Age of Criminal Responsibility Bill [HL]
(8 years, 9 months ago)
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Lord Dholakia (LD)
My Lords, my Bill is designed to raise this country’s unusually low age of criminal responsibility from 10 to 12. At present in England and Wales, children are deemed to be criminally response from the age of 10. This means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a grave crime—which includes serious violent and sexual crimes but can also include burglary—will be tried in the adult Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the Crown Court.
At 10 years old, the age of criminal responsibility in England, Wales and Northern Ireland is the lowest in Europe. In Ireland in 2006, the age was raised to 12, with exceptions for homicide, rape or aggravated sexual assault. The Minister will be aware from his experience that in Scotland in 2010 legislation provided that children cannot be prosecuted below the age of 12. Outside the British Isles, the age of criminal responsibility is invariably higher. In France, Greece and Poland it is 13. In Germany, Spain, Italy, Austria, Belgium, Hungary, Bulgaria and Romania it is 14. In the rest of Europe, it ranges between 14 and 18.
The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligations under international standards on juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997, the committee said:
“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level”.
Taking 10 and 11 year-olds out of the criminal justice system would not mean doing nothing with children who offend. It would mean doing what other countries do with 10 and 11 year-old offenders. It would mean doing what we do with delinquent nine year-olds—in other words, it would mean dealing with the causes of these children’s offending through intervention by children’s services teams. In the minority of cases where court proceedings are necessary, it would mean bringing children before family proceedings courts, which can impose compulsory measures of supervision and care. In the most serious cases, it could mean long-term detention in secure accommodation, but this would be arranged as part of care proceedings rather than as a custodial punishment imposed in criminal proceedings.
Those who oppose increasing the age of criminal responsibility often argue that children of 10 and 11 are capable of telling right from wrong, as though it automatically follows that they should therefore be dealt with in criminal courts. That does not logically follow at all. Most six year-olds have a sense of right and wrong but no one suggests that they should be subject to criminal prosecution. The point was made very well in 2012 in a report from the Centre for Social Justice, which was set up by the Secretary of State for Work and Pensions, Iain Duncan Smith. In 2012 the centre produced a report on the youth justice system entitled Rules of Engagement: Changing the Heart of Youth Justice. It said:
“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process and this raises the question of whether the current”,
minimum age of criminal responsibility,
“at 10 is appropriate”.
The evidence from international research is overwhelming, showing that children of 10 and 11 have less ability to think through the consequences of their actions, empathise with other people’s feelings and control impulsive behaviour. This does not mean that children aged 10 or 11 are not responsible for their actions, but that on any reasonable interpretation of the evidence they must be regarded as less responsible than an older adolescent or an adult. It cannot be right to deal with such young children in a criminal process based on ideas of culpability that assume a capacity for mature, adult-like decision-making.
In all other areas of law, whether it is the age for buying a pet, the age for paid employment, the age of consent to sexual activity or the age of smoking and drinking, children are not regarded as fully competent to take informed decisions until later in adolescence. The age of criminal responsibility is an anomalous exception. Ironically, a 30 year-old who had a mental age of a 10 year-old child would probably be regarded as unfit to plead and yet, by a strange twist of logic, a child of 10 is seen as capable of participating in the criminal justice process. I simply cannot accept that.
It is sometimes argued that there is no need to raise the age of criminal responsibility because the number of 10 and 11 year-olds who receive a youth justice disposal is small. “Small” is not necessarily the right argument. We are talking about normally fewer than 300 a year who are prosecuted and sentenced in court. Even though this represents a small proportion of those going through the criminal justice system, what happens to up to 300 vulnerable children can hardly be regarded as a matter of little importance. The fact that the numbers involved are relatively small is a strong argument for the Bill; it means that it would not be a huge burden in terms of resources to make alternative provision through welfare interventions and, where necessary, family court proceedings for the children who would otherwise have been charged and prosecuted.
Nor can it be argued that dealing with these children through non-criminal processes would put the public at risk. On the contrary, dealing with 10 and 11 year-old children through non-criminal procedures would be more effective than using the criminal justice process. The evidence shows that children who are dealt with through the criminal justice process are more likely to reoffend than those who are diverted from the criminal justice system and dealt with in other ways. Children who are officially labelled as offenders often react by trying to live up to the label and acting in increasingly delinquent ways to achieve status in front of their friends. Again I quote the Centre for Social Justice report, which says that,
“raising the minimum age of criminal responsibility would achieve important changes. Young children would not be tarred with the stigmatising ‘offender’ label which the evidence shows can exacerbate delinquency and would more likely have their victim status and welfare needs addressed, which the evidence suggests are currently often neglected”.
This is a particularly important point, as children who go through the criminal justice process at a young age are often young people from chaotic, dysfunctional and traumatic backgrounds involving a combination of poor parenting, physical or sexual abuse, conflict within families, substance abuse or mental health problems. The prospects for diverting the child from offending will be far better if these problems are tackled through welfare interventions than by imposing punishments in a criminal court. A welfare approach would avoid unnecessarily giving children a criminal record, which can make it harder for them to gain employment when they reach working age. As unemployment increases the chances of reoffending, this is another way in which criminalising children can increase rather than reduce the likelihood of future crime.
Of the 10 and 11 year-olds who are charged and prosecuted each year, very few receive a custodial sentence, and in some years none do. However, although the number of serious child offenders is small, the public will of course want to be assured that raising the age of criminal responsibility will not increase the risk from these young people.
Some people who generally support raising the age of criminal responsibility argue that an exception should be made for the most extreme cases, such as homicide or serious sexual offences. I am willing to consider this point in Committee but my inclination at this stage is to resist making exceptions. The most serious child offenders invariably have the most complex welfare needs. Their backgrounds include experiences of serious physical abuse, sexual abuse, emotional abuse and neglect, parental mental illness, rejection and abandonment by adults, traumatic loss, conduct disorder and serious emotional disturbance. They need a welfare-based approach, in secure care if necessary, to help them to face their unresolved trauma, to develop and mature emotionally, to reach an appropriate sense of guilt and to learn to control their emotional and aggressive impulses.
Noble Lords will recall the trial of the boys who killed James Bulger, who were aged 10 at the time of the killing and 11 when they were tried. Most foreign commentators were amazed that children of that age should be dealt with by a trial in an adult Crown Court. They questioned whether such young children could really understand the complexities of a lengthy criminal prosecution and trial, whether they should have appeared in the full glare of media coverage, whether they understood all the issues and language of the trial, whether they could give sensible instructions to their lawyers and whether their decision not to give evidence was simply because they were frightened of speaking in such a setting.
Exposing such young children to a criminal trial is no way to achieve justice. Moreover, the case took nine months to come to trial, during which time the defendants received no treatment or therapeutic help in case it prejudiced their pleas. That is a completely unacceptable way to deal with young defendants and one which would be unthinkable anywhere else in Europe. It should be equally unthinkable here. The two boys should have been dealt with in family proceedings and detained in secure accommodation, without all the ill effects which resulted from a public Crown Court trial.
I commend the Bill to the House. The simple proposition that it contains, if enacted, would be an important step towards dealing with vulnerable, difficult and disturbed children in a way that befitted our civilised society. I beg to move.
The Earl of Listowel (CB)
My Lords, I support the noble Lord in his call for a Second Reading of this important Bill and I wholly endorse and support every word that he has said. I hope particularly that what he said about the pitiable experience of 10, 11 and 12 year-old children going through a criminal court process—he mentioned a court process of nine months—will speak particularly to the Minister’s experience.
