Criminal age to be raised to 12
The age of criminal responsibility at which children can be prosecuted in adult criminal courts will be raised to twelve.
This will bring Scots law into line with jurisdictions across Europe and implement a key recommendation of the 2002 Scottish Law Commission report.
In raising the age of criminal responsibility from eight to 12, ministers have taken on board the views of the United Nations, but have ruled out suggestions the age should be raised to 14 or even 16.
The new measures, to be included in the Scottish Government's forthcoming Criminal Justice and Licensing bill, will mean that children under twelve will instead be held to account for any offending behaviour through Children's Hearings.
This system, which is respected internationally and has been emulated, most recently in Guernsey, addresses the needs and behaviour of children and young people who face serious problems in their lives.
Another measure in the bill, which was originally announced last year, will scrap the law that allows children to be locked up in Scottish jails without being convicted of an offence through so-called 'unruly certificates.'
Justice Secretary Kenny MacAskill said:
"All Scotland's children have the right to be protected and supported in their early formative years. There is no good reason for Scotland to continue to have the lowest age of criminal responsibility in Europe. Most importantly, the evidence shows that prosecution at an early age increases the chance of reoffending - so this change is about preventing crime.
"We have made clear our commitment to the UN Convention on the Rights of the Child to promote and support the rights of all children in Scotland. The measures in the bill have taken the UN Committee's comments into consideration by meeting the needs of children while still managing any risk appropriately.
"In setting a higher age under which children will not be prosecuted we will ensure that police and other agencies can continue to take the necessary action to protect the wider community and to hold young people to account for their behaviour, where appropriate.
"This change does not mean that any eight to eleven year olds will be let off. Rather they will be held to account in a way that is appropriate for their stage of development and ensures that we balance their needs with the need to protect our communities.
"I am also committed to ensuring that children never go to jail. Prison is no place for children.
"That is why, hand in hand with raising the age of criminal responsibility, we are going to scrap 'unruly certificates'.
"By allowing more youngsters to be placed in secure care instead of locked up in a prison alongside hardened criminals, we will ensure that the secure estate can be used to benefit both vulnerable young people and the wider community."
Temporary Assistant Chief Constable Gordon MacKenzie, Central Scotland Police and Chair of the ACPOS Youth Issues Group said:
"ACPOS supports the move to increase the age at which children and young people can be prosecuted to 12 years. We agree that this strikes the right balance between the age a young person understands that their behaviour is harmful and their ability to understand court proceedings.
"The vast majority of young people are a credit to their communities. Very few young people come to the attention of the police for committing very serious offences but when they do we must be able to act in a way that protects public safety and also supports the young person to change their behaviour.
"ACPOS also agrees that remanding 14 and 15 year olds to prison is no deterrent. There are occasions when communities need to be protected from the harmful behaviour of some young people but we are not well served by locking them in adult prisons. Alternatives such as secure care provide the type of support and security that better serves the needs of young people and their communities."
A spokesperson for Victim Support Scotland said:
"Victim Support Scotland welcomes the Scottish Government's move to recognize the UN Convention on the Rights of the Child on the age of criminal responsibility. The right balance is being struck to ensure that there are still ways of dealing with crime committed by children and young people while recognizing that they have no place within the prison system."
He also welcomed the scrapping of 'unruly certificates' with the option of secure care, if necessary, rather than the use of prisons.
Netta Maciver, Principal Reporter/Chief Executive of the Scottish Children's Reporter Administration (SCRA) said:
"These changes to the age of prosecution in Scotland reflect a real confidence in the Children's Hearings System. They confirm that the Hearings System is the best way to deal with children who offend.
"Many of these young people also come to our attention due to concerns about their welfare and the Hearings System ensures they get the most appropriate form of intervention and support."
Professor Barry Goldson of the University of Liverpool, a leading international authority on youth justice systems, commented:
"To impose the full weight of criminal responsibility on a child as young as eight implies that the interests of justice are best served by treating children of that age in precisely the same way as the system treats adults.
"That is plainly absurd. Raising the age of criminal responsibility in Scotland builds upon the fine traditions of the Children's Hearings System and it offers a more humane and effective response to tackling the complex issues that beset children in conflict with the law."
