‘Unsafe,Unjust and Harmful to Wider Society’: Grounds for Raising the Minimum Age of Criminal Responsibility in England and Wales

Abstract

This article assesses critically the means by which social (symbolic) and statutory (institutionalized) constructions of child ‘offenders’ in England and Wales intersect and underpin processes of responsibilization and adultification. It is argued that securing immunity from prosecution should be the principal driver for raising the minimum age of criminal responsibility. In this sense the analysis is less concerned with questions of capacity and mens rea and more interested in: compliance with international human rights standards; modelling a system of justice that is broadly compatible with law, policy and practice in Europe (and elsewhere); ensuring that criminal law coheres with civil law; minimizing social harm and obtaining the best outcomes for children in conflict with the law, the wider community and the general public in respect of crime prevention and community safety. Finally, the prospects for such progressive reform within a context of heightened politicization are considered.

Keywords

adultification capacity criminal responsibility evidence human rights immunity justice knowledge politicization

Socially Constructing the Child ‘Offender’: The Politicization of Juvenile Crime

The roles, rights and responsibilities that are ascribed to children, and the meanings that are attributed to the term ‘childhood’ in modern societies, are different to those that prevailed at earlier moments in history. Similarly, childhood identities diverge across various parts of the world, framed in accordance with particular political traditions, social and economic conditions, normative conventions and cultural contexts. Furthermore, at any specific moment, and within any particular place, not all children will experience their childhood in the same way. The contours that frame their everyday experiences will be shaped by structural relations and social divisions including class, ‘race’, ethnicity, gender, sexuality and disability. In other words, the manner in which ‘childhood’ is conceptualized varies widely across the boundaries of time, place and social position. By applying this form of analysis we can see that ‘childhood’, and the experience of being a ‘child’ is, to a great extent, socially constructed.

Sociological theorizing with regard to the social construction of childhood is rooted in the seminal work of the French historian Philippe Ariès (1962). Although the lines of argument and analysis developed by Ariès have not escaped critique (Goldson, 1997a), his work has become increasingly influential in informing the theorization of children and childhood in ways that challenge biologically-determined, ‘natural’ and/or ‘universalistic’ conceptualizations (Corsaro, 1997; James and Prout, 1997; Jenks, 1996). To put it another way, childhood is no longer regarded as a biologically fixed and static state of being, but rather a ‘moving image’ that changes through time and both across, and within, space.

Much social constructionist analysis assesses the extent to which ‘childhood’ is, or should be, differentiated from ‘adulthood’, as well as exploring the origin, legitimacy, purpose, and consequence of such inter-generational differentiation. Put simply, the primary questions here are: ‘What are the relations between childhood and adulthood?’, and ‘How and why is childhood different to adulthood?’ Equally important to inter-generational differentiation, however, is the question of intra-generational distinction. This perspective analyses the experience of childhood (and childhoods) with reference to the primary structural relations and social divisions signaled above.

The means by which inter-generational differentiation and intra-generational distinction are inflected and applied produces ambiguous tensions − even contradictions − in the way in which childhood is socially constructed. By engaging with a detailed historical analysis, Hendrick (1994) develops a compelling account of a core conceptual binary whereby children are typically − if incongruously − perceived as ‘innocent’, ‘vulnerable’ and in need of adult care, protection and nurturing (the child as potential victim), or as ‘impulsive’, ‘incorrigible’ and in need of adult control, correction and even punishment (the child as potential threat). The conceptual binary that Hendrick identifies ultimately invokes a moral discourse, within which the socially constructed distinction between ‘victim’ and ‘threat’ is typically articulated as a ‘deserving-undeserving schism’ (Goldson, 2002).

The extent to which children in conflict with the law − child ‘offenders’ − are classified as ‘threats’ and ascribed with ‘undeserving’ status has consolidated over the last two decades or more − in England and Wales at least − in accordance with ‘crisis’ discourses (Goldson, 2011; Scraton, 1997) and a ‘widespread belief’ that children and young people ‘are in some way turning feral’ (Jeffs and Smith, 1996: 1). In February 1993 the murder of a two year-old child, James Bulger, on a railway-siding in north Liverpool, comprised a defining moment in the social construction of child ‘offenders’. In passing sentence on the two 10 year-old boys who were convicted of the murder, Judge Morland stated − in Preston Crown Court − that their ‘cunning and very wicked’ behaviour had resulted in ‘an act of unparalleled evil and barbarity’ (Pilkington, 1993). The preferred ‘explanation’ for such atypical tragedy was rooted in conceptualizations of ‘evil’ (Davis and Bourhill, 1997; Franklin and Petley, 1996; Goldson, 1997b; Hay, 1995; Haydon and Scraton, 2000) that rippled widely across the print media − from the ‘red-top’ tabloids to the ‘quality’ broadsheets alike:

Childhood has a darker side… children should not be presumed to be innately good. In the lexicon of crime there is metaphysical evil, the imperfection of all mankind (sic); there is physical evil, the suffering that humans cause each other; and there is moral evil, the choice of vice over virtue. Children are separated by necessity of age from none of these. (The Times Editorial 25 November 1993, my emphasis).

