Age of Criminal Responsibility Bill [HL]
Lord Dholakia (LD)
My Lords, my Bill is designed to raise this country’s unusually low age of criminal responsibility from 10 to 12. At present, in England and Wales, children are deemed to be criminally responsible from the age of 10. That means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a “grave crime”—that includes serious violent and sexual crimes but can also include burglary—can be tried in the Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the adult Crown Court.
At 10 years old, the age of criminal responsibility in England, Wales and Northern Ireland is the lowest in Europe. In Ireland, in 2006, the age was raised to 12 with exceptions for homicide, rape or aggravated sexual assault. In Scotland, in 2010, legislation provided that children cannot be prosecuted below the age of 12. Outside the British Isles, the age of criminal responsibility is invariably higher. In France, Greece and Poland, it is 13. In Germany, Spain and Italy, Austria, Belgium, Hungary, Bulgaria and Romania, it is 14. In the rest of Europe, it ranges between 14 and 18.
The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligations under international standards of juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997, the committee said:
“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level”.
I do not wish to be misunderstood on this point. Of course, taking 10 or 11 year-olds out of the criminal justice system would not mean doing nothing with children who offend. It would mean doing what other countries do with 10 and 11 year-old offenders. It would mean doing what we do with delinquent nine year-olds. In other words, it would mean dealing with the causes of those children’s offending through intervention by children’s services teams. In the minority of cases where court proceedings are necessary, it would mean bringing children before family proceedings courts, which can impose compulsory measures of supervision and care. In the most serious cases, that can mean long-term detention in secure accommodation, but that would be arranged as part of care proceedings, rather than as a custodial punishment imposed in criminal proceedings.
Those who oppose increasing the age of criminal responsibility often argue that children of 10 and 11 are capable of telling right from wrong, as though it automatically follows that they should be dealt with in criminal courts. That does not logically follow at all. Most six year-olds have a sense of right and wrong, but no one suggests that they should be subject to criminal proceedings or prosecution.
The point was made very well in 2012 in a report by the Centre for Social Justice, which was set up by my right honourable friend the Secretary of State for Work and Pensions, Iain Duncan Smith. The centre produced a report on the youth justice system in 2012 entitled Rules of Engagement: Changing the Heart of Youth Justice. It states:
“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process and this raises the question of whether the current minimum age of criminal responsibility, at ten, is appropriate”.
The evidence from international research is overwhelming. Anyone who has sat in youth justice courts or family courts and knows that it is clearly demonstrated. It shows that children of 10 and 11 have less ability to think through the consequences of their actions, less ability to empathise with other people’s feelings and less ability to control impulsive behaviour. That does not mean that children aged 10 or 11 have no responsibility for their actions—that is not what I am trying to say—but on any reasonable interpretation of the evidence, they must be regarded as less responsible than an older adolescent or an adult.
It cannot be right to deal with such young children in a criminal process based on ideas of culpability which assume a capacity for mature, adult-like decision-making. There is no other area of law—whether it is the age for buying a pet, the age for paid employment, the age of consent to sexual activity or the age for smoking and drinking—where we regard children is fully competent to take informed decisions until later in adolescence. The age of criminal responsibility is an anomalous exception. Ironically, a 30 year-old who had a mental age of a 10 year-old child would probably be regarded as unfit to plead and yet, by some twisted freak of logic, a child of 10 is seen as capable of participating in the criminal justice process. How absurd.
It is sometimes argued that there is no need to raise the age of criminal responsibility because the number of 10 and 11 year-olds who receive youth justice disposal is small—we are given the figure of about 2,000 a year, a very small number. Even though this represents a small proportion of those going through the criminal justice system, however, what happens to 2,000 vulnerable children can hardly be regarded as a matter of little importance. The fact that the numbers involved are relatively small is in fact a strong argument for the Bill; it means that it will not be a huge burden in terms of resources to make alternative provision through welfare interventions and, where necessary, family court proceedings for the children who would otherwise have been charged and prosecuted.
Nor can it be argued that dealing with these children through non-criminal processes would put the public at risk. On the contrary, dealing with 10 and 11 year-old children through non-criminal procedures would be more effective than using the criminal justice process. The evidence shows that children who are dealt with through the criminal justice process are more likely to reoffend than those who are diverted from the criminal justice system and dealt with in other ways. Children who are officially labelled as offenders often react by trying to live up to the label and acting in increasingly delinquent ways to achieve status in front of their friends. As the Centre for Social Justice report put it,
“raising the minimum age of criminal responsibility would achieve important changes. Young children would not be tarred with the stigmatising ‘offender’ label which the evidence shows can exacerbate delinquency and would more likely have their victim status and welfare needs addressed, which the evidence suggests are currently often neglected”.