As vice-chair of the all-party group on children and young people in care and leaving care, I know only too well the background of many of these young people. Of course, 45% of children—55% of girls—in the criminal justice system have had an experience of foster care or children’s homes, so in my experience the noble Lord’s assessment is absolutely right.
I thank the Government for the efforts they have made to reduce the numbers of children in the criminal justice system over recent years. The Government have reduced it to one-third of what it last stood at, so from 3,000 to about 1,000. That is helpful in this area because it has reduced down to 300 the number of children we are talking about today.
That need not necessarily continue. Listening to the scientific evidence, many of us might assume that in the course of time, this will come about—we will have the same age of criminal responsibility as civilised countries have. However, this cannot be taken for granted and we need to act urgently on this matter. It takes only one ambitious unscrupulous politician to come along and say, “Look, we must be tough on crime and on the causes of crime”. We saw that in the past— I certainly saw in this House what happened then. We saw the numbers of children being criminalised shoot up and more and more children incarcerated because of a policy which is wholly counterproductive and which all the evidence speaks against. However, there is always that risk that an unscrupulous politician will choose to make political capital out of these young people.
I am very pleased to see the noble Baroness, Lady Massey of Darwen, in her place and to see that she will speak later. Of course she has for many years chaired the All-Party Group on Children and chaired our children and the police inquiry. I have no doubt that she will refer to our finding and recommendation that the age of criminal responsibility should be raised to at least 12 years of age.
Many of us will be sending a cheque to the taxman today or this week. I am very happy to pay for state services—I know how important they are. However, I rue sending a single penny that is not spent effectively. To incarcerate 10, 11 and 12 year-olds is an ineffective, wasteful use of public money. I think that the Government will particularly understand that. At a time when we are seeking to pay down the deficit and the Government are making very tough decisions, we cannot afford to indulge in policy which is counterproductive and wasteful for the public purse. No hard-working taxpayer wants to pay money to sustain legislation which is clearly counterproductive, and all the professional evidence points to that.
I recently had the opportunity to speak to parents who lost their children as victims of violence. Last year, I communicated with a number of parents whose children had, very sadly, taken their own lives, having been incarcerated in police cells. I spoke to one mother whose very troubled daughter had ended up in a police cell over the weekend. She had been very distressed and took her life shortly afterwards. Thanks to the work of those parents, the work of Just for Kids Law, which represented them, and the hard work of the Minister, we managed to change the PACE Act, and now it is not permitted for such children to be incarcerated.
My sense from talking to those parents was that they were not out to punish the state for what had happened—they were not pursuing it for criminal negligence—but they wanted to see that no other mother experienced the loss of a child as a result of incarceration. Generally crimes committed by children are physical crimes against other children. In that situation, many parents would want to be assured that the state was doing all it could to prevent such things happening again. That would be a primary consideration for them. We know that if we bring children into the criminal justice system, a third of them will reoffend within a year, and they receive, as it were, a schooling in crime by going through various institutions. As adults, they may well have a criminal record and it will then become harder for them to get a job. They are labelled as criminals and they may be confirmed in a career of crime. They may well go on to have children, who may follow in their footsteps.
If one says to a parent whose child has been harmed by another child or who has lost a child through violence from another child, “We are going to try our best to stop this happening to another child”, then the right, and effective, approach is a welfare one, with all the protections and the secure accommodation that the noble Lord referred to, rather than the wasteful, ineffective approach that we currently take.
I hope that institutions such as Mumsnet and the Mothers’ Union will look at this debate and seek to take up with the Government concerns about the welfare of these children and about protecting children from each other. Often, we are talking about very troubled children and we need to do something about them, but simply maintaining the status quo fails to protect our children in the most effective way. It is time to act. It would be the right thing to do to pass the noble Lord’s Bill. It would be the right thing for our children and for our hard-working taxpayers. None of us wants our tax to be wasted in the way that it currently is.
There is always the risk that we will go backwards. Towards the end of his career in the House, Lord Onslow learnt how many children we were incarcerating in this country, and I remember how passionately he advocated reducing the numbers. We could go back to increasing the number of children in that situation. Therefore, I ask the Minister—he may prefer to write to me—how much the youth justice system costs and how much would be saved if we raised the age of criminal responsibility to 14. That age is much more the norm in civilised countries, and I hope that this Bill will be a step towards that. If he could do some modelling, looking at the longer-term impact of a reduction in the number of children having a career of crime and coming back into the criminal justice system again and again, that, too, would be helpful.
Finally, I commend the noble Lord for his perseverance and for bringing this issue back again and again. It is, ultimately, a question of children’s rights. Here we are, in this country, punishing the very children who often we as a nation most let down. The noble Lord is absolutely right to keep persevering, and I am very glad that he has brought this to the House.
Lord McNally (LD)
My Lords, it is always an enormous pleasure to listen to and follow the noble Earl, Lord Listowel, on any subject linked to the welfare of the child, not simply because he keeps a close interest in these matters but because, when he speaks to the House, he speaks from direct experience of talking to children and those who work with children, who give us a message of the reality at the sharp end of this. We are always in his debt for these contributions. Likewise, as I have put on record before, I am grateful to my mentor, my noble friend Lord Dholakia—I was going to say “old mentor”, but he gets sensitive about the term “old”—who, over 20 years or so, has been a constant prod to me on reforming the criminal justice system.
As is on the register, I am the chairman of the Youth Justice Board, but I am not speaking today in that capacity.
Another thanks must go to the noble Earl, Lord Listowel, because what he said feeds into what I want to say, on his proposal to move the age of criminal responsibility into a wider context. If we are going to have a rational debate about that, we have got to put it in a wider context.
It is interesting that when we had the debate earlier today about drink-driving, the Minister was urged to look at Scotland as an example. Next month, the Scottish Government will receive the report of an advisory panel on raising the age of criminal responsibility in Scotland. That is something that Ministers, and all in this House who are interested in the matter, will be very keen to read. The Scots have gone for a slightly hybrid model so far; they have kept the age of criminal responsibility at eight, but no child can be brought before a court until the age of 12. The advisory panel has been looking at that and the suspicion is that it will advise a common age for both, but we will have to wait and see.
As my noble friend Lord Dholakia indicated, the long shadow of James Bulger’s murder on 12 February 1993 lies across any debate about the age of criminal responsibility. When I was appointed chair of the Youth Justice Board 18 months ago, I was interviewed by the magazine Children & Young People Now about how I saw the job, and I was asked what I thought about the age of criminal responsibility. I said that I was aware that the Scots were looking into the matter and thinking of raising it to 12 and that we could do likewise. The next day, a national newspaper rang James Bulger’s mother to ask her what she thought about changing the law so that James’s killers would have “got away with it”. It was a monstrous crime, but I think it intimidates proper debate about the age of criminal responsibility. The two boys who killed James would not have got away with it. However, the full trial, which began in Preston Crown Court on 1 November 1993, would not have been conducted as an adult trial, as it was, with the accused in the dock away from their parents and the judge and court officials in legal regalia.
I am well aware that since that time changes have been made to make trials involving young persons more child friendly. However, I spoke to a senior judge who visited Preston Crown Court recently and he told me that it had not changed in appearance since 1993. It remains virtually unchanged and, as he said, it is almost unbelievable that two 10 year-olds should face trial in such a place and in such a way. I know that it is Mrs Bulger who has received the life sentence, and I do not sympathise with the perpetrators at her expense, but much has happened in the past 20 years which has increased our understanding of crimes committed by children and our responses to it, as the noble Earl, Lord Listowel, so eloquently explained.
