Evaluation of the Age of Criminal Responsibility in England and Wales

Using the available evidence, evaluate the contention that the current age of criminal responsibility in England and Wales is too low.

Introduction

The current age of criminal responsibility in England & Wales is 10 years old, this ‘denotes the age at which any criminal justice system permits itself to bring criminal proceedings against a child who commits a crime.’ (Fionda, 2005: 9). The age of criminal responsibility has been set at 10-years-old since the Children’s and Young Persons Act 1963. Prior to this, the age was 8 years old after the Children’s and Young Persons Act was passed in 1933. The age has previously been as low as 7-years-old in the 17th Century (English Legal History, 2013). Currently, children below the age of 10 are deemed to be doli incapax which is a Latin term that translates to ‘incapable of committing an evil act’ (Arthur, 2010: 43). The age of criminal responsibility is able to change over time and it reflects ‘social and legal constructions of childhood and tell us much about what we may expect from children at various ages’ (Fionda, 2005: 8). It is important that the age of criminal responsibility is updated regularly as the definition of childhood is socially constructed and is able to change. Additionally, the rates at which children mature and develop are ever-changing. England & Wales currently have the lowest age of criminal responsibility in Europe and the age is often criticised for being too low. The United Nations Committee of the Rights of the Child recommends that the minimum age of criminal responsibility should be 12 years old, adding that this is still regarded as low and aim to encourage states to increase the age to 14 years old (UN Committee on the Rights of the Child, 2007). Currently the criminal age of responsibility does not comply with international human rights conventions and there have been multiple attempts to raise the age, however all have been unsuccessful. This essay will firstly discuss childhood as a social concept and how the age of criminal responsibility depends upon the current idea of what childhood is. The essay will then discuss the importance of the now abolished principle of doli incapax and how the removal of this essentially ignored to need for special consideration for children in the criminal justice system. This essay will also discuss the murder of James Bulger by two ten-year old boys and will then put forward the current arguments to raise the age of criminal responsibility in England & Wales, and some which support the view to keep the age of criminal responsibility at a low age.

Childhood

Firstly, it is important to discuss the idea that childhood is a socially constructed concept so that we can understand that the definition may change over time, consequently resulting in the need to raise or lower the age of criminal responsibility. Fionda argues that ‘the choice of a minimum age of criminal responsibility must reflect a consensus on the social construction of childhood and any perception that children are maturing any earlier or later than in previous times’ (Fionda, 2005: 15). This refers to the fact that the age of criminal responsibility must change in order to match the current idea of childhood and it must take into consideration the idea that the rates at which children are maturing may be increasing or decreasing. The changes in the law on the age of criminal responsibility are able to ‘define childhood, and how we understand the processes of development and maturation’ (Case et al., 2017: 230). James and Jenks state that childhood is a socially constructed concept and ‘reflects the particularities of particular socio-cultural contexts’ (James and Jenks, 1996: 317). Similarly, Muncie et al state that ‘definitions of childhood must to some extend be dependent upon the society from which they emerge’ (Muncie et al., 2002: 23). These ideas refer to the variations in the ages of criminal responsibility over Europe. For example, England & Wales have the lowest age of criminal responsibility over Europe, with the highest age being 18 in Belgium and Luxembourg (Goldson, 2013). Fionda argues that the age of criminal responsibility in England & Wales is currently ‘out of line’ (Fionda, 2005: 10) with the rest of Europe and therefore should be increased as it is currently too low.

Ariès believes that childhood is a modern invention and the term was first coined in the Middle Ages, prior to that it is thought that children were treated no differently to adults (Ariès, 1962). Over time, due to industrialisation and changes in the norms and values of society the idea of childhood and how society views its children has progressed. For example, James and Jenks state that ‘to have been a child in seventeenth-century England was, so the arguments goes, a very different social experience from being a twentieth-century child’ (James and Jenks, 1996: 317). As mentioned previously, before the concept of childhood emerged children were treated no differently from adults and were employed and had many of the same responsibilities as adults from a young age, therefore the age of criminal responsibility was low. Today children are treated differently from adults, and some argue that we live in a child-centred society. This refers to the fact that children are heavily protected by laws and human rights committees. The idea of a child-centred society emerged due to legislation aiming to safeguard children such as the Children’s Act 1908, and committees such as the United Nations Committee of the Rights of the Child. Young children today are no longer treated like adults and perform far less adult responsibilities, From 1933 up to present day, overall the age of criminal responsibility has only been increased by three years and it is argued that it is now due to be increased again due to the changes in the definition of childhood and how children in today’s society are treated.

