Statement of Prosecution Policy - Diversion and Referral to the Principal Reporter in rape and other solemn level sexual offences where the accused is a child
Introduction
This statement of prosecution policy should be followed when considering whether a child, who has been reported1 to COPFS for rape or other solemn level sexual offending,2 should be:
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offered diversion – an alternative to prosecution where the reported individual is referred to a local authority or other partner agency, for support, treatment or other action, to address the underlying causes of their alleged behaviour; or
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referred to the Principal Reporter at the Scottish Children’s Reporter Administration (the “Reporter”) – an alternative to prosecution where the reported individual is referred to a national body responsible for protecting children at risk, where it is considered that the child may need compulsory legal measures of protection, guidance, treatment or control.3
For these purposes, a child is an individual under the age of 18 at the date of report to COPFS.
Violence against, and abusive behaviour towards, women and girls is well recognised as a worldwide endemic problem. Whilst women are more likely than men to be the victims of rape, and most perpetrators are men, it is also important to recognise that any individual, regardless of age, sex, or gender, can be affected by sexual violence and abuse.
The severe and lasting impact that sexual offending, child abuse and domestic abuse can have on victims and their families, in terms of their physical, mental, sexual, and reproductive health is recognised.
Given the seriousness of the offence of rape and other solemn level sexual offending, and the impact such offending has on victims, diversion or referral to the Reporter for such offences will only be appropriate in certain circumstances.
For the avoidance of doubt, for adults, diversion for rape and other solemn level sexual offending should only be used in exceptional circumstances where, for example, the reported individual has learning disabilities which diminish their culpability.4
The prosecutorial response in relation to children and adults needs to be different. The fundamental reason that someone under the age of 18 is treated as a child is because of the impact their age and maturity have on the assessment of their culpability, and the potential for them to change and be reintegrated into society, thus reducing the risk of reoffending. The Crown also has an obligation to act in a child rights-based manner which is compatible with the United Nations Convention on the Rights of the Child (UNCRC).
Diversion and referral to the Reporter offer opportunities to address needs that have contributed to offending behaviour, thus reducing the risk of re-offending. In cases where the reported individual is a child (the “reported child”), such intervention can be particularly effective. Where the individual has been diverted and intervention has been unsuccessful or ineffective, prosecution in court remains an option available to prosecutors.
The guidance below should be followed by prosecutors when determining whether diversion or referral to the Reporter for rape and other solemn level sexual offending is an appropriate prosecutorial response.
Communication with the victim
Views
When considering whether diversion or referral to the Reporter is appropriate in cases of rape and other solemn level sexual offending, the views of the victim should be sought at the earliest opportunity. The views of the victim will be one of a variety of factors which will be carefully considered before a decision is reached.
The views of the victim should be obtained before any decision is made to refer the reported child to the Reporter and, in the case of diversion, efforts should be made to obtain the victim’s views before offering the reported child an opportunity to be assessed as suitable for a diversion programme. Where it is not possible to obtain the views of the victim, for example due to their age or because it would not be in their best interests to do so, the reasons should be recorded in the case. Likewise, where attempts to obtain the views of the victim have been made but have proved unsuccessful, the details of all attempts made should be recorded in the case.
Where the victim is able to share their views, the following points should be explored:
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the impact of the offending on the victim
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the victim’s view of the risk posed by the reported child if they were offered diversion or referred to the Reporter
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the victim’s view of the need for a Non-Harassment Order
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how the victim feels about court proceedings and the process of giving evidence and the potential timescales for same.
Where the victim is being supported by an advocacy worker or support service, information can be sought from them, with the victim’s consent.
The views of the victim should be sought, regardless of whether the victim is an adult or a child. Where the victim is a child, the best interests of the child must be taken into account as a primary consideration, in accordance with Article 3.1 of the UNCRC and the views of the child, where appropriate, should be sought and given due weight in accordance with the age and maturity of the child, in accordance with Article 12 of the UNCRC, regardless of whether views are provided by a parent/carer.
When ascertaining the views of the victim on referral to the Reporter or a potential offer of diversion, it should be explained that if the reported child is referred to the Reporter or chooses to undertake a diversion programme, undertaking conditions or, where applicable, special conditions of bail will no longer apply.
In cases where diversion is being considered, it should be reiterated that final decisions on whether to prosecute are made at the end of the proposed programme of diversion. It should also be explained to the victim that if there is any evidence of further offending, or harassment / intimidation / interference with the victim, or other witnesses, whilst the reported child is undertaking the diversion programme, this should be reported to the police and the prosecutor can re-consider whether diversion is still appropriate, or the case should be prosecuted in court.
In cases where referral to the Reporter is being considered, it should be made clear to the victim that if the reported child is referred to the Reporter, that decision cannot be reconsidered. Once the reported child has been referred to the Reporter in relation to any offence, they cannot subsequently be prosecuted in relation to that offence.
