 Good morning, everybody, and welcome to the second meeting of the committee for 2019. Can I ask everyone to ensure that mobile devices are switched to silent? Our first agenda item is Age of Criminal Responsibility Scotland Bill, and can I welcome our first panel, Lord Advocate, Solicitor General and Anthony McGee and Head of Policy at the Crown Office and Procator Fiscal. Can I invite the Lord Advocate to make an opening statement of up to five minutes places? Thank you, convener. Since I was appointed Lord Advocate, I've spoken from time to time about the fundamental rights which underpin the investigation and prosecution of crime. So it's a particular pleasure for me to make my first appearance before your committee. All legal systems have to address the challenges which arise from harmful behaviour by children. In addressing those issues, the state needs to put in place and to maintain an effective system for investigating and prosecuting crime. That's a human rights requirement, an obligation under articles 234 and 8 of the European Convention, whilst also fulfilling its obligations under the UNCRC. I welcome the balance which is struck in the bill that you have under consideration. It was the outcome of careful and detailed consideration and consultation over a long period, including in particular the work of the advisory group on the age of criminal responsibility. That work provides a solid foundation for raising the age of criminal responsibility to 12. Any decision on a further increase in the age of criminal responsibility will ultimately be a matter for Parliament. I hope that I can provide some context by reference to the practice and experience of prosecutors in cases involving children aged between 12 and 15. It's perhaps worth reminding the committee of the role of prosecutors in our current rather sophisticated youth justice system for cases involving children over the age of 12. Only the most serious cases involving children under 16 are reported to the Crown as well as to the reporter. For those cases that are reported to the Crown, prosecutors apply a presumption that the case should be dealt with by the reporter. Under those arrangements, the great majority of cases involving offending by children under 16 are dealt with by the reporter, either because they are never reported to the Crown or because the prosecutor refers the case to the reporter. In those cases where the circumstances require it, a prosecution may be brought, and where there is a prosecution, the courts are subject to special rules that apply both to the trial process and in relation to sentencing, which recognise the fact that the accused is a child. This is a system that enables professional judgment to be applied with a view to dealing with each individual case in the appropriate way. We have two options. The hearing system, which is appropriate for most cases, and for those cases which cannot be dealt with in the hearing system appropriately. Prosecution within a criminal justice system, which is modified to recognise that the accused is a child. I should say that both the solicitor general and I, and for that matter Anthony McGeehan, have direct personal experience of considering cases where children have committed serious crimes. I can certainly testify to the anxious consideration that has applied to such cases. Prosecutorial experience would support two propositions. First, that even in the 12 to 14 cohort, we see children who commit very serious offences, often but not exclusively against other children. Second, that the number of such cases increases with the age of the child. That experience is supported by data from the Crown Office database. I should say that this is an operational database, not one maintained for statistical purposes, but even subject to that caveat provides some useful information. Since 2011-12, 1,285 persons have been reported to the Crown who were aged 12 or 13 at the data report. Of those, 1,139 were jointly reported and were ultimately dealt with by the reporter. 27 cases involving 29 accused were 27 cases in which criminal proceedings were commenced, where one or more of the accused was 12 or 13 at the time of report. Six cases were prosecuted in the High Court and five before a sheriff and jury. I can give the committee more detail about those cases if that would be helpful, but they include a charge of murder that resulted in a conviction for culpable homicide, an attempted murder, serious assaults, willful fire-raising and rape of younger children. In the same time period, almost 19,000 charges were reported to the Crown against individuals who were 14 or 15 at the time of the report. The great majority were jointly reported and ultimately dealt with by the reporter, but almost 3,000 of the charges were called in court. Within that cohort, my officials have looked more closely at cases where the accused was 14 or 15 at the date of report and was still 14 or 15 at the date of disposal. 47 such cases were dealt with at solemn level, high court or sheriff and jury, and of those 26 resulted in a custodial sentence. The headline offences included serious assaults, robbery, willful fire-raising, rape, attempted murder, and culpable homicide. The absolute numbers of solemn cases in those cohorts may be relatively small, but each one is a serious case, and in the context of the basic responsibility of the state to which I referred at the outset, our youth justice system needs to be able to deal appropriately and confidently with every one of those cases. That certainly does not mean that we should set our face against a further increase in the age of criminal responsibility. However, it suggests that, before we could decide to remove the ability to bring a criminal prosecution in relation to such cases, we would need to address with some care how we would equip our system to deal with them appropriately, confidently and indeed fairly. Can I ask for some examples around the decision making process of taking a prosecution to an adult court with a younger person? Yes, I do not know whether the sister general would like to answer that question. Yes, in relation to a child under 16, there is a number of instruments that would be applied, first of all the Lord Advocate's guidelines, which provide for the cases to be reported in the first place. However, we would apply first of all the prosecution code, the general principles, that govern our decisions to prosecute in the public interest, to take into account a range of factors, including the gravity of the offence, the impact on the victim and so on. However, I am actually glad that I asked this. We have just been discussing it before we came in, because in relation to young offenders, we increasingly are aware of the vital need to take into account the circumstances of the child, him or herself. That is a direction of travel, a journey that we have been on, which I referenced in my recent speech at the Colbrandon event at Henry University. To reduce the number of children prosecuted in the criminal courts, we recognise that it is an adverse childhood experience. We recognise fully the consequences and implications for that child's future. In addition to the circumstances of the offence, which may be grave and heinous and have a significant impact on victims, you can understand the conversations that we have with victims and the next of kin in those circumstances. To take the right decision, it is abundantly clear now that we require to understand more about the child's circumstances and background, and to assess what the right disposal is to address those needs to prevent further offending, as well as to mark the criminality. It is a complex decision making process in relation to children. We are very much wanting to reduce the number of children prosecuted under any circumstances. That is why one of the first things that I did on appointment as Solicitor General was with the Cabinet Secretary for Justice is to set up an expert advisory group to look particularly at reducing sexual offending against other children, which has been on the significant increase in the past few years. We have a sophisticated system. It is acutely aware of the obligations under various international human rights instruments, the UNCRC principally. The answer to your question is how do we go about making those decisions? We take into account a range of factors, the prosecution code, but also the interests of the children. I have a couple of observations. One of the virtues of our system is that, rather than having sharp cut-offs based on chronological age, in that period, in relation to those cases that can be jointly reported, and in relation to cases that are jointly reported, the agreement between the Crown Office and SCRA and the guidelines that the Lord Advocate lays down support, first of all, discussion between the prosecutor and the reporter, and the exercise of professional judgment looking at the whole circumstances of the case and of the child concerned in order to reach the right decision in terms of the way in which that particular case and that child should be dealt with. Good morning, panel. I think that your opening statements and opening answer to the convener has given a good overview of how the system operates when a child is charged with a serious offence. I wonder if you could elaborate a wee bit on what you were talking about when it is jointly reported. How do the conversations between yourself and the reporter operate, and who has the final say in that? Is it yourself or is it the reporter? Ultimately, and the starting point, of course, is that we are dealing only with the cases that are jointly reported. Under the Lord Advocate's guidelines, it is only, as you will appreciate, the serious cases that are jointly reported. All other cases simply go to the reporter. In relation to those serious cases that are jointly reported, ultimately it is the prosecutor who makes the decision, whether to retain the case for prosecution or to release the case to the reporter. As it should be, it is ultimately the responsibility of the prosecutor to decide independently in the public interest whether a case should or should not be prosecuted. Under the Lord Advocate's guidance and directions, first of all prosecutors are enjoying to have discussions with the reporter about the appropriate course and to obtain information from the reporter, which will be relevant to that ultimate decision, information both about the circumstances of the child, as far as it is known to the reporter, but also about how the reporter and the hearing system might approach the particular case. The ultimate decision is for the prosecutor, but the prosecutor applies the presumptions set out in the directions that the Lord Advocate lays down, that I laid down, which is a presumption for the case to go to the reporter unless the public interest requires that it be prosecuted. I suspect that Anthony is probably the best place to speak directly to the kind of discussion that would happen between a procreate fiscal and the reporter. On a daily basis, those conversations take place between prosecutors and reporters. As the Lord Advocate has said, that discussion takes place in a particular context, and that context is a national agreement between COPFS and SCRA, in relation to the way in which cases that are jointly with the reporter we dealt with. In that agreement, there is a presumption that children under the age of 16 jointly reported to SCRA and COPFS we dealt with by the reporter, but that presumption can be rebutted or overcome, and there are a variety of factors specified that should be considered when deciding which organisation should take the individual accused. The factors specified are the gravity of the offence, whether there is a pattern of serious offending, whether there are services within the children's hearing system currently working with the child, whether there is likely to be an adverse effect on the victim if the child were to be prosecuted, any health or development issues that might indicate that the child's needs and behaviours will be better addressed within the children's hearing system, or whether a disqualification from driving is a likely disposal. Those considerations are in turn echoed within our published prostitution code, as indicated by the solicitor general, so within the published prostitution code, the following factors are identified as relevant to that discussion. Those include the nature and gravity of the offence, the impact of the offence on the victim and other witnesses, the age, background and personal circumstances of the accused. In particular, the code states that the youth of the accused may, depending on the other circumstances, be a factor that influences the prostitute in favour of action other than prosecution, i.e. the matter being dealt with by the reporter to the children's panel. We also consider the effect of the prostitution on the accused, and in particular the code states that, in some cases, prostitution may have the potential to affect the accused in a way or to an extent that is wholly disproportionate to the gravity of the alleged offence. Those are the types of factors that we routinely fold into our conversations with reporters day in, day out and lead us to decision as to whether or not the case should be dealt with by the prostutor or by the reporter, but remembering our starting position of it is only the most serious cases that will be reported jointly to SCRA and COPFS, those less serious cases are reported to the reporter only. Can