The Youth Justice Board was set up in 2000 following the Crime and Disorder Act 1998, which in itself followed the ground-breaking report of 1996, Misspent Youth, to address the specific challenges of offending by under-18s—children in the eyes of our law. The clear statutory aim of the YJB was to prevent offending by young people. For that reason, the continuing fall in the number of children entering into the justice system—statistics yesterday show another 9% fall last year—and the secure estate, which, as the noble Earl, Lord Listowel, said, is now down to about 1,000, only 50 of them girls, all points to the right direction of travel under successive Governments.
These outcomes are not the result of the work of the Youth Justice Board alone but the work of many hands. It is still work in progress, and the noble Earl, Lord Listowel, referred to the very high reoffending rate of those who have been in the secure estate. Progress certainly owes much to the work of the holistic, locally-based, cross-disciplinary approach of the youth offending teams, which the Youth Justice Board established. It also owes much to the police “buy in” at national and local level of programmes and protocols aimed at diverting young people from crime and the criminal justice system. The liaison and diversion services championed by the noble Lord, Lord Bradley, in his ground-breaking report mean that mental health needs are detected and dealt with sooner.
The Magistrates’ Association has shown vigour in looking at how best youth courts can adapt, and Mr Gove has recently expressed his interest in problem-solving courts. The Government’s Troubled Families initiative moves action upstream to tackle the multifaceted dysfunctionalities which are often the precursor of criminal behaviour, again as the noble Earl, Lord Listowel, explained.
Work by the Disabilities Trust Foundation at the Keppel unit at YOI Wetherby has shown the benefit of identifying and treating brain injury among young offenders. Research by University College London, among others, has shown that the brain evolves and matures over a long period after the age of 10. That is why, as we have heard, most European countries have ages of criminal responsibility higher than ours. Most continental jurisdictions espouse a welfare approach to offences by the young. Over the past 20 years, a lot of the undercurrent of the approach to youth justice in England and Wales has been, as I have illustrated, to use welfare rather than criminal sanctions in dealing with young offenders. I was pleased that during my time in government the Transforming Youth Custody initiative was taken forward to double to 30 the number of hours of education. It is significant that Mr Gove has asked an educationalist, Mr Charlie Taylor, to conduct an inquiry for him into youth justice services. I put on record my appreciation for the thorough and comprehensive way in which Mr Taylor has carried out his inquiry. I have already discovered that youth justice is a field well populated with strong opinions, but I do not think anyone will be able to say that they have not been able to bend his ear by the time his report is published.
On the eve of this debate, I came across a report by Dr Di Hart, working through a Churchill Fellowship award and supported by the Prison Reform Trust, entitled Correction or Care? The Use of Custody for Children in Trouble. I intend to invite Dr Hart to the House to present her report more fully. I shall briefly run through her recommendations, because they tie into the wider debate on welfare or punishment in our criminal justice system, which I think Mr Gove is ideally positioned to undertake because of the confidence that he has won in all areas. The recommendations in the report include:
“Reconsider the separation of justice, welfare (and psychiatric?) placement models … Develop a shared understanding of the best model for meeting children’s needs … Regional commissioning … Pilot a new model of residential care”—
something that I think has a certain urgency to it—
“Develop a shared data set to measure experiences and outcomes … Establish an expert panel to advise on good practice … Maintain the involvement of sentencers in tracking children’s progress”,
which is something that I know the Magistrates’ Association is interested in taking forward.
This debate is taking place in that wider context. I think that we are moving towards a system of looking after young people and children, in particular the very young, from the age of 10 upwards, in a more welfare-based way, precisely because of the point made by the noble Earl, Lord Listowel. The present system does not work; reoffending is far too high, and it is expensive. Even the most hardened “lock ’em up and throw away the key” people have to concede that we are wasting public money. A new, broader look at the context of this may achieve a national consensus, but we need to do it in a rational manner in the light of research, of experiences in other countries, of advances in medical and other scientific understanding, and of other changes recommended when the Taylor report is produced. This Bill is before us at an opportune moment, and I commend it to the House.
Lord Cormack (Con)
My Lords, I am glad to add my support and congratulations to the noble Lord, Lord Dholakia, on his persistence and for the calm and moderate way in which he has introduced the Bill, and for recognising in his speech that amendments might have to be made. My own inclinations march with his; nevertheless, these issues will have to be examined in detail in Committee. But the broad thrust of his argument is one with which I can closely identify myself.
We had a debate in your Lordships’ House last Thursday, introduced by my noble friend Lord Fowler, on the subject of prison reform. It was a good debate and a number of us who are here today took part in it. I think there was universal admiration for the way my noble friend introduced it and for the proposals he made. Another theme ran through the debate, which I would categorise as a collective sigh of relief at the change of direction of the Ministry of Justice since the present Secretary of State took over. He has already shown himself to be a sensible and sensitive man, and indeed we have had further evidence of that this very day in the Statement made by my noble friend on the Front Bench just before this debate started. So I hope that we are to some degree pushing at an open door. Although I do not expect, because I am fairly case hardened, my noble friend on the Front Bench to get up and metaphorically embrace the noble Lord, Lord Dholakia, I hope he will be able to give us some indication that the powerful points made in the noble Lord’s speech will be reflected upon.
I do not think anyone is saying that young children who commit wicked acts—and some do—should not be adequately dealt with, which of course involves a degree of punishment. The punishment is separating those young people from the environment which has perhaps inculcated, or certainly increased, that wickedness. No one is suggesting that it would be sensible to have sent the killers of James Bulger immediately back into the community. That would be utterly absurd. But was the paraphernalia of a full trial wise? I think not. What is important is that young people who do wicked things should be adequately dealt with. I agree with the advance to the age of 12. It is important to note that, if they are under the age of 12, putting them into the criminal justice system is not very sensible or even cost-effective.
One of the points that came up time and again in last week’s debate was reoffending. I have personal experience because I had a young offenders’ institution, Brinsford in South Staffordshire, in my constituency. If we had suffered from the same sort of background and lack of upbringing that many of the young men in that institution had had, we might have gone the same way. When once they become institutionalised, those young people tend to reoffend again and again. The noble Lord, Lord McNally, is nodding. How glad I am that he has his present role, because he understands these things. If young people under the age of 12 commit crimes, the whole thrust and emphasis of their treatment —I used that word advisedly—should be to try to ensure that they do not offend again.
Several times in last week’s debate, the famous remarks of Churchill when he was Home Secretary were quoted. He said that within every person there is some spark of goodness. You judge a civilised society by the way in which it treats offenders. The punishment is being sent to prison. The whole purpose of prison is to rehabilitate. Children should be sent somewhere where they can be nurtured as well as rehabilitated. Many who commit these dreadful crimes have no home to speak of. It is not being soft to say that one supports the proposition of the noble Lord, Lord Dholakia. One is being realistic. One is recognising that the age of criminal responsibility, which is determined by the state, must be determined with real regard for what children under the age of 12 can properly be able to answer for.
In a sense, I am thinking aloud in making these points. As one who has children and grandchildren, spent 10 years as a schoolmaster and 40 years as a Member of the other place, and over 30 years with prisons in my constituency, I really believe that Churchill was right when he said that in almost everybody there is a spark of goodness. If a child goes astray, the whole emphasis must be on trying to ensure that that child does not grow up into a hardened criminal. As I see it, that is at the root of the Bill of the noble Lord, Lord Dholakia, and his crusade—it has become that, as he has come back to this issue again and again.