This is a particularly important point, as children who go through the criminal process at a young age are often young people from chaotic, dysfunctional and traumatic backgrounds involving some combination of poor parenting, physical or sexual abuse, conflict within families, substance abuse or mental health problems. The prospects for diverting the child from offending will be far better if these problems are tackled through welfare interventions than by imposing punishments in a criminal court. A welfare approach would avoid unnecessarily giving children a criminal record, which can make it harder for them to gain employment when they reach working age. As unemployment increases the chances of reoffending, this is another way in which criminalising children can increase rather than reduce the likelihood of future crime.
Of the 10 and 11 year-olds who are charged and prosecuted each year, the number who receive a custodial sentence is normally in single figures. However, although the number of serious child offenders is small, the public will of course want to be assured that raising the age of criminal responsibility will not increase the risk from these young people.
Some people who generally support raising the age of criminal responsibility argue that an exception should be made for the most extreme cases, such as homicide or serious sexual offences. I am willing to consider this point in Committee but at this stage my inclination is to resist making any changes or exceptions. The most serious child offenders invariably have the most complex welfare needs. Their backgrounds include experiences of serious physical abuse, sexual abuse, emotional abuse and neglect, parental mental illness, rejection and abandonment by adults, traumatic loss, conduct disorder and serious emotional disturbance. They need a welfare-based approach, in secure care if necessary, to help them to face their unresolved trauma, to develop and mature emotionally, to reach an appropriate sense of guilt and to learn to control their emotional and aggressive impulses.
Noble Lords will recall the trial of the boys who killed James Bulger, who were aged 10 at the time of the killing and 11 when they were tried. Most foreign commentators were amazed that children of that age should be dealt with by a trial in an adult Crown Court. They questioned whether such young children could really understand the complexities of a lengthy criminal prosecution and trial, whether they should have appeared in the full glare of media coverage, whether they understood all the issues and language of the trial, whether they could give sensible instructions to their lawyers and whether their decision not to give evidence was simply because they were frightened of speaking in such a setting.
Exposing such youngsters to a criminal trial is no way to achieve justice. Moreover, the case took nine months to come to trial, during which time the defendants received no treatment or therapeutic help in case it prejudiced their pleas. That is a completely unacceptable way to deal with young defendants and one that would be unthinkable anywhere else in Europe. It should be equally unthinkable here. The two boys should have been dealt with in family proceedings and detained in secure accommodation, without all the ill effects that resulted from a public Crown Court trial. I repeat that I am prepared to consider the possibility of exceptions in Committee, but the House will understand the reasons why at present I am inclined to the view that there should be no exceptions.
I commend the Bill to the House. The simple proposition that it contains, if enacted, would be an important step towards dealing with vulnerable, difficult and disturbed children in a way that befitted our civilised society. I beg to move.
The Earl of Listowel (CB)
My Lords, I am most grateful to the noble Lord, Lord Dholakia, for introducing this Bill and for his long advocacy on this issue. I declare an interest as a trustee of the Michael Sieff Foundation, a child welfare charity.
I noted what the noble Lord said about the evidence base. Dr Eileen Vizard, the eminent child psychiatrist, and Professor Sue Bailey, the current president of the Royal College of Psychiatrists, produced a paper on the age of criminal responsibility for the royal college which made very clear that the evidence shows that the current age for criminal responsibility is too low.
As treasurer of the All-Party Parliamentary Group on Children, I highlight that in its recent report, the group recommended that the age of criminal responsibility should be raised. In what I say, I will draw on my experience as vice-chair of the All-Party Parliamentary Group on Looked after Children and Care Leavers. I reinforce what the noble Lord said: these children are often the most damaged, the most traumatised and the most abused in our society, as well often the most troubling and destructive.
I strongly support the Bill. The current age reflects a lack of confidence in parenting in this country. Parents who lack confidence are often harsh and overly punitive towards their children. The current age is counterproductive and unkind to often our most vulnerable children. These children are often already overwhelmed by feelings of guilt. For the state to reinforce those feelings of guilt in young children is unhelpful and unkind. It is most encouraging that recently there have been indicators that we are becoming more confident parents. This Government have sustained the increasing reduction in the incarceration of children. There has been a very impressive drop in the number of children locked up in recent years. There has been a clear consensus that too many of our children were being locked up. Furthermore, the right honourable Iain Duncan Smith MP and Graham Allen MP have driven forward a much increased awareness of the importance of early years and attachment to their parents in young children and infants. Andrea Leadsom MP and Frank Field MP have led a cross-party campaign to increase support during pregnancy and in the months after birth to help build strong family bonds. Her Majesty’s Government have charged Louise Casey to meet the needs of trouble families, and the results have been very successful. I feel that we are becoming more confident about our ability to parent our children.
I shall remind noble Lords of who these children are. They are likely to be from working class families and to be growing up without a father in the household. They are quite likely to experience local authority care, to have a parent addicted to alcohol or drugs and are probably going to join a gang, if they have not done so already. They are more likely to be black than white, and it is probable that they have witnessed domestic violence. Looking at these children, it is hard for me not to think that this is a case of seeing the mote in the other’s eye and missing the beam in our own.
