Lord Advocate’s powers within scope of UNCRC
- Commissioner intervened in first ever UNCRC Act case to be determined
- High Court ruled that Lord Advocate’s power to prosecute children is within scope of the Act
In the first ever UNCRC Act case, the High Court in Edinburgh has ruled that the Lord Advocate’s power to prosecute children is within the scope of the UNCRC (Incorporation) (Scotland) Act 2024.
The Lord Advocate referred the question to the Court, seeking clarity on the proper interpretation of the Act. While accepting that on one interpretation the Lord Advocate’s prosecutorial functions are covered by the Act, the Crown’s primary position was that the Act does not itself oblige the Lord Advocate to act compatibly with the UNCRC requirements. The Commissioner intervened to make the argument that the Court should interpret the 2024 Act to enable decisions to prosecute children to be challenged on UNCRC grounds.
We are pleased that the Court ruled that when deciding upon and proceeding with a prosecution, the Lord Advocate is exercising a “relevant function” in terms of section 6(1) of the UNCRC Act. This was clearly the intention of the Scottish Parliament when passing the legislation.
This was an important case, the impact of which will be significant. The judgment means that all future 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. The Commissioner considered it essential to exercise her statutory power to intervene to defend the scope of the UNCRC Act and the intention of the Scottish Parliament.
We are grateful to the Court for their careful consideration of the issues and to our counsel James Mure KC and Gareth Reid, for their advice and able presentation of the Commissioner’s case.
UPDATE
On 9 April 2025, the High Court refused permission to appeal the judgment to the Supreme Court. The issue was whether the Court had restricted the general need to observe the requirements of the UNCRC to trial diets.
Our position was that it was clear when reading the judgment that the court did not intend to restrict its effect to the trial diets only. The Lord Advocate took a similar position.
In its statement of reasons for refusing leave to appeal, the Court has confirmed the general requirement that the privacy rights of child accused must be “fully respected at all stages of the proceedings” (Art 40 UNCRC).
This means that “while there can be exceptions to the presumption that child justice hearings are to be conducted behind closed doors”, the Court has concluded and reiterated that “…in principle, they should be”.
We understand the Crown has issued instructions to that effect to prosecutors (though we have not seen the terms of those instructions).
The Court’s Statement of Reasons are not published on the Scottish Courts and Tribunals Service website, but extracts are quoted here with permission.