 I'm going to ask members to introduce themselves when speaking as nameplates might not be visible. Can I begin by welcoming Professor Ann Skelton to give evidence to our committee? Thank you for joining us this afternoon, Professor. Can I invite you to make an opening statement, please? Thank you very much, and thank you for this opportunity to address your committee. I'm representing the Committee on the Rights of the Child here today to provide information about the revision of general comment number 10 of the deal dealing with juvenile justice. I am a professor of law, and so although I might from time to time refer to developments or psychology or brain science, I'm not an expert in that regard, but I have spent most of my career dealing with child justice reform. Perhaps I can begin by explaining that in 2010 the committee decided to issue a general comment on juvenile justice. General comments are issued from time to time by the committee as an interpretation of articles of the Convention on the Rights of the Child. One of the provisions relevant to your hearings was that that dealt with the minimum age of criminal responsibility. What the committee said was that the committee had observed from the reports being made before it that there was a wide range of different ages and different approaches when it came to states parties setting minimum ages. The committee said that it had frequently responded to this by saying that all countries that had a minimum age of below 12 were, in their view, in breach of international obligations. The committee said that from these recommendations it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by the committee not to be internationally acceptable. States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level. The committee went on beyond that to say that at the same time the committee urges states parties not to lower their minimum age of criminal responsibility to the age of 12. A higher minimum age of responsibility, for example, 14 or 16 years of age, contributes to a juvenile justice system which is in accordance with the convention. Deals with children in conflict with the law without resorting to judicial proceedings providing that the child's human rights and legal safeguards are fully respected. What then has happened over the intervening years since 2007 when general comment number 10 was issued was that the committee has monitored how states parties have responded to that. Indeed, many states parties have increased their minimum age of criminal responsibility. There were a few incidents, however, where states parties rested on their laurels believing that 12 was now an acceptable minimum age and therefore they didn't need to increase it, which meant that they weren't reading on, beyond the sentence that dealt with 12, and also in some unfortunate instances states parties even moved to reduce their minimum age of criminal responsibility. These were among the reasons that caused the committee to decide to review the minimum age of criminal responsibility provisions within a broader review of general comment number 10. I believe that you have seen that in this new revision, that it is proposed by the committee that 14 be considered the minimum age, and that states that go higher than that with 15 or 16 as the minimum age of criminal responsibility are commended by the committee. Those are my opening remarks, and I would welcome any questions or comments. Thank you very much, Professor Skeleton. I suppose that I can open things up by just asking what you think Scotland would need to put in place or consider before reading the age. Would you accept that there's probably going to be considerable work to get our institutions ready for that raise? Well, it certainly is true that it's important what one does with regard to the children below the minimum age of criminal responsibility, and this is sometimes an error that is made by states parties that increasing the age doesn't mean that we can stop worrying about the children below that age. Indeed, we still need to be concerned about them and to provide provision for them. I do, however, think that within the context of Scotland's hearing systems, you already have a system which might be described as a hybrid welfare justice model in which you already have a very broad range of options available to you, which puts you in an advantageous position vis-à-vis other countries that might have to still develop a strong set of options for children who don't have criminal responsibility because you already have a system whereby children could be referred to your hearing system either on the basis of welfare or offending issues. You've already determined that. What it would mean, I suppose, is that an increased number of children would be referred to other services rather than going through the offender route. You would know better than I what the numbers are, but I would imagine that these numbers are relatively small because the cohort of children committing crimes under this age group tends to be relatively small. Thank you very much. I'm up to the committee now and ask Mary Fee to come in and introduce herself. Thank you, convener, and good afternoon, Professor Skelton. My name is Mary Fee. There are a couple of questions that I would like to ask you. The first is on our international obligations. There has been an exchange of correspondence between the Commissioner for Human Rights and the Scottish Government, specifically on the age of criminal responsibility. The Scottish Government has highlighted in its response that, as Scotland has a unique system, in your previous answer you already pointed out the hybrid system that we have in Scotland, but the letter from the Government says that we have a unique system. We take a wider approach within our children's hearing system to young people and crime. Do you think that our unique system almost gives us a pass then to not upholding international obligations? No, I don't think so. Whilst Scotland is to be commended for, in a sense, holding on to its welfare approach when everyone else has abandoned it and some countries are returning to it, I don't think that this means that you are not obliged to take note of and comply with international or regional standards. That, after all, is what standard setting is for. It is to ensure that nobody considers themselves exceptional, so exceptional that they can deviate from the standards. If that were the case, I'm afraid, many countries would consider themselves too exceptional to conform with standards. I would say that Scotland should really to complete its well-respected system, ensure that it conforms with international standards. The second question