It seems that the worse a nation is at caring for its children, the lower the age of criminal responsibility. For instance, among the countries with the highest rates of absent fathers are the United States and the United Kingdom. Two-thirds of black boys in the US are growing up without a father in the household and, according to the OECD, we have an even higher rate of children growing up in lone-parent households than the US. We also have a low age of criminal responsibility compared with most of our neighbours. As the noble Lord said, ours is 10, and in the United States the age in most states is seven. Looking at the better performers, Denmark has an age of criminal responsibility of 15, and Germany of 14. Both are also among the countries with the lowest percentage of lone-parent families.
I remind noble Lords of the experience of the corporate parent. Does the same pattern hold true? Are poorer corporate parents more punitive? I am thinking particularly of local authorities caring for children in care. There has been much concern over the care of children in our children’s homes. I pay tribute to the Government for their focus on improvement here. I pay particular tribute to the previous Children’s Minister, Tim Loughton MP, and the current Children’s Minister, Edward Timpson MP. They are doing a good job for these children. However, they start from a low base.
Dr Claire Cameron and others based at the Thomas Coram Research Unit at the Institute of Education conducted comparative research on children’s homes internationally. They found that 90% of staff in Danish homes had a relevant graduate qualification; that 50% of staff in German homes had such a qualification; and that only 30% of staff in English homes have that qualification. Yet the children in our English homes have much higher levels of need that those in both Germany and Denmark, because they use residential care more widely there; it is only the most vulnerable children who end up in children’s homes. I hope that that information is indicative of the problem of those countries that are less confident in their parenting tending to criminalise younger children.
I ask the Minister a side question. The Association of Chief Police Officers produced a draft protocol on the kind of circumstances in children’s homes when police would be obliged to report a crime; there is a long-standing concern about the criminalisation of children in children’s homes here. That draft protocol has been sitting in a government department for some months now. I would be grateful if the Minister could look at what has happened to that. We do not wish children in children’s homes to be criminalised unnecessarily, and this would help. I have recently tabled a Question for Written Answer on this.
Why is it unhelpful to have such a low age of criminal responsibility? What does it matter that so few children are being placed in custody now that the Government have done welcome work to reduce custody use? Part of the reason it is harmful is that it reinforces the sense of guilt that these children have. For instance, many of these children will not have a father in their families. They may well feel responsible for the loss of their father. I heard yesterday of one of these children’s parents having committed suicide. The question the children were asking was, “What did we do wrong? How did we cause this?”. In my own experience, I had a dearly loved housemaster at school who had to move on to a new job. I remember wondering what wrong I had done to drive him away. It is plain from my experience of looked-after young people that many of them carry a heavy sense of guilt for things for which they were never responsible. When one listens to adults who have been through such experiences, they often have a sort of internal monologue by which they are told, “You are worthless. You can never do anything right”. If they do something well they will find fault with it because they have a deep sense of guilt, perhaps because if a parent does not love a child for whatever reason, the child will not think, “Well, the poor old parent is addicted so they cannot be around for me”. They will think, “There is something deeply wrong with me that causes my parent not to love me”. It is deeply unhelpful to reinforce children’s sense of guilt at such a young age.
Of course, the younger children are when they get caught up in the criminal justice system, the more likely they are to reoffend. I visited Feltham young offender institution some time ago and met a young man who was in for the third time. We do not want to perpetuate that.
I am sorry to have spoken for so long. In closing, I bring your Lordships’ attention to a recent visit to Parliament by a police officer, Police Constable Storey. He was one of a number of officers attached to schools. There is a programme of this kind. He told the All-Party Parliamentary Group for Children of his experience. His wife said that he really must take the job working in a school. She said, “You’ll be a natural for this”. We heard from the deputy head who said, “In the few months that this police officer has been in the school, he has turned around some of our children and he has helped teachers who were despairing of their relationships with some young people to mend those relationships. He has made a huge difference in just a few months”. Two of the boys spoke to us. One said, “The difference for me, in my experience with the police officer, is that in my first contact with him he asked me if I was all right”. He took an interest in the boy’s welfare. The officer said that he came from a very similar background to the boys and, “There but for the grace of God go I”. He really understood where they were coming from.
A discussion about mentoring and how important it is for young people came from that. I know that much good work goes on in mentoring but there needs to be a strategic lead from government given the very high number of boys, particularly, growing up with absent fathers. Under the aegis of the big society, we should be co-ordinating efforts so that many of our young people, particularly young men, get an interested adult, who is reliable and gets to know them over months and years, to help them make the transition to adulthood.
To conclude, I feel we are being unkind to these children, who are often extremely vulnerable. I fear we are shooting ourselves in the foot because, by making them feel more guilty, we are maybe leading them to hopelessness where they think, “All I can do is wrong. I am bad to the bone if the state says that I am”. We should not be visiting the sins of the fathers on the sons. The evidence is very clear that absent fatherhood is a key factor in contributing to criminality.
