The age of criminal responsibility in England and

Wales
Standard Note: SN/HA/3001
Last updated: 6 February 2009
Author: S Broadbridge
Home Affairs Section

This note explains that the age of criminal responsibility in England and Wales is now ten,
and refers to some criticisms which have been made about the current legal position.

Contents
A. The age of criminal responsibility 2
B. Criticisms 2
1. Joint Committee on Human Rights 2
2. The Guardian Special Report 4
C. Other jurisdictions 5

Standard Notes are compiled for the benefit of Members of Parliament and their personal staff. Authors are
available to discuss the contents of these papers with Members and their staff but cannot advise others.
A. The age of criminal responsibility

The age of criminal responsibility was raised from eight years old to ten, in 1963. 1 But the
law continued to presume that children under fourteen did not know the difference between
right and wrong (“doli incapax”) unless the prosecution proved otherwise, until 1999. 2 So
the difference is that, since 1963 a child under ten may not be tried or punished for any
criminal behaviour, and until 1999 a child under fourteen could not be convicted unless the
court could be satisfied that he knew what he was doing was seriously wrong, not merely
naughty or mischievous.

The presumption was abolished by the Crime and Disorder Act 1998. In the White Paper No
More Excuses: A New Approach to Tackling Youth Crime in England and Wales, published
in November 1997, the Government emphasised that it considered the notion of doli incapax
to be contrary to common sense and said that the presumption of doli incapax should be
abolished rather than reversed, reiterating its view expressed in the consultation paper
Tackling Youth Crime, which was published in September 1997.

B. Criticisms
1. Joint Committee on Human Rights

The UN Convention on the Rights of the Child binds the UK in international law, but has not
been incorporated directly into UK law. It is capable of having effect on judicial and
governmental decision-making, The UN Committee on the Rights of the Child has expressed
criticism about, among other things, the UK’s relatively low ages of criminal responsibility.
The position was recently considered by the Joint Committee on Human Rights who, in June
2003, summarised as follows:

The Age of Criminal Responsibility

35. The UN Committee was—

… particularly concerned that the age at which children enter the criminal
justice system is low.
The age of criminal responsibility in the UK (10 in England, Wales and Northern
Ireland, and 8 in Scotland) is the lowest in the European Union. Article 3 of the
Convention requires the best interests of the child to be a primary consideration in all
actions taken by courts of law, administrative authorities or legislative bodies, which
raises the question of how the age of criminal responsibility in the UK can be justified
as being in a child's best interests. The Minister for Children and Young People
argued—

1
Children and Young Persons Act 1963 s16
2
Crime and Disorder Act 1998 s34

2
 … one of the things you can sometimes do through the criminal justice
system is to ensure there is some sort of intervention in the young person's
life, either what you do with them or what you may do with their parents, for
example the implementation of the parenting order may follow from a case
taken through the criminal justice system. I think it is very important to make
sure that we have the ability to get effective preventive interventions in place
and, on occasion, having the gateway through the criminal justice system can
support you in doing that. It is not purely about the age at which punishment,
if you like, kicks in, it can be the ability to take effective measures which
may include sanctions but may well include supportive measures too.

36. We are not persuaded by the argument that criminalising children is the best
route to rehabilitation. As the Children's Rights Alliance for England put it,
responding directly to the Minister's comment—

The UK has a well-developed child welfare system that is more than capable
of assessing and meeting the needs of children without them having to be
charged or treated as criminals. The [JCHR] will be aware of the recent very
critical joint report from eight Inspectorate and regulatory bodies into how
well children are being safeguarded. Of the youth offending teams' work with
children in prison, the report concludes, "the focus was almost exclusively
upon the offending behaviour of the young people, and there was little
evidence of welfare needs being considered and addressed." This should give
a red signal to a government so intent on responding to children in trouble—
especially the youngest ones —through the criminal justice system rather
than through our child welfare system.

37. The UN Committee recommended that the UK raise the age of criminal
responsibility "considerably". The case for the UK being so out of line with
prevailing practice in Europe is difficult to understand or defend. Alternative methods
of ensuring that children take responsibility for their actions need to be more
thoroughly and openly explored, drawing on the positive lessons from reparation and
referral orders and other recent restorative justice schemes for offenders commended
by the UN Committee. It might also be an area where "listening to children" could
pay dividends. The conclusions of the Howard League's survey in eight London
comprehensive schools of young victims of crime were that—

The respondents felt that they are not listened to on issues of crime. They are
seen as the offenders and not the victims … [they] suggested [that] greater
interaction between young people and the police and authorities would
encourage young people to become part of the solution to crime and crime
prevention … yet they feel adults rarely listen to their suggestions about how
crime could be prevented.

