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.
“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: http://www.gov.scot/Publications/2016/12/9972
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: http://www.gov.scot/Publications/2016/03/3627
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’: http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf
In 2015 amendments to raise the age of criminal responsibility were attempted at both Stage 2 and Stage 3 of the Criminal Justice (Scotland) Bill (now the 2016 Act) but failed. However, at Stage 2, the Cabinet Secretary for Justice made a commitment to establish an expert Advisory Group to consider the issue. An Advisory Group on the Minimum Age of Criminal Responsibility was set up in autumn 2015 and a report published in 2016 which recommended raising the age of criminal responsibility to 12.
In 2016 UK was examined by the United Nations Committee on the Rights of the Child which expressed concerns about the age of criminal responsibility and called for the age to be raised.
The Age of Criminal Responsibility (Scotland) Act Bill was presented to the Scottish Parliament in March 2018. The main purpose of the Bill was to raise the age of criminal responsibility from 8 to 12 and in doing so align it with the minimum age for criminal prosecution.
The Bill was designed to reflect Scotland’s progressive commitment to international human rights standards and to ensure that children were not stigmatised by being criminalised at a young age or disadvantaged by having criminal convictions at an early age which then need to be disclosed when they became adults. An age of criminal responsibility of 8 was also contrary to the international reputation and aspirations of Scotland. The Children’s Hearings System in Scotland is unique and internationally recognised as providing a child-centred approach. The Scottish Government is also committed to a policy of ‘Getting It Right For Every Child’.
In May 2019 the Bill was passed unanimously by the Scottish Parliament. It received Royal Assent on 11 June 2019.
Once implemented, the Act will raise the age of criminal responsibility in Scotland from 8 to 12. Additionally, it will provide certain safeguards to ensure that harmful behaviour by children under 12 can be responded appropriately and with the well-being of a child being a primary consideration.