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England and Wales: Lords plan to increase the age of criminal responsibility

Nigel Morris-Co...

In June 2015, a Bill was introduced to the House of Lords. It had not been put before the House of Commons. It proposes to increase the age at which children are expected to know right from wrong from 10 years to 12 years. It is a very short Bill, reproduced below. The idea makes no sense and it diminishes child protection.

(pre-launch this article is free for all readers)

The Bill was introduced by The Bill was introduced by Lord Dholakia, read a first time and ordered to be printed.

Lord Dholakia argues that the England and Wales has an "unusually low age of criminal responsibility." He lists countries in Europe that have ages for criminal responsibility of 12, 13 and even up to 18. He also says that the law in Scotland has been changed to bring the age to 12. He also recited the UN Committee on the Rights of the Child which, in 1997, 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”.

It is important to note that the age of criminal responsibility is not, in England and Wales, the same as the age for being considered a juvenile. The issue is far more fundamental than that.

The age of criminal responsibility is a legal presumption that children of that age know right from wrong. Lord Dholakia says that the presumption is wrong. 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."

His arguments are both very well presented and, prima facie, compelling. He set them out, in full, at http://www.publications.parlia.... Equally fascinating are the other speeches. There are no speeches against the Bill.

What those speeches set out that children of 10 - 12 should be removed from the criminal justice system in its entirety and should be dealt with through the "welfare system" - that is to say to put them into the hands of an expanded social services system. And yet newspapers carry frequent reports of the failures of the social services system, right across the UK.

Lord Dholakia is a Liberal Democrat life peer. In this bill he has cross party and independent support and support from both life and hereditary peers. He also has the support of The Lord Bishop of Chelmsford. He spoke powerfully:

It is often said nowadays that children grow up too quickly. I wonder if we have rather short memories. Although there are invidious and unspeakable pressures on children today, it was only a century or so ago that many of our children—who are now safely tucked up in our primary schools—were going out to work in pretty difficult and challenging conditions. Until 1875, a 12 year-old could have sex legally in this country. It was changed that year to 13. Since then, over the past 150 years, a succession of laws and protocols have recognised that with regard to all sorts of things, from smoking cigarettes to going to the cinema to watching certain sorts of films to sexual intercourse itself, we grow and develop gradually.

The decision about when someone is an adult is best made looking back from a point where there can be certainty or at least widespread agreement that at this age—it varies for different activities; it is often 16, sometimes 18—this person really has developed and is able to take responsibility for who they are and what they do. So why, in the case of criminal responsibility, do we make the decision speculatively, hoping that it might be the case that because there is some general growing sense of what is right and wrong, that person so knows what they are doing that they can be held culpable for their actions as if an adult and in a court of law?

But a child of 10 is just that—a child—not yet at that point where there could be such widespread agreement about their ability to know the consequences of their actions, nor developed morally or socially, so that we could be sure that they know what is right. That is why the law does not let them buy cigarettes or watch certain films or go to bed with each other.

However, the Bishop's speech flies in the face of his own Church's view of the age where children are able to understand complex issues. The Church of England says "There is no right age for a person to be confirmed. Anyone may be confirmed who has been baptized, if they are old enough to answer responsibly for themselves. In many dioceses, however, the diocesan bishop has set a minimum age for Confirmation. If this is the case your parish priest will be able to tell you what the minimum age is. As a general rule anyone who is over 10 years old and can answer for themselves could be ready for confirmation but the right time for you might be at any age." https://www.churchofengland.or... . The same page says "If you were baptized as a child, in confirmation, you are confirming the promises your parents made on your behalf at your baptism about your commitment to a journey of faith. In confirming this faith you are becoming a member of the local and worldwide Christian family. In turn the Church will promise to support and pray for you. In confirmation we recall the promises made at baptism, we are thanking God for his gift of life and publicly acknowledging his love. We are acknowledging that we all need to turn away from selfishness and evil and to accept God's offer of a new start." If, then such momentous decisions can be made at the age of 10, how can it logically be argued that a child cannot know right from wrong?

It is the last sentence in the extract from the Bishop's speech that raises a large question mark. There are those in the UK, in positions of influence and in politics, which argue that the age of sexual consent should be lowered to 12. Those calling for this are groups representing paedophiles and homosexuals. One of the most vocal is closely associated The Labour Party.

Across the spectrum of life, we push maturity down to children - from the way they dress to the way they comport themselves. And yet it is being argued that a) there is little reason to accept that a 10 year old knows right from wrong and b)

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.

(http://www.publications.parlia... at column 1554)

No consideration is given to an alternative argument: that the age of criminal responsibility remains at 10 but that the range of sentencing be increased to provide for appropriate action within the welfare system. No consideration is given to the question of what to do with a violent child or a persistent shop-lifter. If the ultimate sanction is to be some form of deprivation of liberty, is it right that such a decision should be made outside the judicial system?

It is here that one must question to comments of the Bishop of Chelmsford. He said "But a child of 10 is just that—a child—not yet at that point where there could be such widespread agreement about their ability to know the consequences of their actions, nor developed morally or socially, so that we could be sure that they know what is right." Perhaps the Bill is, in fact, missing the point entirely: perhaps what it is recognising is a failure of parenting and the education system to properly educate children, from a young age, and to train them to understand right from wrong and to understand the consequences of their action. Does the above quote about failing to understand their actions mean that youths of 13 - 14 are inherently sociopathic? That is a difficult argument to accept.

Are we merely reaping what we sowed with the liberal development in the 1970s and since when it became unfashionable to maintain discipline over children?

It is here argued that the lifting of the age of criminal responsibility creates risks and dangers for children that far outweigh the benefits of removing them from the criminal justice system. Worse, it creates an arbitrary decision making process within the social services system under which social workers decide on the responsibility a child felt or ought to have felt.

The subject needs a far greater degree of research before being left to a two line clause in a little known Bill.

The Bill has not yet entered its committee stage and no date has been set. That does not mean it will not happen quickly.

Bill source: http://services.parliament.uk/...



Raise the age of criminal responsibility; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
1 Increase in age of criminal responsibility

In section 50 of the Children and Young Persons Act 1933 (age of criminal
responsibility) for “ten” substitute “twelve”.
2 Extent, commencement and short title

(1) This Act extends to England and Wales only.

(2) Section 1 comes into force on such day as the Secretary of State may by
regulations made by statutory instrument appoint.

(3) This section comes into force on the day on which this Act is passed.

(4) This Act may be cited as the Age of Criminal Responsibility Act 2015.


Further reading: http://www.academia.edu/122948... - Shohreh Mousavi and Rohaida Nordin