Police, Crime, Sentencing and Courts Bill

Lord Dholakia Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Wednesday 15th December 2021 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, I support the noble Lords, Lord Coaker and Lord Kennedy. I shall speak to my Amendment 104FB, which would require the Secretary of State a year hence to carry out a review of the adequacy of police resources devoted to assaults on retail workers. Like the noble Lord, Lord Kennedy, I always had very good relations with USDAW in my many years as—I suppose you could say “a retail boss”—an executive at Tesco.

I start with an enormous thank you to my noble friend the Minister for arranging a meeting with the retail industry bodies, USDAW and several parliamentarians, including myself, with a star cast of the Deputy Prime Minister, the Home Secretary and the Attorney-General. We all felt, for the first time, that we were having a high-level and constructive discussion on what could be done across the board about violence and abuse of retail staff. That is against a background of 455 security incidents a day, according to the BRC, and very few prosecutions.

The police response to these incidents has historically been inadequate. We need to ensure that the police have the right resources and can put a higher priority on prosecuting these retail crimes. This is particularly important given the role of retail workers in enforcing Covid restrictions such as masks, but also in addressing knife crime and shoplifting, as the noble Baroness, Lady Harris, explained, which in my experience is often caused by the need for individuals to get drugs, so it feeds into drug crime as well.

At the Zoom meeting, the industry welcomed the fact that the Government had recognised the seriousness of the issue and tabled Amendment 84, which we have heard about from my noble friend. This would mean that the worst offenders could see tougher sentences. The industry also very much welcomed the new relevant instructions from the Home Secretary and from the Attorney-General.

However, it is important to ensure that this new measure has the desired effect in terms of police effort. I believe there should be a regular review to monitor its effectiveness, hence my amendment proposing a review in a year’s time, which I hope the Minister will feel able to support.

[Lord Dholakia (LD)]

My Lords, Amendment 114 is in my name. We discussed it in Committee and I have studied at great length the response from the Minister. Unfortunately, it has not satisfied many retail traders, whose income depends on crime being prevented. The consequences for shop insurance and livelihoods depend on proper action on low-level crimes.

In 2014, a change in the law meant that shop theft valued at less than £200 would not be charged through the courts but, rather, would be tried summarily. The reasoning behind that was to make the prosecution of cases more efficient. The Government may claim that that has happened, but that is only because the courts no longer see the problem and no longer see that it takes an average of 30 convictions for this type of criminal to go to jail. The burden has fallen on small retailers, who now see savvy criminals exploiting the situation to steal with virtual impunity.

The cost of retail crime to retailers is huge. My noble friend Lady Harris mentioned the cost, according to figures supplied to us by the British Retail Consortium, to those such as members of the British Independent Retailers Association. Money that could otherwise be used to improve facilities, raise wages and improve the offers to consumers instead goes straight into the pockets of criminals.

--- Later in debate ---

[Earl Attlee (Con)]

My Lords, I rise briefly to support the noble Baroness in Amendment 89, for the reasons she has outlined. I think the noble Lord, Lord Ponsonby, in this Report stage seems to get the short straw every time. I have a question for my noble friend the Minister about the role of the CPS when deciding to prosecute. It has to apply the test of public interest. Is the very young age of a defendant a proper consideration for the CPS when making that public interest test?

[Lord Dholakia (LD)]

My Lords, Amendment 89 is also in the name of the noble and learned Baroness, Lady Butler-Sloss, who cannot be with us today but has faithfully promised to support it. I have a Private Member’s Bill on this same subject which is awaiting its Second Reading. Suffice to say, on at least two previous occasions, it has gone through all its stages in this House, but the general election intervened last time and halted its progress. Let me assure the House that the Bill is not going to be put into the long grass. I will come back again and again until we find some success in its implementation.

I also thank the noble Baroness, Lady Chakrabarti, for her support of this amendment, the noble Lord, Lord Ramsbotham, for his kind words, and my noble friend Lord German, who took up this issue in Committee when I was hospitalised on that particular day.

The amendment is designed to raise the 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 over 50 years ago, in 1963, when the age of criminal responsibility was raised from eight to 10 by the Children and Young Persons Act of that year. 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 an adult Crown Court. A child of 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 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 it is 13; in Germany, Spain, Italy, Austria, Hungary, Bulgaria, Slovakia, Slovenia, Croatia and Romania it is 14. In most 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. Recently the committee recommended that the UK should

“raise the minimum age of criminal responsibility in accordance with acceptable international standards”.

Taking 10 to 11 year-olds out of the criminal justice system will 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 majority 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 to 12 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 MACR, at ten, is appropriate.”


The evidence from international research is overwhelming. 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, concluded in 2011 that,

“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 10 year-olds 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 states that,

“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 in order 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 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”.