What were you like when you were eight years old? The chances are you may not remember much about it; perhaps your childhood was perfectly ordinary and uneventful or perhaps you did some things you regret and were punished for them. Whatever the circumstances, most would agree that as adults we should not be continually judged or punished for the people we were as eight year olds. And yet that is precisely what is happening in some cases in the Scottish criminal justice system.
This unsatisfactory situation is a direct consequence of some incomplete and unsatisfactory reform of our criminal law. Until 2010, children as young as eight could be prosecuted in a criminal court. Quite rightly, this was the subject of widespread, international criticism and five years ago, the law was changed by the Criminal Justice and Licensing Act 2010 which raised the minimum age from eight to 12. But it did not change the age of criminal responsibility. That remains at eight.
This might sound like a legal nicety, but writing in The Herald today, Professor Elaine Sutherland, a member of the Law Society of Scotland's Family Law Committee, lays out its consequences for children and adults. The change in the law in 2010 was a mark of progress in that it meant children under the age of 12 could no longer be prosecuted in court, but a child of eight and over can still be held to be criminally responsible for their actions and can be referred to a children's panel where decisions can become part of a criminal record.
As Professor Sutherland explains, this can have profound consequences later in life as in certain circumstances reference can be made to criminal convictions from childhood. The convictions may come up in civil proceedings, for example, or when a person is applying for certain jobs; if the person wants to become a lawyer, the childhood convictions will also have to be disclosed.
Can this be fair? In her article in The Herald today, Professor Sutherland points out that in the case of a person whose sole criminal act was to shoplift when they were 10 years old and the matter was dealt with by a children's hearing, that wrongdoing could follow him into his adult life, no matter how much they had changed or managed to put a childish mistake behind them.
The time has come to fix this anomaly and answer the valid criticism from a range of distinguished organisations that deal with children including Barnardo's Scotland, NSPCC Scotland, and others. The charities have said that Scotland is proud of our children's hearing system, but that its progressive work is undermined by legislation which effectively labels children as criminals. In some cases, it is a label they can never remove.
To call for reform of this part of our criminal law is not to deny that children sometimes engage in offending behaviour, and have to be dealt with. However, a child of eight who commits crime will frequently do so because they are from a difficult background and it is only by attempting to improve that background that the child can be helped and further offending averted. The fact that offending by a child as young as eight can linger forever in their lives does not help the process of changing a child who gets in trouble into an adult who contributes to society.
The Scottish Government's response to all of this has been less than satisfactory. Three years ago, it promised to give fresh consideration to raising the age of criminal responsibility and yet here we are in 2015 and nothing has been done. Worse than that, the Government is making excuses about why the change cannot be included in the Criminal Justice Bill currently going through parliament. With another influential voice now being added to the case for reform, the Scottish Government should look at the matter again with the greatest speed.
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