In many respects, 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. Furthermore, the politicization of juvenile crime has had a direct bearing on the way in which child ‘offenders’ have been socially constructed and this, in turn, is particularly salient for any discussion concerning the minimum age of criminal responsibility. As a mood of ‘institutionalized intolerance’ (Muncie, 1999) has hardened, child ‘offenders’ have been subjected to ‘conceptual eviction’ and ‘removed from the category of “child” altogether’ (Jenks, 1996: 128). Inter-generational distinction has all but dissolved in youth justice discourse as child ‘offenders’ have been ascribed − both symbolically/socially and institutionally/statutorily − with levels and forms of responsibility normally reserved for adults. Indeed, as processes of responsibilization and adultification have traversed the boundaries of symbolic representation and social construction they have penetrated deeply into the institutionalized realms of youth justice law and policy (Goldson, 2001).

Statutorily Constructing the Child ‘Offender’: The Minimum Age of Criminal Responsibility

The Children and Young Persons Act 1963 (s.16) provides that the minimum age of criminal responsibility in England and Wales is ten years. In other words, and for the past half-century, once children reach the age of 10 they are exposed to the full weight of the substantive criminal law in much the same way as adults. The rationale for, and implications of, this state of affairs were captured succinctly by Michael Howard − speaking as Conservative Home Secretary in 1993 shortly after the murder of James Bulger − when he described child ‘offenders’ as ‘adult in everything except years’ who would not be allowed to ‘use age as an excuse for immunity from effective punishment’ (cited in Goldson, 1997b: 130). Similarly, on assuming power in 1997, the first of three successive New Labour administrations articulated a ‘no excuses’ agenda, declared that it had ‘no plans to change the age of criminal responsibility’ (Home Office, 1997: 6) and proceeded, via the Crime and Disorder Act 1998, to abolish the doctrine of doli incapax.

Until 1998, statute had provided a limited measure of protection for child ‘offenders’ (aged 10−13 years inclusive) via the doctrine of doli incapax − the presumption that children of this age are not necessarily capable of discerning between right and wrong. The same presumption − a feature of English law ‘for hundreds of years… dating back to the time of Edward 111’ (Bandalli, 2000: 83) − was only rebuttable if the prosecution could satisfy the court (‘beyond reasonable doubt’) that the child knew that what s/he had done was seriously wrong, not merely naughty or mischievous. Although the New Labour government had claimed that it had ‘no plans to change the age of criminal responsibility’, Bateman (2012a: 5) has argued persuasively that ‘the abolition of doli incapax represents an effective lowering of the age’. Indeed, the reform − implemented as soon as the Crime and Disorder Act 1998 received Royal Assent − appeared to make an immediate tangible impact: in 1999 the number of 10−14 year-old children issued with police cautions and/or court convictions for indictable offences was 29 per cent higher than it had been the previous year (prior to abolition) (Bateman, 2012a: 5).

The abolition of the doctrine of doli incapax and the statutory construction of the 10 year-old child ‘offender’ as a fully responsibilized and adultified agent, ‘confirms England’s [and Wales’] status as the jurisdiction with the lowest age of [unmitigated] criminal responsibility in Europe’ (Crofts, 2009: 268). Moreover, the government’s attempts to legitimize both the low minimum age of criminal responsibility and the abolition of the centuries-old doctrine, by appealing to crude notions of ‘common-sense’, were clearly fatuous:

Many of the arguments that led to the abolition of the presumption of doli incapax… did not address the issue of whether children are developed enough by the age of ten to be criminally responsible. Instead the focus was on making children take responsibility for their actions. Arguments which related to children’s actual capacity to understand the wrongfulness of their actions tended to not go beyond basic appeals to common sense, claiming that children develop quicker in modern society and are better able to distinguish right from wrong due to compulsory education. Such claims were made without a thorough examination of whether children today really are mentally or socially mature from an earlier age…. A common claim was that it flies in the face of common sense to presume that children cannot distinguish right from wrong. This view of when a child is criminally responsible is, however, a gross simplification of the issue. (Crofts, 2009: 285).

The institutionalized responsibilization and adultification of child ‘offenders’ utterly negates a wide range of scientific evidence, in much the same way that other core strands of contemporary youth justice law, policy and practice in England and Wales effectively disqualify social scientific/criminological knowledge (Goldson, 2010). In essence, this represents what Douglas (1998: 266) has termed the ‘judicial internalisation of the discourse of moral panic’ and, in so doing, it imputes criminal responsibility upon children on profoundly tenuous and unsafe foundations.

Conceptualizing Criminal Responsibility

There are at least two ways of conceptualizing criminal responsibility in respect of children.

