the reporter for the referral, "in order to ascertain whether these grounds are accepted in whole or in part by them" (section 65(4)). If the grounds for referral are not accepted by either or both of the child and the relevant person, the hearing must either direct the reporter to make an application to the sheriff for a finding as to whether the grounds are established or discharge the referral (section 65(7)). If the child is incapable of understanding, or has not understood, the explanation of the grounds for referral, in that case too the hearing must either direct the reporter to make an application to the sheriff for a finding as to whether the grounds for referral are established or discharge the referral (section 65(9)). If, on the other hand, the explanation of the grounds for referral is understood by the child and the grounds are accepted by the child and the relevant person, the hearing proceeds to disposal of the referral in accordance with section 69.
[19] It is at the stage of the hearing of an application to the sheriff for a finding as to whether the grounds for referral are established that the legislation introduces a number of further distinctions between cases in which the ground for referral is that the child has committed an offence and all other cases. Where the ground for referral is the condition mentioned in section 52(2)(i), the application must be made to the sheriff who would have jurisdiction if the child were being prosecuted for an offence (section 68(3)(a)), and the standard of proof required in criminal proceedings - proof beyond reasonable doubt rather than proof on the balance of probability - applies (section 68(3)(b)). Moreover, the relaxations of the rules of evidence in civil proceedings introduced by the Civil Evidence (Scotland) Act 1988, which apply in relation to referrals on all other grounds (Harris v F 1991 SLT 242), do not apply in the case of a section 52(2)(i) referral (see paragraph (a) of the definition of "civil proceedings" in section 9 of that Act).
[20] Where the sheriff finds that none of the grounds for referral are established, he discharges the referral (Children (Scotland) Act, section 68(9)). Where, on the other hand, the sheriff finds any of the grounds for referral established, he remits the case to the reporter to make arrangements for a children's hearing to consider and determine the case (section 68(10)(a)). At that stage the two possible procedural routes towards the imposition of compulsory measures of supervision are reunited and, whether the grounds for referral have been accepted before the hearing or established before the sheriff, the courses available to the hearing, on consideration of the grounds and all relevant information, are (a) to continue the case to a subsequent hearing if further investigation is necessary, or (b) to discharge the referral where they decide not to make a supervision requirement, or (c) to make a supervision requirement (section 69(1), (2) and (12)). Section 70(1) provides that where the children's hearing are satisfied that compulsory measures of supervision are required they may make a supervision requirement. A supervision requirement may require the child (a) to reside at any place or places specified in the requirement, and (b) to comply with any condition contained in the requirement (section 70(3)). A condition imposed under section 70(3)(b) may (a) require the child to submit to medical or other examination or treatment, and (b) regulate contact between the child and any specified person or class of persons (section 70(5)). The hearing may require that the place where the child is to reside be not disclosed to a specified person or class of persons (section 70(6)). A supervision requirement may specify that the child shall be liable to be placed and kept in secure accommodation (section 70(9)), but only if (a) having previously absconded, he is likely to abscond if not kept in secure accommodation, and, if he absconds, it is likely that his physical, mental or moral welfare will be at risk, or (b) he is likely to injure himself or some other person unless he is kept in such accommodation (section 70(10)).
[21] Although in one sense the decision of the children's hearing to make a supervision requirement can be seen as the "disposal" or "determination" or the referral, it is in another sense not a final disposal or determination, because section 73 provides for review of a supervision requirement in a number of circumstances. The review may be instigated by the local authority (section 73(4)), or the child or relevant person (section 73(6)), or the reporter (section 73(8)(a)(v)), or the children's hearing (section 70(7)). The over-riding criterion is that no child shall continue to be subject to a supervision requirement for any period longer than is necessary in the interests of promoting or safeguarding his welfare (section 73(1)).
[22] The other statutory provision that requires to be taken into account in understanding the nature of the children's hearing system is section 16 of the Children (Scotland) Act. Section 16(1) provides:
"Where under or by virtue of this Part [Part II] of this Act, a children's hearing decide, or a court determines, any matter with respect to a child the welfare of that child throughout his childhood shall be their or its paramount consideration."
The apparently universal scope of that provision must, in my opinion, be subject to some implied limitation. In particular, it seems to me that the welfare of the child can have no bearing on the sheriff's decision as to whether certain grounds for referral (including the section 52(2)(i) ground) have been established. Nevertheless, the emphasis on the child's welfare is clear and unequivocal.
[23] Finally, a right of appeal to the sheriff from most decisions of a children's hearing is conferred on the child and the relevant person (section 51(1)). On appeal, the sheriff may hear evidence in relation to the hearing's decision (section 51(3)). The appeal falls to be allowed when the sheriff is "satisfied that the decision of the children's hearing is not justified in all the circumstances of the case" (section 51(5)). The sheriff may, as he thinks fit, remit the case to the children's hearing for reconsideration, discharge the referral, or substitute any disposal which the hearing could have imposed under section 70 (section 51(5)(c)). There is a further right of appeal from the sheriff to the sheriff principal and/or this court on a point of law or in respect of any irregularity in the conduct of the case (section 51(11)).
(b) The Convention Jurisprudence
[24] It is, in my view, clear from the Convention jurisprudence that was cited to us that in determining whether for the purpose of Article 6 proceedings are to be regarded as involving the "determination of a criminal charge" against a person it is necessary to adopt an autonomous approach to the concept of a criminal charge. As a result, the domestic approach will not necessarily be determinative. A number of cases were cited to us with a view to elucidating the criteria to be adopted in deciding whether proceedings involve the determination of a criminal charge. Those cases are at one in indicating that there are three criteria which may require to be considered. The jurisprudence is not, however, at first sight wholly consistent in the formulation of the criteria. It is therefore necessary, in my view, to look beyond the language of the decisions, and to attempt to understand the substance of the criteria.
[25] Before turning to the cases in which the criteria have been discussed, it is appropriate to note two preliminary points which were identified in the submissions made on behalf of the minuter. The first is that in view of the importance of the rights secured by Article 6, an inclusive rather than a narrow technical approach to its applicability ought to be adopted: see, for example, Moreira de Azevedo v Portugal (1990) 13 EHRR 721 at paragraph 66:
"In the Court's opinion, the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6(1) of the Convention restrictively".
The second is that the two aspects of Article 6, the determination of civil rights and obligations and the determination of a criminal charge, are not mutually exclusive: Albert and Le Compte v Belgium (1983) 5 EHRR 533 at paragraph 30:
"For its part, the Court does not believe that the two aspects, civil and criminal, of Article 6(1) are necessarily mutually exclusive. ... In point of fact, paragraph 1 of Article 6, violation of which was alleged by the two applicants, applies in civil matters as well as in the criminal sphere. Dr Albert relied in addition on paragraph 2 and on sub-paragraphs (a), (b) and (d) of paragraph 3, but in the opinion of the Court, the principles enshrined therein are, for the present purposes, already contained in the notion of a fair trial as embodied in paragraph 1; the Court will therefore take these principles into account in the context of paragraph 1".
[26] The earliest of the cases cited to us to vouch the criteria to be adopted in ascertaining whether proceedings involve the determination of a criminal charge was Engel and Others v The Netherlands (No. 1) (1976) 1 EHRR 647. That case was concerned with whether allegations of offences against military discipline constituted criminal charges for the purpose of the Convention. The European Court of Human Rights ("the Court") said:
"81. ... The Convention without any doubt allows the States, in the performance of their functions as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. ... Such a choice, which has the effect of rendering applicable Articles 6 and 7, in principle escapes supervision by the court.
The converse choice, for its part, is subject to stricter rules. If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, ... the operation of the fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention. The court therefore has jurisdiction, under Article 6 ... to satisfy itself that the disciplinary does not improperly encroach on the criminal.
In short, the 'autonomy' of the concept of 'criminal' operates, as it were, one way only.
