Age of Criminal Responsibility

A letter to The Times, 20 February 2021

Escaping Justice

An open letter to The Times, 28 October 2012

Sir,

Keir Starmer is reported as saying (The Times, 24 October, 2012) that men who groomed teenagers for sex had escaped justice for decades because police, prosecutors and the courts failed to understand the nature of the abuse.

If that is so it is inexcusable, given the substantial increase in public and professional awareness of sexual abuse over the last three decades. The Michael Sieff Foundation has been holding conferences since 1985 on child welfare matters and related policy matters. An annual theme has been the importance of sharing information between agencies. Specific attention was given to this in the context of prosecution of offences in relation to children in 1995 at our conference ‘Children in the Crossfire’. This event was attended by the CPS, Police and Judiciary, as well as representatives from Government Departments. It was recommended:

‘The decision to prosecute or not is more likely to be right if it is based on the fullest information. This suggests the fullest exchange of information between the police, the social services and the Crown Prosecution Service.‘

The use of expert witnesses was also recommended. Should that not be routine in cases involving children?

In 2000 the Government issued ‘Safeguarding Children Involved in Prostitution’. In 2004 there was a Home Office Review on Child Prostitution to which the Foundation made a submission:

‘It is disturbing to read, 15 years [on from the Children Act 1989], that preventing, protecting and supporting children becoming vulnerable to abuse through prostitution, still needs to be addressed.’

And even more disturbing 23 years on. Has no progress been made since?

Children and court

Full letter sent to The Times, 28 June 2010 and partially published on 7 July 2010 (below)

Re: Age of Criminal Responsibility

Dear Sir

We write as academics, clinicians, lawyers and others working in the youth justice system to express our concern about the very low age of criminal responsibility for children in England & Wales. Our comments do not relate to any particular case but are intended to move the debate forward to help create a fairer and more effective system for dealing with children accused of serious crimes.

First scientific research has demonstrated that significant psychological and neurobiological development takes place throughout adolescence. Crucially, at age 10, children show marked immaturity in a network of frontal brain regions implicated in social cognition, planning, perspective taking and evaluating future consequences. This psychological and neurodevelopmental immaturity is such that the capacities of a child of ten are not comparable to an older adolescent or adult.

The assumption that a ten year old can face charges is widely discussed in the media in terms of whether or not that child can ‘understand the difference between right and wrong’. In our view the question is more complicated – most ten year olds can understand that difference. Rather, as set out in R (TP) v West London Youth Court [2005] EWHC 2583 (Admin) the test is whether the defendant’s intellectual capacity is such that he could not effectively participate in the proceedings and accordingly have a fair trial. It is for the defendant to establish this inability on the balance of probabilities. The European Court of Human Rights found that an 11 year old was unable to participate in his trial in the Crown Court (SC v UK (2005) 40 EHRR 10) even though he was fit to plead in the adult legal sense.

In criminal proceedings in this country there are no competency tests carried out on young child defendants. Research shows that a significant proportion of young defendants have a hitherto undiagnosed learning difficulty and mental health problems. One solution for young defendants would be to make a pre-trial competency assessment mandatory for all very young defendants between ages 10 – 14 years old. Such an assessment should look at the child’s ability to cope with the tests set out in the West London Youth Court case which go far beyond knowing the difference between right and wrong.

Frameworks for such assessments have been used successfully in the USA for several years and could easily be introduced in the UK. Such a model is essential in order for the legal system to take into account developmental immaturity as a factor that may preclude young children being tried in the same way as an adult.

We support the Royal College of Psychiatrists, the Children’s Charities and others in their call for the age of criminal responsibility to be raised substantially in line with most other countries.

Alternative legal provisions for young defendants have been established in other countries which, in our view, justify careful consideration. We are well aware of the need for justice for victims, society at large as well as for the young defendant. More dangerous children convicted of serious offences will always need a secure custodial disposal which could still be provided within a new, integrated youth justice system.

We have written to the Ministry of Justice proposing a consultation process, led by the Law Commission to explore ways in which this longstanding and unsatisfactory situation could be rectified.

Dr Eileen Vizard FRCPsych
Consultant Child & Adolescent Psychiatrist

Signatories:
Professor Dinesh Bhugra, President, Royal College of Psychiatrists
Prof Sarah-Jayne Blakemore, UCL Institute of Cognitive Neuroscience
Juliet Lyon, Director, Prison Reform Trust
Paul Mendelle, QC Chairman, Criminal Bar Association
Andrew Flanaghan, CEO, NSPCC
Lord Ramsbotham, House of Lords
Bob Reitemeier, Chief Executive, The Children’s Society
Mark Ashford, Solicitor, TV Edwards LLP
Camila Batmanghelidjh, Founder and Chief Executive, Kids Company
Dr Arnon Bentovim, The Child and Family Practice London and Visiting Professor at the Department of Health and Social Care, Royal Holloway, University of London
Professor Gwyneth Boswell, University of East Anglia
Michael Bowes, QC, Outer Temple Chambers
Frances Crook, Director, Howard League for Penal Reform
Baroness Deech, Chair, Bar Standards Board
Professor Peter Fonagy, Head of Department of Clinical & Health Psychology, UCL and CEO of Anna Freud Centre
Dr Danya Glaser, Consultant Child and Adolescent Psychiatrist, Great Ormond Street Hospital
Professor Simon Hackett, Head of the School of Applied Social Sciences, Durham University
Laura Hoyano, Fellow & Tutor in Law, Wadham College, University of Oxford
Professor Michael Lamb, Professor of Psychology and head of the Department of Social and Developmental Psychology, University of Cambridge
Shauneen Lambe, Youth Department, Just for Kids Law
The Earl of Listowel, Vice-Chair, Associate Parliamentary Group for Children and Young People in Care and Leaving Care and Treasurer, All Party Parliamentary Group for Children
Dr Eamon McCrory, Consultant Clinical Psychologist and Senior Lecturer, Anna Freud Centre and UCL
Margaret Murphy, Chair of the Child and Adolescent Faculty, Royal College of Psychiatrists
Sally O’Neill, QC, Furnival Chambers
Dr Janet Parrott, Chair of the Forensic Faculty, Royal College of Psychiatrists
Joyce Plotnikoff, Researcher, Lexicon Limited
Richard White, Children Panel Solicitor
Peter Wilson, Clinical Advisor, The Place2Be
Barbara Esam, David Jeffries, Stephen Pizzey, Chris Stanley and John Tenconi, Michael Sieff Foundation Trustees

Children and court

Letter published in The Times, 7 July 2010

The age of criminal responsibility should be raised substantially in line with most other countries

Sir,

We are concerned about the very low age of criminal responsibility, ten years old, for children in England and Wales. The assumption that a ten-year-old can face charges is widely discussed in terms of whether or not that child can “understand the difference between right and wrong”. The question is more complicated — most ten-year-olds can understand that difference. The test should go beyond this and should decide whether the defendant’s intellectual capacity is such that he could not effectively participate in the proceedings and accordingly have a fair trial.

We believe that the age of criminal responsibility should be raised substantially in line with most other countries and propose a consultation process, led by the Law Commission, to explore how this could be rectified.

Dr Eileen Vizard FRCPsych
Consultant Child & Adolescent Psychiatrist