Age of Criminal Responsibility (Scotland) Act 2019: learning event 26 January 2023 - key findings

Section 1: Overarching reflections and intensions of the Act

One of the main asperations of the Scottish Government is to protect and promote the rights and interests of children and young people and to prevent and address offending behaviour by young people; this is one of the main drivers to the legislation under the Age of Criminal Responsibility (Scotland) Act 2019.

The Act intentsions are to make a positive difference to the lives of children in Scotland. The Act protects children under 12 from the harmful effects of early criminalisation, while ensuring they receive the right support and reduce stigma.

After one year of the Act being fully commenced, data shows that the number of children aged under 12 causing serious or significant harm is very rare.

A research report by the Scottish Children’s Reporter Administration (SCRA) on children aged 12 to 15 years involved in offending and who were referred to the Children’s Reporter and Procurator Fiscal in Scotland, shows that many children who display early harmful behaviours are themselves highly vulnerable and may have experienced trauma, neglect, abuse and other adverse childhood experiences in their own lives, which may be expressed through their behaviour.

Communication & Engagement

In developing the Age of Criminal Responsibility Bill and through to full commencement the Scottish Government worked with a variety of stakeholders, including, Police Scotland, Children and Young People’s Centre for Justice (CYCJ), Action for Children, members of the Scottish Youth Parliament, young offenders in Polmont, school pupils, children in secure care, looked after children, children involved in minor offending, vulnerable girls and young women, and child victims. There was an extensive consultation completed before the bill progressed through Parliament with a total of 74 responses were received (47 organisations and 29 individuals) 95% agreed the minimum age of criminal responsibility should be raised to 12.

The Scottish Government consulted with young people directly during implementation of the Act, including a workshop with the SYP’s Justice Committee to seek young people’s views on what a suitable space for an investigative interview should look like.

As part of the data & research subgroup, Beth-Anne Logan developed a survey to seek the views of children and young people on the age of criminal responsibility. The full report of their findings was published in March 2021.

As part of the community confidence subgroup officials worked with young people to develop an animation explaining what Age of Criminal Responsibility means for children, young people, their families and communities.

Phased Implementation Approach

Due to the COVID-19 Pandemic, partners were required to reprioritise work and resources to enable them to respond to the pandemic. This led to a phased implementation of the legislation to ensure children benefitted from the reform as quickly and as safely as possible.

The first set of commencement regulations came into force on 29 November 2019. These regulations removed the offence ground of referral, and commenced provisions in relation to information for victims. The removal of the offence ground means that primary school-aged children will no longer be stigmatised from being labelled as an offender at such a young age, which will improve their life chances and well-being, as children younger than 12 cannot accrue convictions or criminal records.

The second set of commencement regulations came into force on 31 March 2020. These regulations commenced the guidance-making and regulation-making powers of the Act, and also commenced provisions that enable children’s legal aid to also be available for proceedings before the sheriff which relate to applications for orders under Part 4 of the Act.

The third set of commencement regulations for the Age of Criminal Responsibility (Scotland) Act 2019 came into force on 30 November 2020. These regulations bring into force those provisions in Part 2 of the Act (which relates to disclosure) which had not already been commenced.

The fourth (and final) set of commencement regulations brought into force those provisions which had not already been commenced. These provisions were, essentially Part 4 (which relates to police powers) and sections 1 and 2 (which effectively raise the age of criminal responsibility).