Scottish Government launches consultation on raising age of criminal responsibility from eight to 12

Proposals to raise the age at which children can be held responsible for their crimes from eight years old to 12 have been put out to consultation by the Scottish Government.

The consultation, which will run until after the election in May, comes after experts within the criminal justice and children’s sectors considered safeguards that should go hand in hand with any increase in the age of criminal responsibility.

The group, which included senior representatives from Police Scotland, Social Work Scotland, Children and Young People Commissioner Scotland and Victim Support Scotland, said that government and parliament should take “early action” to raise the minimum age.

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Children under 12 cannot be prosecuted in court in Scotland, however those aged eight and over can be referred to the children’s hearings system on offence grounds.

Scottish ministers told the UN Committee on the Rights of the Child in 2012 that they would review whether the age of criminal responsibility - which is currently the lowest in Europe - should be increased to 12 during the lifetime of this parliament.

As part of any increase in the age of criminal responsibility, the advisory group recommended police should continue to be able to investigate incidents with new powers called for “in the most serious circumstances” to allow for the interview of children and forensic samples to be taken.

Any individual convicted under the age of 12 under current legislation “should no longer have that disclosed unless in exceptional circumstances”, the group said. 

Their report has also called for consideration to be given to blocking the disclosure of convictions picked up by those under the age of 18 with details only disclosed following independent ratification.

A government spokeswoman said: “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.”

Claire Lightowler, director of the Centre for Youth and Criminal Justice, said the current set-up sees the “most vulnerable and victimised children” often the ones who are held criminally responsible at the age of eight.

She said: “While sometimes young children may be able to differentiate between right and wrong, when the life experiences of those children involved in offending are taken into account, they have not always benefited from parenting or guidance to help support their ability to differentiate. In fact, of course, sadly some parents actively encourage their children to commit offences.

“But more than an ability to understand right from wrong, I would also argue that to hold a child criminally responsible for their actions they should be able to understand what the law requires them to do or not to do, and also to be able to understand the consequences of any act they commit.

“This ability to think through the social consequences of impulsive acts requires a higher level of understanding than just what is right or wrong. I find it difficult to think of an 11-year-old who is capable of this level of comprehension."

Scottish Liberal Democrat justice spokesperson, Alison McInnes, who previously attempted to raise the age via an amendment to the Criminal Justice Bill that the government refused to back, said: “The SNP rejected innumerable opportunities and attempts from Scottish Liberal Democrats to change the law.

"Only after the umpteenth time of asking and following international condemnation from the UN Committee on the Rights of the Child they finally set up this group. And now they clearly hoped to sneak out this final report quietly.

“The SNP must now finally join us in committing to the raise immediately in the next session of parliament and start doing the right thing by Scotland’s children.”