The United Nations Convention on the Rights of the Child provides that anyone under the age of 18 is a child. It further provides that in regard to the age of criminal responsibility, countries should “consider whether a child can live up to the moral and psychological components of criminal responsibility.” In the UK, the minimum age of criminal responsibility in England and Wales was raised from 8 to 10 years old in 1963 and the legislation included a rebuttable presumption that a child aged between 10 and 14 years was incapable of committing an offence (doctrine of doli incapax). However, this presumption was abolished by s. 34 of the Crime and Disorder Act 1998, leaving the age of responsibility in England and Wales being the lowest in the EU. The age of criminal responsibility can be contrasted with other age restrictions – children cannot buy a pet until they are 12, consent to sex until they are 16, drive until they are 17 or vote until they are 18.
The abolition of the presumption in the 1998 Act came in the aftermath of the high-profile murder of James Bulger by two 10-year-old boys, who were tried and convicted in the adult court system. Although acknowledging that such acts of violence can occur with young children and cannot be excused, Carolyn Hamilton, the Director of the Children’s Legal Centre, says that “the manner in which society deals with children who commit these acts must be tempered by the fact that they remain children.”
The National Association for Youth Justice states that the attribution of full culpability at such a young age runs counter to the available evidence on children’s cognitive and emotional development. The Royal Society released a report in 2011 that the brain of a 10-year-old child is still developing in the areas connected with decision-making and judgement. Other psychological studies have suggested that children 10 years old are simply not capable of making moral decisions similar to those made by an adult and are therefore not aware of the severity of any outcome.
The United Nations Standard Minimum Rules for the Administration of Justice (The Beijing Rules) specifies 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.” It suggests a process that the approach should not be judged by age, but by an approach of “whether the child can live up to the moral and psychological components of criminal responsibility” that would be decided based on the individual involved.
Since 1998, there have been arguments from both sides on whether the age was too low (or even arguments that it should be lowered further). The UN has criticised the position in England and Wales, stating that the minimum age should be raised considerably. Many of the arguments suggest that civil child care proceedings would be more appropriate for younger children, along with specialist prosecutors charged with actively diverting cases and interacting with local authorities.
On 16 January 2013, the first reading of the Age of Criminal Responsibility Bill 2012-13 took place. The Bill aims to amend the Children and Young Persons Act 1933 to raise the age of criminal responsibility from 10 to 12. Although still quite low in comparison to other European countries, this would bring England and Wales in line with a number of other jurisdictions, such as Ireland and the Netherlands.
Although young children are capable of committing serious criminal offences, the evidence suggests that they often do not have the mental development to understand the consequences of their actions, and especially are unable to understand adult justice procedures. Thus, raising the age of criminal responsibility can help protect children to live a life not forever tainted by crimes from their pre-teenage years.