Age of Criminal Responsibility (Scotland) Act 2019 to come into effect

The Age of Criminal Responsibility (Scotland) Act 2019 will come into effect on 17 December 2021, and will raise the age of criminal responsibility from eight years of age to 12 years of age.

The Scottish Government has decided that children’s legal assistance will be available for proceedings under Part 4 of the Act.

Orders which can be sought by the police

Under Part 4 of the Act applications can be made by a police constable to a sheriff for three types of orders relating to a child under 12 (or an older child who was under 12 at the time of the alleged incident).

The orders are:

• S36 – an order involving a search in relation to a child
• S44- an order to interview a child
• S63 – an order relating to taking prints and samples

What funding is available?

The decision to make children’s legal assistance available for proceedings under Part 4 of the Act means that a child, and certain adults, can apply for children’s legal assistance for advice, to defend these applications in the court, and for any onward appeal to the Sheriff Appeal Court where this is appropriate.

The child

If the court wants to hear from the child in connection with an application for an order then a duty solicitor will be appointed to them, and automatic children’s legal aid will be available.

If a child has appointed their own solicitor to represent them in court then ABWOR is available.

A grant of ABWOR or children’s automatic legal aid for proceedings under Part 4 will cover any associated appeal to the Sheriff Appeal Court.

Children’s advice and assistance or ABWOR can be granted to a child for Part 4 proceedings without any financial or merits tests needing to be applied.

Parents and interested parties

If the court wants to hear from a parent or other interested party before making an order then children’s legal aid is available.

A parent or interested party applying for advice and assistance or children’s legal aid for Part 4 proceedings will only need to satisfy the financial eligibility test.

Guidance

Legal Aid Guidance

We have updated the Legal Aid Guidance on our website and have added a new section specifically on Part 4 of the Act to cover this work. If more than one order is being applied for at the same time, then only one ABWOR or legal aid application is needed. This will make it easier for you to obtain cover, and avoid the possibility of an applicant having more than one contribution to pay towards the cost of the case.

Legal aid online (LAOL)

We have also published guidance to explain how to use Legal Aid Online for these applications.

Please note that Legal Aid Online will be unavailable this evening from 5:30pm to 9pm to implement the system changes for the Age of Criminal Responsibility Act.

The changes are being implemented in advance of the effective date of the Act, which is Friday 17 December.

This will mean you will see the system changes that have been made to the Children’s applications in anticipation of the effective date of the Act but you should not use them prior to Friday.

Matters which do not relate to Part 4 of the Act

Advice or representation in relation to any other parts of the Act will be covered under civil legal assistance. You can apply for advice and assistance or civil legal aid using the ‘other’ category code, and the normal civil financial and merits tests will apply.

More information

If you have any questions about this please contact:

Wendy Dalgleish

Head of Civil and Children’s Legal Services

E: dalgleishwe@slab.org.uk