The Abolition of Doli Incapax

Smith states that the current law ‘holds that a person is completely irresponsible of the day before his tenth birthday, and fully responsible as soon as the jelly and ice-cream have been cleared away the following day’ (Smith, 1994: 428). This refers to the fact that by the current law a person is suddenly criminally responsible from the day they turn 10-years-old and are ‘exposed to the full weight of the substantive criminal law in much the same way as adults’ (Goldson, 2013: 113). Up until 1998 children aged 10-14 were still criminally responsible for their actions but were protected under the principle of doli incapax. This required the prosecution to prove beyond all reasonable doubt that the child aged 10-14 knew that what they were doing was seriously wrong. The principle of doli incapax acted as a buffer zone for children between the ages of 10 and 14 and essentially protected them from the criminal justice system for an extra four years. Bandello states that ‘the presumption of doli incapax operated (at least in theory) in a protective manner, shielding the child from the damage that might otherwise be done by being absorbed into the criminal justice system’ (Bandalli, 1998: 118). The principle was abolished in 1998 under the Crime and Disorder Act in order to ‘remove the practical difficulties prosecutors and courts face under current law and which they would continue to face if the presumption were reversed rather than abolished’ (Home Office, 1997) Fitz-Gibbon states that the abolition of the doli incapax principle is a very punitive approach taken by the government towards young people in trouble with the law (Fitz-Gibbon, 2016) and rendered child offenders as ‘fully responsibilized and adultified agent’ (Goldson, 2013: 114). Similarly, Bandalli argues that the abolition of the principle is a ‘steady erosion of special consideration for children’ (Bandalli, 1998: 121) and therefore leaves ‘childhood irrelevant to criminalisation’ (Bandalli, 1998: 119). This suggests that the government have disregarded the ideas put forward by many academics that children at the age of ten are still not fully developed and may not understand the wrong in their actions, or even what they’re doing may be legally wrong. Bateman argues that ‘the abolition of doli incapax represents an effective lowering of the age’ (Bateman, 2012: 5). Whilst the general consensus of the rest of Europe was to raise the age of criminal responsibility, England & Wales were seen to be adamant against the idea.

The Murder of James Bulger

In 1993 two ten-year-old boys, Robert Thompson and John Venables, abducted and brutally murdered two-year-old James Bulger. It is argued that the murder of James Bulger by the two ten-year-old boys acted as a catalyst for the abolition of the principle of doli incapax, the refusal to increase the age of criminal responsibility and other subsequent punitive policies surrounding youth justice. Haydon and Scraton state that the case is a ‘watershed in youth justice procedure and practice influencing Labour's proposals for reform and the 1998 Crime and Disorder Act’ (Haydon and Scraton, 2000: 416), also stating that it ‘legitimated a series of tough law-and-order responses which came to characterize much of the 1990s’ (Haydon and Scraton, 2000: 447). The case of the murder of James Bulger was ‘phenomenally newsworthy due to its somewhat exceptional nature’ (Hay, 1995: 205). As a result of the crime being so outrageous it was heavily reported in the media and the names of the two child killers were published, despite them being only ten years of age. Hay argues that the murder started a moral panic surrounding juvenile delinquency (Hay, 1995). Cohen describes a moral panic as when a ‘condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests’ (Cohen, 2011: 1). In the Bulger case, juvenile crime and child offenders were the apparent threat to societies values and interests and as a result these issues became heavily politicised due to the widespread media coverage and subsequent public outrage at the idea of child offenders being able to get away with their crime. Goldson states that the Bulger case ‘comprised the leitmotiv of a process in which juvenile crime became, and remains, highly politicized and a rhetoric of ‘toughness’ has been peddled persistently by successive governments since 1993’ (Goldson, 2013: 113). When New Labour came into power in 1997, they introduced an agenda of ‘no excuses’ and made it clear that they were not planning on changing the age of criminal responsibility (Home Office, 1997), therefore pushing their rhetoric on ‘toughness’. Haydon and Scraton argue that the Bulger case ‘helped to mobilize, a moral panic about youth crime in general’ (Haydon and Scraton, 2000: 447).  This refers to the argument that the outrage and panic caused by two child murders set the law so that now all child offenders, even for trivial crimes, are demonized. Similarly, Haydon and Scraton state that the Bulger case initiated a reconsideration of the social construction of ten-year-olds as ‘demons’ rather than ‘innocents’’ (Haydon and Scraton, 2000: 447). Goldson states that the law now ‘imputes criminal responsibility upon children on profoundly tenuous and unsafe foundations’ (Goldson, 2013: 114) and therefore, the age of criminal responsibility should be raised.

