IF Scotland is to become the best place in the world to grow up, can we hold on to the notion of eight-year-old criminals? That was the question posed by the Scottish Government as its consultation into the minimum age of criminal responsibility closed earlier this month. There really can only be one answer: no. But it’s the wrong question.
The Advisory Group on the Minimum Age of Criminal Responsibility, which was established last September and reported in March, was not asked to decide what the minimum age should be. Rather, it was asked to report back on the potential implications of raising the age from current eight years old to 12, the minimum considered acceptable by the United Nations. Some regard this is a positive step towards raising the age higher. However, a cynic might venture that raising it to 12, and getting the pesky UN off our backs, will bring an end to the debate while giving the impression we’ve done something important.
The only way those aged eight to 11 can be held to account for offending is for a children’s reporter to refer them to a children’s hearing
Symbolically, it will be important. In practical terms, it will make little difference. The minimum age of criminal responsibility may currently be eight but the minimum age of prosecution is 12, so the only way those aged eight to 11 can be held to account for offending is for a children’s reporter to refer them to a children’s hearing on offence grounds. At such a hearing, the grounds will be put to the child and those deemed “relevant persons” (usually the parents), who will have the opportunity to accept or deny them. In the event of denials the case can be referred to a sheriff, who will determine whether it can be established beyond reasonable doubt that the offence was committed. If the grounds are admitted or established, the child acquires a criminal record.
In practice, this rarely happens in the cases of children aged eight to 11. The great majority of children’s hearings deal with care and protection concerns, rather than offending – a dramatic shift since the system was first introduced in the 1970s. In 2014-15 some 215 under-12s were referred to the reporter on offence grounds, a 73 per cent reduction compared to five years earlier. Research by the Scottish Children’s Reporters Administration (SCRA) found only six per cent of such cases are ultimately referred to hearings and only two per cent solely on offence grounds. So with a handful of exceptions, changing the law will simply bring it into line with existing practice. And the most serious offending behaviour by young children will not be ignored – it will simply be dealt with under grounds that do not involve criminalisation.
Only the most dedicated of the ‘tough on crime’ brigade would try to argue that children should be labelled as offenders well into adulthood because of something they did aged eight, nine, 10 or 11
Only the most dedicated of the “tough on crime” brigade would try to argue that children should be labelled as offenders well into adulthood because of something they did aged eight, nine, 10 or 11. But should any child suffer this fate, given what we know about adolescent brain development and the weight of evidence about young people growing out of crime? Law centre Clan Childlaw is among many organisations to have highlighted the potential for offences to be subject to disclosure for many years. It has claimed “the only way to eradicate that consequence for children under 12 who exhibit offending behaviour is to raise the age of criminal responsibility from 8 to 12.”
But it’s not; there is another way.
The acceptance or establishment of offence grounds need not be treated as a criminal conviction at all. Indeed, the Children (Scotland) Act 2011 made provision for changes that would have this recorded as an “alternative to prosecution” instead. To date this has not been enacted, and once again Scotland is doing the bare minimum to meet international standards.
In September last year Disclosure Scotland was forced to stop issuing certificates as a result of a landmark ruling by the UK Supreme Court. It followed a challenge by an English man who, when applying for a part-time job and later a university course, had been forced to disclose that aged 11 he’d received police warnings in connection with bike thefts. He was backed by campaign group Liberty, which successfully argued such disclosures were incompatible with the European Convention on Human Rights (ECHR). The relevant Scottish legislation was hastily amended, a move that has meant a reduction by half of the disclosure period for some offences committed by under-18s. What might surprise you is that this reduced period is seven-and-a-half years.
Although it was only asked to consider the implications of raising the age of criminal responsibility to 12, the Advisory Group nonetheless made a recommendation relating to all offenders who accrued convictions when under 18: that the disclosure of these be ceased altogether. They argued the turbulent period of adolescence was no reliable indicator of how a young person would turn out, and that law-abiding adults should be allowed to “leave behind behaviour that was associated with their youth and lack of maturity”.
The ball is now in the Scottish Government’s court to not just comply with the requirements of the UN and ECHR, but to honour the principles on which the Children’s Hearing System is based. Its purpose is not to punish children, but instead focus on their “needs, not deeds”. However, young people are being punished nonetheless, by criminalisation that can follow them well into adulthood and hamper their life chances. These are already some of our most disadvantaged young people. Let’s give them a chance to grow up and move on.
A version of this article first appeared in The National