The first form of conceptualization derives from the principles of criminal capacity, criminal intention or mens rea; the age at which the child is considered sufficiently competent to distinguish ‘right’ from ‘wrong’. The ultimate test hinges on the concept of capacity and comprises two core elements: cognitive and volitional. The cognitive element implies that if the child has sufficient capacity both to understand what the law requires her/him to do (or not to do) and the ability to comprehend the nature and consequence of any act committed, then the responsibility test is satisfied and, as such, the child might reasonably be held accountable for any transgression. The volitional element maintains that if the child has the capacity to exercise full control over their behaviour and actions, and the corresponding deliberative ability to conduct her/himself in accordance with the law, then again responsibility might be imputed and accountability imposed for any matter of transgression. This dual pronged test of capacity comprises a standard and well-established principle of jurisprudence and it follows − as Austin noted well over a century ago − that holding any person to be criminally responsible is considered unjust unless capacity is deemed to prevail:

… [i]n order that the obligation may be effectual, or in order that the sanction may determine the party from the wrong, it is necessary, First, that the party should know or surmise that law which imposes the obligation, and to which the sanction is annexed; and Secondly, that he (sic) should know, or might know by due attention or advertence, that the specific act, forbearance, or omission would conflict with the ends of the law and of the duty. Unless both these conditions concur, the sanction cannot operate as a motive, and the act, forbearance, or omission, is not imputable to unlawful intention, or to negligence, heedlessness, or rashness. (Austin, 1885, cited in Crofts, 2009: 286).

In this respect, setting the minimum age of criminal responsibility at 10 years implies that children under that age are presumed to be unable to fully appreciate the real nature of the ‘offence’ and, as such, it is legitimate and just to excuse them from any criminal prosecution. Conversely, children aged 10 years and above are deemed to have sufficient capacity to warrant the imposition of complete responsibility and, as such, they face unmitigated exposure to the provisions of the substantive criminal law in precisely the same way as adults.

Applying the principles of criminal capacity, criminal intention or mens rea in this way is clearly consistent with conventional understandings of criminal justice. The slavish application of such principles − when considering the minimum age of criminal responsibility − invokes certain limitations, however. First, it implies that it is possible to settle on an arbitrary minimum age of criminal responsibility in a way that satisfies the capacity test. This proposition is not only questionable in itself, but it also tends to limit the terms of the debate to considering the legitimacy, or otherwise, of ‘moving the minimum age of criminal responsibility up or down by a year or two’ (Children’s Rights International Network, n.d.: 1). Second, it also raises the question that if it is indeed possible to define an arbitrary minimum age of criminal responsibility in a way that satisfies the capacity test, how are we to account for the significant inter-jurisdictional variation in minimum ages of criminal responsibility that apply in Europe and elsewhere (see below)?

A second way of conceptualizing criminal responsibility is less concerned with criminal capacity in itself, and more interested in the principle of immunity from prosecution. In other words, whether or not the child is deemed to have capacity is not the primary question. Rather, the appropriateness or otherwise of exposing children and young people to the formal criminal justice apparatus as a means of addressing their transgressions is the key point at issue. To put this another way:

The question of how children who offend should be dealt with once in the criminal justice system… is of unquestionable importance. Nonetheless, this should not detract attention from examining the age at which it is appropriate to draw children into that system at all. (Crofts, 2009: 269, my emphasis)

This shifts the focus from questions of capacity and attribution to broader matters concerning the implications and consequences of child criminalization, together with the legitimacy and/or propriety of the ‘crime-responsibility-punishment’ logic that typically characterizes youth justice systems, interventions and processes. Rather than becoming pre-occupied with whether or not children aged 10 years and above are sufficiently capacitated to legitimize their exposure to the formal youth justice apparatus, therefore, the question might be more profitably framed in terms of whether it is preferable to decriminalize children’s transgressions and address their behaviour without recourse to prosecution, sentence and youth justice intervention. As Maher (2005: 512, my emphasis) concludes:

There are a variety of ways in which age interacts with criminal responsibility. Most of the theoretical attention on age (and there has not been much of it) has been concerned with criminal responsibility in a central or traditional sense. It has focused on two issues: at what ages do children lack the capacity to form a ‘guilty’ mind (mens rea)? And, at what ages do children lack the type of personhood that is a necessary prerequisite for attributing criminal guilt… neither of these concepts has a solid foundation that is implied by the taken-for-granted approach adopted by many criminal justice theorists. Rather, age is important in the criminal justice system because it poses problems for the methods and processes the system uses to achieve its goals.

The fundamental submission being advanced here is that − irrespective of the vexed question of capacity − there are strong grounds for raising the minimum age of criminal responsibility in England and Wales if the ‘goals’ of the youth justice system are taken to include: complying with the provisions of the international human rights standards that have been formally ratified by the UK government; modelling a system of justice that is broadly compatible with practice elsewhere in Europe; ensuring that criminal law coheres with civil law; minimizing social harm and obtaining the best outcomes for children in conflict with the law, the wider community and the general public, in accordance with the imperatives of crime prevention and community safety and; responding to society’s most disadvantaged, damaged and distressed children without undue recourse to criminalization.

