Age of Criminal Responsibility (Scotland) Act 2019 – from 29th November under 12s can no longer be referred to Hearings on offence grounds

November 28th 2019

The Age of Criminal Responsibility (Scotland) Act 2019 received Royal Assent on 11th June 2019. Once fully commenced, the Act will increase the age of criminal responsibility from eight to 12 years of age. Section 1 provides:  

A child under the age of 12 years cannot commit an offence. 

Section 1 will come into force only once the necessary secondary legislation, multidisciplinary professional guidance and training have been devised and delivered.  

However, from 29th November 2019, children who commit an offence when aged under 12 will no longer be able to be referred to a Children’s Hearing on offence grounds. They can only be referred on care and protection grounds. 

(see The Age of Criminal Responsibility (Scotland) Act 2019 (Commencement No. 1 and Transitory Provision) Regulations 2019 which commence sections 3 and 27 of the Act). 

Until section 1 comes into force, behaviour of 8-11 year olds can still be investigated as a crime, but it will not be possible for the Reporter to refer those children to a Hearing on the ground that they have committed an offence. They cannot receive a criminal record.

Section 27 on the provision of information to persons affected by child’s behaviour also enters into force. Section 27 inserts new sections 179A to 179C into the Children’s Hearings (Scotland) Act 2011 which provide for victims of a child’s offence or harmful behaviour to request certain information from the Principal Reporter. The new sections detail the type of information that can be provided and the factors the Principal Reporter must consider when deciding whether or not to release the information. (For further details see the Policy Note on the 2019 Regulations).  

In addition to the raising of the minimum age of criminal responsibility, the Act also makes significant alterations to the disclosure of information and police powers in respect to under 12s. There is not date yet for these parts of the Act coming into force. 

Update: the Age of Criminal Responsibility (Scotland) Act 2019 (Commencement No. 2) Regulations 2020 came into force on 31st March 2020 with the purpose of commencing the provisions needed for Ministers to make regulations and produce and issue guidance. The instrument does NOT raise the age of criminal responsibility – this will only happen when Section 1 is commenced and there is no date for this yet.