82. Hence, the court must specify ... how it will determine whether a given 'charge' vested by the State in question ... with a disciplinary character nonetheless counts as 'criminal' within the meaning of Article 6.
In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in light of the common denominator of the respective legislation of the various Contracting States.
The very nature of the offence is a factor of greater importance. ...
However, supervision by the court does not stop there. Such supervision would generally prove illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the 'criminal' sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so."
[27] Öztürk v Germany (1984) 6 EHRR 409 was concerned with a minor traffic offence which had been decriminalised by German law and was regarded as "regulatory" and was dealt with by administrative authorities. The issue was the applicability of Article 6(3)(e). The Court expressed the view that the principles set forth in Engel were relevant mutatis mutandis (paragraph 48). After recording that the Convention is not opposed to moves towards decriminalisation, the Court went on to reiterate in paragraph 49 what had been said in Engel about the risk of results incompatible with the object and purpose of the Convention. In paragraph 50 the Court repeated, in marginally different words, the three criteria set out in Engel at paragraph 82. In discussing the second criterion, the nature of the offence, the Court said (at paragraph 53):
"... the Court would ... note that, according to the ordinary meaning of the terms, there generally come within the ambit of the criminal law offences that make their perpetrator liable to penalties intended, inter alia, to be deterrent and usually consisting of fines and measures depriving the person of his liberty",
and went on to identify the penalty provided for as retaining "a punitive character, which is the customary distinguishing feature of criminal penalties". Having held that the offence in question was criminal for the purposes of Article 6 by reason of its nature, the Court considered it unnecessary to address the third criterion, but observed (in paragraph 54):
"The relative lack of seriousness of the penalty at stake cannot divest an offence of its inherently criminal character."
[28] Campbell and Fell v United Kingdom (1984) 7 EHRR 165 concerned prison discipline. In that case the court (at paragraphs 68 and 69) concluded that it was right to apply, with due allowance for the different context, the criteria stated in Engel and Öztürk. It continued as follows:
"70. The first matter to be ascertained is whether or not the text defining the offences in issue belongs, according to the domestic legal system, to criminal law, disciplinary law or both concurrently.
It is clear that, in English law, the offences ... belong to disciplinary law... Nevertheless, the Court also notes that certain parallels between Board of Visitors' proceedings and criminal proceedings were drawn [in certain cases].
71. In any event, the indications so afforded by the national law have only a relative value; the very nature of the offence is a factor of greater import.
... The Court considers that these factors, whilst not of themselves sufficient to lead to the conclusion that the offences with which the applicant was charged have to be regarded as 'criminal' for Convention purposes, do give them a certain colouring which does not entirely coincide with that of a purely disciplinary matter.
72. It is therefore necessary to turn to the last criterion stated in [Engel and Öztürk], namely the nature and degree of severity of the penalty that Mr Campbell risked incurring.
... By causing detention to continue for substantially longer than would otherwise have been the case, the sanction [of loss of remission] came close to, even if it did not technically constitute, deprivation of liberty and the object and purpose of the Convention require that the imposition of a measure of such gravity should be accompanied by the guarantees of Article 6. ...
73. Taking into account, therefore, both the 'especially grave' character of the offences with which Mr Campbell was charged and the nature and severity of the penalty that he risked incurring - and did in fact incur - the Court finds that Article 6 is applicable to the Board of Visitors' adjudication in his case."
[29] In Kadubec v Slovakia RJD 1998 - VI 2518, the issue was whether what was classified by the domestic law as a "minor offence against public order" was the subject of criminal proceedings for the purposes of the Convention. The Court's assessment of the applicability of Article 6(1) was in inter alia the following terms:
"50. The Court recalls at the outset that in order to determine whether an offence qualifies as 'criminal' for the purposes of the Convention, the first matter to be ascertained is whether or not the text defining the offence belongs, in the legal system of the respondent State, to the criminal law; next, the nature of the offence and, finally, the nature and degree of severity of the penalty that the person concerned risked incurring must be examined, having regard to the object and purpose of Article 6, to the ordinary meaning of the terms of that Article and to the laws of the Contracting States.
51. The Court notes ... that the minor offence of which the applicant was convicted is not characterised under domestic law as 'criminal'... However, the indications furnished by the domestic law of the respondent State have only a relative value ...
It is therefore necessary to examine the minor offence in the light of the second and third criteria mentioned above ... In this respect, the Court recalls that these criteria are alternative and not cumulative: for Article 6 to apply by virtue of the words 'criminal charge', it suffices that the offence in question should by its nature be 'criminal' from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by its nature and degree of severity, belongs in general to the 'criminal' sphere ... This does not exclude that a cumulative approach may be adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a 'criminal charge' ...".
Thereafter, after further discussion of the nature of the offence, the Court went on to observe, in paragraph 52:
"The fine imposed on the applicant was intended as a punishment to deter re-offending. It has a punitive character, which is the customary distinguishing feature of criminal penalties".
[30] In Adolf v Austria (1982) 4 EHRR 313, the applicant was accused of throwing at another person a bunch of keys, which struck and injured her. The proceedings were terminated on the ground that the conditions of section 42 of the Penal Code were satisfied. Section 42 provided that where "an act requiring prosecution as a matter of course" involves liability to a fine, a custodial sentence not exceeding one year or both, the act shall not be punishable if "the guilt of the author of the act is slight", the act has "no or only trifling consequences", and "punishment is not necessary to deter the author of the act or other persons from committing criminal offences". At paragraph 30 the Court said:
"The Court thus has to ascertain whether there was a 'criminal charge' ... against Mr Adolf or whether he was 'charged with a criminal offence' ...
These expressions are to be interpreted as having an 'autonomous' meaning in the context of the Convention and not on the basis of their meaning in domestic law. The legislation of the state concerned is certainly relevant, but it provides no more than a starting-point in ascertaining whether at any time there was a 'criminal charge' against Mr Adolf or he was 'charged with a criminal offence' The prominent place held in a democratic society by the right to a fair trial favours a 'substantive' rather than a 'formal' conception of the 'charge' referred to by Article 6; it impels the Court to look behind the appearances and examine the realities of the procedure in question in order to determine whether there has been a 'charge' within the meaning of Article 6."
In paragraph 33 the Court added:
"In the first place, the Court observes ... that recourse to section 42 cannot affect the existence, or retroactively alter the nature, of the procedures conducted before the court order terminating proceedings. ...
As regards the concept of a non-punishable act, it is clearly in line with the title and text of section 42. Nevertheless, non-punishable or unpunished criminal offences do exist and Article 6 of the Convention does not distinguish between them and other criminal offences; it applies whenever a person is 'charged' with any criminal offence."
[31] Benham v United Kingdom (1996) 22 EHRR 293 concerned committal to prison for non-payment of the community charge. At paragraph 56 the Court said:
"The case law of the Court establishes that there are three criteria to be taken into account when deciding whether a person was 'charged with a criminal offence' for the purposes of Article 6. These are the classification of the proceedings under national law, the nature of the proceedings, and the nature and degree of severity of the penalty.
As to the first of these criteria, the Court agrees ... that the weight of the domestic authority indicates that, in English law, the proceedings in question are regarded as civil rather than criminal in nature. However, this factor is of relative weight and serves only as a starting point.
The second criterion, the nature of the proceedings, carries more weight. In this connection, the Court notes that the law concerning liability to pay the community charge and the procedure upon non-payment was of general application to all citizens, and that the proceedings in question were brought by a public authority under statutory powers of enforcement. In addition, the proceedings had some punitive elements. For example, magistrates could only exercise their power of committal to prison on a finding of wilful refusal to pay or of culpable neglect.
Finally, it is to be recalled that the applicant faced a relatively severe maximum penalty of three months imprisonment ...
Having regard to these factors, the Court concludes that B was 'charged with a criminal offence' for the purpose of Article 6(1) and (3). Accordingly, these two paragraphs of Article 6 are applicable."
