Age of Criminal Responsibility

A provocation paper

Dr Harriet Pierpoint, Associate Professor of Criminology, University of South Wales

Survey on public opinions on the age of criminal responsibility

Dr Harriet Pierpoint, University of South Wales, is currently conducting a survey on public opinions on the age of criminal responsibility. You can access the survey in English or Welsh.

Introduction

An age of criminal responsibility (ACR) is the minimum age that a child can be prosecuted and punished by law for an offence and is 10 years in England and Wales.[i] There are frequent calls to raise it from the United Nations (UN)[ii], professional bodies[iii] [iv] and academics[v], as well as legal attempts.[vi] In the last British survey in 2010, a significant minority of those polled, 39 per cent, said the ACR should be raised.[vii] Given the appeals to increase the ACR and the uncertainty around current public opinion, it is timely to examine the appropriateness of the ACR in England and Wales.

The purpose of this paper is to explain what is meant by the ACR, to explain the position in England and Wales, and beyond, and then to take a multi-disciplinary approach to debating whether the ACR in England and Wales is appropriate — by drawing on criminological, sociological, psychological, legal and neuroscientific perspectives. It will consider four key issues on the topic and then discuss the implications of the low ACR in England and Wales and summarise options for change.

What is the ACR?

An ACR should not be studied in isolation. For example, until very recently, the ACR was 8 years in Scotland. [viii] However, children under 12 years could not be prosecuted in a criminal court.[ix] From 8 years, children could be referred to the Children’s Hearings System. Children’s Hearings are child-friendly, and deal with a range of welfare issues. Therefore, children can participate and offending is understood through the prism of children’s welfare needs. This is akin to practices in many countries which distinguish between ‘relative’ and ‘full’ criminal responsibility. The notion of relative responsibility, activated at the younger age, ensures that children’s cases are dealt with in tribunals or similar with welfare, educational, health and/or therapeutic measures at their disposal. Full criminal responsibility does not become effective until the child reaches the upper age limit, often 18 years.[x] In other words, while a country may have a low ACR, their system of dealing with children may be based on welfare rather than punishment.

While a comparison of ACRs is not straight-forward[xi], the UN Committee on the Rights of the Child has previously declared that an ACR of younger than 12 years is not internationally acceptable and has, since then, sought to increase the minimum standard to 14 years old. A consultation on increasing the minimum standard to 14 years was held by the UN Committee in late 2018.[xii] Many countries have introduced or raised their ACRs accordingly. This includes the Republic of Ireland[xiii] and Scotland[xiv] where the ACR is now 12 years. The ACR in England and Wales remains 10 years.

Figure 1: Minimum age of criminal responsibility

Key issue 1: How does the ACR in England and Wales compare to approaches in other countries?

At 10 years, England and Wales has the lowest ‘full’ ACR in Europe[xv] and one of the lowest ACR worldwide, as shown in Figure 1 above. Some countries have an ‘absolute’ ACR plus a ‘conditional’ age period where either a presumption or a defence of doli incapax applies. The latter is whereby the child is deemed, on the basis of evidence presented by the prosecution or defence, to be incapable of crime. In England and Wales, before 1998, children aged 10 to 14 years were presumed to be incapable of crime unless and until the prosecution presented evidence, which proved beyond reasonable doubt, that the child knew that what they were doing was seriously wrong, as distinct from naughty or mischievous.[xvi] In other words, while the (conditional) ACR was 10 years, it was assumed that children under 14 years (the absolute ACR) were not criminally responsible, unless the prosecution could show that the child appreciated the seriousness of wrongdoing. This legal doctrine was known as the ‘rebuttable presumption of doli incapax’. The older the child and the more obviously wrong the act, the easier it was to prove guilty knowledge.[xvii] The doctrine was abolished in 1998[xviii], following the case of James Bulger — a toddler who was murdered by two 10-year-old boys in 1993. Other common law countries have also moved away from the doctrine of doli incapax (which can exist as a presumption which can be rebutted or as a defence). However, unlike England and Wales, other countries have tended to raise the minimum ACR to 12 years at the same time.[xix]