I hope that when my noble friend—he is a man of real sensitivity and understanding—answers the debate, he will say that he will discuss the matter with the Justice Secretary. I hope he will indicate that he understands what exercises those of us who believe that the age has been set far too low. I slightly dissent from the noble Earl, Lord Listowel, for whom I have great admiration. In a throwaway line, he referred to other countries as being civilised without suggesting this one is. We are a civilised country and we are all proud to live in it, but every civilised country can make itself better and more civilised. This would be a small step in that direction.
Lord Parekh (Lab)
My Lords, I express my deepest gratitude to the noble Lord, Lord Dholakia, for introducing the Bill, and, more generally, for his persistent advocacy of the cause that informs it. I am also delighted to be following four noble Lords who have done splendid work in this area, and whose contributions I recognise.
Naturally, in a debate that has gone on for some years, many of the arguments made today have been made before. Therefore, it is difficult to find entirely new arguments. Naturally, I will repeat some of the arguments that have already been made, but also perhaps add one or two that I think are new and go to answer the point that the Government have made over the years as to why they will not accept the idea of raising the age of criminal responsibility.
The current age of 10 is unacceptable for at least four important reasons. First, it is far below the international norm. The United Nations Convention on the Rights of the Child recommends the age of 12. If one looks at other countries in a similar position to us, the situation is quite striking. The age of criminal responsibility is 12 in Canada and the Netherlands; 13 in France; 14 in Germany, Austria, Italy and Russia; 15 in Scandinavian countries; and 16 in Belgium, Luxembourg and Portugal. A striking exception, which makes the point, is the United States, where the age of criminal responsibility is six—but then the United States has never been a good model for criminal justice. I do not think that that is the country we would wish to emulate, in this respect at least.
The other important point is that those countries whose cases I have cited have been perfectly happy. Many of them settled on an age of criminal responsibility several years ago and have seen no reason to alter it or to bring it down. If they can live with the age that they have decided, there is no reason why we cannot.
The second reason for increasing the age of criminal responsibility has to do with the larger, cultural question. The age of responsibility reflects society’s attitude to its young people. Those taking a dim view of young people—almost a Calvinist view in which children are supposed to be little devils who must be tamed by force, which dominated the Victorian period—generally tend to go for a younger age of criminal responsibility. Sadly, this is true of our own country. We imprison four times more people than Portugal, 25 times more people than France and 100 times more people than Finland. Raising the age of criminal responsibility raises society’s respect for its young people and is a profoundly significant cultural factor. Rather than rush to lock up a child, society’s gaze is now fixed—should be fixed—on what can be done to prevent a child behaving in this way. That is an important, constructive point to consider rather than simply punishing a child who has behaved in a certain way.
The third reason that I wish strongly to increase the age of criminal responsibility is in response to the Government’s continual argument over the years that children of 10, or even younger, are able to differentiate between bad behaviour and serious wrongdoing, and, therefore, that if they are able to do that, they should be held responsible. I am afraid that I do not see the logic of that argument because responsibility does not have much to do with whether one is able to make a distinction or not; it has to do with a sense of agency and whether one is able to act on that distinction. One may be able to think of a child who is able to make a distinction between bad behaviour and serious wrongdoing. But the question is whether the child has been brought up in a certain way, is able to control his temperament and exercise self-restraint, is able to think through the enormity of what he is about to do and empathise with the person upon whom he is about to inflict punishment. If a child cannot do those things, he will be unable to act on the distinction that we talked about earlier. The child knows what serious wrongdoing is but cannot avoid it for the reasons that I have just mentioned. In that kind of situation, the response should be to intervene with children’s services teams and, where necessary, by family court proceedings. Criminalising such a child would mean a permanent stigma; it would mark him out for ever and offer little hope of reform or reintegration.
My fourth and final argument has to do with the point made by the noble Earl, Lord Listowel, which was repeated by the noble Lord, Lord Cormack, and others: namely, the sheer cost of this. Although the number is small—about 100 10 year-olds and about 400 11 year-olds have been criminalised—the question is: how much does it cost to keep people in prison, especially when one considers the question of reoffending? At that point one needs to ask: how much will this cost and what are the results of doing this? I therefore strongly suggest that common sense and economic cost analysis, as well as basic moral principles—plus, of course, our standing in the community of civilised nations—require that we increase the age of criminal responsibility from 10 to whatever we consider proper, but certainly no less than 12.
Lord Maclennan of Rogart (LD)
My Lords, the country should be very grateful to my noble friend Lord Dholakia for pursuing this question of the minimum age of criminal responsibility. I agree with the noble Lord, Lord Cormack, that this is a civilised country, but we are exceptional in our treatment of young people in respect of their criminal propensities. The circumstances in other European countries that have raised the minimum age of criminal responsibility are not necessarily different from ours. Belgium, Luxembourg, Lithuania and other countries have decided that the minimum age should be much higher than it is in this country.
We are also offending against the recommendation in the UN Convention on the Rights of the Child in making it clear that we are not prepared to accept raising the minimum age to 12, which has been supported by most countries.
The debate so far has been extremely effective. My noble friend Lord McNally, who is in charge of youth justice, made a very powerful speech. He spoke for himself and I hope he will be listened to by the Government. The noble Lord, Lord Faulks, who is answering the debate, has had his ear bent by the noble Lord, Lord Cormack, who suggested that he should be talking with our new and rather enlightened Secretary of State, who has made some significant changes in the nature of the laws we advocate in this country. I was a great admirer of Lord Bingham—Tom Bingham—who was a year ahead of me at college. His book, The Rule of Law, is one of the most heavyweight arguments about what we ought to be thinking about in this country. On equality, he said:
“Most British people today would, I think, rightly regard equality before the law as a cornerstone of our society … But we would also accept that some categories of people should be treated differently because their position is in some important respect different. Children are the most obvious example. Children are, by definition, less mature than a normal adult, and should not therefore be treated as a normal adult would expect to be treated. Thus they are not liable to be prosecuted for crime below a certain age (in Britain it is conclusively presumed that no child under the age of ten can be guilty of any offence, a younger age than in most comparable European countries); if convicted of crime, they should not be punished as a normal adult would be punished”.
That is a very wise statement.
The noble Earl, Lord Listowel, expressed in powerful terms how young people should be treated; how, if they are guilty of offences, they should not necessarily be dragged before a court and how doing so might make them reoffenders. That is too common in this country and we need to root it out. The whole purpose of our response to offences should be to root out the propensity to reoffend and to inspire people to live lives in concordance with the law.
My noble friend Lord Dholakia is introducing this measure at a very suitable time and I hope it will be recognised that the movement to raise the minimum age of criminal responsibility should not necessarily stop at 12 but should go beyond. As the UN has stated that 12 is internationally acceptable, that would be a very good move in the right direction but let us not end the argument there.
The Lord Bishop of Chelmsford
My Lords, in rising to support the noble Lord, Lord Dholakia—and, indeed, pledging the support of the church to this campaign—I need to declare an interest: I was a child once and got into some scrapes. Now I am a parent and in the work I do hardly a week goes by when I am not in schools. Indeed, last year I had the sad but very moving honour of opening a garden of remembrance in the diocese where I serve in east London for young people who were the victims of, indeed had been killed by, knife crime. So I do not underestimate the seriousness of the crimes that we are talking about, nor the fact that children and young people do commit them.
