Age of Criminal Responsibility (Scotland) Bill: privacy impact assessment

3. Background

The Age of Criminal Responsibility (Scotland) Bill

On 1 December 2016 the Minister for Childcare and Early Years announced in the Chamber of the Scottish Parliament that the Scottish Government would bring forward legislation this term to raise the age of criminal responsibility ( ACR) from 8 to 12 years of age.

The main purpose of the Bill is to raise the ACR in Scotland from 8 to 12 to align it with the current minimum age of criminal prosecution and reflect Scotland's progressive commitment to international human rights standards so that:

• Children under the ACR are not stigmatised by being criminalised at a young age due to being labelled an "offender";
• Children under the ACR are not disadvantaged by having convictions for the purposes of disclosure, which can affect them later in life;
• The new ACR aligns with longstanding presumptions around maturity, rights and participation, and improves the position of children with care experience (especially children looked after away from home) whose behaviours are more likely to have been reported to police and therefore to attract a criminalising state response, than Scotland's child population in general.

In consequence of the change to the ACR, the Bill also provides for a number of measures to ensure that action can still be taken by the police and other authorities when children under the age of 12 are thought to have been involved in serious incidents of harmful behaviour. These measures include specific investigatory and public safety powers for the police; information about behaviour that occurred when a child was under the age of 12 being disclosed on an enhanced disclosure certificate or PVG scheme record following a review by an independent reviewer ( IR); provisions for victim information; and a right for a child to have access to children's advocacy services during a police interview conducted under a child interview order.

This PIA explores the implications for confidentiality and privacy of information as a consequence of the Age of Criminal Responsibility (Scotland) Bill with regards to the provisions relating to disclosure and information to victims.

Disclosure

Policy in this area balances the rights of ex-offenders (or those who have committed harmful acts as children), where their behaviour was not so serious that it must be disclosed forever, to have their past consciously moved into the private realm after the passage of an appropriate time period, with the essential requirement that the police, employers and other safeguarding organisations continue to have the information necessary to keep Scotland's people – particularly the vulnerable – safe from harm.

The Criminal Procedure (Scotland) Act 1995

This Act sets out two rules in relation to the age at which a child can be held criminally responsible. The first is the age below which a child is considered to lack the capacity to commit a crime. This age is currently eight in Scotland. This rule is contained in section 41 which states that it "shall be conclusively presumed that no child under the age of eight years can be guilty of an offence." The second is the age of prosecution. This is currently 12, although children below the age of 16 can be prosecuted only on the instructions of the Lord Advocate or at his instance by virtue of sections 41A and 42(1).

The Police Act 1997

This Act and the Protection of Vulnerable Groups (Scotland) Act 2007 provide the basis for Disclosure Scotland to discharge the Scottish Ministers' functions by carrying out criminal record checks for recruitment and other purposes. Under the 1997 Act, the criminal conviction certificate, criminal record certificate and enhanced criminal record certificates are available. These certificates are commonly referred to as the basic, standard and enhanced disclosure. Under the 2007 Act, which established the Protection of Vulnerable Groups (' PVG') Scheme in Scotland, a scheme record, a short scheme record, and a scheme membership statement are available.

Section 113A of the 1997 Act requires a criminal record certificate to be issued to any person who makes an application and who pays, in the prescribed manner, any prescribed fee. That certificate gives details of every relevant matter relating to the applicant which is recorded in the UK's central records of convictions. A "relevant matter" includes:-

(a) a conviction which is not a protected conviction;

(b) a caution which is not spent by virtue of schedule 3 to the 1974 Act; and

(c) a prescribed court order.

The terms of section 3 of the Rehabilitation of Offenders Act 1974 means that the acceptance by the child and parent or other relevant person or the establishment (or deemed establishment) by a sheriff of the offence ground of referral to a children's hearing is defined as a 'conviction'.

The combination of section 3 of the 1974 Act and section 113A of the 1997 Act means that offence-based disposals from children's hearings come within the scope of Disclosure Scotland.