Raising the Age of Criminal Responsibility

It is heavily argued amongst academics that the age of criminal responsibility must be raised. There are many consequences that can occur as a result of introducing young people to the criminal justice system and this essay will address these and discuss the many arguments to increase the age of criminal responsibility.

Human Rights and the Rights of the Child

There are a number of international rights conventions recommending countries on how to protect its young offenders. These include the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985, also known as the Beijing Rules, the United Nations Rules for the Prevention of Juvenile Delinquency 1990, also known as the Riyadh Guidelines, and the United Nations Convention on the Rights of the Child (UNCRC) 1989. When discussing youth justice, article 3 of the UNCRC states that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ (United Nations, 1989:2). This clearly means that the state must consider the best interest of the child when making laws regarding youth justice. The various conventions also set out recommendations regarding the age of criminal responsibility. As stated previously, the United Nations Committee of the Rights of the Child recommends that the minimum age of criminal responsibility should be 12 years old (UN Committee on the Rights of the Child, 2007). Additionally, Article 4 of the Beijing Rules states that the age of criminal responsibility ‘shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity’ (United Nations, 1985) Moreover, the United Nations Convention on the Rights of the Child states that it seeks to deal with juvenile offenders ‘without resorting to judicial proceedings’ (United Nations, 1989: 12). Goldson argues that by ‘unequivocally responsibilizing and adultifying children from the age of 10 years – and accordingly exposing them to the full weight of an adversarial criminal justice system’ (Goldson, 2013: 118) goes against the whole consensus of the Beijing Rules and other international conventions which sought to use the criminal justice system as a last resort for young people. It is fair to argue that England & Wales have chosen to disregard the recommendations from international rights conventions as the age of criminal responsibility is two years lower than the very minimum that the conventions recommend.

Young People and other Social Rights

Case et al., states that there are many differing ages as of when children ‘assume legal rights and responsibilities across other aspects of their lives’ (Case et al., 2017: 230). Some of these other rights and responsibilities include the age of sexual consent being set at sixteen years old (Sexual Offences Act, 2003), the age a person is able to vote being eighteen (The Representation of the People Act 1969) and eighteen also being the minimum age to purchase alcohol (Licensing Act 2003). It can be argued that the age of criminal responsibility should be set at around the same as the other legal rights as it is argued that they are around the ages of 16-18 due to the fact that is when children begin to mature and understand consequences. Many academics question the fact that the age of criminal responsibility is so much lower than other ages of responsibility in other areas of law. The Beijing Rules states that there must be a ‘close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities’ (United Nations, 1985: 3) The differing ages between the age of criminal responsibility and the ages at which young people are able to have other social and legal responsibilities suggests that the state takes more of a restricted view on young people’s civil rights than their criminal responsibility. Muncie states that ‘youth justice is underpinned by the paradoxical prescription that young people are not rational and responsible enough to be fully empowered but are deemed fully rational and responsible if they offend’ (Muncie et al., 2002: 15). Therefore, it can be argued that the age of criminal responsibility should be increased to sit at the same level as other legal responsibilities.

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