I pick up on that? I suppose that it has come back to an earlier stage of the process. The Lord Advocate gave an overview of what would be considered serious offences, but when they are jointly reported, I am assuming that that is from the police. Is there quite strict guidelines on the police about what constitutes a serious offence? Yes, it is those offences that would... The Lord Advocate has published guidelines to chief constables regarding the reporting of cases to the Procurator Fiscal, and it is those offences that are... There are three categories of offences that are required to be jointly reported. One is that offences that are required by law to be prosecuted in indictment or which are so serious as normally to give rise to solemn proceedings on the instruction of the Lord Advocate. Okay, thanks for that. That's really helpful. I think that you've actually, between the answers and, as I say, the opening statement that you've covered, I would be looking at. One other area that I wanted to ask about though was is there ever a circumstance where a child could be reported for an offence that would be considered under the rules and guidelines not serious or not serious enough to be jointly reported? However, they've got past behaviours or an accumulation of previous offences or charges. How would such a situation like that be dealt with? For example, to give an example, a child may be reported on an assault charge that perhaps wouldn't meet the criteria to be jointly reported. However, they had a serious assault charge previously which was jointly reported. How would that be dealt with? I think that if a serious assault charge has been dealt with by, for example, the reporter under that scenario and we were dealing with a freestanding assault charge that would not merit solemn proceedings and the child was, for example, 12 or 13, the presumption is that in that case we dealt with by the reporter and if we look at the considerations that are specified I would anticipate that that case would be continued to be dealt with by the reporter. There were and are examples, you've given a very specific example of a former or a previous serious offence but the inspector of prosecution recently conducted a thematic report on the prosecution of young persons and that report identified situations where young persons were reported in error to COPFS by the police, the police perhaps having identified the case as a serious case inappropriately. In those cases there were 11 cases identified by the inspectorate and in those cases the prosecutor in all but one case referred the matter to the reporter so the prosecutor acts as a gatekeeper to the adult criminal justice system, discussed the matter with the reporter and referred the cases to the reporters appropriate. There was one case where proceedings were initiated but thereafter discontinued by COPFS and the inspectorate has recommended that we as a system guard against any inadvertent net widening and that's a recommendation that we've accepted and we're taking forward with Police Scotland. That's very helpful. I think that the whole issue of repeat offending is just the type of matter that will be discussed one-to-one between the procurator fiscal and the reporter so that the reporter can give his or her view on progress that the child is making under the very supervision requirements and whether they want to keep the child effectively to continue that good work, notwithstanding further offending. There will be cases however and I think that Lord Advocate's personal experience of one such case will be historical where notwithstanding the work that the hearing system is doing with the child nevertheless offending is increasing, risk of harm to that person and to victims is increasing and I think that we have a responsibility in the public interest to have those close and detailed conversations but where that risk is escalating to a point where the children's hearing system cannot adequately address that behaviour, then a judgement has to be made about whether in fact the time has come for an adult criminal justice response and there are cases sadly, as Lord Advocate referenced in his opening remarks of serious and escalating and very worrying risky behaviour which we need to discuss and do the right thing. Thank you very much, convener. I just wanted to be absolutely clear, Lord Advocate, to know that you still believe it's in the public interest to prosecute 12, 13, 14 and 15-year-olds for those serious offences you and the other panellists have outlined. Under the system that we currently have, the cases that we prosecute, whether children of that age, it's my view, it's in the public interest that we prosecute those cases within the system that we currently have and that's why in my opening remarks nothing in the information that we've given suggests that we should set our face against looking at increasing the age. It does suggest that before we could decide to remove the capacity to prosecute those cases, we need to address with some care how we equip our system as a whole to deal with each of those cases appropriately, confidently. I said fairly because one has to remember that we'll always keep that in our mind as well. Based on that answer of your advice to the committee and Parliament being when we're looking at these new amendments that have come forward that propose moving to 14 or 16 that it's more important to do that work first than to blindly agree to those? Is that what you're saying? I would never suggest that Parliament would act blindly but my view would be that the work needs to be done first and we have to remember that the really substantial work done across a number of agencies in order to equip ourselves to bring forward the bill that's before the committee, a bill that I support and I support because of the work that's been done to give us the confidence that the system as a whole is equipped to accommodate and deal with the general principles that have been agreed in relation to this bill. It seems to me to be really important that we address the range of issues that will need to be considered before we make a decision to increase the age of criminal responsibility or indeed to remove the opportunity to prosecute the kind of cases that I've referred to at the Solicitor General and Anthony McEath. I guess that I'll probably know the answer to the question before I ask it but it's more to put it on the record. Are you fully confident that our current system with the proposed bill would fully comply with all of our international obligations? I'm satisfied that it does so. In that context it would be really just how you would respond to the recent comments from the UN that have come by light to the committee and the Government. Yes, I mean these are comments brought forward in the context of a draft general comment which recommends, and I think it's perhaps important to just look at the wording off it if I can find it, that recommends that consideration be given to raising the age to 24. Sorry, 14. Sorry, it's draft general comment 24. Raising the age to 14. What the draft comment says is that states parties are encouraged to increase their minimum age to at least 14 years of age. Our international obligations are set out in the UNCRC itself. The precise legal status of general comments is a matter of some debate. I certainly would encourage the committee to take seriously and to take fully into account anything said in a general comment that has been approved. The current general comment, of course, recommends 12, but I do note that the draft general comment is a recommendation or encouragement to increase the minimum age to at least 14. It is really important, I think, to keep in mind that these are general comments that are not focused on any particular legal system. It's ultimately the responsibility of this Parliament and the Government to seek to ensure that we implement all our international obligations, including our obligations in relation to the effective investigation and prosecution of crime, and our obligations in respect of the rights of victims, as well as respecting our obligations under UNCRC. It's precisely because, ultimately, it's for this Parliament to fulfil those obligations or secure the fulfilment of those obligations in our system with all its very particular features that I would support the work that will be necessary in order to consider whether we can raise the age to 14. It's absolutely right that that work should be done, not least because of the encouragement given by the draft general comment, assuming that it's adopted. We're right that that work is done, but it does seem to me correct that that work should be done and carefully considered in the light of the way our system operates and that we look carefully at what adjustments we might need to make in different parts of our system before we make the people who are actually responsible for implementing human rights within our system as parliamentarians, as prosecutors, as a Government that we do that work before we make that decision. I'm sure that other members might have further questions to that, but I want to just ask one final question, convener, on something slightly different. It was just around offence grounds where cases are being referred and really around the burden of proof. We've heard from a few witnesses and a few submissions that there is some concern about that, obviously, with the difference, particularly from more serious offences being considered on the balance of probabilities, as opposed to beyond reasonable doubt. Is that something that would concern you in terms of things going to the children's reporter that there might be young people who are not necessarily picking up a criminal record but are potentially being accused of quite serious offences who might not have the same legal protection? It's inherent in removing the offence ground that the activity is no longer considered to be a crime, and that has consequences in terms of what has to be thought through. That's part of the context in which the bill contains provisions that the committee appreciates to deal with the investigation of such behaviour, because it is no longer regarded as criminal. It can't be investigated as a crime, and therefore the police have to have appropriate investigative powers to make sure that harmful behaviour can be appropriately addressed. It is a feature of our current system that there is a burden standard of proof before a criminal offence can be established, and that, of course, is our protection for the accused. You think that it's perfectly comfortable for a young person, in effect, to be established that, for example, they killed someone, but that decision could just be taken by an official Government-approved process just on the balance of probabilities? Does that create further concern, particularly as an age-crypt upwards? Well, it again comes back to, first of all, what are the consequences of that finding? If we're dealing with a child who is below the age at which we consider that a child has the capacity to commit a criminal offence, and the outcome of such a finding has no criminal consequences for that child, then it may be acceptable for that to be established on the balance of probabilities so that the child's behaviour can be appropriately addressed. That's really the essence of this proposal. It's undoubtedly the case that, as the age goes up, as we're dealing with older cohorts, anyone with experience of children will appreciate that, as the age goes up, not only does the incidence of harmful behaviour increase in our statistics show that, but also the meaning of what has been done if I put it that way changes. Mary Fee. Thank you, convener, and good morning. My question follows on nicely from the line of questioning that Oliver Mundell has opened up and that is around capacity, but I'm interested in how the criminal justice system assesses the capacity of a young person to understand the consequences of what they've done because we've heard lots of evidence that young people develop differently and sometimes young people can be in their 20s before they fully understand the consequences of their actions. I accept that young people can understand the difference between right and wrong, but understanding the consequences of their actions is a completely different thing. I wonder what tests and assessments are done to help the courts to determine whether a young person fully understands the consequences of their actions and what impact that has on how they're dealt with. If I may say so, it's an important point and of course it's a feature of our current system that because we have this, we have essentially options in relation to that cohort of children who are between the age of criminal responsibility and the upper point at which the hearing system can deal with them. There's the opportunity for professional judgment to be exercised by prosecutors informing themselves through discussions of the sort that Anthony described earlier to inform themselves about the not only the circumstance of the offence but all the factors that the code outlines including the circumstances of the child. That's at the stage of deciding which system the case should be dealt with through. When it comes to the court process itself, the courts have a number of statutory modifications made to the court process or to the normal rules that apply, which at least permit courts to take into account the fact that the accused is a child and we have, for example, special measures