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xFirst legal case decided under UNCRC Act
Date: 22nd January 2025
Category:
General measures of implementation
The High Court in Edinburgh has ruled that the Lord Advocate's power to prosecute children falls within the scope of the UNCRC (Incorporation) (Scotland) Act 2024.
“Relevant functions” under the UNCRC Act
In this important first case, the Lord Advocate argued that her powers to prosecute children were not a "relevant function" under Section 6 of the UNCRC Act. The Children and Young People’s Commissioner Scotland (CYPCS) intervened, asserting that prosecutorial decisions about children should be subject to the Act and able to be challenged on children's rights grounds.
Ultimately, the High Court agreed with CYPCS, confirming that when the Lord Advocate decides whether to prosecute a child, she is exercising a "relevant function" within the meaning of the Act. The Court said it was clearly the intention of the Scottish Parliament that prosecution decisions by the Lord Advocate would be covered. The Court said this was also clearly the intention of Scottish Government, as evidenced through Ministers’ statements made at the time.
This decision confirms that decisions to prosecute children must meet the standards set out in the UNCRC Act, and may be challenged in court if they fail to do so, setting an important precedent for future cases.
Background to the case
The reference arose from two separate proceedings, each involving a 17-year-old child who had been accused of several offences. Legal representatives for the children argued that their rights under the UNCRC (namely Articles 3, 12, and 40) had been breached due to procedural aspects of their cases. This included that there had been no measures to restrict public access to procedural hearings and that the children’s views had not been taken into account in relation to their prosecution.
The children had not attended all of the procedural hearings in question. Some of these had also taken place before the entry into force of the UNCRC Act on 16th July 2024.
While the Court held that there was no breach in initiating the prosecutions in the underlying cases, it noted potential violations could arise if a child attended a procedural hearing that was open to the public.