that I wanted to ask you was about the capacity of a young person to understand the consequences of their actions. I'd be interested in your view on the benefits of carrying out a psychological assessment to determine whether a young person fully understands the consequences and allow that psychological assessment to build into the approach that we take and whether it's taken down a criminal justice route or a welfare route, and it would allow us to take a more nuanced approach to young people and crime. Do you consider that would be a beneficial way to approach this? There are many facets to your question. Let me start with the earlier part, and that is the capacity of a young person to be able to... I think there are two legs of this. One is the child's capacity to be able to understand their actions and whether they're lawful or not and to act in accordance with that knowledge as well at the time and in the circumstances. The other leg of it is their ability to understand criminal proceedings. I think that very young children of the age group that we're talking about, let's take the 12 and 13-year-olds, are at a double disadvantage on the one hand their frontal cortex is still very undeveloped and we would not expect them to have very good understanding of the law or why things are lawful or unlawful. They may have a basic understanding of right and wrong by that age but are unlikely to be able to resist impulses at that age. Coming into the mix then is in early adolescence what we are increasingly understanding about adolescent brains through the wealth of developmental psychology and brain science information which I'm sure has been brought to your attention is that adolescent brains are going through a phase of plasticity and even instability where impulse control becomes at heightened risk, shall we say. So the children of this age not only have insufficient knowledge about the world but they're also moving into adolescence and so they are struggling with the fact that they are more likely to be influenced by peers, more likely to be triggered by social cues than younger children even and of course than adults and so in a sense 12 and 13-year-olds might be doubly disadvantaged because of the fact that they are still so young therefore their frontal cortexes are still at a very early developmental stage and in addition to that they have all of the difficulties that the adolescent brain then introduces as well. The second part of your question I think moved on to the issues sorry could you please remind me about the second part of your question? The second part of my question was whether a psychological assessment should be done whenever we are considering whether a young person should be taken down a welfare or a criminal justice route and it would allow us to take a more nuanced approach and I was going to further go on and ask you about adverse childhood experiences because there is much more understanding of the impact that adverse childhood experiences have on the way a young person acts and behaves so if almost extending the knowledge we have about adverse childhood experiences and building in a psychological assessment when we are looking at the approach that we take to a young person may completely alter the way we deal with someone. Yes, thank you for the reminder. I think age setting is by its very nature quite arbitrary but it's the kind of thing that lawyers tend to like to do because we prefer to have a standard we prefer to say we want to treat everybody in a similar way and we want to set an age so that we can have certainty in the law and so that officials like police know what they need to do when they confront a child who is either below a certain age or above a certain age. However, psychosocial specialists definitely always prefer to look at individuals as individuals and to try to assess. Now, there are, I think, a combination of the two is possibly ideal. We need to set standards because we need to come in line with standards that are there and we need to have a certain amount of certainty and to allow individual assessments, for example, to go, you know, you might face a situation where you could say, well, this particular child is so advanced in certain ways that even though he's only 11, he could still be held criminally responsible and you will get yourself into unfairness if you rely only on the individual assessments. So I think something like saying, well, below a certain age we will not prosecute but within a certain age range we should do individual assessments and there is some very good literature that looks at this kind of thing. I would recommend Enise Dalmage, D-E-L-M-A-G-E who's looked at a medical, she's written a medical legal perspective on the minimal age of criminal responsibility and I'd be very happy to provide those references to your secretariat after the session so that you can read the articles yourself. But what she essentially proposes is a minimum age of 14 and then assessment of 14 to 16-year-olds in order to determine on a case-by-case basis and then even possibly shifting the onus to the offender for 16 and 17-year-olds but still allowing assessment and medical, psychosocial assessments to be done to be brought into the question of men's rare. So I think there is certainly literature that supports the approach that you're taking. One thing that the convention on the rights of the child and particularly the committee has always indicated is that they prefer clarity in standard setting rather than allowing different ages to be applied for different offences for example but I know that that's not what you're talking about. You're just talking about an individualised approach using assessment. I would say yes if the country is able to do that and has the resources to do it, yes but against a backdrop of nevertheless having a clear minimum age below which you will not prosecute. Okay, thank you very much for that very helpful response and I would be grateful if you could provide the links to the documents that you spoke about in your answer. Thank you, convener. I'll hand over to Alex Cole-Hamilton now. Thank you very much, convener. Good afternoon, Professor Skeleton. Thank you very much for making time to see us. My name is Alex Cole-Hamilton. I'm a Liberal Democrat MSP. For the record, I remind members of my register of interests being former convener of the Scottish Alliance for Children's Rights. Professor Skeleton, the UN Committee has obviously been on a journey on this issue and that started with general comment 10 and the revision that we are now considering I think is it general comment 27 which will see it. Sorry, it looked like you wanted to come in there. General comment, the