Hear My Voice - How are we doing with our children?
Sheriff David Mackie is a leading voice in Scotland's youth justice reform. He chaired the Hearings System Working Group, helping shape the Children’s Hearings System as part of The Promise. Sheriff Mackie is dedicated to addressing the needs of young offenders, recognising the impact of trauma, and promoting rehabilitation. A strong advocate for restorative justice and children's rights, he has played a key role in Scotland’s ongoing legal reforms.
In this blog, Sheriff David Mackie, a leading voice in Scotland's youth justice reform, explores how the country is transforming its approach to young offenders. Sheriff Mackie reflects on recent changes, including raising the age of criminal responsibility and embedding the UN Convention on the Rights of the Child into Scottish law. He highlights the importance of Scotland’s Children’s Hearings System, which focuses on the needs of children affected by trauma rather than their actions. Sheriff Mackie also discusses the potential of restorative justice and initiatives like the Bairns' Hoose to support victims. While acknowledging there is still work to be done, he expresses optimism that Scotland is on the right path toward balancing justice and care for young people and society.
The landscape of how Scotland addresses the needs of children who are alleged to have committed offending behaviour is undergoing dynamic change. A long overdue change to the age of criminal responsibility to 12 from 8 years of age is itself considered by many to be worthy of a further increase to at least 14. Suffice to say the question is not yet settled. The United Nations Convention on the Rights of the Child (UNCRC) was signed up to by the UK in 1990 and came into force in 1992; so we should have been paying heed to it since then and, to a certain extent, have. The express incorporation of the Convention into the domestic law of Scotland earlier this year is, nonetheless, an important milestone which places an express responsibility upon public authorities and the courts to have regard to its terms in their decisions and to place the rights and interests of children front and centre. We now recognise, in Scotland, that children are people up to the age of 18 and celebrate the fact that there are no children in Scotland’s prison system.
The Independent Care Review, in its report The Promise, identified a key element to the delivery of The Promise to be a redesign of the Children’s Hearings system, Scotland’s unique means of addressing the needs, not the deeds, of children who come into conflict with the law, recognising that such behaviour is most often the product of a childhood affected by what we now recognise as trauma and adverse childhood experiences, not badness. The Hearings System Working Group (HSWG) that was set up as a consequence of those recommendations and which I had the privilege of chairing, published its Hearings for Children report in May 2023 with most of its recommendations being accepted or accepted with conditions by Scottish Government. The Parliamentary timetable will be tight but we now have the real prospect of legislation in implementation of many of the recommendations of The Promise and the HSWG and the changes that need a change in the law becoming a reality. To that end we are in the middle of the Government’s consultation on policy proposals emerging from the Hearings for Children Report. So there’s a lot happening.
Alongside all of this the Scottish Sentencing Council has issued guidelines that tell Sheriffs and Judges in Scotland to know and understand that people, human beings, do not reach full, neurological or brain maturity until their late 20’s; so people up to the age of 25 who are being sentenced by the Court should be dealt with slightly differently in recognition of this. This is to recognise that, until fully mature, young people’s ability to exercise judgement is less well developed, the other side of that coin being a stronger tendency to impulsive and dangerous behaviour. The good news is that the same young people have brains that are still developing and are therefore capable of changing their behaviour and responding to guidance more quickly.
Are we responding as well to the needs of victims of offending behaviour? Damage or injury caused by a child is just as devastating and unsettling as that caused by an adult. A young person up to the age of 18 dealt with through the Children’s Hearings will not receive a conviction or a sentence; the focus will be on addressing the needs of that child or young person that have led to the behaviour. Victims need to have confidence that their interests are being adequately addressed by such a process and it may be that Restorative Justice practices that would enable them to participate in the process will be a means of achieving that; an area that is also undergoing development in Scotland through Community Justice Scotland. We are leaders in improving how we address the needs of child victims and witnesses of crime with the establishment of the first Bairns’ Hoose in Scotland and use of Scandinavian barnahus principles in supporting them in the telling of their story and provision of clinical and psychological supports.
Children and young people up to the age of 18 are still capable of the most serious of crimes including, among older children, serious sexual offences. When this happens we remember that the age of criminal responsibility leaves in the hands of the Lord Advocate and the Procurator Fiscal service the final say on whether, despite their age, a child or young person over that age but under 18 should be prosecuted in the criminal court.
We may not have reached our destination yet as to how best to balance the needs of children and young people who come into conflict with the law with the interests of victims and society as a whole, but there is much cause for optimism that we are on the right track and, in some respect, leading the way.