38. We also note, as did the UN Committee, that the Government has abolished the
common law principle of doli incapax (the rebuttable presumption that children aged

3
 10-13 years are incapable of criminal intent). The effect of this has been described as
follows—

This … means that a 10-year-old child—still in primary school—is presumed

to be as criminally responsible as a fully mature adult. This cannot be right.

In the light of the removal of this safeguard, we recommend that the Government
review the effects of the low age of criminal responsibility on children and on crime.
The criminalisation of young children has to be justified by very convincing
evidence—it is not sufficient to assert that it is the best, or the only, way of diverting
them from a future life of crime. Unless evidence of the effectiveness of the present
age of criminal responsibility in reducing crime and disorder can be presented, and
can be shown to be convincing, we conclude that to bring it more in line with our
European neighbours would meet both the requirements of effective criminal justice
and our duty under the UNCRC to uphold children's human rights. We recommend
that the age of criminal responsibility be increased to 12 years. 3

In September 2004, Home Office minister Paul Goggins said that there were no plans to
change the age of criminal responsibility from 10. 4

2. The Guardian Special Report

In 2001, in connection with the killing of James Bulger by two young boys, the Guardian
compiled a special report, in which the following views were expressed: 5

Wednesday June 20, 2001

Dr Ann Hagell
Co-director, Policy Research Bureau
There is no other legal or social arena where we give children complete responsibility
at 10, mostly for good reason. The important thing is the consequence of being over
the age of criminal responsibility, not the age per se. Other countries with a very low
age (10 or less) usually have a period where responsibility is not absolute until mid-to
late teens, or where the response to breaking the law is welfare-oriented rather than
retributive…

Frances Crook
Director, Howard League for Penal Reform
Our age of criminal responsibility is one of the lowest in Europe. Other European
countries have set the age at 14, 15, 16 or, in some cases, at 18. If children do
something wrong they should be dealt with through the care system not the criminal

3
Joint Committee on Human Rights, 10th Report 2002-03, June 2003
4
HC Deb 15 September 2004 c1583W
5
“The Guardian Special Report: the Bulger case. The question: The age of criminal responsibility in England
is 10, which allowed James Bulger's killers to be prosecuted. Should it be altered?”

4
 justice system. Children know if they have done something wrong, but they don't
know the difference between various levels of wrongdoing. … The age should be
raised to 14 and then 16.

Laurence Lee
Solicitor for Jon Venables at his trial

I think that Thompson and Venables did know the difference between right and
wrong at the age of 10, but they were treated like circus animals at the trial. …. If the
age of criminal responsibility at the time of the Bulger killing had been 12, the boys
wouldn't have been prosecuted and there would have been outrage.

Carolyn Hamilton
Director, Children's Legal Centre
I would say about 14. I think that at that age children are better able to understand the
consequences of what they are doing…

Lyn Costello
Mothers Against Murder and Aggression
Children of 10 know the difference between right and wrong. They know you don't
hurt small children. … We have children as young as eight, or even six, terrorising
people on estates such as the one I live on. …

Beate Raedergard
Mother whose child was killed by young boys
My five-year-old daughter, Silje, was killed by two boys near our home in
Trondheim, Norway. It was a year after the killing of James Bulger, and the two
incidents were compared in the press. In Norway, where the age of criminality is 15,
the boys were treated differently…. I think they understood what they had done, but
not the consequences. The boys went back to school, were helped by psychologists
and have had to learn how to treat others to fit back into society.

Professor Rod Morgan, who resigned from the chairmanship of the Youth Justice Board in
2007, has recently said that he would prefer to see the age raised, but did not think that it was
a political option at present. 6

C. Other jurisdictions
Reporting on Professor Morgan’s comments in The Independent, Nigel Morris compared
British policy with that of other jurisdictions:

The minimum age is 12 in the Netherlands, 13 in France, 14 in Germany, 15 in

Sweden and Italy, 16 in Spain and 18 in Belgium. Most US states do not stipulate
when children can be prosecuted, but in those that do the age varies between six and

6
“Criminal age 'should be raised'”, 4 February 2009, BBC News

5
 12. Australia followed the English lead and set a minimum of 10, while it is 12 in
Canada, 14 in New Zealand and 15 in Japan.
In Scotland, where the age is 8, there have been consultations on the possibility of raising it, 7
and ministers are apparently now considering raising it to the age of 12. 8

7
Scottish Law Commission, see SPICe subject map, Children and the Scottish Criminal Justice System
8
“Criminal age rise to 14 ruled out “, 6 January 2009, BBC News