Report recommends raising Scotland's criminal age of responsibility to 16

By agency reporter
November 30, 2018

A report published on 28 November 2018 recommends raising the criminal age of responsibility to 16, an end to the imposition of long term criminal records on children, and a new youth justice system for those aged 16 to 21. It also suggests significant changes to the Children’s Hearings System. 

The Kilbrandon Again enquiry, jointly commissioned by Action for Children and the Children and Young People’s Commissioner for Scotland, Bruce Adamson, commissioned an independent panel chaired by Richard Holloway.  Kaliani Lyle and Ruth Wishart were the other members.

The report criticises using adult criminal courts for 16 and 17-year olds, pointing to the recent suicide in Polmont YOI of William Lindsay, as damning evidence of the need for change. The report draws attention to the shortage of secure care places for William and others like him.  

At present the four providers of secure care are reliant on market forces to cover their costs and carry all the financial risks, while Polmont is funded by the Scottish Government, this has led to approximately half of the 84 places in secure care in Scotland being occupied by young people from outside of Scotland.  

As MSPs currently debate raising the age of criminal responsibility in Scotland from eight, the youngest in Europe, to 12, ‘Kilbrandon Again’ recommends it be increased to 16. Furthermore, that a new system of justice should be introduced for those aged 16 to 21.

The report criticises the length of time a criminal record follows the child and young person into adult life. Under enhanced disclosure provisions, records of offences and referrals may be disclosed until the past offender is 40, or for 20 years, whichever is longer. This report believes the onus should be on the state to justify both the retention and the disclosure of children’s hearings or criminal records.

It recommends the Children’s Hearing System (CHS) should record the circumstances of children referred, whether they attend, and whether their views are heard. They ask that outcomes be monitored, and panel membership more closely reflects the communities from which most of the children and families come. 

It notes, too, that the overwhelming number of referrals are now on care and protections grounds rather than offending, and questions whether CHS is the most appropriate and properly resourced forum for such children.   

Welcoming the report’s publication, Paul Carberry, Action for Children Director for Scotland, said: “The Kilbrandon Now report was jointly commissioned by Action for Children and the Children and Young People’s Commissioner as a result of discussions between us and Professor Lesley McAra of the University of Edinburgh.  

“Despite welcoming the fall in the numbers of young people brought to Hearings and Courts, we were concerned that young people with the highest and most complex needs seemed to be most vulnerable to being involved in the adult criminal justice system. 

“We turned to Richard Holloway, and his fellow panellists, Kaliani Lyle and Ruth Wishart to ask them once again to bring their independent minds to bear on how well Scotland supports children and young people in trouble. 

“Once more, the panel have come up with a piece of work that gets to the heart of the matter. Fifty years on from the Social Work Scotland Act, the message is that we haven’t go there yet and our systems require an urgent review. If we will it, change can happen.” 

Bruce Adamson, Children and Young People's Commissioner Scotland, said: “This report rightly recognises the devastating impact of poverty and inequality on every aspect of children's lives, including their attainment, mental and physical health and risk of being drawn into conflict with the law. It is clear that that treating vulnerable children as criminals stigmatises them and can have a life-long impact, including on education and future employment.

“Half a century ago, Scotland made a commitment to a holistic and welfare-based system to address the needs and deeds of its children and young people, but our legal systems must continue to adapt in line with our developing understanding of human rights. Raising the age of criminal responsibility beyond the internationally accepted minimum of 14, and continuing to embed participation rights into practice are two ways in which we must do this. The overriding priority though is full incorporation of the UN Convention on the Rights of the Child, which would put in place the rights protections needed to meet the challenges the Kilbrandon Again panel has laid down.”

Richard Holloway, who chaired the panel, added: “An overhaul of the children’s hearing system, as proposed within this report, is long overdue.  Scotland needs an intelligent system that learns from outcomes and knows about the children who are brought into hearings -their circumstance and their views – and ensures Panels’ decisions record and take account of the views of children and their parents.

“The age of criminal responsibility in Scotland has been a matter of concern for a considerable period of time. We have a system envied around the world through taking a progressive, welfare-based approach towards children at risk or in trouble with a strong focus on prevention and early intervention. However, the criminalising of 8-11-year olds has always been inconsistent with this approach. While we welcome the proposal to raise the age of criminal responsibility to 12, we do believe we can be more radical and increase the age of criminal responsibility in Scotland to 16.

“The ‘Kilbrandon Again’ report is an important piece of work, looking at how well young people in trouble are treated in Scotland. It is clear that there is still a lot of work to be done.”

* Read Kilbrandon Again here

* Action for Children


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