The aftermath of the James Bulger case saw a range of measures (including the abolition of doli incapax) focussed on the ‘responsibilisation’ of children in England and Wales. Responsibilisation places the responsibility on the individual children rather than society for offending behaviour.[xx] The Bulger case is often cited by those making the case for a low ACR, along with the argument that if a child is old enough to act like an adult and commit a crime, then they are old enough to be treated like an adult/criminal. Julia Fionda explains how society is willing to treat criminal children differently to other children in the following way. She clarifies that normally adult society perceives childhood as a period of ‘innocence’, but, as soon as individual children fail to live up to adult perceptions of what children should be like, they lose their ‘angelic’ status and are seen as ‘devils’ instead and, hence, can be treated as such.[xxi] Such brutal cases, however, are infrequent. For the year ending March 2017, two of 224 suspects convicted of homicide in England and Wales were between the ages of 10 to 16.[xxii]

That said, governments for the last 50 years have resisted calls to increase the ACR. The ACR was increased from 8 to 10 years in 1963 in England and Wales. The Report of the Committee on Children and Young Persons (Ingleby Committee, 1960) recommended raising the minimum ACR to 12 (and possibly 13 or 14) but the Children and Young Persons Act 1963 s.16 raised the age to 10.[xxiii] The Children and Young Persons Act 1969 contained provision to raise the age of criminal responsibility to 14 years, but a change of government (from Labour to Conservative) meant that these provisions were not implemented.[xxiv] Since then, the line of successive governments has been that children aged 10 and above can mostly distinguish between bad behaviour and serious wrong-doing, and should be held accountable for their actions. The government has also argued that the public must have confidence in the youth justice system and know that offending will be dealt with effectively.[xxv] Whether there is evidence behind these claims is considered below.

Key issue 2: How does the ACR compare to other legal minimum ages?

The UN ‘Beijing Rules’, representing the current international consensus on how children should be treated while they are in the criminal justice system (CJS),[xxvi] state that: “In general, there is a close relationship between the notion of responsibility for delinquent behaviour and other social rights and responsibilities (such as marital status, civil majority, etc.).”[xxvii] However, there is a lack of intra-jurisdictional integrity — that is consistency across the broader criminal and civil law[xxviii] — in England and Wales, as shown in Table 1. The effective age of most civil responsibilities is 16 years[xxix], or older.

Table 1: Responsibilities and rights in England and Wales

One contrast in ages that has been highlighted as particularly relevant in this context is between the ACR at 10 years and the ability to sit on a jury at 18 years. As Claire McDiarmid argues: “Can it really be the case that it is possible to understand the concept of criminal responsibility sufficiently to legitimately be held accountable personally at the age of ten, but that a further eight years must pass before discernment is sufficiently advanced that the decision that others are similarly responsible can be taken?”[xxx] Others may not be convinced by this argument.

Key issue 3: Is the ACR in line with neuroscientific research?

The ACR of 10 years was set in a time without brain scanning technology and limited knowledge of brain development and neurological processes which underpin behaviour. It is now understood that adolescence (10 to 19 years) represents a period of significant neurodevelopment. The amygdala develops shortly after puberty.[xxxi] This is the part of the brain which is implicated in risky behaviours and emotional arousal. In contrast, the frontal lobe, responsible for functions like reasoning, planning, and impulse control, develops around the age of 14.[xxxii] This is because the brain maturation starts at the back and progresses forward. Maturation concludes, therefore, with the development of the prefrontal cortex, critical to moral development[xxxiii], in the early twenties.[xxxiv] Hence, adolescents’ brains predispose them to risk taking behaviours and responding emotionally, without the same abilities as adults to control their impulses and consider the long-term implications.

