Avoiding prosecution of child offenders can prevent future harm – Lord Advocate

Avoiding the prosecution of child criminals is “often the most effective” option to prevent crime, Scotland’s top law officer has said.

Dorothy Bain appeared before MSPs on Wednesday as she was questioned over whether the criminal justice system is prioritising young criminals over victims of rape.

The Lord Advocate insisted children are regularly prosecuted for serious offences, including sexual crimes.

Speaking at the Citizen Participation and Public Petitions Committee, independent MSP Fergus Ewing said members of the public had raised concerns to MSPs that those under 16 guilty of rape are escaping punishment.

He said: “The feeling is, I think, that this is still something where those people charged with the most serious offence of rape end up being treated not in the criminal justice system, but in a more lenient way.

“From the victim’s point of view, one can readily understand how much anguish that must cause, especially in the most serious cases.”

Ms Bain said children have to be treated differently to adults in the criminal justice system but can still face prosecution.

She said it would be up to the Crown Office and the Scottish Children’s Reporter Administration on what action a child accused of rape would face.

The Lord Advocate said she had issued fresh guidance on diversion from prosecuting that put the rights of victims “right at its heart”.

She said: “In relation to diversion, I think it is important to understand that it is a long-term tool for public protection and the alternative to prosecution, namely diversion, is not a soft option, and it is actually often the most effective response for preventing future harm.”

Ms Bain said that in 10 cases subject to the new guidelines, only two had resulted in prosecution being avoided.

She added diversions for the prosecution of rape committed by adults was only seen in “exceptional circumstances”.

The Lord Advocate said while the presumption is for all children not to be prosecuted “that is not to say that a child cannot and should never be prosecuted”.

She went on: “The more seriously offending the more likely it is that the offence is prosecuted in court, in particular, given the seriousness of the offence of rape and other sexual offending and the impact of such offending on victims, referral to the reporter or diversion from prosecution for such offences will only be appropriate in certain circumstances.”

Ms Bain said she is “deeply concerned” about a rise in reported sexual crimes and crimes committed by children.

She insisted children who commit crimes face serious consequences, adding a “significant number” have been prosecuted in Scotland over the last five years.

Figures from the Scottish Government released earlier this month show the proportion of under-16s committing violent crime has surged from 8% in 2021/22 to 31% in 2023/24.

Referencing the figures, Mr Ewing said: “The sense I get is that violent crime by under 16-year-olds, by children, is on the rise and that, in turn, suggests, perhaps reflecting what many constituents tell me, that punishment is now a soft option and it is not a deterrent, and that is why some youngsters think that they can commit crime, even serious crime.”

Tory MSP Jackson Carlaw, who convenes the committee, said MSPs had been told young victims often feel their rights are being “brushed aside” in favour of those accused of crimes.

Alistair Hogg, head of practice and policy at the Scottish Children’s Reporter Administration, said there is a “familiar perception” that child victims are being given less support than those committing crimes.

He told the committee: “Now it is a perception. It may not, in fact, be the case, but it might be.

“But what is important is that that is the perception and that needs to change.”

Justice Secretary Angela Constance, who also appeared before the committee, said referrals to the Children’s Reporter around offences decreased by 15% in the last year, while serious assaults by 11 to 18-year-olds had fallen by 27% in five years.

She admitted “more needs to be done”, but said the vast majority of children are law abiding.

She added: “It’s important to say that we continue to live in a safe country, that the long-term trends for offending, overall, including youth offending, is going on a downward trajectory.”

But she said there is “growing concern” around “online harms”, which she said are “spilling” into Scotland schools and the wider community.