when a child gives evidence and special measures can apply to a child accused as to a child witness. The court has the power, probably inherent power regardless of statute to make appropriate modifications in terms of the actual trial process. That will be informed by the defence lawyers who can communicate to the court particular issues in relation to the child. When it comes to a conviction and disposal the court will have information in terms of social work reports and otherwise about the child. There are disposal options that are available including the court may refer the matter to the hearing system to be disposed of through the hearing system and we see even in the most serious cases that ultimately the court may send the child to be dealt with through the hearing system and there is a particular statute of provision that states that the court may only impose custody on a child if it is satisfied that no other disposal would be appropriate. A range of particular adjustments that are made to the system and it may be that if we are looking at raising the age of criminal responsibility that is a side of the equation that needs to be looked at as well as the question of whether it is right to deal with these cases through the hearing system but that is to anticipate the kind of work that I think would be needed in order properly to address whether our system will be equipped to deal with this particular cohort of cases appropriately and confidently. If I could maybe just add a couple of things following on from that. Mystin Council is currently engaged in a piece of work looking at sentencing practice in relation to young children and young offenders and I know and am aware that that is very much driven by UNCRC considerations as well as broader public interest considerations. I don't know if what you were maybe getting at was whether we take into account the fact that a child did not realise the consequences or took no account of the consequences in deciding whether to prosecute in the first place. That is another good and interesting question because the capacity to understand that one is committing a criminal offence is slightly different from sits alongside a recklessness or an ignorance of the consequences or a lack of capacity to understand the consequences and that would not necessarily mean that we would not prosecute. How do you determine that? What do you take into account to determine that? We discuss if it is a child who has been in contact with the hearing system have that conversation that Antony was talking about and I have had a long meeting with one of our lead prosecutors who does this on a daily basis so I am confident that those discussions are full and detailed so we will get whatever information we can from whatever public agency has dealt with that child before whether it is the hearing system whether it is through the police from the family from the schools, teachers and so on in appropriate cases we would have a psychological examination carried out. When you say in appropriate cases could you explain what you mean? I think that that is not routinely done then a psychological assessment of a young person who has committed a crime. Not a specific psychological report on every child that is reported to us jointly in relation to a criminal offence. Given the wealth of evidence that children develop differently and young people's ability to understand the consequences can sometimes, as I said earlier it can be in their late teens early twenties why is it not a routine part of the assessment process that a psychological test is done on a young person? You made the point yourself children are different need to be looked at as an individual in the individual circumstances so it depends on the background, the circumstances the child itself there is no need for a universal test of that kind before the kind of decisions that we make in consultation with the reporter the police and so on. It is also important we factor in all the circumstances and that has to include factors such as the gravity, seriousness and nature of the crime so for example in the cohort of cases that I referred to in my opening remarks we have an individual aged 13 who pled guilty to five charges of assault and robbery or attempted robbery and a theft by housebreaking a query an interest in question whether one would need to have a psychological assessment to determine whether that is a case that should or shouldn't stay in the criminal justice system we have another case in which a 13 year old was involved in a three accused premeditated robbery with knives of commercial premises we have got an exceptionally serious case of being a 13 year old who was charged with murder, pled guilty to culpable homicide multiple stabbing of the child's foster parent the court took the view that because there's a statute of provision in relation to custodial disposals it's a view that will have been reached after I'm sure a careful consideration that the appropriate disposal was a 12 year extended sentence with a seven year custodial element in relation to that particular particular case and that's quite an important example because it illustrates that even in that 12 to 14 cohort the appropriate disposal may include measures that extend beyond the 18th birthday of the child and as the committee will be aware the hearing system can only measure or make orders that last to the 18th birthday of the child and that's one of the issues that I think ought to be looked at carefully as we consider the issue of a further increase in the age of criminal responsibility we are now more aware of the impact of adverse childhood experiences and I suppose that I am still struggling to understand if we take into account a child's adverse childhood experiences and if they are on a particularly severe range why then would a child still be prosecuted if they have committed a crime we would determine whether or not a child with significant aces would have a psychological assessment and if I think about the adult course the defence of diminished responsibility can still be used in certain cases and I wonder if there is anything in the defence of young people where maybe not diminished responsibility exactly but if you take into account the extent to which aces have impacted on their understanding and their development and that would mean instead of being prosecuted they would be diverted somewhere else but I suppose the point that I have been at pains to emphasise is that our current system supports careful and considered professional judgment in which most the overwhelming bulk of children under 16 who commit offences are dealt with through the hearing system entirely appropriately and that is a system that I strongly support with the welfare of the child as the paramount consideration for the hearing so I think what's key about our current system is that it supports careful and considered professional judgment informed professional judgment that seeks to do the right thing for each individual case and I say case because of course in these most serious cases there is a child who is accused of the crime and of course that's in everyone's mind who deals with the case but there are also victims of the crime and there is a wider public interest and this is where this is one of the reasons why the issue has to be considered very carefully there is a question as the age goes up whether a system that treats the welfare of the child as the paramount consideration and excludes all other considerations is appropriate for dealing with this kind of case that's a question on which I which is for others to make policy but it's a serious question there's a serious set of questions about whether the powers of disposal of the hearing system are adequate to deal with this particular cohort of cases and again that ultimately will be for others to consider but it suddenly needs to be considered and the issue of what happens at the age of 18 is also something that will need to be considered so a range of issues that need to be looked at with the same thought on this that we've looked at the question of raising the age to 12 before we can safely take that decision and be confident that in doing so we will be meeting all our obligations not only to the child who's accused and at the heart of these cases but also to victims of crime and to the wider public interest Anywhere else had some questions about victims specifically, didn't you? I think the Lord Advocate has just answered the question just regarding public opinion and increasing the age and more thought has to go into it Thank you very much for taking the time to come and see us today Lord Advocate, the note of caution that you've sounded today is one that we've heard before I think that largely there is broad support across all the majority of stakeholders to see us go further than 12 with the caveat that we do the work first is why I've got a sunrise close amendment which would bring in 12 and then 14 later that Gail Ross is going to ask a bit more about later but can I ask you in terms of the work that is required the one step we've taken on this journey so far was lifting the age of criminal prosecution to 12 a number of years ago can I just ask about what preparatory work was needed for that and whether there were any unforeseen consequences after it came in? In terms of raising the age the age of prosecution to 12, I'm afraid I'm not familiar with the history of how that what work was done in order to prepare for that but I can certainly look into that have there been any cases which the judiciary felt goodness that person should have been tried in a criminal court or the system failed because we've lifted it to the age of criminal prosecution to 12? I wouldn't really come to the attention of the judiciary because the nature of the decision to raise the age of non-prosecution to 12 is that all those cases go into the hearing system I don't know whether any of us are aware of any cases I suppose the important thing that the data supports is that the incidence of cases of a seriousness that they're jointly reported increases as the age cohort with the age cohort now that's perhaps not a particularly surprising observation and within those cohorts there are a very small number of cases that are prosecuted changes as the age cohorts go up so in the cohort 12 to 14 a very small number of cases are prosecuted but they're prosecuted for a good reason and after the careful as I've tried to emphasise the most careful consideration and we have to be confident going forward that we're dealt with confidently and appropriately within whatever landscape or system we have in place I could maybe just add in terms of our experience and Anthony might be able to correct me or supplement this we will continue to have received reports of serious offending by 11 year olds particularly in the context of serious sexual offending where because of the age of criminal prosecution and then age of forthcoming age of criminal responsibility we have to view that through a different lens in terms of what we can do with that and I'm talking particularly in the context of serious sexual offending which persists for years but has started at a very early age and as the Lord Advocate has already mentioned against very young children so as an incidence there has always been and there continues to be a limited amount of reporting of serious offending by very young children I think we've dealt with that within the legal framework and particularly now we are able to perhaps lead evidence of that without charging it as a formal charge and seeking a conviction I just mention it to put on the record that that offending still is reported to us That's very useful, thank you Going back to the work that would be required to consider a further uplift in age of criminal responsibility there may be a range of factors we need to consider but the one thing that you've consistently mentioned in this session is of course what happens when a child commits something so severe that the nature of the disposal may last for many years and take them beyond their 18th birthday that's been raised before by other stakeholders about a question that we might need to answer either in terms of further empowering the children's hearing system or whatever what kind of solutions would solve that problem? I think it would be premature for me to on the hoof be trying to formulate answers to that particular issue I think it's not a straightforward issue because by its nature it envisages our disposal of some sort which is made by a hearing system but which lasts well into what I think we would regard as adulthood and of course as the age of criminal responsibility has increased the closer it's raised to 18 the more acute that becomes as a problem but even in this young age group 12 to 14 there are a couple of cases in the examples I've been given where the disposal went beyond the 18th birthday so I'm afraid I'm not going to be able to give you a neat solution a difficult question in policy terms but I also do think and I wouldn't want one to lose sight of two important questions one is whether the in the context of the kinds of cases that we're we're thinking about at the most extreme end there is some thinking to be done about what would be required to equip the children's hearing system to deal with that offending and I use equip in its broadest sense but what would be required for the hearing system if that was where we felt that those cases should be dealt with to do so does it have the powers it may