Age of criminal responsibility

Following unanimous support at Holyrood for the Age of Criminal Responsibility (Scotland) Act, the age of criminal responsibility in Scotland has now been raised to 12, below which a child is deemed to lack the capacity to commit a crime. Previously children as young as eight could be held responsible for criminal acts – the lowest in Europe and one of the lowest in the world. While no child under 12 has been prosecuted in a Scottish court since 2011, primary school children aged eight to 11 could be referred to the Children’s Panel on offence grounds and could be given a criminal record.

International ages of criminal responsibility

The UN Convention on the Rights of the Child (UNCRC) promotes non-judicial measures for managing children in conflict with the law, and requires states to establish a minimum age of criminal responsibility (ACR) that reflects children’s emotional and intellectual immaturity.

In 2007, the UN Committee on the Rights of the Child declared an ACR of less than 12 years “not to be internationally acceptable”. Many countries have introduced or raised their ACRs accordingly. The age of criminal responsibility is 14 in Germany, 15 in Sweden, 16 in Portugal and 18 in Luxembourg.

The age of criminal responsibility in England and Wales is 10, under section 50 of the Children and Young Persons Act 1933 as amended by section 16 of the Children and Young Persons Act 1963. Until 1998, there was also a legal presumption (known as “doli incapax”) that children aged under 14 did not know the difference between right and wrong and were therefore incapable of committing an offence. This presumption was rebuttable if the prosecution could satisfy the court that the child knew that what they was doing was seriously wrong, not merely naughty or mischievous. However, the doli incapax presumption was abolished by section 34 of the Crime and Disorder Act 1998 and so is no longer in operation. Criminal law therefore now treats children aged 10 to 13 in the same way as those aged 14 or over.

The UN Committee has consistently raised concerns about the low age of criminal responsibility and in 2016 called on the UK to raise the age “in accordance with acceptable international standards”. However, the UK argued in its 2017 State Report as part of the Universal Periodic Review by the Human Rights Council that “children aged 10 are able to differentiate between bad behaviour and serious wrongdoing”. The government has also stated that “setting the age of criminal responsibility at 10 provides flexibility in addressing offending behaviour by children and allows for early intervention to help prevent further offending”.

Children in the criminal justice system

When a child over the ACR but under 18 years in England comes into contact with the police they can be arrested and detained in custody, although this should be the last resort. Attempts should be made to divert children from the criminal justice system at this stage, with liaison and diversion services in many custody suites to identify children with mental health, substance misuse and learning difficulties.

All children cautioned or convicted acquire a criminal record, with long-term implications. Some convictions or cautions must be disclosed when seeking employment or education courses which require criminal record disclosure. This is seen as a major factor contributing to the negative impact of contact with the criminal justice system.

Scotland’s children’s minister, Maree Todd, highlighted that “evidence shows that responding to childhood behaviour in a criminalising, stigmatising way serves only to promote escalation and further harm. That is neither in the interests of the child, nor of the safety of our communities.” The Scottish government has stated that it has set up an advisory group to review the new provisions and it would consider whether the age should be raised further. It remains to be seen whether England and Wales might follow suit.

Coram Children's Legal Centre