As the Age of Criminal Responsibility (Scotland) Act gained Royal Assent on 11 June 2019, the Children’s Minister Maree Todd commended it as a “ground-breaking law,” arguing that it will “deliver a bold, progressive, child-centred approach that will make a real difference to children's lives.” The legislation raises the age of criminal responsibility from 8 to 12 years old. However, considering neurological research and international standards it appears that this legislation has not raised the age quite high enough to generate the child centred approach that it claims to. This article shall assess why this may be, and whether an alternative approach may be more effective.

Brain Development

During the House of Lords Debate on Criminal Responsibility, Lord Dholakia commented that science recognises early adolescence as “a period of marked neurodevelopmental immaturity”. This places younger adolescents - those between 11 and 14 - into a transitional phase between childhood, older adolescents and early adulthood. During this period, a child lacks the structural refinement of their prefrontal cortex - the region managing higher cognitive functions including decision-making and behavioural discipline. A 12-year-old child, who satisfies the minimum age of criminal responsibility, would therefore fall below the average age at which cerebral maturity commences.

The effects of trauma on children are significant. Research demonstrates that prolonged exposure to trauma can cause developmental delays and even permanent structural cerebral damage. Why childhood trauma is a crucial factor to consider against juvenile neurological development is due to its relationship with childhood crime. According to recent studies, out of 27 children examined where the offence contributed to a behavioural pattern, 30% were physical or sexual abuse victims, 43% suffered from mental health issues, and the parents were considered to present risks in 81% of cases. Furthermore, through the CYCJ’s work with children posing serious risk to others, 71% of children had care experience and 64% had encountered domestic violence. It is therefore not unreasonable to link child offenders to exposure to serious trauma, adversity and poverty.

If the age of 12 is considered too low, what age would better reflect the neurodevelopment of young people? Whilst 14 compliments the average termination of “neurodevelopmental immaturity”, the maturation process is individualistic in nature, affected by a multitude of additional elements such as sex, genetic predisposition and diet.

Scotland would not be the first to be influenced by neuroscience, making a multi-jurisdictional comparative exercise beneficial to re-evaluating the age of criminal responsibility.

International Standards

While this legislation may have swept unanimously through the Scottish Parliament, it runs contrary to the very international standards it seeks to meet.

Although Article 40(3) UNCRC does not specify a minimum age of criminal responsibility, the UN Committee on the Rights of the Child has since recommended it be no lower than 14. This is premised on the rehabilitative approach that they urge states to take towards children who commit crime. They have legitimised the proven link between vulnerable children and their increased likelihood to commit harmful behaviour. Turning a blind eye to the underlying social triggers of such action and prosecuting them as adults only increases their likelihood of re-offending. Where a prosecution results in a criminal conviction, the child’s employment and education opportunities are severely impeded in violation of their Article 6 UNCRC right to life, survival and development. The outcome is “a life of criminality.”

Globally, there has been growing recognition of the cycle of reoffending caused by criminalising children. This has kick-started legislative reform to raise the age of criminal responsibility and encompass older children within its net. Germany would be a case in point. While the Youth Courts in 1923 set the age of criminal responsibility as 14, this jurisdiction took one step further. It never prosecutes children aged 18 or under as an adult in criminal court. No exceptions are made for violent crimes. Instead, all of these defendants are dealt with through a Youth Court System, which imposes sanctions which will best facilitate the rehabilitation of the concerned child. This broader reform complies with Article 1 UNCRC, that a child is a person aged 18 years or under and meets state’s obligation under Article 40 UNCRC to promote the child’s “reintegration into society.” The results are positive. Since 2005, particularly violent juvenile crimes have decreased by 20%.

Clearly, protecting the rights of children requires Scotland to do more. The sole action of raising the age of criminal responsibility to 12 does not tackle the offending of children aged 12-18, despite their status under international law entitling them to an opportunity for rehabilitation. In 2015/16, children under the age of 12 only represented just over 1% of the total number of under 18-year olds convicted of a crime. Of those aged over 12, almost two thirds were living in the 20% most deprived communities in Scotland. Even in wake of this reform, their vulnerabilities are overlooked, and their offending behaviour dealt with the same way as before.

So, what’s holding us back?

This limited reform has been critiqued as a token gesture, its shortcomings revealing the government’s priority of placating public opinion which is against increasing the age of criminal responsibility. Over the years, the media have fuelled a narrative of child offenders which dehumanises them as forces of evil, spreading “moral panic” amongst society. A panic which fuels their cries of a harsher criminal justice system. Following the murder of James Bulger, headlines such as “the two boys who murdered James Bulger are evil freaks of human nature” swarmed the tabloids. Amid this frenzy, the conversation about the neglect and abuse which links children to crime is lost. While it may be hard to sympathise with cases of extreme violence, the wider public interest lies in recognising the causes of childhood offending and tackling them to reduce re-offending. Raising the age of criminal responsibility to 12 was a key opportunity for the Scottish Government to deconstruct the narrative of child crime and do this. Instead, they have arguably used the debate as a political tool to maintain their image in the eyes of the public.

Victims’ Interests

Whether the interests of the victims have been sufficiently accommodated within the new legislation is another point of contention in this debate. Since a child under 12 cannot be viewed as having committed an offence, the child therefore cannot be referred through the Children’s Hearing System on offence grounds, nor face formal court proceedings. Without the possibility for victims to give information to a hearing or court; the victim is deprived of their decision-making and contributory powers previously afforded to them.

However, recent statistics have supported the theory that this change will have minimal impact on victims. Since 2010, no child under 12 has been prosecuted in the criminal courts. Furthermore, the referral rate on offence grounds to the Children’s Report is steadily decreasing. Now, approximately 85% of referrals are concerned with child welfare, rather than offending behaviour.