The views of the victim will be one of a variety of factors which will be carefully considered before a decision is reached about the appropriate prosecutorial response in each case.
Communicating decisions
Where the decision has been taken to refer a case to the Reporter, the victim will be made aware of the referral.
Where the decision has been taken to offer diversion, personal details of the reported child will not be shared with the victim. However, the victim will be made aware of the following (where applicable) at the earliest opportunity:
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that the reported child has been offered the opportunity to take part in a diversion programme
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that the reported child has chosen to undertake a programme of diversion
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that where the reported child has chosen to undertake diversion, any undertaking conditions or special conditions of bail will no longer apply
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timescales for completion (including any extension)
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that the reported child has successfully completed the programme of diversion
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that the reported child has failed to engage with the programme of diversion
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a final decision on whether or not the reported child will be prosecuted.
The victim has the right to review, for the purposes of section 4(1) of the Victims and Witnesses (Scotland) Act 2014, the final decision not to prosecute.5
Decision making
Where a reported individual is a child, i.e. under 18 years of age, at the date of report to COPFS, the Crown has an obligation in terms of Article 3.1 of the UNCRC, to consider the best interests of the reported child as a primary consideration.
The best interests principle also applies to other children impacted by the proceedings, such as child victims and witnesses. There is no hierarchy of rights which requires that the best interests of a reported child should have greater weight than the best interests of a child victim or witness or the broader consideration of the public interest. Prosecutors must, therefore, analyse and weigh the rights of all those concerned and weigh them against the public interest in reaching a decision in the case.
The assessment of what is in the best interests of a reported child is not determinative of the prosecutorial decision in a case but is a necessary step in the decision-making process.
Assessment of the public interest will often involve consideration of competing interests, including the interests of the victim, the reported child, and the wider community. The factors, which are set out in the Prosecution Code, considered in assessing the public interest will vary according to the circumstances of each case.
In terms of Article 40(3)(b) of the UNCRC, alternatives to prosecution in court should be considered by prosecutors, which allow for the child’s reintegration into society, whenever appropriate and desirable. The United Nations Committee on the Rights of the Child emphasises this in General Comment Number 24 (on children’s rights in the criminal justice system) at para 16:
“Diversion6 should be the preferred manner of dealing with children in the majority of cases. States parties should continually extend the range of offences for which diversion is possible, including serious offences where appropriate…...Diversion should be an integral part of the child justice system, and, in accordance with art. 40(3)(b) of the Convention, children’s human rights and legal safeguards are to be fully respected and protected in all diversion processes and programmes.”
Presumptions
Prosecutors follow a rebuttable presumption against the prosecution of children in court for any type of offending, including solemn level sexual offending. Where a reported child is (1) under 16 but over the age of 12 or (2) aged 16 or 17 and subject to supervision, and the case is jointly reported to COPFS and the Reporter, the presumption is that such cases will be dealt with by the Reporter.
Prosecutors should, however, be mindful that in some instances, reporting of the offence to COPFS may occur when the reported child is close to turning 18 years of age. Referral to the Reporter at this stage may therefore be ineffective. In such circumstances, careful consideration should be given as to whether referral to the Reporter is the most appropriate available option, or whether diversion or prosecution should be considered.
Where the reported child is aged 16 or 17 and is not subject to supervision, diversion should be actively considered.
The presence of any of the following factors, or a combination of them, may indicate that diversion can be considered:
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referral to the Reporter is not appropriate due to the reported child’s age i.e. they are close to turning 18 years of age.
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the victim’s particular vulnerabilities, in tandem with their informed views, mean that participating in criminal proceedings, in any manner, would not be in their best interests or the public interest.
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the victim has expressed a desire for the reported child to be offered an alternative to prosecution.
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the offending involves similar aged children who are members of the same family, and/or who are otherwise in a consensual relationship, taking account of the views of the wider family.
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the prosecutor considers it appropriate to retain oversight of the case and the ability to prosecute, if required.
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the reported child has a clinical diagnosis of a relevant mental health condition or relevant additional support needs.
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a misunderstanding of, or need for education on, the issue of consent.
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the specific circumstances indicate that an early intervention may reduce the likelihood of further offending behaviour by the reported child.
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there has been a delay in the reporting of the offence and the reported individual is still a child and has not continued to offend in the intervening period.
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the reported child’s behaviour has not previously come to the attention of any authorities involved with the child or to the attention of the police.
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the reported child has since shown an insight into the offending behaviour and impact on the victim and has expressed a willingness to engage with appropriate services.
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any indication that the reported child has been criminally exploited.
The above list is not exhaustive, and each case must be considered on its own merits and its own facts.
Rebutting the presumptions
Whilst it will rarely be in a child’s best interests to be prosecuted, there will be occasions where an alternative to prosecution is not appropriate. The presumptions may, therefore, be rebutted where it is in the public interest, to prosecute the child.
