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Why is Scotland raising its age of criminal responsibility, but not England and Wales?

Penelope Gibbs
13 Jan 2018

Some independent reviews make a huge difference. In 1964 the “Kilbrandon” report was published. Lord Kilbrandon chaired a committee tasked with recommending how society should deal with children in trouble with the law. It was focused only on Scotland, which has always had a different criminal justice system to England and Wales. More’s the pity in the case of children. For the Kilbrandon report advocated a radical reorganisation of services for children who offend and the abolition of the formal court process.

Amazingly these radical recommendations were for the most part followed and a new system was set up – the children’s hearing system – for all those under 16.  This was an inquisitorial as oppose to an adversarial system, and children’s offending was dealt with by a lay panel which presided over both welfare and offending cases. The idea was not to criminalise or punish children who offended, but to deal with the causes of their offending and their needs.

The children’s hearing system is not perfect and some children are still prosecuted in court in Scotland, but it is a deal better than the system in England and Wales, where children are subject to almost the same criminal justice process as adults in which the focus is on deeds rather than the needs. It is an adversarial system where children on trial are involved in an elaborate semi-theatrical process, to which they and their families are peripheral. Most children leave court having had little idea what went on, even when they have been sentenced to imprisonment. This is not the fault of judges, lawyers or court staff – its the system itself which is inappropriate for children.

The Taylor Report, commissioned by Michael Gove and published in February 2016, could have heralded changes in England and Wales as radical as the Kilbrandon report.  Charlie Taylor recommended that all children who plead guilty should be diverted from court to a panel which would investigate “the causes of the child’s behaviour, including any health, welfare and education issues, and putting in place a rigorous Plan that will tackle the factors associated with the offending and give victims and communities assurance that the behaviour is being addressed”. Neither this nor any of Charlie’s recommendations to reform the court process have been seriously considered by government. Partly due to the many changes in leadership, the Ministry of Justice seems unable to contemplate any radical change. Meanwhile court practice in England and Wales is declining, with more and more children appearing in the Crown Court from behind a secure dock and more 17 year olds being “named and shamed” in the media.

There have been few fundamental changes to the Scottish youth justice system in recent years except in the age of criminal prosecution. Despite the welfare focus of the Scottish system, Scotland until 2010 had a age of criminal responsibility of 8, two years lower than that of England and Wales. But eight years ago the SNP raised the age at which a child could be prosecuted from 8 to 12. This was a fudge since 8-12 year olds were still officially criminally responsible and could be still be referred to a children’s hearing panel for offending. The Scottish government has now consulted on raising the age of criminal responsibility to 12.  95% of those who responded to the public consultation on this agreed, and all the main political parties, including the Conservatives, support the change.

What a contrast to England and Wales where there is little political support to raise the age of criminal responsibility, despite it being one of the lowest in Western Europe. Every single child expert agrees that children as young as ten cannot effectively participate in a formal criminal justice process, particularly any court hearing. The number of younger children charged and prosecuted is going down. In 2016, only 116 10 and 11 year- olds were taken to court, and altogether 380 cautions and convictions were given to children this age.

But 380 cautions and convictions of 10 and 11 year old are 380 too many.  There is good evidence (in fact from a Scottish study) that any contact with the formal criminal justice system will increase the likelihood of a child reoffending. But the government in England and Wales will not even contemplate raising our age of criminal responsibility. The shadow of James Bulger looms large over any such discussion. Lord Dholakia, a stalwart criminal justice campaigner, last year tabled a private members bill to raise the age to 12 but the need for change was dismissed, Baroness Vere of Norbiton said:

“This Government takes the view that children aged 10 and above are able to differentiate between bad behaviour and serious wrongdoing and can therefore be held accountable for their actions. Where a young person commits an offence, it is important they understand that this is a serious matter. The public and the victims of crime must also have confidence in the youth justice system and know that offending will be dealt with”.

So as with the presumption against short sentences, and the fall in the prison population, Scotland is aligning its criminal justice system more closely with progressive Western European countries. Nearly all European countries (including the Russian Federation, Albania, Belarus, Poland and Ukraine) have an age of criminal responsibility of 14 or above. These governments also presumably believe children need to understand when they have done wrong; they just don’t think the criminal justice system is the best route to achieve that.

These issues were raised by speaker Claire Lightowler of the Scottish Centre for Youth and Criminal Justice at a seminar hosted by the Barrow Cadbury Trust. For us bruised and battered campaigners from England and Wales, it was both energising and depressing to hear about trends in Scotland.  They took a different and better road in 1964 and its difficult to see how we might ever join it, particularly as the politics are so divergent.