Essay Sample on Raising the Age of Criminal Responsibility in England and Wales

The age of criminal responsibility (ACR) is the minimum age that a child can be prosecuted and punished by law for an offence. Children below the ACR cannot be arrested or charged because they are presumed to lack the capacity to commit a crime. Hence, they are immune from criminal prosecution. However, those above are assumed to be adequately mature to stand trial as accountable adults. They are assumed to understand that they are committing a crime, they are old enough to go to court and they can be punished, for instance, by having to do community work, being sent to prison, or not being allowed to go beyond certain areas. The essence of the minimum ACR is that it acknowledges that a child has achieved the emotional, psychological, and intellectual maturity to be held accountable for their actions.

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Some countries have set age limits that change according to the nature of the offence. In others, the minimum ACR depends upon the relative maturity of the child within particular defined ages, that is, the principle of doli incapax. When this principle applies, prosecutors can invalidate the presumption that a child cannot commit a crime by presenting evidence that proves that the child did understand the repercussions of their actions. The principle was abolished in England and Wales in 1998 and the then Labour government argued that any suggestion that 10-year olds did not understand the difference ‘between naughtiness and serious wrongdoing’ was ‘contrary to common sense’ (Bateman 2014). Nevertheless, this practice has led to the use of lower ACR for more grave offences and making children vulnerable to discrimination. Hence, the Committee strongly recommends that countries set a minimum ACR that does not permit, by way of exception, the use of a lower age.

The ACR in England and Wales is 10 years, which falls below the internationally recommended absolute minimum of 12 years. The Children and Young Persons Act 1963 established the age in 1963, which raised it from eight years (McGuinness 2016). Certainly, excluding other jurisdictions within the United Kingdom (U.K.), it is lowest in the European Union. According to Arthur (2016), children are still in the process of maturing at this phase of life and may not yet be developed adequately to comprehend the wrongfulness of their actions.

By comparison, the penal codes of numerous countries dictate higher minimum ages of criminal responsibility. For example, Canada, the Netherlands, and Greece prescribe 12 years. On the other hand, in New Zealand, France, and Israel the ACR is 13 years although it reduces to 10 years in the case of murder or manslaughter. However, in many Eastern European countries such as Germany, Austria, and Italy, the ACR is 14 years. In Denmark, Finland, Iceland, Norway, and Sweden, it is 15 years whereas, in Japan, Portugal, and Spain, it rises to 16 years. Belgium, Brazil, Argentina, and Luxembourg direct the ACR to be 18 years making them the countries with the highest ACR (Dwyer and McAlister 2017). Although this age falls below the average across many jurisdictions, the government has maintained that 10 years accurately reflects what is needed by the country’s justice system.

However, some countries prescribe lower minimum ACR than England and Wales. For instance, in the United States (U.S.) the age is as low as six years in some states like South Carolina, which makes the U.S. the country with the lowest ACR (Cipriani 2016). Other countries like Afghanistan, Kuwait, Egypt, and Bangladesh require this age to be seven years. Certainly, the differences among minimum ACR are partially explained by varying cultural and societal approaches, including the supposed usefulness of imposing criminal sanctions on children who may have an immature appreciation of the consequences of their behaviour. Therefore, this proposed immaturity drive a set of arguments in favour of raising the ACR in England and Wales.

The first set stems from a children’s rights standpoint. International criminal law does not address the issue of the minimum ACR. In particular, the United Nations Convention on the Rights of the Child (UNCRC) does not specify any specific minimum ACR. Instead, in Article 40 section 3a, the organization encourages signatory states to establish a minimum age below which children are presumed not to have the capacity to infringe the penal law (Cipriani 2016). However, the United Nations (UN) Committee responsible for monitoring compliance with this requirement has criticized jurisdictions in which the minimum age is 12 or less. It stresses that States parties should not lower their ACR to 12 where it has already been set higher. Instead, they should introduce a higher minimum ACR, such as 14, 16, or 18 years of age like in Brazil.

The committee asserts that a higher age ensures a more suitable justice system for juveniles. In particular, a higher minimum age would ensure that responses to juvenile offending do not lead to judicial proceedings. Consequently, the child or young person’s welfare would be at the forefront of a response. Besides, the child’s human rights and legal safeguards would be respected (Cipriani 2016). In line with this, the Committee has been consistently critical of the ACR in England and Wales and recommended reform on the three instances that it has reviewed the U.K.’s compliance with the UNCRC. However, as Dwyer and McAlister (2017) record, the government is yet to accommodate these recommendations.