Grounds for Raising the Minimum Age of Criminal Responsibility

A growing research literature, deriving especially from developmental psychology and neuroscience, continues to extend knowledge with regard to a complex range of social and physiological factors that might impact upon children’s and young people’s maturation, cognitive functioning and human development (for recent summaries of the literature see: Bateman, 2012a: 6-9; Centre for Social Justice, 2012: 201−204; Coleman, 2011; Farmer, 2011; Prior et al., 2011). In itself, the combined weight of this literature raises discomforting questions with regard to the legitimacy of holding 10 year-old children to be equally responsible as adults in criminal proceedings. This is not the place to evaluate critically the merits, or otherwise, of this body of work and, as stated above, neither is the question of capacity the primary concern here. Nonetheless, it is worth noting that any movement towards substantially limiting children’s criminal responsibility on the basis of perceived deficit − be it incomplete maturation, circumscribed cognitive functioning and/or insufficient human development − however well-intended, might just as readily invoke less welcome implications with regard to the realization of their wider human rights claims (including, but not limited to, the rights of children and young people to be heard, their participation rights and appropriate recognition of the integrity of children’s/young people’s agency). In other words, there are inherent dangers in over-emphasizing notions of the human becoming or the incomplete being − deriving from developmental psychology and neuroscience − and it is important to remain mindful that it may ‘not serve our purpose as advocates of children’s human rights to deny their immediate responsibility or to belittle their evolving capacities’ (Children’s Rights International Network, n.d.: 3; see also Cipriani, 2009). That aside, the remainder of this article considers both alternative grounds for, and the prospects for, raising the minimum age of criminal responsibility in England and Wales by establishing the principle of immunity from prosecution for children and young people.

Human rights compliance

Although there is no categorical international standard regarding the age at which criminal responsibility can reasonably be imputed on a child, the provisions of a number of international human rights instruments are pertinent. For example, Article 4(1) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (United Nations General Assembly, 1985) provides: ‘in those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level’. Furthermore, the official commentary on this provision states: ‘in general there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc)’. In this way, within any given jurisdiction the Beijing Rules promote consistency and integrity between the imputation of responsibility within criminal law and the provision of ‘social rights and responsibilities’ within civil law (see below).

Similarly, Article 3(1) of the United Nations Convention on the Rights of the Child (UNCRC) (United Nations General Assembly, 1989) – amongst the most widely adopted international human rights instruments in history – provides: ‘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’. Furthermore, Article 40 pertains to children ‘alleged as, accused of, or recognised as having infringed the penal law’ and it urges governments to ‘seek to promote the establishment of laws, procedures, authorities and institutions… [to deal] with such children without resorting to judicial proceedings’ (Articles 40(3) and 40(3)(b), my emphasis). Gillen (2006: 133) observes that:

The theme coursing through the veins of these international instruments is the protection of the personality of those under 18 years of age… decriminalisation and diversion are twin themes that emerge time and time again… If we are to comply with these instruments, then the United Kingdom should aspire to a system for diverting young people from… the youth courts.

So, although the human rights instruments refrain from specifying an arbitrary age of criminal responsibility, the practices of 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 − is clearly at odds with the core principles underpinning the ‘Beijing Rules’, the UNCRC and several other authoritative statements of children’s human rights (see for example, Commission of the European Communities, 2006; United Nations Committee on the Rights of the Child, 2007; Council of Europe Commissioner for Human Rights, 2009). Indeed, this very point has been made repeatedly over time through the ‘concluding observations’ of the United Nations Committee on the Rights of the Child: the low age of criminal responsibility in England and Wales ‘is a matter of general concern’ (United Nations Committee on the Rights of the Child, 1995: para. 17); ‘the Committee is particularly concerned that the age at which children enter the criminal justice system is low’ and should be ‘considerably raised’ (United Nations Committee on the Rights of the Child, 2002: para. 59 and para. 62(a)); ‘the Committee recommends that the State Party fully implement international standards of juvenile justice … [and] raise the age of criminal responsibility’ (United Nations Committee on the Rights of the Child, 2008: para. 78).

Inter-jurisdictional consistency

At 10 years, the age of criminal responsibility in England and Wales is ‘the lowest in the European Union’ (House of Lords House of Commons Joint Committee on Human Rights, 2003: 18). In Austria the age of criminal responsibility is 14, in Belgium it is 18 (for most offences), in Bulgaria it is 14, in the Czech Republic it is 15, in Denmark it is 15, in Estonia it is 14, in Finland it is 15, in France it is 13, in Germany it is 14, in Greece it is 13, in Hungary it is 14, in Ireland it is 12, in Italy it is 14, in Latvia it is 14, in Lithuania it is 14, in Luxembourg it is 18, in the Netherlands it is 12, in Northern Ireland it is 10 (the only European jurisdiction where the age of criminal responsibility is directly comparable to England and Wales), in Norway it is 15, in Poland it is 13, in Portugal it is 16, in Romania it is 14, in the Russian Federation it is 14, in Scotland it is 12 (children cannot be prosecuted below this age as provided by Criminal Justice and Licensing (Scotland) Act 2010, section 52), in Slovakia it is 14 or 15, in Spain it is 14 and in Sweden it is 15 (Hazel, 2008; Howard League for Penal Reform, 2008; Muncie, 2009). If account is taken of the 27 jurisdictions considered above, therefore, the average minimum age of criminal responsibility in Europe is 14 years. It thus appears ‘difficult to understand or defend’ the approach in England and Wales given that it is ‘so out of line with prevailing practice in Europe’ (House of Lords House of Commons Joint Committee on Human Rights, 2003: 19). Furthermore, within the context of the 86 countries worldwide surveyed by Hazel (2008: 31) − in which ‘the median age was 14 years’ − ‘the situation in England and Wales looks even more out of kilter’.

