Age of Criminal Responsibility Bill [HL]

Baroness Murphy Excerpts

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

[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.