Age of Criminal Responsibility Bill [HL]

Lord Thomas of Gresford Excerpts

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

[Lord Thomas of Gresford (LD)]

My Lords, I was very interested in the views expressed in Bucharest to my noble friend Lord McNally about this country and its attitude to penal matters. I blame Charles Dickens, who portrayed packs of feral children and implanted that concept deep in the English psyche. For many centuries, children were protected by the common law presumption of doli incapax. The rationale was that a child aged under 14 years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea. Blackstone’s Commentaries on the Laws of England, published in 1769 said this:

“By the law, as it now stands, and has stood at least ever since the time of Edward the Third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment … though an infant shall be prima facie adjudged to be doli incapax under fourteen; yet if it appear to the court and jury, that he was doli capax, and could discern between good and evil, he may be convicted and suffer death … But, in all such cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt or contradiction”.


So I am not so sure that we need detailed understanding of the white matter in the—whatever it was, to appreciate that children are different.

In the enlightened days when he was Home Secretary, Lord Jenkins of Hillhead was responsible for Section 4 of the Children and Young Persons Act 1969. That Act provided that a person should not be charged with an offence, except homicide, by reason of anything done or omitted while he was a child—that is, under 14. Sections 34 and 73 of the Act enabled the minimum age of criminal responsibility to be increased gradually from 10 to 14 by statutory order. Then the 1970 election happened and a day was never appointed for Section 4 to be brought into effect, nor were any orders ever made. In due course, Section 72 of the Criminal Justice Act 1991 repealed Section 4 of the 1969 Act. One can see how forward thinking Lord Jenkins was in wishing to have the age of criminal responsibility at 14.

The James Bulger case changed perceptions and the atmosphere completely in 1993. In 1994, in a Divisional Court case called In re C, about the attempted theft of a 125cc Honda motorbike in Liverpool, Mr Justice Law, as he then was, said that the presumption of doli incapax,

“has no utility whatever in the present era”,

and that it “ought to go”. He robustly said—he frequently said things robustly—that the presumption was no longer part of the law of England. On appeal from that decision in 1995, the Judicial Committee of the House of Lords thought that he had perhaps strayed beyond the remit of judges in the making of the law. Lord Lowry said that the culpability of children was,

“not so much a legal as a social problem, with a dash of politics thrown in”,

and that,

“it should be within the exclusive remit of Parliament”.

He added that:

“There is a need to study other systems, including that which holds sway in Scotland”.


I will come back to that.

In 1998, the presumption of doli incapax was abolished. Those were the days when we were to be, “Tough on crime and tough on the causes of crime” and nothing was done to alter the age of criminal responsibility. In March 1998, my noble friend Lord Goodhart moved an amendment in the name of my noble friend Lord McNally to retain the rule but reverse the burden of proof. That was defeated, with only the Liberal Democrats voting in support of it. I spoke on Report in favour of the children’s hearings system in Scotland—talk about escaping from old ideas, as the noble Baroness, Lady Bottomley, said.

The 1966 Wilson Government had intended children’s hearings to apply in England and Wales as well as in Scotland but there were strong representations from the Magistrates’ Association and the Justices’ Clerks’ Society in England which led to that not going ahead in this country. Under the system in Scotland, misbehaviour on the part of a young person is reported to the Children’s Reporter Administration and brought before a children’s panel comprised of volunteers from within the community, who hold a meeting without wigs, gowns or judges and discuss with the parents and the offender how his or her behaviour should be addressed. That is admirable. What assessment have this and previous Governments made of children’s hearings over the years? I would be interested to know whether anybody has looked at children’s hearings in Scotland and thought that they ought to apply here.

We are out of kilter with the civilised world. As many have said, the United Nations Committee on the Rights of the Child has said that our system is “internationally unacceptable”, yet the CPS code for prosecutors ironically says:

“Prosecutors must also have regard to the obligations arising under the United Nations 1989 Convention on the Rights of the Child”.


However, that is ignored.

On 21 December 2016, the High Court of Australia upheld the principle of doli incapax. That court made it plain that, for there to be any prosecution of a child aged 10 to 14 there must be evidence that the child understood that his or her conduct was seriously wrong in a moral sense,

“as distinct from it being rude or naughty”.

It was not enough just to prove that a particular crime had been committed.

I, too, thank the noble Lord, Lord Dholakia, for pursuing this matter with all the ambition and drive that he has shown over the years. I very much support the Bill that he has brought forward.