Children in lockdown: Time to review the age of criminal responsibility?
The true character of a society is revealed in how it treats its children” Nelson Mandela, 1997
I was asked to write for this blog last Christmas, when I spoke alongside Professor Carmine Pariante, Editor in Chief of InSPIre the Mind, at the Royal College of Psychiatrists Young People’s Christmas Debate. Despite the rather solemn motion (“This house believes the modern world is toxic for our mental health”), it was a mainly jovial affair in which I waxed lyrical about the harms and benefits of reality television.
It is almost impossible now to picture the hundreds of school children sitting in a room- no face masks, less than one metre apart- listening to real-life speakers for whom the words “Teams” and “Zoom” just meant groups of people going fast.
How different the modern world looks now.
Six months on and my original blog topic (reality television) does not feel right when juxtaposed with my day to day life as a forensic psychiatrist in the time of Corona. Instead, I have decided to write about children — in particular, about the most vulnerable children in society, whose experiences have led them to come into contact with the Criminal Justice System, and for whom COVID has presented new and particularly unwelcome challenges.
Last month, during my daily permitted exercise I cycled into a ghostly central London to see the landmarks, and passed the Houses of Parliament. I reminisced about 2018 when I worked at the Parliamentary Office of Science and Technology, funded by the wonderful Wellcome Trust. During this period, I prepared a parliamentary briefing (“POST note”) on the Age of Criminal Responsibility.
You can read my POST note here.
I usually work with adult offenders, and this was my first foray into child and adolescent forensic psychiatry. The topic and issues therein were deeply intriguing, and I found myself immersed in a world of criminologists, lawyers, police, philosophers, prosecutors, victims groups, charities, neuroscientists, parliamentarians, social workers and psychiatrists, all interested in the complex area of youth offending.
The age of criminal responsibility proved to be a highly topical and controversial issue, featuring in the BAFTA-nominated BBC documentary “Responsible Child” which was coincidentally aired the night before the aforementioned Christmas debate.
Campaigners and professionals alike have become increasingly outspoken that the UK needs to raise the age of criminal responsibility and to stop criminalising young children. COVID has put youth offending and child detention under the spotlight.
So I felt this blog was an opportune moment to share my thoughts and findings.
The importance of a good childhood has never been more apparent
The most widely adopted human rights treaty in the world is the United Nations Convention on the Rights of the Child (UNCRC), which considers every aspect of a child’s life, ranging from war and torture to education and play. It builds on a UN Declaration on the Rights of the Child which highlights that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection”. As a society, we have a duty to ensure all children are kept safe.
During the current Covid-19 pandemic, ensuring child wellbeing is crucial.
There has been mounting concern about the effect that school closures and social distancing are having on children, especially the most vulnerable, and governments are being called to consider the impact of lockdown on children’s physical, emotional and health.
For the hundreds of thousands of children deprived of liberty in detention centres around the world, the issues are stark.
Not only are they at heightened risk of contracting the infection, but the severely restrictive regimes and removal of education, activities and therapy are likely to cause irreparable damage if not properly addressed. Never has there been greater pressure to reduce the number of children in custody, both in the UK and internationinveally.
Long before Covid-19, it was increasingly clear that children who are accused of criminal acts require particular protections. There is a growing body of evidence that these children disproportionately come from disadvantaged and ethnic minority backgrounds, have grown up in care or dysfunctional families, and are frequently the victims of crime themselves.
As a psychiatrist, I am particularly interested in the high levels of mental disorder amongst all offenders, but for children in contact with the criminal justice system, the rates are shocking.
Almost one in three young offenders has a learning disability, 15% have a neurodevelopmental disorder such as autism spectrum disorder and attention deficit hyperactivity disorder, and a staggering 60–90% have communication difficulties. You can read more about this here.
These children’s ability to understand criminal behaviour and navigate complex legal systems is limited at best, and in many cases entirely lacking. Is it right that these children should be criminalised?
For time immemorial, legal systems have recognised that young children should not be held criminally responsible. The UNCRC emphasises that some children do not have the capacity to infringe penal law, and those who do should be dealt with in a manner which is appropriate to their emotional maturity. In other words, they should not be criminalised and incarcerated but treated with care and reintegrated into society wherever possible.
To ensure very young children are spared the full rigour of the law, the Convention compels member states to set a minimum age for children to be tried in a criminal court, the “minimum age of criminal responsibility”. In 2007 the UN Committee on the Rights of the Child declared that “a minimum age of criminal responsibility below the age of 12 years is considered…not to be internationally acceptable”.
It is somewhat surprising, and perhaps shocking to many, that in most of the UK the minimum age of criminal responsibility is currently set at 10 years.
The age of the smiling children in the photo above. An age at which they are still in primary school.
To put this into context, in mainland Europe, the average minimum age of criminal responsibility is 14 years. In many South American countries it is 16–18 years. Some jurisdictions have two age thresholds- an absolute minimum age below which a child cannot be prosecuted at all, and a higher threshold below which the child is assumed incapable of criminal wrongfulness unless proven otherwise (the rebuttable presumption of doli incapax). This provides a safety-net for those just over the minimum age who are nevertheless developmentally immature in the eyes of the law. In 1998, the government in England and Wales decided to abolish the defence of doli incapax which previously afforded some protection to children over the minimum age of 10 but under the age of 14, leaving English children at great risk of criminalisation than their European counterparts.