I wish this Bill every success through Parliament and I look forward to the Minister’s response, which I hope can be sympathetic.
The Lord Bishop of Derby
My Lords, I, too, thank the noble Lord, Lord Dholakia, for introducing this topic and I heartily endorse all that the noble Earl has said. This is a very complex issue, and we are having this debate in a national context in which public opinion wants justice to be seen to be done. A strong scapegoating mentality exists which indicates that there is also a high level of anxiety in society. The key people to be scapegoated tend to be criminals and immigrants. We have to take that part of the context seriously in having this debate. A second context, as we have heard, is the UN recommendation on the rights of the child, that the age of criminal responsibility should be at least 12. Many countries, as we have heard, go even higher than that. A third context is that there are suggestions, as there is in Ireland, of raising the age to 12, but of allowing some flexibility in dealing with serious crimes. So this is a very complex issue in an anxious society which is nervous about seeming to give positive signals to bad behaviour and social deviancy.
We have a variety of lines of approach. The Government, as I understand it from the briefing papers, are minded to stay with 10 years because of the argument that children at that age know what is right and what is wrong. That is one way of looking at it. Opponents say that the evidence of emotional and intellectual development means that children are too immature at the age of 10, even if they know what right and wrong are. The noble Earl eloquently mentioned the growth in maturity. I suggest that one of the dangers in this whole debate is treating children as individuals—which, of course, is a modern disease. Life is much more complex than about any of us being an individual. The Centre for Social Justice begins to recognise this. One of the arguments in its book on raising the age is about the need for what it calls a “whole family approach”, seeing the child in context.
However, as we have heard, family is not a positive context for many of the children who become offenders. We have to consider the context of the child as the key criteria for making an assessment, not treating them as an individual. The noble Baroness talked in a previous debate about her grandchild. My daughter has a young child who, as Christmas comes, is more and more targeted through television adverts as an economic unit at a very young age. That is just a little example of how children are seen as individual people and economic units.
However, of course no one is an individual—that is a modern myth. Each human being is a person who is who they are because of their relationships with others. Crime is when relationships go wrong or are handled destructively. Human beings are formed through relationships. I suggest that the key in assessing children and in finding an age on which to hook criminal responsibility is not to treat them as individuals, whether they have measureable psychology and development or whether they know right or wrong. It is to look at what I call the science of social formation, which is about where they are made a person, where they negotiate that, or where they work out their frustrations at not being the person they think they would like to be. We need to consider a number of sites of social formation in a debate such as this.
The first site of social formation is the family. Tragically, as we have heard, that is a weak link for many young people. The second site is the school. Certainly in my work with schools in the city of Derby, many young people who get drawn into crime have a very uneasy relationship with school, so it ceases to be a good formational site. Schemes of rehabilitation try to create opportunities for social interaction, but they are undermined by lack of resources. As we have heard on the mentoring of young men, the voluntary sector has an important part to play. In that sector we can create sites of social formation that are more fluid and flexible than the family or the school, and which can operate in much more informal ways.
I will give a small example of this. Last night I presented awards to choristers who had achieved a certain standard of singing in church choirs, many of whom were young people and children. We all know that to sing in a choir is about learning discipline and accountability and having a sense of achieving something for others. As we know, young people get drawn in to gangs and peer groups, but that needs to be put in a broader and bigger context. The voluntary sector has a lot of resources to offer young people that broader context—often an intergenerational one—which is a site of social formation that is more mature, richer and more likely to help young people develop responsible relationships.
We should not, therefore, look at this age issue only in terms of the young person being a moral agent or in terms of their maturity. We should look at how they progress in terms of social relationships and where there is support for that, and measurement. For instance, in the church the age for confirmation is generally 11. Being the Church of England, we allow all kinds of exceptions one way or the other; some people might be in a strong Christian family at a younger age of nine or 10. However, confirmation generally takes place at age 11 and above because people are then in a secondary school environment, which is a much richer social formation environment than primary school—a much richer, more complex, more challenging one. That is where young people need to be helped to grow and to be accountable.
I make a plea that we not be intimidated by the scapegoating mentality of the wider society in which we sit, which forms a backcloth that might make the case for seeming to be tough, which will mean that children will pay the price. I am asking that we do not just objectify children as individuals, whether economic units, moral units or developmental units. Children above all human beings need to have taken seriously the fact that we grow through relationship and social formation.
The Christian gospel highlights the miracle of forgiveness, which we need to remember in this debate—the possibility to join in a different kind of set of social relationships that are more wholesome, nourishing and flexible. For children, the promise and possibility of forgiveness is very important. We have all done things when we were small that we needed the chance to recover from, and that needs to be a very important part of our calculations. If we are going to resist scapegoating and objectifying and take the social context of the formation of children seriously, and know that that, love and forgiveness and another chance are what grow people into full human beings, in the context of those things, I am minded to support the noble Lord’s suggestion to move from 10 to 12 years, and I can see lots of advances in perhaps raising the bar even higher one day.
