Age of Criminal Responsibility Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

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

[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.