Faculty responds to consultation on age of criminal responsibility

This follows the reforms effected by the Criminal Justice and Licensing (Scotland) Act 2010, in terms of which no prosecution for an offence can take place if the person is under 12 years of age, or was under 12 at the time of the offence.

The Faculty was responding to a series of questions posed by a consultation by the Advisory Group on the Minimum Age of Criminal Responsibility.

In its response the Faculty states: “Raising the age of criminal responsibility from eight to 12 years would mean that children in Scotland would not be treated as offenders in respect of harmful behaviour in which they engaged when under the age of 12, at a time when their behaviour is unlikely to have been the result of free and informed choice.

“As observed by the Advisory Group it would also cohere with the observations made by the UN Committee on the Rights of the Child.”

The Faculty takes the view that the harmful behaviour of 8-11 year olds can be dealt with via the existing care and protection grounds within the Children’s Hearing system.

It accepts that if the age is raised the police should retain some powers in dealing with children under 12.

It says: “The Faculty agrees with the assessment that some police powers should be retained in order to investigate the alleged harmful behaviour and to establish the identity of the person responsible for that behaviour.

“Even if the behaviour is to dealt with as demonstrating that a child is in need of care and protection, the factual basis for that proposition may be disputed and evidence of what has occurred will be necessary to establish the grounds for intervention.

“In addition, police investigation may show that a child, initially suspected of having engaged in harmful behaviour, has not, in fact, engaged in that harmful behaviour.”

The Faculty does not think, however, that forensic samples such as fingerprints and DNA, should routinely be taken from 8-11 year olds. It also considers that children under 12 should have the right to legal advice.

If samples were allowed to be taken the Faculty feels it may be appropriate to limit the circumstances in which this can happen – for example investigations into serious sexual or violent behaviour causing harm.

Consideration would then also need to be given to the length of time for which samples could be retained.