Section one Context New legislation concerning children in the criminal justice system The Age of Criminal Responsibility (Scotland) Act 2019, which came into force in autumn 2019, raised the age of criminal responsibility from eight to 12 in Scotland.65 The Act also provides certain safeguards to ensure that harmful behaviour by children under 12 can be responded to in an appropriate and meaningful way, which will not criminalise them and should reduce the possibility of children under 12 being placed in a secure setting. The Minister for Children and Young People established an advisory group to review the Act’s operation and to consider whether the age of criminal responsibility should be increased further.66 At the time, 12 was the lowest minimum age for criminal responsibility considered acceptable by the UN Committee on the Rights of the Child (CRC), which later recommend a higher minimum age of at least 14 years.67 International standards on children in detention and adolescent development and evidence of effective practices, including those relating to restorative justice. It also reflects concerns such as the trends relating to the minimum age of criminal responsibility and the persistent use of deprivation of liberty. It clarifies the UN position that countries should raise the minimum age of criminal responsibility to at least 14 years.68 These developments to the Convention on the Rights of the Child followed evidence from the report by the Independent Expert leading the global study on children deprived of liberty, Manfred Nowak, published in July 2019.69 In Northern Ireland, England and Wales the current minimum age of criminal responsibility is 10 years old. In its latest periodic review of the UK, the United Nations Convention against Torture (UNCAT) reiterated its previous recommendation that countries in the UK, including Scotland, raise the minimum age of criminal responsibility in line with international standards and ensure the full implementation of juvenile justice standards.70 In September 2019, the CRC issued a new general comment to the UN Convention on the Rights of the Child on children in the justice system, which replaces its previous comment in this area from 2007. The new comment reflects developments that have occurred since 2007, the Committee’s jurisprudence, new knowledge about child 65 66 67 68 69 70 UK Government, Age of Criminal Responsibility (Scotland) Act 2019, https://www.legislation.gov.uk/asp/2019/7/contents/ enacted [accessed 30/10/2020] Scottish Government, Age of Criminal Responsibility Advisory Group webpage, https://www.gov.scot/groups/age-ofcriminal-responsibility-advisory-group/ [accessed 10/08/2020] ‘In the original General Comment No. 10 (2007), the CRC [UN Committee on the Rights of the Child] considered 12 years to be the absolute minimum age. It now states that this age is still low and calls on States to increase their minimum age to at least 14 years. The CRC has also been concerned that States had been misinterpreting the General Comment and viewing 12 as an acceptable MACR and the target aim.’ Children and Young People’s Commissioner Scotland, January 2019, Submission of the Children and Young People’s Commissioner Scotland: Age of Criminal Responsibility (Scotland) Bill, https://www.cypcs.org.uk/ufiles/ACR-evidence-Jan-19.pdf [accessed 24/08/2020] Committee on the Rights of the Child, September 2019, General comment No. 24 (2019) on children’s rights in the child justice system, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC% 2f24&Lang=en [accessed 24/08/2020] UN General Assembly, July 2019, Global study on children deprived of liberty, https://reliefweb.int/sites/reliefweb.int/files/ resources/A_74_136_E.pdf [accessed 24/08/2020] UNCAT, June 2019, Concluding observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland, page 5. 27