S v Miller

JurisdictionScotland
Judgment Date30 March 2001
Date30 March 2001
Docket NumberNo 76
CourtCourt of Session (Inner House - First Division)

FIRST DIVISION

No 76
S
and
MILLER

Administration of justice—Children's hearing—Unpaid lay members without security of tenure—Whether “independent and impartial tribunal”—European Convention on Human Rights, art 6(1)1

Children and young persons—Children's hearing—Whether proceedings involve determination of a criminal charge against a child—Whether proceedings involve determination of the civil rights and obligations of a child—Whether children's hearing an “independent and impartial tribunal”—Provision of reports and documents to child—Non-availability of legal aid—Whether supervision requirement specifying secure accommodation detention “for the purpose of educational supervision”—Declaration of incompatibility—Children (Scotland) Act 1995 (cap 36), sec 52(2)(i)—European Convention on Human Rights, arts 5, 6(1), 6(3)1

S was born in 1984. On 31 October 1999 S and his father were involved in an incident in which his father was so badly injured that he later died. In the course of the same incident another man, L, was also injured. S was detained and later arrested and charged with assaulting L. On 1 November social workers took S from the police station to a place of safety. The procurator fiscal decided not to proceed with the charge against S. The reporter arranged a children's hearing which took place on 2 November. S was present at the hearing, and had had the benefit of legal advice from a solicitor, but he was not actually represented at the hearing. The hearing directed the reporter to arrange a further hearing which was arranged for 22 December. S and his mother were advised that the grounds of referral were that S had committed an offence, namely the assault of L on 31 October. Again S had had the benefit of legal advice and assistance from a solicitor but his solicitor did not attend the hearing or represent him at it. S and his mother did not accept the ground for referral and the hearing directed the reporter to apply to the sheriff for a finding as to whether the ground was established. A hearing was fixed before the sheriff on 12 January 2000. S and his mother attended. S had legal aid and was represented by a solicitor. The hearing was adjourned and at the adjourned hearing on 14 February S's solicitor tendered a minute on S's behalf raising a devolution issue. S contended that a devolution issue arose because of failure on the part of the Scottish Ministers to introduce legislation to ensure that he was not deprived of his rights under the European Convention on Human Rights and Fundamental Freedoms. The sheriff referred the case to the Court of Session. The questions in the reference to the court were (1) whether art 6 of the European Convention on Human Rights and Fundamental Freedoms applied to proceedings before a children's hearing; (2) whether a hearing before a children's hearing in respect of a referral under sec 52(2)(i) of the 1995 Act amounted to proceedings for the determination of a criminal charge to which art 6(1) and art 6(3) applied, and if so whether the structure of the hearing system complied with art 6 in its application to criminal proceedings; (3) whether a hearing before a children's hearing in respect of a referral under sec 52(2)(i) of the 1995 Act amounted to proceedings for the determination of the civil rights and obligations of the child, and if so whether the structure of the hearing system complied with art 6 in its application to civil proceedings;

and (4) whether art 5 of the Convention applied to an order relative to secure accommodation granted by a hearing, and if so whether the structure of the hearing system complied with art 5 in relation to any order made specifying secure accommodation.