not simply a matter of formal powers but does it have the powers that would be necessary to deal appropriately with offending and the hearing system of course has the power to include a secure accommodation authorisation in a compulsory supervision order but can't require that the child be kept in secure accommodation I suppose that lying behind that is the more fundamental issue of principle which I mentioned in answer to one of Mary Fee's questions which is whether or not it is correct and I raise it simply as a question I don't propose an answer whether it is correct that cases of the sort that I've described should be dealt with with the welfare of the child as effectively the sole consideration subject only to public protection I think there's a really important discussion for us collectively as a society to have about that question I understand and forgive me for putting you on the spot but it's not an insurmountable problem from what you said that there's a lot of work to be done but we'll hopefully get that. Quick question to the procurator fiscal if I may, I know you wanted to bring in Gail Ross Can I ask Anthony McGee in terms of the cases that are jointly referred this is about cost and I had heard that if we shifted the workload that is currently dealt with through the criminal courts and through your organisation entirely to the Children's Reporters Administration and the children's hearing system that there would be a burden of cost on them I just wanted to see and you might not have the statistics available right now but what kind of revenue is directed in your organisation to dealing with cases that are jointly referred to both organisations? I have specific figures to date we can work on the cost for individual cases by forum the challenge within the figures that are currently available to us is that as Lord Adam has already indicated in relation to children aged 12 or 13 at the time of report since 2011-12 1,285 accused persons have been reported and as again it has indicated that only 27 cases were raised or proceedings commenced before the courts but COPFS will have invested time and resources not only in the 27 cases in which proceedings were initiated but also in our consideration and dialogue with the reporter in relation to the most appropriate outcome for the remaining cases so it may be quite a difficult figure to confidently state but in relation to numbers of cases that are reported to us numbers of cases that we commenced proceedings in we have that data and could work on some broad figures as we do for any other type of change I think that would certainly be very helpful in terms of preparation of the financial memorandum so if you could provide any clarity on that that would be great I'm quite happy to see to get Ross Thank you convener and as usual when you go last you're sweeping up a couple of other things good morning panel I just want to thank you for your evidence and as is normal with things like this you read it on paper but your evidence has actually given it a real life angle and that's extremely important for us just in terms of I want to say something that we spoke about with the victims and the serious cases that are dealt with how do we how do we deal with the public perception if we're going to go beyond 12 to either 14 or 16 that we can give the public a sense of reassurance that these cases are still going to be dealt with in the manner that they're dealt with at the moment that's a really important point that are perhaps two different observations that I would make in answer to that the first is that there's the broad public perception of the system and confidence in the system and it is of course immensely important that public confidence is supported and maintained in the system as a whole that's one of the reasons why that it's really important to do the spade work before taking a decision on this and indeed it's one of the reasons why it's one of the reasons the law commission gave when it looked at this for retaining the right to prosecute children is that that enhances confidence in both parts of the system and of course Lord Kilbrand and also recommended that that should be retained so there's the general question of maintaining public confidence in the system ultimately I'm not an expert in how you maintain public confidence that's very much a matter that you will need out want to consider but it does seem to me from my perspective that doing the work and making sure we have the mechanisms and the powers and the structures in place that ensure that however we configure the system if it requires to be reconfigured for this cohort that the public confidence that every case will be dealt with appropriately including the most serious that's a really important thing it's also important not to lose sight of the individual victims and I think what we are acutely conscious of because prosecutors have to have conversations with the victims of crime about the way in which the cases dealt with and if one is dealing with a serious assault or a rape if one raises the age of criminal responsibility one is contemplating saying to the victim what happened to you was not a crime and it's going to be dealt with in this way now ultimately we have to make decisions in the public interest but one has to one has to consider when thinking about the public confidence in the system the responsibility that we have to victims to have a system which in which what has been done to them can be explained to them in a way that is appropriate it's a really important point I think we've come a long way as a society in terms of what Mary Fee was asking about the real appreciation of adverse childhood experiences and the need to prevent this offending in the first place the need to get it right for every child all of that but the Lord Advocate is absolutely right where a life has been taken where a child has been raped where somebody has been left with life changing injuries where from their perception as having lived the experience of that assault to be told well he's a child, he didn't know what he was doing or he didn't appreciate the consequences that's a very difficult message to get across it's a very difficult message to convey to set the scene and explain why certain actions are being taken short of their expectations but nevertheless I have to say from my personal experience victims equally in my experience understand the need for action to be taken so that nobody has to go through what they go through again so I I give victims the benefit of a really good understanding an intelligent understanding of what we need to do in response to that offending in the wider public interest and I think if we could get the message across that dealing with a child in a welfare system addresses those needs has a better chance of preventing re-offending that's one part of the narrative which I think could usefully be developed if I may just add to that in other parts of our system crimes are committed and the perpetrator can't be held responsible if the perpetrator is incapable through mental illness then he or she won't be held responsible for the crime, it remains our crime equally currently with the cases where the child is below 12 we can't prosecute it's characterised as a crime which can't be prosecuted through the criminal courts so we're very familiar with the idea of crimes that are committed but where the perpetrator can't be held responsible for good reasons one of the consequences of raising the age of criminal responsibility is that we for a very good reason in relation to the children under 12 to whom this bill relates to we proceed on the basis that the child is incapable of committing a crime it's not essentially it's not our crime and that's why we've got the investigative powers in the bill so the police can still investigate that even though we don't think of it as a crime so there may be something about as Mr General says about thinking carefully about how we characterise harmful behaviour at different ages in relation to different age cohorts and developing a strong narrative about the response to that behaviour which is most effective and most appropriate for dealing with dealing with the case but in a way which continues to command confidence in the way that I would like to think our system currently does and just on the clause that Alec Cole-Hamilton mentioned if we were obviously to go straight to 14 there would need to be a timescale to do the work so the clause says that 12 now because that work has been done and it's extremely in depth and took a lot of time so moving on then to go to a higher age whether that's 14 or 16 whatever the research bears out should there be a timescale put on that would that concentrate minds or would it place an unnecessary burden how do you see that working and given that there's already research done to go to 12 would the same amount of research have to be done or would you be able to draw on some of the evidence that's there already I don't think it would be right for me to to try and be prescriptive about the nature scope and scale of the work that will be needed to do this I think I can identify some of the questions that would need to be thought about it really is I'm afraid for others particularly for ministers with direct policy responsibility to help the committee about the kind of process that would be required and possible timescales for this kind of work I think what we can certainly do and falling on from Malcolm Shaffer's evidence to you the other day is to commit to working cooperatively to providing whatever data is needed whatever further insights practitioners, professional prosecutors insights into this I think there are different issues with the 12 and 13 year olds to 11 year olds and equally there are even yet more different issues in relation to 14 and 15 year olds character and legal issues so I don't think it's necessarily just a little bit of supplementary to what the advisory group did with younger I think as the Lord Advocate said gets closer to the age at which the children's hearing system can deal with them the issues get not here and more of them but we are again discussing this before we came in and for all sorts of reasons this is part of a direction of travel that I think we as prosecutors are committed to join to reduce the number of children in the criminal justice system and certainly in terms of getting the work done which is what you're talking about I think there is a sense of urgency frankly from my own experience of working in this area so that I think there would be a will to do the work quickly but thoroughly OK Thank you very much for your evidence this morning that draws our first panel to a close and we'll suspend briefly to change over Welcome back everybody and can I welcome Bruce Adamson children and young persons commissioner Scotland Can I invite you to make an opening statement of up to five minutes commissioner? Thank you convener and happy new year to the committee This year is an important year in children's rights terms of the UN Convention on the Rights of the Child the international commitment that we made to all children to create a legal framework that they could all grow up in an environment of happiness love and understanding and that speaks very importantly to the work that this committee has been doing on the age of criminal responsibility because the commitment that we have to children and young people is to keep them all safe and to support them and keep them from harm but also when they do conduct harmful behaviour to make sure that they are treated as children and in particular article 40 of the UN Convention on the Rights of the Child calls on all states to treat children in conflict of the law in a manner consistent with the child's rights respect for child's sense of dignity and worth in which reinforces their respect for human rights and fundamental freedoms of others taking into account their age and a desirability for promoting their reintegration and them assuming a constructive role in society and so the age of criminal responsibility is an essential part of that when we're talking about the harmful behaviour of children and young people I think we should see that primarily as a failure of the state things have gone wrong in terms of the support that that child has had and it concerns me that sometimes we seem to suggest that this should be an individual responsibility that that child should be held to accountable as if it wasn't part of broader failure as a number of committee members have already said our growing understanding of adverse childhood experiences and the complexity of some children's lives I think means that our focus should be very much on what's happened in the child's life and treating them as a child this is something that the international community over the last 30 years has been particularly focused on and we've spoken about the draft general comment which is currently being considered in Geneva but it's much broader than that so at the United Nations level the Human Rights Council the charter side of the United Nations made up of other member states has consistently challenged the position in Scotland and in the UK about our very low age of criminal responsibility and the committee itself the UN Committee on the Rights of the Child and you'll be hearing later from Ann Skeleton a very distinguished human rights defender and member of that committee about their work but has consistently condemned the position in Scotland and the UK for having an age of criminal