It is often said nowadays that children grow up too quickly. I wonder if we have rather short memories. Although there are invidious and unspeakable pressures on children today, it was only a century or so ago that many of our children—who are now safely tucked up in our primary schools—were going out to work in pretty difficult and challenging conditions. Until 1875, a 12 year-old could have sex legally in this country. It was changed that year to 13. Since then, over the past 150 years, a succession of laws and protocols have recognised that with regard to all sorts of things, from smoking cigarettes to going to the cinema to watching certain sorts of films to sexual intercourse itself, we grow and develop gradually.
The decision about when someone is an adult is best made looking back from a point where there can be certainty or at least widespread agreement that at this age—it varies for different activities; it is often 16, sometimes 18—this person really has developed and is able to take responsibility for who they are and what they do. So why, in the case of criminal responsibility, do we make the decision speculatively, hoping that it might be the case that because there is some general growing sense of what is right and wrong, that person so knows what they are doing that they can be held culpable for their actions as if an adult and in a court of law?
But a child of 10 is just that—a child—not yet at that point where there could be such widespread agreement about their ability to know the consequences of their actions, nor developed morally or socially, so that we could be sure that they know what is right. That is why the law does not let them buy cigarettes or watch certain films or go to bed with each other. Therefore, when crimes are committed—for they are still crimes even if the child is no longer labelled a criminal—to deal with them in a court of law not only contradicts every other measure we have made, not only offends against common sense, not to mention the day-to-day experience most of us have as parents and grandparents, but it makes—and perhaps this is the biggest reason for supporting the noble Lord, Lord Dholakia—any possibility of rehabilitation or amendment of life that much harder. Of course, we agree with the noble Lord, Lord Cormack, that this is a civilised society, but this legislation diminishes us. As has already been referred to more than once, the United Nations Committee on the Rights of the Child has called on the United Kingdom to raise the age of criminal consent. Quite simply, we should heed that call.
My right reverend friend the Bishop of Derby made this point well in a previous debate on this matter: there are interconnected social and familial roots which combine to make us who we are. Here, the consistent teaching of the church is at odds with a society that by defining everyone as individual misses the deeper, interdependent influences and relationships that form our personhood. As my right reverend friend said:
“Human beings are formed through relationships”.
Crime tends to happen, he said,
“when relationships go wrong or are handled destructively”.
Do not therefore curse the fruit if the soil in which the tree is planted is poisoned and unkempt. To jump to calling a 10 year-old a criminal may play well to the gallery of a certain sort of public opinion that too quickly craves a scapegoat and an easy answer, but misses what my right reverend friend then called,
“the science of social formation”.—[Official Report, 8/11/13; col. 483.]
That science is about where someone is made a person, particularly in the family but also in schools, churches and other faith groups and community groups.
Where this breaks down, criminal behaviour is of course not inevitable; but where crime occurs in those so young, these influences—or the lack of them—must be taken into account. Furthermore, as has been mentioned, neurological and other scientific advances illustrate that maturity in young people, especially boys, is slower than we may have thought. The male brain carries on developing until the age of about 25. Many of us wish that it would carry on for a bit longer still. To brand a 10 year-old as a criminal therefore fails to understand who that person is and who they are becoming, and our collective responsibility for that. It also risks excluding the possibilities of finding better ways to work with them to ensure that such crimes are never committed again, not just by that person but in the whole of our society. So to my mind even a move to 12, which I wholeheartedly support, is just a step in the right direction. As in France, where the age is 13, Italy, where it is 14, Denmark, where it is 15, and Spain, where it is 16, there are other steps which I believe we should take.
Jesus famously said of those who nailed him to the cross:
“Father forgive them, they don’t know what they’re doing”.
He was speaking to adults. How much more should those words apply to children? We can still abhor the crime. We can still, where necessary, impose compulsory measures of supervision and care, and in rare and extreme cases—like that of Jamie Bulger’s killers, which has been mentioned—we could still impose long-term detention in secure accommodation. But that would be part of a care and welfare proceeding, rather than a custodial punishment imposed in a criminal court. In other words, our starting point and our hope would be that as this child develops, because they are children and are still developing, they would come to a point where they would truly know what they had done and truly be enabled to live a different life.
Forgiveness is never just wiping the slate clean, as if a human being were simply a vessel to be emptied or, for that matter, something to be discarded or excluded—nor does forgiveness fail to take crime seriously. Instead, by holding and nurturing someone within a new set of relationships, it means believing that the future can be different. It is for that different future for children who offend that I support the Bill and hope that it is taken forward.
Baroness Massey of Darwen (Lab)
My Lords, I very much admire the noble Lord, Lord Dholakia, for his persistence with this Bill, which I support strongly. It has been very refreshing to hear, from all sides of the House, support for the Bill and sympathy for the approach of looking at children as children who need welfare, common sense and reason rather than just punishment. I welcome the very powerful speeches.
When distinguished organisations such as the Youth Justice Board, the Children’s Rights Alliance for England, the Prison Reform Trust, the Centre for Social Justice, the Howard League and others say that it is time for reform in this direction, we ought to listen. Children are not naturally psychopaths or criminals—they are children first. The noble Lord, Lord Cormack, pointed out very movingly that much happens in children’s lives which needs to be counteracted. Let us not blame the children and rush to prosecution, but remember that the welfare of the child is paramount, as the Convention on the Rights of the Child states. The noble Earl, Lord Listowel, mentioned the All-Party Parliamentary Group for Children, which I chaired, and I remember that we had discussions on the age of criminal responsibility as part of two of our inquiries. Those principles have not changed.
Let us look at the level of youth custody in England and Wales. We lock up more children than any other country in Europe. The earlier a child is drawn into the system, the greater the chance that they will reoffend. A low age of criminal responsibility indicates a society that views young people as criminals, and this has become self-reinforcing. The issue of problematic behaviour is a welfare and educational issue, not a criminal justice issue. Other countries look for alternatives to prosecution. In France there is educational intervention, and proceedings do not take place if it succeeds. In Italy, pre-trial supervision is used and, where it is successful, prosecution does not ensue.
When a young person is involved in criminal activities, we should be asking how and why the young person has fallen through the net—not criminalising them. I believe that our duty as a society is to safeguard and promote children in need, with a clear focus on the best interests of the child. The criminal justice system is not the starting point for this.
The noble Lord, Lord Ahmad, for whom I have enormous respect, stated in the 2013-14 Session, in responding to the noble Lord, Lord Dholakia, on an identical Bill, that the Government had no plans to raise the age of criminal responsibility. He supported this by saying that the Government believe that children aged 10 were,
“able to differentiate between bad behaviour and serious wrongdoing and should therefore be held accountable for their actions”.—[Official Report, 8/11/13; col. 487.]
I do hope we have moved on from that stance.
We have heard the phrase “tough on crime”. That slogan should be tempered by common sense. Locking up young people is tough not only on young people but on the police, on the court system and on parents. Money is being spent on dealing with young children in ways that are not only counterproductive but expensive.
A 10 year-old, under our current system, could be tried in a Crown Court and may be given a custodial sentence equivalent to that available in the case of an adult. Similarly, a child of that age who is co-accused with an adult will be subject to trial in an adult venue. As other noble Lords have said, these arrangements have been criticised by the United Nations Committee on the Rights of the Child, which says that our rules are not compatible with our obligations under international standards of juvenile justice.
