In My Opinion: Francis Shennan: Scotland ‘ahead of the game’ as debate continues about under-age sex

SO, the Scottish Mail on Sunday “can reveal” that “despite dozens of cases” of sex between 13 to 15-year-olds “none has resulted in prosecution”.

This was the basis for its splash yesterday which, under the headline, Green light for sex at 13, declared: “The age of consent has been ‘effectively lowered to 13’ as prosecutors turn a blind eye to underage sex.”

Spokespeople for the Catholic Church in Scotland and the Family Education Trust duly provided the outrage.

The Mail on Sunday reported that there was “fierce debate last night over how to address society’s concerns about underage sex without turning young people into criminals”.

Read on, though. Eleven paragraphs into a 16-paragraph story we read that, between December 2010 and November 2012, “43 charges” were reported to the Crown Office and Procurator Fiscal Service. None of the “33 youngsters involved” was prosecuted.

However, 39 of the 43 charges – or 90.7 per cent – were referred to the Children’s Reporter.

Who? The Reporter to the Children’s Panel organises Children’s Hearings in each local authority area. The idea is to take children out of the criminal justice system as far as possible.

So, only children under 16,  charged with the most serious offences, will appear in court. Cases of murder and rape, for example, can be tried only by the High Court of Justiciary.

The language of the Children’s Hearing system is intended to reflect the desire to keep kids out of the criminal court system. There are no ‘prosecutions’, there are no findings of ‘guilty’ or ‘not guilty’ and they do not receive a criminal record.

It means, therefore, that Scotland has a system in place for addressing “society’s concerns about underage sex without turning young people into criminals”.

This system was introduced by the Social Work (Scotland) Act in 1968, some 45 years ago.

It is unique to Scotland and it is based on the recommendations of the Kilbrandon Report. This found that children who came into the criminal justice system, whether or not they were offenders, were in need of social and personal care.

The Criminal Justice Social Work Development Centre, part of the University of Edinburgh, describes on its website how children come into contact with the system:

“There are several grounds for referring a child to the Children’s Hearing System, including: being beyond the control of their parents or carers; at risk of moral danger; has been the victim of physical or sexual abuse; is likely to suffer serious harm through lack of care; is misusing alcohol, drugs or solvents; is failing to attend school; is subject to an antisocial behaviour order and the Sheriff requires the case to be referred to a Hearing; or has committed an offence.

“Sources of referrals are usually the police or social work, but other agencies, such as education or health can also make a referral. It is also possible for any member of the public or even the child themselves to make a referral. In each case the child will be referred to the Reporter to the Children’s Panel, an independent official, who will make an initial investigation before deciding what, if any, action is necessary in the child’s interests.”

This would seem to answer the problem the Scottish MoS splashed on. It would seem that Scotland is ahead of the game.

That is not the language of a Sunday splash, though, is it? Much better to say prosecutors are turning a blind eye to underage sex, even if it means turning a blind eye to a system that seems able to deal with it.

Francis Shennan is director of and Visiting Lecturer in journalism and law at Westminster, Stirling and Strathclyde Universities.