responsibility of 8 when over a decade ago they developed the general comment number 10 where they said that taking into account all of the international evidence which was considerable that 12 was the absolute minimum at that stage and that 14 or 16 based on that strong evidence based on their consideration of global trends and what was happening in our growing understanding of children and young people that 14 or 16 was delivering better results in keeping people safe in reducing crime and in treating children and young people as children the revision of that draft which again Ann Skeleton will speak to this afternoon was something we've known about for a very long time the committee was very concerned that the general comments were misinterpreting as 12 being a target that was never intended to be so and they will be very clear that 14 is the minimum standard for all state parties to the convention on the rights of the child the committee's meeting in Geneva as we speak and it is expected that they will approve that general comment revision either in this session or at the latest in the next session all of the evidence that's gone into that is available on the UN's website at the Council of Europe level the parliamentary assembly of the Council of Europe was very clear that for European countries and the 47 members of the Council of Europe that 14 was the standard in 2014 so for European countries including the UK that was the standard and as the committee is aware the Council of Europe's commissioner for human rights Dania Miatovic has actually directly engaged both with ministers and with this committee expressing her concern that Scotland is not following the Council of Europe standard which has been 14 since at least 2014 so the international community could not have been clearer that 14 was the minimum standard based on all of the international evidence and that we should look to go further because the evidence supports that the domestic evidence is again strong and I think that the additional evidence that the committee has received from a number of the distinguished bodies across civil society in Scotland and academia in Scotland I think is very strong in supporting a raising of an age of criminal responsibility beyond what is currently in the bill and I think that 14 with a view to looking to 16 is where we should be the evidence from the Edinburgh the Edinburgh study shows that those global trends that global evidence that the UN looked at and that the Council of Europe looked at are true in Scotland so we have domestic evidence the committee has also heard directly from children and young people and adults who entered the criminal justice system young people and I think that all of that speaks very strongly to the consideration of moving further than the current proposal of 12 Thank you Good morning First and foremost in this secondary tranche of evidence that we have taken there has been broad support from stakeholders to go further than 12 as you have described the one note of caution that has been signed and you have just heard from the Lord Advocate about the requirement to do some work and there was an anxiety among parties that the first original advisory group that got us prepared for 12 took a number of years to do that work I wonder you personally weren't involved but your office was and I'm sure the organisational memory comes with you as to what the parameters of that original advisory group were were they told to stop at 12 they take that long because they were given an open-ended said you don't have to rush we want it back within the next two or three years or is it the work was very intense or are they just very busy people do you have a reflection as to why that took so long to do that prep work I think it was an issue of regret that the Government framed the advisory group's remit in such a way as it did to restrict it to 12 I think that was a mistake and I think that that mistake has led us to where we are now to some extent in terms of the work of the advisory group in terms of the timeframe my understanding was it wasn't that long in terms of the actual work of the group but the follow-up response I'm kind of drafting the bill and bringing it forward took a period of time but actually the work of the group was able to be done reasonably quickly I think that having spoken to reflecting on that institutional memory within my office but also having spoken to a number of the advisory group members many of whom supported a raise of the age of criminal responsibility higher than 12 they kept that in mind and so that advisory group was breaking new ground we hadn't looked at this in terms of what it would practically mean to raise the age of criminal responsibility for a very long time and so they were starting to unpick to look at what some of the unforeseen consequences are and to set out the framework all of those things apply equally to a higher age of criminal responsibility where the additional work in my view needs to be done is around looking at the resources that need to be provided so looking at the prevalence and the types of cases that we're looking at and very much looking at what needs to be put in place to support those children and young people the comments made towards the end of the last session by the IT organisations that prevention is the key here that what we need to do is to support children and young people and their families and their communities to make sure they don't go on to conduct harmful behaviour that's how we keep everybody safe and we need to do more work and more work is being done around how we do that but that's really the key to this by the time that we get to the type of harmful behaviour that we classify as criminal behaviour something's already gone horribly wrong but we do need to look at how to address that and I think that the work that needs to be done that Malcolm Shaffer from the Children's Reporters' Administration spoke about last week in terms of looking at the numbers of these cases and what additional resources would be needed for the Reporters' Administration I think our key he suggested that that would be a period of months depending on what we were looking at but it very much focused on the resources that were needed I think the comments around disposals that relate to children after they're no longer children and the challenge that we have in relation to perhaps older children if the age of crime responsibility was raised significantly older children very quickly moving beyond that 18 and out with any disposal available to the children's hearing system so I think that there is some work to be done around that to be set within the context of what's the purpose here of the criminal justice system and what's the purpose of addressing children's harmful behaviour and if the key thing is ensuring that this behaviour is addressed then we know from the evidence that actually a criminal justice approach does not work as well as a welfare based approach so actually the welfare based things that we need to be putting in that's what the additional work needs to be focused on I do accept that particularly if we're looking for a significant raise beyond 14 then there is more work to be done and that might take longer particularly around strengthening the powers and the resources for addressing that harmful behaviour but the move to 12 to 14 I would not foresee as creating an insurmountable barrier to moving this forward 14 is the minimum international standard and the international community has been very clear there is no excuse to have an age of criminal responsibility below 14 it is not compatible with international law and to some extent it could be seen as showing contempt to international law to pass a law which says that our age of criminal responsibility is 12 when the international community has been so clear and has engaged Scotland specifically to say that 14 is the lowest that would be acceptable so I think that the move to 14 is necessary and immediate but I do accept that additional work may need to be done to look at an age higher than 14 and I think that the type of time frame talked about in relation to the amendments in terms of the sunrise clause would be sufficient to allow for that to happen I'm just going to briefly if I may help you I suppose I just would want to be clear that our children's hearing system is not a criminal justice form Malcolm Shaffer was very clear last week that there is no punishment and retribution it's about treatment and rehabilitation so I suppose we just wouldn't want to be speaking as if it was a criminal justice form you want to be really clear that the hearing system is there for rehabilitation and treatment of young people Absolutely and when the European Court of Human Rights has looked at this they've made that point very clearly that while the children's hearing system does have some characteristics of a criminal system based around the paramount C of the welfare of the child and I think it's something we should be very proud of I myself was a panel member for 13 years and I'm very proud of what the children's hearing system does I think what I was intending to say was more that holistically when we're talking about children who conduct harmful behaviour that's what we should be talking about we're talking about children whose harmful behaviour is a product of our failure to give them the support that a welfare approach to that is what we should be doing and in fact the evidence shows that actually it's the most effective so not only is it the right thing to do in human rights terms treating the child as a child also the evidence shows that that's the most effective thing in terms of changing their behaviour that a criminal justice approach even applied by a very respectful prosecutorial service as we have in Scotland that presented very strong evidence today around the way in which they take a very sensitive approach to the prosecution of children we're still prosecuting children and the nature of taking a criminal justice approach is contrary to children's human rights particularly with younger children and does not deliver the results that we need a welfare approach delivers better results and the evidence I think from a number of the bodies that have submitted domestically is very strong on that Thank you Further to my first question Are you content that the original advisory group would be sufficient to consider this extra amount of work perhaps with the addition of the procurator fiscal given the joint referrals that higher ages bring would they be equipped sufficiently to deal with the deep dive into these issues or would you think a new group of different membership in remit would be established? I don't have a firm beyond that I think a number of the duty bearer the agencies involved which have the information and would need to do work themselves I think they should be doing that right now and they have been which is useful so actually this work should be happening anyway in terms of the advisory group to advise government on this I think that's probably a matter for our best to shape that I think that the advisory group has previously formed had exceptional expertise and they approached the process with diligence I think that it's a matter of significant regret that their remit was restricted in the way that it was and I think that that is problematic there are others that have expertise as well I think that the key thing for me is that we do avoid unintended consequences we do consider all the things that this committee has been asking of witnesses in terms of what would happen particularly for older children the consideration of victims which always has to be at the forefront of our minds and what their needs in terms of securing and effective remedy but most of that work has been done in a conceptual level most of that work is contained within the report the move to 14 or to 16 so we're just looking at the additional things I'm not convinced that those are insurmountable barriers great a couple more questions if I may you referenced the letter from the Human Rights Commissioner of the Council of Europe that this committee received on the weekend and it references an exchange between herself and the minister on this subject and the minister replied to the commissioner stating that there's a unique situation in Scotland that our children's hearings system is world regarded and be that as it may and we have a lot to be proud of the commissioner replied saying there are unique examples in every country and it doesn't really make us particularly special and doesn't give us a pass do you agree with that assessment should our unique children's hearing system for all its positive aspects give us a pass which absolves us of meeting that international minimum standard no I think that the Council of Europe commission was very clear on this and her letter to the committee that the whole point of having international minimum standards is that they apply to everyone nobody gets an exemption and I think it is very important that while we give important weight to the UN framework and Ann Skeleton will speak to that this afternoon and their absolute clarity on this point as well is that the minimum standards are minimum standards that apply irregardless of the other good things that you should be doing it's not that if you're doing some good things you're allowed to do bad things as well when you've got minimum standards they apply across the board you should as well be doing the other things to ensure