Legal Update: The age of criminal responsibility

Earlier this year, Lord Dholakia introduced a private members’ bill into the House of Lords that seeks to raise the minimum age of criminal responsibility in England and Wales from 10 to 12. Lord Dholakia maintains that it is wrong to criminalise children at such a young age, and that a minimum age of criminal responsibility of 10 is incompatible with the UK’s obligations under international law. The Age of Criminal Responsibility Bill 2012/13 has not yet been scheduled for second reading.?

What is a ‘minimum age of criminal responsibility’?
A minimum age of criminal responsibility (MACR) sets out the age below which a child will be immune from prosecution. A child below the MACR will be unable to be formally charged with an offence and will not be subject to criminal procedures. In setting a MACR, countries are recognising that a child has not attained the emotional, mental and intellectual maturity to be held criminally responsible for his or her actions. This does not mean that there should be no consequences or interventions to address a child’s behaviour if he or she engages in offending behaviour, but that the child should not be subjected to the criminal justice system.

The MACR is not about recognising the age at which a child can be deemed broadly to know the difference between right and wrong. The MACR should instead be set at an age at which children have capacity to understand the consequences of their actions fully and be responsible for their behaviour. Children should also be at an age at which they can meaningfully participate in criminal proceedings. The MACR varies widely across the world, from as low as seven up to 18.

International standards
Governments are required, under international law, to establish a MACR; however, no exact age is specified in international law. The “Beijing Rules”, which set out international juvenile justice standards, require that the MACR “shall not be set at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity”. The UN Committee on the Rights of the Child has recommended, in its General Comment No. 10 on juvenile justice, that a MACR below 12 years “is not internationally acceptable”, and that a higher MACR, for instance of 14 or 16 years, contributes to a juvenile justice system which, in accordance with the Convention on the Rights of the Child, “deals with children in conflict with the law without resorting to judicial proceedings”. The UN Committee has expressed concern, in its periodic reviews, about the low MACR in the UK, and have recommended that the government raise this age.

While Scotland raised the age to 12 last year, the current MACR in England and Wales is indeed far too low. Research has demonstrated that adolescent children do not have sufficient neurological maturity to be held criminally responsible. Recent research by the Royal Society considered developments in neuroscience in relation to criminal responsibility and found that “it is clear that at the age of 10 the brain is developmentally immature, and continues to undergo important changes linked to regulating one’s own behaviour. There is concern among some professionals in this field that the age of criminal responsibility in the UK is too low.”

Having such a low MACR only serves to reinforce the idea that children who offend should be punished. Offending by children should be seen as a welfare matter, not as a matter of punishment. Subjecting children to criminal justice systems at an early age has been shown to increase their likelihood of reoffending. Interventions should instead focus on addressing the causes of a child’s offending behaviour – educational difficulties, mental health problems, abuse or neglect – in a rehabilitative manner that avoids stigmatisation. It is in the interests of victims and society for children who offend to be properly rehabilitated and thereby less likely to reoffend.


Legal Update is produced in association with experts at Coram Children’s Legal Centre www.childrenslegalcentre.com

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