Children's Care and Justice Bill - policy proposals: consultation

8. Age of Criminal Responsibility

8.1 Background

The age of criminal responsibility (ACR) in Scotland was increased from 8 to 12 in December 2021, when the Age of Criminal Responsibility (Scotland) Act 2019^[192] ("the Act") was fully commenced.

The policy intention of the Act focused on protecting children, reducing stigma and ensuring better life changes. Additionally, to align ACR with the current minimum age of criminal prosecution, and reflect Scotland's commitment to international human rights standards so that:

• Children under 12 are not criminalised at a young age and stigmatised due to being labelled an "offender".
• Children under 12 are not disadvantaged by having convictions.
• The age of criminal responsibility (of 12) aligns with longstanding presumptions around maturity, rights, and participation.
• The position of care-experienced children is improved (particularly children looked after away from home, whose behaviours are more likely to have been reported to police – and therefore attract a criminalising state response – than Scotland's child population in general).

The Act sets out a number of measures that provide safeguards, enabling the police and other authorities to take action when children under 12 are involved in serious incidents of harmful behaviour, whilst ensuring that the rights and best interests of the child whose behaviour caused the harm are protected, as are the rights and interests of anyone harmed by that behaviour.

These measures include specific investigatory powers for the police, provision for a person who has been seriously harmed to receive information, and for a child under 12 thought to be responsible for seriously harmful behaviour to have the right to be supported by a child interview rights practitioner during an investigative interview.

The Act made changes to the disclosure system, removing the automatic disclosure of convictions or other relevant behaviour of under-12s. It established the role of the independent reviewer, who will review information to be included in a response to a disclosure check when that check may disclose relevant information dating back to when the applicant was under the age of criminal responsibility.

Increasing the age of criminal responsibility makes it explicit to children that while any behaviour under the age of 12 will be fully investigated, they will not be involved in a process that re-creates the adversarial criminal process. Increasing the age of criminal responsibility to 12 has the potential of bringing about a positive cultural shift in how society views the harmful behaviour of young children, and to better understand the issues that led to it.

8.2 A future age of criminal responsibility

At Stage 3 of the ACR Bill, a Government amendment inserted a new Part, which placed a duty on Scottish Ministers to review operation of the Act in general, and with a view to considering the future age of criminal responsibility. This was agreed to by the Scottish Parliament (and forms Part 6 of the Act).

This review is required to look at the operation of the measures in the Act, some of which are novel to the care and justice system. This includes the role of the independent reviewer, the investigative powers provided to police, the role of child interview rights practitioners and the use of interview orders and interview by consent.

The review period began in December 2021 and will last for a period of 3 years. Scottish Ministers will also be required to consult such persons as they consider to be appropriate, when carrying out the review. At the conclusion of the review period, Scottish Ministers will then be required, within 12 months, to prepare and publish a report on the review and lay that review before the Scottish Parliament.

An Advisory Group was established in summer 2019. Whilst that Group has been able to consider what might be required to support a higher age of criminal responsibility, until it is able to determine operation of the Act in general, it will not be able to provide fully-considered recommendations for a future age, or what would be required by way of systems-change to support that future age. Given that the review period of the Act has only recently commenced, it does not seem appropriate for provisions in the Children's Care & Justice Bill to seek to amend the age of criminal responsibility in Scotland at this time.

8.2.1 The Promise and the age of criminal responsibility in Scotland

To ensure that all children are diverted from the criminal justice system, The Promise requires Scotland to aim for the age of minimum criminal responsibility to be brought in line with the most progressive global Governments alongside efforts to prevent criminalisation of all children.

Globally, the age of criminal responsibility ranges between 7 and 18 years of age. Most European countries have an age of criminal responsibility of 14, although in a handful the age is 15 or 16. Luxembourg has an age of criminal responsibility of 18.

8.2.2 Question

Question 27: Do you agree that the review of the 2019 Act should take place, as set out, with the 3-year statutory review period?

Yes / No

• If no, what period do you think is appropriate?
• If a shorter review period, how should the Scottish Government to address the lack of review findings or data to inform such a change?