Age of Criminal Responsibility Bill [HL]

2nd reading (Hansard): House of Lords
Friday 8th September 2017 Lords Chamber

Second Reading

12:21

Moved by

[Lord Dholakia]

That the Bill be now read a second time.

[Lord Dholakia (LD)]

My Lords, I am grateful for the opportunity to reintroduce my Bill, which 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 responsible from the age of 10. This provision was last amended about 50 years ago in 1963 when the age of criminal responsibility was raised from eight to 10 by the Children and Young Persons Act 1963. 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 also burglary, will be tried in the adult Crown Court. A child aged 10 or 11 who is accused with an adult will also be tried in the Crown Court.

The age of criminal responsibility in the United Kingdom is the lowest in Europe. In Ireland in 2006 the age was raised to 12, with exceptions for homicide, rape or aggravated sexual assault. Even in Scotland, where the age of criminal responsibility is particularly low at eight, legislation in 2010 has provided that children cannot be prosecuted below the age of 12. Outside the British Isles, the age of criminal responsibility is invariably higher: in Holland it is 12; in France 13; in Germany, Spain, Italy, Austria, Hungary, Bulgaria, Slovakia, Slovenia, Croatia and Romania it is 14. In most other European countries it ranges between 14 and 18. Across Europe the average age is 14.

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 obligation under international standards of 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”.


In subsequent reports in 2005 and 2007 the committee reiterated that a minimum age below 12 is not internationally acceptable. In July last year the committee recommended that the United Kingdom should,

“raise the minimum age of criminal responsibility in accordance with acceptable international standards”.

Taking 10 and 11 year-olds out of the criminal justice system does 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. In the minority of cases where court proceedings are necessary, it would mean bringing children before family court proceedings, which can impose compulsory measures of supervision and care. In the most serious cases this can mean detention for significant periods 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, but this does not logically follow. Most six year-olds have a sense of right and wrong but no one suggests that they should be subject to criminal prosecution. In 2012 the Centre for Social Justice, which was set up by the former Secretary of State for Work and Pensions, Iain Duncan-Smith, 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 ten, is appropriate”.


The evidence from international research is over-whelming. There is extensive evidence from neuroscientists, psychologists and psychiatrists demonstrating the developmental immaturity of young children. The Royal Society in its report Neuroscience and the Law in 2011 said:

“In conclusion, it is clear that at the age of ten the brain is developmentally immature, and continues to undergo important changes linked to regulating one’s own behaviour”.


The Royal College of Psychiatrists has expressed the view, based on similar evidence, that our age of criminal responsibility is too low. The research shows that children of 10 and 11 have less ability to think through the consequences of their actions, less ability to empathise with other people’s feelings, a greater level of impressionability and suggestibility and less ability to control impulsive behaviour. So while a 10 year- old may know that stealing something is wrong, their ability to apply that knowledge to their actions will be very different from that of an 18 year-old. This does not mean that children aged 10 or 11 have no responsibility for their actions, but 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 which assumes a capacity for mature, adult-like decision-making.

The Beijing rules on juvenile justice state that the age of criminal responsibility,

“should not be set at too low an age level, bearing in mind the facts of emotional, mental and developmental immaturity”.

The official commentary to the rules state:

“There is a close relationship between the notion of responsibility for delinquent and criminal behaviour and other social rights and responsibilities”.


It is therefore significant that in no other area of the law, whether it is the age for paid employment, the age for buying a pet, the age of consent to sexual activity or the age for smoking and drinking, do we regard children as fully competent to take informed decisions until later in adolescence. The age of criminal responsibility is an anomalous exception. In relation to the age of consent to sexual activity, for example, we regard any purported consent as irrelevant, to protect children from abuse or immature sexual experimentation. It is completely illogical that we regard immaturity in this context as worthy of protection by law, but we take a diametrically opposite approach when it comes to criminal responsibility.

A 30 year-old with the mental age of a 10 year-old child would probably be regarded as unfit to plead, so why do we see a child of 10 as capable of participating in the criminal justice process? The illogicality of our current law is increasingly recognised. The Law Commission concluded last year in its report Unfitness to Plead that the age of criminal responsibility is,

“not founded on any logical or principled basis”,

and that,

“there may be sound policy reasons for looking afresh at the age of criminal responsibility”.

In Northern Ireland an independent review commissioned by the Minister of Justice in 2011 recommended an immediate increase in the age of criminal responsibility from 10 to 12, and a further scoping study last year made a similar recommendation. In Scotland an advisory group report recommended last year that there should be an immediate increase in the age of criminal responsibility from 10 to 12.

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 youth justice disposals is very small: in 2015-16 a total of 360 were cautioned or convicted. However, even though this represents a small proportion of those going through the criminal justice system, what happens to more than 300 vulnerable children can hardly be regarded as unimportant. The fact that the numbers involved are relatively small is, in fact, a strong argument for the Bill. It means that it will 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 would dealing with these children through non-criminal processes 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 dealt with through the criminal justice process are more likely to reoffend than those 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.

A briefing on my Bill has been circulated by the Criminal Justice Alliance, which has a membership of 125 organisations involved in the criminal justice system. The briefing concludes:

“With the numbers so low, the resources needed to execute a shift towards treating these vulnerable children through a welfare lens, rather than the criminal justice system, would be small while the positive benefits for them, and for wider society, would be very considerable”.


As the Centre for Social Justice report put it:

“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”.


Children who go through the criminal 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, rather 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 charged and prosecuted each year, very few receive a custodial sentence—in some years none do. However, although the number of serious child offenders is small, the public will obviously 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. It is difficult to see the logic of this approach. The most serious child offenders invariably have the most complex welfare needs. Their backgrounds include experience of serious physical abuse, sexual abuse, emotional abuse and neglect; parental mental illness; rejection and abandonment by adults; traumatic loss; conduct disorders; and serious emotional disturbances. They need a welfare-based approach—in secure care if necessary—to help them 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.

The boys who killed James Bulger were 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 tried 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 the 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.

Even though some changes have been made to court processes involving children since then, it remains true that 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. This is a completely unacceptable way to deal with young defendants and one that 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. If it were to become law, it would represent an important step towards dealing with child offenders in a way that was more humane, more in line with the reality of children’s development and more effective than our current approach in addressing the environmental and welfare needs which cause their offending. This is one of the shortest Bills I have introduced but, if implemented, it will change the shape of the criminal justice system for our children. I beg to move.

12:37

[Baroness Bottomley of Nettlestone (Con)]

My Lords, I congratulate the noble Lord on his persistence in bringing his important Bill back to the House of Lords. He and I have been partners in crime on many issues over the years, if I may say so, and I share his commitment and concern about what happens in the youth justice system. With the noble Baroness, Lady Howe, we used to chair juvenile courts in London and it was all too clear that the children who came to court were those who had been failed by social services, the education system and their families, and coming into the criminal justice system was the lowest common denominator. What used to trouble me was that the criminal justice system was a free good. These are costly, difficult children and if the other agencies sat on their hands, the funding would be provided by the criminal justice department—the Home Office, then. There was almost a perverse incentive.