Innumerable countries manage youth justice systems where the minimum age of criminal responsibility is substantially higher than it is in England and Wales and where ‘it can be shown that there are no negative consequences to be seen in terms of crime rates’ (Dünkel, 1996: 38). Furthermore, in many European − and other global − jurisdictions an additional general practice distinguishes between ‘relative’ and ‘full’ criminal responsibility. The notion of relative responsibility, activated in accordance with the ages outlined above, ensures that children’s cases are dealt with in special juvenile courts where educational − as distinct from punitive − disposals are favoured. ‘Full’ criminal responsibility often does not become effective until the child reaches the age of majority (18 years) (for a fuller discussion see Maher, 2005; Scottish Law Commission, 2002). Given both the comparatively low age of criminal responsibility in England and Wales and the unmitigated exposure of children to the full weight of the substantive criminal law, the jurisdiction is manifestly ‘out of line’ or ‘out of kilter’ with the norms of European and global youth justice law, policy and practice.

Intra-jurisdictional integrity

The low minimum age of criminal responsibility imposed by criminal statute in England and Wales reveals tangible incoherence regarding the manner in which the legal personality of the child is constructed, and social rights and responsibilities are statutorily assigned, under the provisions of civil statute. Rightly or wrongly, the law serves to mediate the transition from ‘childhood’ to ‘adulthood’ whereby rights and responsibilities accumulate incrementally with age. Accordingly, by way of example, the law defines both the maximum hours − daily and weekly − that children and young people are permitted to work and the national minimum rates of remuneration that they might expect to receive in exchange for their labour (both of which are significantly less than the ‘adult’ equivalents). Young people are not allowed access to apprenticeships until they are aged 16 years and are unable to join the armed forces until they reach the age of 17 years. The law does not grant young people the right to ride a motorcycle until they are aged 16 years or to drive a car until they reach the age of 17 years. Young people, unaccompanied by an adult, are unable to legally purchase alcohol and/or cigarettes until they reach 18 years and their access to licensed premises is similarly restricted. It is not until the age of 16 years that the law permits young people to consent to their own medical, dental or surgical treatment, to choose their own doctor, to leave school, to receive a national insurance number and/or to claim state benefits. And of course the rights to vote, to serve on a jury, to get married, to open a bank account, to enter a legally binding contract, or even to watch an ‘adult’ film at a public cinema, are withheld until the age of 18 years is reached.

Goldson and Peters (2000: 4) note that:

Section 3 of the Pet Animals Act 1951 provides that it is not until a child has reached the age of 12 that they may be regarded as being sufficiently responsible, and thus legally entitled, to buy a pet. This seems perfectly sensible. It is curiously anomalous and legally inconsistent therefore, to regard the same child, albeit two years younger, to be sufficiently responsible to face the full rigour of criminal law.

To return momentarily to the question of capacity, the absurdity of this ‘inconsistency’ is such that:

… a defendant not old enough to legally buy a hamster can be tried in an adult court, as though the level of psychological sophistication required to look after a domesticated rodent is worthy of a longer period of development than the capacity to understand the moral responsibility inherent in the commission of a serious criminal act. (Brooks, 2011)

Of course, such inconsistencies are not exclusive to England and Wales. In reviewing the situation in the USA, Zimring (2005: 65) notes:

One of the most discouraging features of this continuing debate about punishing youth crime in the United States is the extent to which it is isolated from consideration of other law-related policies toward growing up… there is rarely much reference to the age boundaries used in other areas of law, or whether the assumptions about adolescent development that particular crime policies advance are consistent with the assumptions about ages of maturity that are made in other regulatory domains. There is, instead, an ad hoc quality to youth-crime policy discussions, as if the way the juvenile and criminal courts treat young offenders is not related in important ways to other areas of law or to the legal conceptions of adolescent nonoffenders…. If consistency with other legal doctrines on age is the criterion, the trend toward early and total penal responsibility is problematic… to regard persons under the age of 18 as… adults who meet the full adult standard for punishment contradicts the laws regarding the age of majority in every state in every area of nonpenal law.

In fact, it is not just at the interface between civil and criminal statute that such ‘contradiction’ appears. In England and Wales, the same contradiction is evident within criminal law depending upon whether the child assumes the status of ‘witness’ or ‘defendant’:

It is anomalous and unacceptable that children appearing as witnesses are automatically considered to be vulnerable within the Youth Justice and Criminal Evidence Act 1999, and yet no such assumption of vulnerability exists for child defendants’ (Vizard, 2006: 55)

This recalls the earlier discussion on the manner in which childhood is both socially and statutorily constructed. The child as ‘witness’ is deemed ‘vulnerable’ (and ‘deserving’) whereas the child as ‘defendant’ (the ‘undeserving’ ‘threat’) is denied such consideration.

The legitimacy of the legal regulation of childhood under the provisions of civil statute is open to debate, but if its defence rests with notions of maturational process then it raises serious questions. Most fundamentally, how can the adultification of 10 year-old children be rendered legitimate in criminal proceedings when, in every other area of law, the social rights and responsibilities that adulthood conveys are reserved for those aged 18 years plus? To put it bluntly, the manifest dissonance between criminal and civil statute in England and Wales appears to undermine the very integrity of law.