that all children in conflict with the law are treated as children and there's a welfare approach and many of those things we've talked about so the way in which we approach prosecution are very strong in children's rights terms and have been recognised as such but all 47 members are member states of the Council of Europe all 193 members of the United Nations all have different strengths and weaknesses all have unique systems within them some of them have fantastic welfare systems for child justice and all of those positives should be congratulated it doesn't allow you then to say because we have that strength there we're allowed to go below the minimum standard and I think that the we have to be very clear here that 14 is the minimum standard it's not human rights leadership it's not progressive it's the minimum standards at the Council of Europe and very soon to be the minimum standard globally and so that is everyone has to do that no matter what else you're doing and I think that there's a lot to be proud of in Scotland but I think we do run the risk and we've seen this in other cases in relation to criminal justice particularly in relation to the Carter case where we'd said actually because of the other protections built into our criminal justice system we don't have to provide the minimum standard of legal representation and the Court was very clear that that's not the case you can't say just because we're very strong in other protections that that in totality allows us to go below a minimum standard Fulton MacGregor has a brief supplement Thanks, convener, and good morning Good morning I wanted to pick up a supplement from Alex Cole-Hamilton's point it's part of my other committee work with the Justice Committee we went to Norway to see the Barnhouse model and one of the questions that came up through that asking them about their age of criminal responsibility now in Norway it's 15 but I was quite struck to note that they have provision within their laws to deal with serious offences criminally and they actually do it through the Barnhouse model and I wondered actually following on from Alex Cole-Hamilton's point if essentially the Scottish system, the Norwegian system and probably all systems are actually at the same place but the focus here through this is on a specific focus on the age rather than the welfare of the child which is what we all want ultimately we mean you'll probably share a fairly similar value based on that and I wonder if that's something to think about because actually the Norwegian system is pretty it's got the same safeguards in place although their age is 15 I think there's a lot of really important points in that and so the Barnhouse system which Scotland is looking to cross Nordic countries who have generally higher age of criminal responsibility is a very effective way of addressing some very serious behaviour in terms of both supporting victims but also looking to those children who have harmful behaviour the Icelandic model where this came from again their age of criminal responsibility is 15 there's been a lot written about that about the challenges of those that are above the age of criminal responsibility treating them they have to be treated differently within the system because of the welfare approach and it's actually harder to work with them because of the risk of criminalisation the point around having a higher age of criminal responsibility with exceptions built into it which some countries do have and which the government has commented on and others in their responses saying even though Scotland has a low age of criminal responsibility we don't generally prosecute because we have the hearing system some states have a very high age of criminal responsibility but then they have lots of exceptions to it and so in practice it's the same the committee has condemned as strongly those countries as well you cannot have exceptions that allow you to effectively and practice reduce the age of criminal responsibility those things are equally wrong particularly if those exceptions go below the minimum standard of 12 14 but 14 are already in Council of Europe terms and so I think that's something to stress as well is that were we to raise the age of criminal responsibility and then put in place a number of exceptions for serious harmful behaviour that would be equally wrong the key thing is about ensuring that children who conduct harmful behaviour that that's prevented in the first place but that it does take place that they get the support to ensure that their behaviour changes on a long-term basis and a welfare approach is the best way of doing that okay, we'll bring Alec back in thank you, convener going back to the discussion around the work that would be required that a number of stakeholders have intimated to us and you've referenced yourself amendments appeared in the daily list yesterday in my name both for 14 and 16 respectively on a phase implementation basis answering Malcolm Shaffer's concerns that we shouldn't delay in lifting to 12 but then creating in a sunrise clause which would lift us to 14 and 16 respectively 18 months after Royal Ascent effectively giving us two years to do us that work but with the understanding that there would be a moratorium on the imposition of longitudinal criminal records for anyone in the age bracket we'd agreed would that be sufficient to answer the concerns of the Council of Europe in terms of the urgency which they've told us to lift to 14 and do you think that that would provide whatever working group was established sufficient amount of time to answer the questions you've identified my answer to that is I suppose it depends on which amendments you're talking about you've lodged a series of amendments those that set the age at 12 with a sunrise to 14 in future the answer is no this is a minimum standard which again is 10 years old more than 10 years old that the idea that absolute minimum was 12 and that you should move upwards the standard at the UN level again the UN committee is very clear that even 14 shouldn't be a target you should be looking further to that and then the Council of Europe level I think that the commissioner could not have been clearer and in terms of saying that 14 is immediate as a now and anything less than that would be below the standard expected by the Council of Europe so the amendments that you put in that would say 14 now with a view to raising it higher than that then I think that that type of progressive approach and reasonable approach to making sure the work gets done I think that does make sense but something that delayed the raise of the age cum responsibly to 14 I would find problematic I think this legislature passing a piece of legislation which endorses 12 goes directly in the face of all of the international communities engagement and I think that we shouldn't we shouldn't underestimate the seriousness of international bodies like the UN committee and the commissioner engaging directly and publicly a lot of this work goes on behind the scenes and in this case a lot of work did go on behind the scenes in advance but by the time you get to a public letter on the Council of Europe website that level of intervention is very very serious and while the language is often diplomatic I don't think we can understate just how much concern in the international community there is about an approach that would lead us to legislation which stated 12 as an age of cum responsibility even if in a few years time it was going to raise higher than that and I think that for all of the reasons I've already set out and they've been discussed at length around that it's not the right approach to children's rights but also the message that it sends to 12-year-old children I think that that's really powerful as well Thank you convener you talk about a lot of work going on behind the scenes I just wondered when you first became aware that the UN was planning to issue a new comment and whether you were aware of 14 as an absolute minimum in that it's been understood for many years that the general comment was going to be reviewed and that there was serious concern expressed over many years about a misinterpretation of current general comment 10 and that some states taking the one sentence which says 12 and not reading in the context which says is the absolute minimum right now and states need to move above that down to 12 and some concern that some states had sought to reduce their age from responsibility to 12 most of whom reversed that decision very quickly when they saw that it wasn't effective so it's long been understood that the revision was coming it's long been understood that it would be this year I had conversations with ministers and senior civil servants alerting to this fact I've spoken to members of this committee that we knew that it was coming and timing of it and what we didn't know was the exact the pinning it to 14 so we knew that it was going to say higher than 12 but until the draft was released at about the same time that the parliament was considering stage 1 the actual text of it was only available to state parties and was only publicly available shortly after that so I didn't receive an advanced copy but we knew that it was coming we knew the general tenor of it also at the day of general discussion in Geneva last year a number of members of the committee including Ann Skeleton but also Amal Elder-Siri and Mekiko Otani who came to Scotland have had a number of meetings with Scottish ministers some of those have been public so I think it's been very clear for a long time that this was coming the timing, the specifics were were less clear but this didn't come as any surprise and I think very importantly is the Council of Europe as well as a Council of Europe member state we've signed up to those standards as well and when we're looking at the UN standard that's the standard that 192 of the 193 countries have signed up to so we had to focus on that so generally a UN standard will often be lower a European one just based on the nature of membership and so we've known for a number of years that 14 was the Council of Europe standard so why then in your view if you've given warnings in these meetings have taken place why did this bill end up being introduced as is with an age of 12 on a timescale in a year where there was going to be a revision that was widely known about I can't speak to I can't speak to that and I wouldn't like to speculate but it's been a source of frustration when I took up this post just over 18 months ago it was one of the first things I spoke about that I had very serious concerns that with the age of responsibility with physical punishment of children that these were longstanding concerns and I was very concerned that the approach that we were taking was the wrong one I've been very very public with this in every meeting that I've had with Scottish ministers I've raised this my answer is it's a huge source of frustration to me that we are where we are and that the remit of the advisory group was restricted in the way that it was and that we end up with legislation which is putting us in a position where we're discussing something that's below the international standard but I can't speak to why that's happened discussions within this place what is possible and the real politic of saying what's acceptable what's popular sometimes comes into conflict with human rights standards What's your advice to the committee in relation to that because I would be concerned and again listening to the Lord Advocate this morning around public confidence in the system and the importance of leaving at least the option of prosecution open was pretty clear I felt in saying that that was important to the public what do you say to members of the Parliament who do you have to balance up the public interest tests and how the population as a whole feels what do you say to them are people living in Scotland's views less important than the views of people sitting on the UN committees I'll take that last part of your question maybe separately and answer the broader question I think what's really important and the powerful evidence that the Lord Advocate and the fiscal gave was really important that comes from a prosecutorial view I started my own career as a prosecutor in New Zealand and I think that criminal prosecution certainly has a role but we're talking about children here and I think that the public discussion that needs to be had and the political discussion that needs to be had is what's the purpose behind the use of the criminal law to address someone's behaviour and if the purpose which I believe it is and which I have heard strongly from victims is around addressing that behaviour changing that behaviour when we're talking about children if the purpose is that Edinburgh study on transition in youth justice showed that very clearly in all the international evidence this is an evidence based view that actually a welfare based approach to dealing with children's behaviour is more effective in dealing with that element of justice in terms of saying actually one of the points of justice is ensuring that there's going to be non repetition that actually this isn't going to happen to me again and it's not going to happen to other people that this behaviour of this person is going to change that's one of the fundamental principles of justice and actually the prosecuting a child we know doesn't work it actually makes recivitism more likely and so I think that's got to be part of this discussion as well it's not about