new general comment we're considering will set that new floor at 14. Do you anticipate that being the last word in this or do you think that the UN Committee may, in the future, when all state parties have achieved that floor of 14 to say, right, come on guys, let's go further and the new expected limit is 16 or something similar? I would say that from the outset with general comment number 10 the committee was already asking states to themselves continually consider increasing the minimum age and obviously one understands that the committee is dealing with such a wide range of different countries with very different experiences with very different legal systems and so on and so we have to try to ensure that our guidance to states allows them to progress as fast as they can along their own trajectories and so therefore we would keep encouraging all states individually as they appear before us to say can you not, would you not consider raising the age again, are you constantly monitoring your system to see what is happening what are the trends and so on but not, I don't want to be understood to say that we will simply continue extending and extending unreasonably, there is a point obviously at which states will say we've found what we believe in our country to be the right place but at this stage the committee has already said it commends states that set minimum ages of 15 and 16 and are now encouraging states to set their minimum age at at least 14 one of the reasons we are undertaking this legislative process is that for many years Scotland has suffered an international rebuke for being so demonstrably below the expected international minimums on this, I'm glad that we are making progress can I ask, are we an outlier or are we in the majority do members states usually ignore international minimums or is it the few and far between well certainly it depends whether you want to view yourself against the world or against Europe but against Europe you're a strong outlier with a minimum age of 8 against the world it often depends on the history, so in Africa for example what we see is that countries that were colonised by the French or the Portuguese tend to have higher minimum ages of criminal responsibility around 13 or 14 and those that were colonised by the British tend to have low minimum ages of around 7 or 8 often with the Dolly NKPAC's presumption which most colonies did not jettison at the time when the United Kingdom got rid of them and so to some extent what we see is a kind of legacy of colonisation however I'm glad to tell you that many countries in Africa all of those that have now recently reviewed their juvenile justice legislation have increased the minimum age of criminal responsibility some to 12 and some to 14 that's great to hear, thank you in terms of the process that this parliament has been on it is a journey obviously but it is the machinery of parliament doesn't fixate on one issue for very long it tends to pass legislation and then move on to something that we haven't done in 80 years since we as a country last reviewed age of criminal responsibility my anxiety is it may be some time again so what we fixate at now is important we've heard a lot from stakeholders within the children's hearing strata and indeed the Lord Advocate this morning that additional work will need to be done to our institutions to ready that and that is why I've brought forward a couple of amendments with an initial uplift to 12 which was the original bill but with the sunrise clause after a period of 18 months or so to lift to either 14 or 16 respectively would that satisfy the concerns of the international community if we did it in that staggered process to allow us to do the work I see the concern that you have is that obviously when you're making a decision as big as this you'll be wanting to make sure that you set it at the right stage and that you are clearly it's better if you can do it all in one go it's not unfamiliar to me this idea of doing it in a staggered phase because there are other countries that have chosen to do it in that way if Scotland decides to do it in that way I think it's really important that that be included in the legislation itself and not simply as a well we'll reconvene in a few years time and see but actually set time frames and have and if it is because you're trying to collect data already yourself or your institutions it's important to know what has to be done within those time frames Hi there Professor, I'm Annie Wells, one of the MSPs we heard this morning from the Lord Advocate about some of the serious harmful behaviour committed by children over the age of 12 cases such as culpable homicide and rape and what we have to look at with this as well is how do we make sure that we get the balance of rights correct for the victims in this as well and how would we take that sort of a journey and bring public opinion along with us or what impact would it have on public confidence I understand what you're saying and I think that this is something that of course isn't going to change even if you delay by 18 months or two years the reality out there is not going to change and so at some point it requires the courage to say we must do what is right when it is right and obviously one has to have one has to bring the public along and explain to them as one goes but I really do think that those kinds of issues clearly do come into the mix it is something I know that all politicians would be worried about because of public concern but the fact of the matter is that wherever you draw the line there is a possibility that the day after you pass the law a crime might be committed by the cohort the age cohort that then will not be prosecuted if that was the right thing to do then it was the right thing to do even though the next day it may be difficult to explain that to the public but as much preparation of the public beforehand and as much information about the reasons why this is being done will help to ameliorate that kind of a possible negative response that might occur Thanks very much for that answer I think that the thing that stuck with me today was when the lawd advocate had spoken about a case of a young person who had been raped by an older person at 13 and he says how do you actually say to that person what happened to you isn't a crime and what information should we be given to the victims of this serious harmful behaviour and that really just stuck with me and a lot of the time as well people will be okay with saying yet which right we put the child first until it happens to you or a loved one as well and the sort of a public safety round about that Yes, well I think it is very important from a victim's