Right now, Scotland’s the only country in Europe where an 8-year-old can be treated as a criminal.
The Age of Criminal Responsibility (Scotland) Bill , which is making its way through the Scottish Parliament, proposes to change this by raising the minimum age of criminal responsibility (MACR) from 8 to 12.
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.
The Policy Memorandum for the Age of Criminal Responsibility Bill makes mention of “Scotland‘s progressive commitment to international human rights standards." But raising something to the minimum acceptable standard isn’t progressive.
If Scotland is to be the best country in the world in which 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.
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. Currently, children aged 8-11 can’t be prosecuted in a court in Scotland— but they can be arrested, charged and held responsible for a crime.
And these things can significantly affect their 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:
Are there other concerns with this Bill?
We’re worried that some of the measures in the Bill mean that the life chances of some 8-11-year-olds will still be unreasonably affected by their behaviour, even though that behaviour will no longer be considered as criminal.
This is because the Bill allows disclosure of what’s known as other relevant information (ORI) about someone under 12’s behaviour.
That’s information the chief officer of Police Scotland would believe was relevant for the purpose of an enhanced disclosure, or the type of regulated work a person applied to.
As written, the Bill would actually remove some rights of children under 8. At the minute, only 8-11-year-olds can have ORI recorded by Police Scotland, but under this bill that could happen to anyone under 12.
We don’t think this is appropriate: most 8-11-year-olds don’t commit serious offences, and don’t go on to commit further offending behaviour.
A disclosure scheme exists to balance public protection with people’s right to put past mistakes behind them, and in this case we don’t think the two are balanced correctly.
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.