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The Age of Criminal Responsibility

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The Age of Criminal Responsibility BRIEFING PAPER Number 7687, 15 August 2016 By Terry McGuinness The age of criminal responsibility Contents: 1. The ages of criminal responsibility in the UK 2. Criticisms and calls for change 3. The Governments’ position www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 The age of criminal responsibility Contents Summary 3 1. The ages of criminal responsibility in the UK 4 1.1 In England and Wales 4 1.2 In Scotland 4 1.3 In Northern Ireland 5 2. Criticisms and calls for change 6 2.1 The UN Committee on the Rights of the Child 6 2.2 Children’s Commissioners 7 The Children’s Commissioner for England 7 The Children and Young People’s Commissioner for Scotland 8 Northern Ireland Commissioner for Children and Young People 8 2.3 Law Societies 9 The Law Society of England and Wales 9 The Law Society of Scotland 9 2.4 All Party Parliamentary Group for Children 10 2.5 The Royal Society 11 2.6 The Centre for Social Justice 11 2.7 All Party Parliamentary Group on Women in the Penal System 12 3. The Governments’ position 14 3.1 At Westminster 14 3.2 At Holyrood 15 3.3 At Stormont 15 Cover page image copyright YOT logo by SGGH at English Wikipedia. No copyright required / image cropped. 3 Commons Library Briefing, 15 August 2016 Summary The age of criminal responsibility - the age below which a child is deemed not to have the capacity to commit a crime - is currently set at 10 years in England and Wales and in Northern Ireland. Scotland has the youngest age of criminal responsibility in Europe at 8 years of age. Calls for an increase in these ages of criminal responsibility are not new. Those who argue that reform is urgently needed point to international standards such as the UN’s Convention on the Rights of the Child and the higher ages applied in other European states, to the impact on recidivism rates of early entry into the criminal justice system and to ongoing research in neuroscience that shows huge individual variability in the timing of development of children’s brains. Successive Governments have resisted calls for an increase in the age of criminal responsibility, arguing that the current age allows for flexibility in dealing with children in the criminal justice system and is needed so that children may understand that criminal actions are serious matters. However an increase of the age of criminal responsibility may happen soon in Scotland following the recommendation of an expert advisory group tasked by the Scottish Government with considering the implications of raising the age from 8 to 12 years. The responses to the subsequent consultation into the advisory group’s recommendations show support for reform. In Northern Ireland change is not likely given the Democratic Unionist Party’s longstanding opposition to an increase from 10 years of age. Whilst a higher age of criminal responsibility was recommended by the 2011 Review of the Youth Justice System in Northern Ireland, the DUP views cases such as the murder of Jamie Bulger as evidence of the need for a younger age. 4 The age of criminal responsibility 1. The ages of criminal responsibility in the UK 1.1 In England and Wales The current age of criminal responsibility in England and Wales is ten years.1 No child under this age can be found guilty of a criminal offence. Until 1998, there was also a legal presumption (known as The rebuttable ‘doli incapax’) that children aged under 14 did not know the difference presumption that a between right and wrong and were therefore incapable of committing child under 14 did an offence. This presumption was rebuttable if the prosecution could not know the satisfy the court that the child knew that what he was doing was difference between seriously wrong, not merely naughty or mischievous.2 However, the right and wrong doli incapax presumption was abolished by section 34 of the Crime was abolished in and Disorder Act 1998 and so is no longer in operation.3 Criminal law 1998 therefore now treats children aged 10 to 13 in the same way as those aged 14 or over. 1.2 In Scotland The current age of criminal responsibility in Scotland is eight years.4 5 Scotland has the This is the lowest age of criminal responsibility in Europe. lowest age of In 2010 the Scottish Executive legislated to provide that no child criminal under the age of twelve may be prosecuted for an offence. Neither responsibility in may an older person be prosecuted for an offence committed whilst Europe under the age of twelve.6 Children aged between eight and eleven years can still be referred to the Children’s Hearings System on offence grounds. Where a child admits or has an offence ground established by a Children’s Hearing or Sheriff, they then acquire a criminal record. This will appear on a higher level disclosure certificate in the event of a criminal record check or on the Protection of Vulnerable Groups Scheme record. 