With the passing of the Management of Offenders (Scotland) Act 2019, the Age of Criminal Responsibility (Scotland) Act 2019 and the Disclosure (Scotland) Act 2020 the law in Scotland should in the future better respond to the very different nature of childhood offending behaviour from adult offending and reduce adverse implications later in life. Together they create a distinct disclosure system for childhood behaviours which almost entirely ends automatic disclosure.
We have worked to try to influence these changes and are pleased that the law should now better protect a child’s right to grow up and move on from past mistakes. We regret though that offences established in the welfare-based Children’s Hearings System may still be disclosed in some circumstances.
| If you need legal information or advice for yourself or a young person you are supporting, Clan Childlaw can help – please call 0808 129 0522, email info@clanchildlaw.org, or reach us through Facebook messenger to speak to one of our lawyers. |
Some of the legislation has come into force, but not all, so not all the changes have taken effect yet – we are monitoring this progress.
So what are the changes in the new laws?
| Category | What the law says | What this means for children and young people | Relevant law | Is the new law in force yet? |
| Age of criminal responsibility | The age of criminal responsibility is increasing from 8 to 12, meaning children under 12 can’t be arrested or charged with an offence. They can’t be referred to a children’s hearing on offence grounds, only care and protection grounds. The law does not apply retrospectively – convictions acquired between 8-11 years old from before the new age of criminal responsibility comes into force will still exist, however the new disclosure rules will apply. | Children under 12 can’t be criminalised for their behaviour, they won’t get a criminal record. BUT, police can still hold information about a child aged between 8-11’s behaviour, and they can disclose this information on certain criminal record checks, if the Independent Reviewer thinks it ought to be shared. People who were convicted between 8-11-years-old before the new law comes into force will still have a conviction, and this may still be disclosed as Other Relevant Information (ORI) as above. | Age of Criminal Responsibility (Scotland) Act 2019 Section 1 – Raises the age Section 3 – Referral to Children’s Hearings Section 4 and 10 – Circumstances in which pre-12 behaviour can be disclosed Sections 14-20 – Process for review of information for disclosure as ORI | Section 1, raising the age – Not in force yet Section 3, referral grounds – Yes, in force Sections 4-20, disclosure and review – Yes, in force |
| Unspent convictions or Children’s Hearing outcomes | All offences established in the Children’s Hearings System become immediately ‘spent’. Almost all childhood convictions established in court become immediately ‘spent’ too. | On job applications and basic (‘Level 1’) criminal record checks, a record of criminal behaviour committed between the age of 12-17 will almost never have to be disclosed (For information on the offences that remain unspent and disclosable read our explainer). | Management of Offenders (Scotland) Act 2019 Section 29
Section 1 Schedule 5 para 2 | For Children’s Hearings outcomes – Yes For convictions from adult courts – No. However, the Management of Offenders (Scotland) Act 2019 shortened disclosure periods, in force. |
| Spent convictions or Children’s Hearing outcomes | Information on spent convictions and Children’s Hearings outcomes, if a List A offence, or if a List B offence and 5.5 years hasn’t passed, can be disclosed if it is decided by Disclosure Scotland, that the information is relevant and ought to be disclosed. This decision can be reviewed on appeal to an Independent Reviewer, and challenged in a Sheriff Court (the latter on a point of law only). Other Relevant Information can also be disclosed if the Chief Constable thinks relevant and ought to be disclosed. This decision can also be reviewed and appealed. | For more enhanced (‘Level 2’) criminal record checks, for example if applying to a job in a ‘sensitive role’ like working with vulnerable people, information on childhood offences may be disclosed, in restricted circumstances. Find out more about what this means and how this will work in our ‘disclosure explainer’.
Decisions to disclose children’s hearings outcomes, childhood convictions or Other Relevant Information can be challenged if the person feels it isn’t appropriate to include or isn’t accurate information. The person subject to the disclosure must apply for the review. | Disclosure (Scotland) Act 2020 Sections 8, 9, 10, 13, 14 – Conditions for Level 2 disclosures Sections 20, 22, 23, 24, 30 – Process of review and appeal Schedule 1 and 2 – List A and B offences | No – read more |
Read more on this subject and Clan Childlaw’s contribution to these changes in the law:
DISCLOSURE OF CHILDHOOD CRIMINAL RECORDS – EXPLAINED!
FIND OUT MORE ABOUT OUR CONTRIBUTION TO CHANGES TO THE LAW ON THE DISCLOSURE OF CHILDHOOD OFFENDING
FIND OUT MORE ABOUT THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY
Disclaimer: This is intended as a guide and not as an authoritative statement and interpretation of the law. If you have any questions or would like further information or legal advice, please call 0808 129 0522 or email info@clanchildlaw.org.