However, while neuroscientific studies tell us that adolescents lack capacity in control and so on, these studies do not identify a particular age as being developmentally important (i.e. as a key stage of the developmental process when the ACR should kick in).[xxxv] Moreover, while it is tempting to fully embrace the neuroscientific findings in youth justice, there are reasons to be cautious. While it is useful to co-opt neuroscientific findings as a liberalising tool in arguing for a higher ACR, another possible use of neuroscience is to predict the risk of future criminality. Many people would have ethical concerns about the uses to which those predictions could be put, including the application of neurotreatments, and they would likely include the supporters of raising the ACR. In the natural sciences, this quandary — that science can be used in ways that both contribute to human flourishing and to potentially diminishing it — is referred to as the ‘dual-use dilemma’. [xxxvi]

Key issue 4: Is the ACR in line with behavioural research?

The neuroscientific findings above do not come as a surprise. They reflect what has been observed empirically universally — that there is an increase in criminal behaviour in children that peaks in late adolescence, but then declines throughout adult life, when, some argue, they ‘grow out’ of crime.[xxxvii] The neuroscientific findings also support theories that have already been advanced in psychology that children have not developed the same adequacy of moral reasoning as adults in order to respond to moral dilemmas. Although not without criticism, the eminent psychologist Lawrence Kohlberg’s stages of moral theory holds that moral reasoning, the basis for ethical behaviour, has six developmental stages, each more adequate at responding to moral dilemmas than its predecessor.[xxxviii]

In contrast, one recent psychological study asked a total of 132 participants from four age groups (8, 12 and 16 years, and adults) to listen to a series of vignettes which described a person committing a transgression. The seriousness of the transgressions varied across vignettes. Participants were then asked to rate the wrongfulness and outcome expectations for each vignette. Participants from all age groups evaluated criminal conduct more negatively than mischievous conduct and anticipated more severe legal sanctions for criminal conduct. The study concluded that 8-year-olds provided evidence that they were comparable to older children and adults in terms of their understanding of the wrongfulness of criminal behaviour and the ability to distinguish it from mischievous behaviour.[xxxix]

What are the implications of a low ACR?

There are a number of consequences of a low ACR and early criminalisation. Research shows that contact with the CJS can extend the criminal careers of children, rather than curtail them.[xl] There are a number of possible reasons for this. Children in criminal proceedings experience delays in receiving therapy compared to those placed in secure children’s homes through welfare proceedings.[xli] Labelling theory claims that children who are categorised as offenders are more likely to perceive themselves as criminals, engage in criminal behaviour and associate with criminal peers, and be treated negatively by others, including teachers and employers.[xlii] Criminal records may have to be disclosed when applying for educational courses or employment.[xliii] Contact with the CJS reduces the likelihood of children completing education, gaining qualifications and securing employment.[xliv] Another argument furthered by Barry Goldson is that these consequences bear acutely on the vulnerable, given that children who come into contact with the CJS are those likely to have complex needs. In this way, England and Wales’ low ACR ‘criminalises social need’.[xlv] Finally, criminal proceedings are expensive. Based on data from 2004 and 2008, almost £6 million could have been saved in court appearances alone.[xlvi]

Options for the future

The ACR in England and Wales is 10 years. This is one of the lowest ACRs in the world. The ACR in England and Wales contravenes international standards and is out of line with other domestic legal minimum ages. The ACR of 10 is not based on the available evidence from neuroscience, nor many theories from behavioural sciences, and implications of early criminalisation of children are harmful and costly. Hence, having considered some of the key issues, there are some strong arguments for increasing the ACR — with most experts suggesting to 12 or 14 years. This would bring it into line with current civil legislation and developmental research.

