Equality Impact Assessment - Results
Title of Policy
The Age of Criminal Responsibility (Scotland) Bill
Summary of aims and desired outcomes of Policy
The main purpose of the Bill is to raise the age of criminal responsibility ( ACR) in Scotland from 8 to 12, to align it with the current age of prosecution, and reflect Scotland's progressive commitment to international human rights standards so that:
In consequence of the change to the ACR, the Bill also provides for a number of measures to ensure that action can still be taken by the police and other authorities when children under the age of 12 are involved in serious incidents of harmful behaviour, to protect the child's rights and best interests, and the interests and rights of anyone harmed.
While these measures include specific investigatory powers for the police, the Bill also makes provision for the sharing of information with victims in respect of actions taken by the children's hearings system and a right for a child under the ACR thought to be responsible for a serious incident to have access to a supporter and to an advocacy worker during a formal police interview. The Bill also makes changes to the disclosure system, removing the automatic disclosure of convictions for the behaviour of under 12s and putting in place independent review of information to be included in response to a disclosure check, when that check may disclose non-conviction, but potentially adverse, information dating back to when the applicant was under the ACR.
Directorate: Division: team
Directorate for Children and Families: Care, Protection and Justice Division: Youth Justice and Children's Hearings Unit
An equality impact assessment ( EQIA) was undertaken in connection with the Age of Criminal Responsibility (Scotland) Bill to consider potential impacts across the protected characteristics for the provisions included in the Bill.
The Bill will make provision to raise the age of criminal responsibility from 8 to 12. This means:
- Children aged 8 to 11 involved in harmful behaviour will no longer be referred to a children's hearing on the ground that they have committed an offence. The behaviour can still be dealt with one of the sixteen existing non-offence referral grounds.
- No child will receive a criminal record for harmful behaviour committed when under 12.
In designing provisions consequential to raising the ACR, a special set of measures have been developed for young people under 12 who display serious harmful behaviour. These have a strong emphasis on both public protection and a child centred approach reflecting the Getting It Right for Every Child ( GIRFEC) imperatives.
The Bill will provide for a number of measures to ensure that action can still be taken by the police and other authorities when children under 12 are involved in serious incidents. These measures will ensure that the harmful behaviour of children under 12 can continue to be investigated, and that authorities respect, and respond to, the needs of victims. These measures will include:
- changes to the disclosure system to ensure that non-conviction information relating to harmful behaviour that occurred when children were under the new ACR can still be disclosed as Other Relevant Information ( ORI) on two types of disclosure, namely the enhanced disclosure under the Police Act 1997 and the scheme record under the Protection of Vulnerable Groups (Scotland) Act 2007, but only following independent review;
- the ability for a victim of a serious incident to receive information about the children's hearing disposal in respect of that incident;
- police powers to investigate suspected seriously harmful behaviour on the part of a child under 12, generally authorised by a sheriff or by a senior police officer unconnected with the investigation (although some immediate powers will be available in circumstances of urgency, emergency or risk to life);
- local authority social work services' involvement in planning and conducting investigative interviews with children under 12; and
- measures when a child is being formally interviewed, including a right to information, a right not to answer questions, assistance from an advocacy worker and a right to have a supporter present (usually an adult known to the child).
While the reform is aimed at providing children under 12 involved in harmful behaviour with an opportunity to change unencumbered by early criminal stigma, it is also designed to protect the rights of children and others who may be victims of harmful behaviour. Proposals in the Bill are, therefore, designed to ensure the change of age will augment public safety and retain public confidence.
The Scope of the EQIA
A variety of sources was used to help understand the likely impact of the proposed policies, and to refine those policies. In addition to ongoing engagement with a wide range of stakeholders, the sources of information that informed the EQIA included:
- The report of the Advisory Group on the Minimum Age of Criminal Responsibility, published in March 2016, which examined the implications for children and young people of raising the age of criminal responsibility.
- A public consultation based on the recommendations of the Advisory Group on the Minimum Age of Criminal Responsibility. This ran from 18 March until 17 June 2016, and was complemented by a programme of engagement with key interest groups such as young people and victims.