[32] In light of these authorities it is, in my view, clear that when considering whether proceedings involve determination of a "criminal charge" for the purposes of Article 6(1) or whether a person is "charged with a criminal offence" for the purposes of Article 6(3), the starting point is the classification of the matter in domestic law. It is also clear that such classification will not necessarily be determinative. If the domestic law classifies the matter as involving a criminal charge, it will be treated as involving a criminal charge for the purpose of the Convention. But if the domestic law classifies it as not involving a criminal charge, it is necessary to carry the inquiry further for the purposes of the Convention. If it were otherwise, national classification could lead to results incompatible with the purpose and objects of the Convention (Engel, paragraph 81; Öztürk, paragraph 49). The autonomous concept of what is 'criminal' will be applied to overrule if necessary a domestic classification as non-criminal, but not to question a domestic classification as criminal: as was said in Engel at paragraph 81, "the 'autonomy' of the concept of 'criminal' operates ... one way only". Given, however, that the domestic classification is the appropriate starting point, it is necessary to ask: classification of what? The language of the cases is not wholly consistent. In Engel the question asked was whether "the provisions defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently." In Öztürk, Campbell and Fell, and Kadubec the question was formulated in substantially the same way, except that the reference was to the "text" defining the offence. In Adolf the reference was a general one to the "legislation" of the state concerned. In Benham the reference was to "the classification of the proceedings under national law". It was suggested in the course of argument that the approach adopted in Benham, focusing on the "proceedings" rather than on the "offence", was different from that adopted in the other cases, but I do not think that that is so. The language used in each case springs from the matter in issue. In Engel and in Campbell and Fell the issue turned on whether an offence was characterised by domestic law as criminal or disciplinary. In Öztürk the domestic characterisation was as regulatory rather than criminal. In Benham the issue was whether domestic law regarded the proceedings as civil or criminal. The common factor is that in each case the real question was whether the domestic law regarded the situation in which the person concerned was placed as amounting to his being charged with a criminal offence. In some cases, the domestic view of the matter will be determined by the classification of the offence; in others it will be determined by the classification of the proceedings. A neutral formulation of the issue is to be found in the Commission's Opinion in Benham, where at paragraph 65 it is said: "The first criterion is the nature of the matter in domestic law". In my opinion the first criterion to be considered can properly be formulated as being whether or not the domestic law regards the person in question, placed in the position in which he has been placed, as a person charged with a criminal offence. If the answer to that question is in the affirmative, that is sufficient to result in there being a criminal charge for the purposes of the Convention. If, on the other hand, the answer is in the negative, the appropriate response is to note the domestic classification but to move on to consider the second and third criteria.
[33] There is a corresponding disparity in the language used to define the second criterion. That criterion looks not to the characterisation adopted by the domestic law, but to the fundamental nature of "the offence" (Engel, paragraph 82; Öztürk, paragraph 50; Campbell and Fell, paragraph 71; Kadubec, paragraph 51) or of "the procedures" (Adolf, paragraph 33) or "the proceedings" (Benham, paragraph 56). It seems to me that in the context of the second criterion, as in the context of the first criterion, the dichotomy between the cases in which the focus is on "the offence" and those in which the focus is on "the procedures" or "the proceedings" is a false one. The difference between the first criterion and the second can in my view be formulated in this way. The first criterion asks: how does the domestic law characterise the situation in which the person concerned finds himself; does it treat him as "charged with a criminal offence" or not? The second criterion asks: how should the nature of the situation in which the person concerned finds himself be classified objectively, bearing in mind the object and purpose of the Convention. Just as the approach of domestic law may focus in some circumstances on the nature of the offence and in others on the nature of the proceedings, so too the objective assessment of the nature of the situation of the person concerned may in some circumstances be determined by the nature of the offence and in others by the nature of the proceedings. That concentration exclusively on whether the "offence" is objectively of a criminal nature cannot be appropriate is, in my view, demonstrated by the fact that an allegation of, for example, assault may be the subject of a criminal charge or the subject of a civil claim for damages. Thus although assault is a crime, it does not follow that in all proceedings in which it is alleged that the person concerned committed an assault, that person faces a criminal charge. Regard must also be had to the nature and purpose of the proceedings. One important element may be the identity of the person making the allegation. That the allegation is made by a private citizen pursuing a remedy for harm done to him as an individual may be sufficient to show that no criminal charge is involved. Another element that may, in my view, be significant is the purpose for which the proceedings are brought. If the purpose is to inflict punishment in the public interest, that will tend to support the conclusion that objectively the proceedings involve the laying of a criminal charge. Conversely, however, the absence of the possibility of punishment may support the conclusion that no criminal charge is involved. It is, of course, necessary to bear in mind that the third criterion is concerned with "the nature and degree of severity of the penalty" (Engel, paragraph 82; Öztürk, paragraph 50; Campbell and Fell, paragraph 72; Kadubec, paragraph 51). But I take from the fact that these authorities concentrate on "the nature and degree of severity" of the penalty as the third criterion, the inference that it is taken for granted that a criminal charge ordinarily involves a penalty or punishment of some sort. If the proceedings involve no possibility of punishment - do not contemplate the infliction of punishment as any part of their purpose - that in my opinion points strongly to their nature not being criminal at all. I note, of course, that in Adolf the Court said (at paragraph 33) that "non-punishable or unpunished criminal offences do exist and Article 6 of the Convention does not distinguish between them and other criminal offences". That, however, was said in the context of a procedure which, after criminal proceedings had been commenced, allowed a decisi
[34] As I have already indicated, the third criterion is not in my opinion concerned with whether or not the proceedings in question can result in the infliction of punishment. On the contrary, it assumes that punishment of some degree is involved, and addresses the nature and severity of that punishment. It is concerned with cases which do not fall (or at least do not clearly fall) within the scope of Article 6 by virtue of the application of the first or second criteria. If the approach adopted in Kadubec (at paragraph 51) is to be accepted, it is an alternative to the second criterion, although it may be brought into account cumulatively where separate analysis of each criterion does not lead to a clear conclusion. The context, it seems to me, in which the third criterion comes to be of importance is where the objective nature of the offence or the proceedings is held not to be criminal (or to be not clearly criminal), and the second criterion is therefore not (or not clearly) satisfied. That may be, for example, because the offence may be characterised for Convention purposes as disciplinary, or because it is the subject of a legitimate scheme of decriminalisation. In that sort of situation, the effect of the third criterion may be to bring an offence or proceedings (which might otherwise be held not to involve a "criminal charge") back within the scope of the criminal aspect of Article 6 because of the nature or severity of the punishment. Application of the third criterion cannot, however, have the converse effect of rendering non-criminal for the purposes of the Convention something that is clearly criminal by its nature (Öztürk, paragraph 54).
[35] I turn at this stage to another aspect of the Convention jurisprudence on which reliance was placed by the minuter. In Eckle v Germany (1982) 5 EHRR 1, the Court said (at paragraph 73):
"In criminal matters, the 'reasonable time' referred to in Article 6(1) begins to run as soon as a person is 'charged'; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. 'Charge', for the purposes of Article 6(1), may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence', a definition which also corresponds to the test whether 'the situation of the [suspect] has been substantially affected.'"
In my opinion, however, that observation - authoritative though it may be in its proper context - does not afford significant assistance in resolving the issues which arise in this reference. The observation was made in the context of the issue which arises under the part of Article 6(1) which guarantees a fair trial "within a reasonable time" as to when the period of time to be considered for that purpose should be taken to have begun. It is relevant in a case where there is no issue as to whether there has been a criminal charge, but where the issue is as to when that charge was first brought. But it does not, in my opinion, help in the determination of whether proceedings involve "the determination ... of [a] criminal charge", or whether a person is "charged with a criminal offence", where the point in issue is the character of the proceedings in question as criminal or non-criminal. In Tejedor Garcia v Spain RJD 1997 - VIII 2783 the definition of "charge" as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence was repeated (at paragraph 27), but in that case the issue was whether criminal proceedings had been commenced. It would, in my view, be contrary to the line of authority formulating the criteria which I have discussed in paragraphs [26] to [34] above, to hold that the issue of whether a person falls to be treated for the purposes of the application of Article 6 as having been charged with a criminal offence, arising in the form in which it arises in the present reference, can be determined simply by asking whether he has been given official notification by a competent authority of an allegation that he has committed a criminal offence.
