Age of Criminal Responsibility Bill [HL]

Baroness Chakrabarti Excerpts

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

[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.