Age of Criminal Responsibility Advisory Group minutes: November 2021

Attendees and apologies

• Lesley Sheppard (Chair), Scottish Government, Children’s Rights, Protection & Justice Division (CRPJD)
• Paul Carberry, Action for Children
• Lynsey Smith, Includem
• Judi Heaton, Police Scotland
• Sam Faulds, Police Scotland
• Mike Findlay, Victim Support Scotland
• Anthony McGeehan, Crown Office & Procurator Fiscal Service (COPFS)
• Carolann Anderson, CELCIS
• Gerard Hart, Disclosure Scotland
• Pat Togher, Social Work Scotland
• Sharon Glasgow, Social Work Scotland
• Mick Doyle, Scottish Community Development Centre (SCDC)
• Elliot Jackson, Children’s Hearing Scotland (CHS)
• Fiona Dyer, Children and Young People’s Centre for Justice (CYCJ)
• Beth-Anne Logan, CYCJ (guest speaker)
• Neill Mitchell, Scottish Children’s Reporter Administration (SCRA)

Secretariat and supporting officials

• Lucy Smith, Scottish Government, CRPJD
• Katrina McNeill, Scottish Government, CRPJD
• Kenzy Thomson, Scottish Government, CRPJD
• Lisa Hay, Scottish Government, CRPJD
• Tom McNamara, Scottish Government, CRPJD

Apologies

• Alistair Hogg, Scottish Children’s Reporter Administration (SCRA)
• Elaine Walker, Scottish Courts and Tribunal Service (SCTS)
• Lorraine Johnstone, Child and Adolescent Mental Health Services (CAMHS) Lead Clinicians' Group
• Diane Dobbie, National Youth Justice Advisory Group (NYJAG)
• Juliet Harris, Together Scotland

Items and actions

Welcome and introductions

The Chair welcomed members to the meeting, followed by introductions from Neil Mitchell who attended on behalf of SCRA. The Chair welcomed Beth-Anne Logan as guest speaker to the meeting. Apologies were noted.

Minutes and actions from last meeting 

The minutes of the last meeting were agreed. There were no actions to report on.

Update on commencement  

The Chair provided an update on commencement of the Age of Criminal Responsibility (Scotland) Act 2019. Officials and Ministers are working towards commencement as quickly as possible.  Ministers are to confirm a date, which would be announced to Parliament as soon as possible. Operational matters are being worked through with all partners working hard to resolve any outstanding issues. The Chair thanked all who have been involved in progressing this work.  

Progress on implementation

Guidance

Two sets of ministerial guidance have been published: one on use of a place of safety, and one on investigative interviews. 

Operational guidance being developed by Police Scotland and Social Work Scotland has progressed and will be finalised as soon as possible. Specific areas of practice to be worked through to agreement will be discussed at a workshop during week commencing 15 November 2021. 

Child Interview Rights Practitioners (ChIRPs) 

Training for prospective ChIRPs took place at the end of September 2021 over two days; with the first day focusing on the Act, the role of the ChIRP, child development, how to engage with children with different needs and during times of high stress. The second day was more practice-based, with multi-agency discussions of specific scenarios and working through a case study. The Minister for Children & Young People is currently considering appointments to the ChIRPs register. 

Additional guidance will be provided to support ChIRPs during the investigative interview in response  to questions raised during the training. 

Regulations 

Regulations to establish the ChIRPs register came into force on 30 September 2021.

Regulations to ensure children’s legal assistance is available in relation to proceedings under Part 4 of the Act came into force on 8 November 2021. 

The draft section 104 Order was laid in Westminster on 18 October 2021. This is on track to come into effect in December. The next step will be debates in the House of Commons and the House of Lords. 

Prior to commencement, two sets of SSIs that will help implement Part 4 of the Act will be required: one set to specify jurisdictions for the seeking of orders; and one for the reporting requirements stemming from use of the place of safety power.

Communications and Engagement 

An animation is being developed to explain the changes to the legislation to the public. The script for the animation has been reviewed by the Community Confidence and Victim Support Subgroups, as well as by Beth-Anne Logan from CYCJ. 

During discussions, concerns were raised about operational readiness, court rules and out of hours provisions, and about the potential for interim solutions in the absence of court rules. 

Updates from subgroups  

Data and Research Subgroup 

Survey 

Beth-Anne Logan spoke about the survey she had taken forward on behalf of the Data and Research Subgroup, to gather the views of children and young people on the age of criminal responsibility. The survey comprised of six questions for each age from 12-18, and 342 responses were received. Beth-Anne used information from the survey responses to create a report,  which she spoke to this at the meeting.

Members of the Group thanked Beth-Anne for this work and commented on the value of seeing the views from children and young people presented in this way.  

The Group asked about the potential of commissioning a follow-up piece of work, and who might lead on it.  Beth-Anne confirmed she would be happy to be involved in any additional work.

Data and research reports 

Fiona Dyer spoke to reports on data and research prepared by the subgroup, which had been circulated in advance of the meeting. The data paper focuses on detected crimes in Scotland that are alleged to have been committed by children. A key impact that was noted was the implications for investigations if the age of criminal responsibility were higher, and implications on court- and non-court disposals.  