Minimizing social harm

A principal problem with the interventionist thrust of contemporary youth justice law, policy and practice in England and Wales is its stubborn tendency to deny history and negate knowledge (Goldson, 2000). It is long established that most juvenile crime is ‘a more or less normal adolescent phenomenon… a by-product of adolescence’ (Zimring, 2005: 63). It is equally well-established that youth offending is largely ‘adolescence-limited’ and that the overwhelming majority of juvenile offenders ‘grow out of crime’ (Rutherford, 1992) or, to put it another way, ‘the cure for youth crime is growing up’ (Zimring, 2005: 63). Furthermore, we have long known that premature and/or overzealous youth justice intervention can be counter-productive and, moreover, iatrogenic. Even the most cursory analyses of classic criminological/sociological texts reveal the harmful consequences of early intervention, labelling, criminalization, negative social reaction and stigma (see for example, Becker, 1963; Erikson, 1966; Kitsuse, 1962; Lemert, 1967; Schur, 1971, 1973). Indeed, youth justice systems that are predicated upon early interventionist zeal are, in essence, conduits of social harm.

Frances Crook, the Chief Executive of the Howard League for Penal Reform, has explained:

Children who get into trouble are more often than not just being challenging teenagers and how we respond to this nuisance behaviour could make a difference for the rest of their lives. An arrest can blight a life and lead to a criminal record for just being naughty. (Crook, 2012)

In 2010−11 alone, 2268 children aged 10−11 years received a substantive youth justice disposal. The corresponding number for children aged 10−15 years was 75,136 (Bateman, 2012a: 10). For such children, contact with the youth justice system reduces the likelihood that they will complete their education and obtain recognized qualifications and undermines their employment prospects (Bernberg and Krohn, 2003; Sampson and Laub, 2004; White and Cunneen, 2006). Perhaps most significantly, countries with the lowest minimum ages of criminal responsibility tend to be those with the highest rates of child/youth imprisonment (Bateman, 2012b; Goldson, 2008; Howard League for Penal Reform, 2008), the most harmful intervention of all (Goldson, 2009a), including the routine incarceration of 12, 13 and 14 year-olds (Glover and Hibbert, 2009).

The same youth justice systems are also most likely to fail the public interest in respect of crime prevention and community safety. Based upon detailed longitudinal research involving a cohort of 4100 children, together with rigorous analysis of their findings, McAra and McVie (2007: 336) conclude that the deeper that children and young people penetrate youth justice systems the more ‘damaged’ they are likely to become and the less likely they are to ‘desist’ from offending or, to put it another way, ‘the key to reducing [harm and] offending lies in minimal intervention and maximum diversion’. Similarly, in Canada, Gatti et al.’s (2009) longitudinal study of 1037 boys who attended kindergarten in Montreal in 1984, found that intervention by the juvenile justice system greatly increased the likelihood of adult criminality among the cohort:

Even when the effect of other relevant variables had been controlled for… contact with the juvenile justice system increased the cohort’s odds of adult judicial intervention by a factor of seven. (Richards, 2011: 7)

By introducing children to the youth justice system from the age of 10 years the ‘normal’ or ‘natural’ processes of ‘growing out of crime’ are impeded, labelling and negative social reaction is likely to lead to further offending, education and employment prospects are undermined, the likelihood of entering penal custody increases, children are damaged and harmed and the public interest in respect of crime prevention and community safety is profoundly compromised. To put it another way, early intervention provides the apprenticeship for career criminality. It is this well-established criminological truth that underpins the theory and practice of diversion. The most effective diversionary strategy, of course, is literally to remove children from the reach of the youth justice system altogether, by significantly raising the minimum age of criminal responsibility.

Decriminalising social need

Unicef (2007) reported that when account is taken of key measures of ‘well-being’ − including material well-being, health and safety, education, peer and family relationships – children in the UK are more disadvantaged than those in any of the 21 Organisation for Economic Co-operations and Development (OECD) countries surveyed. Similarly, Pickett and Wilkinson (2009: 7) note: ‘Britain is now one of the most unequal of the developed countries and the scale of problems faced by children… is shocking’. According to official government statistics, a staggering 3.6 million children were living in poverty in the UK at the end of 2011 (Department for Work and Pensions, 2012). Moreover, under current government policies child poverty is projected to rise, with an estimated 300,000 more children living in poverty by 2015−16 and a total of 4.2 million children living in poverty by 2020 (Brewer et al., 2011). It is often children in greatest social need who are swept up by youth justice systems. Indeed, children in conflict with the law are ‘not islands in time or in space’ (Becroft, 2009: 6); rather they live, and grow up, in social conditions and material contexts that are typically characterized by multiple and myriad forms of socio-economic disadvantage. Recalling the concept of intra-generational distinction, ‘justice’ is routinely mediated through the structural relations of class (White and Cunneen, 2006), ethnicity and ‘race’ (Webster, 2006) and gender (Gelsthorpe and Sharpe, 2006) and, wherever we may care to look, youth ‘justice’ systems around the world characteristically process (and punish) the children of the poor. This is not to suggest that all poor children commit crime, or that only poor children offend, but the corollaries between child poverty, social and economic inequality, youth crime and processes of criminalization are undeniable.

