Scotland’s age of criminal responsibility is too low. It needs to change

24 August 2016

Image of candles on a cake.

Right now, Scotland is the only country in Europe where an 8 year-old can gain a criminal record.

The UN Committee on the Rights of the Child thinks this is an unacceptably low age of criminal responsibility. We agree.

In its General Comment 10, they stated that no country should set a minimum age lower than 12. In June 2016, the Committee explicitly urged Scotland to raise its minimum age.

How the minimum age works now

Scotland’s minimum age of criminal responsibility is 8. However, children under 12 can’t be prosecuted through the courts.

However, children between 8 and 11 can still end up with a criminal record if:

  • they accept they’ve committed an offence at a Children’s Hearing, or
  • it’s established that they’ve committed an offence.

A criminal record can stay with a person throughout their life. Because of this, a country's minimum age of criminal responsibility can have an impact that lasts well beyond childhood.

An advisory group

The Scottish Government is currently considering whether to raise the minimum age of criminal responsibility. In November 2015, they created an advisory group to consider the issue. The group was set up to:

  • consider the implications of raising Scotland’s minimum age of criminal responsibility to 12,
  • address underlying legal and policy issues around raising the minimum age, and
  • provide recommendations around what policies would need to change if the minimum age was raised.

The group was made up of a wide range of professionals. The Commissioner's office was represented, as were:

We helped shape the Advisory Group’s key findings and recommendations, which are outlined in more detail below.

Read the Advisory Group’s full report.

We co-authored a Children’s Rights and Well-being Impact Assessment around raising the minimum age of criminal responsibility. Read it here.

Key findings

The link between trauma and harmful behaviour in younger children

Recent research produced by the Scottish Children’s Reporter Administration helped inform the Advisory Group’s work. The research, which looked into the circumstances of 8-11 year-olds referred to the Children’s Hearings system on offence grounds, showed that the majority of children it considered:

  • had been subject to care and protection measures in the past.
  • were also referred on welfare grounds. This means that there were concerns around threats to their welfare – such as possible neglect, mistreatment or abuse – at the same time a referral on offence grounds was made.

In our response to the Scottish Government’s consultation on raising the minimum age of criminal responsibility, we stressed the link between trauma and harmful behaviour in younger children.

We said that we felt that these younger children’s support needs were best met through the extension of the National Child Protection Guidance. We felt this was the best way to reflect that these children’s harmful behaviour was often rooted in trauma, which would require care and protection to address.

Police powers and children under 12

Many police powers in relation to 8-11 year-olds – such as the ability to take a forensic sample – are currently very rarely used. If the age of criminal responsibility is raised, some of these powers will disappear. The Advisory Group considered whether it might sometimes be in the child’s interests for the Police to keep these powers. We felt, for example, that the police retaining some powers:

  • might be helpful if the police remained able to rule a child in our out of an inquiry. If the police had no powers to investigate, a child could be accused of being involved in an incident and have no way to disprove this was the case.
  • might help prevent a child being exploited by adults or older children. For example, if the police had no powers to interview children under 12, older children or adults might force them to carry out criminal acts on their behalf or blame them for something they hadn’t done.
  • might allow a child to access support to enable them to address any harmful behaviour and move on from what had happened.

For these reasons, we think that the police should retain some powers for use in exceptional circumstances. However, the use of these powers should always be authorised by a Senior Officer within Police Scotland.

Keeping safeguards for 8-11 year-olds

In our response to the Scottish Government’s consultation, we raised concerns about losing safeguards which are currently in place. We thought that if 8-11 year-olds were no longer regarded as criminally responsible, then adults might think they no longer needed safeguards. The loss of safeguards might mean that when interviewed by the police:

  • children might lose the right to have legal help or advice, and
  • children might lose the right to have a supportive adult present.

We think it’s important that children continue to be supported – and to know their rights – if the age of criminal responsibility rises to 12.

Recording of offences

If a Children’s Hearing for an 8-11 year-old accepts or establishes information about an offence, this can have lasting effects. The information can appear on someone’s higher level Disclosure or PVG scheme record for years after the original incident.