Lord Ramsbotham (CB)
My Lords, I, too, congratulate the noble Lord, Lord Dholakia, on introducing this Bill and on the impeccable way in which he presented his case. I remind the House of the 1985 Standard Minimum Rules for the Administration of Juvenile Justice, which were endorsed by the 1990 Convention on the Rights of the Child. The rules say that each state party must enforce a single minimum age of criminal responsibility at the minimum age of 12, although somewhere within the range of the 14 to 16 age range is the most desirable. There we are, with the age of 10, at the bottom of the league table that the noble Lord, Lord Dholakia, read out, with Brazil at 18 and China and Russia at 14.
I have often quoted Winston Churchill in this House. On 20 July 1910 he said in the other place that the way in which it treats its crime and criminals is a true test of the civilisation of any country. I was thinking about that when my noble friend shot my fox by mentioning the report written by Professor Sue Bailey, who once briefed me on the situation regarding the two people publicly pilloried over the years for the killing of Jamie Bulger. Both boys were aged 10, but Professor Sue Bailey told me that they had a developmental age of four. Bearing in mind the background from which they came, that confirms everything that the right reverend Prelate the Bishop of Derby said about the context in which these children are brought up.
In thinking about that, I wonder whether those responsible for producing the last confirmation of the age of 10 in the Green Paper Breaking the Cycle had really paid any attention at all to the huge amount of development in evidence of the neurodevelopment of children since that date. Here I don my hat as the chairman of the Criminal Justice Acquired Brain Injury Interest Group, members of which have been responsible for a great deal of this development. I am going to deliberately focus on that and spell out some of the things to which, I suspect, the Government paid no attention, any more than they did to the United Nations obligations that I have spelt out already, when drawing up that confirmation of the age of 10.
The emerging picture of adolescence is of a period in which individuals may be near mature levels of competency in some areas while far from those in others. Understanding neurodevelopment is of direct relevance to three questions that must be asked when examining them in the context of improving the youth justice system. We should remember that the aims of that system are the prevention of offending, safeguarding the public and the delivery of justice. The relevant three questions are as follows. How culpable are young people for the unlawful behaviour in which they engage? How competent are they to participate in the criminal and youth justice systems as individuals alleged of having committed a crime? What is the impact of involving them in the criminal justice system as a whole? I think that there are developmentally informed answers to each of these questions, combined, as I have mentioned already, with an understanding of the children’s rights that the United Kingdom has agreed to protect. Examination of these issues confirms that the current age of 10 is far too low to achieve either the stated aims or to satisfy the logic of neurodevelopment.
Three domains undergo substantial development during adolescence, which I will not examine in detail—executive functioning, emotional processing and social cognition. First, I want to focus on executive functioning: that is, the skills involved in the control and co-ordination of thoughts and behaviours, including working memory, selective attention and inhibition of emotional responses. They are used in everyday tasks such as decision-making, problem solving, long-term planning and social interaction. The evidence says that maturation of these is not completed until the age of 18, and that on the way to that maturation there is the likelihood of impulsivity, sensation seeking and risk-taking behaviours —all the things that we experience in our own children and grandchildren. As other noble Lords have said, that does not mean that young people bear no responsibility for their behaviour but it does mean that they are likely to be less responsible.
The noble Lord, Lord Dholakia, rightly mentioned the ability to take part in the legal process, what is described as adjudicative competence, fitness to plead and effective trial participation. We should think through what that actually means. It means understanding the court processes, charges, defences and their possible consequences, deciding how to plead, challenging jurors, instructing lawyers, giving evidence and responding to cross-examination. That is not just a list that I have drawn up, it is the official list as laid down for adjudicative competence. Pre-adjudicative competence was listed by the Home Office in 2008 as including fitness to be interviewed and understanding the purpose of interviews, the questions asked and the significance of answers given. Do any of us think that at the age of 10 anyone is capable of going through all that? What worries me about the present Government is that not only is the age of 10 the age of criminal responsibility but next week we start work on an anti-social behaviour Bill which could, if carried, mean that I could take out an injunction for nuisance and annoyance against my 10 year-old grandson for having refused to eat the boiled egg that I cooked for him last weekend. I say to the Government, “Come on, wake up”.
As other noble Lords have said, there is a very high level of correlation between juvenile offending behaviour and the multiple disadvantage that is the lot of too many juvenile offenders. All this suggests to me that the prevention of offending, which is the aim of all this, depends, at least in part, on effective action to tackle those deep-seated and complex needs. To my mind, that points to addressing the welfare and well-being of these young people rather than focusing first of all on the punitive approach. As someone who cares very deeply about the reputation of this country in the world, I wish that the Government would listen to the sentiments and wise words of their late leader.
