DOZENS of children and teenagers who commit serious offences in future, including rape, robbery and murder, will not face court or be criminalised, but could be dealt with in unreported proceedings by a panel of three lay people.

That’s the reality if a Liberal Democrat amendment to a bill going through the Scottish Parliament raises the age of criminal responsibility, from the current age of eight, to 16. The move is supported by Scotland’s Children’s Commissioner, the Scottish Children’s Reporter Administration and several children’s charities.

The Holyrood bill seeks to raise the responsibility age to 12 but, in a series of amendments, the LibDem MSP Alex Cole-Hamilton is pressing the Government to set the new age at 16, but failing that at 14.

He said: "Twelve is an unacceptable age of criminal responsibility and would undermine our ambition for Scotland to be a leader in human rights. The Scottish Government must, at the very least, proceed with haste to raise the age of criminal responsibility to 14, with a view to increasing it to 16 once the necessary work has been done to accommodate that.”

The UN Committee on the Rights of the Child is in the process of updating its recommendations on the minimum age of criminal responsibility from 12, and is expected to set the age at 14 next month, commending states who set a higher age.

According to Lord Advocate James Wolffe QC, since 2011/12 almost 1,300 children aged 12 and 13 have been reported to the Crown Office. The vast majority were dealt with by children’s hearings under the reporter administration, where the three-member panel met in private and passed judgment, but 29 were subject to criminal proceedings, including six at the High Court and five before sheriff and jury. These more serious, "solemn" cases, included a child charged with murder who was convicted of culpable homicide, an attempted murder, serous assaults and rape of younger children.

If the LibDem amendment is passed these cases would, in future, be heard by a children's hearing, unless there is a change of law.

Although the age of criminal responsibility in Scotland is presently eight, the lowest in Europe, the minimum age of prosecution is 12, which means that any child of that age or up to 18 will face any serious charges in an adult court, although their identity cannot normally be disclosed.

Wolffe gave examples of crimes which could not have been prosecuted had the responsibility age been raised to 16, giving evidence to Holyrood’s Equality and Human Rights Committee. As well as the cases involving the 12 and 13-year-olds, 19,000 charges involving 14 and 15-year-olds had been reported to the Crown Office since 2011/12, almost 3,000 of which went to court. Of those, 47 were serious, "solemn", cases, with 26 resulting in custodial sentences.

He told the committee: “The headline offences included serious assaults, robbery, rape, wilful fire-raising, attempted murder and culpable homicide.” He cautioned the committee against raising the age limit too far before equipping the system to deal with them “appropriately, confidently and indeed fairly”.

The Children’s Commissioner Bruce Adamson, before the same committee, argued that the age of responsibility should be 14, “with a view to raising it to 16". He said: “The UN is very clear that even 14 shouldn’t be a target, you should be looking further than that."

At an earlier hearing Malcolm Schaffer, head of practice and policy at the Scottish Children’s Reporter Administration, argued that the age could be raised to 16 and that the criminal justice system is not needed to “control behaviour”.

Morag Driscoll, Convener of the Law Society of Scotland’s Family Law committee, said: “We have argued for years that the age of criminal responsibility is far too low in Scotland and the bill will ensure we no longer have the lowest age of criminal responsibility in Europe. Raising the age to 12 will also bring this in line with the age at which a child can be prosecuted, providing much-needed clarity on criminal law as it relates to children.

"The exact age of criminal responsibility is a matter for Parliament to consider and while raising this beyond 12 may be desirable, it would require further careful consideration of the broader implications for the criminal justice system.”

Notorious cases

The most famous and horrific case involving children was the murder of two-year-old James Bulger on Merseyside in February 1993. He was abducted, tortured and killed by two 10-year-old boys, Robert Thompson and Jon Venables.

In another chilling case at the High Court in Glasgow last week, a 16-year-old – who cannot be named for legal reasons – was convicted of raping a seven-year-old boy while on a two-hour release from a secure residential unit. This newspaper understands the teenager was 15 at the time of the offence.

The offender had been given unsupervised release for two hours each day before the attack in East Dunbartonshire in June last year. He had previously been under round-the-clock watch at a nearby care unit. He was allowed out on his own despite him having inappropriately touched a 16-year-old boy just seven months before.

The court heard that the freedom had allowed him to prowl the grounds of a primary school as it came out on the day of the attack. He had claimed he was going to the library.

When he saw the seven-year-old child looking for a lost phone he pretended to be a police officer, telling the boy he would help him find it. He then took him to a deserted graveyard and raped him. After the assault he choked his victim and warned him he would kill him if he told anyone about the abuse.

Sentencing him to 28 months in a young offenders’ institution, Lord Burns told him: “You are assessed as very high risk of committing sexual offending in future.” The offender was also placed on the sex offenders’ register.

The victim’s grandmother said: “How are they going to monitor the accused after he gets out? They never managed before.”

Children's hearings

The children’s hearing system came into law in 1968, following a report by an investigatory committee under Lord Kilbrandon. The existing juvenile justice system was deemed to be unsuitable because it combined the characteristics of a criminal court with that of a treatment agency. Kilbrandon recommended a separation of these functions.

The law was updated in 2011, including a number of changes involving new grounds, updated legal orders and pre-hearing panels.

The hearing is carried out by three lay members who have gone through a training course. They are selected from the overall children’s panel which is comprised of around 2,700 volunteers in 22 areas.

The children’s reporter is there to see that the panel decision is competent or procedurally correct. However, he or she takes no part in the decision-making and the reporter does not have to be a lawyer, although many are.

These hearings take place in closed court, there is no reporting, recording or shorthand note of the proceedings, with the reporter responsible for taking a minute.

The vast majority of hearings don’t involve criminal allegations but welfare issues, like custody or parental contact. There is an appeal process, rarely used, to a sheriff, again in a closed court, who does not have the power to impose his own judgment but only to refer the matter back to a panel for further consideration.

There is no guarantee that the panel which then hears the case is the same one which made the original decision.

Critics, lawyers representing clients at hearings, claim that panels almost automatically defer to social work recommendations in cases, that the lay members don’t have the expertise or qualifications to make life-changing decisions and, as there is no requirement for panel members from a previous hearings to attend subsequent ones, there is a lack of continuity.

A further criticism is that the system does not readily allow children to raise their own concerns in absolute confidence.