Until recently, Scotland held the questionable record of the lowest European minimum age of criminal responsibility at 8 years, but the Age of Criminal Responsibility (Scotland) Act 2019 raises it to 12 years, bringing it at least in line with acceptable international levels. There seems to be little appetite to review the minimum age in the rest of the UK, and a Private Members’ Bill seeking to raise the age to 12 years failed to complete its passage through Parliament before the end of the last session in 2019.
If the true measure of civilisation can be found in the way a society treats its most vulnerable citizens, what does the age of criminal responsibility say about the government’s attitude to children?
A minimum age of criminal responsibility of 10 years runs counter to common sense
Successive governments have pledged to improve education and mental health care for children and young people, with a particular focus on poor and marginalised groups.
Children’s rights are protected in numerous laws which recognise that they differ from adults in their abilities to make decisions for themselves. For example:
Below the age of 18 children cannot vote, sit on a jury, buy alcohol, tobacco or fireworks, or open their own bank account
Below the age of 17 children cannot drive a car
Below 16 years, children cannot consent to sex, play the lottery or buy a pet
Below 14, children are not responsible for wearing their own seatbelt
When set against these figures, a minimum age of criminal responsibility of 10 years runs counter to common sense. In theory, a child who is deemed too young to consent to sex themselves could receive a life sentence for committing a grave sexual offence against someone else.
This begs the question of how the current minimum age of 10 years was decided upon.
At the turn of the twentieth century, the age of criminal responsibility in the UK was 7 years. This was raised to 8 and then 10 years in the 1960’s, but the reasons for deciding the cut-off appear to be arbitrary and not scientifically informed. This was a time when neuroscience was in its infancy and very little was known about brain development.
We now know that the adolescent brain goes through a period of almost unrecognisable change between the ages of 10 and 18 years.
The neuroscientific support for raising the age of criminal responsibility
You can read more about adolescent brain development in a superb book by Sarah Jane Blakemore- Inventing Ourselves- the Secret Life of the Teenage Brain. This paper also summarises the neuroscientific support for raising the age of criminal responsibility, which I outline below.
The brain’s white matter, tissue through which the different brain regions connect with each other, is not fully developed in children, and teenagers are particularly poor at planning. Rapid development of the risk and reward areas in the brain (namely, the ventral striatum and amygdala) combined with more gradual development of the more cautious, rational, impulse-controlling area (the pre-frontal cortex) leads to an increase in risk-taking behaviours in youths which they arguably have less control over than adults.
The teenage brain, especially a 10-year-old-s brain, doe not look or work like an adult brain.
Conventional morality, problem-solving and logical thinking are also not fully achieved in children until their mid-teens, or later for those subjected to adverse childhood experiences.
At court, children lack many of the capacities required to participate in their trials (you can read more about what these are here). Children are also prone to false confessions and suggestibility.
Treating them in the same way as adults in criminal justice settings is scientifically unjustifiable.
While neuroscience suggests that 10 is too young for a child to be deemed criminally responsible, it does not shed a great deal of light on what the cut-off should be.
This is where real circumspection is needed as to how we as a society view our children, and whether criminalising children has any benefits.
Any child found guilty of a crime is at risk of being institutionalised, in secure care homes or treatment centres as well as Young Offenders Institutions, secure hospitals and prisons. There is evidence that those dealt with the most severely are the least likely to stop offending in the future.
Having a lower age of criminal responsibility has been shown not to deter children from offending, and countries with the lowest minimum age, including England and Wales, have not only the highest rates of child detention in penal institutions, but also the poorest outcomes with regards to rehabilitation and reoffending.
Having a criminal record is not only stigmatising, but it also leads to children self-identifying as criminals, and having limited access to education and employment.
Of course, there are alternatives.
The main arguments against raising the age of criminal responsibility are that 10-year-olds know right from wrong (this may be true to an extent, but this is not the same as being criminally responsible) and that something needs to be done with the small number of very, very serious child offenders.
Here we can learn from other countries, where welfare laws are predominantly used to manage children who carry out criminal behaviours.
In England and Wales, a child can be deprived of their liberty when there is a risk of harm to themselves or others without them having to go down the criminal justice route. Preventative, minimal intervention and restorative models have proven to be successful in reducing reoffending and improving outcomes.
Prevention is always better than cure and early intervention should be the priority.
As highlighted in the links above, the COVID pandemic has provided a lens through which the harms of criminalising children are magnified.
According to Jo Becker, children’s rights advocacy director at Human Rights Watch:
“Children should never be detained unless all other options have been exhausted. The threat of Covid-19 makes the release of children all the more urgent.”
Reviewing the age of criminal responsibility is now more important than ever.
Note from the author: Much of this information is available in the POST note mentioned above, but this blog is entirely my own opinion and does not represent the views of POST or the Wellcome Trust.
Header image source: pjcross