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What is the new age of criminal responsibility in Scotland? How it compares to the rest of UK and Europe

Scotland has raised the age of criminal responsibility - but does it go far enough and could the rest of the UK follow suit?

There have been calls to raise the age of criminal responsibility across the UK - with the age at which children can be prosecuted among the lowest in Europe.

It comes as the legislation to officially raise the age of responsibility in Scotland to 12 will fully come into force on Friday, two years after the bill passed its final Parliamentary Stage unanimously.

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But how does Scotland compare to the rest of the UK and Europe, and does it go far enough?

And could the rest of the UK follow suit?

How does Scotland and the UK compare with Europe?

Prior to the age of criminal responsibility being increased, children in Scotland aged eight and over could be charged with a crime, though only those aged 12 and over could be prosecuted.

The change gives Scotland the highest age of criminal responsibility in the UK – with it set at 10 in England, Wales and Northern Ireland.

The law to raise the age from 8 to 12 was passed in 2019, and other parts of the Age of Criminal Responsibility (Scotland) Act - which means children under 12 years old can not be considered an “offender” - have already been implemented.

An advisory group is monitoring the implementation of the new law, and will advise on potential changes, including a future age of criminal responsibility.

A Scottish Government spokesperson said: “The Age of Criminal Responsibility (Scotland) Act 2019 will make a positive difference to the lives of children in Scotland, reflecting this country’s commitment to advancing children’s rights while maintaining public confidence in our care and justice systems.”

Elsewhere in the UK, children between 10 and 17 can be arrested and taken to court if they commit a crime.

Young people going through the justice system are treated differently from adults - they are dealt with by youth courts and given different sentences. They are not sent to adult prisons but special centres for young people.

Although the age is increasing in Scotland, it and the rest of the UK are lagging behind many other countries across Europe, where the average age of criminal responsibility is 14.

The UN Committee on the Rights of the Child has recommended 14 years as the minimum age of criminal responsibility.

Albania, Austria, Germany, Spain and Russia all have theirs set at 14-years-old, while in Norway and Sweden it is 15.

In Portugal it is 16-years-old. Switzerland, however has its age at 10-years-old.

Many European countries have a higher age of criminal responsibility than the UK

How can being involved in the justice system impact on a child?

Contact with the youth justice system can often have negative impacts on children for a number of reasons.

Among them are the underlying causes of offending not being treated, being labelled or stigmatised and potentially leading to more offending if they do not get the support needed.

Susan McVie of Professor of Quantitative Criminology at the University of Edinburgh’s law school said:It is important to bear in mind that low level offending or anti-social behaviour can be a relatively ‘normal’ aspect of growing up and the majority of young people grow out of such behaviours naturally, without needing any formal intervention. 

“Youth justice should, therefore, be reserved only for those that exhibit the most problematic and dangerous behaviours, who need the most intensive support and actions to ensure the child and others are protected. “

She said it was “far more effective” to make sure youngsters were dealt with as children who needed support and that they and their families got access to the services they needed.

She added: “Our research from the Edinburgh Study of Youth Transitions and Crime found that the earlier a child is brought into the youth justice system, the more likely they are to end up in the adult criminal justice system. 

“Children under the age of 12 who offend often lack the capacity to fully understand what they have done, or the impact of this on others, and don’t have the maturity to cope with justice interventions.”

Meanwhile, criminal court lawyer and Law Society Scotland member, Grazia Robertson also highlighted the effect being involved in the youth justice system at a young age can have.

She said: “The worry is there’s a stigma that follows you throughout your life and from a very young age when you were very unformed very unaware and perhaps subject to all sorts of external forces, something happens you do something and then that stigmatises you for the rest of your life.

“There’s also an aspect of how much do you understand of your actions. Children by nature understand less, but younger children understand even less, is it fair to hold them in some way criminally responsible for certain acts when they are so young?”

There have been calls to raise the age of criminal responsibility even further

What has been said about raising the age of responsibility in Scotland?

Although the age had been raised in Scotland - some say it does not go far enough.

Bruce Adamson, Children and Young People’s Commissioner Scotland urged the Scottish Government to do more to raise the age further.

He said: “The choice to set the age at which we criminalise children to just 12 years old, two years below the international minimum human rights standard of 14, paints a grim picture of our commitment to children’s rights in Scotland.

He said: “The United Nations Committee on the Rights of the Child and the Council of Europe Commissioner for Human Rights both took the extraordinary step of intervening in Scotland when the legislation was being passed to make very clear that an age of criminal responsibility below 14 is unacceptable and that an age of 15 or 16 would better ensure children’s rights.

“International evidence shows that a low age of criminal responsibility does not keep us safer, nor does it provide an effective remedy for those affected by the behaviour of children.

“Criminalising children at age 12 can create lifelong negative impacts and increases the risk of further harmful behaviour. The new law coming into force does not follow the evidence nor properly respect children’s human rights. The Scottish Government must work to raise the age further and address some of the concerning aspects of the law in relation to police powers.”

Children & Young People’s Commissioner Scotland, Bruce Adamson

Susan McVie said while raising the age of responsibility meant reducing the criminalisation and labelling of children, increasing it even further would have more of an impact.

She said: “Raising the age of criminal responsibility to 12 is a starting point; however, this is still low when compared to the majority of other European countries.  In addition, there has been a distinct reduction in the prevalence of offending amongst children over the last 2 decades.”

She added that as a result of the “relatively small” number of children in Scotland under 12 coming to the attention of police, the new age of criminal responsibility would make little difference in practical terms.

She said: “Raising it higher, to 14 or 15, would make a far bigger difference.”

Have there been attempts to raise the age in the rest of the UK?

In the rest of the UK, there have been repeated calls to have the low age of responsibility raised. Currently there is an amendment tabled to the Police, Crime, Sentencing and Courts bill seeking to raise the age from 10 to 12.

The Local Government Association says it supports a review of the minimum age of criminal responsibility and recommends that a minimum age of 14 is adopted.

Baroness Bennett has also submitted an amendment to the same bill asking the Government to review the age of criminal responsibility within a year of the act being passed.

Meanwhile, spokesperson for the Howard League for Penal Reform said: “The age of criminal responsibility in England and Wales should be raised. 

“When young children are in trouble it is important that we see it as a welfare issue and not as something for the criminal justice system to respond to.

“Taking a welfare approach does not mean ignoring what has happened, but dealing effectively with the reasons why the child is in trouble with the law and trying to make sure it does not happen again.”

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