Thirty years ago for the Children’s Society I chaired a committee on penal custody and its alternatives for 14 year-olds. At that time there was a huge number of children in penal custody. If you did a map of the country, it was clear that some counties were incarcerating far more than others. We tried to name and shame those authorities and tried to take 14 year-olds to see the Home Secretary. This was the age for children when parents such as those of us in this House would be worrying about what school they went to or what sixth form they went to, so how could it be right to incarcerate these young people in colleges of crime, boarding schools for the poor? Looking at the burden of handicap, illiteracy, mental and physical ill-health, and disruptive, abusive homes, these were youngsters who had nothing going for them. Few of them could even read the oath.

In a moment I will say why I am not convinced, even though I was the Minister who signed up to the UN Convention on the Rights of the Child, that raising the age of criminal responsibility is going to be a magic bullet or is necessarily the most important factor. If you look at the mental ill-health of young people in youth custody, about 30% suffer from attention deficit disorder, compared with 6% of the population; 57% have dyslexia, compared with 10% of the population; 20% have learning disabilities, compared with 2% of the population; 60% have speech problems, compared with 5% of the population; 5% have psychotic symptoms and 20% suffer from depression. No one in this House needs reminding of the level of deprivation and disadvantage of these young people.

Having said that, this is an area of social policy where I believe there has been a dramatic change. The noble Lord, Lord McNally, is due to speak. He was an early and important chair of the Youth Justice Board. In the past 10 years, we have seen the number of children under 18 in custody fall by 70%. That is dramatic. Only 42 were under 14. So we are talking about very small numbers, and it is the ones in penal custody that particularly concern me. The serious issue, which has been addressed today, is that 40% are from black and minority ethnic backgrounds.

I hope the House will come back and discuss the recommendations in David Lammy’s report today. He has identified, as the Prime Minister, Theresa May, did very early on, that children from a black and minority ethnic background have far worse outcomes in the criminal justice system. Interestingly, he also referred to Germany and said that in Germany rigorous assessments of young offenders’ maturity inform sentencing decisions. The point is that whether the young person is 10, 11, 12, 13, 14, 15, 16, 17 or 18, it is a spectrum—it is a continuum—and the chronological age is not necessarily the key point. The level of disadvantage, handicap and problems for many of them means that whatever age these young people are, we need to look at disposals, outcomes and prevention that are going to meet their needs.

Again, I think there have been some very remarkable changes. In my own former area of Surrey, the youth justice team has become an energetic and active team. The Surrey youth service is no longer just coffee and pool. It does assertive outreach. We can get those young people out of mental health institutions only when we have assertive outreach. These are needy people who need all the agencies on their side. There is a wonderful voluntary agency, KeepOut, where an amazing former prisoner, who had offended from the age of eight and was on a life sentence, set up peer programmes in prison to talk to young people about the effects of crime and delinquency. High sheriffs play a great role now in trying to change attitudes towards youth justice and criminal behaviour, as do police and crime commissioners, and many others besides.

Finally, we were told it takes 40 years to change. Forty years ago Keith Joseph—Lord Joseph—talked about the cycle of deprivation and it has taken that long. John Maynard Keynes said:

“The difficulty lies not so much in developing new ideas as in escaping from old ones”.


I believe we are beginning to escape from old ideas and have a more enlightened approach to young offenders. While I commend the noble Lord, I feel that change is afoot—more profound, more widespread and requiring partnership from all the agencies to achieve the result I believe we both desire.

12:43

[Lord Judd (Lab)]

My Lords, I am very glad to follow the noble Baroness. It was a powerful speech, rooted in her personal experience, and all the more effective for that. We need to hear a great deal more from her on these issues in this House. I join her in thanking the noble Lord, Lord Dholakia, for enabling us to support the Bill again today. The noble Lord has a long history of constant commitment to enlightened social reform. There are a few of us in this House who can begin to reflect on what he has stood for, with a great deal of courage on occasions, over so long.

I am half Scottish and I am very glad to see that in response to international recommendations, the Scots have undertaken to raise the age. This Bill gives us an opportunity to catch up with the Scots. There is powerful advocacy out there, which has been recommending for a long time that this change is imperative. The UK’s children’s commissioners are united in their support for a move of this kind; surely we should listen to them.

We spend a lot of time in this House debating the importance of non-governmental organisations and the key role they have to play in advancing effective social policy. It therefore seems important that, on an issue of this kind, we listen to what they have to say. I was struck by a concise but helpful paper submitted to us by the Standing Committee for Youth Justice. Let me share some of its recommendations with your Lordships. It says:

“Proponents of the current age of criminal responsibility argue that 10-year-olds ‘know the difference between right and wrong’ and must be held responsible for their actions. However, as the National Association of Youth Justice … has argued, developing morality is ‘not a once and for all achievement; it improves with conceptual maturity’”.


I had the privilege for nine years of being president of the YMCA and I was particularly struck by the work it did with young offenders. I tried to follow that as closely as I could. That last recommendation was repeatedly obvious. Sometimes it was moving to see, in the context of work being done with young offenders, that they began to discover themselves—who they were, what responsibility was and how they could begin to face up to that responsibility in society. That could happen quite late in the teens; it could happen in their early 20s as well.

If I may just digress for a moment, I sometimes think that when we are dealing with the young and children it is particularly important that we do not spend enough time in this second Chamber, which is surely the place where we should be doing it, debating exactly what criminality is in our complex society. What is criminal and what is not? Where does irresponsibility become criminal in effect, in the damage and harm it does to people? That is particularly true for those of us who are politicians, in all parts of our political system. Sometimes the effects of what we recommend are criminal; far more criminal than anything that would be considered in a youth justice system.

The standing committee continued by saying:

“Neurological, conceptual and psychosocial developments continue through childhood, adolescence and young adulthood, and alter a person’s ability to understand and assess situations and control their behaviour. The pre-frontal cortex—which is key to decision-making and impulse control—is one of the slowest areas of the brain to mature. An understanding of third-parties’ perspectives, empathy (which is an inhibitor to offending), and impulse control are by no means fully developed at 10 years old, and the capacity to consider long-term consequences is limited”.


If I have one criticism of the Bill, it is that the target is 12. That is far too young and we should be aiming for something more senior, although I am not all sure that I am convinced about having targets at all in this context. What seems to me important in justice is to assess the person before you and see what is necessary and true, and what have been the influences on that person’s life. As the noble Baroness, Lady Bottomley, said so powerfully, often—perhaps in the majority of cases—the people before us are in fact victims. The Bill is a step forward and I thank the noble Lord, Lord Dholakia, for having introduced it. I hope that the House will warmly endorse it.

12:51

[Lord McNally (LD)]

My Lords, I can think of no better privilege than to follow the first three speakers in the debate on these matters. I respect their experience and am a great admirer of their record in these areas. I would not describe my noble friend Lord Dholakia as a partner in crime but he has certainly been a great mentor for me on these issues for a very long time.

Yesterday, I started my speech on overcrowding with the Churchill quote about how a society treats its prisoners being a mark of its civilisation. If that is true, and it certainly is, then it must be doubly true about how we treat our children who fall foul of the law. The problem is that as I look at the speakers list, and as I suspect we shall hear today, there is something missing in our debate. As I pointed out yesterday, and as I think the noble Baroness, Lady Bottomley, pointed out with a wry smile, this debate would not take place in the same atmosphere down the Corridor. When we talk about getting changes in the law, we have to acknowledge the fact that there are other voices than those which will be heard today.

