Home Law International Handbook of Juvenile Justice
POLICING AND JUVENILES
Anyone can make a referral to the CHS, but in reality the police are the key gatekeepers to the juvenile justice system in Scotland. Prior to the introduction of the WSA, any child aged between 8 and 15 who was charged with committing an offence had to be referred to the CHS (although those who committed serious crimes would also be jointly referred to the Scottish prosecution service). Evidence from Scottish studies has consistently shown that between a third and a half of young people aged between 11 and 15 have experienced some form of adversarial police contact (Anderson et al. 1994; Jamieson et al. 1999; McAra and McVie 2005). However, most of this tends to be fairly low level and only a fraction of these are ever formally charged by the police and reported to the CHS. For example, the ESYTC found that at age 15, 46 % of young people reported having adversarial police contact during the previous year but only 8.5 %> believed they had been ‘charged’ with committing a crime (McAra and McVie 2005). In addition, only 45 % of those who believed they had been charged by the police were actually referred to the CHS.
Since the implementation of the WSA, the police have continued to be primary gatekeepers to the juvenile justice system, but practice varies considerably across different local authorities and the actual pathways that individual young people take can be quite diverse (Murray et al. 2015). In most local authorities, the police tend to be the initial decision makers and may indeed deal with a young person who has committed an offence directly; for example, in the form of a warning (formal or informal), a restorative justice warning or a fixed penalty notice. They also retain the power to make a referral to the CHS (and the prosecution system), although as noted in the previous section, such referrals have been declining year on year. Increasingly, the police will refer the child to a multiagency screening meeting which is attended by various practitioners (including health, social work, education and community safety) and a joint decision will be taken on the most appropriate agency to take the lead. This reflects the welfare- based perspective of the GIRFEC model of juvenile justice which aims to divert young people from formal justice interventions and provide appropriate supports to reduce future reoffending.
There is another aspect to the policing of young people in Scotland that is less in keeping with the GIRFEC model and, until very recently, the police applied it without scrutiny or transparency. Research by Murray (2014) highlighted a marked increase in the use of stop and search in Scotland, particularly directed at children and young people, between 2005 and 2010 (although some of this rise was almost certainly due to better recording practices). By 2012/13, however, the rate of stop and search per capita was seven times greater in Scotland than in England and Wales despite very similar demands on the police and near parity in terms of legal capacity (Lennon and Murray 2016). This difference was largely accounted for by the unrestrained use of non-statutory stop and search in Scotland, i.e. searches that did not require legal suspicion, a practice that was prohibited in England and Wales in 1990. Murray (2014) found that non-statutory stop and search was disproportionately targeted against children and young people, some as young as four and five, and in some parts of Scotland (predominantly the West) there were more searches of young people per capita than there were young people living in the area. She concluded that “the sharp discrepancy between the age distribution of searches and persons charged, together with low detection rates, suggests that young people may be over-policed in some parts of Scotland, that is, subject to excessive levels of stop and search, over and above the probability of offending” (2014: 26).
Murray’s findings resonate with a darker side of policing in Scotland that is contra to the WSA principles and is not dissimilar to that of many other jurisdictions. In fact, Scottish police have traditionally enjoyed a high level of discretion in their dealings with young people and this has led to some inequality in terms of their treatment of particular groups. McAra and McVie (2005) found that working practices and rules of suspicion tended to lead to discrimination against certain types of young people, most especially those from low socio-economic status backgrounds and those who were more available for policing by virtue of hanging around the streets. However, the most powerful predictor of a police warning or charge was prior police contact, which highlighted their tendency to concentrate on a population of ‘usual suspects’ driven by stereotypical notions of suspiciousness. Studies such as these have led to a tightening up on police procedures for dealing with the detention, arrest and prosecution of children and young people. For example, the Lord Advocate has issued guidelines to the police regarding the reporting of offences by children (Mulholland 2014) and a new agreement on ‘joint reporting’ has set out clearer criteria for and emphasis on the importance of clear communication and information sharing (COPFS 2015). In addition, the Scottish Government has accepted the recommendations of an independent Advisory Group to legislate against the use of non-statutory stop and search and place far greater restrictions on the searching of children and young people (see Scott 2015). However, this aspect of the intersecting role between the police, CHS and the adult criminal justice system is under-researched.
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