Second memorandum submitted by the Law
Society of Scotland
The Family Law Sub-Committee of the Law Society
of Scotland (the Sub-Committee) welcomes the opportunity to assist
the Joint Committee on Human Rights with their inquiry on children's
This paper looks at the issue of the criminalisation
The vast majority of children who infringe the
criminal law in Scotland are dealt with through the children's
hearings system, a system that is premised on a treatment model
of juvenile justice. However, it remains possible for a child
in the 8-15 age group to be prosecuted in the ordinary criminal
courts and offending young people aged 16 and over are usually
dealt with in that forum.
The following issues may be of particular interest
to the Joint Committee on Human Rights.
Age of criminal responsibility
Criminal responsibility can attach, in Scotland,
from the time a child is eight years old:
one of the lowest ages of criminal responsibility in the world.
Where a child is below eight years old, he or she has no criminal
capacity and cannot commit an offence. Usually, the child's chronological
age at the time of the alleged offence is used in establishing
criminal responsibility, but where it can be demonstrated that
a child's actual mental capacity is less than the chronological
age, the former will govern responsibility.
The European Convention on Human Rights is silent
on the issue of age of criminal responsibility. It was not until
the decision of the European Court in T v United Kingdom and
V v United Kingdom
that a definitive ruling on the implications of article 6(1) in
the context of juveniles was provided. That case followed the
much-publicised trial and sentencing of two 10 year-olds, convicted
of the murder of a two year-old, in England, in 1993. The Court
found that, despite the provision of legal representation and
special arrangements made in the way the court proceedings were
conducted, the accused, by virtue of their ages and states of
mind, were unable to participate effectively in the proceedings
and, thus, had been denied the right to a fair hearing, in breach
of Article 6(1).
However, given the lack of consensus amongst member states on
the matter, it found no breach of Article 3 (prohibition of torture)
in respect of the age criminal responsibility itself. That it
is the opportunity to participate effectively, rather than the
actual age of criminal responsibility, that is crucial from a
European Convention perspective was confirmed by the Court in
its more recent decision in SC v United Kingdom.
There, an 11 year-old boy of low intellectual ability had been
convicted of robbery, in England. While the Court again found
a violation of article 6(1), it restated its position in the following
"[T]he attribution of criminal responsibility
to, or the trial on criminal charges of, an 11 year-old child
does not of itself give rise to a breach of the Convention, as
long as he or she is able to participate effectively in the trial."
While the United Nations Convention on the Rights
of the Child requires that an age of criminal responsibility should
be identified, it does not specify what that age should be,
a failing of the Convention continued from the Beijing Rules.
However, the UN Committee on the Rights of the Child took the
opportunity to expand on its expectations in terms of compliance
with the Convention in juvenile justice matters when it published
General Comment No 10: Children's rights in juvenile justice.
There, it noted the wide range of ages of criminal responsibility
amongst states parties and made its own position very clear when
it described them as ranging "from a very low level of age
7 or 8 to the commendably high level of 14 or 16"
and found that setting the age below 12 "not to be internationally
That it should take this position is unsurprising given that it
had criticised the low age of criminal responsibility in each
and every one of its Concluding Observation on the United Kingdom
and Northern Ireland.
This criticism has not gone unheeded in Scotland.
In 2000, an advisory group to the Scottish Parliament recommended
raising the age of criminal responsibility to 12,
the Scottish Executive responded
and referred the matter to the Scottish Law Commission. The Commission
recommended that any rule on the age at which children cannot
be found guilty of an offence should be abolished,
albeit it also recommended that it should no longer be competent
to prosecute a child below the age of 12.
It believed that the point of having an age of criminal responsibility
was to protect children from a punitive criminal justice system.
Since most children accused of an offence in Scotland are dealt
with by the welfare-based children's hearings system, the Commission
argued that there is no need to extend such protection to Scottish
children. This reasoning is flawed. First, not every child accused
of an offence in Scotland is dealt with by the hearings system,
since prosecution of a person under the age of 16 is not only
competent, it happens.
Second, the UN Convention mandates providing for an age of criminal
responsibility. It does not make it optional, depending upon the
kind of system in place. If the Scottish Law Commission's recommendations
were implemented, Scots law would, thus, be in violation of the
UK's international obligations. At the time of writing, no draft
legislation, implementing the Commission's proposals has been
brought forward. There are encouraging signs that the age of criminal
responsibility will be revisited by the Scottish Parliament, in
the near future, with indications that it may be raised to 12.
Sexual Offences (Scotland) Bill
The age of consent to sexual activity in Scotland
is currently 16 years old. Where two heterosexual 15 year-olds
engage in what would be consensual sex, but for their ages, the
male commits an offence, but the female does not,
albeit he would most probably be dealt with by the children's
hearing (as an offender) rather than a court. Clearly, the present
gender-based discrimination offends against both the European
and UN Conventions.