The other thing I took from yesterday’s debate was the constant reference from a number of noble Lords with great experience in this area to the importance of early intervention. From my three years’ experience at the Youth Justice Board, I certainly took away that very good lesson: that the earlier we can intervene, the better the chance of avoiding a life of crime for the individual concerned. Something else the noble Baroness, Lady Bottomley, referred to, is that the more we can break down the silos of various interventions at this early stage, the better, so that the young person concerned gets an holistic approach to their needs.

I would like to illustrate this with three examples from my experience at the Youth Justice Board, each of which indicates what we face and, somewhat, how we might overcome it. First, when I went to a conference of experts in dealing with young offenders in Bucharest, I was genuinely taken aback by the fact that lots of people came up to me and said, not in criticism but with a kind of understanding sympathy, “Yes, well of course we understand that you Anglo-Saxons have a penal and punishment way of approaching offences by children, whereas in my country it is more therapeutic”. I do not think that is entirely true because, as the noble Baroness, Lady Bottomley, indicated, there are lots of interventions and there is a lot of very good thinking and study going on about how best to deal with some of the problems facing young offenders, but nevertheless one has to face the fact that ours is a punishment-led concept. Although the YJB sometimes bridles at the Howard League’s description of YOIs as “child prisons”, if you go to them you will leave feeling that you have just been to a child prison. We are not as bad as perhaps our reputation implies, but there is a punishment-led, penal, criminal justice, court-led approach to how we deal with young offenders.

My second story is from after I became chairman of the YJB. I gave an interview to a magazine that specialised in children and young people, and I was asked about the age of criminal responsibility. I said, in very general terms, that I thought there was a case for raising the age limit. A day or two after the magazine was published, one of our popular tabloids had a story based on an interview with Jamie Bulger’s mother. It basically quoted my statement and said, “What do you think of changing the law so that Jamie’s murderers would have got away with it?”. There is no doubt that the Bulger murder has cast a long shadow over this debate, and the willingness of certain sections of the popular press to continue to pick at that scab has done much damage to our approach. That does not in any way take away sympathy and understanding of the sheer horror of losing a child in the circumstances in which Mrs Bulger lost her child.

My third story was referred to by my noble friend Lord Dholakia. A year or so ago, I talked to a very senior and distinguished judge who a few days before our conservation had been to Preston Crown Court, where I have never been. He said that he stood in Preston Crown Court, which is a dark, sombre, Victorian creation with portraits on the wall and so on, in disbelief that 20 years ago two 10 year-old boys stood in the dock and faced the full panoply of a judge and barristers in wigs and the full power of a Crown Court trial. As my noble friend said, we have come a long way in how we treat young offenders although, as the noble Lord, Lord Carlile, said in his report on youth justice, there is a strong case for reforming the way young people are dealt with and doubt about whether the Crown Court is ever the right place. The problem is that the media continually sensationalise. I pay tribute to the way the Attorney-General Jeremy Wright has resisted attempts to break embargoes on naming young people.

Early intervention has been put forward as a solution, as has diversion from trapping young people in the revolving doors of the CJS. Reference has been made to the changes in neuropsychological understanding which have had a massive impact on developments in the past 20 years. I believe that the case is overwhelming. I agree with the noble Baroness, Lady Bottomley, that it is not a silver bullet, but it would most certainly be a step in the right direction.

12:59

[The Earl of Listowel (CB)]

My Lords, the noble Baroness, Lady Bottomley, spoke immensely eloquently about child development and the psychology and background of these children and young people. She is respected in this area. She is a social worker by background. I will put two things to her.

Speaking to her on a psychological basis, I am sure that she will be aware that children who experience rejection by their parents blame themselves for that rejection. They take the guilt of it upon themselves. Children are solipsistic: the world revolves around them. She may recall a film that came out many years ago called “Good Will Hunting”. It is about a brilliant young man who grew up in a very abusive family and went on to further studies. He was treated by a psychotherapist. In the final treatment session, the therapist embraces him and says to him, “It’s not your fault”. He repeats, “It’s not your fault”, and then repeats again, “It’s not your fault”. The reason he says that and why it is so important is because that young man blamed himself for the way he was neglected by his parents. I regret that the psychological flaw in the noble Baroness’s argument is that, by allowing 10 and 11 year-olds to be subject to the criminal justice system, the state is saying, “It is your fault”. I hear what the noble Baroness says about progress in this area, and I particularly welcome the reduction of the number of young people in custody, but I regret that I strongly disagree with her on that point.

I thank the noble Lord, Lord Dholakia, for bringing back this very important Bill. The current arrangements are barbarous, put the public at risk and are a gross waste of taxpayers’ money. Very many of the 10 and 11 year-olds in question will have been in local authority care or would be in care if their local authority were not so overstretched. Yet again, we are criminalising the abused and neglected children of our society. Only last year, my noble friend Lord Laming produced his excellent report on preventing children in care entering the criminal justice system. Today’s Bill is a superb opportunity to meet the spirit of his exhortation to keep our looked-after children out of custody.

I declare my interest as a trustee of the Brent Centre for Young People, which is a centre of excellence in the mental health treatment of adolescents and provides clinical treatment, outreach to schools and a youth offender service. I also declare my interest as a trustee of the Michael Sieff Foundation, which has been working to improve the welfare of children in the criminal justice system for 30 years.

Why do we treat these children in such a barbaric manner? It is hardly surprising if we consider the challenge that such children pose and the normal unthinking response to this challenge. Consider the history of children’s homes, where we have found not just sexual abuse but physical abuse: children may be tied to their beds because they misbehave and have been unmanageable in the past. We have so often found staff who were not equipped to meet the mental health needs of such children and who responded in a violent or overly punitive way. There have been improvements in the training of staff, yet the high rate of criminalisation of children in care, particularly those from children’s homes, shows that we have a lot further to go. Noble Lords will recall that about 63% of children arriving in care do so because of abuse or neglect. About 40% of children in children’s homes will demonstrate conduct disorders arising from past trauma.

I was speaking last year with a social worker from Finland about his experience of working in a children’s home there. He told me that you had to have a degree before you walked through the door. I asked him why, and he answered that when attacked by a young person, whether verbally, physically or in other ways, it is vital that staff do not reply in kind. They have to reflect, and then respond in the way that would be most helpful.

I recall working with a teenage girl with Down’s syndrome 30 years ago. Sally was bags of fun, but when we sat to picnic in the park, she would walk off and not listen to reason. This annoyed the inadequate teacher in attendance, so on the way back in the van, he retaliated by teasing her about her relationship with Paul, a boy she liked. Your Lordships may recall the brutal treatment of adults with learning difficulties recorded in the “Panorama” programme on Winterbourne View: staff forced patients to take cold showers, because the staff were uneducated and unthinking, and the patients were not able to comply with their behavioural demands. Why do we treat 10 and 11 year-olds in this barbaric manner? Because we are ignorant bullies, no better than that inadequate teacher or those inadequate care staff.

This Bill is long overdue, and I beg the Minister to accept it.