Expanding the reach and deepening the penetration of the youth justice system in order to ‘manage’ profound contradictions in the social order is ethically unsustainable. It amounts to the criminalization of social need and/or the governance of children through crime. As stated above, it is also a spectacularly ineffective strategy when measured in terms of crime prevention and community safety. Bateman and Pitts (2005: 257) have noted that ‘those factors which appear to be most closely associated with persistent and serious youth crime… are those which are least amenable to intervention by agents of the youth justice system’. Raising the minimum age of criminal responsibility, lifting impoverished children out of the youth justice apparatus, decriminalizing social need and providing generic ‘children first’ services accessible at the point of need, begins to define the contours of a more effective and principled approach (for a fuller discussion see Goldson and Muncie, 2006).

The Prospects for Progressive Reform?

For fifty years a state of legislative stasis has prevailed in England and Wales with regard to the minimum age of criminal responsibility. Since the Children and Young Persons Act 1963 set the minimum age at ten years, there has been no progressive reform. In fact, as noted, the only movement has been regressive with the Crime and Disorder Act 1998 providing for the abolition of the doctrine of doli incapax. Of course, whilst it is important to recall that the Children and Young Persons Act 1969 contained provisions to abolish juvenile courts and to raise the minimum age of criminal responsibility to 16 years, for a complex multitude of reasons − mostly derived from political imperative and professional self-interest (as distinct from youth justice or child welfare objectives, the public interest and/or criminological rationality) − the sections of the 1969 Act that promised to ‘decriminalize English juvenile courts’ (Bottoms, 1974) were not implemented and, perhaps more significantly, have never been resuscitated. Such stasis is out of step with both global trends and with recent reforms in immediately neighbouring countries.

In reviewing global developments Hazel (2008: 32) notes that ‘despite… variation there has been a trend for countries around the world to raise their ages of criminal responsibility’. Similarly, Crofts (2009: 284) observes that ‘there is now a clearly developing consensus in Europe and internationally that the age of criminal responsibility should be set at 12 years at a minimum and preferably much higher’. Equally, although the United Nations Committee on the Rights of the Child (2012: para. 38) recently expressed ‘concern that there is a growing tendency… to consider − or even to reform earlier progressive legislation on juvenile criminal justice − by lowering the age of criminal responsibility’, there is also evidence that such ‘considerations’ are being staunchly resisted. In Argentina, for example, the Minister for the Supreme Court − in response to ‘media-generated panic’ − proposed lowering the minimum age of criminal responsibility from 16 years to 14 years but it was not followed by the necessary legislation (Hill, 2011). Similarly in Brazil, a proposed amendment to the Constitution that aimed to lower the minimum age of criminal responsibility from 18 years to 16 years failed to receive the support of Parliament and the Senate (Shecaira, 2004). Finally, in Spain following the rape of two girls by a group of 12−13 year-old boys in 2009, a call to lower the minimum age of criminal responsibility from 14 years to 12 years was resisted by the Minister of Justice (Children’s Rights International Network, 2012)

Furthermore, in immediately neighbouring jurisdictions, the modern trend is also moving in the direction of raising the minimum age of criminal responsibility. In March 2009, the Scottish Parliament announced:

The age of criminal responsibility at which children can be prosecuted in adult criminal courts will be raised to 12. This will bring Scots law into line with jurisdictions across Europe…. In raising the age of criminal responsibility from eight to 12, ministers have taken on board the views of the United Nations, but have ruled out suggestions the age should be raised to 14 or even 16. The new measures [are] to be included in the Scottish Government’s forthcoming Criminal Justice and Licensing Bill. (The Scottish Government, 2009)

In Ireland, the age of criminal responsibility is covered by the Children Act 2001 (s.52) as amended by the Criminal Justice Act 2006 (s.129), which served to raise the minimum age of criminal responsibility from 7 to 12 years. There is an exception, however, for children aged 10 or 11 who can be charged with murder, manslaughter, rape or aggravated sexual assault. In addition, where a child under 14 years of age is charged with an offence, no further proceedings can be taken without the consent of the Director of Public Prosecutions. In Northern Ireland, a major review of the youth justice system was launched in 2010 in furtherance of the Hillsborough Castle Agreement (Graham et al., 2011). The final report of the review team states:

The minimum age of criminal responsibility, which is 10 in Northern Ireland, is an emotive issue. Age 10 is low by comparison with most other countries. International treaties have suggested it should be higher, and certainly not lower than 12. Scotland and the Republic of Ireland have recently raised the age (with some minor provisos) to 12. We suggest it should also be raised to 12 in Northern Ireland with consideration given after a period of time to raising it further to 14. (Graham et al., 2011: 14).

Accordingly, Recommendation 29 of the Review provides:

The minimum age of criminal responsibility in Northern Ireland should be raised to 12 with immediate effect, and that following a period of review of no more than three years, consideration should be given to raising the age to 14. (Graham et al., 2011: 118).