Commenting on the scrapping of unruly certificates, Dr Andrew McLellan, Her Majesty's Chief Inspector of Prisons said:
"I have said so often that prison is no place for a child. I welcome with no hesitation this long-awaited move. I have no doubt that Young Offenders Institutions do their best for children, but it can never be right. Today the future is a little brighter for some of our most difficult, vulnerable - and indeed dangerous - children; and that means it is brighter for us all".
No eight year olds have been prosecuted in an adult court in Scotland in the last five years. Only one under 12 year old has been prosecuted in an adult court in the last five years. Approximately 2,400 eight to 11 year olds were referred to the children's reporter on offence grounds in 2007-08. This number is decreasing. In 2005/06 the number was 3150.
In practice more than 99% of under-16s who offend are dealt with through Scotland's Children's Hearings that is internationally feted for its child-centred, needs-based approach to young people in conflict with the law.
Consideration has been given to the recommendations of the 2002 Scottish Law Commission (SLC) report which proposed to set an age under which children are immune from prosecution. The SLC concluded that an age of criminal responsibility should be understood to mean the age under which children are not open to the full rigour and punishment of the criminal justice system.
The SLC report suggested that 12 would be an appropriate age as children under this age are not considered to be of sufficient maturity to instruct a solicitor in civil proceedings, and as a consequence to have the capacity to pursue and defend civil proceedings themselves. The criminal law is out of sync with that treatment of children in the civil law. 12 is also the minimum age suggested by the UN Committee.
Under Section 51 of the Criminal Procedure (Scotland) Act 1995, a child aged 14 or 15 who appear before a court charged with a serious crime or offence may, because of their unruly character, be detained in the prison system.
In 2007-08 13 young people were remanded to prison custody. This is a reduction on previous years which saw 27 young people remanded in 2006/07 and 26 in 2005-06.
total of £20.5m central funding has been provided to support the refurbishment and expansion of Scotland's secure estate.
In December 2007 the Minister for Community Safety Fergus Ewing announced that Intensive Support and Monitoring (ISM) which can include an electronic tag, available through the Children's Hearings system for children, as an alternative to secure care would be extended from the seven phase one local authority areas to apply across Scotland. Regulations to extend the availability of ISMs were brought into force in April 2008.
UN Convention on the Rights of the Child
Article 40(3) of the UNCRC requires the Government to set a minimum age below which children shall be presumed not to have the capacity to infringe the penal law, but does not mention a specific minimum age. The UN's General Comment no 10 (2007) on juvenile justice makes clear its view that a minimum age of criminal responsibility below the age of 12 is not "internationally acceptable" and that all countries should raise their minimum age to at least 12 and preferably 14 or 16.
In its two most recent comments on this issue through its "Concluding Observations" on implementation of the UNCRC in the UK, the UN called for the UK (including Scotland) in 2002 to "considerably raise the minimum age of criminal responsibility" and in 2008 to "raise the minimum age of criminal responsibility in accordance with General Comment no 10", ie to at least age 12.
In raising the age of minimum prosecution to 12 we will ensure that no child under that age in Scotland can be held responsible in a penal law procedure. Rather any child of that alleged to have committed an offence will be held to account through the children's hearings system which will challenge their behaviour while acting in their best interests.
In December the Scottish Government launched a consultation on its draft response to the 2008 UN Concluding Observations. As part of this, 4 consultation events were held in January and February 2009. There were a variety of views expressed at these events on the age of criminal responsibility, with a significant majority believing that the age should be raised. Some suggested it should be raised either immediately or incrementally to 16, others argued that it should rise to 18.
The Children's Hearings System was set up following the recommendations of the 1964 Kilbrandon report to provide a welfare-based, holistic response to addressing the needs and risks of children who offend, or latterly, come to attention because of neglect or abuse. The volunteer-led system is widely admired among the international community and other jurisdictions including England & Wales, and most recently Guernsey have used it as a model for reforms.
The Government recently undertook a consultation on reforms to the Children's Hearings System. The reform programme will seek to modernise the system, boost local accountability and strengthen the role of panel members to support improved outcomes for children and young people. "
Criminal Justice and Licensing Bill
The Criminal Justice & Licensing (Scotland) Bill, to be published this month [March], will contain provisions to strengthen the criminal law, reform criminal procedure, reduce re-offending and so further protect communities from crime.