13:06

[Baroness Massey of Darwen (Lab)]

My Lords, I thank the noble Lord, Lord Dholakia, for pursuing so eloquently this short Bill which has enormous implications, not only for the rights and welfare of children but for our society as a whole and how we view and treat children. I should declare interests. I chair the Sub-Committee on Children within the Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly of the Council of Europe, I am an officer of the All-Party Group for Children and I am patron of a number of organisations that work with children.

The UK position on the age of criminal responsibility as set out in the Children and Young Persons Act 1933 has been, and is, criticised by human rights commissioners and by monitors of the UK’s performance under the United Nations Convention on the Rights of the Child. The UK, as has been said, has one of the lowest age of responsibility rulings not only in Europe but in the world. Why are we still accepting of an Act which came into law in 1933?

As the Criminal Justice Alliance points out, how we treat young people in the criminal justice system has changed over the last 10 years—thankfully so. Many have been spared from entering the criminal justice system at an early age. But we can do better. I remember chairing an all-party parliamentary group inquiry into children and the police which began in 2014. During the inquiry, there were many positive discussions between the police and young people, who were very honest about their experiences in the youth justice system, and changes to the system were made. We tracked the impact of the inquiry, and it had some remarkable outcomes. For example, the stop-and-search rules were amended for the better; disturbed children were less likely to end up in a prison and more likely to get appropriate help. Things can change, but the age of responsibility as we have it now is a drawback to that change.

Many of us in the Chamber will have had children and grandchildren aged 10 or younger. Would we have liked to see them criminalised under outmoded legislation? We know that children change vastly between the ages of 10 and 14—not only physically but in terms of brain development and emotional development too. We should surely be focusing our energies on preventing young people getting into trouble and on better support, education and rehabilitation if they do. I accept, as has been mentioned already, that there is a very small number of children aged 10 who are out of control and potentially dangerous. They, too, need interventions based on rehabilitation. Some children grow up in horrendous circumstances. Often they have inadequate parenting and poor housing, they fail in education and they have difficulty forming relationships. Then, there are disabilities such as speech and language problems. These are the root causes of much offending and, as someone said earlier, they are not children’s fault. I salute the many people and organisations, such as Barnardo’s, that work with these young people. Most children aged 10 do not need such heavy reaction as criminalisation. Indeed, it may do more harm than good as it actually labels them as offenders—a label they may then live up to.

A young people’s action plan of 2008 recommended an age of criminal responsibility of up to 15. The Bill puts it at 12. I myself would prefer 14 but we have what we have in the Bill. During my time in your Lordships’ House many laws have been passed, many policies changed and many debates held to further the rights and welfare of children, but no Governments have grasped the nettle of the age of criminal responsibility. What does the Minister think needs to happen before this outmoded law is changed? What are the obstacles to changing it?

The UK Government ratified the UN Convention on the Rights of the Child in 1991. The convention states that,

“parties should take measures for dealing with children in conflict with the law without resorting to judicial proceedings”.

The call for the welfare of the child being paramount is a thread running through that document. Recommendations for dealing with children in trouble have also been made by the Council of Europe. In July 2015, 76 organisations signed the Children’s Rights Alliance England alternative civil society report to the UN committee, which recommended that legislation to increase the minimum age of responsibility be introduced. In 2016, the UN committee again called on the Government to:

“Raise the minimum age of criminal responsibility in accordance with acceptable international standards”.


We are seriously out of step with the rest of Europe and the rest of the world. We have to do better. We have to tackle the root causes of offending, as I said earlier, and change some of our laws in dealing with young people. I agree with the aspiration of CRAE and Just for Kids that there should be an approach to youth justice whereby under-18s in conflict with the law are dealt with under a completely separate and distinct system from that for adults. How does the Minister feel about that?

We are surely wasting time and resources in dealing with 10 year-olds who have committed an offence. I emphasise the concerns expressed by the noble Lord, Lord Dholakia. In the vast majority of cases, courts and the police release them or simply issue a caution—in 2016 the figure was 279 out of 317. Only 38 were convicted and sentenced in the courts for crimes not serious enough to warrant custody. From a purely economic angle, this does not make sense. What makes more sense is to tackle the root-cause issues that I have just listed. I beg the Government to look again at this issue.

13:12

[The Lord Bishop of St Albans]

My Lords, I add my thanks to those of other noble Lords to the noble Lord, Lord Dholakia, for his tireless work in this area, bringing it before the House. These issues have been debated pretty exhaustively and many of the main points have already been raised, so I will not repeat them. The criminal offending of children is of course a gravely important issue that has profound implications for the child and their future but also more widely for the victims, and of course we have to balance that, as has been pointed out, with their communities.

The very fact that we need legislation is of course a reminder—and it is good in this debate to remind ourselves of this—of the constant need to support our schools as they work away at values and talking about right and wrong, and indeed our support for those organisations that are particularly concerned with good parenting and supporting families that are in difficult places. I am thinking of organisations such as Mumsnet but also, from a Church perspective, of the Mothers’ Union, which are doing a lot of work in this area.

This sort of legislation, which affects the course of young people’s lives, needs to be done in a responsible manner. Our understanding of psychology, child development and the rehabilitation of young people has improved significantly since 1998, when the law was amended to remove the presumption of doli incapax, and it is deeply concerning that our law has not been updated to account for that recent knowledge and evidence. As has already been pointed out in this debate, the UN Committee on the Rights of the Child states that 12 is an “absolute minimum” age for criminal responsibility, and that our status quo of 10 is “not internationally acceptable”. Our neighbours in Ireland and Scotland have set the age of criminal responsibility and prosecution at 12. It is high time to amend our legislation to give English and Welsh children the same protections as their counterparts are afforded.

As I have mentioned, it is important that young people develop a sense of responsibility for their actions. Indeed, the whole process of growing up from infant to child, adolescent and adult, is one of separating from families and care givers to develop responsibility for oneself. Nevertheless, there is a significant difference between young people having basic knowledge of their actions and a deeper understanding of the consequence of those actions. It is not correct that the law should hold children criminally responsible for actions the implications of which they may not fully understand.

Holding all 10 and 11 year-olds criminally responsible and exposing them to the criminal law system is simply inappropriate. At 10, although children may have some concept of right and wrong, it is not clear that they have the mental maturity to form a similar criminal intent to older children or adults. Male brains are understood to develop until the age of 25, and the ages of consent and enfranchisement, as we have heard, are 16 and 18 respectively. It is plainly nonsensical to hold 10 and 11 year-olds responsible in law for the mature decision to commit a criminal act.

Of course, for justice to be served, it is important that victims know who is culpable for wrongdoings committed, and I in no way suggest that we fudge that issue, but this does not mean that young children must be held criminally responsible. Indeed, it is highly significant that only a small number of children commit such serious crimes that they receive custodial sentences. In the 10-year period between 2004 and 2014, only 12 10 and 11 year-olds were given custodial sentences for their crimes.

Conforming to international standards in this matter does not mean lessening the seriousness with which we take the offences which have been committed by children. Rather, it acknowledges that it is clearly inappropriate for the formality and weight of the criminal justice process to be brought to bear on 10 and 11 year-olds. This criminalisation achieves very little. Indeed, it can do much damage to their opportunity to grow up into citizens with a stake in our society.

We should be proud and eager to bring our law into line with international standards, and I support the Bill.

