The age of criminal responsibility in Scotland will increase from eight to 12 from 17 December 2021, as the Age of Criminal Responsibility (Scotland) Act 2019 comes fully into force.
It is already the case that a child under 12 cannot be considered an "offender", and will not be prosecuted. The offence ground for referring a child to a children’s hearing has also been removed through the commencement of s 3 of the Act in November 2019.
The Act contains safeguards to ensure that harmful behaviour by children under 12 can be responded to in an appropriate way, which will not criminalise children.
In addition to the formal provision raising the minimum age, the provisions about to come into force relate to powers enabling Police Scotland to investigate incidents where a child below the age of criminal responsibility is behaving in a violent or dangerous way, causing or risking causing serious physical harm to another person, or is behaving in a sexually violent or sexually coercive way, causing or risking causing harm (whether physical or not) to another person. These powers can only be used in the most serious cases, and in most cases require a court order to be exercised. The children's legal assistance scheme has been amended to cover children subject to such an order.
Other new provisions cover the duty on a children’s hearing to consider the need for further reports, and the duty on Scottish ministers to review operation of the Act in general, and with a view to considering a future age of criminal responsibility: some campaigners maintain that 12 is still low by international standards, and the minimum age should be raised to at least 14.
Any non-conviction information relating to harmful behaviour that occurred when a child was under 12 can no longer automatically be disclosed by the state, but only after it has been considered by an independent reviewer.
Statutory guidance on use of the power to take a child to a place of safety, and on the investigative interview, was published on 2 September 2021. Operational guidance is being finalised by Social Work Scotland, Police Scotland and COSLA.
Regulations to establish the register of child interview rights practitioners are in place, and a number of solicitors will shortly be appointed as child interview rights practitioners, having successfully completed pre-appointment training.
Children's Minister Clare Haughey said said the law would mean that "primary school-aged children will no longer be stigmatised from being labelled as offenders at such a young age, which will improve their life chances and wellbeing".
She added: "Evidence shows that many children and young people who display harmful behaviours are highly vulnerable and have experienced trauma and adversity. They may have been victims of crime in their own lives. Understanding this, and responding with compassion and willingness to work with children will ensure that fewer enter the criminal justice system as they grow up.
"The Act has safeguards to ensure that serious harmful behaviour will be investigated appropriately and that victims will continue to get the support they need and to have their voices heard."