Age of Criminal Responsibility Bill [HL]

Lord Dholakia Excerpts

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

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.

--- Later in debate ---

[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.