avoiding responsibility it's not about not addressing the behaviour it's about the most effective way of changing that behaviour and that's the discussion that we need to have is what does the criminal justice system add? We know all the negatives of involving children too early in the criminal justice system you've heard direct testimony from adults that have been affected by that and from children of the lifelong stigmatisation and the impact that they've had so we know the negatives of criminal justice what does criminalising children add though I think there's less on that side of the balance on that we're talking about though in terms of saying some of this very harmful behaviour and it's very serious concern needs to be addressed I agree what I don't agree is that there needs to be a punitive element to that that punishment element which is what the criminal justice delivers which a welfare based system doesn't that retribution I don't think that's appropriate that we treat children in that way I don't think that's a useful thing in relation to children and young people and children and young people are much more likely to be victims of crime and victims of harm than they are to harm others and children are often likely to be victims of harmful behaviour by other children so we need as a most important concern to make sure that children feel safe and that adults feel safe and that we feel confident that we've got a system that will address that behaviour but the punishment element has brought some concern with and in human rights terms when we talk about the right to an effective remedy which the Lord Advocate spoke to in his opening in which I spoke to when I gave evidence to the committee last that's a very important human rights principle that applies to children who are victims as well and that means that we need to have very clear powers to ensure that that harm is prop and that rights breaches are properly investigated and that victims get the support and the care and the treatments that they need and we need to invest much more heavily in those things that non-repetition is guaranteed that's fundamentally important that we put in place the things that ensure non-repetition so it's those things I suppose that we need to speak about and focus on in relation to the last point of your question in terms of the views of people in Scotland as opposed to the views of the international community I want to be very clear that we're part of the international community we were involved in the developments of these standards we have some world leading academics we have some very powerful civil society organisations that have been directly involved in not only the formulation of the UN Convention on the Rights of the Child but engage with the general comments to us this is something that we're part of and proudly so and the experts on the committee again you'll be hearing from Ann Skeleton give the authoritative view about how to interpret the convention and that's based on their experience of looking at lots of different countries and so that comparative experience is useful but I would strongly refute that this is something being imposed upon us this is something that we've been actively engaged in but there is sometimes attention between human rights principles which are inherently not populist the point of having a human rights system and particularly the point of having a human rights system for children who don't have the same political power they don't have the same economic power and because of their age and stage of development are particularly vulnerable to rights abuses the whole point of creating a system for them is that often it's not the popular thing but it's the thing that we need to do as a society to ensure their proper development I'd like to ask a little bit about child victims you rightly point out that children are more likely to be victims of crime than perpetrators of that our hearing system obviously makes decisions based on the needs of the child that's referred to the child that's been perpetrating the harmful behaviour and the only means that there is of assuring victims that action is being taken is through the victim information scheme in your written evidence you say that you don't think it's appropriate for this scheme to share even basic information with victims about what action is being taken against the perpetrator I suppose I would just want to ask for your reflections on how well we're representing child victims if we take that position and what is it you're proposing we do and I suppose as a second question if we think about community safety and not thinking about punishment or retribution but we think about the safety of our communities and children and young people is it ever appropriate to securely accommodate someone who's been engaged in repeated harmful behaviour I'm mindful of what the Solicitor General spoke about people committing or young people or children committing repeated sexual offences against other young children I think I care about all children deeply and would absolutely want to see prevention of these things happening but we don't have a magic wand that we can wave and have a cut-off point we need to deal with the reality of what children are going to experience so just be interested to hear your reflections on those points I think that they're both very important points in terms of in terms of the experience of child victims a lot of work has been done around this not in the least some of the work done on historic abuse and the human rights framework created by the Scottish Human Rights Commission around that around looking at the experience of being a victim working with survivors and seeing what needs to be put in place it's a complex thing there are lots of different aspects but very strongly focused on that non-repetition being understood and lots of the things that we need to do to support victims, particularly children's victims is listen to them and when we do listen to them it's very strongly about saying that they're not getting enough support at the moment we haven't got those support systems in place those guarantees that they'll get what they need to move forward that they will have confidence that we're addressing the behaviour so I think that that's quite important in terms of the voice of victims just going to jump in so you said that it's important for children to have confidence that we're addressing the behaviour that's been exacted on them I suppose I would just want to push you to be a little bit more specific I don't disagree with anything you're saying but if we're not sharing information on the victim information scheme how do we do that how does a child who's been a victim of a rape or a serious assault have confidence that the person who's committed this behaviour I think what's really important is that that general information is available saying this is how this will be approached this is how we will ensure your safety and the focus on the victim and talking to them that we'll do to make sure that you're safe a lot of that work's done out with the children's hearing system in terms of sharing of information though your other point convener I do have some concerns and again it's addressed within the general comment from the UN as well and addressed by the council of Europe in terms of ensuring that a child who has contact with the criminal justice system isn't further stigmatised and so strong, strong protections need to be put in place around media reporting and strong protections need to be put in place around ensuring that there won't be community-based reprisals and so that information does need to be really restricted because I think the consequences can be... That does sound like that that's all about the perpetrator of the harmful behaviour and I care about them but I'm asking you about the victims of that behaviour and I think that in terms of what is useful for the victim to know and I think maybe more work needs to be done around that, around how how victims feel about knowing exactly what's happened to that person probably depends on the victim but at a societal level that balance between that person knowing exactly what happens and as opposed to that person knowing that protections, actions being taken and protections have been put in place, they're going to general versus specific I think there's a careful balance to be struck there And have you done any consultation with victims around that specific information that they would look for? So there was extensive there was extensive consultation done throughout the Scottish Human Rights Commission's work on a framework in relation to historic abuse so there's been extensive work done with the international level and through that work around the experiences of victims that was with adults who has been victims as children of abuse there has been work done again by a number of the bodies that have submitted around working with victims and again victims organisations can speak to that as well I suppose that the balance that the Parliament needs to strike though is in terms of ensuring that victims have the right to an effective remedy and that does include assurances about what's happened and that there's been proper investigation and that action's been taken versus the right to respect for private family life and to be treated as a child of children who have conducted harmful behaviour and there is a balance to be struck there And just my point around community safety and securely accommodating repeat perpetrators and that impact on Okay, could you possibly remind me the question? I don't know if I'll be able to remember my exact words I was just, I suppose, we're talking a lot about welfare and rehabilitation I suppose I just, as the Children's Commissioner and Children's Champion, I'm just asking is there ever a case in your mind to protect community safety to deal with young people to securely accommodate them? Yes, there is. Again, I think that the decision to secure a young person needs to be based on their welfare so if a young person is at risk of harm to themselves or others and no community-based approach is going to work and we have some very, very good intensive support monitoring but as an absolute last resort then, yes, there are some children where the only way of ensuring the safety of themselves and others is to put them into a welfare-based supportive environment that is secure but that's absolutely key is that it has to be as we have within the Children's Hearing System secure accommodation that is secure but for the purpose of their welfare to ensure that they aren't becoming themselves or others not a criminal justice model and I think that without straying into other areas real concerns about when we have children ending up in criminal justice in prisons and the discussions that are going on in other committees and in the Parliament and more broadly around deep concerns about children ending up in polemans and the devastating consequences of youth suicide and in harm of children ending up in a criminal justice setting which is not appropriate but a secure setting based on their welfare to ensure that they get the support and the treatment that they need absolutely is appropriate as a last resort OK, thank you for that, it made you feel Thank you, convener and good morning because I was asking listening I'm not doing very well convening anyone to the supplementary on that because I know you're too much Just with the convener speaking about witnesses there as well our second ask for evidence in victim support centre and they're saying that they believe 12 is the right balance and I think that to bring the public along with us and if we're really looking to be victim centred here as well then do you think victim support there's a need to be more work done with the victims and what information and what are they going to get from it really I think that support for victims more generally and support for children victims is absolutely essential this is something we're not getting right in Scotland more generally I don't think it's necessarily linked exclusively to the age of crime responsibility I think more generally those that suffer harm need more support and we're not doing as well as we should on that so we need to put more resource into supporting victims some more work to do in terms of following up the understanding of the welfare based approach being more effective and that actually the limits of the criminal justice system and I think that victims certainly the ones that I've spoken to and worked with are very attuned to that that the punishment element of it which the criminal justice provides is a concern of most of the victims that I've spoken to than the idea of ensuring non repetition but we certainly need more investment in victim services we certainly need to make sure that their voices are strongly heard in this but this is the same in all of the other countries as well this is something that's well understood and again spoken to in the international work that's been done and the way forward is to ensure that that kind of information and work is done directly with victims and with Victim Support Scotland and other organisations that do such a great job supporting them but it's about investing more in direct support for victims ensuring that right to an effective remedy that they're guaranteed. Thank you. I wanted to ask you about capacity and understanding and you'll have heard the responses from the earlier panel to those questions and last week when