Age of Criminal Responsibility Bill [HL]

Lord Dholakia Excerpts

Friday 29th January 2016 Lords Chamber

Moved by

[Lord Dholakia]

That the Bill be read a second time.

[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 response from the age of 10. 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 can also include burglary—will be tried in the adult Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the 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. The Minister will be aware from his experience that 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, 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 on 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”.

Taking 10 and 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 these 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, it could mean long-term detention 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. 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 prosecution. The point was made very well in 2012 in a report from the Centre for Social Justice, which was set up by the Secretary of State for Work and Pensions, Iain Duncan Smith. In 2012 the centre 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 10 is appropriate”.

The evidence from international research is overwhelming, showing that children of 10 and 11 have less ability to think through the consequences of their actions, empathise with other people’s feelings and control impulsive behaviour. This does not mean that children aged 10 or 11 are not responsible for their actions, but that 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 that assume a capacity for mature, adult-like decision-making.

In all other areas 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 of smoking and drinking, children are not regarded as 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 a strange twist of logic, a child of 10 is seen as capable of participating in the criminal justice process. I simply cannot accept that.

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 a youth justice disposal is small. “Small” is not necessarily the right argument. We are talking about normally fewer than 300 a year who are prosecuted and sentenced in court. Even though this represents a small proportion of those going through the criminal justice system, what happens to up to 300 vulnerable children can hardly be regarded as a matter of little importance. The fact that the numbers involved are relatively small is a strong argument for the Bill; it means that it would 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. Again I quote the Centre for Social Justice report, which says that,

“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 justice 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 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, very few receive a custodial sentence, and in some years none do. 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 my inclination at this stage is to resist making 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 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. That is a completely unacceptable way to deal with young defendants and one which 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. 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.

--- Later in debate ---

[Lord Dholakia]

My Lords, I am grateful to the Minister for his contribution to the debate and for the observations that he has made. I am of course disappointed that the Government are not prepared to support this very simple measure. I do not wish to take any longer than necessary; many noble Lords have given up considerable time to be present here on a Friday afternoon, so I shall be very brief. I just want to make one or two points.

The noble Lord, Lord Cormack, was absolutely right when he said that we are a civilised society, but we must also accept that in any civilised society, from time to time, there will be heinous and serious crimes and it is how we deal with such crimes that determines how civilised we are. In this respect, if there is one message I would like the Minister to take to the Secretary of State, it is that this time I have the church on my side: God is speaking on my behalf as well, so I hope there will be change at some stage.

My second point was made by the noble Baroness, Lady McIntosh. I appreciate what my friend and colleague the noble Lord, Lord Bach, said: the Labour Party is reviewing this policy and it remains for its membership to influence it and say that there is substance in the arguments that have been put forward.

Let me give the Minister an example. Under the coalition Government, I persisted in bringing forward my Bill on the rehabilitation of offenders. My purpose was very simple. Welfare and rehabilitation go hand in hand on this sort of issue. I was able, with the support of the House of Lords, to discuss it on a number of occasions, but I did not get any support from either the Labour Party or, later, from the coalition. However, I was able to convince my noble friend Lord McNally to fix a meeting with the Secretary of State at that time, Ken Clarke. Together, we sat down and we were able to take forward, under the LAPSO Bill, a number of suggestions that came from my Bill. According to private research that has been carried out, the simple measure to amend the Rehabilitation of Offenders Act that I proposed now benefits more than 750,000 young people in this country. That is a tremendous strength that has come from legislation of this nature. We are not saying that people should not be dealt with or that people’s perception that youngsters will get away is wrong. All we are saying is that there are better ways of dealing with them and I hope we can pursue them.

At this late hour, I thank all noble Lords for their contributions. Sometimes the Government should remember that they assume wrongly that the public are as punitive as they tend to make out. They are not. It is better not to follow newspaper headlines but to see what is right and appropriate as far as the criminal justice system is concerned.

Bill read a second time and committed to a Committee of the Whole House.