Time to raise the age of criminal responsibility

Earlier this year, the United Nations Human Rights Committee, the body that monitors compliance with the International Covenant on Civil and Political Rights, criticised the fact that Scotland has one of the lowest ages of criminal responsibility in the world, holding a child to account for criminal conduct from the age of eight years old.(1)

This criticism should have come as no surprise to the Scottish Government, since the United Nations Committee on the Rights of the Child, which monitors implementation of the UN Convention of that name, has expressed similar concern in each of its three reports on the United Kingdom since 1995.(2) These human rights bodies were also critical of the age of criminal responsibility – currently 10 years old – in the other parts of the UK, and Lord Dholakia recently introduced a bill in the House of Lords to address that.(3)

In Scotland, Liberal-Democrat MSP Alison McInnes has proposed an amendment to the Criminal Justice (Scotland) Bill,(4) currently making its way through the Scottish Parliament, that would raise the age of criminal responsibility to 12. At a stroke, this particular blot on the Scottish record on dealing with juvenile offenders could be removed.

The negative image created by this single, but important, aspect of Scottish youth justice is somewhat ironic when it is remembered that its cornerstone, the children’s hearings system, is generally regarded as being particularly enlightened. Dating from the Social Work (Scotland) Act 1968, the hearings system serves abused and neglected children and young people, as well as offenders, and is premised on their welfare being the paramount consideration.

The vast majority of children who commit offences in Scotland are dealt with by the hearings system, with only a small number facing prosecution in criminal court. There is a perception, in some quarters, that the hearings system is a “soft option”. However, since a children’s hearing has the power to remove a child from the family home and place him or her in foster or institutional care or, where necessary, in secure accommodation, it is unlikely that view is shared by at least some of the children who have experience of the system.

The age of criminal responsibility in Scotland has been fixed at eight ever since it was raised from seven as a result of a recommendation from the Morton Committee in 1928.(5) Since the turn of the century, the issue has attracted its share of attention. In 2000, the Advisory Group on Youth Crime recommended raising the age to 12 but, instead of implementing that recommendation, the Labour administration of the day referred the matter to the Scottish Law Commission.

The Commission drew a distinction between holding a child responsible for his or her actions and what should happen thereafter.(6) As a result of its recommendations, the Criminal Justice and Licensing (Scotland) Act 2010 amended the law to provide that no child under the age of 12 may be prosecuted for an offence, nor can anyone, regardless of age, be prosecuted for anything done before reaching that age. However, the 2010 Act did not alter the age of criminal responsibility itself – s 41 of the Criminal Procedure (Scotland) Act 1995, setting it at eight, remains in force – leaving the law in a rather untidy and somewhat confusing state.

Tidiness alone would be a poor justification for law reform, albeit consistency in the legal system lends it coherence and clarity is certainly a desirable goal. Twelve is a landmark age in Scottish child law. That is when a young person is presumed to be capable of participating in decision-making on a whole range of matters, including medical treatment(7) and where he or she should live following parental separation or divorce.(8) At 12, a young person can consent to or veto his or her own adoption(9) or make a will.(10) Thus, setting the age of criminal responsibility at 12 would be entirely consistent with other aspects of the law on children’s capacity.

Then there is the matter of honouring international obligations. When the UK Government ratified the UN Convention on the Rights of the Child, it bound itself to meet the standards set in that document. The Convention requires states parties to set a minimum age of criminal responsibility(11) and, while it does not specify what that age should be,(12) the UN Committee on the Rights of the Child has made clear that anything below the age of 12 is unacceptable.(13)

Opponents of the proposed amendment will doubtless produce the spectre of the under-12 year-old who commits a very serious offence, and will most probably cite the English example of Robert Thompson and Jon Venables who were 10 years old when they murdered two-year-old James Bulger. Were a similar crime to occur in Scotland today, the offenders could not be tried in a criminal court. They would be dealt with by a children’s hearing. Raising the age of criminal responsibility to 12 would make no difference. It would simply mean that, rather than being referred to the children’s hearing on the offence ground, under the Children’s Hearings (Scotland) Act 2011, s 67(2)(j), their case would proceed, under s 67(2)(m), on the basis that they had caused harm to another person.

It might be thought that, since a child cannot be prosecuted below the age of 12, it does not matter that the age of criminal responsibility remains at eight. No so. After a period of time, people are generally freed from the obligation to disclose criminal convictions in job applications and the like. As far as children are concerned, that approach is entirely consistent with the UN Convention on the Rights of the Child, which requires that measures for dealing with children who offend should take into account the desirability of promoting their reintegration into society.14 However, the Scottish rules on non-disclosure of past offences do not apply in all circumstances and so, for example, reference can be made to them in civil proceedings and disclosure can be required when a person is applying for certain jobs or seeking to enter the legal profession. Thus, a person whose sole criminal activity, shoplifting at the age of 10, was dealt with by a children’s hearing may find the wrongdoing following him or her into adult life.

In short, there is nothing to lose and everything to gain by supporting Ms McInnes's amendment.

Elaine E Sutherland is Professor of Child and Family Law at the University of Stirling, Scotland, Distinguished Professor of Law at Lewis and Clark Law School, Portland, Oregon, and a member of the Law Society of Scotland’s Family Law Committee.

References

(1) Human Rights Committee, Concluding Observations on the seventh periodic report of the United Kingdom of Great Britain and Northern Ireland, advanced version, adopted by the Committee at its 114th session, 29 June-24 July 2015, para 23.

(2) See, most recently, Concluding Observations of the Committee on the Rights of the Child on the United Kingdom of Great Britain and Northern Ireland, CCR/C/GBR/CO/4, 3 October 2008, para 77.

(3) HL Bill 017, 2015-2016.

(4) SP Bill 35, Session 4 (2013)

(5) Report of the Departmental Committee on Protection and Training (HMSO, 1928), p 48.

(6) Report on the Age of Criminal Responsibility (Scot Law Com No 185, 2001).

(7) Age of Legal Capacity (Scotland) Act 1991, s 2(4).

(8) Children (Scotland) Act 1995, s 11(7)(b).

(9) 1991 Act, s 2(3) and Adoption and Children (Scotland) Act 2007, s 32.

(10) 1991 Act, s 2(2).

(11) United Nations Convention on the Rights of the Child, art 40(3)(a).

(12) United Nations Convention on the Rights of the Child, art 40(3)(a).

(13) United Nations Committee on the Rights of the Child, General Comment No 10: Children’s rights in juvenile justice (2007), CRC/C/GC/10, para 32.