1 Section 50 of the Children and Young Persons Act 1933 (as amended). The Act as introduced set the age at eight and this was increased to the current age of ten by section 16 of the Children and Young Persons Act 1963. 2 JM v Runeckles (1984) 79 Cr App R 255 3 See the Home Office consultation paper Tackling Youth Crime, June 1997 (in particular paragraphs 3 to 18) and the subsequent white paper No More Excuses: a New Approach to Tackling Youth Crime in England and Wales, CM 3809, November 1997 (in particular chapter 4) for background to the abolition of the doli incapax presumption. The presumption was abolished in Northern Ireland by the Criminal Justice (Northern Ireland) Order 1998, article 3. 4 Section 41 of the Criminal Procedure (Scotland) Act 1995. 5 The Report of the Advisory Group on the Minimum Age of Criminal Responsibility, March 2016, paragraph 1.1. See too Child Rights International Network website (accessed on 15 August 2016) 6 A new section 41A was inserted into Criminal Procedure (Scotland) Act 1995 by section 52 of the Criminal Justice and Licensing (Scotland) Act 2010. 5 Commons Library Briefing, 15 August 2016 1.3 In Northern Ireland The current age of criminal responsibility in Northern Ireland is ten years. 6 The age of criminal responsibility 2. Criticisms and calls for change 2.1 The UN Committee on the Rights of the Child The UN Committee has repeatedly expressed the view that the minimum age of criminal responsibility should be 12 years. In 2007 it issued a General Comment on children’s rights in juvenile justice, which included the following comments on the age of criminal responsibility: 32. Rule 4 of the Beijing Rules recommends that the beginning of MACR [minimum age of criminal responsibility] shall not be The Committee fixed at too low an age level, bearing in mind the facts of has repeatedly emotional, mental and intellectual maturity. In line with this rule called for the age the Committee has recommended States parties not to set a of criminal MACR at a too low level and to increase the existing low MACR responsibility to to an internationally acceptable level. From these reflect children’s recommendations, it can be concluded that a minimum age of emotional, mental criminal responsibility below the age of 12 years is considered and intellectual by the Committee not to be internationally acceptable. States development parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level. 33. At the same time, the Committee urges States parties not to lower their MACR to the age of 12. A higher MACR, for instance 14 or 16 years of age, contributes to a juvenile justice system which, in accordance with article 40 (3) (b) of CRC [the Convention on the Rights of the Child], deals with children in conflict with the law without resorting to judicial proceedings, providing that the child’s human rights and legal safeguards are fully respected. In this regard, States parties should inform the Committee in their reports in specific detail how children below the MACR set in their laws are treated when they are recognized as having infringed the penal law, or are alleged as or accused of having done so, and what kinds of legal safeguards are in place to ensure that their treatment is as fair and just as that of children at or above MACR.7 In 2008 the Committee recommended that the UK raise its minimum age of criminal responsibility in accordance with the Committee’s General Recommendation No.10, in particular paragraphs 32 and 33 as quoted above.8 In its Concluding observations on the fifth periodic report of the United Kingdom the Committee expressed concern that the minimum age of criminal responsibility remains 8 years in Scotland, but noted the Scottish Government’s willingness to address this and its formation of the advisory group.9 It again recommended that the UK raise the 7 UN Committee on the Rights of the Child, General Comment No. 10 (2007) - Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007 8 UN Committee on the Rights of the Child, Forty-ninth session – Consideration Of Reports Submitted By States Parties Under Article 44 Of The Convention – Concluding Observations: United Kingdom Of Great Britain And Northern Ireland, CRC/C/GBR/CO/4, 20 October 2008, para 78 9 See section 3.2 of this briefing paper 7 Commons Library Briefing, 15 August 2016 minimum age of criminal responsibility ‘in accordance with acceptable international standards’.10 2.2 Children’s Commissioners In their joint submission to the UN Committee on the Rights of the Child in May 2016, the UK Children’s Commissioners called for the UK and devolved governments to raise the minimum age of criminal responsibility ‘as a matter of urgency’.11 The Children’s Commissioner for England In an interview with the Times in March 2010 the Children’s Commissioner Maggie Atkinson called for the age of criminal responsibility to be raised to 12: The age of criminal responsibility in this country is ten – that’s too low, it should certainly be moved up to 12.
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