AGE OF MAJORITY AND STANCE TOWARDS UN CRC
The age of criminal responsibility in Scotland was set at 8 years by the Children and Young Persons (Scotland) Act 1937 and remains in place today. This is very low in comparison to other European jurisdictions. As discussed earlier, most children and young people who offend are referred to the CHS, which largely protects them from prosecution by retaining them within a system which is required to hold their welfare as its paramount consideration (see McDiarmid 2013). Irrespective of the CHS however, Scotland’s low age of criminal responsibility has given rise to concern from children’s rights proponents and other legal commentators (McDiarmid 2013; UNCRC 2007).
The UN Convention on the Rights of the Child (1989), which states that signatory states shall seek to promote “the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law”, was ratified in the UK in 1991. The UNCRC has stated clearly that the absolute minimum acceptable age of criminal responsibility should be 12 years (UNCRC 2007); and, indeed, have singled out Scotland, England and Wales for criticism over their low age of majority (UNCRC 2008). The approach taken by the CHS, and the inclusion of 16- to 18-year-olds within the ambit of Children’s Hearings, was welcomed by the UN Committee monitoring compliance, but it expressed concern that young people aged 16 and 17 could be tried in adult courts.
In 2009, the Scottish Government proposed increasing the age of criminal prosecution to 12 years, although it stopped short of recommending that the age of criminal responsibility be raised from 8 years. The 2011 Children’s Hearings (Scotland) Act (s. 25) subsequently restricted the prosecution of children only to those aged 12 or over, unless there were exceptional circumstances, based on the seriousness of the offence or the age of their co-accused, and only on the instructions of the Lord Advocate (Scotland most senior prosecutor). In practice, however, this happens very rarely. Immunity from prosecution is not quite the same as decriminalisation, and these arrangements do not mean that the acquisition of criminal responsibility at the age of 8 is without consequences. However, these are somewhat moderated by the requirement that a disposal by a Children’s Hearing should not be overtly punitive, and there are restrictions placed on the recording of offences admitted or established through the CHS. At age 16 or 17 years, young offenders who are already on a compulsory supervision order imposed by the CHS (or awaiting the outcome of a referral) may (at the discretion of the Reporter or a court judge) be retained within the juvenile system, but at 18 years, all are dealt with by the adult court system.
With a commitment to GIRFEC principles underpinning juvenile justice, as enshrined in the Children and Young People (Scotland) Act 2014, focus has once again returned to the age of criminal responsibility in Scotland. In response, a recent government policy document, Preventing Offending: Getting It Right for Children and Young People (Scottish Government 2015a), made a clear commitment to keeping children out of the criminal justice system and promised to review the age of criminal responsibility again. An expert Advisory Group was set up to consider the issue and approached it not from the perspective of if it should happen, but rather how and when it should happen. The final report of the Advisory Group recommended that the Scottish Government raise the minimum age of criminal responsibility from 8 to 12 years, and ensure that children under age 12 are only referred to the CHS on non-offence grounds (Marshall 2016). At the time of writing, the Scottish Government has put the matter out to public consultation before making a final decision.
-  Rehabilitation of Offenders Act 1974, ss. 3, 5(3)(b), 5(5)(f).