Lord Dholakia
Main Page: Lord Dholakia (Liberal Democrat - Life peer)Age of Criminal Responsibility Bill [HL]
Lord Dholakia Excerpts
Lord Dholakia (LD)
My Lords, my Bill 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. That 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”—that includes serious violent and sexual crimes but can also include burglary—can be tried in the Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the adult Crown Court.
At 10 years old, the age of criminal responsibility in England, Wales and Northern Ireland is the lowest in Europe. In Ireland, in 2006, the age was raised to 12 with exceptions for homicide, rape or aggravated sexual assault. In Scotland, in 2010, legislation provided that children cannot be prosecuted below the age of 12. Outside the British Isles, the age of criminal responsibility is invariably higher. In France, Greece and Poland, it is 13. In Germany, Spain and Italy, Austria, Belgium, Hungary, Bulgaria and Romania, it is 14. In the rest of Europe, it ranges between 14 and 18.
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 obligations 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”.
I do not wish to be misunderstood on this point. Of course, taking 10 or 11 year-olds out of the criminal justice system would 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 those children’s offending through intervention by children’s services teams. In the minority of cases where court proceedings are necessary, it would mean bringing children before family proceedings courts, which can impose compulsory measures of supervision and care. In the most serious cases, that can mean long-term detention in secure accommodation, but that 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 be dealt with in criminal courts. That does not logically follow at all. Most six year-olds have a sense of right and wrong, but no one suggests that they should be subject to criminal proceedings or prosecution.
The point was made very well in 2012 in a report by the Centre for Social Justice, which was set up by my right honourable friend the Secretary of State for Work and Pensions, Iain Duncan Smith. The centre produced a report on the youth justice system in 2012 entitled Rules of Engagement: Changing the Heart of Youth Justice. It states:
“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 overwhelming. Anyone who has sat in youth justice courts or family courts and knows that it is clearly demonstrated. It 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 and less ability to control impulsive behaviour. That does not mean that children aged 10 or 11 have no responsibility for their actions—that is not what I am trying to say—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 based on ideas of culpability which assume a capacity for mature, adult-like decision-making. There is no other area of law—whether it is the age for buying a pet, the age for paid employment, the age of consent to sexual activity or the age for smoking and drinking—where we regard children is fully competent to take informed decisions until later in adolescence. The age of criminal responsibility is an anomalous exception. Ironically, a 30 year-old who had a mental age of a 10 year-old child would probably be regarded as unfit to plead and yet, by some twisted freak of logic, a child of 10 is seen as capable of participating in the criminal justice process. How absurd.
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 disposal is small—we are given the figure of about 2,000 a year, a very small number. Even though this represents a small proportion of those going through the criminal justice system, however, what happens to 2,000 vulnerable children can hardly be regarded as a matter of little importance. 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 can it be argued that dealing with these children through non-criminal processes would 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 who are dealt with through the criminal justice process are more likely to reoffend than those who are 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. 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”.
This is a particularly important point, as children who go through the criminal process at a young age are often young people from chaotic, dysfunctional and traumatic backgrounds involving some 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 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 who are charged and prosecuted each year, the number who receive a custodial sentence is normally in single figures. However, although the number of serious child offenders is small, the public will of course 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. I am willing to consider this point in Committee but at this stage my inclination is to resist making any changes or exceptions. The most serious child offenders invariably have the most complex welfare needs. Their backgrounds include experiences of serious physical abuse, sexual abuse, emotional abuse and neglect, parental mental illness, rejection and abandonment by adults, traumatic loss, conduct disorder and serious emotional disturbance. They need a welfare-based approach, in secure care if necessary, to help them to 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.
Noble Lords will recall the trial of the boys who killed James Bulger, who were aged 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 dealt with by a trial 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 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.
Exposing such youngsters 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. That 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 that resulted from a public Crown Court trial. I repeat that I am prepared to consider the possibility of exceptions in Committee, but the House will understand the reasons why at present I am inclined to the view that there should be no exceptions.
I commend the Bill to the House. The simple proposition that it contains, if enacted, would be an important step towards dealing with vulnerable, difficult and disturbed children in a way that befitted our civilised society. I beg to move.
Lord Dholakia
My Lords, I thank the Minister for his response to the debate. Every time I prepare my contribution, the first thing I write mentally is the speech that the Minister is supposed to make, and he has not disappointed me. Perhaps I can say very simply to him that if this is good enough for the rest of Europe—many countries and international examples have been cited—I think he needs to look seriously at why we are falling behind on this issue. I will not be making an inroad on the time of the House on a Friday afternoon when there is another debate to come, but I want to take this opportunity to thank all noble Lords who have contributed.
The contribution of the noble Earl, Lord Listowel, on matters relating to children and young people is unique in the House and we should take serious note of what he says. In regard to the noble Lord, Lord Ramsbotham, every time he speaks I am sure that at the least I will agree with what he says, and in many cases I will follow him into the appropriate Lobby. He has never been wrong in identifying these issues and I thank him for his contribution. It was also very nice of the right reverend Prelate the Bishop of Derby to speak in the debate. You cannot be wrong if God and the church is your side, and I welcome his contribution to the issue. The noble Baroness, Lady Thornton, was absolutely right in what she said about public opinion.
Let me put it this way: there are other issues that the Government and this country are going to have to face. Those include prisoners’ voting rights, which will come before noble Lords before long. Sometimes it is necessary for the Government to give a lead rather than follow public opinion, and this is one of those times. I ask the House to give the Bill a Second Reading.