Does the current setting of the minimum age of criminal responsibility demonstrate a failure to care for the next generation?

In November 2012, the LCCSA added its signature to an open letter addressed to the new justice minister, Jeremy Wright MP, calling on the government to reconsider the minimum age of criminal responsibility in England and Wales. The National Association for Youth Justice had produced a new campaign paper which they believe makes a compelling case for raising the age far beyond the current threshold of ten.

Time for change

It is a subject that is not going to disappear. In 2010, the Children?s Commissioner Dr Maggie Atkinson?s calls for the minimum age of criminal responsibility to be raised were roundly rejected by the Ministry of Justice. And in 2011, it was widely reported that the Liberal Democrats were preparing to go to battle with their coalition partners over the issue ? although they clearly didn?t fight hard enough, as, again, nothing changed.

But just how much longer can it remain the same? The concept of a minimum age is enshrined in article 40 of the United Nations Convention on the Rights of the Child which requires states to identify an age below which children are presumed "not to have the capacity to infringe the penal law?. The Beijing Rules supplement this by stating that the age set should take into consideration "emotional, mental and intellectual maturity?. The United Nations committee on the rights of the child has observed that our current minimum age is at odds with these, and medical research now supports the idea that cognitive functioning is not fully developed until young adulthood. Despite this and the recommendation of the committee that the minimum age is raised to twelve, not only does the minimum age remain as set 50 years ago, it does so without the protection of the doctrine of doli incapax.

European comparisons

It appears that England and Wales are falling far behind their European neighbours in consideration of the welfare of their young people. They have the lowest minimum age of criminal responsibility in the European Union, enabling a child of ten to be prosecuted in a criminal court. Mention should be made here of Scotland, where the minimum age of criminal responsibility is eight but where there is no prosecution of children under the age of twelve so that "offenders? between eight and twelve are dealt with through welfare provisions rather than the criminal justice system.

The interest in safeguarding young people that governs other criminal justice systems is not wholly missing from our society. Reforms of adoption procedures are planned to ensure that more children are able to grow up within a loving family home, unfettered by bizarre bureaucracy; very soon all young people will be required by law to remain in education until they are 18. These are not the policies of an uncaring government but, perversely, it is the same government that is content for children as young as ten to experience the trauma of being arrested and detained at a police station.

Criminalising children

The Howard League for Penal Reform recently published figures showing that ? in 2011 ? 2,117 children under the age of twelve were arrested. This means that their photograph, fingerprints and DNA are on the national database before they have even reached secondary school. Some of these children will have been arrested for behaviour for which today?s adults would simply have been disciplined within a school setting. Dr Layla Skinns? report into the overnight detention of children in police stations provides the worrying statistic that, in 2008-9, of 53,000 children detained overnight in 24 police service areas, 1,674 were under the age of 12.

It is inevitable that some of these arrests will have resulted in convictions. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has amended the Rehabilitation of Offenders Act 1974 so that most convictions become "spent? after a specified period. However, a wide range of occupations require an enhanced CRB check that does not allow for this. Future social workers, police officers, medical staff and lawyers, for example, have to declare any previous convictions, regardless of their age and disposal. It is becoming widespread practice for secondary schools to dissuade young people from enrolling on vocational courses such as health and social care when they know that they have a criminal record so that they are spared disappointment later on. And so a relatively minor indiscretion at primary school can stigmatise a young person for life, preventing them from pursuing an ambition that their ten-year-old selves can?t have foreseen.

Interaction with the police in an educational environment is now commonplace, with schools having their own assigned police officer. A study of police officers in schools published in 2011 identified one of the challenges of this practice as maintaining a balance between the needs of the school and not criminalising pupils. This potential problem was not allayed by the temporary chief of the Association of Chief Police Officers, Jacqui Cheer, who felt obliged to defend the placement of police officers in schools by describing the many benefits as including "identifying and working with potential victims and offenders?.

Irish model

It can only be hoped that the National Association for Youth Justice campaign succeeds where others have failed. If this government needs inspiration for a more welfare orientated juvenile justice system, it does not need to look too far afield. In the Republic of Ireland, the minimum age of criminal responsibility is twelve; children aged ten and eleven can be charged with murder, manslaughter, rape and aggravated criminal

assault but, where a child under fourteen is charged with an offence, proceedings require the consent of the DPP. This is not to say that children can escape the consequences of their misdemeanours altogether. If suspected of committing an offence with which they cannot be charged due to their age, children under the age of twelve are to be taken home to their parents by the garda and may be dealt with by the Health and Safety Executive rather than the criminal justice system. In this model, welfare rather than criminalisation of youth prevails; even if the government cannot be persuaded to follow the recommendations of the NAYJ campaign paper, the example of the Irish Republic could be a suitable compromise.

- Melanie Stooks, TV Edwards LLP

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