The age of criminal responsibility

The age of criminal responsibility 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.

The doli incapax rebuttable presumption that applied in England and Wales and in Northern Ireland – that children aged 10-13 years of age do not know the difference between right and wrong and are thus incapable of committing an offence – was abolished in 1998.

Calls for the age to be increased

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. It urges compliance with the ‘Beijing Rules’ (minimum standards for the administration of juvenile justice) and calls for a minimum age that reflects the emotional, mental and intellectual maturity of children.

Children’s Commissioners

The Children’s Commissioner for England, the Children and Young People’s Commissioner for Scotland and the Northern Ireland Commissioner for Children and Young People are all of the view that the minimum age of criminal responsibility in their respective jurisdictions is too low. Each commissioner has stressed the welfare needs of children who offend. They have drawn attention to recent research on children’s cognitive and emotional development and the damaging impact of early entry into the criminal justice system.

Law Societies

The Law Societies of England and Wales and Scotland both favour reform, viewing minimum ages of 10 and 8 as far too low. The Scottish society has highlighted inconsistencies in Scottish law that could be addressed by raising the minimum age of criminal responsibility to 12 years.

The All Party Parliamentary Groups for Children and Women in the Penal System

The APPG for Children found the low age of criminal responsibility has led to a high level of youth custody (England Wales lock up more children than any other country in the rest of Europe) and a societal, self-reinforcing view of young people as criminals. It characterised problematic behaviour in young people as a welfare issue rather than a criminal justice matter. It called for the debate to move away from issues of right and wrong and to focus instead on the question of what is the right thing to do for troubled children.

The APPG for Women in the Penal System echoed the argument that drawing young people into the penal system at a very early age leads to a higher rate of recidivism. It also emphasised the welfare needs of those who have often endured poverty and suffered domestic violence and abuse.

The Royal Society

Recent research confirmed that brain development impacting on a person’s behaviour continues until at least 20 years of age. As a 10 year old child’s brain is developmentally very immature, the finding gave rise to much concern that the age of criminal responsibility in the UK is unreasonably low.

The Centre for Social Justice

The 2012 report by the Centre for Social Justice drew on the above neuroscientific research. It described the current minimum age of criminal responsibility as somewhat arbitrary given current knowledge of child development. It argued that a higher age would better serve justice and be a more effective means of tackling offending.

The Governments’ position

At Westminster

Both the Coalition and the current Government have resisted calls to increase the minimum age of criminal responsibility. The Government’s position was most recently set out by Lord Faulks at the second reading of Lord Dholakia’s Age of Criminal Responsibility Bill in the House of Lords.

Lord Faulks emphasised the importance of ensuring that children understand that criminal actions are serious. He also argued that the current age of criminal responsibility allows for an important flexibility in dealing with young offenders.

At Holyrood

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.

At Stormont

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.