That said, increasing the ACR would not come without cost or other challenges. If children in conflict with the law were to be dealt with outside of the CJS, then this infrastructure would need to be carefully thought out and resourced. Despite the disadvantages of the CJS, its strengths are the application of due process, transparency and the protection of legal rights and an alternative system would need to protect these too. [xlvii] There are various options, three of which are 1) using the family courts — where proceedings under the Children Act 1989 already provide for the child to be separately represented, and 2) welfare laws can even be used to deprive children of their liberty when there are issues of risk — and/or 3) moving to a welfare tribunal system akin to Scotland’s. Moreover, many cases may not need to trouble the courts/tribunals and could be dealt with through a partnership of existing services delivering welfare, educational, health and/or therapeutic measures to address behaviour. Assuming the aforementioned challenges were dealt with appropriately, it would be possible for children to take responsibility, be held accountable for their actions and make amends for offending behaviour, outside of the CJS. In other words, the concepts of ‘responsibility’ and of ‘criminalisation’ can be separated.[xlviii]

A ‘half-way house’ between (1) retaining the current ACR and (2) raising it would be to reintroduce the doctrine of doli incapax. It could be reintroduced as either (a) a rebuttable presumption or (b) a defence. In the case of (a), this means that at a lower age range (for example 10 to 14 years) a child would be presumed to be incapable of crime and not subject to prosecution, unless the prosecution could present evidence that the child knew what they were doing was seriously wrong to refute that assumption. Alternatively, in the case of (b) a child at the lower age range would be assumed to be capable of crime and subject to prosecution unless the defence could present evidence that the child did not know what they were doing was seriously wrong. In other words, criminal responsibility at the lower age range is ‘conditional’, to allow the assessment of individual children’s appreciation of wrongdoing. ‘Absolute’ criminal responsibility, without the scope for this assessment, would then become effective at an older age (for example 14 years).

In sum, most of the evidence from criminology, sociology, psychology, law and neuroscience suggests that the current ACR of 10 is not appropriate. In the absence of raising the ACR, abolishing the doctrine of doli incapax was a mistake. The doctrine did have the merit of making police, prosecutors and judges stop to think, however fleetingly, about the responsibility of an individual child.[xlix] Its reintroduction is one of a number of options for the future, of which the author would choose raising the ACR to 14.

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Thank you to Professor Jonathan Evans and the reviewers for their helpful comments.

[i] Children and Young Persons Act 1933, s. 50 as amended by Children and Young Persons Act 1963, s. 16(1).

[ii] UN Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, 3 June 2016. para.78(a).

[iii] Law Society response to the Law Commission’s Summary of provisional proposals and questions, January 2011.

[iv] Royal College of Psychiatrists, Child Defendants, Occasional Paper 56. London: Royal College of Psychiatrists, 2006.

[v] E. Delmage, ‘The Minimum Age of Criminal Responsibility: A Medico-Legal Perspective’ (2013), 13(2) Youth Justice, pp. 102–110.

[vi] M. D’Arcy, (BBC, Week Ahead in Parliament, December 2018) <https://www.bbc.co.uk/news/uk-politics-parliaments-46566836> accessed 29/7/19.

[vii] CSJ/YouGov polling of 1948 adults in England and Wales, May 2010 as cited in Centre for Social Justice, Rules of Engagement: Changing the heart of youth justice, January 2012.

[viii] Criminal Procedure (Scotland) Act 1995, ss. 41 and 41A(1).

[ix] Criminal Justice and Licensing (Scotland) Act 2010.

[x] B. Goldson, ‘Unsafe, Unjust and Harmful to Wider Society’: Grounds for Raising the Minimum Age of Criminal Responsibility in England and Wales’, (2013), 13(2) Youth Justice, pp. 111–130.

[xi] T. Crofts, ‘Catching Up With Europe: Taking the Age of Criminal Responsibility Seriously in England’, (2009), 17(4) European Journal of Crime, Criminal Law and Criminal Justice, pp. 267–291.

[xii] Together: Scottish Alliance for Children’s Rights, (Minimum Age of Criminal Responsibility Update, January 2019) <https://www.togetherscotland.org.uk/news-and-events/news/2019/01/minimum-age-of-criminal-responsibility-update> accessed 29/7/19.

