Although Scotland had a minimum age of criminal responsibility (MACR) of just 8, since 2011 it has not been possible to prosecute children aged under 12 in a criminal court.
The challenge
Although Scotland had a minimum age of criminal responsibility (MACR) of just 8, since 2011 it has not been possible to prosecute children aged under 12 in a criminal court. To realign the minimum age of criminal responsibility with practice, and in response to sustained campaigns by a range of organisations and children’s rights advocates, including the Children and Young People’s Commissioner in Scotland, a bill proposing an increase in the MACR to 12 years was introduced and approved unanimously by Parliament in 2019.
Approach
Since the 1960s, Scotland has taken a very different approach to children involved in offending behaviour, with those aged between 12 and 15 only being prosecuted in court on the instructions of the Lord Advocate. Instead, both ‘troubled’ and ‘troublesome’ children are referred into the Children’s Hearings System, which is arguably more holistic and welfare-based than the English youth justice system, being focused on ‘needs’ rather than ‘deeds’.
The Age of Criminal Responsibility (Scotland) Act (2019) confirms that those aged under 12 cannot be held responsible for their involvement in offending behaviour. Nonetheless, supporting guidance makes it clear that incidents of harm committed by children aged under 12 will still be fully investigated and that appropriate interventions will be implemented to address the child’s behaviour. These measures now take place outside of the criminal justice system, to avoid the negative consequences of criminal justice involvement. The associated guidance emphasises that the need for effective investigation of harmful behaviour by children is essential, but that all interactions with children should be based on a trauma-informed approach that recognises the child’s wellbeing as a primary consideration. The guidance stipulates that, where appropriate, child protection measures or ‘Early and Effective Intervention’ processes should be instigated; because the child is below the MACR, there is no criminal justice system involvement, thereby avoiding the risks of potential criminalisation.
Evidence of impact
It is too early to be able to assess the impact of the change to the age of criminal responsibility. However, the Children and Young People’s Commissioner has highlighted potentially problematic aspects within the 2019 Act, particularly regarding disclosure, police powers and information-sharing, which could theoretically affect all children aged under 12, not just those aged 8-12. Furthermore, the Commissioner is calling for further increase still, with a call to ‘be bolder and aim higher’ [than the United Nations Committee on the Rights of the Child’s recommendation of a minimum of 14 years] and to have 18 as the starting point of discussion, with an accepted the minimum age of criminal responsibility of no less than 16.