ACR Bill Sections 4 – 21: Disclosure of convictions and other information relating to time when person under 12

Raising the ACR to 12 will mean it is no longer possible to refer a child under that age to a children's hearing on the ground that they have committed an offence. The age for criminal prosecution is already 12 (see above) so there is no possibility of court conviction for a child under 12. This means that the only way information could be disclosed about a person's conduct when aged below 12 is through 'Other Relevant Information' ( ORI) included by the chief constable on an enhanced disclosure or a PVG Scheme Record ( ORI cannot be included on basic or standard disclosure). Whilst it is possible that such a disclosure might occur whilst the individual was still a child, it is more likely that it would occur at a later stage, for example when the individual was applying for a college/university course or seeking a disclosure for employment purposes.

Prior to disclosure of ORI about conduct which occurred when the individual was under the age of 12, an assessment will be made by the IR – a new appointment. The IR's function is to review the chief constable's decision to provide ORI about conduct which occurred when the individual was under the age of 12 for inclusion on the enhanced disclosure or PVG scheme record. The IR will be able to gather information from the individual and certain public bodies in Scotland to inform their review. Only if the IR agrees with the chief constable will the ORI be released. The IR's decision will be final. An appeal to a sheriff, but only on a point of law, will be available to the individual and the chief constable.

Victim Information

Criminal Justice (Scotland) Act 2003 – Scottish Children' Reporter Administration Victims Information Service

Currently, under Section 53 of the Criminal Justice (Scotland) Act 2003, the Principal Reporter has the power to tell victims of offences committed by children certain limited information about how a case has been disposed of via the children's hearings system. The reporter may only provide information to victims, relevant persons (where the victim is a child) and other persons prescribed by order of the Scottish Ministers. In practice, the Scottish Children's Reporter Administration ( SCRA) delivers this through its Victim Information Service ( VIS).

The Principal Reporter may only provide basic information about the reporter's decision ( i.e. whether or not to bring the child to a hearing) and whether or not the hearing has made a Compulsory Supervision Order ( CSO). This information can only be provided where: the information is requested and the Principal Reporter considers disclosure is appropriate in the circumstances; and that it would not be detrimental to any child involved in the case. The identity of the child perpetrator is not revealed nor confirmed. If the child was referred on multiple grounds then the victim would only be entitled to know about the specific ground in which they are identified as the victim.

Currently, these rights are engaged only where the Principal Reporter receives information about a case where it appears that a child has committed an offence. Raising the ACR would therefore remove victims of harmful behaviour by children aged 8 to 11 from the scope of these provisions and those victims would no longer be able to receive information.

ACR Bill Section 22: Provision of information to persons affected by child's behaviour

The Bill therefore aims to ensure that where a child under the ACR engages in conduct which causes harm to a victim, the current rights of that victim should not be diminished and there should continue to be appropriate information and support provision for victims of the harmful conduct of children under the ACR.

Section 22 of the ACR Bill sets out powers which allow the Principal Reporter to disclose information to victims of offences by children aged 12 and over and victims of harmful behaviour by children aged under 12.

This disclosure regime will continue to be delivered by SCRA under the VIS. Consistent with the existing legislation, the Bill ensures that where the Principal Reporter has received information that a child may have committed an offence, a victim of that offence may request and receive information about the disposal of that case. In addition, the Bill sets out new powers to allow the Principal Reporter to provide information to victims of the most harmful behaviour by children under the ACR. To ensure information that is shared about a child under ACR is proportionate and justified, the Bill makes these powers available to the Principal Reporter only in serious cases, that is, where the Principal Reporter has received information which suggests that a child under ACR has caused harm to another person by engaging in behaviour which is:

• physically violent;
• sexually violent or coercive; or
• dangerous, threatening or abusive.

