Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
police interviewing a child at his home or in school in the presence of his/herparents or carers ought to remain the norm. This is so even if the child, and/orhis/her parents or carers, may decide to seek legal advice. If they do so, nodoubt the police may wait for that advice to be provided, whether by telephoneor otherwise, or they may invite the child and his/her parent or carer to thepolice station in order to provide that advice.6.3.30 The Review is, however, concerned with those more serious cases which arelikely to, and do, end up in court or become subject to other formal legalproceedings. In those cases, there are very strong arguments that a child under16 should not be able to waive the right of access to a lawyer; nor should thechild’s parents, carer or other responsible person be able to waive that right onbehalf of the child. Thus, as a generality, for any answers to be admissible asevidence, a child suspect under 16 must be provided with access to a lawyerprior to being interviewed. Where a child’s parent, carer or responsible personis present at the police station, he/she may be allowed to be present during thechild’s consultation with the solicitor, if that is what the child wants. Ofcourse, the child may refuse to heed, or even listen to, the advice given. If so,it will remain a matter for the court to determine whether what he/she says atinterview infringes his/her right to a fair trial.6.3.31 There is an argument that all children, as statutorily defined, should be treatedin the same way. After all, there is a considerable spectrum of maturity. Onthe other hand, the law already allows persons aged 16 and above added rightsand responsibilities in different fields. As a generality, if no more than that,220
persons of 16 years of age and over are of greater maturity and ought to have agreater understanding of their rights. They ought to be able, with appropriateassistance, to express fully coherent, informed views; that is to say to exercisetheir right to participate effectively in the proceedings. Accordingly, onbalance, for a child suspect aged 16 or 17, there should be greater latitude,given the greater degree of legal responsibility attached to persons of thoseages. There should still, however, be some added safeguards. The balancewhich the Review thinks it is appropriate to strike is that a 16 or 17 year oldshould be able to waive the right of access to a lawyer but only if his/herparent, carer or responsible person also agree to the waiver. Put another way,if the child wishes to waive his/her right, that cannot be done without theconsent of a parent, carer or responsible person. If a child suspect wants toexercise his/her right to legal advice, the parent, carer or responsible personshould not be able to waive that right on behalf of the child.6.3.32 There will no doubt be situations where a child suspect does not wish thepresence of his/her parent or responsible person; in other words, wishes towaive that particular right. As with the right to legal assistance, the Reviewdoes not believe that suspects under 16 should be able to waive that right. Itshould, however, be possible for a 16 or 17 year old to do so and it is notsuggested that the consent of any other person is required for this waiver. Butit should be made clear to the 16 or 17 year old suspect that if he/she doesdecline to seek the presence of his/her parent, carer or responsible person,he/she cannot waive the right of access to a lawyer. In that situation, legaladvice would be compulsory. It will again be for the child to decide whether221
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- Page 244 and 245: which does not hold when there is a
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police interviewing a child at his home or in school in the presence of his/herparents or carers ought to remain the norm. This is so even if the child, <strong>and</strong>/orhis/her parents or carers, may decide to seek legal advice. If they do so, nodoubt the police may wait for that advice to be provided, whether by telephoneor otherwise, or they may invite the child <strong>and</strong> his/her parent or carer to thepolice station in order to provide that advice.6.3.30 The Review is, however, concerned with those more serious cases which arelikely to, <strong>and</strong> do, end up in court or become subject to other formal legalproceedings. In those cases, there are very strong arguments that a child under16 should not be able to waive the right of access to a lawyer; nor should thechild’s parents, carer or other responsible person be able to waive that right onbehalf of the child. Thus, as a generality, for any answers to be admissible asevidence, a child suspect under 16 must be provided with access to a lawyerprior to being interviewed. Where a child’s parent, carer or responsible personis present at the police station, he/she may be allowed to be present during thechild’s consultation with the solicitor, if that is what the child wants. Ofcourse, the child may refuse to heed, or even listen to, the advice given. If so,it will remain a matter for the court to determine whether what he/she says atinterview infringes his/her right to a fair trial.6.3.31 There is an argument that all children, as statutorily defined, should be treatedin the same way. After all, there is a considerable spectrum of maturity. Onthe other h<strong>and</strong>, the law already allows persons aged 16 <strong>and</strong> above added rights<strong>and</strong> responsibilities in different fields. As a generality, if no more than that,220
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