- Targeted engagement with children and young people aged from 8 to 22, focussing on those affected by current legislation and those that have experienced negative life experiences from being connected with the criminal justice system from an early age. This included meeting children and young people from the Scottish Youth Parliament, Children's Parliament, Who Cares? Scotland, Youth Advantage Outreach, Up-2-Us, YOI Polmont, Good Shepherd Secure Unit and Sacro. The methods used to elicit and record views ranged from scenario storytelling to quizzes, timelines, discussion groups, voting cards and artwork.
- The data collected by the Scottish Children's Reporter Administration ( SCRA) on the age of children referred to the children's reporter and the ground(s) on which referral is made.
- The research published by SCRA in March 2016 which looked at the circumstances and outcomes of 100 children aged 8 to 11 referred for offending in 2013-14.
During the EQIA process, the potential impact on each of the protected characteristics was considered. However, our assessment identified that the policy was only likely to have a direct impact in relation to age and sex. This impact is discussed in more detail below.
The other protected characteristics - maternity and pregnancy; gender reassignment; sexual orientation; disability; race; religion or belief; and marriage and civil partnership – do not have a direct bearing on the conduct of children's hearings proceedings, police investigations or disclosure checks, and we did not encounter evidence that suggested people in these groups would be disproportionately affected by the changes in the Bill. Indeed, some of these characteristics are unlikely to be relevant for children under 12.
By raising the age of criminal responsibility and removing the automatic disclosure of a "conviction" that occurred before the age of 12, the Bill will impact on children under 12 and on persons over 12 if they have been involved in certain types of behaviour when they were under 12 years of age at the time.
The changes to the disclosure regime will mean that the disclosure of ORI about harmful behaviour that occurred while under 12 will be treated differently from harmful behaviour that occurred when aged 12 or over. Individuals of all ages will benefit from this change as their age at the time of their enhanced disclosure, or PVG scheme record application will not affect how any pre-12 behaviour that the chief constable proposes to disclose as ORI will be treated. In all cases, that proposed ORI will be subject to independent review. The distinction in treatment is derived for disclosure purposes from the principal change in the Bill, namely the increasing of the age of criminal responsibility for 8 to 12 years of age. The only way information about a person's conduct when aged under 12 will be disclosed will be through the 'Other Relevant Information' ( ORI) process and only then on the enhanced disclosure, or the PVG scheme record. Such information will only be disclosable as ORI following an independent review of the chief constable's proposed ORI disclosure. The Independent Reviewer's decision will be final. An appeal to a sheriff, but only on a point of law, will be available by the person or the chief constable.
There is the possibility of an impact for those individuals who committed harmful behaviour while under eight. Under the proposed amended disclosure regime there is a possibility that information about harmful behaviour while under eight could now be disclosed as ORI by the police. However, this impact is expected to be minimal: Police Scotland has stated they have not disclosed any information about conduct committed when under eight since at least 2011. As such, we believe the overall impact for disclosure of behaviour under the age of eight will be neutral.
Under existing powers the Principal Reporter can tell victims of offences committed by children certain limited information about how a case has been disposed of via the children's hearings system. As a result of raising the age of criminal responsibility, victims of harmful behaviour by children aged 8 to 11 would no longer be able to receive information. To ensure victims' rights are not diminished, the Bill provides powers which allow the Principal Reporter to disclose information to victims of offences by children aged 12 and over, and to victims of harmful behaviour by children under 12. The persons who can access information and the information that can be disclosed are the same regardless of the age of the child but the description of the behaviour of children aged under 12 (harmful behaviour) is different to that of children aged 12 and over (offending behaviour). This distinction in the treatment of children on the basis of age is derived from the principal change in the Bill, namely the increasing of the age of criminal responsibility from 8 to 12 years of age and whether a child can commit an offence.
As a result of raising the age of criminal responsibility to 12, the police will treat children under 12 in a different way to children 12 and over. The behaviour of children under 12 will not be criminal, and therefore the police will not be able to use their criminal justice powers to investigate. That is why the Bill creates a bespoke package of powers that the police can use to investigate children under 12 whom they suspect have carried out seriously harmful behaviour. These new powers are designed to be appropriate for the child's age and stage of development, and the fact that their behaviour is not criminal.