Baroness Thornton (Lab)
My Lords, I congratulate the noble Lord, Lord Dholakia, on introducing this Private Member’s Bill. I also congratulate noble Lords on their contributions to the debate. They have taken us on a commendable tour of the international, national, social, political, neurological and academic arguments on this matter. This is an admirably short and concise Bill. In a way, its very clarity belies the actual complexity of the issue we are dealing with and the public debate that would be necessary for such changes to take place.
Noble Lords have produced for us and explained powerful evidence for change. However, perhaps with the exception of the right reverend Prelate, they have not produced or articulated the powerful feelings on both sides that this proposal produces whenever it is put forward. As the noble Lord, Lord Rambotham, reminded us, we have to remember the statements that Denise Fergus, the mother of James Bulger, makes whenever the issue of criminal responsibility is raised and realise that this is not a straightforward matter at all. The right reverend Prelate was quite right when he mentioned scapegoating in relation to this issue.
Without doubt a serious debate is to be had, which is to be welcomed. This Bill is part of and will lend impetus to the important discussion that needs to take place across the nation. The experts who make the powerful case for change need also to convince those who feel that it is not a right and just way forward. It is without doubt a very important matter indeed and noble Lords have made the case most powerfully. I am looking forward to hearing what the Minister has to say and to the further debates that will take place about the age of criminalisation as this Bill moves forward.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank my noble friend Lord Dholakia for introducing the Bill and for giving us a further opportunity to debate this important issue. I align myself with the sentiments expressed by the noble Baroness, Lady Thornton, who said that this is a serious matter and a serious debate, and it is right that we in this House, with our clear expertise, discuss this from both sides of the argument. I pay tribute to my noble friend’s work in this area and his continuing interest in it.
Let me say at the outset—and the right reverend Prelate mentioned this—the Government currently have no plans to raise the age of criminal responsibility from 10 to 12. We believe that children aged 10 and above are able to differentiate between bad behaviour and serious wrongdoing and should therefore be held accountable for their actions. When a young person has committed an offence, it is important that they understand that it is a serious matter and will be dealt with as such. The public must also have confidence in the youth justice system and know that offending will be dealt with effectively.
As several noble Lords have said, serious crimes committed by children are mercifully rare and we do not want to see all 10 and 11 year-olds prosecuted for minor offences. However, it is important to ensure that serious offences can, where appropriate, be prosecuted and the public protected. We are aware that offences committed by young people may have a devastating effect on both victims and the wider community, and it would be wrong to ignore this. The tragic case of the murder of Jamie Bulger—which we all know so well and which my noble friend mentioned—immediately comes to mind in this context.
It is of key importance that the youth justice system retains its ability to respond flexibly and effectively to offences committed by young people, and this must include the ability to make use of robust sanctions in the event of serious offending. This includes the use of custody as punishment and to protect the public where appropriate. Indeed, between 2002 and 2012, 13 10 and 11 year-olds received a custodial sentence. However, setting the minimum age of criminal responsibility at 10 does not lead to the prosecution of a large number of 10 and 11 year-olds. For example, in 2012 only 262 10 and 11 year-olds were proceeded against at court, compared with 859 12 year-olds. Of those 10 and 11 year-olds, 147 were given community sentences, and the others were found not guilty, fined or given an unconditional or conditional discharge.
Not all crimes committed by those aged 10 or over will result in prosecution. We are keen to ensure that, whenever possible, children are not prosecuted. The principal aim of the youth justice system is to prevent young people offending. The noble Earl, Lord Listowel, referred to the importance of early intervention. I reflect back to my maiden speech in your Lordships’ House, which was on this very issue. I join the noble Earl in paying tribute to the important work that people such as Graham Allen are doing in this respect. The Government take note of it and consider it at all times. I also align myself with the noble Earl’s comments about the work of both the previous Children’s Minister, Tim Loughton, and the current Children’s Minister, Edward Timpson, and I will certainly convey his remarks to them. I thank the noble Earl for his kind remarks in this regard.
My noble friend Lord Dholakia asked an important question about welfare. Legislation requires courts to have regard to the welfare of all under-18 year-olds. Section 44 of the Children and Young Persons Act 1933 provides that every court, in dealing with a child or young person brought before it, shall have regard to their welfare. This is reinforced by detailed guidance contained in the sentencing guideline Overarching Principles—Sentencing Youths, which sets out for the courts the principles to be followed when sentencing under-18s. This places a strong emphasis on the need to take into consideration welfare issues and to use interventions that are most likely to prevent reoffending.
The right reverend Prelate the Bishop of Derby, in his most thoughtful contribution, raised the concept of the science of social formation. He talked about the importance of the three pillars of family, school and rehabilitation. As a person of faith, I associate myself with the sentiments that he expressed on the concept of forgiveness. He also referred to his family and talked of his daughter’s child being an “economic unit”, becoming a more active economic unit when Christmas comes. I say to the right reverend Prelate that I have two economic units at home, and they persist as such throughout 12 months of the year and not just at Christmas. However, that is perhaps a discussion that we can have outside this debate.