David Ford, Minister for Justice at the Northern Ireland Assembly, has reported that ‘public consultation indicates substantial support for an increase in the age of criminal responsibility to 12 or 14, and my views lie in that direction’ (Northern Ireland Assembly, 2012).

Such trends chime with a wide range of authoritative opinion that the minimum age of criminal responsibility should be raised in England and Wales including: the United Nations Committee on the Rights of the Child (1995, 2002, 2007, 2008); Council of Europe Commissioner for Human Rights (2009); House of Lords House of Commons Joint Committee on Human Rights (2003); Dr Maggie Atkinson (the Children’s Commissioner for England) (2010); the All Party Parliamentary Group for Children, (2010); The Royal Society (2011); the All Party Parliamentary Group on Women in the Penal System (2012) and The Centre for Social Justice (2012). Furthermore, a number of corresponding initiatives also lend weight to this perspective including: a Liberal Democrats policy document launched at its spring conference in 2011 expressing support for raising the minimum age of criminal responsibility to 14 years (Liberal Democrats, 2011); a motion presented at the Magistrates Association Annual General Meeting in 2012 stating: ‘This Annual General Meeting believes that the age of criminal responsibility be raised to at least 14 years of age’ (Magistrates Association, 2012); an open letter from the National Association for Youth Justice (signed by more than 50 leading experts) to Jeremy Wright MP − Parliamentary Under-Secretary of State for Justice and the government’s lead minister on youth justice − urging him ‘to review the government’s position, accept the need to raise the age of criminal responsibility considerably, and initiate a wide-ranging consultation to determine how best to achieve this’ (National Association for Youth Justice, 2012) and; a Private Members Bill introduced in the House of Lords in 2013 by Lord Dholakia proposing to raise the minimum age of criminal responsibility to 12 years (Lib Dem Lords, 2013).

Notwithstanding the evidence considered throughout this article, the nature of international consensus and the weight of authoritative/expert opinion, all of which point in the direction of raising the minimum age of criminal responsibility in England and Wales, political resistance remains steadfast and there appears to be little immediate prospect of progressive reform. In responding to the open letter mentioned above (National Association for Youth Justice, 2012), for example, the government minister Jeremy Wright (2012) replied:

Thank you for your letter dated 6 December… The Government is not considering raising or lowering the age of criminal responsibility… the Government is of the opinion that children do know the difference between right and wrong at age 10. Where a young person commits an offence it is important that they understand that this is a serious matter and will be dealt with as such…. It is right that courts have the flexibility to respond to this, including through the use of custody as a punishment and to protect the public. The public must have confidence in their criminal justice system and know that offending will be dealt with robustly and effectively.

In essence Wright intends to do no more and no less than his cross-party predecessors. In 2004, Paul Goggins, Home Office Minister in the New Labour Government, stated that ‘there were no plans to raise the age of criminal responsibility’ (Crofts, 2009: 287). In 2010, Ed Balls, the New Labour Home Secretary, stated: ‘I do not believe the government, any government of any political persuasion, could introduce this [raising the minimum age of criminal responsibility] at the moment’ (Gabbatt, 2010). In 2011, echoing the words of his opposition party counterpart seven years previous, Conservative Justice Minister Crispin Blunt explained: ‘We have no plans to change the age of criminal responsibility’ (Lipscombe, 2012). The legislative stasis that has prevailed for half a century looks set to continue.

Conclusion

Adultifying children aged 10 years is a mutation of justice; a problem emanating from the law being in conflict with children as distinct from the converse. In many respects, the intellectual argument for raising the minimum age of criminal responsibility in England and Wales has been won. Resistance, however, derives ultimately from political imperative rather than criminological rationality. So, whilst the Centre for Social Justice (2012: 210) − a Conservative ‘think tank’ − reports that the ‘evidence indicates strongly that the current low minimum age of criminal responsibility in England and Wales is unsafe, unjust and harmful to wider society’, it also claims that ‘reform is implausible in the immediate term’ (Centre for Social Justice, 2012: 211) and that, to believe otherwise, ‘would be politically naïve’ (Centre for Social Justice, 2012: 208). The corrosive politicization of juvenile crime not only socially constructs child ‘offenders’ in ways that render them ‘undeserving’ but it also fatally obstructs the application of knowledge and evidence to the processes of legislative reform, policy formation and practice development (Goldson, 2010). For as long as this remains the case, children in trouble will be denied justice and the public interest − with regard to crime prevention and community safety − will continue to be failed.

Footnotes

Acknowledgements

Some of the core lines of analysis and argument that underpin this article were first introduced in an earlier article (Goldson, 2009b). I am grateful to the Editors of the Howard Journal of Criminal Justice, to Blackwell Publishing Limited and to the Howard League for Penal Reform for allowing me to reproduce parts of my earlier material in this substantially revised and extended paper.

Author biography

Professor Barry Goldson holds the Charles Booth Chair of Social Science at the University of Liverpool, UK. He is also Visiting Professorial Research Fellow at the School of Law, University of New South Wales, Australia and Professorial Fellow in Social Justice at Liverpool Hope University, UK.

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