13:18

[Baroness Murphy (CB)]

My Lords, I, too, pay tribute to the noble Lord, Lord Dholakia, for his admirable perseverance in this matter in the face of official intransigence. There are good reasons why the age of criminal responsibility should be raised, not least because we have fallen so far behind every other civilised country in how we deal with crime in children. That is not to say that we have not made significant progress in our manner of dealing with children who offend—indeed we have, and that is fantastic—but the underlying principles have not changed, as was put so movingly by the noble Earl, Lord Listowel.

It has been nearly 50 years since the age of criminal responsibility was last amended in legislation, and a lot has changed in society and culture since 1970, as well as in our understanding of children’s brain development. As the right reverend Prelate the Bishop of St Albans mentioned, in some ways we have gone backward since 1998, when the doli incapax rule, which presumed that 10 to 13 year-olds could not be criminally accountable unless there was good evidence, was lost. I have heard it mentioned that a reintroduction of doli incapax would solve all the difficulties, but of course it would not change the fundamental principles. Although it might be done without inflaming the tabloids to such a degree that any reform is blocked, we really need an awful lot more. The noble and learned Lord, Lord Brown, may follow me with a few words on the doli incapax rule.

Criminal responsibility is of course a social, not scientific, concept. Questions of innocence or guilt are far more complex than merely establishing whether someone behaved in a certain way, or their reasons for doing so, or even if they were rational when they did it. As a psychiatrist with a grasp of brain neuroscience, the question for me is about how the brain develops in response to the social environment, where that moral sense comes from, and how it is developed in the family. We all know that, by 18 months, a toddler learns that there are others who share his world who have needs and rights and that the house he lives in has rules that he must live by, however frustrating—but he does not have the ability to judge whether something is right or wrong. He is directed by what others tell him. His internal brain is competing with his internal drive to do what he wants. He knows that hitting is wrong because parents tell him so or because he gets punished for it.

Some interesting US studies show that by three months old some fairness and empathy has been developed. Those studies need more follow-up. There may well be some genetic element to moral behaviour, but we need more information about that. Of course, up to 10 years old, moral development occurs, but it is highly dependent on reinforcement and reminding from parents about what is right or wrong. The child in a good family behaves well because he has several years of positive parental direction; the disconnected child who has been poorly parented may still be operating on the basis of “Whatever I do is okay, as long as I do not get caught”. It is only after the age of 10 and up to the age of 12 to 14 that children begin to understand the consequences of what they are doing. To expect a child to grasp the outcome of wrongdoing at the age of 10 is patently absurd. For once, I agree with my colleagues in the Royal College of Psychiatrists—this is a preposterous age at which to criminalise children. The immature brain is simply not ready.

For a child of 10, the development of a prefrontal cortex, particularly the white matter in the amygdala area, is particularly significant in relation to the control of violence and sudden thoughtless behaviour. Indeed, many late teens still have immature white matter in the brain. I could make out quite a good case for raising the age of criminal responsibility to 25, which would ensure that everybody had mature white matter. The noble Lord, Lord Dholakia, is aiming for 12, which seems a minimal age increase, as the noble Lord, Lord Judd, said, but at least it would give us two years more in the right direction.

There was a UNICEF-sponsored meeting on the development of children’s brains in 2014, bringing together some of the scientific understanding of children’s brain development and how genes and environment contribute to the development of brains. The logical conclusion of those findings was that a good moral development and intervention at a very early stage when the environment is toxic is the only way in which to stop poor development. As a society, we have usually failed the children who have come before the courts by the age of three, but it is not too late to intervene in those of 10 or 12—and I know people who are trying to do so. In fact, we could intervene by starting to say that this is not how to treat children of 10. Remediation is what we aim for, not criminalisation. I beg the Government to listen to the wisdom of the noble Lord, Lord Dholakia, on this theme. We really do need to change this to catch up with science.

13:25

[Lord Thomas of Gresford (LD)]

My Lords, I was very interested in the views expressed in Bucharest to my noble friend Lord McNally about this country and its attitude to penal matters. I blame Charles Dickens, who portrayed packs of feral children and implanted that concept deep in the English psyche. For many centuries, children were protected by the common law presumption of doli incapax. The rationale was that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea. Blackstone’s Commentaries on the Laws of England, published in 1769 said this:

“By the law, as it now stands, and has stood at least ever since the time of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment … though an infant shall be prima facie adjudged to be doli incapax under fourteen; yet if it appear to the court and jury, that he was doli capax, and could discern between good and evil, he may be convicted and suffer death … But, in all such cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt or contradiction”.


So I am not so sure that we need detailed understanding of the white matter in the—whatever it was, to appreciate that children are different.

In the enlightened days when he was Home Secretary, Lord Jenkins of Hillhead was responsible for Section 4 of the Children and Young Persons Act 1969. That Act provided that a person should not be charged with an offence, except homicide, by reason of anything done or omitted while he was a child—that is, under 14. Sections 34 and 73 of the Act enabled the minimum age of criminal responsibility to be increased gradually from 10 to 14 by statutory order. Then the 1970 election happened and a day was never appointed for Section 4 to be brought into effect, nor were any orders ever made. In due course, Section 72 of the Criminal Justice Act 1991 repealed Section 4 of the 1969 Act. One can see how forward thinking Lord Jenkins was in wishing to have the age of criminal responsibility at 14.

The James Bulger case changed perceptions and the atmosphere completely in 1993. In 1994, in a Divisional Court case called In re C, about the attempted theft of a 125cc Honda motorbike in Liverpool, Mr Justice Law, as he then was, said that the presumption of doli incapax,

“has no utility whatever in the present era”,

and that it “ought to go”. He robustly said—he frequently said things robustly—that the presumption was no longer part of the law of England. On appeal from that decision in 1995, the Judicial Committee of the House of Lords thought that he had perhaps strayed beyond the remit of judges in the making of the law. Lord Lowry said that the culpability of children was,

“not so much a legal as a social problem, with a dash of politics thrown in”,

and that,

“it should be within the exclusive remit of Parliament”.

He added that:

“There is a need to study other systems, including that which holds sway in Scotland”.


I will come back to that.

In 1998, the presumption of doli incapax was abolished. Those were the days when we were to be, “Tough on crime and tough on the causes of crime” and nothing was done to alter the age of criminal responsibility. In March 1998, my noble friend Lord Goodhart moved an amendment in the name of my noble friend Lord McNally to retain the rule but reverse the burden of proof. That was defeated, with only the Liberal Democrats voting in support of it. I spoke on Report in favour of the children’s hearings system in Scotland—talk about escaping from old ideas, as the noble Baroness, Lady Bottomley, said.

The 1966 Wilson Government had intended children’s hearings to apply in England and Wales as well as in Scotland but there were strong representations from the Magistrates’ Association and the Justices’ Clerks’ Society in England which led to that not going ahead in this country. Under the system in Scotland, misbehaviour on the part of a young person is reported to the Children’s Reporter Administration and brought before a children’s panel comprised of volunteers from within the community, who hold a meeting without wigs, gowns or judges and discuss with the parents and the offender how his or her behaviour should be addressed. That is admirable. What assessment have this and previous Governments made of children’s hearings over the years? I would be interested to know whether anybody has looked at children’s hearings in Scotland and thought that they ought to apply here.

