It is time to raise the minimum age of criminal responsibility

Wells Burcombe Solicitors specialise in defending criminal cases and a large proportion of the cases we deal with concern allegations made against children and young persons.

In England, as part of the Labour Government's "tough on crime, tough on the causes of crime" rhetoric in 1997, the common law presumption of incapacity of children aged 10 to 14 (known as doli incapax) was abolished. The trouble and consequences of abolition of this 'Latin' term have not fully been understood by the general public.

Where a child was prosecuted, this issue, if contested, was usually resolved by questioning the child in court. This rebuttable presumption was repealed by the Crime & Disorder Act 1998 and s.34 reads: "The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished."

When this law was introduced there was some ambiguity of whether s.34 abolished the presumption that a child aged between 10 and 14 could use that defence, or abolished the defence for those within that age bracket.

This was discussed in the case of R v JTB [2009] UKHL 20. A male child aged 12-year-old and his guilty plea of causing or inciting other children under the age of 13 to become involved in sexual activity against the terms of the Sexual Offences Act 2003 was considered. He appealed his conviction to the then House of Lords, arguing that he was doli incapax. The House of Lords took the view that the meaning of the 1998 Act was very clear - Parliament had decided to abolish the defence in its entirety for those that could previously take advantage of it.

This means therefore that under the current legislation children can be prosecuted and sent to prison from 12 years old, and younger children from ages 10 can also be sent to prison in (serious cases - such as murder), as the age of criminal responsibility is now set at 10.

If the police and prosecution feel that evidence exists that a criminal offence has been committed, charges can be brought and the child can face court and trial proceedings. Unfortunately this means that they then have a criminal record - which can follow them into adulthood.

The Prison Reform Trust confirm that the volume of children in custody is much lower than it was in 2008, this they say is mostly due to restorative justice, which is a widely used practice and holds offenders to account for what they have done, make amends and reduce the frequency of reoffending.

But does this trend mean that it is now right to re-address the age of criminal responsibility?

Wells Burcombe's view is that the abolition of doli incapax is a mistake the current Government should rectify. We see within our courts that very young children are being being criminalised which is affecting their prospects and ignoring childhood vulnerabilities. Our team of solicitors regularly encounter scenarios of 12 and 13 year-olds, most of whom have learning difficulties and come from the lost venerable backgrounds from our society facing criminal proceedings.

The UN Committee on the Rights of the Child (UNCRC) who have reported on juvenile justice in the UK, call for the UK to raise the age of criminal responsibility to 15 in line with the Convention on the Rights of the Child, which the UK has ratified and pledged to uphold. Young offenders are 'children.' Ten, eleven, twelve and even higher aged children might have general understanding of what is right or wrong but, they don't always fully appreciate the consequences of their actions, certainly in a criminal and court room context.

Many argue that the criminalisation of children does more harm than good, certainly the incarceration of children at all (save for the most serious of offences or as an absolute last resort where either nothing else works or where it is genuinely to safeguard the public).

Unfortunately, a very small number of very serious cases attracting much publicity involving very young children have promoted a case against raising the age of criminal responsibility. But these cases are rare. Should those isolated cases, as serious as they undoubtedly are, mean that every child is treated the same when facing the prospect of investigation and charge? Isn't there a case for analysing each case separately and re-introducing the 'doli incapax' so that only those children who are "properly" criminal is prosecuted?

Sentencing Children and Young Persons:

And now to add another layer of complication to the mix, in the UK we must now all adhere the Definitive Guidelines 2017 - Sentencing Children and Young Persons; these require the court to consider many factors, their level of maturity, factors that reduce culpability as well as their emotional and developmental age which is finally being understood may not be the same as their chronological age.

When looking to instruct a solicitor, you need look no further as we at Wells Burcombe fundamentally understand that every young offender is a child, they are all different. Sending a child to court (and to prison) must be as a last resort or a measure for public protection only.

Wells Burcombe's view is that the age of criminal responsibility should be increased in line with neighbouring jurisdictions given that the average age of criminal responsibility in other European countries is 14-15 years old.

Until change is introduced, the only way to avoid charge, prosecution and conviction is to have an experienced team by your side.

Ravi Khumra
Partner
Wells Burcombe