The assessment of the public interest requires a balancing of the factors set out in the Prosecution Code, including the impact of the offence on any victim, but also the age and circumstances of the reported child.
This assessment must, however, be weighed against the following factors:
Gravity of the offence
It is recognised that all sexual offending is serious and can have a grave impact on victims.
The presence of any of the following factors may indicate that the offence should be prosecuted, and that the case is not suitable for diversion or referral to the Reporter:
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severe harm to the victim (including physical and psychological harm/trauma)
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repeated offences committed against the same victim
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evidence of the provision of alcohol or controlled substances with the intention of incapacitating the victim
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evidence the victim was criminally exploited by the reported individual, including online exploitation
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evidence of grooming
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the reported individual was in a position of power and particularly if the offence involved a breach of trust
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evidence of the use of
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force along with the use of violence,
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threats of violence, and/or
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coercion or coercive control
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evidence of the use of a weapon or other item to frighten or injure the victim
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evidence that the offence involved prolonged detention or was of a sustained nature
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evidence of a significant degree of planning of the offence
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evidence of deception to facilitate the offence
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evidence of the presence of others during the commission of the offence, especially children
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the victim was vulnerable, due to their age or other circumstances, including evidence that the victim was asleep or unconscious.
Domestic abuse
Where the offence involves domestic abuse, the presumption in favour of prosecution (and the presumption that proceedings will be taken in the Sheriff Court or High Court where the case involves violence or the threat of violence) set out in the Joint Protocol on domestic abuse applies where the reported individual is a child.
In such cases, the presumption in favour of prosecution must be carefully balanced against the rebuttable presumption against prosecution in court for all individuals under 18 years of age. Where a reported individual is a child, the presumption in favour of prosecution may be rebutted, when balanced against the best interests of the individual as a primary consideration under the UNCRC and/or consideration of the public interest.
When considering whether the presumption in favour of prosecution should be rebutted in cases where the reported individual is a child, careful consideration must be given to the surrounding circumstances of the offence, including the nature of the relationship between the individual and victim and the nature of the offence itself.
Ongoing concerns regarding the reported individual’s behaviour
The following factors may indicate that diversion or referral to the Reporter is not appropriate and that management of the reported individual’s behaviour via the court process is required:
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there are concerns about the behaviour of the individual and the potential for harm to themselves, the public or any other individual
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there is a course of conduct towards the victim and/or a pattern of behaviour towards multiple victims
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there is evidence of recent non-compliance with court orders
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there is significant concern that the victim is at risk of further harm
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there is evidence of escalating behaviour which is not being managed by any existing involvement with other agencies (including social work or the children’s hearing system).
When determining whether any of the above factors are present, the views of the victim about risk to their safety (where present) should be carefully considered.
Requirement for a Court Order
Diversion and referral to the Reporter will not be appropriate where it is necessary to secure an outcome which is contingent on a conviction, such as imposition of notification requirements (sexual offences), a Non-Harassment Order (“NHO”) or an Order for Lifelong Restriction.
Consideration of a NHO will be particularly relevant where the offence took place in the context of domestic offending.
Factors which would indicate that a NHO may be required (in both domestic and non-domestic offending) include:
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repeated contact or attempts to contact the victim
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a contravention of s1 of the Domestic Abuse (Scotland) Act 2018
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violence, threats of violence or coercion.
Factors which would indicate that notification requirements are required include:
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that the offending involved predatory behaviour, both in advance of any offence and subsequent to it
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attempts to secure secrecy by manipulation, coercion or deception
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exploitation of a vulnerable person (including children)
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bribery or blackmail
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evidence of grooming.
Final decisions in cases involving diversion or referral to the Reporter
In cases of rape or attempted rape, where it is considered that diversion or referral to the Reporter is the most appropriate outcome, the final decision will be taken by the most senior members of the Crown Counsel team.7
For all other cases of solemn level sexual offending, Crown Counsel’s instructions should be sought before a final decision is taken as to whether diversion or referral to the Reporter is the appropriate prosecutorial response.
Footnotes
1 Any reference to a “reported” individual in this policy, refers to an individual who is the subject of a reported case to COPFS, who is alleged to have committed an offence.
2 References to “solemn level sexual offending” in this policy refers to offences which would otherwise proceed at solemn level, i.e. would be heard before a jury in the Sheriff Court or in the High Court.
3 Further information on diversion and the Reporter can be located here.
4 Remembering that no action should be taken against individuals who lack criminal responsibility (s.51A Criminal Procedure (Scotland) Act 1995).
5 The Lord Advocate’s Rules: Review of a decision not to prosecute provides further information on a victim’s right to review.
6 In the General Comment, “diversion” refers to “measures referring children away from the judicial system, any time prior to or during the relevant proceedings”.
7 The Lord Advocate and Solicitor General are assisted in relation to High Court prosecution and Appeal work by Advocate Deputes who are known collectively as Crown Counsel.
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