The Age of Criminal Responsibility (Scotland) Bill is currently at Stage 1 within the Scottish Parliament, and contains proposals to raise the age of criminal responsibility to 12 years from the current level of 8 – which stands as the lowest in Europe[1].

At our Managers’ Forum last month in Stirling, we welcomed Paul Beaton of The Scottish Government who presented on the Bill’s progress and intentions, giving our members the chance to hear directly from – and challenge – the proposed changes. While Paul delivered an excellent and detailed presentation, the feeling amongst attendees was certainly clear: the Bill as it stands lacks ambition, and will subsequently lack positive impact should it pass un-amended.

Set against the backdrop of The Scottish Government’s GIRFEC agenda and bold commitment to make Scotland the best place in the world for children and young people to grow up, the temperate proposals made in the Age of Criminal Responsibility Bill seem somewhat incongruent.

A minimum age of criminal responsibility (MACR) below the age of 12 years is considered by the UN Committee on the Rights of the Child ‘not to be internationally acceptable’[2], recommending instead a level of at least 12.

            States parties are encouraged to increase their lower MACR to the age of 12
            years as the absolute minimum age and to continue to increase it to a higher
            age level.[3]

As such, the Bill in its current form would take Scotland to the bare minimum standard as recommended by the UN – and keep us with one of (if no longer the) lowest MACRs in Europe. To further compound the lack of ambition in the Bill, the UN recommendations of which The Scottish Government seeks to simply to meet the floor were made over a decade ago, back in 2007.

This issue is one of particular pertinence for care experienced young people, who are disproportionately more likely to come in to contact with the justice system, and to be incarcerated, than their non-care experienced peers[4]. The Scottish Government has made some great steps forward with regards to access to higher education, council tax exemption[5], and an array of commitments within the Children and Young People (Scotland) Act to stand up for care-experienced young people. Yet the Age of Criminal Responsibility Bill represents more of a standstill, doing little to put the child rather than the offence at the centre, and little to usher in any form of cultural change or further understanding of the complex factors which influence behaviour in childhood.

Indeed, even for children under 12 years of age, the Bill does not appear to signal a radical shift in experiences of the system – as specific moderate changes included within the Bill are accompanied with caveats that undermine their initial principles. For example: on disclosure, it is stated that those under the age of 12 will no longer have convictions automatically disclosed[6], yet just a few lines later arrives the assertion that non-conviction information for under 12’s may still be disclosed on some occasions[7]. On investigative measures, the police will have the power to apply for a court order to take forensic samples from a child under 12[8].

The Bill is certainly cautious in its approach – and this raises questions as to why this is the case. A factor in the tentative nature of this bill could well be the optics that surround it: politicians may fear not being perceived as ‘tough on crime’, regardless of the effectiveness or social impact of punitive measures. Although, it is interesting to note that the issues around a punitive approach appear to be at least partially acknowledged within the Bill’s accompanying policy memorandum:

            We know that responding to childhood behaviour in a criminalising,
            stigmatising manner serves only to promote escalation and further harm.[9]

Yet this acknowledgement fails to translate into concrete proposals, or a shift towards a more child-centre, relationship based and trauma informed approach within the Bill itself. For the majority of children that will enter the justice system (aged between 12 and 17 years), the exact ‘criminalising, stigmatising manner’ which the Scottish Government itself notes is conducive to further harm will continue to be exercised, leaving young people – including those under the age of 12 who may still have information disclosed – to face stigmatisation and potentially denial of employment opportunities for the rest of their lives.

Of course, simply raising the MACR will not achieve a radical overhaul of the justice system or public opinion in and of itself. It is essential to tackle the root causes of offending behaviour: systemic poverty, adverse childhood experiences, and social discrimination. However, a bolder and wider-ranging commitment to ages 16 or 18 would help to begin shifting the narrative around criminality and childhood more broadly; to begin shaping a new vision of a system where children are supported rather than criminalised, and where justice is restorative and reparative rather than punitive.

Ultimately, the Bill in its current form does not appear to be standing up for Scotland’s children, but rather standing still. If Scotland truly is to become best place in the world for children and young people to grow up, then the Scottish Government must lead by example: proposed legislation should not be simply ‘internationally acceptable’, but should aspire to be internationally exceptional.

If you have any thoughts about the Bill, or about policy areas you would like to see Staf covering, please get in touch with Lewis Macleod, Policy and Events Officer, at [email protected]


References: 

[1] Scottish Government (2016) ‘The Report of the Advisory Group on the Minimum Age of Criminal Responsibility’ p.3

[2] United Nations (2007) ‘Committee on the Rights of the Child, General Comment No.10 (2007) – Children’s Rights in Juvenile Justice’ p.11 

[3] Ibid. p.11

[4] James Carnie and Roisin Broderick et al. (2017) ‘Scottish Prison Service Prison Survey 2017’ p.24

[5] Note: Currently only ‘Care Leavers’ as legally defined are entitled to council tax exemption, rather than all care experienced young people.

[6] Scottish Government (2018) ‘Age of Criminal Responsibility (Scotland) Bill As Introduced’ p.2

[7] Ibid. p.2

[8] Ibid. pg.26

[9] Scottish Government (2018) ‘Age of Criminal Responsibility (Scotland) Bill Policy Memorandum’ p.2