(c) The Application of the Criteria
[36] For the reasons which I have discussed in paragraph [32] I am of opinion that the first criterion is not concerned simply with whether the allegation made in the grounds for referral in respect of the minuter is characterised by the domestic law as an allegation that he has committed a criminal offence, but rather with whether the domestic law regards him, a child in respect of whom the reporter has formulated grounds for referral which found on the condition mentioned in section 52(2)(i), as a person charged with a criminal offence. If the proper question were the former one, as was maintained on the minuter's behalf, the answer would clearly be that the minuter is indeed facing an allegation which Scots law regards as an allegation that he has committed a criminal offence. That is inherent in section 52(2)(i) - "that the child ... has committed an offence". The specific allegation is that the minuter committed an assault, and assault is undoubtedly characterised as a crime by Scots law. But it does not in my opinion follow, from the bare fact that an allegation is made that the minuter has committed an offence, that he is regarded as a person who is charged with a criminal offence. On the contrary, in my view there are very clear grounds for holding that a child in respect of whom the reporter puts forward grounds for referral relying on section 52(2)(i) is not classified by Scots law as being charged with a criminal offence.
[37] In the first place, it seems to me that a decisive answer to the question of domestic classification is to be found in the terms of section 42(1) of the Criminal Procedure (Scotland) Act:
"No child shall be prosecuted for any offence except on the instruction of the Lord Advocate, or at his instance."
The proceedings against the minuter are not at the instance of the Lord Advocate or any other public prosecutor acting on his instruction. They are brought by the reporter who, although a public official, is not a prosecutor. The minuter is therefore not being "prosecuted" for an "offence".
[38] In the second place, there is a consistent line of authority treating proceedings before the children's hearing (and the related proceedings before the sheriff) as civil proceedings sui generis. In McGregor v T 1975 SLT 76 Lord President Emslie said (at 81, col. 2):
"In my opinion, whatever else this judicial proceeding [an application to the sheriff for a finding as to whether grounds for referral were established] is, it is not a criminal proceeding. Hearings may take place in relation to all or any of the grounds set out in section 32(2) of the Act [the Social Work (Scotland) Act, now re-enacted with amendments in section 52(2) of the Children (Scotland) Act], many of which have or may have nothing to do with offences of a criminal character. Although the ground set out in section 32(2)(g) [now section 52(2)(i)] is that the child referred has committed an offence, and the standard of proof to be applied by the sheriff in a hearing directed to that ground is that required in criminal procedure ..., a hearing of an application involving ground 32(2)(g) is not a criminal proceeding since it is not concerned with a prosecution and it can lead to no conviction."
In Kennedy v O 1975 SLT 235 the court said (at 237, col. 1):
"It [the hearing before the sheriff on an application for a finding as to whether the grounds for referral were established] is not a criminal judicial proceeding. The sheriff has no power of disposal, other than to refuse the application and discharge the referral. If he sustains the grounds of the referral, his finding is remitted back to the children's hearing for disposal. The basic purpose of the referral is to decide for the benefit of the children's panel the disputed issue whether the child falls to be dealt with under section 32(1) of the Act. It has, accordingly, to be treated as a civil proceeding, and the section 50 appeal procedure [appeal to the Court of Session] endorses this view."
In McGregor v D 1977 SC 330 Lord President Emslie said (at 336):
"The Social Work (Scotland) Act 1968 was concerned to provide compulsory measures of care for children in need of such care and, in particular, for any child who 'has committed an offence'. Such a child is no longer, save in an exceptional case, to be subject to prosecution or conviction, or the jurisdiction of the ordinary criminal courts. The scheme of the Act is the search for a solution which will be in the best interests of the delinquent child and other children in need of care. ... In no sense are proceedings under Part III of the Act criminal proceedings. They are, on the contrary, civil proceedings sui generis."
(See also per Lord Cameron at 339: "The proceedings are in no sense criminal".)
[39] Such is the domestic classification of the situation of a child referred to a children's hearing on the ground mentioned in section 52(2)(i), notwithstanding the various respects in which procedural rules applicable to criminal proceedings are made applicable to proceedings before the sheriff in connection with that ground for referral. These include (i) the requirement that the statement of facts in the statement of the grounds for referral give the same degree of specification as is required in a criminal complaint (rule 17(2)), (ii) the fact that jurisdiction is conferred exclusively on the sheriff who would have jurisdiction if the child were prosecuted for an offence (section 68(3)(a)), (iii) the fact that the criminal standard of proof is applicable (section 68(3)(b)), and (iv) the fact that civil rules of evidence do not apply (Civil Evidence (Scotland) Act, section 9). They have not, however, been regarded as sufficient to make the proceedings under section 52(2)(i) proceedings involving the determination of a criminal charge. I do not consider that the decision in Merrin v S 1987 SLT 193, in which it was held that the reference to an "offence" in section 32(2)(g) of the Social Work (Scotland) Act (now section 52(2)(i) of the Children (Scotland) Act) meant that that ground of referral could not be established in the case of a child below the age of criminal responsibility, can be regarded as undermining the line of authority which I have mentioned in paragraph [38] above.
[40] In my opinion, therefore, proceedings against the minuter before the children's hearing are not regarded by Scots law as involving the "determination" of a "criminal charge", and his position is not regarded as that of a person "charged with a criminal offence". The application of the first criterion identified in the Convention jurisprudence therefore does not lead to the conclusion that the minuter should, for the purposes of the application of Article 6, be treated as a person charged with a criminal offence. It is therefore in my opinion necessary to go on to consider the next criterion.
[41] The application of the second criterion would be simple if the correct view of the Convention jurisprudence were that all that requires to be examined is the nature of the "offence". The grounds for referral in respect of the minuter contain an unequivocal assertion that he has committed the offence of assault, and there is in my view no doubt that the nature of that offence is criminal in the Convention sense. As I have indicated in paragraph [33] above, however, I am of opinion that the issue which requires to be addressed in applying the second criterion is a more complicated one involving consideration not only of the nature of the act which the person concerned is said to have committed, but also of the nature, purpose and potential consequences of the proceedings in question. However, before turning to the considerations which, in my view, tend to support the conclusion that proceedings before a children's hearing on grounds for referral based on section 52(2)(i) do not involve the determination of a criminal charge, it is convenient to take note of those aspects of the matter which might be regarded as tending to support the opposite view. I approach the matter on the basis that it is appropriate to have regard to the whole of the procedure from commencement to final disposal. It might be possible to say that, in so far as there are indications that the proceedings are of a criminal nature, those indications arise mainly in connection with the stage at which the proceedings take place before the sheriff on the application for a finding as to whether the grounds for referral are established, and consequently to argue that it is therefore only that stage that involves the determination of a criminal charge. That approach would, however, in my view be inconsistent with the Convention jurisprudence, which suggests that Article 6(1) and (3) in its application to the determination of a criminal charge applies at all stages from the commencement of proceedings to their final disposal, including sentence and appeal (Eckle, paragraphs 76 and 77; Findlay v United Kingdom (1997) 24 EHRR 221, paragraph 69; Belziuk v Poland RJD 1998 - II 558, paragraph 37; V v United Kingdom (1999) 30 EHRR 121, paragraph 109; the position is inevitably different in relation to Article 6(2) which cannot according to its terms apply after there has been a finding of guilt - McIntosh, Petitioner 2001 SLT 304). In seeking to identify the nature of the proceedings, therefore, it is in my view appropriate to view them as a whole.
