Age of Criminal Responsibility (Scotland) Act 2019
Letter from the Minister for Children and Young People, 18 November 2021
Dear Convener
I am writing to let you know that the remaining provisions in the Age of Criminal Responsibility (Scotland) Act 2019 will be commenced on 17 December 2021.
A government-initiated question setting out the date of commencement will be published today, however, I wanted to provide you with more detail than could be provided by this mechanism of updating Parliament.
I recognise that the Act was passed by Parliament and received Royal Assent in 2019 and want to put on record my thanks to implementation partners who have worked tirelessly over the last two years, in the midst of a pandemic, to ensure operational readiness.
Implementation of the Act to-date
This government has taken a phased approach to implementing the Act as quickly and as safely as possible. By prioritising the changes that have the most material positive effects for children and young people we are already meeting the key policy outcomes for the Act, which have the potential to result in the following positive impacts on children’s lives:
- children under 12 can no longer be stigmatised by being criminalised at a young age, due to being labelled as “offender”; and
- children under 12 are no longer disadvantaged by having convictions for the purposes of disclosure, which can adversely affect them later in life.
It has not been possible for a child under 12 to be considered an “offender” since 29 November 2019, when the offence ground for referring a child to a children’s hearing was removed through the commencement of section 3 of the Act. This means that in practice, children have already essentially been removed from most aspects of the criminal process since then. A summary of this work and other changes to date are outlined in Annex A.
Final commencement of the Act
A final set of commencement regulations are being drafted, which will bring all remaining provisions in the Act into force on 17 December 2021 and legally increase the age of criminal responsibility in Scotland to 12. These regulations will commence provisions in:
- Part 1 – to increase the age of criminal responsibility in law from 8 to 12.
- Part 4 - the police investigatory powers set out in the Act. These are a package of powers that will enable Police Scotland to investigate incidents where a child below the age of criminal responsibility (i) is behaving in a violent or dangerous way, causing or risking causing serious physical harm to another person, or (ii) is behaving in a sexually violent or sexually coercive way, causing or risking causing harm (whether physical or not) to another person. These powers can only be used in the most serious cases, and in most cases require a court order to be exercised.
- Part 5 - the duty on a children’s hearing to consider the need for further reports.
- Part 6 - the duty on Scottish Ministers to review operation of the Act in general, and with a view to considering a future age of criminal responsibility.
Two SSIs will be laid in Parliament shortly to support implementation of Part 4. An Order under section 104 of the Scotland Act 1998 is being taken forward in the UK Parliament as a consequence of this Act, and will provide for cross-border operation of certain powers. These will all come into force on 17 December.
Officials continue to work collaboratively with key partners to finalise operational arrangements for commencement of the Act. This work includes the development of bespoke court rules for applications to court for an order under Part 4. Delivery partners have notified that they have been unable to finalise these rules and this has caused some delay. I am grateful to colleagues from a range of partner agencies who have identified appropriate interim measures which can, however, be used until the court rules are in place.
Full commencement in December, whilst a little longer than originally envisaged for this Act to come into force, aligns with this government’s focus on children’s rights.
I trust you will find this information helpful.
Yours sincerely
Clare Haughey
Annex A
Age of Criminal Responsibility (Scotland) Act 2019
Implementation of the Act to date
Legislation
There have been three sets of commencement regulations:
- The first set of commencement regulations came into force on 29 November 2019, and removed the offence ground for referring a child under 12 to a children’s hearing. Since that date, it has not been possible for a child to gain a criminal conviction based on pre-12 behaviour.
- The second set of commencement regulations came into force on 31 March 2020. These regulations largely commenced the guidance- and regulation-making provisions of the Act and some of the provisions in Part 2 (related to the general functions of the independent reviewer).
- The third set of commencement regulations came into force on 30 November 2020, and commenced all remaining provisions in Part 2 of the Act, bringing all of the disclosure provisions into effect. The effect of this is that any conduct by a child below the age of 12 that would previously have been recorded as a conviction will no longer be recorded as such, which means that it is no longer possible for a person to acquire a criminal conviction on the basis of pre-12 behaviour and there will be no conviction information relating to this period in a person’s life to disclose later in life. In addition, any non-conviction information relating to harmful behaviour that occurred when a child was under 12 can no longer automatically be disclosed by the State, but only after it has been considered by an independent reviewer.
In addition:
- The Age of Criminal Responsibility (Scotland) Act 2019 (Independent Review of Disclosure of Information) Regulations 2020, which provide appropriate time periods within which key parts of the procedure for review are to be carried out came into force on 30 November 2020. These regulations provide clarity about time periods to those involved in a review of information, and ensure that applications are not subject to any unnecessary delay.
- The Children’s Hearings (Provision of Information by Principal Reporter) (Specified Persons) (Scotland) Regulations 2020, which prescribe additional persons who may request information from the Reporter: the Criminal Injuries Compensation Authority, Victim Support Scotland, and insurers, came into force on 4 February 2021. These regulations mirror equivalent provision made under previous legislation, which was revoked as the power under which it was made had been repealed.
- The Age of Criminal Responsibility (Scotland) Act 2019 (Register of Child Interview Rights Practitioners) (Scotland) Regulations 2021 came into force on 30 September 2021. These establish the register of child interview rights practitioners.
- The Children’s Legal Assistance (Miscellaneous Amendments and Consequential Provisions) (Scotland) Regulations 2021, which amend the children’s legal assistance scheme, and enable children who are the subject of an order under Part 4 of the Act to access legal aid came into force on 8 November. They will ensure children’s legal assistance is available in relation to proceedings under Part 4 of the Act.
Guidance to support implementation of the Act
Statutory guidance, on use of the power to take a child to a place of safety, and on the investigative interview, was published on 2 September 2021. Operational guidance is being finalised by Social Work Scotland, Police Scotland and COSLA.
Training
Social Work Scotland has developed a training plan which involves different levels of learning and development from basic awareness for a wider group of staff, to specialist training for social workers involved in interviewing children. Local authorities are developing and delivering local training plans to best meet the needs of their staff.
Police Scotland is rolling out training to all staff, to ensure operational readiness for commencement.
Child Interview Rights Practitioners
Regulations to establish the register of child interview rights practitioners are in place, and a number of solicitors will shortly be appointed as child interview rights practitioners, having successfully completed pre-appointment training.