The Minimum Age of Criminal Responsibility – A Real Opportunity

Debating the minimum of age responsibility isn’t just about stating the obvious. Debbie Nolan looks at the more subtle opportunities accompanying this discussion.

You may have come to this blog thinking it is pretty obvious that the chance to discuss, debate, consult on, and potentially raise the minimum age of criminal responsibility (MACR) is a real (albeit arguably long overdue) opportunity. An opportunity for Scotland to no longer have the lowest age of criminal responsibility in Europe;  an opportunity to meet the requirements of the UN Convention on the Rights of the Child; an opportunity to reinforce the welfare-based approach to all children; an opportunity for cultural change. The list could go on but this is all dealt with much more thoroughly in the Report of the Advisory Group on the Minimum Age of Criminal Responsibility and accompanying documents. Instead what I want to draw attention to is the range of more subtle opportunities accompanying the above, opportunities to highlight again and refocus our attention on a range of issues which arguably have relevance for all young people involved in or at risk of involvement offending, not just those young people in the 8-11 years age range.

An opportunity to consider how many young children commit seriously harmful behaviours

Tabloid headlines such as this 2015 one from the Daily Mail ‘Criminals’ aged just 2: Children responsible for hidden crimewave, including rape, violence and vandalism…and there’s nothing police can do and what currently feels like the weekly media attention to cases where children have displayed seriously harmful behaviour, renders the opportunity provided by the Report of the  Advisory Group on the Minimum Age of Criminal Responsibility  and accompanying research by Henderson, Kurlus and McNiven (2016) a timely one in identifying the extent of such behaviours by young children. The research by Henderson et al. (2016) found that seriously harmful behaviours are rare in the 8-11 age group and that in 2014-15, of the 215 children aged 8-11 years referred to the Children’s Reporter for offending, in most cases this was for low gravity offences and their first and last offence. Having such clear, detailed information is a welcomed opportunity.

An opportunity to refocus on the needs of young people involved in harmful behaviour

The links between vulnerability, victimisation and harmful behaviours are well established (see for example the Edinburgh Study of Youth Transitions and Crime; Moodie and Anderson, 2015; Vaswani, 2015) but the stark illustration of this by Henderson et al. (2016) is again useful. This research focused on the backgrounds of children aged under 12 referred to the Children’s Reporter on offence grounds.  From a sample of 100 of these children:

Of the 37 children where the offence referral was part of a pattern of behaviour, their parents were recorded as presenting risks in 81% of cases, 43% of the children had mental health difficulties, 70% educational problems and 30% had been the victims of physical or sexual abuse.

Of the 60 children where the offence was an isolated incident, 55% had a parent who posed risks, 22% of the children had mental health difficulties, 38% had educational problems and 22% had experienced abuse.

This led the MACR Advisory Group to conclude that where young children become involved in serious harmful behaviour this is often in the context of experiencing a range of other difficulties and “rarely does a child demonstrate harmful behaviour, without first having been harmed themselves” (2016, p.5). The recurrence of such messages and efforts to increase the profile of these messages is essential if we are to continue to recognise the distinction between victim and perpetrator is often a false one. We need to ensure that in practice, harmful behaviour is located within the wider context of the child’s life, recognised as often an indicator of wider wellbeing needs and responded to in a way which seeks to address these wider needs and difficulties, without stigmatising the child, labelling and criminalising this behaviour. This is fundamental if we are to give these young people the best opportunity to flourish and to prevent future victims.

The Report of the Advisory Group also helpfully provides an opportunity to refocus on the developmental needs of children. While this is dominantly focused on those in the 8-11 age range, the recognition of the adverse impact of trauma, neglect and a range of other negative experiences on development provides a helpful reminder of the vital importance of taking a developmentally informed perspective to all practice, and of starting where the child is.

An opportunity to think again about the trauma of disclosure and the impact on life chances

The Report of the Advisory Group highlights the complexities and the long-term implications and impacts of the requirement to disclose offence grounds accepted or established through the Children’s Hearings System potentially into adulthood, as well as the trauma of requiring to revisit and explain for many years an incident they may be ashamed of or not fully understand.  The relevance of this is clear for children of all ages, as is the fundamental importance of considering the relevance of such information given what may have followed (for example the individual having attained adulthood and a law abiding life, or having undertaken subsequent work regarding their behaviour which has had a positive impact on the assessment of risk). This again highlights the vital importance of the Scottish Government taking another opportunity and implementing changes on the disclosure of childhood offences (Scottish Government, 2015).

Purpose and perception of the Children’s Hearings System: The Report of the Advisory Group (2016, p.23) highlights that “from a child’s perspective being brought before a Children’s Hearing on offence grounds is likely to lead to a perception that they will be punished for their actions. Raising the age of criminal responsibility seeks to make it explicit to children that any behaviour under the age of 12 will not be dealt with in such a way”. This made me think about the views expressed by young females at a focus groups held by Up-2-Us as part of the development of the Scottish Care Leavers Covenant. The young women evidently perceived being subject to Compulsory Supervision Order (CSO) as a punishment and something they should seek to “escape” from by having their Order terminated.  However, with the benefit of hindsight, they were able to identify the range of negative outcomes that such premature termination had brought.  While maximising the use of the Children’s Hearings System and avoiding the premature termination of CSOs is a key part of reintegration and transitions practice, both of the above highlight the need to consider how we frame and introduce to young people the role of the Children’s Hearings System and compulsory measures.

An opportunity to again focus on the place and needs of victims

The implications of raising the MACR for victims of such harmful behaviour has understandably and rightly been given significant attention, a factor which is even more important given the links between victimisation and offending discussed above. This focus is consistent with that given under the Scottish Government’s Preventing Offending: Getting it right for children and young people (2015) and the improvements to information and support provision via the Victims and Witnesses (Scotland) Act 2014, and provides a further welcomed opportunity.

Whilst the points made above are not new information, I think part of the beauty of the MACR consultation and the work accompanying has been the opportunity to reflect and refocus on these wider issues-this has been a useful opportunity regardless of the outcome of the consultation.

If you’d like to have your say, the deadline for responding to the Consultation on the MACR is June 10.  

About our blogger

Debbie Nolan’s background is in working with vulnerable and marginalised children and young people across sectors and in various roles. Read more.