[42] Approaching the matter chronologically, the first point to be noted is that at the outset the minuter was arrested by the police and charged by them with the crime of assault. His transfer to a place of safety was in pursuance of a provision of the criminal procedure legislation (section 43(4) of the Criminal Procedure (Scotland) Act). We were informed that he was scheduled to appear in the sheriff court on the afternoon of 1 November 1999. At that stage the minuter was, in my opinion, a person who had been "charged with a criminal offence" in the sense discussed in Eckle at paragraph 73. Not only had he been given official notification by a competent authority of the allegation that he had committed a criminal offence, but also the procedure which had been set in train was one which would, if it had not been interrupted, have led to his prosecution in a criminal court. In my opinion, however, those proceedings must be treated as having come to an end when the procurator fiscal indicated that he did not intend to proceed with criminal charges against the minuter. At that stage, in my view, the minuter ceased to be a person charged with a criminal offence within the context of the ordinary criminal courts. What further steps should be taken in respect of the minuter became at that stage a matter for decision initially by the reporter, who is not a public prosecutor. He required to make a decision, different in nature from the decision made by the procurator fiscal, in accordance with a different statutory criterion, namely whether he considered that compulsory measures of supervision were required. It was his decision that they were that brought the minuter before the children's hearing for the first time. I am therefore of opinion that there was a real break in the continuity of proceedings at the stage when the procurator fiscal decided not to continue with ordinary criminal proceedings against the minuter. Although the nature of the proceedings up to that point was in my opinion clearly such that they were proceedings for the determination of a criminal charge, the subsequent proceedings at the instance of the reporter fall to be considered afresh, and their nature is not in my opinion coloured by what had gone before.
[43] Nevertheless, an analogy can clearly be drawn between ordinary criminal proceedings and a referral to the children's hearing on the ground mentioned in section 52(2)(i). The power of the hearing to grant warrant to keep the child in a place of safety (sections 64(5) and 66) may be broadly equated to a criminal court's power to remand an accused person in custody. The statement of grounds for referral under section 52(2)(i) can be equated with a summary complaint, particularly given the requirement that the former give the same degree of specification as the latter. The first stage of the proceedings of the children's hearing, when the child is asked if he accepts the grounds for referral or not, can be equated to the pleading stage in summary criminal proceedings. The application to the sheriff, where the grounds for referral are not accepted, can be equated with a summary trial. That analogy is reinforced by the application of the criminal standard of proof and the criminal rules of evidence. Where the grounds for referral are accepted or are held by the sheriff to have been established, the further stage of procedure before the children's hearing at which disposal of the referral is considered might be regarded as the equivalent of the sentencing stage in ordinary criminal procedure. The making of a supervision requirement might be viewed as the equivalent of the imposition of a sentence. At the very least, therefore, the proceedings before the children's hearing and the sheriff can be seen to follow a pattern broadly similar to that of a summary criminal trial.
[44] One other point was heavily relied upon by the minuter in argument. Section 3 of the Rehabilitation of Offenders Act 1974 provides as follows:
"Where a ground for the referral of a child's case to a children's hearing under the Children (Scotland) Act 1995 is that mentioned in section 52(2)(i) of that Act ... and that ground has either been accepted by the child and, where necessary, by his parent or been established (or deemed established) to the satisfaction of the sheriff under section 68 or 85 of that Act, the acceptance, establishment (or deemed establishment) of that ground shall be treated for the purposes of this Act (but not otherwise) as a conviction, and any disposal of the case thereafter by a children's hearing shall be treated for those purposes as a sentence; and references in this Act to a person's being charged with or prosecuted for an offence shall be construed accordingly."
The applicable rehabilitation period is six months where the referral is discharged (section 5(3)(b)) and one year or the duration of the order (whichever is the longer) where a supervision requirement is made (section 5(5)(f)). It was submitted that the fact that the acceptance or establishment of the section 52(2(i) ground for referral fell to be treated as a conviction for certain purposes pointed strongly to there being a determination of a criminal charge. I am not persuaded that that argument is well founded. The purpose of the Rehabilitation of Offenders Act was to place offenders, after the expiry of the relevant rehabilitation period, in the same position as that in which they would have been if they had not been convicted. The relief granted was, however, limited in certain respects (see section 7). In that context, it seems to me that the purpose of section 3 was to extend to persons in respect of whom grounds for referral had been accepted or established the relief available to persons convicted in the ordinary criminal courts. Without the enactment of section 3 such persons would not have had the benefit of the Act, because they had not been "convicted" or "sentenced". In so far as section 3 requires acceptance or establishment of a section 52(2)(i) ground for referral to be treated as a conviction for the purposes of the Act, it confers a benefit rather than imposing a disadvantage. If anything, it seems to me, the way in which section 3 is framed underlines the fact that acceptance or establishment of a section 52(2)(i) ground for referral is not, for the purposes of the general law, a conviction of a criminal offence.
[45] There are in my view two principal considerations which lead to the conclusion that, notwithstanding the analogy which may be drawn between proceedings in respect of a section 52(2)(i) referral and ordinary criminal proceedings, the former are not by their nature proceedings for the determination of a criminal charge and the child who is the subject of such proceedings is not charged with a criminal offence. The first is the fact that such proceedings are brought under a statutory scheme designed to promote the welfare of all children who are in need of compulsory measures of supervision. The second is that the proceedings are not penal in aim. These two considerations are perhaps opposite sides of the same coin, positive and negative ways of expressing the same point.
[46] The statutory scheme originally enacted in Part III of the Social Work (Scotland) Act and now to be found in Chapters 2 and 3 of Part II of the Children (Scotland) Act bears to provide means for addressing the cases of all children who are in need of compulsory measures of supervision. It recognises, however, that the existence of that need in relation to the individual child may be evidenced in a number of ways. The individual grounds for referral set out in section 52(2) comprise a list of the circumstances which Parliament has recognised as potentially indicative of a child's need for compulsory measures of care. By including in the list the circumstance that the child has committed an offence, Parliament has indicated that it may, in some though not all cases in which children have committed criminal offences, be appropriate to look behind the criminal act and focus instead on the underlying need of the child, of which the criminal act may be but a symptom. The possibility that the public interest may still require that the child be prosecuted is recognised by the preservation of the possibility of prosecution at the instance or on the instructions of the Lord Advocate (section 42(1) of the Criminal Procedure (Scotland) Act, as to the practical operation of which see Kearney, Children's Hearings and the Sheriff Court, second edition, paragraphs 1.25 and 1.26). But where such prosecution does not take place, the child's commission of an offence is viewed simply as the event which raises the question of whether he is in need of compulsory measures of supervision. No distinction is made between referrals under section 52(2)(i) and those under any other paragraph of section 52(2) in relation to the application of the so-called "overarching principle" that the paramount consideration must be the welfare of the child throughout his childhood (section 16(1)). The task of the reporter is the same in all cases: to form a view, first whether compulsory measures of supervision are necessary, and secondly whether one of the grounds specified in section 52(2) is established (section 65(1)). In a section 52(2)(i) case, therefore, the commission of the offence has no necessary consequence; the reference will only proceed if the reporter is satisfied that compulsory measures of supervision are required. When the child is asked if he accepts the grounds for referral, or the sheriff is asked to make a finding that the grounds are established, the affirmative answer in each case simply opens the way to a disposal geared to promote the welfare of the child. The question - Did the child commit the offence alleged? - is asked (whether of him or of the sheriff) not with a view to holding him criminally liable for his conduct, but with a view to taking measures to promote his welfare.
