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It is high time we increased the minimum age of criminal responsibility

It is high time we increased the minimum age of criminal responsibility
4 min read

We treat our young people appallingly, from schools forced to become exam factories to breath-taking rates of child poverty.

Studies have consistently shown that the UK has the lowest rate of child happiness in Europe. And it is some of the most vulnerable that we treat the worst. One example is the recruitment of often vulnerable under-18s into the armed forces, an issue on which I hope to do more work on soon.

Those who encounter the criminal justice system are treated appallingly, with demonstrably disastrous results and a recidivism rate within a year of 40 per cent – demonstrating the courts are not working to address the issue of these children. The Children’s Commissioner described the youth justice system as “chaotic and dysfunctional”, and the children caught up in it are disproportionately from ethnic minority communities.

With the Policing Bill back in the House of Lords today, I’m seeking to address one aspect of that dysfunction – the dreadfully young age of some of the defendants who find themselves pulled into a system even many adults struggle to understand.

The age of criminal responsibility in England and Wales is just 10, the lowest in Europe, and far below the level that the UN Committee on the Rights of Children regards as appropriate, which is a minimum of 14.

That children are being failed by antiquated standards is an outrage, reform is sorely needed

That’s the average across European countries. Even China and Russia – where the UK rightly often has cause to point out human rights abuses – have higher ages of criminal responsibility.

Whitehall denizens do not have to travel far to find examples of higher ages of criminal responsibility. In 2019 Members of the Scottish Parliament voted unanimously to change the threshold age from 10 to 12.

Prior to New Labour’s abolition of the legal doctrine of doli incapax in 1998, children had a greater degree of protection. This doctrine held that, fundamentally, children below 14 were incapable of committing a crime. Exceptions could arise if “the prosecution could prove that a child under 14 knew that their actions were seriously wrong (as opposed to merely naughty)”. Children under that age were otherwise exempt from criminal responsibility. Thus, the mechanism for mitigating the UK’s exceedingly low age of criminal responsibility vanished, with no commensurate increase in the age itself.

This is not a moral question, but a scientific one. As highlighted by the UN Committee on the Rights of the Child, children below the age of 14 are still developing the capacity for abstract reasoning: “their frontal cortex is still developing. Therefore, they are unlikely to understand the impact of their actions”.

In fact, there is some political will in Westminster to take on board this evidence and, to use a phrase so loved by the government, “level up” our youth justice legislation.

In 2020 the Justice Committee recommended that the Ministry of Justice review the minimum age of criminal responsibility. Unfortunately, however, the government appears to have chosen once again to renew its “ideological commitment to appear tough on youth crime”. Then-Parliamentary Under-Secretary of State for Justice Lucy Frazer stated “I do not expect that we will be changing the age of criminal responsibility”.

This is not an acceptable status quo on human rights, or scientific, grounds. It is high time for an increase in the minimal age of criminal responsibility in England and Wales. The success of children’s rights campaigners in Scotland has been heartening, but as UNICEF pointed out in their 2020 report, this reform still failed to meet the standard set by experts.

That children are being failed by antiquated standards is an outrage, and reform is sorely needed. But rather than set out what clearly needs to be done – follow the science and make the age at least 14 – I’ve chosen a path that I hope more members of the Lords will be prepared to follow.

I have submitted an amendment to the government’s Police, Crime, Sentencing and Courts Bill, calling for the Secretary of State to review the age of criminal responsibility within one year of the Act being passed.

This would ensure a legally binding commitment on the UK government to at least consider whether our abnormally low age of criminal responsibility is tenable, given international norms and expert opinion. We wouldn’t be “world-leading”, as the government so often likes to claim, but we would at least be catching up.

 

Baroness Bennett is a Green peer in the House of Lords. 

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