Criminalising kids: time to grow up

18 Feb 2022 Nick Garbutt    Last updated: 18 Feb 2022

Pic: Unsplash

In Northern Ireland children are not allowed to get a tattoo until they are 18 but can be convicted of crimes whilst at primary school.  

The age of criminal responsibility here is 10. What that means is that from that age children are deemed to be sufficiently mature to stand trial. Although there can be special rules governing how trials are reported and precisely how they are conducted they are deemed to be as accountable as adults.

In Scotland the age was raised to 12 in 2019. Until then it had been eight, yes, that was not a typographical error, eight.

It is difficult to understand how anyone can seriously believe that a 10 year-old has the same understanding of what constitutes right and wrong as an adult.

Yet that’s where we are. The approach to punishment for a little boy who kicks a football and breaks a window while playing is the same as for an adult. Yet we know that there is a big difference in culpability. We would expect an adult to understand the risks and potential consequences of the game, a child not so much.

This difference between adults and children  is reflected in other areas of the law. Below the age of 18 children cannot vote, sit on a jury, buy alcohol, tobacco or fireworks. They cannot open their own bank account or even get a tattoo. Below 16 they cannot buy a pet, play the lottery or have sex.

Please note that the Sexual Offences Act 2003 says someone under 16 is incapable of giving informed consent to sex. Very few would disagree. So why, if that is the case, do we simultaneously assert they are mature enough to go on trial?

Not only does the current law seem to defy common sense it is also out of keeping with what happens elsewhere. In 2007 the UN Committee on the Rights of the Child (UN CRC) declared an age of criminal responsibility of less than 12 years “not to be internationally acceptable”. Northern Ireland, together with England now has the lowest in Europe and one of the lowest worldwide.

It gets worse.

 Many children who come into contact with the criminal justice system have grown up in care or disadvantaged families, and are often the victims of crime themselves.

There are high rates of mental illness and substance misuse amongst them with between 23 and 32% having learning difficulties, and 60-90% having communications difficulties- hardly the ideal background for acquitting themselves well in hostile police interviews or forensic cross examination in a court room.

And worse.

There used to be a common law presumption called Doli Incapax which meant that in cases involving children between 10 and 14 the prosecution had to prove the child understood that what he or she had done was wrong according to the ordinary standards of reasonable adults.

This test was abolished in the backlash that followed the horrific kidnap, torture and killing of two year-old Jamie Bulger in 1993 by two 10 year-olds.

And the Bulger case was also cited in 2011 in Northern Ireland after an independent review recommended the age be raised to at least 12, possibly 14. The DUP objected with its MLA Alastair Ross observing: “sadly events such as the horrific murder of Jamie Bulger illustrates perfectly why the safeguard in the law is required.”

It is just worth pausing here to make two points. The first is that at the time the Bulger case was, quite understandably , depicted as evidence of moral decay and the spread of evil to young children. And yet the extent of the shock and the anger actually shows the rarity of such events. The two defendants were the youngest to have been convicted of murder in England, ever.

There is also a dangerous misconception about the alternatives being proposed. Shortly before she took office the children’s commissioner, Koulla Yiasouma put it like this: “If a child is considered to be a risk to themselves or others it would be negligent to suggest that they are not held securely regardless of their age, in a way that ensures they recognise the impact of their behaviour and decreases the likelihood of reoccurrence. You do not need a low age of criminal responsibility to do this.”

So nobody is suggesting for one second that we should turn a blind eye to abhorrent behaviour, quite the reverse.

Since the failed attempt at reform a decade ago further evidence has mounted regarding brain developing, decision-making and how that impacts criminal activity.

Brain imaging has shown that brain development, especially in the regions involved in decision-making, does not stop in childhood but continues into adulthood. The prefrontal cortex controls high-level cognitive and executive functions such as decision-making, planning, social interaction and inhibiting risk behaviours. It undergoes significant change during adolescence and is one of the last areas of the brain to reach full maturation.

Hence adolescents are less able to consider the perspective of others when making decisions – they tend to prioritise immediate rewards over long-term consequences.

When the criminal age of responsibility was set policy-makers would not have known this, nor would they have been aware that between the ages of 10–14 years there is a shift from behaving in such a way to elicit approval from parents to behaviours that elicit approval from peers.

Adolescents place a high value on peer relationships and are hypersensitive to social exclusion.

These are important and help to explain why criminal behaviour peaks in late adolescence before declining.

Only a small amount of offenders (around 5%) continue to commit crimes throughout adulthood.

So what makes the difference? Three factors emerge time and again:

  • Getting a job and holding one down;
  • Getting into a stable relationship;
  • Moving away from criminal peers and into a supportive social environment.

If we are to help people manage that journey, or better still escape from having to make it at all it is hard to see how criminalising them at 10 is going to help.

That is what all the evidence suggests. Remarkably it shows children who are dealt with most severely by the Criminal Justice System are less likely to desist from offending. Sadly those countries with the lowest ages of criminal responsibility have the highest rates of child detention in penal institutions and the poorest outcomes with regards to rehabilitation and reoffending.

Furthermore contact with the criminal justice system  reduces the likelihood of children completing education, obtaining qualifications and gaining meaningful employment. Remember too all those convicted or cautioned get a criminal record which can have long term implications, especially when applying for jobs which require criminal record disclosure.

To their credit those involved in administering juvenile justice in Northern Ireland are very much aware of all this. The Juvenile Justice Centre is operated on a welfare basis and the latest  Programme for Government sets out actions aimed at ‘exiting children from the youth justice system at the earliest point’.

But what we really need to see is a system which is fair, effective and operating with the best interests of all in society in mind and sadly, we’re not there yet.


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