Children's Rights - Human Rights Joint Committee Contents

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 rights.

This paper looks at the issue of the criminalisation of children.


  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[288]: one of the lowest ages of criminal responsibility in the world.[289] 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.[290]

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[291] 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).[292] 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.[293] 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 terms:

    "[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."[294]

  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,[295] 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.[296] 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"[297] and found that setting the age below 12 "not to be internationally acceptable".[298] 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.[299]

  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,[300] the Scottish Executive responded[301] 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,[302] albeit it also recommended that it should no longer be competent to prosecute a child below the age of 12.[303] 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.[304] 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.[305]

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,[306] 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[307] and UN Conventions.[308] 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).[309] 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.[310] 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 criminals—and as criminals of a particularly odious kind. There has been very considerable opposition to the proposed legislation.

Status offences

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 hearing—being "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 substance—look remarkably like status offences.[311] 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".[312] 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,[313] 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,[314] the Riyadh Guidelines counsel against penalising children for conduct which would not be considered criminal in an adult,[315] 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 and adults".[316]

Prosecution of children and young people under 16

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.[317] 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.[318]

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,[319] these children are entitled to all the usual protections of the European Convention on Human Rights.[320] 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).[321] 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 proceedings"[322] 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 society".[323] In Scotland, the prohibition on disclosing the identity of any child involved is automatic:[324] 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".[325] 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.[326] 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.[327] 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[328] 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.[329]

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.[330] 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"[331] and the UN Committee on the Rights of the Child took the opportunity, in General Comment No 10,[332] 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".[333]

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.[334] Sight was lost of this proposal along the way and, instead, a system of youth courts was piloted.[335] The pilot schemes have been evaluated independently.[336] While youth courts appear to succeed in processing cases more quickly than do regular courts, there are very real concerns about their operation,[337] not least because the full range of support services was not put in place.[338] 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.[339] 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 record—something that is in breach of the usual rules—raising 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.[340]

February 2009

288   Criminal Procedure (Scotland) Act 1995, s 41. Back

289   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

290   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

291   (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 24724/94). Back

292   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

293   (2005) E.H.R.R. 10. Back

294   Id, para 27. Back

295   Art 40(3)(a). Back

296   CRC/C/GC/10, 25 April 2007. Back

297   Id, para 30. Back

298   Ibid, para 32. Back

299   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

300   It's a Criminal Waste: Stop Youth Crime Now: Report of the Advisory Group on Youth Crime (Edinburgh, Scottish Executive, 2000), para 7. Back

301   Scottish Executive Response, It's a Criminal Waste: Stop Youth Crime Now (Edinburgh, Scottish Executive, 2000). Back

302   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

303   Report on the Age of Criminal Responsibility, recc 2. Back

304   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

305   M Howie, "Let's stop treating eight-year-olds as criminals, says Lord Advocate", The Scotsman, 26 November 2008, p6. Back

306   Criminal Law (Consolidation) (Scotland) Act 1995, s 5(3). Back

307   Article 6 when read with article 14. Back

308   Articles 2, 37 and 40. Back

309   Scottish Law Commission, Report on Rape and Other Sexual Offences (Scot Law Com No 209, 2007), paras 4.43-4.57. Back

310   SP Bill 11 (2008), ss 21 and 22. Back

311   These are set our in the Children (Scotland) Act 1995, s 52(2)(a), (b), (h), (j) and (k), respectively. Back

312   Art 5(1)(d). In addition, the importance of education is reinforced in the First Protocol, Art. 2. Back

313   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

314   Rule. 3.1. Back

315   Guideline 56. Back

316   Para 8. Back

317   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

318   Mackinnon v Dempsey, (High Court), November 9, 1984, unreported. Back

319   SC v United Kingdom (2005) E.H.R.R. 10, particularly para 27, quoted above. Back

320   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

321   T v United Kingdom, V v United Kingdom (2000) 30 E.H.R.R. 121. Back

322   Art 40(2)(vii). Back

323   Art 40(1). Back

324   Criminal Procedure (Scotland) Act 1995, s 47(1). Back

325   1995 Act, s 47(3)(b). Back

326   Cordona v H.M. Advocate 1996 S.L.T. 1100. Back

327   1995 Act, s 47(3)(c). Back

328   Consultation Paper on Identification of Children: Proposals to Amend section 47 of the Criminal Procedure (Scotland) Act 1995 (Edinburgh, Scottish Office, 1996). Back

329   Venables and another v. News Group Newspapers Ltd [2001] 1 All E.R. 908. See also, McKerry v. Teesdale and Wear Valley Justices, [2001] 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

330   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

331   Article 1. Back

332   CRC/C/GC/10, 25 April 2007. Back

333   Id, para 38. Back

334   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

335   Report of the Youth Court Feasibility Project (2002). Back

336   Evaluation of the Airdrie and Hamilton Sheriff Youth Court Pilots (Edinburgh, Scottish Executive, 2006). Back

337   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

338   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

339   Evaluation of the Airdrie and Hamilton Sheriff Youth Court Pilots, para 4.2. Back

340   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

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