The Scottish Law Commission examined this issue and recommended
decriminalising consensual sexual activity where the parties are
between 13 and 15 years old. It recommended that, instead, it
should be possible to refer the young people to a children's hearing
on the basis that their conduct warranted further exploration
of their welfare (a non-offence referral).
Amid somewhat hysterical reaction in sections of the media, mischaracterising
the proposal as "legalising under-age sex", the Scottish
Government chose to ignore this eminently sensible proposal and,
instead, introduced the Sex Offences (Scotland) Bill which would
render the action of both young people criminal.
The proposed legislation here would not simply be disempowering:
that is, it would not simply put obstacles in the way of young
people seeking to engage in an activity that most of the adult
community would prefer them to postpone. It would brand them as
criminalsand as criminals of a particularly odious kind.
There has been very considerable opposition to the proposed legislation.
A "status offence" is an offence which
can only be committed by young people, there being no adult equivalent.
A number of the grounds for referral to a children's hearingbeing
"beyond parental control", "falling into bad associations
or ... [being] exposed to moral danger", having "failed
to attend school regularly without reasonable excuse" or
having misused alcohol, any drug, or a volatile substancelook
remarkably like status offences.
Do status offences pose a problem under either the European or
UN Conventions? Failure to attend school without a reasonable
excuse can probably be dealt with fairly swiftly, since the European
Convention provides that a minor may be deprived of his or her
liberty "by lawful order for the purpose of educational supervision",
always providing that the deprivation of liberty is "in accordance
with a procedure prescribed by law".
What of the other grounds? It could be argued that status offences
pass international muster since they indicate a need for protection
of the child and, thus, serve the promotion of the child's welfare,
or that they serve a preventive function in diverting the child
from future, clearly criminal, conduct. On the other hand, status
offences may stigmatise a child unnecessarily. The Beijing Rules
allow for status offences,
the Riyadh Guidelines counsel against penalising children for
conduct which would not be considered criminal in an adult,
and the UN Convention is silent on the matter. In General Comment
No 10, the UN Committee on the Rights of the Child clarified
matters when it recommended the abolition of status offences "in
order to establish equal treatment under the law for children
Prosecution of children and young people under
Despite the creation of the children's hearings system,
it has always been possible for a child below the age of 16 to
be prosecuted in court, albeit such prosecution must be "at
the instance of the Lord Advocate". Successive Lords Advocate
have addressed their responsibility by issuing guidelines, indicating
which offences should be considered for prosecution, with the
most recent dating from 1996.
There are three categories of offences covered. First are offences
which require prosecution on indictment, including the pleas of
the Crown, certain statutory offences, and other serious offences
like assault to severe injury and possession of a class A drug
with intent to supply. The second category is restricted to persons
over the age of 15 years where disqualification from driving is
either a mandatory or optional sentence upon conviction, not being
a disposal available to a children's hearing. The third category
covers children over the age of 16 who are subject to a supervision
requirement. It should be noted that a reporter's decision not
to refer a child to a hearing does not preclude prosecution.
While the European Convention does not prohibit the
prosecution of children under the age of 16 and the European Court
accepts such prosecutions as competent,
these children are entitled to all the usual protections of the
European Convention on Human Rights.
It will be remembered that, often, the crucial issue is whether
a young accused person can participate effectively in the proceedings
as required by article 6(1).
The UN Convention applies to all persons under the age of 18 and,
thus, both its general provisions and its specific provisions
on juvenile justice apply to all persons below that age. While
these do not necessarily preclude subjecting children to trial,
they certainly discourage the practice, particularly when all
the considerations in Articles 37 and 40 are taken into account.
The publicity associated with the trial and
what happens to a child thereafter, particularly after release
from prison, pose further dangers to respect for children's rights.
It is worth remembering that, while the UN Convention requirement
on respect for the child's privacy "at all stages of the
probably does not cover post-conviction publicity, this aspect
is covered by the injunction that child-offenders should be "treated
in a manner consistent with the promotion of the child's sense
of dignity and worth" and that account should be taken of
their "age and the desirability of promoting the child's
reintegration and the child's assuming a constructive role in
In Scotland, the prohibition on disclosing the identity of any
child involved is automatic:
that is, it applies unless it is dispensed with, in whole or in
part, by the court where it is satisfied that to do so "is
in the public interest".
It was particularly unfortunate that this was done in one case
prior to the accused's appeal against conviction being heard,
since her conviction was overturned on appeal.
Once the proceedings are completed (ie after any appeal has been
heard) the Scottish Ministers may dispense with reporting restrictions,
again, either in whole or in part, and if such dispensation is
in the public interest.