We are out of kilter with the civilised world. As many have said, the United Nations Committee on the Rights of the Child has said that our system is “internationally unacceptable”, yet the CPS code for prosecutors ironically says:

“Prosecutors must also have regard to the obligations arising under the United Nations 1989 Convention on the Rights of the Child”.


However, that is ignored.

On 21 December 2016, the High Court of Australia upheld the principle of doli incapax. That court made it plain that, for there to be any prosecution of a child aged 10 to 14 there must be evidence that the child understood that his or her conduct was seriously wrong in a moral sense,

“as distinct from it being rude or naughty”.

It was not enough just to prove that a particular crime had been committed.

I, too, thank the noble Lord, Lord Dholakia, for pursuing this matter with all the ambition and drive that he has shown over the years. I very much support the Bill that he has brought forward.

13:32

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I join all those who have already rightly commended the noble Lord, Lord Dholakia, for his persistence in pursuing this most worthy cause.

I will make three comparatively brief points. The first is a legal one, which I do not think is widely understood, but plainly is well understood by many—perhaps all—within this Chamber. As we all know, it took 30 years to raise the age of criminal responsibility under the 1933 Act from eight to 10 years. But now, over half a century later, not only has it not been raised further but the position of 10 to 14 year-olds has actually worsened under our legislation. The noble Lord, Lord Thomas of Gresford, described expansively how the matter has developed. Until 1998, there was a rebuttable presumption in the law known as the doli incapax principle—the presumption that the immaturity of children under 14 meant that they were incapable of crime.

By that Act of 1998, however, as finally clarified by a judgment of the Law Lords, of whom I was one, in this very Chamber in 2009 during a parliamentary recess —I hasten to say that it was a decision based entirely on statutory construction and not a matter of policy of which we necessarily approved—the law changed, and from 1998 it ceased to be necessary for the prosecution to establish that children in the 10 to 14 age bracket knew their conduct to be seriously and therefore criminally wrong, rather than merely wrongful, bad behaviour. So for the last 20 years, the question of how mature the child actually is has been entirely irrelevant to whether he has committed a crime. It is now relevant only to particular questions which may or may not arise: whether, for example, he acted reasonably in self-defence or, say, recklessly or with foresight or intention.

Secondly, the critical question in all these cases of serious child wrongdoing—to refer to them as crimes begs the question—is how to deal with the problem and set the child on an appropriate future course best calculated to safeguard him or her and the community at large against such continuing misconduct in future. What is in the child’s, and so society’s, best interests? Various disposals are available, both in youth courts, under the criminal justice system, and by way of corrective welfare processes, largely under the Children Act 1989. There are child safety orders, supervision orders and, when necessary, care proceedings. But the simple fact is that in the vast majority of cases, these disposals in practical terms will involve essentially the same corrective measures: detaining the child securely if that is necessary, or, more likely, placing the child under the supervision of a responsible officer—a trained social worker. In other words, the way misbehaving children are dealt with and reformed does not depend on whether their wrongdoing is characterised specifically as criminal. To designate their misbehaviour as criminal benefits no one.

Thirdly, and finally, the all-important point is that the real and compelling reason to raise the age of criminal responsibility is to avoid criminalising the additional band of young people—10 and 11 year-olds, who are the subject of the Bill. Their emotional functioning and capacity for understanding the effects of their behaviour on others is, as many today have made plain, still growing at that age. They are, in short, still developing as individuals, developing their identities and their self-esteem, and if society characterises and brands them as criminals, that, unfortunately, is how they will come to identify themselves. That in turn, alas, will make it all the more likely—the statistics bear this out—that they will thereafter indeed develop into criminals, perhaps career criminals. Surely, therefore, we must strive above all to avoid that. We should therefore keep these youngsters out of the criminal courts, protecting them against the early acquisition of a criminal record which will remain with them for ever and, to the disadvantage of all, handicap them in all sorts of different ways at a number of subsequent stages in their lives. It just is not fair. I strongly support the Bill and wish it well.

13:39

[Baroness Hamwee (LD)]

My Lords, my noble friend Lady Bonham-Carter feels—and I agree—that we should not condemn Charles Dickens. He was a pioneer in bringing attention to the treatment of some children by the Victorians. It was the “feral” Artful Dodger who saved Oliver Twist; child labour was raised in David Copperfield; and the issue of abusive schools was dealt with in Nicholas Nickleby. Perhaps I should keep the dispute within these Benches.

The point has been made that the age of criminal responsibility was eight in 1933 and was raised to 10 in 1963. I cannot point to an upward trend, for the reasons given by my noble friend Lord Thomas of Gresford and the noble and learned Lord, but over that period, understanding of cognitive development has itself developed, as has understanding of emotional security.

I am no child psychiatrist and I am not a neurologist or neuroscientist, and I do not have the direct experience or expertise of many of our speakers today. I hesitate to follow the noble Baroness, Lady Murphy, but for all the reasons that she and others have given, I am keen to support my noble friend Lord Dholakia, who has made it such a project of his to argue for increasing the age of criminal responsibility. I want, in a small way, to be part of the conversation about what affects children’s and adults’ actions, decisions and motivations, as well as the issue of safeguarding. I do not know but I assume that the Government will again oppose an increase in the age, and there have been many speakers supporting opposition to it, although there have been speeches pointing to this not being the whole of the issue.

I do not think that I need to declare an interest as a board member of the organisation Safer London, as it works with older children who have been sucked into criminal behaviour or are in danger of that happening, and it also works in the area of prevention. However, yesterday I spoke to a staff member about this and she said, “You’re easily coerced at 10, but at 12 you’re a bit less likely to be co-opted into, for instance, carrying guns for gang members”.

As in so many situations, the boundary—or, these days, the cliff edge—has to come somewhere. I accept that in real life there is a very fuzzy, rather movable grey area—maturity arrives at different times for different people—but in no other area of life is a 10 to 12 year- old regarded as competent to make an informed decision. How is a child likely to be affected by finding himself in the criminal justice system? We know how older people can too often find themselves being sucked into a life of criminality by the system, rather than being diverted from it—I do not intend that comment to be in any way an attack on youth offending teams or others who work with children—but how much less easy it is for so young a person to resist it. If you do not understand the consequences of your actions, do you understand the criminal process? Do you understand the point of the sanction? I am not being soft in saying that. I draw a comparison with community sentences for adults as an alternative to imprisonment. From these Benches, we have long argued that community sentences are not a soft option.

The noble Lord, Lord Judd, referred to the work of the Standing Committee for Youth Justice, which points to the impact or stigma of a criminal record. I was struck by the phrase used in the committee’s briefing that it anchors a child to its past, and that a criminal record becomes an issue when the child decides to try and turn his life around. A criminal records check is not required to sell drugs or join a gang.

We all know from our own experience that a child can know that something is wrong but not apply that knowledge to his own actions, as the right reverend Prelate said. Simple knowledge of whether something is right or wrong is an oversimplification, yet it underpins our current system. We are told that there is substantial evidence of a correlation between offending behaviour and a background of abuse and trauma—the noble Earl, Lord Listowel, made that point. I am not in a position to argue that correlation amounts to cause, but my instincts tell me that, against a background of knowledge of cognitive and emotional development, we ought to bring our law at least a little more up to date.

