References by HMA to the High Court of Judiciary in the summary prosecutions by the Procurator Fiscal Dundee against JH & LL and the Commissioner for Children and Young People in Scotland (High Court of Justiciary) [2025] HCJAC 12 (20 February 2025)

References by HMA to the High Court of Judiciary in the summary prosecutions by the Procurator Fiscal Dundee against JH & LL and the Commissioner for Children and Young People in Scotland (High Court of Justiciary) [2025] HCJAC 12 (20 February 2025)

Until the outstanding amendments in the Children (Care and Justice) (Scotland) Act 2024 come into force, the definition of 'child' for the purposes of section 142 of the Criminal Procedure (Scotland) Act 1995 remains a person under 16 years of age, except as provided in the transitional provisions. The previous opinion's obiter remarks at paragraphs [11] and [52] should be read accordingly.

Citation
[2025] HCJAC 12
Parties
Prosecutor: The Procurator Fiscal, Dundee; Accused: JH; Accused: LL; Intervener: Commissioner for Children and Young People in Scotland
Jurisdiction
Scotland
Judgment Date
20 February 2025
Procedural Posture
Reference Under Section 288 Ab(4) of the Criminal Procedure (scotland) Act 1995 / Supplementary Opinion Following Identification of Legal Error in Previous Opinion
Outcome
supplementary opinion issued to correct legal error in previous opinion; clarification provided for future reference
Legal Topics
Definition of Child, Statutory Interpretation, Transitional Provisions, UNCRC Application
Criminal Law Child Law Definition of Child Statutory Interpretation Transitional Provisions UNCRC Application

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Parties

The Procurator Fiscal, Dundee

Prosecutor

JH

Accused

LL

Accused

Commissioner for Children and Young People in Scotland

Intervener

Procedural Posture

Reference Under Section 288 Ab(4) of the Criminal Procedure (scotland) Act 1995 / Supplementary Opinion Following Identification of Legal Error in Previous Opinion

Legal Issues

  1. 1 What is the correct statutory definition of 'child' for the purposes of section 142 of the Criminal Procedure (Scotland) Act 1995 in light of recent legislative amendments and transitional provisions?
  2. 2 How should the previous opinion's obiter remarks regarding the definition of 'child' be read in light of the current law?

Ratio Decidendi

Until the outstanding amendments in the Children (Care and Justice) (Scotland) Act 2024 come into force, the definition of 'child' for the purposes of section 142 of the Criminal Procedure (Scotland) Act 1995 remains a person under 16 years of age, except as provided in the transitional provisions. The previous opinion's obiter remarks at paragraphs [11] and [52] should be read accordingly.

Court Disposition

supplementary opinion issued to correct legal error in previous opinion; clarification provided for future reference

Orders

  • Paragraphs [11] and [52] of the opinion issued on 17 January 2025 should be read as clarified in this supplementary opinion.
  • Courts and practitioners are to apply the statutory definition of 'child' as currently in force, subject to transitional provisions.