Children and Young People in Custody (Part 1): Entry into the youth justice system Contents

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5Minimum age of criminal responsibility

55.The age of criminal responsibility (ACR) in England and Wales is 10.66 In Scotland, the Age of Criminal Responsibility (Scotland) Act 2019 raised the age from eight to 12.67

56.As part of this inquiry, the Committee sought to understand different views on the minimum age of criminal responsibility. A number of submissions raised concerns about the current age, many noting that it is not in line with the age in many other countries.68 The Equality and Human Rights Commission said: “The age of criminal responsibility in England and Wales is inconsistent with accepted international standards. The UN Committee on the Rights of the Child has recommended that states increase their minimum age to at least 14. The UN Committee Against Torture has also expressed concern about the UK minimum age, and called for it to be raised.”69 The Equality and Human Rights Commission says:

“The age of criminal responsibility in England and Wales assumes that children of 10 years and older are mature enough to stand trial and be accountable before the law in the same way as adults. Due to a better understanding of brain and behavioural development in childhood these assumptions are now being questioned. A report by the Royal Society, for example, notes that the brain is developmentally immature at 10 years and continues to undergo important changes related to regulating behaviour, and therefore that the minimum age of criminal responsibility may be “unreasonably low”. The UN Committee on the Rights of the Child has similarly reported that maturity is still evolving in children aged 12 to 13 and they are therefore “unlikely to understand the impact of their actions or to comprehend criminal proceedings”.70

57.The Royal College of Psychiatrists note:

“The Adolescent Forensic Psychiatry Special Interest Group (AFPSIG) asserts that, at 10 years old, the MACR in England and Wales is incompatible with current research understanding of brain function and the challenges facing children by dint of their immaturity… Adolescence represents a phase of increased impulsivity and sensation-seeking behaviour and a heightened vulnerability to peer influence, all of which have an impact upon decision-making. Adolescents are known to seek peer acceptance to a greater extent than adults or indeed younger children”.71

58.Dr Pamela Taylor, Chair, Forensic Faculty, Royal College of Psychiatrist told us that the current minimum age of criminal responsibility is unacceptable, “in part because it puts England and Wales out of sync with the rest of the United Kingdom. It is now 12 in Scotland. It puts us out of sync with the rest of the world and, indeed, with recommendations”.72 Dr Alexandra Lewis, Chair, Adolescent Forensic Faculty Special Interest Group, Royal College of Psychiatrists, further states:

“Previously, it was thought that the most significant period of brain maturation was in the first five or possibly eight years. We now know that a second critical period takes place in adolescence and is a very dramatic development of the frontal lobes, which are, essentially, responsible for decision making, planning, consequential thinking, getting ideas about ourselves and social interaction… We know from Covid that science accumulates gradually, but now we have reached a point where nobody is saying any different, and everybody understands that brains are not mature by the age of 10. They are not mature by the age of 13 or 15. It is a much longer process than anybody thought, so it does not make sense to treat somebody at 10 the same as an adult, because they are fundamentally quite different in their decision-making abilities.”73

59.The Youth Justice Board believes that there is sufficient evidence to conduct a review of the age of criminal responsibility in England and Wales74 and notes:

“Evidence on brain and childhood development is finding that children have a concept of right and wrong from a young age, but other aspects of their development limit the possibility of criminal intent. Behavioural and emotional development means younger children typically have more difficulty controlling impulsive actions or resisting the influence of peers. These faculties normally develop during adolescence, and into early adulthood.

“Serious offending by 10- and 11-years olds is extremely rare. Evidence suggests the majority of children who commit serious offences also have complex welfare needs. Given the small numbers of children, it would not be a huge resource burden to make alternative provision through welfare interventions for younger children who commit serious offences and we believe this may be a more effective response for them and their families, than a custodial sentence.”75

60.Justin Russell, Chief Inspector of Probation told us:

“I think the system itself realises how inappropriate it is to bring children into the criminal justice system anyway. The average age of children being supervised by YOTs has gone up, and the average age of children in custody has gone up… On the point about maturity, there are significantly older offenders who lack the maturity to really understand what is going on. There are 18, 19 and 20-year-olds who could probably be managed in a different way, and spotting that maturity at whatever age we are talking about it an important thing to build into the system”.76

Arguments against reducing the age of criminal responsibility

61.There are also many organisations and individuals who do not think the age should be increased. The case of James Bulger, in which two boys then aged 10 murdered a two-year-old is cited: if the age of criminal responsibility had been 12 in 1993, Jon Venables and Robert Thompson would not have been criminally liable and would not have served custodial sentences.77

62.The Ministry of Justice told us:

“The Government believes that children aged 10 and over are able to differentiate between bad behaviour and serious wrongdoing, and it is right that they can be held accountable for their actions. Setting the age of criminal responsibility at 10 provides flexibility in dealing with children and allows for early intervention in a child’s life, with the aim of preventing subsequent offending. The majority of younger children who enter the youth justice system are dealt with by way of an out of court disposal. From 2014 to 2018, the number of cautions issued to 10 to 11-year olds decreased from 450 to 159, and the number of convictions decreased from 76 to 37. No 10 to 11-year olds have received a custodial sentence since 2010”.78

63.Lucy Frazer QC MP, Minister of State for Justice told us: “I am aware that there is disparity across a number of jurisdictions, and we have one of the lowest in that regard. At the moment, we are focusing our attention on ensuring that we divert people away from the justice system and we are looking very carefully at sentencing provision.”79 The Minister also said: “I do not expect that we will be changing the age of criminal responsibility”.80

64.The age of criminal responsibility in England and Wales is a contentious issue with substantial arguments in favour both of the status quo age of 10 and an increase in that age. We are not persuaded that it should be immediately increased, but given the arguments in favour of raising it and the fact that the age in England and Wales is lower than in broadly comparable countries, we consider there is a case for reviewing the age of criminal responsibility.

65.We recommend that the Ministry review the age of criminal responsibility, considering the data available from Scotland and from broadly comparable European and other jurisdictions in which the age is higher than 10 at which it stands in England and Wales. We recommend that the Ministry report on the implications of raising the age in England and Wales to 12 and to 14, including the likely effect on reducing the number of children in custody and alternative methods of disposing of children beneath those ages who have committed serious offences. We recommend that if it concludes that 10 should remain the age of criminal responsibility, the Ministry set out the evidence and reasoning to justify an approach the Minister of State recognises as one that differs from the average.