A proposal was mooted to amend the legislation to remove the automatic
reporting restrictions where an under-16-year-old was convicted
of a serious offence
but, happily, nothing seems to have come of it. A particularly
enlightened view of the need to protect the privacy of children
convicted of a very serious offence can be found in the decision
in England to protect the identity of Robert Thompson and Jon
Venables after their release and to prevent reporting in respect
of their new identities and whereabouts.
16 and 17 year-olds
Once a young person reaches the age of 16, he
or she will usually face prosecution in an adult criminal court
and many of the concerns expressed in relation to the prosecution
of children under the age of 16 apply to the prosecution of 16
and 17 year-olds.
Of course, the young person's ability to participate effectively
in the proceedings will increase as he or she matures, but practitioners
should remain vigilant to the possibility of a young client's
capacity in this respect. It will be remembered that the UN Convention
applies to all persons "below the age of 18 years of age"
and the UN Committee on the Rights of the Child took the opportunity,
in General Comment No 10,
to remind states parties that this meant all such young people
came within the ambit of the Convention's juvenile justice provisions
and urged states parties where 16 and 17 year-olds were treated
as adult criminals to "change their laws with a view to achieving
a non-discriminatory full application of the juvenile justice
rules to all persons under the age of 18".
When the Advisory Group on Youth Crime looked at
alleged offenders in this age group, it recommended a number of
fresh approaches, including the possibility that at least some
of them might be dealt with by the children's hearings system.
Sight was lost of this proposal along the way and, instead, a
system of youth courts was piloted.
The pilot schemes have been evaluated independently.
While youth courts appear to succeed in processing cases more
quickly than do regular courts, there are very real concerns about
not least because the full range of support services was not put
There is a fear that what was conceived as a more individualised
and hands-on system might be no more than a facade, with the youth
court being nothing other than a regular court that moves faster.
In addition, there is a concern that, if a person is referred
to the youth court on the basis that he or she is a "persistent
offender", then the sheriff knows at least that the accused
has a criminal recordsomething that is in breach of the
usual rulesraising the possibility of a human rights challenge.
As a result, it appears that youth courts may be put on hold and
that the possibility of referring some 16 and 17 year-olds to
a children's hearing will be revisited.
288 Criminal Procedure (Scotland) Act 1995, s 41. Back
See, Age of Criminal Responsibility (Scot Law Com Discussion
Paper No 115, 2001), Appendix E and A Lockyer and F H Stone (eds),
Juvenile Justice in Scotland: Twenty-Five Years of the Welfare
Approach (T&T Clark, 1999), p 245. Both illustrate that
most European countries and many in other parts of the world have
an age of criminal responsibility considerably higher than 8,
with many countries opting for 14, 15 or 16. Back
Various national newspapers reported a case of an 11-year-old
boy who was originally charged with attempted murder having allegedly
stabbed a nine-year-old girl, the charges being dropped when psychologists
found that the boy had a mental age below 8; see, The Times,
January 22, 2001, p 1. Back
(2000) 30 E.H.R.R. 121, para.3. That report relates to the case
brought by V (application no 24888/94) and the decision is virtually
identical to that in T v United Kingdom (application no
Ibid, para 108. It also found breach of Article 6(1), in
respect of the Home Secretary's role in setting the tariff, and
Article 5(4), in respect of sentencing as it impacted on the lawfulness
of detention. Back
(2005) E.H.R.R. 10. Back
Id, para 27. Back
Art 40(3)(a). Back
CRC/C/GC/10, 25 April 2007. Back
Id, para 30. Back
Ibid, para 32. Back
Concluding Observation on the United Kingdom and Northern Ireland,
15 February 1995, CRC/C/15/Add 34, paras 40-43; Concluding
Observation on the United Kingdom and Northern Ireland, 9
October 2002, CRC/C/15/Add.188, paras 59 and 62; Concluding
Observations of the Committee on the Rights of the Child on the
United Kingdom of Great Britain and Northern Ireland, CCR/C/GBR/CO/4,
3 October 2008, para 78. Back
It's a Criminal Waste: Stop Youth Crime Now: Report of the
Advisory Group on Youth Crime (Edinburgh, Scottish Executive,
2000), para 7. Back
