Raising the age of criminal responsibility would bring consistency across Scots law, according to the Law Society of Scotland in its response to a Scottish Government consultation.
A move, backed by the Society, to raise the criminal age of responsibility in Scotland from eight to 12 to bring it into line with the age of criminal prosecution was defeated at stage 2 of the Criminal Justice (Scotland) Bill, passed before the end of the last parliamentary session. Ministers opposed the amendment but agreed to consult further on the issue.
An advisory group was then set up and consulted on a series of recommendations.
The Society proposes that the law should be brought into line with the United Nations Convention on the Rights of the Child, which does not specify a particular age of criminal responsibility but regards setting the age below 12 as “not to be internationally acceptable”.
Ian Cruickshank, convener of the Society’s Criminal Law Committee, commented: “Scotland’s age of criminal responsibility is currently the lowest in Europe and we fully support the advisory group’s recommendation to raise it from age eight to 12. The interests of the child must be paramount and it is crucial that their welfare is the focus of attention even in the difficult circumstances of offending behaviour. We do not think that children under the age of 12 should have their actions recorded as criminal.
“There are also inconsistencies in our law in that the age of criminal responsibility is currently eight years, but the age at which a child can be prosecuted is 12. This creates confusion in people’s understanding of criminal law and how it relates to children.”
However the Society has concerns about a further suggestion of the advisory group that the police should have an unspecified power of detention, where a child’s parents or carers are not willing to cooperate with necessary enquires by police or social work.
Mr Cruickshank observed: “While we believe that the police should retain some powers, as they still need to investigate the nature and extent of any alleged harmful behaviour, we think there should be a general presumption against taking forensic samples from children aged eight to 11. In exceptional cases where police are of the view that forensic samples should be obtained, we believe an application for a warrant should be obtained from a sheriff and that any samples taken should not be retained.”