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Future Decisions to prosecute children must meet UNCRC Act standards
Created: 31/01/2025In 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 arguing that the UNCRC Act could not be interpreted so as to apply to the exercise of her prosecutorial functions. The Commissioner intervened to argue that the Court should interpret the 2024 Act to enable decisions to prosecute children to be challenged on UNCRC grounds.
The Children and Young People’s Commissioner Scotland said:
"We are pleased that the Court accepted our arguments 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."