First non-HEA post in a while, but I simply had to take a few minutes to comment on this news I have seen today. 12 charities have called on the Scottish Government to make provision to have the age of criminal responsibility raised from 8 to 12 in line with the age of criminal prosecution (which was raised as a result of the Criminal Justice and Licensing (Scotland) Act 2010, from 8 to 12 three years ago).
What angers me about this is the ignorant misunderstanding about how youth justice actually works in Scotland, and the call itself demonstrates that senior figures in these charities simply do not have a clue how the law is applied in this area.
To clarify – and it really is incredibly simple which is why I have a real problem with such a call being made – we currently have a two tier approach to youth justice in Scotland which can be separated into two distinct age groups:
1. Children aged 12 and over.
These children can be prosecuted in the adult courts and be given a criminal record if appropriate. However it has to be pointed out that up until the age of 16, the vast majority of children between 12 and 16 are not in fact prosecuted in this way. Over 95% of children in this age bracket are dealt with by the children’s hearing system (more about that below). It is only those very rare and gravely serious offences such as murder and rape where a child offender is actually dealt with in the adult courts, and even then there are various safeguards put in place as the child offender is legally classes as a vulnerable witness. In fact, beyond the age of 16, if a child is a repeat offender who has had a previous care package in place then they can actually remain in the children’s hearing system until the age of 18.
2. Children between the ages of 8 and 12 (8, 9, 10 & 11)
Until 2010, the age of criminal responsibility and prosecution in Scotland was simply 8, and it was changes made as a result of the Criminal Justice and Licensing (Scotland) Act 2010 that created the two tier system we currently have. Now, those children in this age bracket (8, 9, 10 & 11) cannot be prosecuted and can only be dealt with via the children’s hearing system. Again, it has to be pointed out, that prior to these changes there was a misconception that many children were being hauled in front of the adult courts. This could not be further from the truth. In fact less than 0.5% of offences committed by children in this age bracket were dealt with by the adult courts. The other 99.5% were dealt with by the children’s hearing system. Again, of course, these were only the very most serious of offences.
As a result of the changes made in 2010, the only real difference is that the discretion within this age range as to how a child of this age can be dealt with has been taken away and now they must be dealt with only in the children’s hearing system.
One thing I have to point out here, is that if a Thompson and Venebles type situation were to happen in Scotland now where two 10 year old children were to intentionally kill a younger child, we no longer have the option to prosecute even if it can be established beyond doubt that in reality those offenders knew and understood the consequences of their actions. Just a thought.
In any case, regardless on your opinions on the above, just to clarify the role of the children’s hearing system, where currently all offenders in this age bracket must be dealt with. It is not a punitive system and never has been. There is no criminal record attributable to a child who has been in the system. Instead, it is a purely welfare based approach that is taken based on what is in the best interests of that child. The result of a child being found to be responsible for their actions is that a care package is put in place that could involve social work intervention, counselling etc. Regardless of what care package is put in place, it is all about helping that child, to enable them to create a brighter future for themself, and most certainly is NOT about stigmatising, punishing or belittling them.
This is where the EU, the UN and all of the political commentators got it wrong when debating and creating the new laws in 2010. Sadly, this is also where ALL of these charities are also getting it wrong today in 2013. The incorrect assumption seemed to be back in 2010 that just because Scotland’s age of criminal responsibility was the age of 8, that this meant that all, or at least a sizeable number of children were actually being prosecuted. As such, a rash and needless change to the law was made. Sadly, the people calling for these changes today still just don’t ‘get it’. Again, the children they are discussing are not currently being hauled in front of the courts, quite the opposite, they are being cared for.
The thing is, this wasn’t a damaging change in 2010, as those children aged 8-11 could still be dealt with appropriately within the children’t hearing system as illustrated above. On the other hand, the potential changes being discussed today would be hugely damaging to the welfare of identifiable ‘at risk’ children in this age range, as no formal welfare based approach could be taken, and no care package put in place. Of course, there are other potential grounds for referral that could still be used in some cases (say based on truancy, or being outwith parental control etc.), but these would not be able to be used in all, or even a majority of cases in their current forms. Indeed, it may be that the ages attributed to these would end up being raised in line with the proposed changes were they to come to fruition, so we simply cannot bank on being able to use those grounds as a fall back option.
These proposed changes cannot be allowed to proceed, if they do then it is a sad day for both the law and also the welfare of children the length and breadth of Scotland.