Youth Justice News
| Date | 01 December 2018 |
| Author | Tim Bateman |
| DOI | 10.1177/1473225418800762 |
| Published date | 01 December 2018 |
| Subject Matter | Legal Commentary |
800762YJJ0010.1177/1473225418800762Youth JusticeBateman
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Youth Justice
2018, Vol. 18(3) 294 –305
Youth Justice News
© The Author(s) 2018
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https://doi.org/10.1177/1473225418800762
DOI: 10.1177/1473225418800762
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Tim Bateman
The Age of Criminal Responsibility in England and Wales Is
‘Arbitrary and Not Evidence Based’
The minimum age of criminal responsibility (MACR) continues to vary considerably between
jurisdictions and is regularly subject, within states, to legislative provisions that both increase
and lower it. For example, according to a recent report published by Penal Reform International
in May 2018, the past 12 months included the following developments:
•• A proposal to reduce the MACR from 15 to 9 years in the Philippines was
abandoned.
•• The state of New York signed a bill to raise the MACR to 18 years for non-violent
offences, bringing it into line with 48 other US states and allowing children cur-
rently held in adult custodial facilities to be transferred to juvenile detention
centres.
•• In Sri Lanka, legislative proceedings were begun to raise the age of criminal liabil-
ity from 8 to 12 years.
•• Conversely, in Brazil, a Bill was introduced to treat 16–18-year-olds who are
charged with certain specified offences as adults.
•• In Japan, which currently has an MACR of 20, an advisory panel was established to
consider whether the age should be lowered to 18 years.
Despite a declaration by the United Nations Committee on the Rights of the Child
(UNCRC), in 2007, that an MACR below the age of 12 years is not internationally accept-
able, many signatories to the Convention on the Rights of the Child persist in retaining an
age below that threshold. Within the United Kingdom, legislation was introduced by the
Scottish government in March 2018 to increase the MACR from 8 years to 12 years and
strengthen welfare powers for children below that age. A consultation exercise in advance of
the legislation showed 95% of respondents in support of the change. In England and Wales,
by contrast, a private member’s Bill that sought to raise the age at which children are
Corresponding author:
Tim Bateman, School of Applied Social Studies, University of Bedfordshire, University Square, Luton LU1 3JU, UK.
Email: tim.bateman@beds.ac.uk
Bateman
295
considered criminally, from the current 10 years to 12, has not received government support
and is, accordingly, unlikely to succeed. At the second reading on 8 September 2017 in the
House of Lords, Baroness Vere, on behalf of the government, argued that:
Victims of serious crimes committed by 10 and 11 year-olds must feel assured that those
responsible can be proceeded against by the courts. But we must also ensure that these young
people are rehabilitated and educated if we want them to cease their criminal activities.
… the Government believe that the age of criminal responsibility is appropriate and accurately
reflects what is required of our justice system. For these reasons, the Government do not support
the Bill.
The Parliamentary Office of Science and Technology (POST) is the UK Parliament’s
in-house source of scientific advice that conducts analysis on topics of interest to provide
impartial summaries of academic and other rigorous research, placing findings in a pol-
icy context for parliamentary use. Such analyses typically take the form of ‘POSTnotes’,
accessible four-page overviews of the research evidence, which are submitted for peer
review prior to publication.
A POSTnote discussing the age of criminal responsibility was published in June 2018.
In the interests of impartiality, the briefing makes no recommendations, but the analysis
is, implicitly, critical of the current position in England and Wales. The authors note that
consecutive governments have indicated support for an MACR of 10 years in spite of
repeated criticisms by the UNCRC, endorsed by a body of internal stakeholders including
stakeholders including the Children’s Commissioners, the Royal Society, the Royal
College of Psychiatrists, the All Party Parliamentary Groups for Children and for Women
in the Penal System and the National Association for Youth Justice.
The report summarises recent research using brain imaging which demonstrates that
the brain undergoes rapid development during the teenage years, noting that the prefrontal
cortex which controls functions such as decision-making, planning, social interaction and
inhibiting risk behaviours… is one of the last areas of the brain to reach full maturation.
The neurodevelopmental immaturity of adolescents helps to explain an increased ten-
dency for risky and, thereby, potentially criminal behaviour by children; but behaviour is
also influenced by contemporaneous environmental changes as children increasingly seek
approval from their peers, rather than their parents and other adults in authority.
Consequently, teenagers are much poorer at planning and make riskier decisions when in
the company of friends than when alone. Cognitive development is also an ongoing pro-
cess during this developmental phase and there are concerns that many children over the
current age of criminal responsibility should not be considered culpable for their offend-
ing in the same way as adults. Children are more likely to make confessions to offences
which they have not committed and may not have the capacity to participate fully in
criminal justice proceedings – a requirement of natural justice. Safeguards within the
youth justice system are arguably insufficient to address such concerns.
The current MACR was established in 1963, at a time when little was known about
brain development and when children moved into the world of employment and acquired
adult type rights and responsibilities at an earlier age. In this context, the rationale for
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selecting the age of 10 years was unclear and might be seen as arbitrary and not evidence-
based. It is also out of step with other legal age limits for children.
The report argues that there is no evidence that a low MACR deters children from offend-
ing. Conversely, criminalisation tends to increase recidivism and the acquisition of a crimi-
nal record can have long-term negative implications that make it less likely that the transition
to adult society will be a positive one. The authors conclude that in the event of an increase
in the MACR in England and Wales, younger children’s problematic behaviour would have
to be managed through welfare provisions. Mental health and social care legislation already
provides effective mechanisms that might facilitate such management. Alternatively, a more
thoroughgoing welfare approach, such as that which operates in Scotland through the
Children’s Hearing system, might be considered. The report cautions that the perspective of
victims would need to be taken into account in any changes to the MACR, but notes
proposals to increase the [age] in Scotland were broadly welcomed by victim groups due to the
close link between childhood victimisation and offending.
International developments as regards shifts in the minimum age of criminal responsibility are
given in Global Prison Trends 2018, published by Penal Reform International, and available at:
www.penalreform.org/resource/global-prison-trends-2018/
The UN Committee on the Rights of the Child’s statement on the lowest acceptable age of
criminal responsibility is given in General Comment No. 10, Children’s Rights in Juvenile
Justice, published by the United Nations in 2007 and available at:...
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