Scottish Executive Response, It's a Criminal Waste: Stop Youth
Crime Now (Edinburgh, Scottish Executive, 2000). Back
Report on the Age of Criminal Responsibility (Scot Law Com No
185, 2001), recc.1. For a discussion of the Report and recommendations,
see, C McDiarmid, "Age of Criminal Responsibility: Raise
It or Remove It?" 2001 J R 243 and E E Sutherland, "The
Age of Reason or the Reasons for an Age? The Age of Criminal Responsibility"
2002 S.L.T. (News) 1. Back
Report on the Age of Criminal Responsibility, recc 2. Back
Prosecution requires the consent of the Lord Advocate: Criminal
Procedure (Scotland) Act 1995, s.41(1). Successive Lords Advocate
have issued directions on prosecution, with the latest being reproduced
in Appendix B to Age of Criminal Responsibility (Scot Law
Com Discussion Paper No.115, 2001). Back
M Howie, "Let's stop treating eight-year-olds as criminals,
says Lord Advocate", The Scotsman, 26 November 2008,
Criminal Law (Consolidation) (Scotland) Act 1995, s 5(3). Back
Article 6 when read with article 14. Back
Articles 2, 37 and 40. Back
Scottish Law Commission, Report on Rape and Other Sexual Offences
(Scot Law Com No 209, 2007), paras 4.43-4.57. Back
SP Bill 11 (2008), ss 21 and 22. Back
These are set our in the Children (Scotland) Act 1995, s 52(2)(a),
(b), (h), (j) and (k), respectively. Back
Art 5(1)(d). In addition, the importance of education is reinforced
in the First Protocol, Art. 2. Back
UN Convention, Art. 3, See also: the duty to protect the child
from abuse, neglect and exploitation (Art 19); and the obligation
to protect the child from sexual exploitation (Art 34). Back
Rule. 3.1. Back
Guideline 56. Back
Para 8. Back
For ease of reference, these, along with "Explanatory Notes"
can be found in Appendix B to Age of Criminal Responsibility
(Scot Law Com Discussion Paper No 115, 2001). Back
Mackinnon v Dempsey, (High Court), November 9, 1984, unreported. Back
SC v United Kingdom (2005) E.H.R.R. 10, particularly para
27, quoted above. Back
So, for example, undue delay in proceeding with a prosecution
may result in the conviction being overturned. See, Dyer v
Watson 2002 S.C. (P.C.) 89 and McLean v H.M. Advocate 2000
S.L.T. 299. Back
T v United Kingdom, V v United Kingdom (2000) 30 E.H.R.R.
Art 40(2)(vii). Back
Art 40(1). Back
Criminal Procedure (Scotland) Act 1995, s 47(1). Back
1995 Act, s 47(3)(b). Back
Cordona v H.M. Advocate 1996 S.L.T. 1100. Back
1995 Act, s 47(3)(c). Back
Consultation Paper on Identification of Children: Proposals to
Amend section 47 of the Criminal Procedure (Scotland) Act 1995
(Edinburgh, Scottish Office, 1996). Back
Venables and another v. News Group Newspapers Ltd 
1 All E.R. 908. See also, McKerry v. Teesdale and Wear Valley
Justices,  E.M.L.R. 5, where the court criticised the
lifting of reporting restrictions in respect of a 15-year-old
persistent offender charged with theft. Back
In addition, young people over 16 face the possibility of an order
for lifelong restriction: Criminal Procedure (Scotland) Act 1995,
s 210F, added by the Criminal Justice (Scotland) Act 2003. While
this is not the same as a sentence of life without parole (prohibited
for a person under 18 in terms of the UN Convention, art 37(a)),
it may be inconsistent with the provisions of art 40(1). Back
Article 1. Back
CRC/C/GC/10, 25 April 2007. Back
Id, para 38. Back
The recommendations of the Advisory Group included: examining
the possibility of a bridging project, to transfer as many 16-17-year-old
offenders from the courts to the hearings system; developing a
broader range of interventions and programmes to be available
to procurators fiscal and the courts in dealing with this group,
reducing the use of custody and fines (and consequent fine default)
in respect of 16-17-year-olds; improving multi-agency co-ordination;
broadening the training of those involved in delivery; and increasing
dissemination of information about the system: Report of the
Advisory Group on Youth Crime, op cit, s. 2, para. 7. Back
Report of the Youth Court Feasibility Project (2002). Back
Evaluation of the Airdrie and Hamilton Sheriff Youth Court
Pilots (Edinburgh, Scottish Executive, 2006). Back
L Piacentini and R Walters, "The Politicization of Youth
Crime in Scotland and the Rise of the `Burberry Court'" (2006)
6(1) Youth Justice 43. Back
L Piacentini and R Walters, "The Politicization of Youth
Crime in Scotland and the Rise of the `Burberry Court'" (2006)
6(1) Youth Justice 43, p 49. Back
Evaluation of the Airdrie and Hamilton Sheriff Youth Court
Pilots, para 4.2. Back
L Adams, "Call to lift age limit on child hearings Scotland
still lagging behind over 2002 UN findings" The Herald,
19 January 2008, p 5. Back