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Lord Fraser of Carmyllie: These amendments have been moved by the noble Lord and it is not for me to correct them for him, but given the drafting victories already behind the noble Earl and, shall I say, the victories yet to come, I certainly advise the noble Lord, Lord Macaulay, to look at those points very carefully if

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he intends to return to the matter at a later stage.

As has been said, Amendment No. 123 raises an important issue. Perhaps I might take a moment or two to explain the thinking on it. It concerns the age of criminal responsibility which, as has been said, is eight in Scotland. The issue was fully considered by the Kilbrandon Report back in 1964, and I think it is worth quoting the conclusions of that committee on this issue. The report concluded:


"It is clear therefore that the 'age of criminal responsibility' is a largely meaningless term and .... essentially the expression of a practical working rule determining the cases in which a procedure which may result in punishment can be applied to juveniles". In short, the Kilbrandon Committee took the view that it was pointless to debate the age at which a child could form criminal intent. What was important was what happened to the child in terms of procedure.

The committee then went on to recommend the establishment of children's panels which have had the effect of taking virtually all children out of the court system and dealing with them through a welfare-based system which is familiar to us all as the children's hearings system in Scotland. Under the present arrangements, no child below the age of eight can be prosecuted in the criminal courts for the commission of an offence; nor can any such child under eight be referred to a children's panel on the grounds simply that he or she has committed an offence. Any child of eight of over may be prosecuted or may be referred to a panel on the ground that he or she has committed an offence.

However, provision is made in Section 31 of the Social Work (Scotland) Act 1968, which will of course be retained, that no child may be prosecuted without the consent of the Lord Advocate.

The practical effect of a direction issued by the Lord Advocate is that virtually no child is prosecuted except those who have committed that most serious type of offence such as murder or rape. However, a child of 15 who has committed a motoring offence which might lead to disqualification may also be prosecuted as may children who have committed offences along with adults.

In practice, the prosecution of children under 12 years of age is very rare indeed. The majority of child offences are dealt with through the children's hearings system. In the past three years, the total number of children prosecuted in the courts under the age of 12 is likely to be in low single figures. Such cases involved the most serious offences and are very rare. Almost without exception, children under 12 are dealt with by the hearings.

There would, however, be major implications for the way in which we deal with young people if at one move we were to increase the age of criminal responsibility from eight to 12 as is proposed by this amendment. Would offences committed by this age group—those between the ages of eight and 12—be ignored entirely? If not, would they be dealt with as matters involving parental control and referral to the reporter under this ground of referral? In such cases, any proof hearing would be on the civil standard of proof. Would that mean less protection for the child offender? What

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messages would be sent to young people if the age of criminal responsibility were to be increased by four years? I invite your Lordships to bear in mind that some 13 per cent. of offence referrals to reporters are in respect of those who are under the age of 12.

Those are some of the major issues which would arise if such a change were to be made. I am grateful to the noble Lord for raising the matter and for the opportunity to spell out how difficult it may be.

As I have mentioned, the vast majority of children over eight and under 12 who commit offences are dealt with by the children's hearings. They do not come before the courts. Instead they come before a children's hearing which can look at the child's needs and take appropriate action.

With that explanation, I hope that the noble Lord will withdraw his amendment. As he has correctly said, the further amendments, Amendments Nos. 137 and 154, are effectively consequential on the raising of the age from eight to 12.

5.15 p.m.

Lord Macaulay of Bragar: I am obliged to the Minister for that full explanation. As I said when I introduced this amendment, it was tabled for discussion purposes in the meantime rather than as a positive amendment. It will be interesting to see, in the light of what the noble and learned Lord has said, what response we receive from the various people with an interest in these matters.

I am equally grateful to the noble Earl, Lord Balfour, for sorting me out on Amendment No. 154. He is known, as the Minister recognised, as a great scrutineer of Bills and amendments. I will look at that again.

