Article 40 of the UNCRC says that when a child or young person gets legal help, they should get it without being discriminated against in any way. Their best interests must be considered.
Being tried for a crime
Children and young people have the same rights when being tried as adults do. Like all people who are accused of breaking the law, they have the right to be presumed innocent until proven guilty. All their legal rights should be upheld while they are being tried.
Children and young people also have the right to privacy while they are being tried, and this should be respected by everyone. The media shouldn’t publish stories or information that could violate this right.
Any young person who is tried in a court should be treated without discrimination, and care should be taken to make sure this is the case. People who need a translator in court – including those with disabilities – should have access to one.
A minimum age
The UNCRC says that there should be an age below which people cannot be tried as a criminal.
In Scotland, people under 12 cannot be tried as criminals. However, this is below the UN’s minimum acceptable standard, which is for nobody under 14 to be tried in this way.
A part in the process
The UNCRC says that young people should have some say in how the justice system works for people their age. This can involve participating in helping prevent crimes from happening— perhaps by creating community resources for local people to use.
The right to a fair trial
Article 40 of the UNCRC says that, wherever possible, children in conflict with the law should not be dealt with in formal judicial proceeding― legal proceedings carried out in a court of law.
However, where this can’t be avoided, children should always be dealt with in specialist child settings. This includes Scotland’s Children’s Hearing System, which is a child-centred system where decisions are made that consider a child’s best interests and welfare.
The Children’s Hearing System deals with children who are suspected of committing crimes, as well as children who need care and protection. It treats them all in the same way.
One of the reasons this is so important is so that children have a fair trial.
Everyone has the right to a fair trial, whatever their age.
For children, this includes:
The right to be presumed innocent until proven guilty
Children have the right to be assumed innocent of a crime until the prosecution – whoever brought a case against them to court – has proven they are guilty of it.
The right to privacy while being tried
While a child is being tried, the media shouldn’t publish any information that might lead to them being identified by members of the public. This would include their name or address.
The right to effectively participate in their trial
A child must be able to follow their trial and understand what’s going on. They must also be able to express their views, and the judge must properly take their views into account.
All of these rights are set out in Article 40 of the UNCRC.
More in the Rights questions and answers section
Relevant General Comments
Some General Comments that are relevant to Article 40 are:
- General Comment 8, on the right to protection from corporal punishment and other cruel and degrading forms of punishment,
- General Comment 10, on children’s rights in juvenile justice, and
- General Comment 24, on children’s rights in the child justice system.
Days of General Discussion
The UN Committee on the Rights of the Child facilitates Days of General Discussion where experts from around the world can discuss a child rights issue in detail. The reports of their discussions are a helpful tool to understand how the UNCRC should be interpreted.
Some Days of General Discussion relevant to Article 40 are: