Consultation on the Minimum Age of Criminal Responsibility

Overview

CONSULTATION ON AGE OF CRIMINAL RESPONSIBILITY

Introduction

Our vision of Scotland as the Best Place to Grow Up is one that extends to all our children and young people.  A holistic approach to understanding and responding to the needs of children and young people, including those involved in harmful offending behaviour, is part of the legacy of the Kilbrandon Report (1964).  This helps improve life chances, promotes more positive outcomes and makes Getting It Right for Every Child (GIRFEC) a reality.

Over the last 8 years there has been an 82% reduction in children referred to the children’s hearings system on offence grounds.  Preventing Offending: Getting It Right for Children and Young People, published in June 2015, provides a clear set of priorities to help minimise the number of children in the criminal justice system.  Our strategy includes consideration of the age of criminal responsibility and improving children’s life chances.  Dealing with offending behaviour effectively and supporting children and young people to move on is the best way of reducing reoffending and minimising the number of future victims.

The age of criminal responsibility is a significant and complex policy area, which raises sensitivities due to the potential for rare, serious cases involving young children.  Children under 12 cannot be prosecuted in court in Scotland, but those aged 8 and over can be referred to the children’s hearings system on offence grounds.

The minimum age of prosecution was set at 12 through changes in the Criminal Justice and Licensing (Scotland) Act 2010.  That change has worked well, though it has not ended discussion about the age of criminal responsibility.

The Scottish Government established an Advisory Group in Autumn 2015 to give detailed consideration to the issues and implications associated with the minimum age of criminal responsibility, and to make sure they could be properly addressed in advance of a consultation.  That Group’s role has been to consider the implications of raising the minimum age of criminal responsibility from 8 to 12 and to produce a report which will form the basis of this consultation.  Information on the membership, terms of reference and work of the group is available at:

http://www.gov.scot/Topics/Justice/policies/young-offending/MACR

The Advisory Group’s report has recommended that the age of criminal responsibility be raised from 8 to 12, and that such a move is accompanied by a number of proposed supporting safeguards.  The Group has considered the underlying policy, legal and procedural implications of raising the age of criminal responsibility and made recommendations around (i) care, protection and risk management, (ii) the role of the children’s hearings system, (iii) disclosure and (iv) police powers.

The key recommendations from the Advisory Group are:

• Raise the minimum age of criminal responsibility from 8 to 12 years, accompanied by safeguards to maintain system cohesion and reinforce victim and public confidence;
• No change is required to current Children’s Hearings grounds for referral in anticipation of any MACR change, because one or more of the other existing grounds could be applied.
• Police should continue to be able to investigate incidents, and new procedural safeguards - adapted from child protection rather than criminal justice - should support children and families through that process;
• Where children under 12 display harmful behaviour the focus should be on care, protection and wellbeing to address risk as part of a GIRFEC approach;
• Non-conviction information relating to harmful behaviour involving children under 12 can be disclosed in exceptional circumstances, subject to independent ratification; and
• Any changes should not adversely affect victims’ rights.  If needed, new provisions should be created for people harmed by children, including other children.

While the Scottish Government remains open to considering future change, Ministers are not taking a firm position on these matters at this point. Consultation will enable broader dialogue of the issues raised and the recommendations of the Advisory Group.  The consultation process will inform a decision by Ministers in the next session of the Scottish Parliament.

Context

Why 12?

Alignment with the minimum age of prosecution, meeting the minimum international expectation from the UN and reflecting the age at which children are presumed to have capacity to instruct a solicitor, form and express a view in the children’s hearings system and consent to an adoption order offer a clear set of reference points for consulting on a change to 12.  While it is recognised that there may be some calls to raise the age of criminal responsibility to an age higher than 12, the Advisory Group on Age of Criminal Responsibility was asked only to address the underlying issues and implications of raising the age to 12.  It has taken evidence, commissioned work and reported on that basis.  The approach that is recommended by the Advisory Group and being consulted on here is intended to offer a framework which could be used if there was to be an increase to 12.

Offence referrals involving children aged 8-11

The Group’s recommendation to raise the age of criminal responsibility to 12 is based in part on research evidence from the Scottish Children’s Reporter Administration, published alongside the Group’s report.  The SCRA Research on 100 children aged 8-11 referred on offence grounds is available at http://www.scra.gov.uk/publications/index.cfm.  The research found that offending amongst this group of children was rare and serious offending even rarer.

For those children aged 8-11 years referred to a Children’s Hearing on offence grounds in 2013/14, the majority were also referred on care and protection grounds, or already had compulsory supervision measures in place.

Data from SCRA on offence referrals, disaggregated to illustrate referrals involving children aged 8-11:

                                              2011-12         2012-13         2013-14         2014-15

          Children referred        31,371            22,398            19,077            15,858

          Children referred        5,336              3,473              2,764              2,891

          on offence grounds

          8-11 year olds              496                 255                 209                 215

          referred on offence

          grounds

The number of children aged 8 to 11 years old referred for offending has declined by 52 per cent over the 4 years shown above, and by 73 per cent over the past 5 years.

In 2014-15, there were 215 children aged 8 to 11 years old referred to the Reporter for offending.  Only 12 of them needed compulsory supervision.

The most common offence types referred to the Reporter in 2014-15 involving children aged 8-11 are shown in the table below.  The totals here are higher than the number of children referred as some children are referred on more than occasion or more than one ground.

          Offence type                                                               Number of children

          Assault                                                                                      75

          threatening or abusive behaviour                                             55

          vandalism                                                                                 50

          cause distress/alarm racial                                                       28

          Theft by shoplifting                                                                   15

          Theft                                                                                         14

          Assault to injury                                                                        13

Consultation

This consultation invites respondents’ views on the principle of raising the age of criminal responsibility from 8 to 12, and the safeguards recommended by the Advisory Group to address harmful behaviour involving children who would be younger than the new age of criminal responsibility.

Consultees are encouraged to read the Advisory Group Report [link to SG publications] on Age of Criminal Responsibility carefully before responding.  Associated documents including SCRA Research and the Children’s Rights and Wellbeing Impact Assessment  provide useful context.

Some international profiles have also been published by the Centre for Youth and Criminal Justice

The Advisory Group considered 4 main themes and made recommendations in each area as well as some overarching key recommendations.

These are:

•       Care, Protection and Risk
•       The Role of the Police
•       Children’s Hearings System
•       Disclosure

Consultation questions are set out on the next pages, alongside some contextual information and a reference to the relevant part of the Advisory Group report.

The question inviting views on the principle of raising the age of criminal responsibility is left to the end to ensure that consultees have the opportunity to consider the overall approach recommended by the Advisory Group.

Questions are set out under the following areas:

•   Care, Protection and Risk
•   The Role of the Police
•   Children’s Hearings System
•   Disclosure and Protection of Vulnerable Groups
•   Victims and Witnesses
•   Age of Criminal Responsibility

The consultation will take place over the period 18 March to 10 June 2016. 

Consultation questions

We will welcome any general comments.  However, you may wish to consider the following specific questions.  You don’t need to answer all of these questions.  If you prefer, you can answer only the questions that you want to comment on.