My noble friend disposed of the argument that there is no need to change the law because the numbers concerned are low, but those numbers are a cohort of individuals and we should think of them as individuals. The Bill may not be a magic bullet and I very much agree with the wider points made, particularly by the noble Baroness, Lady Bottomley, and my noble friend Lord McNally, but that does not mean that it is not important and indeed necessary.

13:46

[Baroness Chakrabarti (Lab)]

My Lords, it has been an enormous privilege to listen to the noble Lord, Lord Dholakia, speak about a cause that he has doggedly championed over many years. I take this opportunity to thank him for that tenacity in raising concerns around the age of criminal responsibility in this country. It is certainly an area that demands review and careful consideration. On that basis, I am happy to lend the support of this Front Bench to the further consideration and progress of the Bill. From what we have heard, it certainly warrants further debate.

It has also been a daunting privilege to follow the noble Baroness, Lady Bottomley, my noble friends Lord Judd and Lady Massey, the noble and learned Lord, Lord Brown of Eaton-under-Heywood and so many other experts in this and related fields, which the subject matter warrants. This is no insignificant matter. Children above the age of criminal responsibility are subject,

“to the full rigour of the criminal law”.

They can be arrested, charged and, in certain circumstances as we have heard, be tried in a Crown Court and awarded the equivalent of adult sentences, including life sentences. They can also, of course, receive a criminal record. I do not agree that the numbers are small—360 children under the age of 12 in one year is not a small number to be convicted of an offence. With that age set, as we have heard, at just 10 years of age, the law of this country is dramatically out of step with the rest of Europe, where the average is 14. I understand that in Poland the age is set at 17 years old. Even our closest neighbour, Scotland, voted in 2010 to amend the age of criminal prosecution, at least, to 12 years of age.

In addition, the UK’s legislative position in this area stands at odds with the accepted international human rights framework. The EU Committee on Social Rights in 2005 declared our age of criminal responsibility in England and Wales “manifestly too low” and incompatible with EU charters. We have heard that in May 2016 the UK Children’s Commissioners made a joint submission to the UN Committee on the Rights of the Child calling for the UK and devolved Governments to raise the minimum age as a matter of urgency. Following that submission, the committee on the rights of the child recommended that we change existing legislation to meet that recommended international standard of 12,

“as the absolute minimum age”,

and even,

“to increase it to a higher age level”.

We have also heard about the evidence on child development which supports a growing international consensus in this area. Research in neuropsychology suggests that crucial brain development underpinning behaviour continues until at least 20 years of age. Indeed, the noble Baroness, Lady Murphy, suggested that it might continue for even a little longer than that. The prefrontal cortex, which is responsible for decision-making, impulse control and cognitive control, is among the slowest parts of the brain to mature. Psychologists have also shown that adolescents are not wholly responsible individuals and are inclined to take particular risks and behave in irresponsible ways. In 2011, the Royal Society published a report stating that,

“it is clear that at the age of ten the brain is developmentally immature, and continues to undergo important changes linked to regulating one’s own behaviour”.

If hard science is not sufficient to make the case, perhaps basic logic might prevail. Areas of social policy outside of criminal justice allow for the capacity of adolescents to make informed choices to differ in many respects from those of adults. As a result, the corresponding legal framework dealing with children’s rights and responsibilities provides for a range of age-related safeguards and limitations. Again as we have heard, these include a prohibition on the paid employment of children under the age of 13, the legal age of consent to sex which is set at 16, the statutory school-leaving age currently set at 16 years, legislation to prohibit the sale of alcohol or tobacco to those under the age of 18, and further legislation which holds that children are not permitted to go on active service in the Armed Forces, vote in elections, get married without parental consent or sit on a jury before they have reached the age of 18.

It is surely illogical and certainly inconsistent to hold that a child of 10 possesses the decision-making capacity to commit a criminal offence in full knowledge of the legal implications of their actions and the very real consequences both for themselves and their victims. Although a 10 year-old may well be able to distinguish right from wrong, there is little evidence to suggest that they are equipped to engage meaningfully with issues of morality and should be held to account for their actions if they commit an offence in the same way as an adult.

In reviewing the age of criminal responsibility, we must understand the consequences for those children who at a very young age are being sucked into the criminal justice system. Despite best efforts, contact with the system at this age is likely to have very little success in preventing further offending and may well severely limit their ability to participate more widely in society in adulthood. Indeed, a National Association of Youth Justice report from 2012 revealed evidence that,

“the criminalisation of children is associated with higher levels of offending in adulthood”.

The detrimental consequences for children being put through the criminal justice system go further than reoffending, in particular the associated stigma and discrimination faced by those with a criminal record in accessing housing, education, training and employment. We must ask ourselves if these effects, which are felt long beyond the original sentence and well into adulthood, are disproportionate. As the noble Lord, Lord Dholakia, has said, this is not about ignoring or excusing even very bad behaviour, it is about deciding on the most appropriate and effective response when it is perpetrated by some very young and troubled children. As my noble friend Lord Judd said, these children are often victims themselves.

I wonder how many of us in this House have children or grandchildren who have, in our homes at least, technically committed criminal damage. We may be frustrated or even angry, but we are unlikely to call the police. Should children who are looked after by the state or by parents who are themselves inadequate and troubled face the double disadvantage of early and unnecessary criminalisation? That this disadvantage is significantly more likely to impact children from black, Asian and minority ethnic communities is of further concern, with the Lammy report published today finding that the BAME proportion of youth prisoners has risen over the decade between 2006 and 2016 from 25% to 41%.

This debate, as pointed out in particular by the noble Baroness, Lady Bottomley, and by others, takes place in the wider context of youth engagement with the criminal justice system. I urge the Government to respond to this Bill at the very least by initiating a more substantial, cross-departmental review, including the age of criminal responsibility but also the treatment of young offenders and their relationship with the system as a whole. The current system is deeply flawed and we as a country are failing our young people, in particular some of the most vulnerable and susceptible youth.

In thinking about these issues I shocked myself into remembering that I have now worked in and around criminal policy for more than 20 years. I agree with many noble Lords that there has been some positive progress in some areas, but I fear it has not been a golden age of enlightenment. We can do better than this. I know the noble Baroness opposite to be a very thoughtful person. We came into your Lordships’ House at around the same time a year ago and what a time it has been, with uncertainty and tumult at home and abroad. We now have a minority Government and, understandably, Brexit issues dominate discourse and debate in your Lordships’ House and elsewhere, but surely there must remain some space for thoughtful reflection on vital domestic issues such as this. If not in your Lordships’ House, then where? If not us, then who? I do not know to what extent the noble Baroness, having heard this debate, has any room to suggest even some openness on the part of the Government to reflect further on these issues, but I hope at the very least she can avoid in her remarks slamming the door too firmly closed.

13:57

[Baroness Vere of Norbiton (Con)]

My Lords, I thank all noble Lords for their very insightful contributions, and of course the noble Lord, Lord Dholakia, in particular for introducing this Bill and bringing this important matter back for debate in the House. I recognise the noble Lord’s long-standing commitment to this subject.

The age of criminal responsibility in England and Wales was set at 10 in 1963, as we have heard, and Governments of all parties since have maintained this position. This Government take the view that children aged 10 and above are able to differentiate between bad behaviour and serious wrongdoing and can therefore be held accountable for their actions. Where a young person commits an offence, it is important they understand that this is a serious matter. The public and the victims of crime must also have confidence in the youth justice system and know that offending will be dealt with. The youth justice system needs to retain its ability to respond flexibly and effectively, which I believe it does.

