Is the age of criminal responsibility too low?

The sentencing this week of two 11-year-old boys, found guilty in May of the attempted rape of an eight-year-old girl, has reignited vociferous debate regarding the appropriate age of criminal responsibility. In a week in which deputy Lib Dem leader Simon Hughes demanded a veto on coalition policies for disaffected party backbenchers, the issue could become yet a further divisive one within the government.

Though the boys, both 10 when the assault took place last October, were spared a custodial sentence and instead given a three year supervision order, the decision to try them at the Old Bailey has been criticised by campaigners.

Michele Elliott, director of children’s charity Kidscape, described the legal process that the boys had gone through as ‘horrific’, adding: “I think it reflects horribly on our whole system that a case like this with children should be tried in this way.” One of the barristers for the defence said that the boy she was defending “has probably suffered more than any adult that has gone through this process, simply because of his age.”

Although efforts were made to make the experience less daunting for the children, with the judge and barristers wearing suits instead of gowns and wigs and the defendants allowed to sit next to their parents instead of in the docks, the decision to put the two boys and the eight year old girl through proceedings at an adult court has been called into question by the children’s commissioner, Maggie Atkinson. The process must have been an “intimidating and bewildering experience for all these children,” she said, adding that a review is required to look into “whether an adversarial, adult court system is really the best way to ensure that the truth of serious matters is identified” in cases involving children so young.

At 10, the age of criminal responsibility in England and Wales is the lowest in Europe, and one of the lowest in the developed world. Japan (12), France (13), Germany (14), Portugal (16) and Belgium (18) all set the minimum age at which children can be charged of a criminal offence considerably higher. Uganda (12), China (14) and Uzbekistan (15), all deemed less socially liberal than the UK, protect children from criminal proceedings until they become teenagers. The Scottish Parliament passed legislation this month to raise the age in Scotland to 12.

In 2006 the Home Office was advised in a report from the Centre for Crime and Justice that too many children were being criminalised by the law and that the age of responsibility ought to be raised. Ms Atkinson, whose position is currently under review by the government, said in an interview with The Times in March that the minimum age in England and Wales is “too low. It should certainly be moved up to 12.” The Ministry of Justice affirmed on Tuesday, however, that the government “has no plan to raise the age of criminal responsibility, as we believe children aged 10 are able to weigh up right and wrong in the same way that older children or adults can.”

The Beijing Rules for the administration of juvenile justice, adopted by the UN in 1985, specifies that the minimum 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.” So the question is seemingly a quite simple one; are children of 10-years-old emotionally, mentally and intellectually mature enough to live up to the moral and psychological dimensions of criminal responsibility? For Dr Ann Hagell, co-director at the Policy Research Bureau, there is a contradiction in England and Wales regarding how children are treated. “There is no other legal or social arena where we give children complete responsibility at 10, mostly for good reason,” she said.

Disagreements between many Conservative and Liberal Democrat MPs over the issue have yet to resurface since the coalition was formed, but the issue could yet prove problematic. The Lib Dem’s welcomed Ms Atkinson’s comments earlier in the year, and Nick Clegg said in the buildup to the election that the nation was “criminalising far too many young children.”

Most Tory MP’s, meanwhile, have consistently distanced themselves from calls for a reconsideration of the appropriate age. With many backbench Lib Dem’s evidently disgruntled and frustrated at what they have already been forced to give up in the name of the coalition, areas of disagreement such as this are increasingly likely to be voiced in public.