Last Friday the 6th of July, the Equalities and Human Rights Committee closed its consultation on its proposal to raise the minimum age of criminal responsibility (MACR) in Scotland from 8 to 12. HLS welcomes this and recognises it is an important advance, however, this will still leave us lagging behind other more progressive European justice systems. HLS urge the government to not limit our aspirations to merely have the highest MACR within the UK, but to take this opportunity - as crime continues to fall and fewer young people are in the justice system - to firmly establish Scotland as one of the most progressive youth justice systems within Europe.

The Scottish government suggest that 12 is the age of criminal responsibility suggested by the UN Committee on the Rights of the Child. However, this misrepresents the UN Committee’s position, which in General Comment 10[1], said the following:

“Rule 4 of the Beijing Rules recommends that the beginning of MACR shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. In line with this rule the Committee has recommended States parties not to set a MACR at a too low level and to increase the existing low MACR to an internationally acceptable level. From these recommendations, it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable. States parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level. 

33. At the same time, the Committee urges States parties not to lower their MACR to the age of 12. A higher MACR, for instance 14 or 16 years of age, contributes to a juvenile justice system which, in accordance with article 40 (3) (b) of CRC, deals with children in conflict with the law without resorting to judicial proceedings, providing that the child’s human rights and legal safeguards are fully respected.”

Therefore, a correct interpretation of the UN Committee position is not that it recommends that 12 should be the minimum age, but rather that the minimum age should never be below 12 - as such, 12 is the bare minimum of acceptability proposed by the Committee. Indeed, the UN Committee makes the case that a MACR of 14 or 16 sits well with the UNCRC. While HLS welcomes the introduction of legislation to raise the minimum age in line with the current minimum age for prosecution, we urge the Scottish Parliament to adopt the higher age of at least 16, in the interests of promoting a forward-thinking and fair system of justice for young people in Scotland. 

This would also build on the success of the Whole System Approach, which recognises the hugely detrimental and destructive impact contact with the criminal justice system has on children and young people [2]. Those young people who come into contact with the criminal justice system are as troubled as they have been troublesome. How the state responds to them can significantly change the course of their life. Being drawn into the justice system can stigmatise and label young peopleand therefore socially marginalise them as they find it more difficult to re-enter life with their peers. Moreover, contact with the criminal justice system at an early age can actually reduce the likelihood that a young person will desist, making future criminal transgressions more likely [3]. As such, by increasing the minimum age of criminal responsibility we will increase the health, wealth and happiness of Scotland’s young people and contribute to reducing crime.

This is a serious issue for our justice system that we must get right, particularly as Scotland currently has the lowest age of criminal responsibility in Europe – but we now have the opportunity to transform Scotland into a more progressive and just nation. However, merely raising the age of minimum criminal responsibility to 12 will mean Scotland has not gone far enough to align our justice system with those countries whose aspirations for social justice we otherwise share. Following HLS’s recommendation, and adopting a minimum age between 14-16, would bring Scotland into line with, for example, Norway (15 years), Finland (15 years), Portugal (16 years), and Sweden (15 years).

The proposed Bill also suggests a number of changes relating to the disclosure of offences and provides that any conduct by a child below the age of 12 that would previously have been recorded as a conviction will no longer be recorded as such. However, the Bill does will allow for disclosure of ‘other relevant information’ held by the police about pre-12 behaviour. If the MACR is raised, then there will in fact be no legal responsibility under this age and thus there can be no such thing as ‘offending behaviour’ by anyone below the minimum age. In logic and in law this demand should become redundant. Moreover, disclosure hinders people’s prospects, if children are to be protected from the legal barriers of disclosure as they become adults then there can be no loophole which permits young people to forever to labelled as ‘ex-offenders’. Therefore, HLS advocates that there should be no suggestion that the police can hold or disclose information about ‘behaviour.’ 

Any recorded information that it was felt necessary to retain about a child or indeed any person should only be recorded and retained with judicial consent and with full transparency to the child and parent. Further, it should only be shared with judicial consent and not disclosed routinely in relation to employment, education etc. during enhanced disclosure provisions. The impact of retained records on children may be more likely to trap a child in offending rather than protect the community.

Finally, the Government suggests that raising the minimum age of criminal responsibility would necessitate changes in relation to information that can be provided to victims. HLS argue that the balance to be had should accord with the right to privacy of the child accused of committing an offence. The UN Committee (footnote 1) considers that:

“the right to privacy also means that the records of child offenders should be kept strictly confidential and closed to third parties except for those directly involved in the investigation and adjudication of, and the ruling on, the case.”

The provision of information to victims appears to contravene this right to privacy. The needs of victims can be met through other means, however. For example, in Ireland restorative justice conferencing is used with the voluntary participation of the victim (or their parent if the victim is a very young child) and that of the child or young person. These meetings can offer information and an opportunity for restitution and research and evaluation consistently demonstrates that restorative justice can provide a better experience of justice by both parties [4].

In conclusion, HLS welcomes the move to raise the minimum age of criminal responsibility. However, we urge the Scottish Parliament to ensure that the age is set at 16, so that the proposed legislation will advance Scotland towards full compliance with the recommendations of the United Nations Committee, and to take the utmost care not to create powers that will infringe the rights of children and young people or inhibit their future opportunities.    

Read more:
HLS Consultation response MACR     

ENDS

[1]http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf(Accessed 1st July 2018)

[2]McAra, L., & McVie, S. (2005). The Usual Suspects? Street-life, Young People and the Police. Criminal Justice, 5(1), 5-36.

 [3] ibid.

[4] Quigley, Martinowicz and Gardiner (2015) Building Bridges: An Independent Evaluationof Le Chéile’s Restorative Justice Project, Research Findings, IRISH PROBATION JOURNAL Volume 12.