Another argument that aligns with the children’s rights perspective points to a vital differentiation between adult and children autonomy. The legal system does not regard children as fully autonomous right-holders (Bateman 2014). Moreover, childhood is seen as a developmental stage during which the aspects crucial for full autonomy accumulate. Arthur (2016) asserts that children and young persons are less mature than adults regarding their judgment and sensation-seeking, which makes them have trouble weighing and comparing consequences when making decisions and examining the meaning of long-range outcomes. Certainly, this phase needs protection from any policies that irreversibly obstruct the preparation process for the attainment of full autonomy (Cipriani 2016). On various measures, a low ACR certainly has that negative impact. Thus, protecting a child’s basic rights suggests that the age at which criminal liability is attributed be increased considerably.

Similarly, scientific research shows that brain function reaches maturity only at around 16 years old, which affects a child’s reasoning and impulse control. Today, England and Wales think that children as young as 10 years old are criminally mature and capable of discernment. However, if this were the case, one would wonder why the legal age to enter marriage in England and Wales is at 16 years, which even needs parents and guardians’ consent if the participant is below 18 years. Besides, children are excluded from any kind of paid employment until the age of 13, and persons below 17 years cannot be issued with a provisional driving license (Bateman 2014). Besides, a 10-year old child has not reached the age of puberty and the brain is not developed enough to comprehend the consequences of certain actions, a fact the informs the underlying trend that has been to raise safeguards to a higher age while delaying the age at which adult-type rights are enjoyed.

Certainly, this argument falls in the category of arguments that deal with the circumstances under which it is admissible to credit criminal accountability, which despite the government’s simplistic opinions, needs rather more than knowing the difference between right and wrong. Indeed, children in the current ACR do have a self-generated comprehension of what it means to do wrong. Therefore, the age at which criminal liability can be suitably credited should be guided by developing cognitive capacity, which is inadequate at 10 years. Moreover, based on the examples above, a clear conceptual tension with attribution of adult-type responsibility from the age of 10 years to children who violate the criminal law exists. Furthermore, every other area of law, responsibilities, and the social rights that adulthood holds are reserved for older persons.

Moreover, the burden of criminal sanctions is only justifiable to the degree that children are competent to participate in proceedings. Empirical evidence suggests that comprehension of the basic principles of the criminal justice process is less well developed in persons aged between 14 and 15 than in those aged between 16 and 17, who certainly function at a lower level than young adults do (Bateman 2014). Also, children below the age of 17 years are more likely to confess to things they have not done that their adult equivalents (Bateman 2014). Indeed, a child of 10 years can know that they are doing something wrong but not appreciate it is criminally wrong, and hence not form the mens rea to be criminally responsible. Thus, cognitive functioning impedes genuine participation in proceedings until a point of maturation well above 10 years. Based on this, it is clear that the low ACR in England and Wales runs the risk of children being prosecuted for crimes they are too immature to fully understand, and therefore, it should be raised.

Another set of arguments in favour of a higher ACR focuses on the extent to which holding children accountable through the imposition of criminal sanction is an effective way of preventing further offending. From this view, research suggests that prosecution has no beneficial effect at any stage (Dwyer and McAlister 2017). The primary explanation for that lack of positive impact is that the youth justice system is itself criminogenic and contact with it tends to hinder the process of desistance that happens naturally with experience and maturity (Arthur 2016). Nevertheless, the government should create innovative systems of responding to juvenile offenders with a genuine focus on their education, reintegration, and rehabilitation.

However, some scholars argue against raising and in turn maintaining it at 10 years in England and Wales. One such argument is that children should be held accountable, particularly when public protection is concerned. The preservation of the power to prosecute children between the ages of seven and 14 is a vital tool through which serious challenges to law and order by young offenders can be dealt with effectively. Moreover, children in this age group are deemed to have the ability to distinguish between bad behaviour and serious wrongdoing. Opponents of raising the ACR advocate for the use of age-appropriate responses. They cite the case of James Bugler, a child who was murdered by two 10-year-old boys in 1993, as a reason for maintaining the ACR of 10 years (McGuinness 2016). In this case, Lord Reed held that “Even children who may appear to be lacking in innocence or vulnerability are however evolving, psychologically and physically towards the maturity of adulthood” (Bateman 2014).

Additionally, raising the minimum ACR would broaden the pool of young children available for exploitation by adult criminals. Certainly, the higher the minimum ACR, the greater the number of children exempt from prosecution will be. Organized crime syndicates can exploit this rise in ACR by employing young children to act as drug peddlers or thieves in the knowledge that they cannot be prosecuted.