[47] The measures which the children's hearing may impose are defined in section 70. The available range of measures is the same, whether the ground for referral has been the one mentioned in section 52(2)(i) or one of the others. There is nothing in the legislation warranting the imposition of any measures designed to operate as a punishment. The decision on disposal is controlled by section 16(1). Although the measures may include deprivation of liberty, where the hearing decides to include in a supervision requirement a condition that the child be kept in secure accommodation, it is in my view clear that that deprivation of liberty is not conceived as a punishment but as a measure necessary for the promotion of the child's welfare. That is, in my view made clear by (a) the statutory criteria that must be satisfied before such a condition is imposed (section 70(9) and (10)), (b) the general principle expressed in section 16(1), and (c) the fact that no distinction is made, with regard to the availability of that disposal, between cases referred under section 52(2)(i) and other cases. In Convention terms, while deprivation of liberty imposed as a punishment is characteristic of criminal proceedings (Engel, paragraph 82), not every legitimate detention is penal (see Article 5(1)(d) and (e)). These considerations all lead me to the conclusion that the superficial analogy between the disposal stage of a section 52(2(i) referral and the sentencing stage of summary criminal proceedings, which I mentioned in the second and third last sentences of paragraph [43] above, is false. In my opinion it is clear that the children's hearing system as a whole is not concerned with the imposition of punishment, and that in particular no punishment follows or can follow from acceptance or establishment of the section 52(2)(i) ground.
[48] In a section 52(2)(i) reference it is asserted that the child has committed a criminal offence, the assertion is made by a public official, and the formulation and establishment of the allegation are approached according to the same rules as are applied in dealing with a criminal charge before the ordinary criminal courts. An assertion that a person has committed a crime does not, however, necessarily amount by its nature to the bringing of a criminal charge - the obvious example of its not doing so is where it is made the ground of a civil action. The reporter is a public official, but he is not a "competent authority" for the prosecution of a criminal charge; his statutory duties are expressly and exclusively concerned with the welfare of the child. The adoption of the criminal rules for the formulation of the allegation, the standard of proof and the rules of evidence all form part of the solution selected by Parliament to hold a delicate balance between, on the one hand, not placing unnecessary formal obstacles in the way of securing the provision of such care as is necessary in the interests of the child's welfare and, on the other hand, not removing the ordinary protective rules applicable to proof of an allegation of crime (Constanda v M 1997 SC 217 per Lord Coulsfield at 221). None of these considerations, it seems to me, outweighs in the determination of the nature of the proceedings (a) the focus of the statutory scheme on welfare and (b) the absence of any punitive purpose. In my opinion, a proper application of the second criterion identified in the Convention jurisprudence leads to the conclusion that children's hearing proceedings on the ground mentioned in section 52(2)(i) do not by their nature constitute proceedings for the determination of a criminal charge.
[49] In my opinion, the third criterion derived from the Convention jurisprudence does not arise in the circumstances of this reference. No question of the proceedings being rendered criminal for the purpose of Article 6 by virtue of the nature or severity of the punishment can arise when the system does not contemplate or provide for punishment at all.
[50] I am therefore of opinion that, on a sound application of the criteria derived from the Convention jurisprudence, proceedings in respect of a child before a children's hearing upon a referral on the ground mentioned in section 52(2)(i) of the Children (Scotland) Act (1) are not classified by domestic Scots law as proceedings for the determination of a criminal charge, (2) do not fall to be regarded for the purposes of the Convention as being of the nature of proceedings for the determination of a criminal charge, and (3) are not proceedings in which the third criterion can arise, because they do not involve the possibility of the imposition of a penalty. It follows, in my opinion, that for the purposes of Article 6(1) such proceedings are not proceedings for the determination of a criminal charge, and that for the purposes of Article 6(3) the child is not a person charged with a criminal offence.
Determination of Civil Rights and Obligations
[51] I turn now to the alternative basis on which it was suggested that the proceedings in respect of a referral to a children's hearing under section 52(2)(i) might be proceedings to which Article 6(1) of the Convention applies, namely that such proceedings involve, or at least may involve, determination of the child's civil rights and obligations. The point was not ultimately a matter of dispute, but it is nevertheless appropriate to deal briefly with it, before turning to the issues which arise in consequence of such application.
[52] In McMichael v United Kingdom (1995) 20 EHRR 205 the European Court of Human Rights had occasion to consider a complaint that certain aspects of proceedings before a children's hearing violated the second applicant's rights under Article 6(1). The second applicant was the mother of a child whose case was referred to a children's hearing on the ground mentioned in section 32(2)(c) of the Social Work (Scotland) Act (now section 52(2)(c) of the Children (Scotland) Act - "lack of parental care"). The Commission's Opinion on the applicability of Article 6(1) to the proceedings before the children's hearing and before the sheriff was in the following terms:
"113. The second applicant as the natural mother of [the child] enjoyed, under domestic law, parental rights in this respect. She had the right to participate in the children's hearing as a parent and to appeal from its decisions to the Sheriff Court. In the course of these proceedings she contested the decision placing [the child] in the care of the local authority and the subsequent decision to terminate access, maintaining throughout that [the child] should be returned to her care. In these circumstances, the Commission finds that there was a 'genuine' and 'serious' dispute over the [second] applicant's rights within the meaning of Article 6(1) of the Convention. These rights, relating to family life, are 'civil' in character."
Before the Court, the point was not disputed. The Court recorded (in paragraph 75):
"The Government accepted the Commission's conclusion that in respect of the second applicant ... Article 6(1) was applicable to the care proceedings before the children's hearings and the Sheriff Court.
On the basis of its established case law, the Court likewise sees no cause to differ from the Commission's conclusion."
In my opinion it is reasonable to infer that decisions made by a children's hearing may also determine the child's civil rights relating to family life. They may, for example, determine issues as to whether or not the child should live in family with his parent or parents, or as to whether and if so on what conditions there should be contact between the child and his parents (c.f. W v United Kingdom (1987) 10 EHRR 29, paragraphs 72-79; Glaser v United Kingdom (ECHR Application No. 32346/96, Judgment of 19 September 2000, paragraph 91)).
[53] Moreover, it is recognised that the right to liberty is a civil right. In Aerts v Belgium (1998) 29 EHRR 50 the Court said (at paragraph 59):
"The Court considers that the present case did not involve 'determination of a criminal charge'. On the other hand, the outcome of the proceedings was decisive for civil rights, within the meaning of Article 6(1). The question of the applicant's transfer to [a social protection centre from the psychiatric wing of a prison] was not the only matter at issue in the case before the Belgian courts, which concerned in substance the lawfulness of the deprivation of liberty concerned. But the right to liberty, which was thus at stake, is a civil right."
In W Borough Council v DK and Others (15 November 2000, unreported) the English Court of Appeal held that a secure accommodation order under section 25 of the Children Act 1989 amounted to a deprivation of liberty (per Dame Elizabeth Butler-Sloss P at paragraph 32 and Judge LJ at paragraph 104). Given the similarity of the definitions of secure accommodation in the English and the Scottish legislation, I see no reason to take a different view of a supervision requirement specifying that the child be kept in secure accommodation. It follows, in my opinion, that proceedings before a children's hearing in which the possibility of the making of a supervision requirement specifying secure accommodation is at stake are in that respect proceedings for the determination of the child's civil rights.
[54] It is, in these circumstances, in my opinion, appropriate to proceed to consider the minuter's allegations that the procedure in respect of a referral to a children's hearing does not comply with the requirements of Article 6 on the basis that such proceedings may, depending on the circumstances of the particular case, involve determination of the child's civil rights and obligations.
Non-availability of Legal Aid
[55] If the minuter's submission that as the subject of a referral under section 52(2)(i) he was "charged with a criminal offence" had been upheld, the question of the non-availability of legal aid in proceedings before the children's hearing would have arisen directly under the express terms of Article 6(3)(c). In view of the conclusion I have reached in paragraph [50] above, however, the issue does not arise in that form. It does not follow, however, that the issue does not arise at all. The question comes to be whether the non-availability of free legal assistance in the referral proceedings before the children's hearing is incompatible with the right to a fair hearing in the determination of the minuter's civil rights and obligations. It is recognised in Convention jurisprudence that rights which are expressly provided for in the context of criminal proceedings may, in the context of civil proceedings, be implicit in the right to a fair hearing (Albert and Le Compte v Belgium, paragraph 30).
