Scotland is to stop treating children under 12 as offenders later this month after the Scottish parliament voted earlier this year to raise the age of criminal responsibility from eight.
The Scottish children’s commissioner, however, has criticised the measure as inadequate and urged ministers in Edinburgh to revisit the decision and raise the minimum age to 14.
Bruce Adamson said he had repeatedly urged Scottish government ministers to change their minds and follow expert advice from human rights bodies, including the UN, that 12 was too low.
“A country like Scotland, with all its advantages, is really out of step,” he said. “This I see as a failure. My position is we are in breach of our obligations and Scottish ministers should be bringing this back before parliament right now.”
Q&AWhat is the Children in the dock project?
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Children in the dock is an investigation into the youth justice system in England and Wales, which in 2018 saw 26,881 children aged 10-17 cautioned or convicted of crimes ranging from shoplifting and joyriding to rape and robbery.
No other EU country puts such young children on trial. Most other nations do not use an adversarial system which can see children separated from their parents and lawyers via bulletproof glass in what is essentially an adult courtroom with a different sign on the door.
Officially, the focus in youth courts is on rehabilitation, tackling the underlying causes of youth offending. But although there has been an 88% drop in the number of children cautioned or convicted since 2007, reoffending rates have increased. Just over 40% of children who go to court reoffend within a year; for those sent to youth custody, that figure rises to 71.6%.
Children who end up in trouble now are disproportionately likely to be of black, Asian or minority ethnicity. They are vastly more likely to be in care and they are extremely likely to have ADHD, autism spectrum disorders and communication difficulties. This series examines how the court system deals with these vulnerable children and explores whether there is a better way to break the cycle of offending and help them build productive and fulfilling lives.
The devolved government, which has full control over criminal justice in Scotland, won support for moving the age to 12 at Holyrood after arguing it marked a significant cultural shift.
A Scottish government spokeswoman said the reform would have a significant impact without further changes. “Scotland is leading the way in the UK and will make a real difference in children’s lives with this ground-breaking, progressive and child-centred age of criminal responsibility and victims getting the support they need.”
Children under 16 who commit offences in Scotland are very rarely prosecuted in the criminal courts system. They are referred instead to the children’s hearings system, normally by the police and often with the involvement of the prosecution service.
Unlike youth courts, its cases are judged by lay volunteers who take a welfare-based approach designed to investigate the causes of a child’s behaviour, which can lead to extra school or social work resources for the child.
The Age of Criminal Responsibility (Scotland) Act will not come fully into force until late 2020, but the referral of under-12s to a children’s panel for alleged offences will end in late November this year. Scotland stopped prosecuting children under 12 through the courts in 2011.
Quick GuideWhat is the age of criminal responsibility outside the UK?
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A range of ages across the world
Luxembourg
The age of criminal responsibility in Luxembourg is 18. A child does not commit “crimes”, but “acts qualified as crimes”, for which a specialised jurisdiction, the juvenile and guardianship court, is responsible for applying measures of protection, care or education.
Germany
Anyone aged 14 to 18 is considered to be a youth. Children under 14 are not held responsible for crimes and older children are only held responsible if morally and mentally mature when the offence took place.
Portugal
The age of criminal responsibility is 16, though children aged 12 and over can be considered to have committed crimes. Children under 12 are considered incapable of breaking the law, and are treated as victims, not offenders, if they do something that would be considered a crime for someone older.
New Zealand
Children under 10 cannot be prosecuted and 10- and 11-year-olds can only be prosecuted for murder or manslaughter. At 12 or 13 children can be prosecuted for certain serious offences if they have previously committed an offence that for an adult would be punishable by 10 or more years, or they have previously been declared in need because of offending behaviour and have now committed an offence for which the maximum penalty includes imprisonment of 10 or more years. However, children aged 10-13 cannot be held responsible for an offence unless it is proved they knew it was wrong. Anyone over 17 is treated as an adult, unless the crime was committed when they were 16 or younger.
United States
In 33 states, there is no minimum age of criminal responsibility, according to the Child Rights International Network. In theory, that means a child of any age could be convicted and sentenced. Of the states that do have a minimum, North Carolina's is the lowest at seven years. The minimum age of criminal responsibility for federal offences is 11, according to CRIN.
Adamson and bodies such as the Council of Europe, a civil rights body that runs the European court of human rights, argue this still means children over 12 can have an offence on their record, and can have contact with the police and procurator fiscal service.
He said the reform would affect only a handful of children. The latest data shows 94 children under 12 were reported for offences last year, 3.3% of the 2,824 children reported for offences, compared with 711 children aged 12 and 13, or 25% of the total.
The UN children’s committee and the Council of Europe had both advised the Scottish government and parliament that it would be preferable to aim for 15 or 16, with 14 seen as a minimum age of responsibility. Children’s brains cannot process risk or understand consequences in the way an adult’s can, Adamson said.
“This is totally out of step with where Scotland sees itself in terms of human rights and the international community,” he said. “The domestic and global evidence was so clear this was the right thing to do, but yet the government was unmoved.”
A Scottish government spokeswoman said an advisory group was being set up to oversee further reforms. Adamson said the commitment to review the new threshold after it had been in force for three years was too long to wait.
The spokeswoman said attempts by the Liberal Democrats and Scottish Greens to increase the age to 14 or 16 when the bill was being debated at Holyrood had been defeated by a margin of 10 to one.
“This clear consensus means it would not be appropriate now to go back on the pledges made in parliamentary debate and fail to conduct a review that ministers explicitly committed to during the passage of the bill,” she said.