A case for the raising of the minimum age of criminal responsibility in England.
By Ilina Georgieva
In 2011, John Major stated that ‘Society needs to condemn a little more and understand a little less’. In maintaining such a low age of criminal responsibility, which flies in the face of international standards, England has certainly demonstrated a patent lack of understanding of the psychological differences between children and adults, favouring a crude policy of condemnation that merely pushes children further into trajectories of crime. Empathy and compassion must be given more prevalence when reaching policy decisions on youth justice. We should condemn a little less, and understand a little more.
In 1993, James Bulger, a two-year old child, was murdered by two ten-year old boys[1]. Visceral responses to the crime, fuelled by outrage and anger, flooded press reports, as society deplored the ‘cunning and very wicked’ behaviour of the children, that resulted in ‘an act of unparalleled evil and barbarity’, as put by the judge who convicted the boys in Preston Crown Court.[2]
Politicians seized on the opportunity to impose a policy of ‘toughness’[3] on children within the criminal justice system, while the nation’s imagination was still reeling from the raw descriptions of the murder. Michael Howard, (the then Conservative Home Secretary) commented soon after that child ‘offenders’ were ‘adult in everything except years’, who would not be allowed ‘to use age as an excuse for immunity from effective punishment’[4]. The 1998 Crime and Disorder Act’s declaration that “the principal aim of the youth justice system is to prevent offending by children and young persons” signalled the enforcement of this stringent youth crime policy which would not be too quick to grant concessions on the ground of age.[5]
Thus, almost 30 years later, this rare and exceptional case still colours the political attitude towards children within the criminal justice system. Yet, as commented by Barry Goldson in ‘Unsafe, Unjust and Harmful to Wider Society: Grounds for Raising the Minimum Age of Criminal Responsibility in England and Wales’, this ‘adultification’ of children is wholly unwarranted. It is unsupported by the scientific understanding of the maturity and rational capacity of children, as well as being counter-productive, in preventing the rehabilitation and re-education of such children, who have often been subject to traumatic and troubling upbringings themselves.
The minimum age of criminal responsibility in England is the lowest in the EU, at 10 years. This lags significantly behind acceptable international standards, with the UN Committee on the Rights of the Child recommending an age of 14. Until the 1998 Crime and Disorder Act, the doctrine of doli incapax greatly mitigated the potential injustices caused by such a low age of criminal responsibility. Under the doctrine, children aged 10 to 14 years old were presumed to not know the difference between right and wrong, making them incapable of forming criminal intent and thus of committing an offence. This presumption was only rebutted if proven by the prosecution that the child ‘knew that what he was doing was seriously wrong, not merely naughty or mischievous’. However, the 1998 Crime and Disorder Act, notable for its political overtones in light of the Bulger case, abolished doli incapax, and thus a major safeguard against the subjection of children to the criminal process disappeared.
Many hold the intuition that there is something inappropriate about treating children who commit criminal acts in the same manner as adult criminals. This intuitive feeling is confirmed by a variety of scientific, philosophical and policy-based arguments. Firstly, as outlined by Liberal Democrat Life Peer Lord Dholakia, who introduced the Private Members Bill aimed at raising the age of criminal responsibility, ‘Research indicates that early adolescence is a period of marked neuro developmental immaturity, during which children's capacity is not equivalent to that of an older adolescent or adult… Children of 10 and 11 have less ability to think through the consequences of their actions, less ability to empathise with other people's feelings and less ability to control impulsive behaviour.’[6] Such research may point towards a denial of the ability of a child to formulate the mens rea of a crime. The mens rea requirement of a crime means that culpability, or a blameworthy state of mind, on the part of the defendant is necessary; the criminal act alone will not suffice. Thus, some contend that children’s limited capacity for ‘adult-like decision making’ means they are incapable of formulating the intent, or having the foresight of consequences, that is usually required by the mens rea of a crime. Under such an understanding, the age of criminal responsibility should be raised, as even older children are simply incapable of being culpable in the way the criminal law requires for conviction.
Contrastingly, Michael Moore[7] has argued that children lack the essential ‘personhood’ that the criminal law presupposes- they ‘lack the capacity to engage in meaningful practical reasoning’. The criminal law is developed with agents who have a certain level of rationality as well as a capacity to reason in mind. Thus children, who lack this capacity, are not appropriate subjects of the criminal law. They may perfectly intend or foresee the consequences of their actions, but they are not fully developed moral agents ‘who can justly be held responsible’.
Finally, there are strong policy reasons against making children criminally liable. Research demonstrates that juvenile crime is a phenomenon of adolescence that is cured by ‘growing up’. Excessive intervention and punishment inhibit this natural process of ‘growing out’ of crime, instead attaching the harmful stigma and label associated with a criminal record to blight the child’s entire life. Further education and employment prospects are undermined, re-offending is more likely, and the public interest in preventing crime is harmed.[8] While England currently employs a range of diversionary policies aimed at ‘’filter[ing] children who have committed low-level offences away from the formal youth justice system’’[9], the most effective diversionary policy would be to raise the minimum age of criminal responsibility. Similarly, interventionist tactics usually feed a cycle of social marginalisation and poverty, as it is often children from the most disadvantaged and troubled family backgrounds who commit crimes[10]. By subjecting vulnerable children to the criminal justice system, we marginalise and ostracize them from society, driving them towards a life of crime and further impoverishment.
In 2011, John Major stated that ‘Society needs to condemn a little more and understand a little less’[11]. In maintaining such a low age of criminal responsibility, which flies in the face of international standards, England has certainly demonstrated a patent lack of understanding of the psychological differences between children and adults, favouring a crude policy of condemnation that merely pushes children further into trajectories of crime. Empathy and compassion must be given more prevalence when reaching policy decisions on youth justice. We should condemn a little less, and understand a little more.
[1] [1998] A.C. 407 [2] Barry Goldson, ‘Unsafe, Unjust and Harmful to Wider Society’: Grounds for Raising the Minimum Age of Criminal Responsibility in England and Wales, 2013 [3] Ibid [4] Ibid [5] Ibid [6] Lord Dholakia, Age of Criminal Responsibility, 2016 [7] Michael Moore, Placing Blame: A General Theory of Criminal Law 35, 1997 [8] Barry Goldson, ‘Unsafe, Unjust and Harmful to Wider Society’: Grounds for Raising the Minimum Age of Criminal Responsibility in England and Wales, 2013 [9] A Rights-Based Analysis of Youth Justice in the United Kingdom, Report and Recommendations, UNICEF, 2020 [10] Lord Dholakia, Age of Criminal Responsibility, 2016 [11] Major on crime: 'Condemn more, understand less' | The Independent | The Independent