In May 2019 the Scottish Parliament passed a law setting the minimum age of criminal responsibility (MACR) at 12, 2 years below the minimum acceptable standard of 14.

The Scottish Government still hasn’t set a date for this new minimum age to come into force, so right now Scotland has the lowest minimum age of criminal responsibility in Europe— at just 8 years old.

This is an unacceptable situation, and it needs to change.

Our policy work on the minimum age of criminal responsibility

What is a minimum age of criminal responsibility? What should that minimum age be?

A country’s minimum age of criminal responsibility is the lowest age where a person who commits an offence is considered to have enough maturity to understand their actions— and the fact they can be held criminally responsible for them.

It’s not the same as the minimum age of prosecution.

Right now, children aged 8-11 can’t be prosecuted in a court in Scotland. But they can still be arrested and charged, and that information could appear on a disclosure check. These are things that can significantly affect a person’s education options and the jobs they might be able to get, even once reaching adulthood.

What does the UN Committee on the Rights of the Child say?

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The UN Committee on the Rights of the Child is the body set up by the UN to monitor the progress that States make in keeping their human rights promises under the UNCRC. It’s made up of 18 independent experts on children’s rights from different countries.

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The UN Committee on the Rights of the Child creates general comments to:

  • provide interpretation and analysis of specific UNCRC articles so that States have guidance around putting these into practice, and
  • deal with how the UNCRC applies to broad issues related to the rights of the child.

An example of the first kind of general comment would be General Comment 17, which provides additional information around Article 31 of the UNCRC. An example of the second kind would be General Comment 16 on the impact of business on children’s rights.

The situation in Scotland is very different to what the UN Committee on the Rights of the Child recommends.

In their General Comment No. 24, they stress the need for a higher minimum age – such as 14 or 16 – to create a system that complies with Article 40 of the UNCRC.

Article 40 says that – whenever appropriate or desirable – measures that deal with a child in conflict with the law shouldn’t have to resort to judicial proceedings— legal measures carried out in a court of law. This is true as long as legal safeguards and that child’s human rights are fully respected.

What do other international bodies say?

Other international child rights bodies also support a higher minimum age of criminal responsibility. For example:

Why is 12 too low a minimum age of criminal responsibility?

For a long time, the UN has been clear that a minimum age 12 isn’t something a country should be aiming for.

13 years ago, in their General Comment No 10, the UN Committee on the Rights of the Child said it’s the absolute minimum that’s acceptable— and that countries should raise it to a higher age.

In May 2019, the Committee released General Comment No 24 on children’s rights in the child justice system, which calls on states to raise the MACR to a minimum of 14. 

Ad in its 2019 Concluding observations, the UN Committee against Torture said Scotland’s age of criminal responsibility of 12 was not in line with international standards.

If Scotland is to be the best place in the world in which to grow up, we need to raise the age of criminal responsibility beyond 12 to make sure we support children rather than treat them as criminals.

We need to be bolder and aim higher. And we need to reflect our progressive commitment in legislative change, with a much higher age of criminal responsibility.

The starting point should be discussion on raising it to 18, and we think the minimum age of criminal responsibility should be at least 16 in Scotland.

What are some human rights concerns with the Age of Criminal Responsibility Act?

Following the passage of the Age of Criminal Responsibility (Scotland) Act, the  MACR in Scotland will rise from 8 to 12. We don’t know when this law will come into force. 

But the international human rights community’s message is clear: the minimum acceptable age of criminal responsibility is 14, and that any age below that can’t be justified in human rights terms.

When this Act was before the Scottish Parliament, the Council of Europe’s Commissioner for Human Rights called on Scotland to raise its MACR to at least 14 – and preferably higher – in line with international standards.

And evidence from Professor Anne Skelton, a member of the UN Committee on the Rights of the Child, made it clear the Committee considered 14 the minimum acceptable age.

The Scottish Government has convened a forum to discuss raising Scotland’s MACR beyond 12. But this won’t review the age for at least three years, by which point a new Parliament will be in session.

That doesn’t meet the standards of international human rights bodies. They say we must raise our minimum age of criminal responsibility immediately.

In our briefing to MSPs ahead of the final debate around the Age of Criminal Responsibility Bill, we made our stance on this clear:

“In choosing to restrict its work on this issue to raising the age to 12, the Scottish Government has created a situation where it now lacks the confidence that systems are in place to allow us to meet the international minimum standard of 14.

“This failure demands urgent action.

“12 and 13-year-old children should not need to wait a period of years before the Scottish Government meets its minimum obligations in terms of their rights.”

What about people harmed by children below the age of criminal responsibility?

Of course, children can and do harm other people, and often the people they harm are children themselves.

If someone’s safety is compromised by another person, then they have the human right to remedy of some form. That’s still true when it isn’t appropriate to prosecute that person, or to consider their behaviour as criminal.

So if someone does come to harm because of the actions of someone below the minimum age of criminal responsibility, they still deserve support, and acknowledgment that the harm they’ve been caused has been taken seriously.

And they should be able to know attempts are being made to make sure the harm doesn’t happen again.

But that doesn’t mean children should be criminalised: that ends up protecting no one.

International evidence, including the Edinburgh Study of Youth Transitions and Crime, has found that early involvement in the criminal justice system increases the likelihood of a child continuing to engage in behaviour which is harmful to themselves and others.