The law and an age-old problem

Mr Archibald's 1832 text explained why children older than seven should be held responsible for crime: "The vast increase in juvenile delinquency arising from the corrupted manners, temptation to vice and incessant drunkenness, of a large proportion of the lower orders in all our great cities, has unfortunately fixed the law on too well-known a footing in regard to minority and infancy."

He concluded that minors aged seven and above should be liable to all punishments including the death penalty. The sanctions to which children were subjected, however, still seem barbaric when judged by modern standards.

In 1932, the age of criminal responsibility in Scotland was raised from seven to eight and, despite successive attempts to raise it in line with other European countries, there it has remained.

Now, previously unpublished figures obtained by The Herald are expected to reignite the debate once again. The statistics show that there were more than 130 children under the age of eight recorded for committing crimes between March 2006 and April 2007.

"It is important that the age of criminal responsibility is debated," said Dr Claire McDiarmid, a senior lecturer in law at Strathclyde University. "Eight is one of the youngest ages of criminal responsibility in the world. There are countries where it goes to 18. Criminal responsibility is often thought of in terms of, did the child understand the difference between right and wrong?' But it is more complex.

"I think it would be appropriate to raise it. We have to look at it in the context of other laws, given that people cannot marry until the age of 16 or drive until the age of 17."

In 2002, the Scottish Executive considered recommendations to raise the age of criminal responsibility to 12, a proposal which met with opposition from police and politicians.

And in 2005 the human rights commissioner at the Council of Europe recommended that the age of criminal responsibility in Britain should be raised and children under the age of 14 should not held criminally culpable.

Some legal experts argue it is unnecessary to change the age limit because, under the children's hearings system, most children up to 16 are dealt with in a welfare setting anyway.

The more important question may be about what the authorities should do with pre-school children reported for vandalism or more serious crimes such as assault.

It was already known that more than 2000 children aged between eight and 11 are caught breaking the law every year in Scotland. But the revelation that children as young as two are involved in what police deem to be criminal acts raises serious questions about the levels of support being offered to such children and their parents.

"These figures are remarkable," said Tam Baillie, assistant director of policy at Barnardo's. "Especially when seen in the context of Scotland having one of the lowest ages of criminal responsibility in Europe."

Over the past 10 years, the proportion of pre-school children referred to the reporter on care and protection grounds has doubled.

In 1996-97, some 2995 children aged up to four years old were referred, a total of 11% of all cases. But by 2005-06 this had risen to 11,975 youngsters, representing 22% of all children referred.

Officials at the Reporter's Administration have expressed growing concern about the drug and alcohol misuse of parents which is affecting their offspring.

They have also asked police and social work to curb the flood of referrals because they do not have the resources to cope.

Some 1429 persistent young offenders were recorded in 2006, a figure which has increased significantly year on year since ministers pledged to cut the numbers by 10% in 2002.

Another concern of academics is that the greater political and media emphasis on youth crime may be fuelling some of the increase in referrals.

"These are not issues about crime but about parental supervision," said Susan McVie, senior lecturer at Edinburgh University. "The most important thing is not to label these children.

"We know from our research that the younger you label children the more likely they are to go into the criminal system.

"We also know that children who are known to the system when they are very little are not necessarily the ones who will become serious offenders in future.

"There is also concern that under the previous government more punitive policies were introduced and police were encouraged to report every child to the Children's Reporter rather than using their discretion."

Many of the "crimes" of those under eight recorded by the police are minor but others refer to more serious and persistent offences.

In September, a seven-year-old boy was referred to the reporter in connection with a fire at Killearn Primary School, Stirlingshire.

In the same month a seven-year-old in Inverness was reported for repeated vandalism in the Hilton area of the city.

And it is almost impossible to consider serious youth crime without thinking of the James Bulger case. The killers of toddler James Bulger - Robert Thompson and Jon Venables - were 10 years old when they tortured and killed the two-year-old after abducting him from a shopping mall in Merseyside.

"When a crime has been committed by a child under the age of eight, the circumstances are still recorded by police as a detected crime," said Assistant Chief Constable Maureen Brown, youth spokeswoman for the Association of Chief Police Officers in Scotland (Acpos).

"For children between eight and 16, referral to the SCRA is automatic. In addition, with respect to crimes committed by children less than eight years of age, Acpos and the Scottish Police service are committed to locally-developed programmes and activities that pursue policing objectives, that support improving behaviour in order to reduce re-offending by children."

The police clearly have to record such incidents but experts suggest greater support and help should then be provided to the parents who may be struggling with their children's behaviour.

Professor Mike Nellis, professor of criminal and community justice at Glasgow University, believes children between the ages of two and seven are "troubled rather than troublesome" children.

"We are taking about problematic behaviour, not a legal crime. Nobody wants to punish a child under eight who has done something bad.

"With a six-year-old who starts a fire, even if it was reckless and deliberate, you cannot infer that it would be replicated as an adult.

"You have to find psychological support services that can help the families deal with the behaviour. Parenting is part of this.

"Scotland is world-famous for having held on to a welfare tradition, even for eight to 16-year-olds. It seems that Scotland does rather well in providing support for parents."