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

7. Pillar Five: Age of Criminal Responsibility

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?

Statistical overview

• 65% of respondents felt that the review of the 2019 Act should take place within the current timeframe, whilst 35% disagreed
• Individuals were more likely to agree than organisations, at 82% compared to 59%
• Agreement with this question was particularly low amongst Influencer and Hybrid Organisations, at 20% and 25% respectively. Conversely, 69% of Delivery Organisations and 86% of Representative Groups responded yes.
• In terms of sector groupings, all Children's Hearings Systems-related organisations responded yes, as did 67% of Secure Care Centres, Police-related organisations and Local Government/Social Work organisations. Support was lowest among Third Sector organisations, with only 29% agreeing with this proposal.

Main Themes

Respondents who agreed that a review of the 2019 Act should take place as set out with the three-year statutory review period argued that this timeframe was appropriate for the review to gather sufficient data to effectively evaluate the impact of the act and generate knowledge for best practice should any increase of the Age of Criminal Responsibility (ACR) be made. This was particularly stressed by Delivery Organisations, including Local Government/Social Work and two Police-related organisations, many of whom emphasised that they supported a rise in the ACR, but felt three years was necessary.

"We would support the existing arrangements and timescales for the review of the 2019 Act. This would allow sufficient time for the Advisory Group to determine the operation of the Act in general and to provide fully-considered recommendations for future systems-change should this be required."

[Case 28, HM Inspectorate of Constabulary]

Conversely, a very small number of respondents, including a different Police-related Organisation, felt that more than three years was needed before a review could take place, proposing that five years would allow for a larger sample of cases to be evaluated.

"The 3-year period does not provide a large enough sample to evaluate the Acts impact or effectiveness. A 5-year period would make more practical sense, especially since some covid-19 restrictions still existed in Scotland at the start of the period that the new age of criminal responsibility was introduced (when offending was often reduced)."

[Case 21, Police Related]

Some respondents felt that a review of the 2019 Act should take place urgently. This was particularly stressed by Children's Rights organisations, and some Local Government/Social Work respondents, who highlighted discrepancies between the current ACR and international children's rights standards. Respondents who felt the review should be brought forward emphasised existing data that supports an increase in the ACR as well as learning from other countries as to how they have operationalised their current age threshold.

"This is a matter of urgency. The current age of criminal responsibility in Scotland is two years below the minimum internationally accepted minimum, as confirmed by the Parliamentary Assembly of the Council of Europe and the UN Committee on the Rights of the Child […] It is unacceptable that it took 2 and a half years for Part 1 to come into force, during which time, Scotland continued to have the lowest age of criminal responsibility in Europe. This has also delayed the beginning of the 3 year review period, we feel the data gathering should have already taken place. In light of the continued failure to meet international minimum standards we call for the minimum age of criminal responsibility to be increased immediately by this Bill to at least 14, with the review focussing on what is required to raise the age to 16 and beyond..."

[Case 39, Children and Young People's Commissioner for Scotland]

"It is understood that only a brief amount of time into the review period of the Act has passed and, therefore, there is a lack of findings from the Advisory Group about how this legislation has operated so far. However, we are strongly of the view that there is enough data to at least increase the minimum age of criminal responsibility to 14. A wealth of evidence on this was provided by the children's sector in the last consultation on this issue, and so we would urge the Scottish Government to revisit these submissions. The Advisory Group could then utilise its review period to examine the evidence about raising the age higher (to 16)."

[Case 27, Children in Scotland]

It was also suggested that 'a mid-point review' could be helpful in expediating any potential future legislative change.

"We recognise the challenge of a shorter review period if there is not enough data to make a judgement. However, a mid-point review should be undertaken to determine if there have been sufficient numbers on which to form an opinion as to whether the processes have worked and what challenges have emerged. We are concerned if the review period is set at 3 years, it may be several months before the evaluation is undertaken and concluded and if legislation requires to be updated following a period of consultation it may be a further 18/24 months before this happens. We suggest that the review period concludes and reports back at the 3 year mark."

[Case 29, Falkirk Council]

Young People

Five young people responded to this question, with three disagreeing that the review period should take place within the three-year period, and two agreeing. Three young people stressed that they felt the age of criminal responsibility was currently too young, and should be raised to 14 or 16, although they offered mixed views on whether this needed to be reviewed urgently or could wait until the planned three-year period.