Minimum Age of Criminal Responsibility
In May 2019, Scotland set its minimum age of criminal responsibility (MACR) to 12, 2 years below the minimum acceptable standard of 14.
This isn’t enough.
The UN has been clear that a MACR of 12 isn’t something a country should be aiming for. 10 years ago, in their General Comment No 10, the UN Committee on the Rights of the Child said it’s the absolute minimum that’s acceptable, and that countries should raise it to a higher age.
And the Committee are currently revising this General Comment so that 14 is the minimum acceptable age.
In its 2019 Concluding observations, the UN Committee against Torture said Scotland's age of criminal responsibility of 12 was not in line with international standards.
If Scotland is to be the best place in the world to grow up, we need to raise the age of criminal responsibility beyond 12 to make sure we support children rather than treat them as criminals.
We need to be bolder and aim higher. And we need to reflect our progressive commitment in legislative change, with a much higher age of criminal responsibility.
The starting point should be discussion on raising it to 18, and we think the minimum age of criminal responsibility should be at least 16 in Scotland.
Human rights concerns with the Age of Criminal Responsibility Bill
Scotland’s MACR was set to 12 following the passage of the Age of Criminal Responsibility Bill (Scotland) , which drew concern from the international human rights community.
Their message was clear: the minimum acceptable age of criminal responsibility is 14, and that any age below that cannot be justified in human rights terms.
The Council of Europe’s Commissioner for Human Rights called on Scotland to raise its MACR to at least 14 – and preferably higher – in line with international standards.
And evidence from the UN Committee on the Rights of the Child made it clear that they considered 14 the minimum acceptable age.
The Scottish Government has convened a forum to discuss raising Scotland’s MACR beyond 12. But this won’t review the age for at least three years, by which point a new Parliament will be in session.
That doesn’t meet the standards of international human rights bodies, who say we must immediately raise our minimum age of criminal responsibility to at least 14.
In our briefing to MSPs ahead of the final debate around the Age of Criminal Responsibility Bill , we made our stance on this clear:
“In choosing to restrict its work on this issue to raising the age to 12, the Scottish Government has created a situation where it now lacks the confidence that systems are in place to allow us to meet the international minimum standard of 14.
“This failure demands urgent action.
“12 and 13 year old children should not need to wait a period of years before the Scottish Government meets its minimum obligations in terms of their rights.”
Listen to a podcast from Iriss.fm where Commissioner Bruce Adamson talks about the need for urgent action around the minimum age of criminal responsibility.
Links on MACR and human rights
What is a minimum age of criminal responsibility?
It’s the lowest age where a person who commits an offence is considered to have enough maturity to understand their actions and the fact they can be held criminally responsible for them.
It’s not the same as the minimum age of prosecution.
Before our MACR rose from 8 to 12, children aged 8-11 couldn't be prosecuted in a court in Scotland. But they could be arrested, charged and held responsible for a crime.
These are things that can significantly affect a person's options in education and the jobs they can be employed in.
It’s very different to what the Committee on the Rights of the Child recommends: a higher MACR – such as one between 14 and 16 – that helps create a system that complies with article 40(3)(b) of the UNCRC.
This says that – whenever appropriate or desirable – measures that deal with a child in conflict with the law shouldn’t have to resort to judicial proceedings, as long as legal safeguards and that child’s human rights and are fully respected.
Other international child rights bodies also support a higher MACR. For example:
What about people harmed by children below the age of criminal responsibility?
Of course, children can and do harm other people, and often the people they harm are children themselves.
If someone’s safety is compromised by another person, then they have the human right to remedy of some form. That’s still true when it isn’t appropriate to prosecute that person, or to consider their behaviour as criminal.
So if someone does come to harm because of the actions of someone below the minimum age of criminal responsibility, they still deserve support, and acknowledgment that the harm they’ve been caused has been taken seriously. And they should be able to know attempts are being made to make sure the harm doesn’t happen again.
But that doesn’t mean children should be criminalised: that ends up protecting no one.