Recommendations of an advisory group on measures necessary to support the raising of the minimum age of criminal responsibility have been put out to public consultation.
The expert group, made up of senior professionals from disciplines including the police, the Crown Office & Procurator Fiscal Service, and support workers for children and child victims, was tasked with looking at the detail of what might be needed to support a raising of the minimum age from eight of 12 and highlighting issues that would need to be addressed, as well as framing an approach to wider public consultation. While it took as its starting point that the minimum age would be raised, its consultation questions open with one on whether respondents agree that this should be done.
The group focused on four areas: how any risk posed by the harmful behaviour of a child under 12 could be successfully managed; the implications for the children’s hearings system; the impact on police powers and their ability to investigate an incident; and the implications for the disclosure scheme.
While conscious of some of the challenges that would exist in terms of shifting public thinking towards supporting a higher age of criminal responsibility, particularly for those very rare cases where serious harm is caused, the group points to research for the Scottish Children's Reporter Administration which found that, for those children aged 8-11 years referred to a children's hearing on offence grounds in 2013-14, the majority were also referred on care and protection grounds, or already had compulsory supervision measures in place.
It recognises, therefore, that there is a strong link between harmful behaviour and other disruption or trauma occurring in a child's life, and believes that no change is required to the children's hearings grounds for referral ahead of any raising of the minimum age, because one or more of the other existing grounds could be applied.
The report recommends that raising of the age "should mark a clear departure from the involvement of young children under 12 in criminal procedures or in disclosure systems". It calls for a multi-agency scoping study to determine whether the move would create any particular skills or knowledge gaps across those working with, or making decisions about, children displaying harmful behaviours.
It also wants to ensure that there is appropriate and effective support available to victims affected by harmful behaviour.
As regards the police, the group believes that in the most serious circumstances a power should be created to take a child to a place of safety, to allow enquiries to be made in relation to the child's needs, whether or not there is parent or carer support. It would also be important to provide the child with the opportunity to provide their account of events and identify all relevant risks and needs. Interviews should take place subject to safeguards based on the principles of children protection procedures and joint investigative interviews. In the most serious circumstances, a power should be created to allow for forensic samples to be obtained.
Unless in exceptional circumstances, the group concludes that any non-conviction information relating to children under 12 at the time of an incident, which is in exceptional circumstances then submitted by the police or other government bodies for inclusion on an enhanced disclosure or PVG scheme record, should undergo independent ratification before release. Further, any person who accrued a conviction or proven offence ground under the age of 12 under current legislation should no longer have that disclosed unless in exceptional circumstances and if it is independently ratified as being absolutely necessary.
Consideration should also be given to ceasing the disclosure of convictions accrued under the age of 18, with a provision to disclose details of such conduct as police "other relevant information" following independent ratification.