The Bill seeks to balance the needs and rights of victims with the best interests of the child responsible for the harm, which are the paramount concern of the children's hearings system. This is to be achieved by restricting the group of persons who can access information, restricting the information that can be disclosed and restricting the circumstances when information can be disclosed. The Principal Reporter will continue to have discretion to disclose information and will only be able to disclose information where disclosure would not be detrimental to any child involved and would not otherwise be inappropriate. This enables the Principal Reporter to ensure that any decision to disclose under the statutory provisions balances the needs of the victim and the interests of the child involved.

Police powers

ACR Bill Part 4 Chapter 4: Taking of prints and samples from certain children

Currently, children aged 8 to 11 may be arrested if the police suspect them of committing a crime. When a suspect is arrested, the police have the right to take a DNA sample (this is normally a mouth swab). Samples are sent to the Scottish Police Authority's Forensic Services, which analyses the samples. The resulting DNA profiles are stored on the Scottish DNA database. They are also sent to the National DNA Database in Birmingham. All police forces across the UK can search the National DNA Database, to check whether profiles stored there match samples they hold (whether taken from a person or from a crime scene). The police may also take fingerprints from a suspect who has been arrested. These are stored on IDENT1, which is a UK-wide fingerprint database and can be searched by police forces across the UK. Photographs are taken of suspects in custody, too, and stored on Police Scotland's Criminal History System. If the person is not ultimately convicted then the data and samples taken from them (as well as the records of those samples, e.g. the DNA profile) must be destroyed. However, currently if an 8 to 11 year old is referred to a children's hearing on offence grounds and the hearing upholds those grounds, then the samples and records may be retained on the system – for certain sexual and violent offences they may be retained for three years.

The Bill significantly changes this approach for 8 to 11 year olds, heavily limiting the circumstances in which samples may be taken and introducing stricter destruction requirements. The police will only be permitted to take samples, prints, photographs or other forensic or physical data from children under 12 if they suspect that the child has carried out a seriously harmful act. The police will normally be required to first obtain a court order authorising the sample. In some situations it may be necessary to take a sample more urgently than obtaining a court order would allow for (because the sample needed to investigate the serious act could be lost or destroyed if there is a delay). In these cases a superintendent (or more senior officer) may authorise the taking of the sample if they can satisfy themselves of the same criteria that a sheriff would need to satisfy themselves of to grant an order. The police would then need to apply for an order retrospectively, ensuring that there is always independent judicial oversight of the taking of samples from children under 12. The police would not be permitted to analyse or otherwise process the sample until and unless the order is granted: in the meantime they could only store the sample as necessary to prevent its deterioration.

Under the Bill, any samples taken from a child to investigate behaviour they are suspected of committing while under 12 must be destroyed (along with records derived from the sample) once they are no longer needed for the investigation, or once any resulting children's hearings proceedings have concluded.

It should be noted that these new provisions will apply to all children under 12 – in other words, they will apply not just to 8 to 11 year olds (from whom samples can currently be taken under criminal justice powers) but also from children under eight (who cannot currently be compelled to give samples). It is anticipated that the number of children under eight affected will be exceedingly small: behaviour serious enough to warrant the taking of samples under the Bill is very rare in this age group. However, if – exceptionally – a child under eight is suspected of carrying out a seriously harmful act, it is important that the police are able to investigate that thoroughly to understand what has happened. If a sample confirms that a child has carried out a very harmful act, that information will help ensure that the child's needs and risks are fully understood, so that any appropriate child protection, risk-management and support measures can be put in place. Using a sample to confirm a child's involvement may help the victim to achieve closure as well. A sample also has the potential to conclusively prove that a child was not involved in a serious harmful event, which would allow the investigation to stop focussing on the child.

Samples taken to investigate the behaviour of children under 12 will not be sent to the National DNA Database, and fingerprints taken will not be stored on IDENT1. This means that other police forces in the UK will not have access to data taken from children under the Bill. Data on children under 12 (such as photographs) will not be stored in Police Scotland's Criminal History System.