[xiii] Children Act 2001 s.52 as amended by Criminal Justice Act 2006 s.129 provides that a child under 12 years of age shall not be charged with an offence, but that this does not apply to a child aged 10 or 11 years who is charged with murder, manslaughter, rape, rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 or aggravated sexual assault. Moreover, it continues that: “Where a child under 14 years of age is charged with an offence, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.”

[xiv] Age of Criminal Responsibility (Scotland) Act 2019.

[xv] Greece has a lower ‘relative’ ACR. Children between the ages of 8 and 13 cannot be held criminally liable for an offence, and can only be subject to educational or therapeutic measures for committing acts that would be criminal offences for an older person. Children aged 13 to 15 at the time of committing a criminal act may only be subject to reformatory or therapeutic measures, and a child aged 15 to 18 may be sentenced to penalties including deprivation of liberty (Criminal Code, Articles 126 and 127) (CRIN, (‘Minimum Ages of Criminal Responsibility in Europe) <https://archive.crin.org/en/home/ages/europe.html> accessed 28/01/20.

[xvi] C v DPP, (1995), AC 1 as cited by S. Bandalli, Children, Responsibility and the New Youth Justice, in B. Goldson, (ed) The New Youth Justice. (Russell House Publishing, p. 83. 2000).

[xvii] S. Bandalli, ‘Abolition of the Presumption of Doli Incapax and the Criminalisation of Children’, (1998), 37(2) The Howard Journal, pp. 114–123.

[xviii] Crime and Disorder Act 1998 s. 34.

[xix] T. Crofts, ‘Reforming the Age of Criminal Responsibility’ (2016), 46(4) South African Journal of Psychology, pp. 436–448.

[xx] S. Bandalli, ‘Children, Responsibility and the New Youth Justice’, in B. Goldson, (ed) The New Youth Justice. (Russell House Publishing, 2000).

[xxi] J. Fionda, Devils and Angels: Youth, Policy and Crime. (Hart Publishing 2005).

[xxii] Office for National Statistics, (What do we know about suspects?). <https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/homicideinenglandandwales/yearendingmarch2017#what-do-we-know-about-suspects> accessed 29/07/19.

[xxiii] R. Delmage, ‘The Minimum Age of Criminal Responsibility: A Medico-Legal Perspective’, (2013), 13(2) Youth Justice, pp. 102–110.

[xxiv] T. Bateman, ‘“Catching Them Young” — Some Reflections on the Meaning of the Age of Criminal Responsibility in England and Wales’ (2014), 13(3) Safer Communities, pp. 133–142.

[xxv] M. D’Arcy, (BBC, Week Ahead in Parliament, December 2018) <https://www.bbc.co.uk/news/uk-politics-parliaments-46566836> accessed 29/7/19.

[xxvi] H. Pierpoint, ‘Quickening the PACE: The Use of Volunteers as Appropriate Adults’, (2008), 18(4) Policing and Society: An International Journal, pp. 397–410.

[xxvii] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) art 4.1.

[xxviii] B. Goldson, ‘COUNTERBLAST: ‘Difficult to Understand or Defend’: A Reasoned Case for Raising the Age of Criminal Responsibility 1’, (2009), 48(5) Howard Journal of Criminal Justice, pp. 514–521.

[xxix] R. Delmage, ‘The Minimum Age of Criminal Responsibility: A Medico-Legal Perspective’ (2013), 13(2) Youth Justice, pp. 102–110.

[xxx] C. McDiarmid, ‘An Age of Complexity: Children and Criminal Responsibility in Law’, (2013), 13(2) Youth Justice, pp. 145–160.

[xxxi] The Royal Society (2011) Brain Waves Module 4: Neuroscience and the Law. London: The Royal Society.

[xxxii] C. McDiarmid, ‘An Age of Complexity: Children and Criminal Responsibility in Law’, (2013), 13(2) Youth Justice, pp. 145–160.

