Hansard

I am happy to take up that kind invitation, convener. I welcome all members’ contributions to the debate. This is a difficult and sensitive issue, as members have said. Before I proceed to the scripted remarks that I want to place on record, I will respond to some of the points that have been made.In its stage 1 report, the committee opined:“We recognise that children under 12 can sometimes do terrible things, and if there is to be a statutory ban on criminal prosecution in all such cases, it would be useful to have an assurance from the Cabinet Secretary that there is a sufficient range of disposals available within the children’s hearings system.”In his response, the cabinet secretary rightly referred to the disposals that are available to the children’s hearings system. It will come as no surprise to committee members that those include“placing children in secure care up to their 18th birthday if that is required.” The response continues:“A Panel can also place a child on intensive support which can include an electronic tag. The Panel decides on the most appropriate intervention based on the needs of the child, the support required to change their behaviour and the measures needed to protect the public.”I thought it important to mention that, as Richard Baker rightly sought an assurance about the sufficiency of the disposals that are available to the children’s hearings system. Angela Constance also referred to the fact that we are seeking to legislate on and improve further the excellent system of which we are rightly proud in Scotland. That will take place shortly, under a different bill.We all have confidence in the good work that is done, particularly in the secure estate. It is a serious step to place a child into the secure estate, and those of us who have visited secure accommodation throughout Scotland will know that it is not a soft option for those children but a severe measure that effectively deprives them of their liberty. The ultimate disposals are available to the children’s hearings system. I thought it prudent to start by emphasising the fact that the sanctions are serious, irrespective of the age that is set for consent and prosecution. That said, it should be remembered that only one child under the age of 12 has been prosecuted in the past six years. I will come to that later.The changes that are in section 38 will lead to the following system operating. First, children under the age of eight will continue to be conclusively presumed to be not guilty of an offence. Secondly, children under the age of 12 but aged eight or over who offend will be dealt with only through the children’s hearings system. Thirdly, children under 16 who are aged 12 or over will be prosecuted if the offence is sufficiently serious to be dealt with on indictment; otherwise, they will be dealt with by the children’s hearings system. Finally, children aged 16 or 17 who remain on supervision through the children’s hearings system will either continue to be managed in that system or be prosecuted. Raising the minimum age of prosecution from eight to 12 is an important move that will—as has been said, initially by Robert Brown—bring us into line with most of mainland Europe and strengthen our commitment to the UN Convention on the Rights of the Child. I make it clear from the outset that we believe that our approach strikes the right balance between protecting the public and protecting the rights of children.I fully understand the intention behind amendments 126 and 127. However, given the fact that only one child under the age of 12 has been prosecuted in the past six years, the normal situation is for there to be no prosecutions. That is what we are seeking to establish as the legal situation—the de facto situation is that prosecutions are so rare that they hardly ever occur. Amendments 126 and 127 would have the effect of neutralising section 38. They would create uncertainty as to the circumstances in which prosecution of a child under the age of 12 was either possible or appropriate. For those reasons, I would not recommend support for amendments 126 and 127.I turn to amendment 379. Raising the age of criminal responsibility, as set out in section 41 of the Criminal Procedure (Scotland) Act 1995, was an option that the Scottish Law Commission considered carefully when it looked at the issue in 2002. In relation to the UN Convention on the Rights of the Child, the view of the Scottish Law Commission was that“the Convention’s purposes are secured as much, if not more, by the provisions relating to immunity from criminal prosecution and punishment as by provisions on criminal capacity”.Accordingly, the commission recommended that there should be an amendment to the 1995 act by providing that a child under 12 years of age cannot be prosecuted. That is what is contained in section 38 of the bill. 10:30 The Scottish Government is committed to supporting children’s rights as a key strand that underpins our activity to improve outcomes for all Scotland’s children and young people. We believe that section 38 of the bill, as it stands, achieves that objective and is in line with Scotland’s commitments under the UN Convention on the Rights of the Child. We have addressed key concerns about the very young age at which children in Scotland can end up in the criminal justice system, ensuring that the principle is set that the children’s hearings system is the most appropriate forum for a child’s broader needs and welfare to be addressed alongside their behaviour. It is important that we can support young people who continue to pose a high risk when they leave the children’s hearings system. Although the overwhelming majority of children and young people are well behaved and contribute positively to their communities, there is a small number in relation to whom safeguards are necessary. As I said earlier, we seek to strike the right balance between protecting the public and protecting the rights of children. Furthermore, although children under 12 can still be referred to the reporter on offence grounds for minor offences, our Children’s Hearings (Scotland) Bill, which was recently introduced to Parliament, will introduce a new ground of referral in situations in which a child’s conduct has had, or is likely to have, a serious effect on the health, safety or development of the child or another person. That includes behaviour that could be considered criminal. Our expectation is that that new ground, rather than the existing offence ground, will be used for more minor offending behaviour. For those reasons, amendment 379 is unnecessary. We appreciate the reasons behind amendment 389. It would require Scottish ministers to report annually on the disposal of cases involving children who, but for the new prohibition of the prosecution of under-12s, would have been prosecuted. The Lord Advocate’s guidelines set out when a child can be prosecuted for an offence. However, there are no set criteria or offences that lead to prosecution. Currently, there is discretion within the guidelines, and it is the responsibility of the procurator fiscal to decide whether it is in the public interest to prosecute. When section 38 is implemented, all cases will be referred to the reporter and, therefore, no mechanism will exist to consider whether a case meets the public interest test. As I said, it should be remembered that only one child aged under the age of 12 has been prosecuted in the past six years, so there appears to be little merit in the reporting that Mr Baker calls for, as was pointed out by Mr Maxwell. For that reason, amendment 389 is undesirable. I state again, however, that I understand the policy intent that Richard Baker has clearly explained.Amendment 549 would require the order commencing section 38 to be made by affirmative procedure. That would be a unique requirement. As members will be aware, commencement orders are invariably subject to no parliamentary procedure, and there is good reason for that. If the Parliament agrees to section 38, what would be the point of another debate and vote at the point of commencement? Furthermore, in the children’s hearings system, we already have a robust process in place to deal with those young people. Although the Children’s Hearings (Scotland) Bill might introduce improvements to the process, there is no reason for any delay.I urge the committee to resist amendment 549 and all the amendments in the group.Finally, I would like to address the issue of the retention and disclosure of records, which Robert Brown raised, as I thought that he might. I am aware of the issue around the retention and disclosure of information about children and young people who are referred to a hearing on offence grounds. In the interests of public safety, we believe that there is still a strong case for recording certain information. However, we recognise that the information that is made available under disclosure checks needs to be proportionate, and we are, therefore, seeking to include provisions in the Children’s Hearings (Scotland) Bill that will ensure that information about children and young people who are referred to a hearing on offence grounds is retained and disclosed only where necessary. I wanted to put that on the record to provide some assurance to Mr Brown and other members.