The debate started in 1832, when Sir Archibald Alison, the noted social critic and sheriff of Lanarkshire, explained why children older than seven should be held responsible for crime.

He wrote: "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."

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

Exactly 100 years later, the age of criminal responsibility in Scotland was increased from seven to eight and, despite successive attempts to raise it in line with other European countries, there it has remained.

The Scottish Government is now expected to redress the issue. Last year, the UN Committee on the Rights of the Child (UNCRC) recommended ministers should "ensure that the age of criminal responsibility in Scotland should be raised considerably".

For the first time, ministers have published a detailed draft response to the committee, within which they indicate that they are considering raising the threshold. The expectation is that the age limit would be raised to 12, at least. The UN would prefer 14.

The response, which The Herald has seen, states: "The Scottish Government will reflect on the comments from the UN Committee, and the points raised in the Scottish Parliament debate last November, regarding the age of criminal responsibility. These will help inform our thinking on any changes to legislation."

In Europe, only Ireland - where the age of criminal responsibility is seven - has a lower threshold than Scotland. It is 10 in England, 12 in the Netherlands and Canada, 13 in France, 15 in Scandinavian countries, 16 in Spain, and 18 in Belgium and Peru.

New figures obtained by The Herald are expected to fuel the debate on both sides. The statistics show that there were more than 150 children under the age of eight recorded for committing crimes between April 2007 and March 2008.

Similar figures obtained last year indicated there were 130 children under eight recorded for committing crimes. Many of the "crimes" of those under eight recorded by the police are minor, but others refer to more serious and persistent offences.

The figures show a remarkable picture across Scotland of offending by pre-school children - including four three-year-olds taking part in vandalism.

Other offences were more serious, with children aged six and seven recorded for racially aggravated offences, serious assault and possession of weapons.

Although the age of criminal responsibility in Scotland is eight, police have to record crimes committed by younger children.

The statistics reveal particularly young children caught up in criminal behaviour.

In Lothian and Borders, 17 children were reported for 21 offences, including three four-year-olds and two five-year-olds. All of the children were warned or spoken to in front of their parents.

In the Central Police force area, there were 32 offences involving children under eight, including two three-year olds and one four-year-old recorded for vandalism. One seven-year-old was charged with assault.

In Tayside, there were 36 children aged seven or younger involved in 59 different offences, including two for racially aggravated conduct and housebreaking. They received a number of punishments. Some 48 children were issued with under-age juvenile warnings and four were reported to the Scottish Children's Reporter Administration (SCRA).

In Dumfries and Galloway, 13 children were recorded, including one toddler caught in possession of an offensive weapon. Officers in Fife also recorded a child under eight caught with an offensive weapon and recorded 42 offences in total.

Northern Constabulary recorded 11 children for committing malicious mischief, vandalism and malicious damage, including one three-year-old in the company of an older child.

Two children under eight were caught committing telecoms offences, or nuisance calls to 999. As a result, nine reports were sent to the SCRA and several children were given "corrective advice" in the presence of their parents.

Traditionally, police in Scotland have opposed attempts to raise the age of criminal responsibility and in Scotland under-16s are estimated to commit more than 35,000 crimes a year, of which 5000 offences involve youngsters aged between eight and 11.

But where children are committing crime, charities and academics say the people who should be held responsible are the parents, not their offspring.

"Children of three have no concept of criminal damage," says Maggie Mellon, director of Children 1st. "If a toddler bites another toddler, is this childish or criminal behaviour?

"To my mind, this is part of them growing up and the police should not be dealing with it as a crime.

"We should be looking at the adults responsible for these children. We don't allow children to vote until they are 18 or get married until they are 16. The age of responsibility is currently far too low and should be raised to between 12 and 16."

Another concern of academics is that the greater political and media emphasis on youth crime may be fuelling some of the increase in referrals. The most important question may be about what the authorities should do with pre-school children reported for more serious crimes such as assault.

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

The Scottish Law Commission suggested the term itself should be abolished.

That move came to nothing but, last November, Lord Advocate Elish Angiolini told a Holyrood committee the age needed to be reviewed as it was "extremely low".

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

Those opposing moves to increase the age threshold, including senior police officers, argue that too many crimes are committed by those aged between eight and 12.

However, the figures obtained by The Herald show that such "crimes" are committed by scores of children as young as three.

If those aged between three and eight need, according to the experts, help on care and protection grounds, why would that same logic not apply to those aged 11 and younger?


Age of responsibility

COUNTRY BY COUNTRY
Ireland... 7
Scotland... 8
Malta... 9
England and Wales... 10
Canada... 12
France... 13
Italy, Japan, Germany... 14
Denmark... 15
Spain... 16
Belgium, Brazil... 18

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