point of view that their experience should be validated but I'm not sure that that necessarily has to always happen within the discourse of crime I think that there have been victims need to have the acknowledgement that what happened to them was wrong and that they should obviously provided with all of the support that is necessary but I don't think it necessarily is essential for that victim to see this in terms of whether or not this is handled as a crime or not I think we need to find more restorative justice mechanisms to help victims recover from the impacts of crimes rather than necessarily saying that we have to stick with the discourse of crime in order to address harm Thank you Good afternoon Professor, thank you for joining us my name is Gail Ross and I have been touched on the Scottish hearing system I just wondered do you have any examples from any other countries that operate a similar system and how that relates to their minimum age of criminal responsibility I think perhaps to some extent the New Zealand system might be comparable in the sense that it also has a system whereby taking children through the criminal justice system is a last resort and a whole series of restorative justice interventions are usually used rather than doing that although their welfare system and their criminal justice system are not one and the same although they are dealt with in the same act their minimum age of criminal responsibility is 14 Okay, thank you and just to go back to other comparisons when we were talking about going to 12 now in order for us to get things ready to move to 14 at a specified date and you said that other countries had done that in a staggered way as well can you give us some examples of those Yes, I can give you an example of my own country which is South Africa and has passed a law increasing the minimum age of criminal responsibility from 10 to 12 with a clause to reconsider with the view to increasing the age to they don't say to what but increasing the age they say within five years of the act coming into operation Thank you Are you pointing that out? Can I ask you to expand on the concerns that you shared in relation to police involvement with children that are currently over the age what are the specific practices that you feel need to be addressed I think that I mentioned policing in the sense that because they are the point of first contact in any system it's very important for police to know and understand what the rules are relating to children who are above or below the minimum age of criminal responsibility because their first line response must be guided by what the rules are relating to children of that age and so I think any changes to the law have to go hand in hand with a very good training of police and any other front line officials that are going to come into contact with children as they come into contact with the system You would agree that there should be a duty on the police to safeguard and promote wellbeing of children first and foremost? Yes, I would say so I think that this is very often where it is the first contact that the child will have in the first instances and so the child's experience will be clearly affected by the way in which they are dealt with by the police Thank you, I have a supplementary question Professor Skelton, in your answer to Gail Ross about international examples of the staggered approach where countries have sought to meet the international minimum standards in a phased way, you referenced South Africa and it had passed legislation to lift to 12 with a view to lifting still further in five years mandatory consideration. Is that an acceptable place for a member state to land? I am myself rather disappointed with the outcome of the hearings I was among the group of people pushing for the age of criminal responsibility to be set at 14 in South Africa I think that South Africa does have a few more complex issues to deal with in terms of provisioning for children below the age of 14 because South Africa does not have something akin to the hearing system therefore there would need to be the development of probation services and alternative services for children below the minimum age and therefore perhaps there might be more reason for taking time but I would still say that five years was too long I also think I should mention that in South Africa although the minimum age is 10 it goes together with the Dolly in Cape Hacks presumption which means that all children below 14 are presumed to lack criminal capacity so South Africa retained the 14 upper limit of criminal capacity so those children have protection under the law and that protection has not been done away with so the South African Parliament resisted moves to actually lower the age to 12 from the Dolly in Cape Hacks presumption some were pushing for that they retained the Dolly in Cape Hacks presumption which remains in place for 12 and 13 year olds in a sense Scotland doesn't have that advantage there's no protection in the meanwhile for your 12 and 13 year olds in the South African Bill there is currently protection for 12 and 13 year olds where a presumption operates in their favour and the state would have to prove criminal capacity and so that obviously does at least provide some kind of mantle of protection for them so that there are always these important nuances to keep in mind when comparing across different jurisdictions so by extension it would not be acceptable to the UN committee for Scotland in this legislation to mirror exactly what South Africa has done by getting to 12 now with an obligation on a future Parliament to consider going further because of all the reasons you've outlined and actually 14 is the floor that the UN has established exactly on the rights of the child would certainly not approve of South Africa's manner of dealing with it even though South Africa would probably try to explain it on the basis of the Dolly in Cape Hacks presumption the committee prefers a one age rather than two ages with the possibility of prosecution for certain children in between and so I think you're quite right the position of the committee would be that Scotland should rather move to 14 immediately particularly as there's no provision for protection of children between now and the future date at which you if you decide to go that route would be protecting those children's rights Thank you Professor Skelton thank you very much for your evidence to committee this afternoon it's been very helpful the next meeting of our committee will be on Thursday the 31st of January the committee intends to begin consideration of amendments at stage 2 of age of criminal responsibility Scotland Bill and I close the meeting