Criminal records will no longer be available to under 12s. This means that self-disclosure of any offending behaviour committed between the ages of 8 and 11 would no longer be required later in life. This promotes the best interests of the offending child as it protects against the adverse effects of early criminalisation. Does this change adequately protect victims and public safety? Children’s behaviour would still be treated and monitored (particularly those who pose a higher risk of harm and reoffending). Not only this, but the Principal Reporter retains powers of limited disclosure of information by request.

What must be remembered is that the term ‘victim’ should not be merely restricted to those suffering from children’s behaviour. Equally, the offending child can be considered a ‘victim’ due to this established a close link between trauma and a child’s behaviour. Often, a child’s offending behaviour is a consequence and symptom of the child’s early experiences and the effects this has caused on their development.

An alternative approach? Lessons from History and Civil Law

In both feudal and roman law (Key elements of the Scottish Legal System) the father would essentially own the child and have absolute control over their personal affairs. Reaching the age of majority in Roman law, while based on ages (attributable to the statuses of pupils and minors), would be flexible as those nearing these stages of maturity could claim the same privileges as those officially considered a minor or an adult. It is clear that the historical roots of the law as it relates to children was adaptable to situations and often based on a case by case analysis of the specific child. For example, while the presumption of criminal responsibility in Roman law was 14, a child as young as 10 could be held responsible if it was proved they could understand the crime. Under feudalism and early customary law in Scotland the needs of the community were central in determining the age of majority. War time, the death of a family member and the acquisition of property could spawn capacity at an early age. Similarly, religion has often informed the way societies formulate their laws and many world religions have adopted similarly adaptable and flexible ways of defining the age of majority. Christianity recognises the impact of mental illness and youth on the innocence of a person in the eyes of god. Islam and Judaism both determine the age of majority on physical attributes and what is to be expected during certain rituals associated with coming of age.

A more adaptive approach is potentially even more helpful when considering the requirements of cognition and volition. Cognition (does the child understand the crime, law and punishment) should be addressed on the basis of societal expectations of the average child of a specific age. This should be the case on the basis that ignorance of the law is no defence. Thus, for each crime and age group expectations of knowledge could be set. When asking the question of volition, if the child was able to control their actions and behaviour, we must look at the individual child and their situations to produce and fair and meaningful. Mental age and stage of development is far more useful to those trying to judge the level of criminal responsibility of a child than mere chronological age. It can therefore be argued that any age limits should be nothing more than a firm presumption and a good place for any judge, lawyer, social worker or psychologist to work from.

We can also look to other aspects of our legal system and see age being treated in a far more flexible manner than this act has done. The age of capacity Scotland act 1991 sets an age of 16 for contractual capacity yet allows for those under 16 to make contracts typical of the age group and allows for prejudicial contracts to be set aside until the person is 21. GDPR varies its levels of protection for different ages based on understanding and material benefit for both child and those looking to use data for marketing purposes. The considerations of children’s views in family courts are based more on maturity, condition and independence than numerical age.  Furthermore, the demands of necessity and child welfare create an adaptive approach in relation to medical law and the laws of succession. The age of criminal responsibility could be treated similarly as age cannot be definitively tied to maturity. There is the risk that if we do not take an adaptive approach then children who should be held criminally responsible go unpunished (to the detriment of society or the victim) or that those above the age of 12 who are not genuinely criminally responsible suffer greatly. The Kilbrandon report on which the age of criminal responsibility (Scotland) act was based on suggested that the term “age of responsibility” was a somewhat meaningless term as it was incredibly arbitrary. The report committee also recognised that some crimes should have a lower age of responsibility due to their severity. The Act has not fully embraced the idea of a flexible and fluid age of criminal responsibility as recommended by the Kilbrandon report.

While it can be argued that there should be no hard age limit (as is the case in 33 US states), but instead presumptions and tests relating to cognition and volition, there is still an advantage to adopting different procedures for young people.  In the 1980s there was a great deal of criticism creating to child witnesses in sexual abuse cases because, owing to their youth and inexperience with the court setting, they struggled during cross examinations resulting in many cases being thrown out. For these reasons the Scottish parliament introduced the vulnerable witness act 2004. If a child witness is deemed vulnerable, then it logically follows that a child defendant could be vulnerable. In the interests of delivering a fair trial an alternative procedure for those under 16 could be adopted. As previously mentioned, the law of Germany uses a youth court system for those under 18. A different approach to media access, special accommodations and specialist individuals will ensure the right to a fair trial is upheld for young offenders.

Conclusion

Evidently the newly set age of criminal responsibility, whilst an improvement, still requires further amendment. Setting the age to 14 would complement neurodevelopment studies. However, a greater increase to 16 would satisfy UNCRC standards as well as align with the approach taken by other jurisdictions. A higher age of criminal responsibility would protect the interests of a more children from the harmful effects of early criminalisation.

When comparing the approach of criminal law to other branches of domestic law, a greater influence has been placed on presumptive testing - tailoring capacity to the individual person. Most crucially, adopting an individualistic approach not only carries difficulties with its practical implementation, but also risks compromising transparency. When determining whether a child would satisfy tests for criminal responsibility would become a fully discretionary task with substantial scope for abuse. This would expose already vulnerable children to a heightened risk of unfair treatment.

Due to the complex nature of the criminal justice system, there does not appear to be any ‘quick fix’ or ‘perfect’ solution to tackling this issue. Rather, the Act can be viewed as a tool bridging the gap between the preceding legislative stance and further progression within youth justice.