The age of criminal responsibility is much too low

Following the sentencing of two 11-year-old boys at the Old Bailey for the attempted rape of an eight-year-old girl, the Law Society has called for the age of criminal responsibility to be increased.

Since 1998, children in England, Wales and Northern Ireland can have been held legally responsible for criminal actions from the age of 10. Previously, there was a rebuttable presumption that those aged 10 to 14 could not form the necessary criminal intent and could not, therefore, be held criminally responsible for their actions.

England has one of the lowest age thresholds for criminal responsibility in Europe. On the continent, the threshold ranges from seven in Switzerland to 18 in Belgium. Some states in the US have no age criterion.

The justification for an age threshold is to prevent the prosecution of children who are too young to understand the nature or seriousness of their acts, even if, to an adult mind, the acts are very wrong and clearly criminal. That has to be right – young children cannot be held to the same standards of understanding and behaviour as adults.

But where the acts are very serious, such as murder or rape, this principle can be severely tested, on the basis that it is incredible that the perpetrator could not have known the enormity of their actions.

I would argue that it is in these very difficult cases, where it is most important, that there is an age threshold. As Law Society chief executive Des Hudson said: ‘The hallmark of a civilised society is the way in which it deals with hard and difficult cases – and not least how it deals with children who come into conflict with the law. While it’s important that the justice system can deal with older children it would be wrong to criminalise the very young,’ he said.

But where does one draw the line? I’m no expert on child development, but there seems to be a level of agreement among those who are that 14 is about right, and that is what Chancery Lane is calling for.

As children develop differently, perhaps turning the clock back to the pre-1998 position would allow for a certain amount of flexibility.

This leads on to another issue. Where young children are to be tried, is it ever appropriate or necessary for their trials to take place in an adult court like the Old Bailey, when there are more suitable facilities available at the youth court?