At what age should children have a criminal record?

By Philip Sim
BBC Scotland political reporter

Image source, Getty Images

MSPs have debated a bill which raises the age of criminal responsibility from eight to 12 for the first time. What's the bill all about, and what will actually change?

What happens at the moment?

The age of criminal responsibility is the age at which a person is considered old enough to be responsible for their actions and held criminally accountable for them.

Currently, this age limit in Scotland is eight years old. This is two years younger than the rest of the UK, the lowest figure in Europe and one of the lowest in the world.

The cut-off point of eight years of age dates back to the Children and Young Persons Act 1933, which raised the age of criminal responsibility from seven to eight across the UK.

A Scottish version of the bill was passed in 1937, the wording of which remains on the statute book to this day: "It shall be conclusively presumed that no child under the age of eight years can be guilty of any offence."

An updated version of the law in 1963 raised the minimum age for the rest of the UK to 10, but this was not formally replicated in Scotland, where the youth justice system moved in a different direction with the establishment of the children's hearing system after the Kilbrandon Report in 1964.

However, since 2011 the age of criminal prosecution in Scotland has been 12 years of age, meaning children can only stand trial in a criminal court from that age up.

This means younger children are sent to children's hearings instead of court - but crucially, the judgements handed out there can still appear on their criminal record.

What is the proposal?

Image source, Police Scotland

The government's plan is to bring the age of criminal responsibility up to 12, into line with the age of criminal prosecution.

A move like this has been in the pipeline for a few years now. Minister set up an advisory group in 2015, which came back recommending the change.

Their argument stems from the fact that the majority of children referred to children's hearings for offences which could appear on a criminal record had been referred on care and protection grounds.

To put it simply, there was a strong link between harmful behaviour and other disruption or trauma occurring in the child's life.

The goal in raising the age of criminal responsibility was therefore to recognise the link between childhood trauma and offending behaviour, and to make sure children are not "criminalised or stigmatised".

A public consultation was subsequently held in 2016, which came back with responses 95% in favour of raising the age limit to 12.

Earlier this year, ministers tabled the Age of Criminal Responsibility (Scotland) Bill, which now faces its first parliamentary test.

Is this a big issue?

There has actually been a sharp decline in the number of young people prosecuted in Scotland's courts in recent years.

In 2006-7, there were 9,813 people aged 12 to 17 prosecuted - but by 2015-16 this had fallen to 2,203, a decline of 78%.

And the number of young people aged 8 to 11 referred to the children's reporter on offence grounds - so the kind of thing that can end up on a criminal record - has also been on the wane.

According to the government, this figure was up at 798 in 2010-11, but dropped to 205 by 2016-17 - a decline of 74%.

Taking 2014-15 as a snapshot, data collected by the Scottish Children's Reporter Administration shows 75 children being referred as a result of being charged with assault, 55 for threatening or abusive behaviour, 28 for causing "distress/racial alarm", 15 for shoplifting, 14 for theft and 13 for assault to injury.

Looking at the most recent figures, the vast majority of children reported on offence grounds are over the age of 12 anyway, with 14 and 15 the most common ages. The 2017-18 report from the children's reporter administration shows that eight to 11-year-olds made up less than 8% of such referrals.

Image source, SCRA
Image caption,
The bulk of children referred to the reporter on offence grounds are over 12 anyway

What do other countries do?

At present, Scotland's age of criminal responsibility is one of the lowest in the world. Few countries use a lower age, although these include some very populous countries in India, Pakistan and Nigeria, all at 7 - the lowest national age globally.

In the rest of the UK, it is set at 10 - still lower than any other country in the EU, where 12 is the lowest but some countries like Portugal, Lithuania and Luxembourg have it as high as 16.

The UN Committee on the Rights of the Child says that 12 should be "the absolute minimum", and that anything lower is not considered "internationally acceptable".

A number of Asian countries set the age at 14 - including China, Japan, North and South Korea and Vietnam - and some South American countries have opted for 18, including Ecuador, Colombia and Uruguay.

The United States of America has two layers to its justice system. While only children from the age of 11 up can be charged with a federal offence, there are 33 states where there is no minimum age of criminal responsibility at all.

Is 12 high enough?

Image source, Getty Images

There is broad support at Holyrood for raising the age of criminal responsibility. The equalities and human rights committee, which includes SNP, Conservative, Labour and Lib Dem members - unanimously signed up to the general principles of the bill.

However, the committee also gave a hint at what the key debate around the legislation might be - just how high the age limit should be raised.

Their stage one report noted a "shared commitment to improving outcomes for children and young people", but said some members backed the bill "in the knowledge it could be used to raise the age to 14, 16 or 18 years old".

The Lib Dems - who pushed for the age of responsibility to be raised in 2015 - want it set at 14.

MSP Alex Cole-Hamilton pointed to the UN recommendation, saying the government "should not be contented to do the bare minimum".

The government has argued that children over 12 were judged to have "sufficient understanding" to make a will, instruct a solicitor and consent to or veto their own adoption.

The policy memorandum for the bill concludes that "it is considered that reform to raise the age to 12 is the most appropriate at this stage".

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