The number of 10 and 11 year-olds in the youth justice system has fallen dramatically. This is something we all should celebrate. Since the peak in youth offending in 2007, the number of 10 and 11 year-olds entering the youth justice system for the first time has fallen significantly. In 2016-17, just 2% of first-time entrants were aged 10 or 11. In 2016, only 116 10 and 11 year- olds were taken to court, compared with more than 6,000 12 to 14 year-olds. In 2016, just 380 cautions and convictions were given to children aged 10 and 11 and the vast majority of these—81%—were cautions. This is a 95% reduction since 2007.

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 is diverted away from the formal criminal justice system. However, it would be wrong to ignore the fact that offences committed by young people, including by those aged 10 and 11, can have a devastating effect on victims and the community, and we believe it is important that serious offences can be prosecuted.

Children who have committed a crime need interventions and support to address the causes of their offending, as was so ably pointed out by my noble friend Lady Bottomley. We must make sure that they are not drawn further into the formal youth justice system unnecessarily. Alongside the work of the police and local communities to divert children away from the formal youth justice system, liaison and diversion services identify young people with specific needs or vulnerabilities when they come into contact with the criminal justice system. They support these children through the early stages of the system and refer them to appropriate health and social care and divert them away from the justice system altogether if that is appropriate. These services are being rolled out in police stations and courts and are expected to cover 82% of the country by the end of this year, with a view to 100% coverage by 2021.

The majority of 10 and 11 year-olds who enter the youth justice system receive a caution. This means that low-level offending by younger children which does not need prosecution at court can be dealt with quickly and easily, while still allowing that child to receive the support they need to stop offending. If a child is sentenced in court, there are a number of flexible community sentences available. Referral orders require the child to attend a meeting with a panel including members of the local community and agree the steps they will take to change their behaviour. Youth rehabilitation orders can have specific requirements attached, such as a mental health or education requirement to address the child’s offending behaviour. This allows the court to tailor the sentence to the young person by addressing their individual needs and ensure that the community is protected.

The Government have also taken steps to make sure that these young people are not subject to custody except in the most serious cases. Custody is only available for 10 and 11 year-olds if they commit a crime where an adult would be liable to a sentence of at least 14 years’ imprisonment. In addition, courts must consider imposing a community order with a high-intensity supervision requirement before they can pass a custodial sentence. If the court decides to order a custodial sentence, it has to explain why it has done so in open court. The fact that, between 2007 and 2016, just five custodial sentences were given to 10 and 11 year-olds shows that all but the most serious cases of offending are being dealt with in the community. Even if a child of this age is sent to custody they would be placed in a secure children’s home. Here, there is strong focus on addressing their and their family’s needs as well as the offending behaviour.

I turn briefly to the issue of whether responses to criminal activity are age-appropriate. When considering the most appropriate response to offending by a young person, the age and maturity of the child is always taken into account. We are keen to ensure that, wherever possible, and depending on the severity of the offence, children are not unduly prosecuted. This is why most children aged 10 to 14 are diverted from the youth justice system or receive an out-of-court disposal. Where a 10 to 12 year-old child is prosecuted, the court is required to take their welfare into account, as it must when dealing with all those under 18 when determining the appropriate sentence. This includes taking into account the age of the child—their chronological age as well as their maturity.

We are aware that most European countries have a higher minimum age of criminal responsibility, and that the United Nations considers 12 to be the minimum acceptable age. However, countries such as Switzerland, South Africa, Australia and the United States also have an age of criminal responsibility of 10. We believe that each country must make a judgment based on its own circumstances and procedures. It is not as simple as saying that our age of criminal responsibility should be the same as that of other European countries. Indeed, it can be misleading to make such simple comparisons. Having the age of criminal responsibility at 10 enables the youth justice system to deal with those cases which require the justice system to be involved but, crucially, it does not preclude other types of intervention instead, where this is a more proportionate response.

I assure the noble Baroness, Lady Chakrabarti, that we are committed to reforming youth justice, and the government-commissioned Taylor review of the youth justice system was published in December 2016. The Government are implementing a number of the recommendations, including developing plans for secure schools, which will provide a safe, secure environment with education and health at its heart. We are committed to ensuring that young offenders receive tailored education, health and care interventions that meet their needs, so that they are better prepared for life in the community and, most importantly, so that they do not reoffend.

It is important that both the public and the victims of crime have confidence in the youth justice system and for communities to know that young people’s offending behaviour will be addressed. Victims of serious crimes committed by 10 and 11 year-olds must feel assured that those responsible can be proceeded against by the courts. But we must also ensure that these young people are rehabilitated and educated if we want them to cease their criminal activities.

In conclusion, the Government believe that the age of criminal responsibility is appropriate and accurately reflects what is required of our justice system. For these reasons, the Government do not support the Bill.

14:07

[Lord Dholakia]

My Lords, I am grateful to the Minister for her response. I am disappointed, to say the least, by the position she has taken. I remind her to look at David Lammy’s report, published this morning, which talks about how to divert young people before they are criminalised and the alternative ways and means by which you can deal with young people. It is only when that system fails that one has to use the criminal process. This was accepted by David Lidington when he said he would give serious consideration to the requests made in the report. I hope the Minister will have the opportunity to read the report and, if possible, at a later stage of the Bill to come back on this point.

I thank all noble Lords who have participated in the debate. The distinguished list includes Ministers, past and present; senior judiciary; and those involved in child welfare work and the legal profession. I am grateful for their contributions and support, and particularly for giving up their time on a Friday afternoon. That includes my friend, the noble Baroness, Lady Bottomley, who is my neighbour and I shall certainly speak to her privately.

The Bill follows a very important debate that took place yesterday, introduced by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. One thing that came out of that debate is the need to work effectively in diverting young people away from the criminal justice process. What David Lammy is talking about in his report—the noble Baroness, Lady Chakrabarti, brought this factor out—is that 40% of people in that situation reoffend, and we are looking at part of it. Ultimately, we have to look at how we approach this subject in order to divert more people away from the criminal process.

I say to the Minister that some years ago I was very keen on introducing a Bill on the rehabilitation of offenders, which had been with the Home Office for about 30 years and no change had taken place. I persisted with that Bill on two occasions. During the coalition Government, when Ken Clarke was the Minister for Justice and my noble friend Lord McNally was another Minister, I was invited to see them, and when I did, they sat in their posh ministerial chairs and confronted me about my intentions. It reminded me of the Preston Crown Court, which my noble friend mentioned earlier. Nevertheless, many of the recommendations in my Rehabilitation of Offenders (Amendment) Bill were accepted by the Home Office and the Minister for Justice in the LASPO Bill that that Government introduced.

One of the most interesting things in the research which has been done is evidence showing that many people have been helped to build or rebuild their future by no longer having to disclose some of their criminal record. That is the type of proposal that we are talking about, to ensure that our society looks at how to rebuild the lives of the many young people who go through the system.

Finally, it might be helpful if, at some stage, the Minister could give an indication of the Government’s view on the Lammy report and the provisions it addresses concerning young people. At this stage, however, I simply ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.