Raising the age of criminal responsibility

The news this week that 12 Scottish children’s charities (including the Children’s Commissioner) are calling for the age of criminal responsibility to be raised to 12 is something that I would hope could be mirrored in the rest of the UK. Having successfully campaigned within the Lib Dems to make it party policy to raise the age of criminal responsibility to 14, 12 would at least be a step in the right direction. 

The age of criminal responsibility in England and Wales is currently 10 - a fact that the UN in particular has raised concerns about.  The fact is we have the lowest age of criminal responsibility in the EU.

It seems to me that the basis for the argument is twofold. First, are children aged under 14 emotionally and intellectually capable of being criminally responsible; and second, how effective is the current regime in both diverting and rehabilitating these children?

Research into the emotional and intellectual capability of children and young people is a developing field, but while it is clear that even very young children do “know the difference between right and wrong”, this does not mean they have the capacity to make a moral judgement. It is for this reason that jury service is not open to all those unable ‘to distinguish right from wrong’ .

Consequently, we do not argue that a 13 or 14-year-old should serve on a jury - and yet as a society we deem them culpable at 10 of making such judgements! Similarly, the same child who under the 2003 Sexual Offences Act is deemed not to be competent to make choices about sexual activity and cannot be held to have consented to any such activity below the age of 13, would be held to be competent in a criminal court. 

Developmental psychology suggests that the capacity to have reasoning that is similar to that of adulthood lies somewhere between the ages of 15 and 17 years, although recent research also suggests that the brain continues to develop into the early twenties. It is important to understand this development for at least three reasons:

• Developed notions of morality depend upon a capacity for hypothetical reasoning – is it right that we should hold children morally responsible for their actions until they have developed that capacity?

• Children’s ability to understand is constrained by their intellectual development and reasoning capacity. Research shows that younger teenagers tend not to understand fully their rights in a police station and court, even when these are fully explained to them. Ten-to 12- year-olds were significantly more likely to misconstrue their right to silence than 13-to 15-year-olds, who were in turn significantly less likely to understand it then 17-to 23-year-olds.

• Even where children have an equivalent intellectual capacity to adults, it does not follow that they can reason at the same level. Not only is the capacity to make ‘moral judgments’ affected by environment and upbringing; they also lack the fund of experience and information that adults use to exercise their power of reason. 

We should also consider that teenagers are far more likely to take part in risky behaviours, to lack the ability to fully appreciate consequences, and are far more subject to peer pressure than adults.

In 2006, the former head of the Youth Justice Board, Rob Allen called for a rise in the age of criminal responsibility to 14 - his rationale being that children could then be better diverted from crime through intensive fostering and other intensive schemes that focused on rehabilitation. This move was supported by NCH (Now Action for Children). 

It is shocking to think that we lock up far more children than other European Countries, for example roughly four times as many as in Portugal, six times as many as in France, 25 times as many as in Belgium, and 100 times as many as in Finland! Kenneth Clarke in launching “Breaking the Cycle” commented on the need to reduce the number of children getting into the criminal justice system. It seems to be a no-brainer when you look at Finland, where under-15s are excluded from the criminal justice system altogether and the results are plain to see. And we should note that the earlier a child becomes involved in the system the more likely they are to reoffend. 

Also, in countries where the age of criminal responsibility is higher, their behaviour is more likely to be regarded as a welfare issue and often one of disadvantage, lack of education, or abuse as a child. The statistics are shocking. For example:

• Two out of five girls and one out of four boys in custody have experienced violence at home. 

• Three quarters of children in custody have lived with someone other than a parent.

• One in three girls and one in 20 boys in custody disclosed sexual abuse.

Research published in 2009 into children aged 14 or younger serving Detention and Training Orders showed that: 

• 44% had experienced abuse within the family, compared with 16% in the general population.

• 16% had a Statement of Special Educational Needs, compared to 3% of the general population

• 22% had been living in care, compared to 3% of the general population 

• 8% had attempted suicide at some point in their short lives

Surely it is beyond dispute that for most children engaged in offending behaviour there are serious welfare, education and social problems that have not been adequately addressed. If ever there was a time to reconsider raising the age of criminal responsibility, it is now. 

Linda Jack is a member of the Parliamentary Policy Committee for Education, Young People and Families, and former member of the Federal Policy Committee