The Group agreed on the usefulness of this information being collated in a single document.  

Fiona Dyer provided an overview of the research report commissioned by the subgroup, which details some of the key literature and evidence relating to the age of criminal responsibility.   

During discussions, comments were made about how progressive the Advisory Group would wish to be when considering a future age. The Promise requires the age of criminal responsibility in Scotland to align with the most progressive countries in the world. Most EU countries have an age of criminal responsibility of 15 or 16. 

The Chair reminded the Group of the previous Minister’s request for draft recommendations of what would be required for an age of criminal responsibility of 14 by the end of 2021, an age of criminal responsibility of 16 by the end 2022, and an age of criminal responsibility of 18 by end of 2024. The Group agreed that it would be helpful to know what happens in other countries: how did they get to their specific ages of criminal responsibility? How did they convince the public that this was right? What were the challenges they faced? Fiona Dyer agreed that the Data and Research subgroup would look at this and report back to the Group. 

Operational Implications Subgroup 

Anthony McGeehan provided the update. The group last met on 24 August, and explored the operational impact of a higher age of criminal responsibility on social work.

A survey was issued to local authority Chief Social Work Officers, comprising 16 questions that focussed on the implications of raising the age of criminal responsibility. The survey was accompanied with data of non-court disposals of children under 14 over a 5 year period for each local authority, to provide additional context.

Feedback from the survey has been analysed and a report drafted to reflect this analysis.

The subgroup will prepare an executive summary report for the Advisory Group, detailing the core issues identified by Police Scotland, SCRA, Social Work Scotland and COPFS, to sit alongside the individual reports from each organisation.

Two key pieces of learning have been identified from the work of this group: (1) a small number of children under 14 commit serious, High Court level offences; and (2) the current response of the State/outcomes for these serious cases continues beyond 18.

These generate a significant policy challenge in relation to how the State might respond in future to the small number of children under 14 whose behaviour causes serious harm, where the current response is assessed as appropriately continuing beyond their 18th birthday and whether future responses under any higher age of criminal responsibility should similarly be capable of extending beyond 18. The demand/need for responses that continue beyond 18 arises with any further higher age of responsibility beyond 14.  

The further strong feedback from the Group to date was that it was not possible  to fully anticipate the operational implications of moving to an age of criminal responsibility of 14, when 12 has not been fully commenced. This, and the groups work to date, raises questions about any future work programme. The consensus view of the group is that moving to consider the operational implications of e.g. a higher age of 16 would be of little value given the same fundamental questions arise. The Chair articulated that there are options for how the Group’s work could be re-cast, or re-phased. 

The Group agreed that moving to 12 is the test of change, and that learning from the move to 12 will set out whether the changes put in place by the legislation applies or does not apply to a higher age. 

The Chair agreed that the executive summary report from this subgroup to be an agenda item for discussion at a future meeting, once prepared. 

Victim Support Subgroup

Mike Findlay provided an update on the work of the Victim Support Subgroup.

Two workshops have taken place to enable the subgroup to develop common messaging in relation to the impact of the age of criminal responsibility being increased to 12 for victims, witnesses and families.  The subgroup used Scotland’s trauma-informed framework to support development of these messages, centred on safe, choice, collaboration, empowerment and trust. The draft will be reviewed by a young person with lived experience of being in conflict with the law. 

Once the messaging document has been developed further, the group has discussed producing literature about the impact of the planned increase in the age of criminal responsibility, and making this available to the public.

Aberlour will be invited to join the subgroup. 

Work of the subgroup has been shared with Children 1st and Children England in relation to the House for Healing / Barnahus project. There is potential for joint working in this area, which will be reported back at the next meeting.

The subgroup has also supported development of the ACR animation.

Community Confidence Subgroup 

The subgroup last met on 21 September.  A member of the subgroup who is a professor from Edinburgh Law School presented to the group about data from the social attitude survey. They had been comparing baseline data with historic data to identify questions that could be considered for a survey to gather the public’s insight and opinion on young people and crime. 

The group has continued its work on the Citizen Enquiry Approach; discussions are ongoing around the next steps for this. 

The group has continued planning for different engagement opportunities to build community confidence around a future age of criminal responsibility.

Representatives are being sought from community councils to find the best ways to engage directly with communities, and also from Cosla.

A specific Action for Children working group has developed a questionnaire with the help of young people who have experience of the justice system, and will link in with the Data & Research subgroup on this. Work continues with Age Scotland and the Children’s Parliament. The subgroup is considering a series of conversation cafes, and is scoping what this could look like. This engagement could also feed into the Citizens Enquiry approach. 

Any other business 

The Chair suggested that the next meeting should focus on the future priorities of the  Group, particularly as the Act is commenced, and to also discuss membership for the next phase of work. 

The Group agreed for the next meeting to be scheduled in late- February / early- March 2022. The secretariat will issue calendar invites for all meetings in 2022.

ACR Implementation Team
December 2021