Not so long ago, my then nine-year-old daughter wandered into my office at home. She saw a book on a shelf: Children Behind Bars by Carolyne Willow.
“Children Behind Bars, Daddy? What does that mean?!” she exclaimed. I replied that this refers to children under the age of 18 held in prison. She then asked how many children there are in prison in the UK, guessing at 50. “Well, it’s almost 1,000,” I replied. The figure is actually 875 (or 969 if 18-year-olds are included), according to data compiled in August 2018.
My daughter was very surprised at this, and asked me how old these children were. I explained that most are 16 or 17, but some can be younger: as young as ten. This was the last straw: “Ten years old! But I’m nearly ten!” The following month, I congratulated her on her significant birthday – although something stopped me from mentioning the newly acquired eligibility for arrest.
This conversation with my daughter helped remind me of the importance of the issue, and that children often ask some of the most useful questions. The age of criminal responsibility refers to the minimum age that a child can be prosecuted and punished by law for a criminal offence. In England and Wales, this is ten years. (In Scotland, the age of criminal responsibility is lower than that in England and Wales at eight years, but since 2010 it is not possible prosecute children below the age of 12: those between eight and 12 can only be dealt with through welfare mechanisms.)
Ten and a criminal
By international standards, this age of criminal responsibility is very low, falling below the internationally recommended absolute minimum of 12 years. Excluding the other jurisdictions within the United Kingdom, the age of criminal responsibility in England and Wales is the lowest in the European Union. It is, for example, 14 years in Bulgaria, Spain, Italy, Germany and Austria, and 16 in Portugal and Romania.
And when jurisdictions outside of Europe are considered, England and Wales remains an outlier. In Cuba, Chile, the Russian Federation and Hong Kong, the age is 16; in Mongolia, Korea, Azerbaijan and Zambia it is 14; and in Canada, Costa Rica, Lebanon and Turkey, it stands at 12 years. A comparison of 90 countries in 2008 for the Youth Justice Board found that the most common age (adopted by around a quarter of the sample) was 14 years.
England and Wales’s low age of criminal responsibility has attracted considerable international criticism from the UN Committee on the Rights of the Child. They have suggested that the age should be raised to at least 12 years old and that the government should support the Age of Criminal Responsibility Bill, introduced by Lord Dholakia in the House of Lords in 2017.
The considerable evidence in support of raising the age of criminal responsibility has not influenced policy. Indeed, in 2011 the minister with responsibility for youth justice told parliament: “We have no plans to change the age of criminal responsibility.”
His main argument was that children aged ten are able to distinguish between “bad behaviour and serious wrongdoing”. This may be true for most children. But it is far less clear that children of this age commonly fully understand the consequences that flow from their actions.
A historical view
The law has long recognised that young children should not be held responsible for criminal acts. Before the 20th century, children under the age of seven were considered incapable of crime. Those aged seven to 14 years, meanwhile, were considered to be “doli incapax”, or incapable of comprehending the criminal wrongfulness of their actions, unless proven otherwise.
The age of criminal responsibility was raised to eight years in 1933. Then the Children and Young Persons Act 1969 legislated to prohibit the prosecution of any child below the age of 14, following advice from the Ingleby Committee. This legislation also contained a strong presumption against the prosecution of those aged 14-16.
But within a short period, the tide had turned and these provisions were not fully implemented. No government since has given serious consideration to increasing the age of criminal responsibility. There were unhelpful developments in the 1990s following a sustained period of increased police recorded crime, and the associated political rivalry to appear “tough” on crime: the abolition of doli incapax in 1998 effectively exposed children aged ten to 14 to the force of the criminal law. We still live with the consequences of that period and the systemic changes it led to. There is nothing inevitable about this. There has been a rather different direction of travel in Scotland, for example, which this year introduced a bill to raise the age to 12 years.
One of the practical consequences of having such a low age of criminal responsibility is that even younger children can also get caught up in the criminal justice net. An all-party parliamentary enquiry reporting in 2014 on children and the police found that more than 1,000 children under the age of ten – and some as young as four – had been stopped and searched by the police in England and Wales over the previous five years.
Thankfully, while my daughter is now old enough to be arrested, she hasn’t had any involvement with the police and I sincerely hope that is the way it stays. But for the sake of children in our society more broadly, we need to debate, and change, something as important as the age of criminal responsibility. It says something about who we are as a society and how we treat the most vulnerable.
A low age of criminal responsibility means that we are responding to welfare issues with criminal justice responses, and potentially damaging the prospects of young people and their potential future contributions to society. To some extent, any age we choose is an arbitrary one. But raising the age in line with international requirements, particularly if accompanied by other system changes, would reduce social harm. Children in conflict with the law are among the most vulnerable people in society, even though that is not how they tend to be depicted in mainstream media.