Youth Justice: on raising the age of criminal responsibility

The UN Convention on the Rights of the Child requires that states should set an age below which children cannot be held criminally liable – but does not specify a minimum age. A quick survey of other jurisdictions confirms that by comparison the age of criminal responsibility in England and Wales – at ten years – is extremely low.  Indeed, it is the lowest in the European Union. In other member states it ranges from 13 to 18. A survey of 90 countries by found that the most common age of criminal responsibility was in fact 14 years

Taking into account the international experience, the UN Committee on the Rights of the Child has recently come to more definitive view as to what constitutes an internationally acceptable minimum age. In 2007, it noted that:

States parties are encouraged to increase their lower minimum of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level.

Against that background, it is scarcely surprising that the Committee has been consistently critical of the current position in England and Wales.

Until 1998 the longstanding principle of doli incapax afforded a degree of protection to children below the age of 14 years by requiring the prosecution to show not simply that the child had committed the act alleged but also that he or she understood that the behaviour in question was seriously wrong rather than just naughty or mischievous. The abolition of that principle by the CDA can I think be seen as an effective lowering of the age of criminal responsibility in England and Wales, in contrast to the broader trend elsewhere.

With regard to the age of criminal responsibility, then, England and Wales is something of an outlier in the international context. Moreover, the dominant trend outside of this jurisdiction appears to point in a different direction to recent policy developments within it.

But I think that if we want to appreciate the full impact of those differences that we need to go beyond a rather limited consideration of the age at which children become liable to arrest and prosecution – and look at some of the broader implications. I want to deal with just two.

Firstly is the level of youth incarceration. In England and Wales we lock up considerably more children – relative to the under 18 population, we imprison roughly four times as many young people as they do in Portugal, six times as many as in France, 25 times as many as in Belgium, and 100 times as many in Finland.

There is evidence that too early a contact with criminal justice agencies is associated with increased risk of reoffending, further exacerbating the problem of persistency in this context.

Secondly,  an elevated age of criminal responsibility is generally indicative of a tendency to regard children’s problematic behaviour through a welfare lens – as a symptom, if you like, of disadvantage and need. Conversely, a low age is evidence of a system that readily identifies young children as potential criminals.

But, it seems to me, those two rather different approaches are self reinforcing. In a jurisdiction where 14 year olds cannot be prosecuted welfare agencies are inevitably required to develop services capable of responding to behaviour that would otherwise be dealt with as criminal. Conversely, the option of arrest and conviction tends to undermine the capacity of mainstream services to deal with children over the age of ten years who display difficult behaviour. In England and Wales, recent history has for instance seen a sharp rise in resources going to youth offending teams while funding of other aspects of children’s social care has tended to stagnate or fall.

In Finland, there is a requirement that the authorities should provide community based supportive interventions without delay if there is evidence that the health or development of a child or young person is likely to be impaired – and this militates against the need to invoke criminal proceedings for children above the age of 15.

It seems to me that the existence, and widespread use, of alternatives to the criminal justice system for children who in principle might be subject to conviction and punishment, is itself – in part at least – a function of these jurisdictions having a higher age of CR than we do in England and Wales.

I’ll end with a personal experience. I was in Finland in early 2008 shortly after a school shooting in Jokela during which an 18 year old gunman killed 8 people before turning the gun on himself. As would have been the case here, the tragic incident sent shockwaves throughout society and was the subject of extensive deliberation within the Finnish media. But there the similarity ended.

For the focus of debate was not – as it might have been in England and Wales – on the twisted personality of the perpetrator or the failings of his parents, but on how, and why, this young man had been failed by the welfare system. The event was seen as evidence that adults were paying insufficient attention to the needs of the young and failing to listen to them to detect early warning signs of distress.

While that very different (and in my view preferable) response might not be a direct consequence of Finland’s higher age of criminal responsibility, I believe that the climate of tolerance towards young people that a delayed attribution of criminality both embodies and encourages, plays a not insignificant part.

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4 Comments

  • Whilst I agree with the raising of the age of criminal responsibility I don’t entirely agree with the assertion that the Finnish reaction to the shooting was necessarily better.

    Society does have a role to play and to some extent it had failed but we also need to stop removing personal responsibility from individuals for their actions. The media in this country would be focused on the individual, who obviously is mentally ill; they wouldn’t be focused on the parents, which is where the primary focus should fall for somebody that age.

    In the fundamental early years of development research shows that parents contribute by far the biggest influence on the upbringing of their children. Even after they begin secondary school, parents are still the single largest factor. If you look at any of these cases of violent murders, mass shootings, systematic paedophilia, etc it can all be traced back to upbringing.

    Whilst of course society and welfare agencies do their best to catch mental illness early on and could perhaps do better, they really are fighting an uphill battle and one that has to be contrasted with individual rights. Nobody wants the state busy-bodying about their lives, checking their mental state. The single best path to reducing crime is better education, and whilst part of this will come from better investment and smaller class sizes and better state policy part of it has to come from parents instilling in their children the value of education; something that is seriously missing, even among the middle-classes these days.

  • I agree 10 is too young and 14 is about right, but I also agree that just because a child is below 14 they should get away scot free. There will be reasons for their behaviour and they need to be addressed to prevent the child becoming a problem adult.
    Unfortunately that requires money and manpower, both of which we are short of at the moment.

  • oops typo – meant to say…
    but I also agree that just because a child is below 14 they shouldn’t get away scot free.

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