In our consultation response, we highlighted:

  • that many younger children are unaware of these long-term consequences, and
  • that non-conviction information can appear on someone’s higher level Disclosure or PVG scheme record indefinitely. The information is held by Police Scotland, who can keep it if the Chief Constable still believes it to be relevant.

This means a child or young person may find it difficult to predict what information remains on their record. They may only find out about it when they apply for a college course or a job. Additionally, the current system:

  • makes it difficult for someone to complain about non-conviction information being held on their record, and
  • makes it difficult for someone to get non-conviction information removed from their record.

We said we thought there should be a presumption against non-conviction information appearing on the records of children under 12. This is because:

  • we believe that – wherever possible – children should be allowed to move on from harmful behaviour exhibited in early childhood.
  • some groups – such as care-experienced children – may collect a disproportionate amount of non-conviction information. This may be linked to current practice within residential units, as staff are trained to call the police whenever there is an incident. We don’t think care-experienced children should be disadvantaged as a result.
  • we believe that a presumption like this would send an important message about how we approach harmful behaviour by younger children in Scotland. It would recognise that for these children, such behaviour is often rooted in trauma. If we support children to recover from that trauma, there is a good chance they won’t repeat their harmful behaviour.

Retrospective change

The consultation asked whether we thought changes to the minimum age of criminal responsibility should apply retrospectively. We think they should. This would mean that anyone who already has a criminal record as a result of something they did between 8-11 years old would benefit from this change to the law.

We also acknowledged that – in a narrow set of circumstances – it might still be necessary to release information about an offence someone committed before they were 12. We think this should only happen:

  • where there are serious concerns about the risk the offender poses, and
  • where an independent third party authorises the information’s release.

We also said a person should be able to try and reverse the decision to release information about themselves. For example, they might want to do this if they’ve not exhibited any further harmful behaviour.

Child victims

In our consultation response, we outlined how raising the age of criminal responsibility might provide a good opportunity to look more closely at the help we currently provide to child victims and witnesses. While there has been some progress in this area, we said the recommendations of the 2011 research report Young Victims of Crime needed to be fully implemented. This report offers suggestions from children and young people about the best way to provide support, recommending:

  • peer support,
  • individual counselling, and
  • online support.

We also said that particular care will need to be taken when a younger child harms another child. When this happens, the child harmed will need to be reassured that what has happened to them will be taken seriously. This will particularly be the case when the child that harmed them can’t be held criminally responsible. As well as this, we thought it would be important for professionals to be clear about what information could be shared after an incident. For example, it should be clear if a child victim would be allowed to find out how the other child’s harmful behaviour had been dealt with.

Forensic samples

We thought carefully about the children’s rights implications of asking 8-11 year-olds to provide a forensic sample to the police.

We were clear that if the age of criminal responsibility was raised to 12, a child under that age couldn’t ever be held criminally responsible. We didn’t want children to be confused by being asked to do things normally associated with detecting crime— such as providing fingerprints or giving a saliva sample.

However, we thought it might sometimes be a good thing for a child to provide a forensic sample. This might allow the police to rule a child in or out of an inquiry— particularly when a very serious incident has occurred. If the police aren’t able to ask a child for a sample, there is a chance a child could be blamed for something they didn’t do. On the other hand, if a child has been involved in an incident, knowing this could help professionals get them the right support.

For these reasons, we think the police should be allowed to take forensic samples from children under 12 in a very narrow range of circumstances. However, we think they should only be used to find out what’s happened: they should never be kept for future use.

A step forwards for children’s rights

We very much welcome the proposal to raise the minimum age of criminal responsibility to 12 in Scotland.

We also welcome the Advisory Group’s focus on making sure children are allowed to move beyond harmful behaviour in early childhood, and that information about incidents does not follow them into adulthood.

However, we think that raising the minimum age of criminal responsibility to 12 is only the first step.

Many European countries set their minimum age of criminal responsibility at 14 or 16. We hope that one day Scotland will be among them.