Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

2.3  Capacity and the courts

One important consideration when looking at capacity is the age at which a child acquires the capacity to commit a criminal offence. This is often referred to as the age of criminal responsibility. Until recently in Scotland at the age of eight years, a child was deemed to be responsible for their criminal actions. They could not however be formally prosecuted under the Criminal Justice and Licensing (Scotland) Act 2010 until they reached the age of 12 (but not for any offence committed prior to reaching that age). Growing concerns were expressed over the age of eight, in particular in relation to the rights of children and the strategy for Scotland to be seen as leading the way in areas such as human rights, equality and social justice. These concerns resulted in change. Box 3 outlines the Scottish Government’s reasons for the change, which were published on 1 December 2016.

Box 3 Changing the age of criminal responsibility

Minimum age of criminal responsibility

Move to increase age from eight to 12 years old.

The minimum age of criminal responsibility in Scotland is to be increased to 12, under plans set out by the Minister for Childcare & Early Years.

At eight years old, Scotland currently has the lowest minimum age of criminal responsibility in Europe and this move will bring the country in line with UN and international standards. The minimum age in England and Wales is 10.

The increase will include safeguards to allow the police to deal with and investigate the most serious and exceptional offences involving under 12s.

Earlier this year, a Scottish Government consultation found 95% of respondents supported an increase to 12 or above. Mark McDonald today announced plans for legislation that would raise the age in a statement to Parliament.

He said:

“The case for change is clear and compelling. Having the lowest minimum age of criminal responsibility in Europe does not match with our progressive approach to youth justice and ambitions to give children the best start in life.

“In 2010 we raised the age of criminal prosecution to 12 – meaning no one under the age of 12 will be prosecuted or sentenced in the criminal courts and are instead dealt with through the Children’s Hearing System.

“Raising the age of criminal responsibility will mean people no longer face potentially damaging and life-altering consequences, such as a criminal record, for events that took place when they were a young child.

“I recognise that in exceptional cases appropriate safeguards are needed. Therefore we will ensure police powers to investigate harmful behaviour by under 12s, while there will be risk management and monitoring measures for those who need it.”


The intention is to bring forward a bill, with the change implemented in time for Scotland’s Year of Young People in 2018.

A consultation exercise took place from March to June with 95% supporting an increase to 12 or above. Respondents included the police, prosecutors, victims groups and Who Cares? Scotland. The consultation analysis published today:

Further engagement events with more than 200 children and young people, including victims, took place over June and July also found support for the increase.

The decision to raise the age was informed by the Minimum Age of Criminal Responsibility Advisory Group, which included those working with children and with victims, as well as the Police and Crown Office. It reported in March and a key recommendation was to raise the minimum age to 12, accompanied by safeguards:

The UN Committee on the Rights of the Child has stated that setting the age of criminal responsibility below 12 is considered ‘not to be internationally acceptable’:

From the Scottish Government website, 1 December 2016

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