I spotted an interesting legal story recently -at the start of December – on a topic which always proves to be controversial.It involves the Scottish legal system, the age of criminal responsibility, and the new proposal from a Minister in the Scottish Government to increase the age of criminal responsibility.
Mark McDonald, the Minister for Childcare and Early Years, announced a few weeks ago that Scotland’s minimum age of criminal responsibility will be raised to 12 years, in line with UN standards. The current minimum age of eight, which is the lowest in Europe, was labelled a “national embarrassment” by the Minister. The Scottish Government therefore would bring forward legislation to raise the age by four years, having called the case for it “clear and compelling”.
In a statement to Holyrood, Mr McDonald told MSPs:
“Having the lowest minimum age of criminal responsibility in Europe does not match with our progressive approach to youth justice and ambitions to give children the best start in life.
“Raising the age of criminal responsibility will mean people no longer face potentially damaging and life-altering consequences, such as a criminal record, for events that took place when they were a young child.”
He added that he recognised the need for safeguards in exceptional cases, and that police would still have powers to investigate serious offences committed by children under 12s.
Liam McArthur MSP, the Scottish Liberal Democrat Spokesperson for Justice, welcomed the decision. His predecessor in the role Alison McInnes, had advocated the rise, but her attempts to alter the law by bringing forward amendments to a criminal justice bill in the last Holyrood session were voted down by the SNP.
Mr McDonald told the chamber on Thursday that he wanted to put on the record his thanks to Ms McInnes for pressing the issue.
The debate about the age of criminal responsbility in Scotland is not a new one. The Scottish government raised the age of criminal prosecution to 12 in 2010, assuring that no one under that age could be prosecuted or sentenced in the criminal courts but would be dealt with through children’s hearings. However, those outcomes would still be added to children’s criminal records.
A recent consultation with police, prosecutors and victims’ groups in Scotland found that 95% supported an increase to the age of 12 or above.
The minimum age of criminal responsibility in Northern Ireland is 10. Ths is the same in England and Wales. The UN Committee on the Rights of the Child has stated that setting the age of criminal responsibility below 12 is considered “not to be internationally acceptable”.
In 2008, Great Britain was urged by the UN Committee on the Rights of the Child to raise the age of criminal responsibility, ban corporal punishment (including parental smacking at home), and regulate the appearance of children in reality TV shows. While welcoming positive developments made by the then Labour Government, the UN Committee presented a harsh critique of the UK’s legal and social shortcomings in a major report. On raising the age of criminal responsibility, the report called on the UK Government to “fully implement international standards of justice” and “raise the minimum age of criminal responsibility”.
In Northern Ireland, the issue of raising the age of criminal responsibility was broached last year by the then Justice Minister, David Ford. Mr Ford called for the age to be increased t0 12, saying that young children who are criminalised in Northern Ireland should be “treated as victims, not offenders”. Mr Ford, a former social worker, stressed the importance of addressing the main cause of criminal and/or anti-social behaviour of young children:
“Often young people who offend are acting out offending behaviour which they witnessed or has been perpetrated on them, they are in need of care, not punishment – these children in many cases are victims themselves.”
Mr Ford added:
“Criminalising children is far less effective than addressing the root causes of their behaviour, working with them and their families to support more positive outcomes for them.”
He said children aged 10 or 11 accounted for less than 1% of those in the youth justice system in Northern Ireland.
Advocates of raising the of criminal responsibility, including the Probation Board for Northern Ireland, have urged Ministers in Northern Ireland to set an example for rest of the UK. (To read an excellent article about the movement to increase the age of criminal responsibility in Northern Ireland, see Dr Nicola Carr’s article on QPOL.)
Koulla Yiasouma, the Children’s Commissioner for Northern Ireland said in 2015 that raising the age to 12 would not open any floodgates, noting in 2012/13 there were no 10 or 11 year-old children convicted in any court. Moreover, she said she was bewildered that the Assembly had been unwilling to engage in reasonable debate on the issue: “Not only is there no appetite to raise the age, but also there is significant opposition.”
Interestingly enough, the Hillsborough Agreement of 2011 (which led to the devolution of justice powers to Stormont) recommended ncreasing the age of criminal responsibility.
This low age raises a bundle of contradictions: it is out of line with other responsibilities including the age of sexual consent (16), the age at which it is legal to drive a car (17) and the age at which a person is entitled to vote (18). This situation means that in Northern Ireland, a young person could be charged with a sexual offence at age 10 while they cannot actually consent to sex until age 16.
Moreover, there have been reports suggesting that the age of criminal responsibility in England, Wales and Northern Ireland could be “unreasonably low” given the emerging understanding of how slowly the brains of children mature, according to a report (2011) by the Royal Society. Widespread differences between individuals also mean that the cut-off age at which children are deemed fit to stand trial, at 10 years old, just might not be justifiable in all cases. The comments were part of an assessment carried out by a panel of scientists, lawyers and ethicists of how developments in neuroscience and brain imaging should inform the future practice of law.
Research has shown that there is huge variation between individuals and that the development of the slowest-developing parts of the brain is associated with comparable changes in mental functions such as IQ, suggestibility, impulsivity, memory and decision-making. In particular, the prefrontal cortex, which is responsible for decision-making, impulse control and cognitive control, is among the slowest parts of the brain to mature and is not fully developed until around the age of 20. In contrast, the amygdala, an area of the brain responsible for reward and emotional processing, develops during early adolescence.
The legal question of criminal responsibility actually also shows how science, particularly neuroscience, should form part of general policy debates around criminal justice.
The minimum age of criminal responsibility varies across many countries. It ranges from 18 in Belgium, 15 in Denmark, 14 in Italy, 13 in France and 12 in the Netherlands. These inter-jurisdictional disparities reflect different attitudes and approaches to the treatment of children and young people. In countries with relatively higher ages of criminal responsibility, young people are more often dealt with within child protection and welfare systems. In such countres, therethus is a recognition that there are often underlying wider needs amongst these young people including experiences of multiple adversity – abuse, poverty, domestic violence, substance misuse and mental health difficulties. This was the very point that David Ford was trying to make whilst he was in post as Justice Minister in Northern Ireland.
It will be interesting to see whether the recent developments in Scotland reverbrate across the Irish Sea, and reach Northern Ireland.