The Age of Criminal Responsibility (Scotland) Act 2019 raises the age of criminal responsibility from 8 to 12 years. This main provision of the Act has yet to come into force, but once it does it will mean children under 12 can no longer be criminalised for their behaviour: they can’t be arrested or charged with an offence, and they won’t get a criminal record.
The Bill received Royal Assent on 11th June 2019. Section 1 of the Act, which raises the age, will come into force only once the necessary secondary legislation, guidance and training have been devised and delivered.
Although the Act means children under 12 won’t be able to be criminalised, police can still hold information about any relevant behaviour of a child aged between 8 and 11. They can disclose this information on criminal record checks (as ‘Other Relevant Information’) if an Independent Reviewer agrees it ought to be shared. The law also does not apply retrospectively, so if someone has convictions acquired when aged between 8 and 11 before the Act comes into force, these will still exist. However, they can only be disclosed as Other Relevant Information.
Developments so far
- On 30th September 2021 the Age of Criminal Responsibility (Scotland) Act 2019 (Register of Child Interview Rights Practitioners) Regulations 2021 came into force – they relate to the appointment of Child Interview Rights Practitioners, their potential disqualification, training and fees.
- On 30th November 2020 the Age of Criminal Responsibility (Scotland) Act 2019 (Commencement No. 3) Regulations 2020 came into force which commence Part 2 of the Act, around the disclosure of convictions and other information about relevant behaviour relating to when a person was under 12. read more here
- On 31st March 2020, the Age of Criminal Responsibility (Scotland) Act 2019 (Commencement No. 2) Regulations 2020 came into force with the purpose of commencing the provisions needed for Ministers to make regulations and produce and issue guidance.
- On 29th November 2019, the Age of Criminal Responsibility (Scotland) Act 2019 (Commencement No. 1 and Transitory Provision) Regulations 2019 brought Sections 3 and 27 of the Act into force, meaning that children who commit an offence when aged under 12 are no longer able to be referred to a Children’s Hearing on offence grounds. They can only be referred on care and protection grounds (see the blog post we wrote about this here.)
Clan Childlaw’s contributions
- The Scottish Government consulted on the issue in 2016. Read Clan Childlaw’s consultation response here. In broad terms we welcomed the proposal to raise the minimum age of criminal responsibility. Harmful behaviours displayed by 8-11 year olds should be treated as child protection concerns rather than criminal matters. Our response detailed, however, our concerns that police powers and disclosure of information and the consequences they may have for children as they enter adulthood fully respect children’s rights under Article 6 and 8 of the European Convention on Human Rights and Article 40 of the United Nations on Conventions on the Rights of the Child.
- We gave written evidence on the Age of Criminal Responsibility (Scotland) Bill, submitted to the Scottish Parliament Equality and Human Rights Committee.
- In 2015 we prepared a note for Alison McInnes MSP on the Age of Criminal Responsibility in Scotland in support of her amendment to Criminal Justice (Scotland) Bill seeking to raise the minimum age of criminal responsibility from 8 to 12. The amendment was not carried.
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