Malcolm Shaffer gave us evidence I asked him the same question about the use of psychological assessments and his answer to me was the honest answer is that I do not believe that such assessments are done sufficiently at present and the approach can vary very much what's your view of the use of psychological assessments and what they can bring and if psychological assessments were more routinely done to determine capacity and understanding one would that alter the way young people are treated and would it help strengthen the girffec and welfare based approach that we have? Our understanding of child and adolescent development has been growing a lot over recent decades and I think that's really important because we have a much better understanding than we did 10 years and certainly 20 or 30 years ago and so I think that the more that we can do to help understand a child and their developing capacity the better and I think that one of the things that's come through very strongly in discussions that I've had with children across Scotland as you've heard me say before I've got the best job in the world I get to spend a great deal of time in relation to criminal justice is that we're failing children in mental health terms that children aren't getting the mental health support that they need and I think that flows through right through from very general right through to specific when we talk about acute mental illness and kind of calms but also in relation to criminal justice is that we need to do much much better and understanding what's happening with children and young people and providing that support at an earlier stage and building up that understanding and I think these type of specific assessments that we're talking about, forgive me are very useful and underutilised but I think that they part of possibly a broader package that when we're making decisions about how to support a child or a young person who's conducted harmful behaviour we need all of the evidence that's available and more focus should be made on looking at the development the link to ACEs that you spoke about about earlier understanding that the child listically and that's what the UN Convention on the Rights of the Child talks so strongly about right back at the start in the preamble this idea of growing up in an environment of happiness, love and understanding that understanding bit is really important is that when we make decisions around children we need to do it from a premise that we actually understand them and the failures of the state that lead up to children conducting harmful behaviour need to be set within that context and so the more that we can do to provide those decision makers who are tasked with supporting a child to not undertake further harmful behaviour or addressing some of those really serious things the better but I think it's probably not just those particular reports but it should be part of a broader suite of information that we need about understanding children and young people but do you think in terms of young people and the criminal justice system do you think a psychological assessment should be a compulsory thing a compulsory assessment that's carried out to help to determine the approach that should be taken or should it be discretionary and left to the prosecutors? Obviously when the Lord if you could answer this question he'd be speaking about breaking and entering I think and saying actually you wouldn't need that I think what I think is absolutely important is that we have all of the information necessary my view is obviously we shouldn't be prosecuting these children criminal justice system isn't the right place for them but if we will continue to put children into the criminal justice system then we absolutely need to have an understanding of them as children to support prosecutorial decisions I've got a huge deal of respect for the prosecution service that we have in Scotland I think that the evidence that you'd heard met with the Lord Advocate and Solicitor General just before Christmas there has been a very recent inspection report from the on prosecution of children I certainly wouldn't want anything that I say to be seen as a criticism of prosecutorial services which I think are very good in Scotland I just don't think we should be prosecuting putting children into that system would a compulsory requirement to have a psychological assessment help inform that decision I think it probably would but I would cede to the experience of Scottish prosecutors in terms of saying that actually they don't think that would work in human rights terms the important thing is treating children as children and if having compulsory reports would help us to do that better then that makes sense to me but I probably don't have enough knowledge about the specifics of when they wouldn't use one and whether creating additional burden of those types of reports might not be suitable so I'm sorry I'm not really answering your question but it's because I probably lack the knowledge of the previous panel That's fine, thank you Fulton I have a very brief supplementary on that on Mary Feast Point and perhaps to elaborate on your previous answer obviously psychological assessments don't come without risks themselves because they're unintrusive in nature and we'll agree with Thrustin if he's argument generally I wouldn't suspect that a universal approach is the best way forward because obviously these assessments could bring out trauma would you agree with that and they would need to be managed carefully? Yes, I think there'd be general agreement on that you'd referenced earlier the Barnahouse approach and I think that there's a lot in terms of saying that children who are victims but also those who are offended and come into the criminal justice system are, as I've said results of multiple failures by the state to give them the right support by nature of that type of behaviour something's gone wrong we have failed ensuring that in getting the information that we need to investigate properly for the sake of the victim and for the sake of ensuring non-repetition but also in assessing how best to to address that behaviour we do need to get that information it needs to be done in a very sensitive way though and there are very skilled practitioners and things like the Barnahouse model which addresses not just victims but also offenders I think is something that's very useful when you're talking about it because I just referred to my previous answer in terms of saying that universalism may be cases where it's not appropriate but I don't have the knowledge to give an informed answer on that Gail Ross Good morning and thanks for your evidence so far I just want to get on the record obviously we're looking at 12 there's an amendment in to go to 12 right away and to raise it higher that would be 14 or 16 within a certain period of time we heard from Malcolm Shafer last week that the best thing to do would be to raise it to 12 now do the work and then raise it further later on and in your evidence this morning you have said that there is additional work needed in terms of resources in terms of speaking to victims to know what they feel or what they want put in place there needs to be better mental health provision we need to work on a welfare based approach there needs to be more work in the community to ensure community safety and just the support systems that need to be put in place so would it not be right and proper that we raise it to 12 at the moment do all this work with a view to raising it higher All of this work should be done anyway even if we weren't having this discussion all of that work is more general work that needs done and my very clear view based on the international evidence and the strong view of and consistent view of all of the international bodies who are experts in this is that anything below 14 is not acceptable and so the idea of this parliament passing a piece of law which sets a standard below the international minimum and particularly the European minimum I think would be very concerning and I think the council of Europe's commissioner is clear on her letter to the committee on this so even with a commitment to raise it in future my view is that there is enough time before introduction of this legislation to have that work done and that the parliament could be confident particularly around 14 the absolute minimum that that could be set now and that the work would be done in time for the implementation this will still take some time to get through parliament but that work is happening already a lot of that broader work but I would be very concerned about this parliament sending a statement that 12 is all that we can do in Scotland at the moment because that's below the international standard I think the amendments that are currently before the committee in terms of 16 I think do bear further consideration so I wouldn't support 12 on implementation with a sunrise clause to 14 I would support 14 on implementation so you would say that the evidence from the children's reporter and the Crown Prosecution Service and the Lord Advocate and the Solicitor General the people that are actually dealing with these cases on the ground they're wrong in what they say about going to 12 now and then raising it further I'm not saying that they're wrong in terms of saying that the work needs to be done in terms of the timeframe but even if this committee was to take a decision through the still time before stage 3 and an implementation date that was set at some stage in the future I think that allows sufficient time I suppose we're at where I'd possibly kind of take a different view but with great respect to Malcolm Shaffer in terms of the best way to immediately address the up to 12 that we put that in now to secure that and then bring that in because there's enough time before implementation and I'd be very concerned about setting 12 now even with a delayed implementation of 14 because I think that that sends the wrong message I think that at the international community has been very clear that the rights principles are very clear the reasons for changing are very clear about needing to put in place some practice things then we need to get on with that what I would want to be really clear about though is that the intention of doing that additional work is to make sure that this change works in practice it's not to inform a decision about whether to change and so I think that we can put in the resources to make sure that all of those broader things are done in particular at 14 we're talking about very small numbers very serious and concerning harmful behaviour but quite small numbers at 14, more so at 16 and I think that the evidence has been consistent that the move to 14 is easier than the move to 16 but it's my very firm view that 14 is the European standard and will soon be the international standard and if this Parliament was to pass a piece of law which says that and its representatives think that 12 is the right age albeit even that time limit is I've got real concerns about because this isn't something new this isn't a new standard that's just been developed this is something that's been around for a very long time this debate's been around a long time I was looking back at some of the early debates that took place 20 years ago and this has been a debate that's been live since the beginning of the Parliament and members of the Parliament in 2000 that we were in breach of our human rights obligations then this has been a consistent message and I'm hugely concerned that if the result of this is to come in below the minimum standard even for a period of two years that's not that doesn't serve Scotland's children Oliver. Thank you. You referenced the debate from 20 years ago. I asked you a similar question is it not the case that by pushing and pushing too hard you just end up not taking the issue forward at all and again we've heard several times even today how much work went in to get us to 12 is all that to be discounted in the hope of getting to 14 or 16 does it not represent an improvement and do we not have to put that up front as well? It's not to reject the important and hard work that's been done it's to reflect the fact that that work equally applies to a higher age and my job as children's commissioners is to promote and safeguard the rights of children and young people other people have different roles but I would be remiss in my role to recommend to this Parliament that we take a view that's below and just bear in mind and I know that I'm at risk of repeating myself that this isn't international minimum standard this is the absolute minimum we're not here just discussing something incredibly progressive this is the absolute minimum that we're talking about is 14 the case for it is in my view incredibly strong both internationally and domestically and I appreciate that there are others who have different roles and getting this passed isn't important as well but my role as children's commissioner is to advise you on what the human rights of children demands and 14 is the absolute minimum okay thank you for your evidence this morning commissioner the committee's already agreed to consider the evidence in private so we'll move into private session and ask the public gallery to clear after consideration of evidence the committee will reconvene not before 1.15pm in committee room 1 but it will take evidence via video conference from Professor Ann Skeleton of the UN committee on the rights of the child we'll now move into private session