The situation is described by the Youth Justice Board as “illogical” and “damaging”. I really cannot accept the argument that children of 10 can necessarily distinguish between bad behaviour and serious wrongdoing. Criminalising a young person will not automatically ensure that they think about their behaviour. In fact, criminalisation may lead to worse behaviour, rather than an improvement, as others have said.
A later age of responsibility can improve the lives of thousands of children and also prevent thousands of children ending up in the youth justice system. It should be noted that one-third of all children who enter the youth justice system reoffend within 12 months. What is the cost of all this not only in human lives but in money? I do not know. Maybe the Minister does.
The Children’s Rights Alliance for England argues for an approach to youth justice in which under-18s in conflict with the law are dealt with under a system that is completely separate and distinct from that for adults: an approach which is child-centred, complies with children’s rights standards and focuses on rehabilitation, education and proportionality. I agree.
As the noble Lord, Lord Dholakia, said, the UN Convention on the Rights of the Child requires that states should establish an age below which children are presumed,
“not to have the capacity to infringe the penal law”.
Does the Minister have any evidence that a low age of criminal responsibility reduces crime? I very much doubt it. What the low age may do is criminalise children for minor offences which they will probably never commit again. Most children grow out of things, and bad behaviour is quite normal, as the right reverend Prelate indicated. The human brain is not fully developed in its capacity for cognitive and emotional functioning and abstract thought until young adulthood.
Our Government have to respond to the UN Committee on the Rights of the Child this year. The UN committee may well again recommend that the UK Government raise the age of criminal responsibility for children. I have not heard of any movement on the part of the Government to do so. Will the Minister say if their response is being considered and what the response will say? Perhaps he will write to me and other noble Lords to set out the Government’s approach. I hope that we will get some reassurance today on this important issue.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I join other noble Lords in congratulating the noble Lord, Lord Dholakia, on his persistence in advancing this worthy cause, to which I add my support.
First, I shall give a very brisk canter through the history of this question. Before 1933, the age of criminal responsibility was in fact seven. You were deemed to be what was called doli incapax—incapable of evil—until the age of seven; for the next seven years of your life— seven to 14—you were presumed to be doli incapax. The Children and Young Persons Act 1933 increased the age from seven to eight, therefore leaving a presumption from eight to 14. Thirty years then passed until 1963 when eight was increased to 10 and 10 to 14 became the age of presumed doli incapax. Thirty-five years then passed until the Crime and Disorder Act 1998 which abolished the presumption of not being criminally responsible and left it to the prosecution to prove criminal responsibility for that 10 to 14 group. The prosecution would seek to prove it by showing that the defendant knew his conduct was seriously wrong and therefore criminal as opposed to merely naughty.
That position, however, remained unclear for about a decade from the 1998 Act because it was thought by some that instead of the presumption having been abolished in respect of the 10 to 14 year-olds, it had merely been reversed. In this Chamber in 2009, in a case to which I was party, R v JTB—we sat in the February recess in 2009 at this end of the Chamber, at the Bar of the House—we decided, not as a matter of policy but as a matter of statutory construction of the 1998 Act, that indeed it had been abolished. Therefore, as we all now know, today if you are under 10 you cannot be convicted of a crime, but once you have reached the age of 10 then your particular age, whether you are 10, 11, 12, 13 or whatever, as a matter of strict law becomes entirely irrelevant except in so far as it would bear on the court’s assessment of how reasonably you had behaved if, for example, you were running a defence of self-defence, or if some question of subjective recklessness, foresight or intention—something of that sort—were involved. But the earlier all-important question between the ages of 10 and 14 of whether you knew what you were doing was seriously wrong was no longer being asked.
Enough of the history. As the noble Lord, Lord Dholakia, has explained, internationally, even indeed within the UK, 10 is among the very youngest ages of criminal responsibility. Surely the critical question must be how as a society we deal with these youngsters to address their misconduct and wrongdoing. The word “criminality” would of course beg the very question. As I understand the position, the substantive disposal of these cases of wrongdoing—of a child in, say, the age group 10 to 12, which is that which we are focusing on today—really is substantially the same whether they are above or below the age of criminal responsibility. I repeat “the substantive disposal” because that is of course a very different question from whether one reaches that by way of the criminal justice system and through the criminal courts or by what is essentially a corrective welfare process. Obviously, whichever side of the line they are, these children will if strictly necessary be detained securely, but generally of course they will be subject to the sorts of welfare programmes that have been outlined by others today.
I shall make a very brief digression in parenthesis if I may. The GOV.UK website states that children under 10 who break the law but of course cannot be charged with a criminal offence can be given either a local child curfew or a child safety order. Actually, as the Library helpfully pointed out to me yesterday, having done a little research on it, local child curfews, introduced in 1998, were in fact repealed by the Policing and Crime Act 2009. One notes that the website perhaps needs correction.
Today, though, that is essentially by the way. Altogether more important are child safety orders and, if necessary, care proceedings and orders under the Children Act. Surely our central focus should therefore be on refining and extending the presently available welfare programmes and corrective steps, rather than on criminalising youngsters. The real and compelling reason to raise the age of criminal responsibility, as so many others have tellingly observed today, is to delay for that much longer actually criminalising these very young people. They are still developing as individuals, developing their identities and self-esteem, and if society—represented here, of course, by the criminal justice system it operates—characterises and brands them as criminals, unfortunately, that is how they will come to identify themselves. Alas, that makes it all the more likely—statistics bear this out—that they will thereafter indeed develop into criminals, perhaps career criminals. Surely we must strive to avoid that, above all. In short, we should keep these youngsters out of the criminal courts, protecting against the early acquisition of a criminal record which then will remain with them for ever.
Is the future of this issue to be regarded as settled for all time by that tragic, ghastly and appalling case of Jamie Bulger, which of course we all still remember so vividly? For my part, I fervently hope not and I wish the Bill well.
Baroness McIntosh of Hudnall (Lab)
My Lords, I am very grateful for the opportunity to speak briefly in the gap, and I will be brief, pausing only to say in passing that I have listened carefully to the debate, having had no thought of speaking in it, and am entirely supportive of the Bill that the noble Lord, Lord Dholakia, has brought before the House.
I will pick up on one thing that came out of the speech made by the noble Lord, Lord McNally. He referred to his experience of having made what seemed to me, as he reported it, an entirely reasonable proposition in respect of the age of criminal responsibility, then subsequently found that the parents—or at any rate he referred to the mother—of Jamie Bulger had been contacted and asked whether she agreed that the age should be lowered such that his killers would, as I think the noble Lord reported it, “get away with it”. That anecdote—I do not mean to trivialise it by calling it an anecdote but it is an anecdote in the sense that it is the noble Lord’s recollection—rather points at something that I fear may be behind the kind of reaction we have had so far from government to the proposal, which has been supported all around the House and by everybody who has spoken so far in this debate, that the age of criminal responsibility should be raised. Politicians inevitably have that fear—that if they do something which appears to be liberal, they will be hounded for it and held to account in an entirely unhelpful and irresponsible way.
I do not underestimate the fear that politicians have of being held to account by, as it were, the Daily Mail. However, is not the job of politics not just to follow public opinion as represented by the press but to lead it? When an issue of this kind is so unanimously held up as requiring reform as it has been today, and clearly is so viewed in wider society, it is important that politicians grow a backbone. I therefore address my remarks both to the Minister when he comes to reply and to my noble friend on the Opposition Front Bench, to ask them to consider that it is their responsibility to listen to the evidence and to make decisions that are clearly in the interests of the children whose lives we wish to protect, and not to be too frightened to make decisions, which may indeed result in the kind of press coverage that people do not like to get, but are none the less the right decisions.
