Age of Criminal Responsibility Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Friday 29th January 2016 Lords Chamber

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

My Lords, I join other noble Lords in congratulating the noble Lord, Lord Dholakia, on his persistence in advancing this worthy cause, to which I add my support.

First, I shall give a very brisk canter through the history of this question. Before 1933, the age of criminal responsibility was in fact seven. You were deemed to be what was called doli incapax—incapable of evil—until the age of seven; for the next seven years of your life— seven to 14—you were presumed to be doli incapax. The Children and Young Persons Act 1933 increased the age from seven to eight, therefore leaving a presumption from eight to 14. Thirty years then passed until 1963 when eight was increased to 10 and 10 to 14 became the age of presumed doli incapax. Thirty-five years then passed until the Crime and Disorder Act 1998 which abolished the presumption of not being criminally responsible and left it to the prosecution to prove criminal responsibility for that 10 to 14 group. The prosecution would seek to prove it by showing that the defendant knew his conduct was seriously wrong and therefore criminal as opposed to merely naughty.

That position, however, remained unclear for about a decade from the 1998 Act because it was thought by some that instead of the presumption having been abolished in respect of the 10 to 14 year-olds, it had merely been reversed. In this Chamber in 2009, in a case to which I was party, R v JTB—we sat in the February recess in 2009 at this end of the Chamber, at the Bar of the House—we decided, not as a matter of policy but as a matter of statutory construction of the 1998 Act, that indeed it had been abolished. Therefore, as we all now know, today if you are under 10 you cannot be convicted of a crime, but once you have reached the age of 10 then your particular age, whether you are 10, 11, 12, 13 or whatever, as a matter of strict law becomes entirely irrelevant except in so far as it would bear on the court’s assessment of how reasonably you had behaved if, for example, you were running a defence of self-defence, or if some question of subjective recklessness, foresight or intention—something of that sort—were involved. But the earlier all-important question between the ages of 10 and 14 of whether you knew what you were doing was seriously wrong was no longer being asked.

Enough of the history. As the noble Lord, Lord Dholakia, has explained, internationally, even indeed within the UK, 10 is among the very youngest ages of criminal responsibility. Surely the critical question must be how as a society we deal with these youngsters to address their misconduct and wrongdoing. The word “criminality” would of course beg the very question. As I understand the position, the substantive disposal of these cases of wrongdoing—of a child in, say, the age group 10 to 12, which is that which we are focusing on today—really is substantially the same whether they are above or below the age of criminal responsibility. I repeat “the substantive disposal” because that is of course a very different question from whether one reaches that by way of the criminal justice system and through the criminal courts or by what is essentially a corrective welfare process. Obviously, whichever side of the line they are, these children will if strictly necessary be detained securely, but generally of course they will be subject to the sorts of welfare programmes that have been outlined by others today.

I shall make a very brief digression in parenthesis if I may. The GOV.UK website states that children under 10 who break the law but of course cannot be charged with a criminal offence can be given either a local child curfew or a child safety order. Actually, as the Library helpfully pointed out to me yesterday, having done a little research on it, local child curfews, introduced in 1998, were in fact repealed by the Policing and Crime Act 2009. One notes that the website perhaps needs correction.

Today, though, that is essentially by the way. Altogether more important are child safety orders and, if necessary, care proceedings and orders under the Children Act. Surely our central focus should therefore be on refining and extending the presently available welfare programmes and corrective steps, rather than on criminalising youngsters. The real and compelling reason to raise the age of criminal responsibility, as so many others have tellingly observed today, is to delay for that much longer actually criminalising these very young people. They are still developing as individuals, developing their identities and self-esteem, and if society—represented here, of course, by the criminal justice system it operates—characterises and brands them as criminals, unfortunately, that is how they will come to identify themselves. Alas, that makes it all the more likely—statistics bear this out—that they will thereafter indeed develop into criminals, perhaps career criminals. Surely we must strive to avoid that, above all. In short, we should keep these youngsters out of the criminal courts, protecting against the early acquisition of a criminal record which then will remain with them for ever.

Is the future of this issue to be regarded as settled for all time by that tragic, ghastly and appalling case of Jamie Bulger, which of course we all still remember so vividly? For my part, I fervently hope not and I wish the Bill well.