Will the Age of Criminal Responsibility in England and Wales be increased?

9th December 2020

Will the Age of Criminal Responsibility in England and Wales be increased?

What is the age?

As a parent of two boys aged 9 and 13 years old, I struggle to understand how the age of criminal responsibility in England and Wales remains the lowest in all EU countries at 10 years old. It is 14 years old in Germany, 15 years old in Sweden and 16 years old in Portugal.

Before 1963 the age of criminal responsibility in England and Wales was 8 years old and this was increased to 10 by s16 of the children and young person act 1963. Until 1998 prosecutors had to ask themselves two questions where a child was aged between 10-14 before a child was prosecuted, 1. did the child commit the act alleged? And 2. did they understand it was seriously wrong not just mischievous or naughty?

One major case in the late 90’s meant that the Government of the day removed this common law principle (called Doli Incapax) and ever since then primary school children are more likely to be arrested and charged with criminal offences.

Impact of the Criminal Justice System on those who are so young

A child who is 10 can be arrested, placed in a cell at a police station and kept there for up to 36 hours. They can then be bailed or released under investigation with many months passing by before a decision is made to prosecute or not.

If they are prosecuted then there is likely to be months more delay before the case reaches the Youth Court and is dealt with.

The pandemic has had a massive impact on waiting times for hearings and although there are no figures for Youth Court, there are 51,000 cases waiting to be heard in the Crown Court and many if hundreds of thousand cases in the Magistrates Court.

This will be enormously worrying for the child, their family and extended family. It could be that their schooling and mental health will be affected. Time goes by much more slowly when you are a young child and the waiting must be unbearable for some.

On Monday 6 May 2019 the Equality and Human Rights Commission told the UN Committee against torture that exposing young children to a judicial system may have harmful effects on their wellbeing and development and that this “criminalisation” would make them more likely to re-offend as adults. They called on lawmakers in England and Wales to increase the age of criminal responsibility.

So why does the Age of Criminal Responsibility remain at 10?

Over the last 5 decades the age of Criminal Responsibility has on many occasions been called into question and pressure applied to whichever party is governing at the time. The response has always been that they are not looking at changing the age. There is no scientific reason relied on and often the comment put forward in defence of the age is that a 10 year old knows the difference between right and wrong.

Has the science changed?

The science has moved on dramatically in all parts of the criminal justice system and the experts who used to believe that a child’s mind had matured fully in the first 8 years of their lives all agree this is not the case. Dr Alexandra Lewis who is the chair of the adolescent forensic faculty at the Royal College of Psychiatrists states that “we now know that a second critical period of maturation takes place in adolescence and is a very dramatic development of the frontal lobes, which are, essentially responsible for decision-making, planning, consequential thinking, getting ideas about ourselves and social interaction”.

Is the Government really looking to increase the age of criminal responsibility?

Conservative and Labour MP’s have requested that it be looked at and as part of its Children and Young People in the Youth Justice System Inquiry the Justice Committee chaired by Conservative MP Sir Robert Neill has recommended the MOJ (Ministry of Justice) review the age and report on the implications of raising it to 12 or 14.

Giving evidence to the Committee, The Youth Justice Minister Lucy Frazer QC acknowledged the disparity across the EU between countries and age of criminal responsibility but commented “I do not expect we will be changing the age of criminal responsibility.”

Conclusion

Scotland last year did raise the age of criminal responsibility to 12 which shows that it is possible.

However, it is extremely unlikely that in England and Wales it will be increased. We are the lowest in the EU and one of the lowest in the world.

It is interesting to note that the UN and other international bodies regard the lowest acceptable age of criminal responsibility to be the age of 12.

If you do have a child who has become entangled in the Criminal Justice System then please contact Matthew Swash on 01473 298181 or email [email protected].

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