I suppose to a certain extent we are lucky in Scotland with the children's hearing system: young people can be contained within the children's hearing system unless, as the Minister has already said, they commit some heinous offence such as murder or rape. With those observations, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 [Referral or remission to children's hearing on conviction]:

Lord Macaulay of Bragar moved Amendment No. 124:


Page 32, line 8, leave out from ("court") to ("shall") in line 10.

The noble Lord said: The effect of these amendments, Amendments Nos. 124 and 125, is to ensure that the courts of solemn and summary jurisdiction are obliged to obtain the advice of a children's hearing before disposing of a case brought against a child. The reasoning is that allowing the clause to stand as it is usurps the whole principle of the children's hearing system and overrides the system. The amendment was a probing amendment to see what the Government's view on this might be.

Lord Fraser of Carmyllie: Amendment No. 124 would make a referral to a children's hearing mandatory where any child is found guilty of an offence or pleads guilty to an offence under Section 173 of the Criminal

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Procedure (Scotland) Act 1975. In the light of the seriousness of an offence which merited a child appearing before the High Court under solemn procedure, it is questionable whether a children's hearing could always offer appropriate advice as to disposal. As we have just discussed, cases appearing before the High Court involving children and solemn procedure are likely to be of the most serious nature and, in many cases, will require a severe disposal.

Children's hearings might not be able to offer advice on disposals which would meet the gravity of the offence. It is for that reason that the High Court has given an option of referring the case to the principal reporter in order to have advice from a children's hearing, rather than making that mandatory. That would seem to be a more appropriate way of dealing with matters.

In relation to the amendment with which this is grouped, which I believe is Amendment No. 125, it would introduce a similar change in Section 372 of the 1975 Act. The noble Lord will appreciate that the High Court is not involved in such cases dealt with under summary procedure and the reference to it in this clause is accordingly incorrect. Amendment No. 126 rectifies that error, and in due course I shall move that amendment.

Lord Macaulay of Bragar: I am grateful to the Minister for that explanation. I will have another look at these matters and in the meantime I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 125 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 126:


Page 32, line 40, leave out from ("case") to ("shall") in line 42.

The noble and learned Lord said: In speaking to Amendment No. 124 I spoke to Amendment No. 126. I beg to move.

On Question, amendment agreed to.

Clause 45, as amended, agreed to.

Clause 46 agreed to.

Clause 47 [Appeal against decision of children's hearing or sheriff]:

The Earl of Lindsay moved Amendment No. 127:


Page 33, line 23, leave out from ("sheriff") to end of line 24.

The noble Earl said: This is a minor amendment. As currently drafted the provision repeats the Social Work (Scotland) Act 1968 that when an appeal is made to the sheriff against the decision of a children's hearing, the sheriff shall hear the reasons for the appeal. On further consideration this wording is not necessary and indeed could even be taken as a restriction on the sheriff's power to hear an appeal. The amendment ensures a provision that the sheriff shall simply hear the appeal. I urge noble Lords to accept this amendment. I beg to move.

On Question, amendment agreed to.

The Earl of Lindsay moved Amendment No. 128:


Page 33, line 29, at beginning insert ("The sheriff may, on appeal

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under subsection (1) above, hear evidence from, or on behalf of, the parties in relation to the decision; and, without prejudice to that generality—
(a)").

The noble Earl said: With the Committee's permission, I shall speak to Amendments Nos. 128 to 132 together. Amendments Nos. 128 and 130 to 132 make it clear that in an appeal the sheriff may hear evidence and otherwise restructure the subsection for clarity. Amendment No. 129 revises Clause 47(3) to make it clear that the intention is not for the principal reporter personally to be examined by the sheriff during his consideration of an appeal but the relevant reporter to the child's case. The term "principal reporter" is defined in Clause 84(1) and will include the reporter dealing with the case. I beg to move.

On Question, amendment agreed to.


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