Lord Bach (Lab)
My Lords, I congratulate the noble Lord, Lord Dholakia, on bringing his Bill back before the House and on his persistence in a cause that he believes in passionately. I value my personal friendship with the noble Lord and admire him for his great knowledge and expertise in this vital area.
We very much support the Bill having a Second Reading today and that this debate—and it is a debate—should continue in a proper manner. Today, I cannot give my party’s full support to the noble Lord’s proposal, but I hope that he bears my words very carefully in mind. We are obviously considering policy on a whole range of issues—that happens after a general election defeat—and it applies here as it applies elsewhere. Although I cannot promise him full support on principle, I want him to watch this space closely.
A very strong and powerful case for reform has been made around the House. Sometimes in debates of this kind in the House I have been on the side of all those who have supported a particular project. It is a very comforting and enjoyable position to be in. I have also been in the position that the Minister might be in today—I am looking forward to hearing what he has to say—of being the only person to resist what seems a very powerful argument made in different ways around the House. I am not as enthusiastic or sure about my own position as practically all those who have spoken. I do not think it is cowardice for people who make laws to bear in mind that issues of this kind raise very powerful and genuine emotions and feelings, often from victims and their relatives. Frankly, it is not the duty of Parliament to ignore those feelings, saying that they can just be dismissed and that we know better. I wanted to get that off my chest. I had to say that in government and I say it in opposition, too. There is a real need for a continuous public debate on this far-from-straightforward issue.
Many who took part in the last debate will remember the contribution of the noble Lord, Lord Ramsbotham, who referred to the Bulger case. What he had to say was as powerful then as it is today. All I can say is that my party will play its full part in the discussion that follows. For me, an equally, if not more, important issue than the age of criminal responsibility is how the system deals with these children, whether they are prosecuted or not.
I was fortunate enough to be asked by the noble Lord, Lord Carlile of Berriew, to sit on an all-party unofficial committee of both Houses which produced, I believe, a very valuable and serious report on youth offending. It asked what society should do with those who commit offences at a young age, whether or not you call them criminals. The elephant in the room during those discussions and the argument that we did not take on was the age of criminal responsibility. We said, “No, that’s not relevant to what we’re looking at. We’re looking at what happens to those who have clearly committed wrong—and criminal wrong—in those circumstances”. It seemed to us from the powerful evidence that we had that the whole mood had altered from the situation when, for example, I was a very young lawyer doing criminal cases to looking at solutions that were welfare-based rather than punishment-based. That is true whether or not someone is taken to the youth court. Just because criminal responsibility exists for 10 year-olds, that does not mean that a welfare conclusion is not reached, and today it seems that it invariably is. Whether there is then a mismatch as far as the age of responsibility is concerned, I know not. However, I see the power of the arguments that have been made today from around the House suggesting that there may not be enough logic in taking someone to a youth court at a very young age and then coming up with a welfare conclusion.
What we do to prevent children committing offences and making victims’ lives hell—let us not forget that the effect on a victim of an offence committed by an 11 year-old can be every bit as painful for that victim as an offence committed by an adult—is a hugely important part of public policy. It is that issue that the noble Lord, Lord Dholakia, quite rightly keeps raising with us. It is, I think, coming to a time when a conclusion must finally be made.
The point made about international comparisons is very powerful and has to be accepted by the Government, the Opposition and Parliament as a whole.
We do not deny the important principle behind the noble Lord’s Bill. We are delighted to support its Second Reading and hope that it encourages the national debate that we need on such an important and difficult subject. I do not think this is an easy subject, but it is one that the Government and the Opposition are now going to have to grasp.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I join other noble Lords in congratulating the noble Lord, Lord Dholakia, on introducing this Bill and bringing this important debate to the House. I am grateful to all noble Lords for their contributions today. The debate reflects a long-standing commitment on the part of the noble Lord, and indeed there are many noble Lords who have considerable interest and experience in these matters.
In order to avoid any unnecessary suspense, I should say that the Government have no plans to raise the age of criminal responsibility from 10 to 12. I know this will disappoint the noble Lord, Lord Dholakia—but I hope he will at least be consoled by the fact that he will not have to embrace me, as was suggested by my noble friend Lord Cormack.
Although at the moment we are not able to accept that there should be a change, we none the less share the concern of the noble Lord, as indeed do all noble Lords who spoke, about the proper way to deal with young offenders. The Government believe that children aged 10 and above are, for the most part, able to differentiate between bad behaviour and serious wrongdoing and should therefore be held accountable for their actions. Where a young person commits an offence, it is important they understand that it is a serious matter. The public must also have confidence in the youth justice system and know that offending will be dealt with effectively.
The Jamie Bulger case casts a shadow over all our considerations in this area. That case was, I am glad to say, very unusual. The noble and learned Lord, Lord Brown, referred to the principle of doli incapax. There was a rebuttable presumption in 1993, at the time of the hearing, which was then removed in 1998. The court in that case specifically considered doli incapax and decided that both boys clearly knew that what they had done was wrong, and so the presumption was rebutted.
A number of points were made during the debate about whether or not the full panoply of a trial at the Old Bailey was really appropriate for boys of this age. I entirely understand that point. We have to bear in mind that this was an issue of national concern and, of course, an absolute tragedy for those connected to Jamie Bulger. It is difficult for a country somehow to balance the fact that we are dealing with very young people with, at the same time, acknowledging the seriousness of something of that sort.
Unusually, I agree with the noble Lord, Lord Bach—in two years, it is very rare that we have agreed on anything, at least across the Dispatch Box—that the Government do have a duty to respond to what the public want. With very great respect to the noble Baroness, Lady McIntosh—who is now on the Woolsack: a somewhat different position from when she made the point—they are not simply responding to the Daily Mail, although the Daily Mail clearly has a capacity to influence policy in a number of respects.
The noble Lord, Lord Parekh, made the point that European countries do not share our view about the age of responsibility. Of course, other countries and different states in the United States vary. It is a matter for each country to make its own judgment. It is not simply a question of our following what others say.
It is important to note that serious crimes committed by children are mercifully rare and we do not want to see 10 and 11 year-olds prosecuted for minor offences. Indeed, most such offending will be diverted away from the formal criminal justice system. We have recently invested a significant amount, £3 million over two years, in restorative justice conference facilitator training for youth offending team staff—I know my noble friend Lord Cormack is an enthusiast for restorative justice—and referral order lay panel members to encourage support for and promote greater use of restorative justice conferencing. However, it is important that, where appropriate, serious offences can be prosecuted and the public protected.
The noble Earl, Lord Listowel, who has great knowledge of and concern for the welfare of young people, particularly those who make up much of the prison population—possibly as a result of the care system or the origin of their lives, which cause them to be in the care system—made a point about the expense this caused and asked me to give the costs of the full criminal process compared to more informal disposals. That is a factor but the real costs lie in where someone is sent for punishment. The average price per year in a secure children’s home is £204,000; in a secure training centre it is £163,000; and in an under-18 young offender institution it is £75,000. These are very large sums of money. Fortunately, we do not send nearly as many young people to any of those disposals as we used to. It is very much a punishment of last resort.
