Old enough to know better? The minimum age of criminal responsibility

Jessica Maguire, Legal Assistant, Corker Binning

The documentaries “The Bulger Killers: Was Justice Done?” broadcast by Channel 4 and “James Bulger: A Mother’s Story with Trevor McDonald” aired by ITV, marked the 25 year anniversary since Jon Venables and Robert Thompson, both 10 years of age at the time, were convicted of murder. These documentaries served as a reminder not only of the moral outrage that spread across the country at the heinous crimes committed by Venables and Thompson, but also highlighted the issues surrounding the treatment of children in the criminal justice system.

Both defendants, who were 10 years old at the time of the murder of James Bulger, were only six months over the minimum age of criminal responsibility. The level of depravity they both went to does not need rehearsing, but the debate remains as to whether children as young as 10 should be criminalised by the criminal justice system.

The current minimum age of criminal responsibility

The minimum age of criminal responsibility in England and Wales has for a number of years been subject to argument as to whether it requires an upward adjustment so as to be in line with other European countries. The age of criminal responsibility was raised by the Child and Young Persons Act 1963 from the age of 8 years to 10 years. It has not been amended since and still stands as one of the lowest in Europe. It should be noted that although Scotland’s age of criminal responsibility is 8 years old, the Scottish Executive legislated in 2010 that no child under the age of 12 years is to be prosecuted for an offence. Other countries such as Germany, Spain, Slovenia and Romania all hold the age of criminal responsibility to be 14 years of age.

Other areas of criminal legislation appear to be in conflict with the Government’s decision to not raise the minimum age of criminal responsibility in the Age of Criminal Responsibility Bill last considered in 2017 . Section 5 of the Sexual Offences Act 2003 details the offence of rape of a child under 13, stating that a child under 13 years of age cannot consent to sex even if they agree to it. Similarly, developmental milestones of children are governed by law in the UK. The Marriage Act 1949 states that a person is to be 16 years old before they are able to marry, or 18 years old before they are able to purchase alcohol (The Licensing Act 2003), which when compared with the fact that a 10 year old is able to be held criminally responsible seems both disproportionate and concerning.

A call for change

The United Nations Committee on the Rights of the Child have tirelessly campaigned for the minimum age of criminal responsibility to be raised to 12 years old. In 2007, the Convention of Rights of the Children General Comment No. 10 (2007) on children’s rights in juvenile justice stated that “…it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable”.

Lord Dholakia, the Deputy Leader of the Liberal Democrats in the House of Lords, has sponsored the Age of Criminal Responsibility Bill which was laid before Parliament in both the 2013/14 and the 2015/16 sessions, and was considered again more recently in 2017. The Bill failed to pass on each occasion. During a second reading of the bill on 8 September 2017, Baroness Vere of Norbiton stated that the Government had no plans to raise the age of criminal responsibility citing the belief  that children aged 10 and above were “able to differentiate between bad behaviour and serious wrongdoing and should therefore be held accountable for their actions”.

There have been calls for change not only from legal practitioners, but also from those involved in the field of psychology and child development. The Centre for Social Justice’s report of 2012 which was established by Iain Duncan-Smith, the former Secretary of State for Work and Pensions,  entitled “Rules of Engagement: Changing the Heart of Youth Justice”, concluded that there was a significant body of research that indicated that early adolescence, a period thought to occur before the age of 13 or 14 years, is a period of marked neurodevelopment immaturity. It further concluded that a child’s capacity at this age is not equivalent to that of an older adolescent or adult. It is therefore concerning that the law of England and Wales presumes that a child has the capacity to make similar decisions to an adult, when developmentally they are not yet capable of doing so.

Doli Incapax – was it right for this to be abolished?

Doli incapax meaning ‘incapable of evil’ was a legal presumption that children under 14 years old were incapable of knowing the difference between right and wrong. For this presumption to be rebutted, the prosecution were required to prove that a child knew their behaviour was “seriously wrong, rather than just naughty or mischievous”, and this had been in existence for over 700 years. This presumption applied to children aged 10 to 14 years of age until 1998 when it fell victim to the Labour Government’s 1997 rhetoric of “Tough on crime, tough on the causes of crime” campaign. This resulted in the doctrine of doli incapax being abolished by the introduction of the Crime and Disorder Act 1998.

Controversially, it was abolished without a review of the law relating to children’s behaviour despite this being recommended by the Law Lords in C (A Minor) v DPP (1995) who expressed a number of concerns about the impact of the low age of criminal responsibility operating without the protection of doli incapax.

The Police and Criminal Evidence Act 1984 (“PACE”) highlights the need for protection of those aged 17 years and below when being interviewed under caution as they are more suggestible and “…particularly prone in certain circumstances to provide information that may be unreliable, misleading or self-incriminating” (Code H NfG 11C).

In the circumstances, it is unclear why the doctrine of doli incapax was abolished despite there being a clear need to distinguish between the treatment of children and adults in the criminal justice system. It would seem a fallacy to presume that all children aged 10 years or over are of the equivalent level of maturity and developmental stage without taking other characteristics into consideration other than their date of birth.

What now?

Youth Justice Statistics for 2016/17 show that around 28,400 individual children and young people received a caution or conviction in the year ending March 2017. Of this number, 24% fell into the age bracket of 10 to 14 years old. This is an indication that there are a substantial number of juveniles of this age in the criminal justice system, whose behaviour prior to 1998 may not have been found to rebut the presumption imposed by the doli incapax doctrine.

If the Government is not willing to raise the minimum age of responsibility, consideration should be given to a doli incapax type presumption being reintroduced. The Government should look to follow in the footsteps of other European criminal justice systems as to how they treat juveniles. The recommendations in the recent Lammy report recommended that the Ministry of Justice and the Department of Health should work together to develop a method to assess the maturity of offenders entering the justice system up to the age of 21, similar to the system currently used in Germany. The criminal justice system of England and Wales should not be using a uniform approach to anyone who is between the age of 10 and 14. The doli incapax presumption if reintroduced would not allow for juveniles to avoid prosecution, such as was the case in Venables and Thompson. The prosecution in that case were able to successfully rebut the presumption and prove that the pair understood that their abhorrent behaviour was seriously wrong, leading to their convictions.