Youth Justice: time to change the age of criminal responsibility?

6 September 2017

On 8 September the House of Lords will debate whether the age of criminal responsibility should be raised.  This proposed reform is introduced in a Private Members Bill introduced by Lord Dholakia.   

The current age of criminal responsibility in England and Wales is set at 10 years old.   The previous regime of dolci incapax – which required an assessment of the child’s level of maturity - was abolished by the Crime and Disorder Act 1998. Lord Dholakia is seeking to raise the age of criminal responsibility from 10 years old to 12. 

This is the not the first time he has sought to raise the issue having tabled his proposals in previous sessions.  The briefing accompanying the debate sets out how Lord Dholakia introduced substantially identical bills in the 2013–14 and 2015–16 session, which did not progress beyond second reading, and the 2016–17 session, which did not progress beyond first reading. This time round the Bill received its first reading in the House of Lords on 26 June 2017.

A summary from the introduction of an identical bill in the 2013–14 captures the two sides of the debate. Lord Dholakia argued then that as “children of ten and eleven have less ability to think through the consequences of their actions, less ability to empathise with other people’s feelings and less ability to control impulsive behaviour”, it “cannot be right to deal with such young children in a criminal process based on ideas of culpability which assume a capacity for mature, adult-like decision-making”.

The Government  stated at the time that it had no plans to raise the age of criminal responsibility, as it believed children aged ten and above were “able to differentiate between bad behaviour and serious wrongdoing and should therefore be held accountable for their actions”. The Government was of the view that it was “important to ensure that serious offences can, where appropriate, be prosecuted and the public protected”.

The irony of the law is that there are several offences in our statute book which are directly targeted at the inability of children to make good decisions, especially children under the age of 12. Take for instance, s5 of the Sexual Offences Act 2003 which (quite properly) acknowledges that a child under 13 cannot consent to sex even if they agree to it.  The rationale being that no matter what a child wants or think they want, they are, by definition, too immature to understand the consequences of or consent to certain behaviour.  Isn’t that the same level of immaturity which is held to account and fixed with a guilty mind in the court room next door?

It is accepted that the tortuous process of assessing culpability based solely on maturity is difficult.  We have recently started mandatorily recognising the importance of maturity by way of the overarching principles decreed in the 2017 Definitive Guideline - Sentencing Children and Young People. The guideline requires the court to take into account the many factors that diminish culpability including the fact that children and young people “may not fully appreciate the effect their actions can have on other people” and that that their “emotional and developmental age is of at least equal importance to their chronological age (if not greater)”.

It is worth noting that the UN Committee on the Rights of the Child, which monitors implementation of the UN Convention on the Rights of the Child, cites a minimum age of criminal responsibility below the age of twelve years as “not internationally acceptable”. 

Setting the bar at 10 years old has had unintended consequences.  Anyone who has represented a child aged 10 in the police station will understand how distressing that can be for everyone involved in the process.  The last one I attended was a young boy whose mother had called the police “to teach him a lesson” after he threw a shoe at his sister.  The kid gloves approach envisaged when the age was set at 10 was however absent.  I am not saying that some children aged 10 cannot be horrid.  Simply that the way to deal with the unremarkable “horridness” of children as they learn to be better people is rarely assisted by them running the risk of being arrested. 

Increasing the age of criminal responsibility to 12 is a welcome move and not unprecedented in neighbouring jurisdictions.  Indeed, the average age of criminal responsibility in other European countries is 14-15 years old. Scotland – while setting the age of responsibility at 8 –envisage that children under the age of 12 will not be charged with offences.  A system of triage and diversion deals with children between aged 8-11 years old.  It is notable that the Scottish parliament is about to consider a Bill setting the age of criminal responsibility at 12 years old.

Let’s hope that during the life of this Parliament the issue gets the hearing it deserves. 

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