In its May 2019 report, ‘Torture in the UK: update report’ the Equality and Human Rights Commission (‘EHRC’) has raised again whether the Criminal Justice System in England and Wales is human rights compliant in its treatment of the very young. In particular, the Commission asks whether it is appropriate that the threshold for prosecution is 10. Whilst at first blush it may seem extreme to brand holding those aged 10-14 criminally liable as “torture”, in fact the EHRC report is an updated assessment of the issues it raised in 2016 relating to the UK’s compliance or non-compliance with the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and it is into the cruel and inhuman category that it is said that such prosecutions fall. In view of this timely reminder that the age of criminal responsibility remains very much an unresolved question, this post seeks to consider the arguments for and against a change to the age of criminal responsibility, and also asks whether there are other things that are being, or could be, done to address the underlying concern as to the suggested inhumanity of the very young being subject to the Criminal Justice System.
The present position
Until the 1930s, the age of criminal responsibility in England was 7. Carrying with it now the Dickensian image of very young street urchins, sent out by ruthless Fagins to pick a pocket or two and finding themselves at risk of hanging for the sake of a stolen handkerchief, this very low age limit was tempered by the presumption, doli incapax, that those aged 7-14 would not appreciate that they were doing something seriously wrong unless the prosecution proved otherwise. It was not until the 1960s that the age of criminal responsibility was raised to its present level, and the presumption of doli incapax continued to operate until its abolition by the Crime and Disorder Act 1998 (section 37). In short, therefore, those aged 10 and over can be prosecuted and punished for offences, and are, in bald legal terms, taken to be as capable of understanding the difference of right and wrong as the rest of us (though as we shall see there are a number of important caveats to that bald legal position).
The justification of the present position can, perhaps over simplistically but emblematically, be summarised by reference to the murder of Jamie Bulger. The outcry in 1993 when Jamie, a toddler from Merseyside who was abducted, tortured and killed by two 10-year old boys, continues to provide a clear example for why, it is said, that there is a need for those as young as 10 to be held accountable for their actions. In 2008, for example, a YouGov poll found that just under half of those polled thought something needed to be done about the “increasing” risk children of such a young age posed to society, and in 2010, in response to another poll, only 2 in 5 favoured a change to the age of responsibility. It is likely that the present perception as to the prevalence of knife-carrying young people on the streets will increase the view that a low age of criminal responsibility is needed for public protection. Successive governments have resisted any change to the threshold, with the Government in 2011 insisting that it remained “entirely appropriate to hold [children over the age of 10] to account for their actions if they commit any offence”.
The arguments for change
The arguments for a change to the age of criminal responsibility can be divided into four broad categories: (a) the incompatibility of the UK’s position with international norms, (b) the neurobiological, (c) the psychological and (d) the sociological.
- International norms: In 2007, the UN Committee on the Rights of a Child declared that an age of criminal responsibility of less than 12 years “not to be internationally acceptable”. In keeping with that assessment, it is right to acknowledge that the UK at present has the lowest age of criminal responsibility in Europe, compared, for example, with 12 in the Netherlands, 13 in France, 14 in Italy, Spain, Germany and Russia, and 15 in Norway and Sweden. It also remains one of the lowest in the wider world (though global statistics are skewed by the fact that, for example, there is no age of responsibility at all in 33 states of the USA). It is the contention of the EHRC and others that the UK ought to be brought into line with the rest of Europe, and in keeping with this they point to the position in Scotland, where the Holyrood Assembly sought to raise the age at which a child can be prosecuted from 8 to 12 in March 2018.
- Neurobiological: The Royal Society, in 2011, argued that the present age of criminal responsibility was out of step with what is now known (as opposed was known in the 1960s when the age of set) about how the brains of those aged 10-14 develop and how they make decisions, given that it is now widely recognised that adolescence is a period of significant neurodevelopmental and behavioural change. In its Post Note of June 2018, the Parliamentary Office of Science and Technology analysed the state of research into the neurobiological processes underpinning adolescent behaviour. It is during adolescence that the prefrontal cortex of the brain, which controls decision making, planning, social interaction and inhibition of risk develops. This means that this is the period of a young person’s life when they will move from seeking the approval of their parents to seeking the approval of their peers, and when there is an increase in exploration of risk taking and sensation-seeking, impulsivity and self-orientated behaviour (thinking of their own immediate reward than the effect on others of their actions. In the light of this research, the Parliamentary Office argued that the 10 year age threshold was out of date.
- Psychological: In the same vein, the Parliamentary Office of Science and Technology pointed to research as to the psychological and moral development of young adolescence. In keeping with the rationale that for a long time provided the justification for the presumption of doli incapax, it is argued that criminal responsibility involves more than just a recognition of right and wrong, and requires an understanding of conventional morality, the ability to think logically and to understand and participate in the Criminal Justice System. It is argued that such understanding is in a process of development in the early teens, and to equate a child of that age with someone who has completed that developmental process is an error.
- Sociological: The principal aim of the Criminal Justice System in relation to young people, as set out, for example in section 37, Crime and Disorder Act 1998, is to prevent them from reoffending. The statutory framework in the succeeding provisions of the 1998 Act identify cross-agency mechanisms that seek to divert children away from the justice system. However, given that statistics (for example issued by the Department of Health in 2012) show that half of young people who were arrested were taken to court, it is argued that such diversion requires measures that prevent children from entering the Criminal Justice System in the first place, and the insurmountable barrier of their age is a way to achieve that. In terms of crime prevention, it is further argued, again with statistical support, that criminal recidivism is much higher amongst those who start on the treadmill of crime at an early age, and that again, therefore, the best way to prevent young people starting on a journey into crime that will carry them into adulthood is to keep them off that treadmill entirely for as long as possible. The EHRC, in this regard, points to the fact that in the year ending March 2018, 47 children aged 10 and 229 children aged 11 were either cautioned or convicted in England and Wales – 276 children who, the EHRC argue, should not have been within the criminal justice system at all.