[xxxiii] B. Taber-Thomas, E. Asp, M. Koenigs, M. Sutterer, S. Anderson, and D. Tranel, ‘Arrested Development: Early Prefrontal Lesions impair the Maturation of Moral Judgement’ (2014), 137(4) Brain: A Journal of Neurology, pp. 1254–1261.

[xxxiv] C. McDiarmid, ‘An Age of Complexity: Children and Criminal Responsibility in Law’, (2013), 13(2) Youth Justice, pp. 145–160.

[xxxv] H. Wishart, ‘Young Minds, Old Legal Problems: Can Neuroscience Fill the Void? Young Offenders & The Age of Criminal Responsibility Bill — Promise and Perils’, (2018), 82(4) Journal of Criminal Law, pp. 311–320.

[xxxvi] C. Walsh, ‘Youth Justice and Neuroscience: A Dual-Use Dilemma’, (2011), 51 British Journal of Criminology, pp. 21–39.

[xxxvii] A. Rutherford, Growing Out of Crime: The New Era. (Waterside Press 1992).

[xxxviii] L. Kohlberg, ‘The Claim to Moral Adequacy of a Highest Stage of Moral Judgment’, (1973), 70(18) Journal of Philosophy, pp. 630–646.

[xxxix] P. Waglandand, K. Bussey, ‘Appreciating the Wrongfulness of Criminal Conduct: Implications for the Age of Criminal Responsibility’, (2017), 22 Legal and Criminological Psychology, pp. 130–149.

[xl] L. McAra, ‘Child-friendly Youth Justice?’, in T. Bateman, P. Goodfellow, R. Little & A. Wigzell, (eds) Child-friendly youth justice?: A compendium of papers given at a conference at the University of Cambridge in September 2017, (National Association of Youth Justice, 2018).

[xli] T. Bateman, ‘Keeping up (Tough) Appearances: the Age of Criminal Responsibility’ (2015), 102, Criminal Justice Matters, pp. 35–36.

[xlii] D.P. Farrington and J. Murray, (eds) Labeling Theory: Empirical Tests. Advances in Criminological Theory. (Transaction Publishers, 2014).

[xliii] S. Bunn and P. Brown, (www.parliament.uk, Age of Criminal Responsibility, June 2018, <https://researchbriefings.parliament.uk/ResearchBriefing/Summary/POST-PN-0577> accessed 29/7/19.

[xliv]J. Bernburg and M. Krohn, ‘Labeling, Life Chances and Adult Crime: The Direct and Indirect Effects of Official Intervention in Adolescence on Crime in Early Adulthood’ (2003), 41(4) Criminology, pp. 1287–1318.

[xlv] B. Goldson, ‘Unsafe, Unjust and Harmful to Wider Society’: Grounds for Raising the Minimum Age of Criminal Responsibility in England and Wales’ (2013), 13(2) Youth Justice, pp. 111–130.

[xlvi] Barnardo’s (2010) From playground to prison: the case for reviewing the age of criminal responsibility. Ilford: Barnardo’s. Costs were calculated using a case study from the Audit Commission (2004) report which found that the costs of a court appearance for criminal damage and assault (including police time) was £8,712. This figure was applied to the 664 children sentenced in court in 2008, to give a figure of £5.8 million. Audit Commission (2004) Youth Justice 2004: A Review of the Reformed Youth Justice System, Audit Commission, London.

[xlvii] J. Evans, D. Kennedy and B. Heath with Jersey Youth Justice Review Steering Group (2019) Jersey Youth Justice Review, St Helier: States of Jersey Government.

[xlviii] P. Pinheiro, (CRIN, Juvenile Justice: The ‘Minimum Age’ Debate — Separating ‘Responsibility’ from ‘Criminalisation’, January 2015), https://archive.crin.org/en/library/publications/juvenile-justice-minimum-age-debate-separating-responsibility-criminalisation.html accessed 29/7/19

[xlix] P. Cavadino, ‘Goodbye Doli, Must We Leave You?’ (1997), 9 (2) Child and Family Law Quarterly, pp. 165–171.