Held (1) that once the procurator fiscal has decided not to proceed with a charge against a child, so that there is no longer any possibility of proceedings resulting in a penalty, any subsequent proceedings under the 1995 Act are not criminal for the purposes of art 6, because although the reporter does intend to show that the child committed an offence, this is not for the purpose of punishing him but in order to establish a basis for taking appropriate measures for his welfare, and the child has not accordingly been charged with a criminal offence (per the Lord President (Rodger) p 989H, per Lord Penrose pp 1012E–1018H, per Lord Macfadyen p 1050G); (2) (the respondents having conceded that a children's hearing was proceedings for the determination of a child's civil rights and obligations to which art 6 applied) that although the specific guarantees in art 6(3) did not apply to children's hearing proceedings because the proceedings were not criminal, these specific guarantees related to aspects of a fair trial and had to be considered within the framework of art 6(1) (per the Lord President (Rodger) p 990B, per Lord Penrose p 1020C–E, per Lord Macfadyen p 1052B); (3) that where members of a hearing are unpaid lay people appointed and trained with the aim of providing assistance to children, the mere fact that they do not enjoy the kind of security of tenure associated with judges of courts of the classic kind does not mean that they are not independent and accordingly the hearings constitute an independent tribunal in terms of art 6(1) (per the Lord President (Rodger) pp 990H–992B, per Lord Penrose pp 1024H–1025A, per Lord Macfadyen p 1057C); (4) that a child ought to be entitled to free representation in proceedings before a children's hearing where such representation was required in the interests of justice so that they could present their case effectively, and that although a child would not always be entitled to free representation, factors including deprivation of liberty, age and ability of the child and inability of the child to affect the outcome of the hearing were relevant considerations, and in S's case there were substantial grounds for considering that his right to a fair trial in terms of art 6(1) required that he should have the right to apply for such legal aid (per the Lord President (Rodger) pp 995B–999A, per Lord Penrose pp 1024H–1028E, per Lord Macfadyen pp 1054H–1056D; (5) that because the court was considering making a declaration of incompatibility in respect of the provisions relating to legal aid, it was appropriate that notice be given to the Advocate General (per the Lord President (Rodger) pp 999D–1000G, per Lord Penrose p 1028F, per Lord Macfadyen p 1056F); (6) that although an order specifying that a child be placed and kept in secure accommodation involved a deprivation of liberty, the order was designed to promote the child's education and was wholly consistent with detention for the purpose of educational supervision within the meaning of art 5(1)(d) of the Convention and was compatible with it (per the Lord President (Rodger) pp 1000I–1001G, per Lord Penrose pp 1028I–1029A, per Lord Macfadyen pp 1057H–1058D; and (7) that the structure of the children's hearing system complied with the requirements of art 6 in all matters except legal aid; it did not comply when legal aid, in a form which allowed legal representation, could not be available to the child where the child was unable to represent itself properly and satisfactorily at the hearing (p 1059C).

Observed (1) that since the reporter had issued guidance to all reporters which would mean that reports and papers provided to the chairman and members of the hearing would also be given to the child, it was not necessary to consider whether the absence of a provision in the 1995 Act or the Children's Hearing Rules requiring the reporter to provide the child with such documents was incompatible with art 6(1) (per the Lord President (Rodger) pp 992B–993B, per Lord Penrose pp 1023D–1024A, per Lord Macfadyen p 1056G); (2) that if any previous decision of the court had involved a breach of art 6 the court would require to depart from it and adopt an approach which was compatible with art 6 (per the Lord President (Rodger) p 993C–E); (3) that in considering whether proceedings are to be regarded as involving the determination of a criminal charge against a person it is necessary to adopt an autonomous approach and to consider first whether domestic law regarded the person in question, placed in the position in which he had been placed, as a person charged with a criminal offence, and if domestic law did not regard him as such, it was then necessary to consider secondly whether the situation in which the person concerned found himself was of such a nature that he ought objectively for the purposes of the Convention to be regarded as charged with a criminal offence having regard to the nature of the allegation and the nature of the proceedings in which the allegation was made, and if objectively he would not clearly be regarded as such, it was then necessary to consider thirdly the severity of the punishment the person concerned risked incurring (per Lord Macfadyen pp 1037D–1045F).

O v Rae 1993 SLT 570 considered

S was referred by the reporter to a children's hearing, the ground for referral being that he had committed the offence of assault. S and his mother did not accept the grounds, and the hearing then directed the reporter to apply to the sheriff for a finding as to whether the ground for referral was established. On 12 January 2000 the sheriff adjourned the hearing until 14 February 2000. On that date S tendered a minute raising a devolution issue. On 17 August 2000 the sheriff referred the case to the Court of Session. The respondent was the principal reporter.

Cases referred to:

Adolf v AustriaHRC Series A No 49 (1982); 4 EHRR 313

Aerts v Belgium (Application 25357/94) RJD 1998–V 1939 (1998); 29 EHRR 50

Airey v IrelandHRC Series A No 32 (1979); 2 EHRR 305

Albert and Le Compte v BelgiumHRC Series A No 58 (1983); 5 EHRR 533

Ashingdane v United KingdomHRC Series A No 93 (1985); 7 EHRR 528

B v Chief Constable of Avon and Somerset ConstabularyWLR[2001] 1 WLR 340

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