In May 2019 the Scottish Parliament passed a law setting the minimum age of criminal responsibility (MACR) at 12. This law comes fully into force on 17 December 2021.
However, this still leaves Scotland’s age of criminal responsibility two years below the minimum acceptable international standard of 14. The United Nations Committee on the Rights of the Child and the Council of Europe Commissioner for Human Rights have raised serious concerns about the decision to set the age at just 12 in Scotland.
The UN Committee has called on States to follow the extensive scientific evidence about child development and raise the minimum age of criminal responsibility higher than the absolute minimum of 14 and setting an age of 15 or 16.
Criminalising children at age 12 is an unacceptable situation, and it needs to change.
Our work on the minimum age of criminal responsibility
What is a minimum age of criminal responsibility? What should that minimum age be?
A country’s minimum age of criminal responsibility is the lowest age where a person who commits an offence is considered to have enough maturity to:
- understand their actions, and
- understand the fact they can be held criminally responsible for these.
It’s not the same as the minimum age of prosecution.
Right now, children aged eight-11 can’t be prosecuted in a court in Scotland. But they can still be arrested and charged, and that information could appear on a disclosure check.
These are things that can significantly affect a person’s education options and the jobs they might be able to get, even after they reach adulthood.
What does the UN Committee on the Rights of the Child say?
The UN Committee on the Rights of the Child creates general comments to:
- provide interpretation and analysis of specific UNCRC articles so that States have guidance around putting these into practice, and
- deal with how the UNCRC applies to broad issues related to the rights of the child.
An example of the first kind of general comment would be General Comment 17, which provides additional information around the right to play, Article 31 of the UNCRC. An example of the second kind would be General Comment 16 on the impact of business on children’s rights.
More in the Rights questions and answers section
The situation in Scotland is very different to what the UN Committee on the Rights of the Child recommends.
Article 40 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— legal measures carried out in a court of law. This is true as long as legal safeguards and that child’s human rights are fully respected.
What do other international bodies say?
Other international child rights bodies also support a higher minimum age of criminal responsibility. For example:
- The Parliamentary Assembly of the Council of Europe (PACE). Its 2014 resolution Child-friendly juvenile justice: from rhetoric to reality calls for it to be set to at least 14.
- The Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice and the European Rules on Juvenile Offenders subject to Sanctions and Measures both recommend a high minimum age.
Why is 12 too low a minimum age of criminal responsibility?
For a long time, the UN has been clear that a minimum age 12 isn’t something a country should be aiming for.
In 2007, 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.
In May 2019, the Committee released their General Comment No 24 on children’s rights in the child justice system, which calls on states to raise the MACR to a minimum of 14.
And 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.
International evidence has found that early involvement in the criminal justice system increases the likelihood of a child continuing to engage in harmful behaviour.
The best way to address this behaviour is early intervention, supporting families in crisis and children at risk. Many children in conflict with the law have complex or traumatic childhood experiences, so we need community-based early intervention services.
If Scotland is to be the best place 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 the minimum age of criminal responsibility should be at least 16 in Scotland.
What are some human rights concerns with the Age of Criminal Responsibility Act?
Following the passage of the Age of Criminal Responsibility (Scotland) Act, the MACR in Scotland will rise from eight to 12.
Age is too low.
The international human rights community’s message is clear: the minimum acceptable age of criminal responsibility is 14, and that any age below that can’t be justified in human rights terms.
Under the new law the Scottish Government is required to review the age over a three year period and then report to Parliament within a year. The delay in raising the age to 12 means that the review period will now run until the end of 2024 and doesn’t need to report until the end of 2025. That is six and half years after the law was passed.
This doesn’t meet the standards of international human rights bodies. They say we must raise our minimum age of criminal responsibility immediately.
Our stance on the Age of Criminal Responsibility Act
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.”
Rather than take a rights-based approach, the new law risks undermining children’s rights in relation to disclosure, police powers and information sharing.
The law allows for the recording and disclosure of pre-12 behaviour as ‘Other Relevant Information’ for all children under 12, not just those aged eight to 11 as previously. This is a retrograde step for human rights. If the police can hold or disclose information about ‘behaviour’, this is effectively disclosure without many of the checks and protections that currently exist.
There are new powers of investigation extended to all children under 12 and not just to children aged eight to 11 as before. This means that more children could be brought into contact with the police than would have been previously.
This can have a life-long negative impact on children.
New powers include strip searches of children, taking of prints and forensic samples and interviewing, and removal to be detained in ‘places of safety’.
This is unnecessary as Scotland already has a welfare-based system for responding to children in need of care and protection in the Children’s Hearings System.
And the new powers will operate under Civil law, yet will be administered through Police Scotland, where children’s behaviour will be used as a mechanism to assess needs, entirely outwith the existing statutory framework of the dual justice systems.
Children’s rights to privacy
We need to remain cautious about provisions in the law on information sharing and children’s rights to privacy. It is understandable that those who are harmed by children’s behaviour may wish to know what has happened to that child. However, this is not proportionate.
If children are not criminally responsible for the actions, it is not appropriate to share their personal details and breach their privacy rights under article 8 of the ECHR and articles 16 and 40 of the UNCRC.
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 also 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.
International evidence, including the Edinburgh Study of Youth Transitions and Crime, has found that early involvement in the criminal justice system increases the likelihood of a child continuing to engage in behaviour which is harmful to themselves and others.