My noble friend Lord Dholakia talked about mental capacity. The sentencing guideline Overarching principles —Sentencing Youths, to which I referred, ensures that proper regard is had to the mental health and capability of the young person, and to the learning disability, learning difficulty, speech and language difficulty or any other disorder, any of which is likely to affect the sentence. The guideline must be followed by the courts.
Maintaining the age of criminal responsibility at 10 years of age also enables offenders to be identified at an early stage. This allows multi-agency youth offending teams, which include representatives from health, housing, children’s services and education, to become involved with the aim of putting interventions in place to address the child’s behaviour. These interventions can include addressing their attendance at, and attitude to, school, referral to a speech and language therapist if there is an identified issue with communication, and, finally, youth crime prevention programmes, which work to keep young people away from crime.
If an out-of-court disposal is considered to be appropriate, as is usually the case for a first-time offence, the police, in consultation with the youth offending team—and, for indictable-only offences, the CPS—may offer a youth caution or a youth conditional caution for a young person aged 10 to 17. We also introduced this new out-of-court framework for under-18s in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into effect for offences committed from 8 April 2013. This new framework simplified and rationalised the previous framework to provide a flexible approach which allows for professional discretion to apply the most appropriate disposal. That did away with the escalator in the previous reprimand and warning scheme, which forced further offending up the criminal justice system regardless of the seriousness of the offence.
The youth caution may be given for any offence where the young offender admits an offence or there is sufficient evidence for a realistic prospect of conviction but it is not in the public interest to prosecute. Youth cautions aim to provide a proportionate and effective resolution to offending and support the principal statutory aim of the youth justice system of preventing offending by children and young people, a sentiment with which I know all noble Lords who have participated agree.
Where a youth caution is given, the police have a statutory duty to refer the young offender to the youth offending team. For a second or subsequent youth caution or where a young person has previously received a youth conditional caution, the youth offending team has a statutory duty to carry out an assessment of the young offender and to consider putting in place an intervention programme aimed at preventing reoffending. The youth offending team may carry out an assessment and offer a rehabilitation programme for a young person who has never received a youth caution or youth conditional caution at their discretion.
Youth conditional cautions require young people to take responsibility for their actions, including agreeing to conditions that require them to put things right or seeking help for their behaviour. They provide an opportunity in appropriate cases to achieve an early positive response for those young people who are willing to admit their offending and to comply with certain conditions. Like youth cautions, they aim to support the principal aim of the youth justice system, which, again, I reiterate, is to prevent offending by children and young people. For example, they allow for a proportionate response in appropriate cases, for offenders to make swift reparation to victims and communities, and for offenders to be diverted at an early opportunity into rehabilitative services, reducing the likelihood of reoffending. The conditions that can be attached to a youth conditional caution must include one or more of the objectives of rehabilitation, reparation and punishment.
Rehabilitative conditions may include attending one or more of a range of interventions available to the youth offending team for addressing offending behaviour. Reparative conditions may include apologising, repairing or otherwise making good any damage caused, provided of course that that is acceptable to the victim. Punitive conditions may include attendance at a specific place to undertake an agreed activity. However, I stress that in any case where the police or CPS are considering offering a youth conditional caution or a second or subsequent youth caution, the case must be referred to the local youth offending team to provide a check on the appropriateness of the disposal and the interventions that should go alongside.
Where a person aged between 10 and 17 pleads guilty and is convicted for the first time of an imprisonable offence, the court must pass in most cases a referral order. A referral order is based on the restorative justice principles and may be between three and 12 months in length. The offender is referred to a youth offender panel made up of two specifically trained community volunteers and a member of the youth offending team. The panel agrees a contract with the young person, which may include reparation and interventions to address any risk of reoffending. By holding the young offender to account for their actions, the young person can find the process very challenging. In addition, parents are also required to attend this panel, which means that they are directly engaged in the sentence and take responsibility for their child.
Restorative justice, which has been shown to be effective for young people, is increasingly used as part of a referral order and funding has been provided to youth offending teams to allow panel members to be trained as restorative justice conference facilitators. That allows the panel to include a structured restorative justice group conference involving a facilitator, the offender, the victim where they indicate that they wish to participate, professionals such as social workers and, possibly, representatives of the wider community.
Custody is available for 10 to 11 year-olds only if they commit a grave or serious crime—normally one where an adult would be liable to a maximum penalty of 14 years’ imprisonment or more. A child of this age who is sent to custody would only be placed in a secure children’s home with a strong focus on addressing their particular behaviour and their family’s needs as well as their offending behaviour. There are also restrictions on custody for 12 to 14 year-olds who become eligible for a detention and training order only if the court considers the offending to be not only serious but that custody is necessary and that they are persistent offenders. Otherwise, custody becomes an option only where the offence is grave or a serious crime, as for 10 to 11 year-olds.