The police will still be able to refer a child to the reporter but, as a result of the Bill, children under 12 will now only be referred on non-offence grounds (at present, children eight and older can be referred on offence grounds.) If a children's hearing is held, the hearing will have the same options available to it as it does for children aged 12 and over (for example, to put in place compulsory supervision orders). The hearing will also have the same obligation to treat the child's welfare as the paramount consideration, regardless of the child's age.
It should be noted that the police do not currently have powers to investigate the behaviour of children under eight, because that behaviour is not criminal. Under the Bill, the new police powers to investigate non-criminal behaviour in children will apply to all children under 12. In other words, investigatory powers will apply to children under eight for the first time. This is felt to be appropriate, as:
- The provisions have been designed to take into account the fact that the police powers could theoretically be used with children under eight. Carefully tailored measures have been built in to protect children's interests and wellbeing, even if they are too young to effectively advocate for their own interests.
- A key focus of the investigative process is to identify and understand the child's needs, so that appropriate support or child protection measures can be identified. The aim is ultimately to promote the wellbeing of children rather than punish them – and that can benefit children under eight just as it can children aged 8 to 11.
- In some cases, the fact that current powers do not apply to children under eight arguably creates gaps that could jeopardise the safety of children or the wider public. For example, currently the police do not have the power to search a child under eight who they believe is in possession of a knife (even though an older person might choose to conceal a knife on a young child to evade search). The Bill will create a consistent position by applying powers equally to all children under 12.
- It was not felt justifiable to create a tiered system, in which children ages 8 to 11 were treated differently to children aged under eight, even though all were under the age of criminal responsibility.
The evidence suggests that boys are more likely than girls to be affected by the fact that it will no longer be possible for children under 12 to be referred to a children's hearing on offence grounds. In 2016-17, 177 boys and 28 girls aged between 8 and 11 were referred to the reporter on offence grounds. Under the Bill, these children would all be referred on non-offence grounds. 24 boys and 6 girls aged 8 to 11 were referred to the reporter for behaviour that would potentially be considered of sufficient seriousness to engage the police powers in the Bill. This suggests that boys are more likely than girls to be affected by the new police powers for this age group.
Under the Bill, children under 12 will no longer receive criminal convictions which would appear on a higher level disclosure should they apply for one later in life. In 2016-17, 224,483 applications for higher level disclosures came from females (this accounted for 68% of the applications received) and 104,159 applications came from males (this accounted for 32% of the applications received). Taking account of the incidence of convictions held by female and males in Scotland, we believe the benefit from the change in ACR will have a slightly bigger positive impact on males.
However, while it is important to understand how males and females may be affected by the legislation in different ways, a person's sex has no direct bearing on children's hearings proceedings, police investigations or disclosure.
Recommendations and Conclusion
The policy focuses on the behaviour of 8 to 11 year olds, but has potential consequences for children and young people beyond the age of 18. By removing the disclosure of "criminal history" that occurred before the age of 12 the Bill will enable children and adults to put any harmful behaviour behind them, to get on with their lives and to contribute to society.
The current system of disclosure of information relating to harmful behaviour by children in the 8 to 11 age group is not considered justified since a young child could not have reasonably foreseen the impact the disclosure system could have on their lives at the time, and the child may no longer pose a risk by the time they reach adulthood.
It is acknowledged that police powers have the potential to interfere with civil liberties. However, the new powers in the Bill to enable the police to investigate concerns about harmful behaviour by children under 12 have been designed with many procedural safeguards to ensure that they will be used only in the most serious cases, in a way that is justifiable and proportionate to the circumstances, and is welfarist in focus. This is appropriate given that children under 12 will not be criminally responsible or subject to the criminal justice system.
The Bill only makes those powers available to the police where it is believed that a child's behaviour has caused (or is reasonably likely to cause) death or serious injury, or that the child has been sexually violent or sexually coercive. The most recent statistics available show that, broadly speaking, 33 children per year in Scotland aged 8 to 11 are referred to the Children's Reporter for an incident of that nature.
The EQIA process has not identified any issues which would have a detrimental impact on any of the protected groups. In the circumstances, the Scottish Government has concluded that no changes to the Bill are necessary.