[56] The extent to which free legal assistance is available to a child in connection with proceedings following upon a referral to a children's hearing is not in dispute among the parties to this reference and is summarised in paragraph 6.12 of the reference (see also the summary of the position in The Scottish Legal Aid Handbook, fifth edition, at paragraph 14.2.2.). It is necessary to distinguish three forms of free legal assistance:
- "advice and assistance", which is defined in section 6(1) of the Legal Aid (Scotland) Act 1986 and which covers the provision of written or oral advice and related assistance, but does not extend to cover representation before any court or tribunal;
- "assistance by way of representation" (ABWOR), which is also defined in section 6(1) and which does extend to representation before a court or tribunal, but only in proceedings of certain defined categories; and
- "legal aid", which is available (a) in relation to proceedings relating to children to the extent specified in section 29 of the Legal Aid (Scotland) Act and (b) in relation to certain other civil proceedings in accordance with Part III of that Act, and which does, where it is available, cover representation.
So far as proceedings before a children's hearing (whether at the stage before or at the stage after grounds for referral have been accepted or established) are concerned, advice and assistance is available, but ABWOR and legal aid are not. So far as proceedings before the sheriff (whether in connection with a section 68 application or in connection with a section 51 appeal) are concerned, on the other hand, full legal aid is available.
[57] In the context of the determination of civil rights and obligations the minuter relied on Airey v Ireland (1979) 2 EHRR 305. In that case the Court upheld a complaint that the applicant's rights under Article 6(1) had been violated where legal aid was not available to enable her to employ the services of a lawyer to represent her in proceedings for judicial separation. In paragraph 24 of its judgment the Court said:
"The Government contended that the applicant does enjoy access to the High Court, since she is free to go before that court without the assistance of a lawyer.
The Court does not regard this possibility, of itself, as conclusive of the matter. The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial. It must therefore be ascertained whether Mrs Airey's appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily."
After discussing the complexity of the procedure and the difficulties arising from emotional involvement, the Court concluded that:
"the possibility to appear in person before the High Court does not provide the applicant with an effective right of access".
However, the Court went on in paragraph 26 to say:
"It would be erroneous to generalise the conclusion that the possibility to appear in person before the High Court does not provide Mrs Airey with an effective right of access; that conclusion does not hold good in all cases concerning 'civil rights and obligations' or for everyone involved therein. In certain eventualities, the possibility of appearing before a court in person, even without a lawyer's assistance, will meet the requirements of Article 6(1); there may be occasions when such a possibility secures adequately access even to the High Court. Indeed much must depend on the particular circumstances.
In addition, whilst Article 6(1) guarantees to litigants an effective right of access to the courts for the determination of their 'civil rights and obligations', it leaves the State a free choice of the means to be used towards this end. The institution of a legal aid scheme ... constitutes one of those means but there are others such as, for example, a simplification of procedure. In any event, it is not the Court's function to indicate, let alone dictate, which measures should be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6(1).
The conclusion appearing at the end of paragraph 24 above does not therefore imply that the State must provide free legal aid for every dispute relating to a 'civil right'. ... However, ... Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensible for an effective access to court either because legal representation is rendered compulsory ... or by reason of the complexity of the procedure or of the case."
The minuter's position was that, so long as cases could arise before the children's hearing in which the test formulated in Airey was passed, the absence of any means of assessing whether a case required the provision of free legal representation before a children's hearing meant that there was a structural failure to make the Article 6(1) guarantee effective.
[58] The contrary submission that the non-availability of legal aid did not involve any contravention of Article 6(1) took as its starting point the following passage in Brown v Stott 2001 SLT 59 per Lord Bingham of Cornhill at 70H:
"The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within Article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for."
In examining whether the lack of provision for legal aid for representation before the children's hearing contravened Article 6(1), therefore, it was legitimate and appropriate to take into account the fact that it was seen as a beneficial aspect of the children's hearings system that the members of the hearing were able to engage in discussion directly with the child. That point of view was expressed in the Review of Child Care Law published by the Scottish Office in 1990, paragraphs 20.6 and 20.7:
"20.6 The case is sometimes argued that the rights of children and parents justify extension of the legal aid system to allow people, without the discrimination of means, the benefit of legal representation before a hearing, since it has the power of momentous decisions over the lives of children and their families and since better-off parents can readily purchase the advantage of the services of solicitors at hearings.
20.7 There is a case for admitting legal representation in all tribunals where significant decisions are made, but such a move would compromise the essentially informal operation of hearings with their concentration on the welfare of the child - features which contribute significantly to their success in dealing with children, whether they have committed offences or are in need of care and protection. A major strength of hearings is their ability to focus on the needs of the child and to engage parental support and co-operation in achieving their objective. To introduce into hearings adversarial elements more suited to court proceedings would conflict with the welfare philosophy and the whole atmosphere of hearings and would make it more difficult to involve parents in decisions made for their children's welfare."
These considerations, it was submitted, afforded a defensible basis for the non-availability of legal aid at the hearing stage of proceedings.
[59] A second line of argument involved separate consideration of three stages of the procedure on a reference. The first stage was identified as that at which the child was asked whether he accepted the grounds for referral or not. Advice and assistance could be obtained in light of the statement of the grounds for referral before the hearing took place. For the purposes of that stage, that was adequate. The second stage was that which took place on an application to the sheriff. For that stage, legal aid was available. The third stage was that at which, after acceptance or establishment of the grounds for referral, the hearing proceeded to consideration of disposal. It was at that stage that the Airey test required to be considered. As was noted by Lord President Emslie in McGregor v D (at 336), "the body responsible for considering and disposing of a child's case is a lay body, ... the reporters need not be lawyers, ... the procedure ... may be conducted without the intervention of lawyers, and is intended to be quite informal". As was recognised in Airey (at paragraph 26), simplification of procedure is one way of ensuring effective access. Account also required to be taken of the role of the hearing in securing that the child was fairly treated (c.f. Webb v United Kingdom, (1983) 33 DR 133 at 140-141). The availability of a right of appeal to the sheriff, and the availability of legal aid for representation at such an appeal, also required to be taken into account. In all the circumstances, it was suggested, it could not be said that the non-availability of legal aid for the disposal stage of the hearing process contravened Article 6(1).
[60] The rights of a person charged with a criminal offence expressly include the right to free legal assistance (i) if the person concerned has not sufficient means to pay for it, and (ii) the interests of justice so require (Article 6(3)(c)). The guarantees afforded in the criminal context by Article 6(3) are specific aspects of the right to a fair trial under Article 6(1) (Benham, paragraph 52), and it follows, in my opinion, that in the civil context there may be circumstances in which Article 6(1) requires the availability of free legal representation. It is, however, a matter of circumstance rather than general rule (Airey, paragraph 26). In Airey the test was formulated in terms of the ability of the applicant to present her case properly and satisfactorily. That seems to me to be an aspect of the "interests of justice" test expressed in Article 6(3).
[61] It is, of course, right to bear in mind the deliberate informality of children's hearing proceedings, and the desirability of interaction between the members of the hearing on the one hand and the child himself and his parent on the other. That informality of approach has served the system well over the last thirty years. On the other hand, it is to be noted that the system does not on that account go so far as to exclude legal representation before the hearing. A child whose parent can afford it can be legally represented. Moreover, while I accept that routine legal representation of every child before a children's hearing might work a change in the ethos of the system, it is not obvious to me that a more selective approach would be similarly destructive. I see no reason why a legal representative should be supposed unable to take account of the nature of the body and its procedure in representing a child in a way that does not deprive his client of the advantages of the system. It therefore seems to me that the informality of the system does not necessarily afford ground for making no provision at all for free legal representation.
