Article 40

I have the right to get legal help and to be treated fairly if I have been accused of breaking the law.

Article 40 of the UNCRC says that when a child or young person gets legal help, they should get it without being discriminated against in any way. Their best interests must be considered.

Being tried for a crime

Children and young people have the same rights when being tried as adults do. Like all people who are accused of breaking the law, they have the right to be presumed innocent until proven guilty. All their legal rights should be upheld while they are being tried.

Children and young people also have the right to privacy while they are being tried, and this should be respected by everyone. The media shouldn’t publish stories or information that could violate this right.

Any young person who is tried in a court should be treated without discrimination, and care should be taken to make sure this is the case. People who need a translator in court – including those with disabilities – should have access to one.

A minimum age

The UNCRC says that there should be an age below which people cannot be tried as a criminal.

In Scotland, people under 12 cannot be tried as criminals. However, this is below the UN’s minimum acceptable standard, which is for nobody under 14 to be tried in this way.

A part in the process

The UNCRC says that young people should have some say in how the justice system works for people their age. This can involve participating in helping prevent crimes from happening perhaps by creating community resources for local people to use.

Related articles

Article 16

Children and young people have the right to privacy while a trial is taking place.

Article 37

Children and young people's rights in detention or prison are covered by Article 37.

Full text

This article is a simplified version of Article 40 of the UNCRC. The full text of the Article can be found below:

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings.
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.


Youth and Criminal Justice in Scotland: The young person's journey

This interactive resource from the Centre for Youth and Criminal Justice explains the different journeys a young person can take after being accused of an offence.

4 great videos that explain your rights at court

Watch videos from the European Union Agency for Fundamental Rights that explain your rights at court.