Returning to the question of 10 and 11 year-olds, between 2004 and 2014, the number of 10 and 11 year-olds who received a custodial sentence was 12. Maintaining the minimum age of criminal responsibility at 10 does not, however, lead to the prosecution of a large number of 10 and 11 year-olds. In 2014, only 136 10 and 11 year-olds were proceeded against at court compared to 6,860 12 to 14 year-olds, and 65 of those 10 and 11 year-olds were given community sentences. The others were found not guilty, fined or given a conditional or unconditional discharge. Many crimes committed by those aged 10 or over will not result in a prosecution at all.
We are keen to ensure that, whenever possible, children are not prosecuted as research shows that this can be counterproductive, as many noble Lords have said. The principal aim of the youth justice system is to prevent young people offending. We need to keep our focus on that.
Legislation specifically requires courts to have regard to the welfare of under 18s. Section 44 of the Children and Young Persons Act 1933 provides that every court, in dealing with a child or young person who is brought before it, shall have regard to their welfare. This is reinforced by detailed guidance contained in the sentencing guideline Overarching Principles—Sentencing Youths.
Having the age of criminal responsibility set at 10 years allows flexibility to deal with young offenders. If particular needs are identified in a youth offending team’s assessment of a child or young person, the multiagency youth offending team, which includes representatives from health, housing, children’s services and education, can refer the child on to other statutory services, such as children’s services departments and child and adolescent mental health services, for further investigation and support. That support can include addressing attendance and attitude to school, referral to speech and language therapy and, where appropriate, referring parents to parenting courses. A youth caution can also be given for any offence where the young offender admits an offence and there is sufficient evidence for a realistic prospect of conviction, but it is not in the public interest to prosecute.
Youth cautions usefully aim at a proportionate and effective resolution to offending and support the principal statutory aim of the youth justice system of preventing offending by children and young people. Youth conditional cautions require young people to take responsibility for their actions, including by agreeing to conditions that require them to put things right or seek help for their behaviour. The conditions that can be attached must include one or more of the objectives of rehabilitation, reparation and punishment. The rehabilitative conditions may include attending one or more of a range of interventions available to the youth offending team for addressing offending behaviour. Reparation can include apologising, repairing or otherwise making good any damage caused, provided that this is acceptable to the victim. Punitive conditions may include attendance at a specified place to undertake an agreed activity. I should however emphasise that in any case where the police or the CPS are considering offering a youth conditional caution or a second or subsequent youth caution, the case must be referred to the local YOT to provide a check on the appropriateness of the disposal and the interventions that should go alongside. This will all be well known to the noble Lord, Lord McNally, as chair of the Youth Justice Board.
When a young person aged 10 to 17 pleads guilty to an imprisonable offence, is convicted for the first time and does not warrant an absolute discharge, conditional discharge, hospital order or a custodial sentence, the court must give a referral order. A referral order is based on restorative justice principles and may be between three and 12 months in length. The offender is referred to a youth offender panel made up of trained community volunteers and a member of the youth offending team.
There is a great deal more I could tell the House about, but it is important to stress that in these and other interventions, custody of any sort is always very much the last resort. As the noble and learned Lord, Lord Brown, emphasised, very often the destination, as it were, is one that is reached in the interests of the child whether it comes by welfare provision or via the criminal justice system. Custody is available, admittedly at great expense, for 10 and 11 year-olds only if they commit a grave or serious crime, normally one where an adult would be liable to a maximum penalty of 14 years’ imprisonment or more. A child would only be placed in a secure children’s home with a strong focus on addressing their and their family’s needs as well as the offending behaviour.
Reference was made to the report being produced by Charlie Taylor, who I know is doing an extremely thorough job, as was confirmed by the noble Lord, Lord McNally. He is a former head teacher and an expert in child behaviour. His interim report is due to be published shortly and the final report will follow in the summer. We believe that, partly as a result of the legislation which has been introduced and other steps, this has all contributed to a significant fall in the number of under-18s being dealt with in the criminal justice system. The noble Baroness, Lady Massey, asked about the numbers. The legislative changes are not the only factor, and one clear contributory factor was doing away with the police target introduced under the last Labour Government for offences brought to justice, but which was very sensibly dropped by that Government in 2008. Since youth offending peaked in 2007, proven offences have fallen by 78% and there are 64% fewer young people in custody. At the end of November only 991 under-18s were being held in the youth secure estate. However, we are not complacent. We recognise that there is scope to make the youth justice system better and to improve the experience of young people who the courts consider need to be detained. We will be better informed after Charlie Taylor reports.
In conclusion, the Government believe strongly that the current age of criminal responsibility is appropriate to hold young people to account for their actions if they commit an offence and reflects what is required of our system. We are of course most anxious to ensure public confidence in the youth justice system, and that communities know that young people’s offending will be addressed to counter the negative effects on victims and the community. We must, above all, however, ensure that young people are rehabilitated and educated if we want them to cease their criminal activities.
By bringing back his Bill, the noble Lord, Lord Dholakia, focuses our attention on what we do about young offenders. He reminds us of the causes that often precede their arrival in the criminal court system. He and other noble Lords have emphasised that we must look at the problems that young offenders pose for society, as the right reverend Prelate did, in terms of our responsibility as a society, and we must react to that appropriately. In doing so, he does us and the House a great service. While we do not support the Bill, we very much support many of the expressions of concern for youths and the justice system that we have heard today. This has been a valuable debate and I congratulate the noble Lord and others on bringing these matters to our attention.
Lord Dholakia
My Lords, I am grateful to the Minister for his contribution to the debate and for the observations that he has made. I am of course disappointed that the Government are not prepared to support this very simple measure. I do not wish to take any longer than necessary; many noble Lords have given up considerable time to be present here on a Friday afternoon, so I shall be very brief. I just want to make one or two points.
The noble Lord, Lord Cormack, was absolutely right when he said that we are a civilised society, but we must also accept that in any civilised society, from time to time, there will be heinous and serious crimes and it is how we deal with such crimes that determines how civilised we are. In this respect, if there is one message I would like the Minister to take to the Secretary of State, it is that this time I have the church on my side: God is speaking on my behalf as well, so I hope there will be change at some stage.
My second point was made by the noble Baroness, Lady McIntosh. I appreciate what my friend and colleague the noble Lord, Lord Bach, said: the Labour Party is reviewing this policy and it remains for its membership to influence it and say that there is substance in the arguments that have been put forward.
Let me give the Minister an example. Under the coalition Government, I persisted in bringing forward my Bill on the rehabilitation of offenders. My purpose was very simple. Welfare and rehabilitation go hand in hand on this sort of issue. I was able, with the support of the House of Lords, to discuss it on a number of occasions, but I did not get any support from either the Labour Party or, later, from the coalition. However, I was able to convince my noble friend Lord McNally to fix a meeting with the Secretary of State at that time, Ken Clarke. Together, we sat down and we were able to take forward, under the LAPSO Bill, a number of suggestions that came from my Bill. According to private research that has been carried out, the simple measure to amend the Rehabilitation of Offenders Act that I proposed now benefits more than 750,000 young people in this country. That is a tremendous strength that has come from legislation of this nature. We are not saying that people should not be dealt with or that people’s perception that youngsters will get away is wrong. All we are saying is that there are better ways of dealing with them and I hope we can pursue them.
At this late hour, I thank all noble Lords for their contributions. Sometimes the Government should remember that they assume wrongly that the public are as punitive as they tend to make out. They are not. It is better not to follow newspaper headlines but to see what is right and appropriate as far as the criminal justice system is concerned.