Legislation introduced in November 2009 alongside the youth rehabilitation order—the main community sentence for under-18s—requires courts to consider a youth rehabilitation order with a high intensity requirement before they can make a custodial sentence. This clearly signals our compliance with the UNCRC principle that custody is the option of last resort for an under-18, which I know the noble Lord, Lord Ramsbotham, also referred to. As noble Lords will also be aware, my right honourable friend the Secretary of State and Lord Chancellor in the other place has announced his intention to introduce a new form of youth detention accommodation—secure colleges—which are focused on delivering education in detention. We maintain that education is the best means of preventing reoffending.
I now come to a few of the additional questions that I have not yet covered. The noble Lord, Lord Ramsbotham, referred to the Anti-social Behaviour, Crime and Policing Bill, which I am sure many noble Lords are looking forward to discussing in the coming weeks, and IPNAs. IPNAs may now be coined as the boiled-egg syndrome. But it is a matter for him whether he takes out an IPNA on such an occasion. But the Bill that we will be discussing next week is a serious one. It is designed to allow police to intercede where a person's behaviour is having an unacceptable impact on another person. Guidance will be provided for police and practitioners. As I said, I am sure that we will be having many discussions in this area.
The noble Earl, Lord Listowel, also raised rules of engagement, which were raised by my right honourable friend Iain Duncan Smith. I am not able to clarify whether a formal response was provided, but I shall write to the noble Earl in this respect. The noble Earl raised the issue of the ACPO guidelines and the 2010 report, which I know the Ministry of Justice is currently working on with colleagues at the Home Office. We will of course share the outcomes of that review with noble Lords as he requested.
The noble Earl, Lord Listowel, and the right reverend Prelate the Bishop of Derby raised the issue of mentoring. Mentors are used frequently in our criminal justice system and there is a great emphasis in the current process of offender rehabilitation to look at mentoring across the board. It is something that works. It has been shown to produce the results that we require and, most importantly, it ensures that people become productive citizens at the end of that mentoring. It is something that we are seeking to do within the rehabilitation programme. If someone is given a custodial sentence, a needs analysis is conducted and mentoring continues not just during that sentence but, most importantly, when they come to the end of their custodial sentence.
I pay particular tribute to the work that the noble Earl does across several APPGs relating to children. The Government look with great interest and take note of the findings and reports that they make. He referred to Police Constable Storey. I did not meet the particular officer concerned, but from what the noble Earl said, it appears that it was a very moving occasion, which demonstrates the importance of mentoring.
We have seen a significant fall in the number of under-18s being dealt with in the criminal justice system in recent years. A clear contributory factor to that fall was the doing away in 2008 with the police target introduced under the previous Government for offenders brought to justice. Since 2008-09, 54% fewer younger people have been coming into the youth justice system, 32% fewer in custody and 14% fewer reoffenders.
In conclusion, the Government firmly believe that the current age of criminal responsibility allows the necessary flexibility to deal effectively with young people who commit offences and accurately reflects what is required of our justice system. Reference has been made by several noble Lords to the raising of the minimum age in Scotland and the reviews in Northern Ireland. As the noble Baroness, Lady Thornton, said, the Government are continuing to look at those areas. We have no plans to raise the age from 10, but we continue to watch with interest the developments in Scotland and Northern Ireland.
We believe that the argument which has been put forward by successive Governments to keep the age of criminal responsibility at the age of 10 holds. It allows us to intervene early and prevent robustly further offending. Most importantly, it helps young people to develop a sense of personal responsibility for their behaviour. In closing, I would like to say that while taking on board and listening carefully to the contributions of my noble friend Lord Dholakia, as I always do, for the reasons I have outlined, the Government do not support the Bill.
Lord Dholakia
My Lords, I thank the Minister for his response to the debate. Every time I prepare my contribution, the first thing I write mentally is the speech that the Minister is supposed to make, and he has not disappointed me. Perhaps I can say very simply to him that if this is good enough for the rest of Europe—many countries and international examples have been cited—I think he needs to look seriously at why we are falling behind on this issue. I will not be making an inroad on the time of the House on a Friday afternoon when there is another debate to come, but I want to take this opportunity to thank all noble Lords who have contributed.
The contribution of the noble Earl, Lord Listowel, on matters relating to children and young people is unique in the House and we should take serious note of what he says. In regard to the noble Lord, Lord Ramsbotham, every time he speaks I am sure that at the least I will agree with what he says, and in many cases I will follow him into the appropriate Lobby. He has never been wrong in identifying these issues and I thank him for his contribution. It was also very nice of the right reverend Prelate the Bishop of Derby to speak in the debate. You cannot be wrong if God and the church is your side, and I welcome his contribution to the issue. The noble Baroness, Lady Thornton, was absolutely right in what she said about public opinion.
Let me put it this way: there are other issues that the Government and this country are going to have to face. Those include prisoners’ voting rights, which will come before noble Lords before long. Sometimes it is necessary for the Government to give a lead rather than follow public opinion, and this is one of those times. I ask the House to give the Bill a Second Reading.