Other ameliorative measures
The EHRC, beyond calling for the raising of the age of criminal responsibility also calls for the development of a welfare-based system that addresses latent criminality through early intervention and therapy, and urges greater judicial supervision of any form of criminal detention of the young. It is worthy of note that none of these steps actually require the raising of the age of criminal responsibility, although the EHRC does also call for a “significant raise” in this regard. But there are other steps that are, and can be taken, that will meet at least to some extent the reasons just rehearsed for such an increase in the age threshold.
- Diversion and special arrangements: As already noted, section 37 and following of the Crime and Disorder Act 1998 identify cross-agency measures to divert children from the Criminal Justice System. The Parliamentary Office of Science and Technology recognised in its 2018 Post Note that such diversion was occurring. There was a drop in the number of children appearing in court between 2011 and 2016 that the Post Note attributed to “changes in police practices and targets to reduce first time entrants into the Criminal Justice System…”. A Ministry of Justice review in 2011 also identified that the police were increasingly using their discretion to divert children to agencies other than the courts, for example diversion to mental health services or to Parenting, Youth Inclusion and Safer Schools programmes. Similarly, the CPS has detailed guidance as to the circumstances in which it is appropriate to prosecute a child, which requires careful consideration of their welfare in doing so. In terms of the courts themselves, the vast majority of children are dealt with in the Youth Courts, which are adapted to make them less intimidating and more compatible with their capacity to engage. Where children appear in other courts, they are (or should be) similarly tailored. Indeed, one of the consequences of the prosecution of the two 10 year olds that killed Jamie Bulger is the guidance deriving from the European Court of Human Rights, in V v UK (2000) 30 EHRR 121, as to the modifications necessary to criminal proceedings to render them compatible with the human rights of very young defendants. These are now reflected in the Criminal Practice Direction (para.3G.7-14), and directly address aspects of the concern raised by the EHRC as to the treatment of the young in the criminal justice system.
- Sentencing: The Sentencing Council guideline for the sentencing on young offenders stresses the importance of not criminalising children where this can be avoided, of taking factors such as age (both in calendar terms and in terms of maturity), vulnerability and welfare issues into account in sentencing, and in treating any form of detention as the last resort. It can properly be argued in this respect and in relation to the statutory regime that governs the possibility and mechanics of any form of detention of the young (for example, section 38, Police and Criminal Evidence Act 1984), go some way to meet the EHRC’s calls for greater judicial involvement in any detention of children. It is also worthy of note that the Department of Education in 2017 found that half of those detained in secure children’s homes had been placed there on welfare grounds under section 25, Children ACT 1989, rather than through the operation of the criminal justice system.
- Fitness to plead and special measures: In SC v UK (2005) 40 EHRR 10, the European Court of Human Rights stressed the importance that a child was able to follow and engage in the criminal process. Applying that in the context of Youth Court proceedings, Scott Baker LJ ruled in R(P) v West London Youth Court  1 All ER 477, that it was essential that a young defendant understand “what he is said to have done wrong”, what defences were open to him, to give instructions, and both to ask and answer questions. He identified a series of modifications to the trial process that the court, in the exercise of its inherent discretion, should adopt to make the trial fair, including a range of special measures which for a non-defendant young person the Youth Justice and Criminal Evidence Act 1999 makes available. Taking it a step further, the proper application of the Pritchard test, namely “whether he is of sufficient intellect to comprehend the course of the proceedings in the trial, so as to make a proper defence”, would mean that in the case of a child who could not be put into such a position of understanding and engagement, the alternative would be that they would not meet the criteria to be found fit to plead. In the context of Crown Court proceedings, this means that there is an existing mechanism through which a child’s capacity can have a direct connection to whether they could be tried. At present, the fitness to plead route is not available in the Youth Court, and the measures identified by the Law Commission in this regard would provide further safeguard for the position of children whose age the present threshold places within the ambit of the Criminal Justice System.
- Doli incapax: As Smith LJ observed in DPP v P  EWHC 946 (Admin) (at para.48), there is a considerable overlap between the consideration of whether a young defendant has “ability to participate effectively in a trial” and “sufficient understanding of right from wrong” for the purposes of fitness to plead now and for the purposes of the presumption of doli incapax as it operated until 1998. He went further and observed that on a strict reading of its terms, section 34, Crime and Disorder Act 1998 abolished the rebuttable presumption of doli incapax, but not the defence of doli incapax, that is the defence that the child did not know that his act was seriously wrong. As Smith LJ made clear, his observations in this regard were strictly obiter, and the complete nature of the abolition of doli incapax has since been made clear in JTB  1 AC 1310, but there remains at least an argument that a defence along these lines would further ameliorate the implications of such young children being prosecuted at all, and further direct focus in the case of an individual not to his or her age alone, but his or her comprehension, maturity, and capacity. At the very least, the youth of a defendant will be an important factor of relevance to the assessment of whether his or her belief was reasonable in the context of, for example, duress or self-defence.