[62] It is, in my view, not difficult to figure cases in which it would be arguable that free legal representation would require to be available to secure a child's Article 6(1) rights. As I have already noted, the making of a supervision requirement specifying that the child be kept in secure accommodation would involve depriving the child of his liberty (W Borough Council, paragraphs 32 and 104). In Benham the Court said (at paragraph 61):
"The Court agrees with the Commission that where deprivation of liberty is at stake, the interests of justice in principle call for legal representation".
(See also Perks v United Kingdom (1999) 30 EHRR 33, paragraph 76.) It is therefore in my view not difficult to conclude that there may be a strong case for free legal representation in a case in which a supervision requirement specifying secure accommodation is in issue. More generally, it is in my view necessary to bear in mind that proceedings before a children's hearing may involve a child as young as eight years of age, or may involve a child of limited intelligence or limited social skills. Not every such child will have available to him an articulate lay representative able and willing to assist him at the hearing. In some cases the interests of the child will be divergent from those of his parents. Clearly, very many cases in which a referral is made to a children's hearing will involve no issue of law which requires legal representation. But some may do so. The present reference, which is concerned with a child who is said to have committed a serious assault and who maintains that he acted in self defence in protection of his father, may give rise to quite difficult legal issues, which will not necessarily be exhausted in the stage of the proceedings conducted by the sheriff. Self defence may be rejected, resulting in the grounds for referral being held to have been established, but leaving unresolved the question of the extent to which the gravity of the act was mitigated by provocation. Moreover, standing the decision in O v Rae 1993 SLT 570, the possibility remains that before the hearing at the disposal stage reference may be introduced to matters of disputed fact going beyond what has been established as part of the grounds for referral. Even without the risk of introduction of matters of that sort, at the disposal stage the hearing may have before it reports bearing on the matter which it may be in the child's best interests to challenge. In all of these circumstances, and notwithstanding my view that the children's hearing system on the whole works satisfactorily in a way that is conducive to the identification of the course which will best serve the welfare of the child, I would find it difficult to affirm that there could be no cases in which the interests of justice would require that free legal representation be made available to the child. The absence of any possibility of legal aid for representation of the child at the hearing may well, it seems to me, fall to be held to constitute a flaw in the structural arrangements for securing to children referred to a children's hearing their right to a fair hearing under Article 6(1).
[63] I do not consider that the availability of full legal aid in connection with an appeal to the sheriff from a decision by a children's hearing overcomes the potential structural deficiency which I have mentioned. It would, it seems to me, be contrary to the emphasis which is placed on the desirability of having decisions about the welfare of children taken by a specially constituted lay tribunal with specially adapted informal procedure to hold, at the same time, that, if the circumstances were such that Article 6(1) required that the child be legally represented, such representation could satisfactorily be provided, not before the special tribunal, but before the ordinary courts on appeal. Moreover, a right to legal aid on appeal would not in my opinion necessarily afford proper Article 6(1) protection to a child who, for want of legal representation before the children's hearing, had been made the subject of a supervision requirement specifying that he be kept in secure accommodation.
[64] Our attention was drawn to the Convention Rights (Compliance) (Scotland) Bill, section 6, which contemplates provisions which would enable legal aid to be extended to children's hearings by the making of appropriate subordinate legislation. As matters stand, however, I am of opinion that it is necessary, before reaching a concluded view on the issue of whether there is presently a failure to comply with Article 6(1) by virtue of the absence of the possibility of free legal representation, to consider further whether, if there is such failure, it would be competent and appropriate to make a declaration of incompatibility in terms of section 4 of the Human Rights Act 1998.
Non-availability of Reports
[65] In McMichael the Court held that the non-disclosure of documents to a parent in children's hearing proceedings and related proceedings before the sheriff constituted a contravention of Article 6(1). As a result the Children's Hearing (Scotland) Rules 1996, rule 5(3) made provision for disclosure of documents to each relevant person. The Rules, however, make no provision for disclosure of documents to the child, and on the minuter's behalf it was argued that that constituted a contravention of his rights under Article 6(1). In the course of the hearing on the reference, however, we were told that the Principal Reporter has decided to issue guidance to all reporters which, when implemented, would secure that in most cases documents would be disclosed to the child as well as to the relevant person. The proposed guidance contains exceptions designed inter alia to protect the child from disclosure of material which would be harmful to him. In these circumstances it is not, in my view, necessary to say more on this aspect of the matter.
O v Rae
[66] It was submitted on the minuter's behalf that the decision in O v Rae disclosed a situation in which matters were taken into account by the hearing without there being available any mechanism for adjudication on factual disputes as to such matters. In light of the observations of your Lordship in the Chair on the point, however, I do not consider it necessary to discuss it further.
Independent and Impartial Tribunal
[67] On the minuter's behalf it was contended that a children's hearing did not constitute an independent and impartial tribunal for the purpose of Article 6(1). For the reasons given by your Lordship in the Chair I too would hold that that contention is not well founded. In any event, counsel for the minuter accepted that, if (as I would hold) Article 6(1) applied to the children's hearing only on the basis that it determined the child's civil rights and obligations, the availability of the right of appeal to the sheriff under section 51 was sufficient to secure compliance with Article 6(1).
Article 5
[68] The submissions for the minuter under Article 5 proceeded on the basis that a supervision requirement specifying that the child be liable to be placed and kept in secure accommodation involved depriving the child of his liberty. As I have already discussed, that submission is supported by the decision of the Court of Appeal in W Borough Council, which was decided on the terms of the equivalent English legislation. I see no reason to take a different view. Such deprivation of liberty would be contrary to Article 5 unless (i) the circumstances fell within one of the categories specified in Article 5(1), and (ii) the deprivation was in accordance with a procedure prescribed by law. No issue arises in connection with the second of those requirements. The disputed issue is whether such a supervision requirement can be said to fall within the category specified in Article 5(1)(d), namely "the detention of a minor by lawful order for the purpose of educational supervision".
[69] The contention put forward on the minuter's behalf was that secure accommodation was by definition provided simply for the purpose of restricting the child's liberty. That proposition was drawn from the definition of secure accommodation in section 93(1) of the Children (Scotland) Act: "accommodation provided in a residential establishment, approved by the Secretary of State in accordance with regulations ..., for the purpose of restricting the liberty of children". It seems to me, however, that the fact that accommodation is provided for the purpose of restricting the liberty of children tells one nothing about the purpose for which a child, kept in such accommodation, has been deprived of his liberty.
[70] The question, however, remains whether the child kept in such accommodation by virtue of a supervision requirement has been deprived of his liberty for the purpose which is legitimate in terms of Article 5(1)(d). In my opinion, it is necessary to bear in mind, first, that any such supervision requirement will necessarily have been made because the children's hearing considered that it would be conducive to the child's welfare (section 16(1)). Secondly, it is necessary to bear in mind the terms of regulation 4(1) of the Secure Accommodation (Scotland) Regulations 1996, which provides that:
"the managers in consultation with the person in charge shall ensure that the welfare of the child placed in [secure] accommodation is safeguarded and promoted and that the child receives such provision for his education, development and control as is conducive to his best interests."
The provision of education is therefore an intrinsic part of detention in secure accommodation.
[71] In Koniarska v United Kingdom (Application No. 33670/96, Judgment of 12 October 2000) the Court said:
"The Court considers that, in the context of the detention of minors, the words 'educational supervision' must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned."
In W Borough Council the Court of Appeal followed that approach. In my view it is a sound approach. There might conceivably be a case in which a child could show that his detention in secure accommodation was not in accordance with Article 5(1)(d), but it is in my view impossible to say in the abstract that any detention in secure accommodation in pursuance of a supervision requirement made under section 70(9) and (10) of the Children (Scotland) Act is necessarily in contravention of the child's right to liberty under Article 5.
Result
[72] For these reasons I agree that the reformulated questions should be answered in the manner proposed by your Lordship in the Chair. I also agree with your Lordship in the Chair as to the procedural steps that should be taken with a view to considering whether a declaration of incompatibility can and should be made.