Part 1: Age of Criminal Responsibility Pre-existing law
7.Section 41 of the Criminal Procedure (Scotland) Act 1995 (the “1995 Act”), as in force up to commencement of section 1 of this Act, sets out the position on the age of criminal responsibility as follows:
““It shall be conclusively presumed that no child under the age of eight years can be guilty of any offence.””
8.This is understood to mean that a child aged under eight cannot commit an offence (and therefore cannot be prosecuted).(1) A child aged under eight who does something which would, if the child is aged eight or over, be an offence may be referred to the Principal Reporter for consideration of whether to arrange a children’s hearing in relation to the child.(2) But the child cannot be dealt with on the ground that they have committed an offence (“the offence ground” – as set out in section 67(2)(j) of the Children’s Hearings (Scotland) Act 2011 (the “2011 Act”)). Rather, the child’s behaviour may indicate that one of the other grounds applies.(3)
9.Section 41A of the 1995 Act(4), as in force prior to commencement of section 2 of this Act, makes provision about how children who commit an offence while aged eight to 11 are to be dealt with by the criminal justice system, as follows:
10.This means that, while a child aged eight to 11 is considered capable of committing an offence, an offence committed by a child of this age is not dealt with through the criminal courts. Instead, the child may be referred to the children’s hearing system, where he or she may be dealt with using the offence ground or, depending on the circumstances, another ground.(5) Regardless of the ground used, the child’s welfare is the paramount consideration for the children’s hearing in deciding whether a compulsory supervision order ought to be made in respect of the child and, if so, what measures the order should contain.(6) The measures that a compulsory supervision order can contain are also the same regardless of which ground is used.
11.If a case proceeds on the basis of the offence ground, the standard of proof that applies in the event of an application being made to the sheriff to determine whether the ground is established is the criminal standard of proof (that is “beyond reasonable doubt”).(7) If a sheriff is required to determine whether any other ground mentioned in section 67(2) of the 2011 Act is established, then the civil standard of proof applies (that is, “on the balance of probabilities”) and, in addition, sections 1 and 2 of the Civil Evidence (Scotland) Act 1988 apply.(8)
12.For completeness, it should be noted that section 42 of the 1995 Act provides that children aged 12 to 15 who commit an offence may only be prosecuted if the Lord Advocate authorises the prosecution. However, the majority of children in this age group who commit offences are dealt with either through the children’s hearing system or through early and effective intervention.(9) Children aged 16 or over can be prosecuted, although a child of this age who offends while already subject to a compulsory supervision order may be referred back to a children’s hearing. Compulsory supervision orders are subject to regular review, but any such order still in effect when a person turns 18 is terminated at that point.(10)