The age of criminal liability in England and Wales is at 10 years, low by international standards, as confirmed by a survey of 90 countries which established that the median minimum age of responsibility (adopted by around a quarter of the sample) was 14 years (Hazel 2008). Other differences notwithstanding, Labour and Conservative administrations have shown a remarkable consistency in their opposition to any reform in this regard (Bateman 2013a). Given that intransigence, it is perhaps not surprising that the terms of reference for the ongoing review of justice preclude consideration of the issue (Ministry of Justice 2015a).

After progressive increases in the first half of the twentieth century, the age of criminal responsibility was set at 10 years in 1963 and has accordingly remained unchanged for well over 50 years. The CYPA 1969 did legislate to preclude the prosecution of any child below the age of 14 years but, as the welfarist underpinnings that had hitherto informed responses to children in trouble began to unravel, the provision was never implemented. After 22 years on the statute book, it was repealed (Bateman 2012a).

The most recent relevant legislative change arguably constituted a practical lowering of the age of criminal liability. Until 1998, children under 14 benefitted from a measure of protection afforded by the common law principle of doli inca- pax which presumed that such children were incapable of crime and proscribed their prosecution unless it could be demonstrated, beyond reasonable doubt, that ‘they knew what they were doing was seriously wrong as distinct from naughty or mischievous’ (Bandalli 2000: 83). The principle was abolished by the CDA, whose New Labour architects declared it to be ‘contrary to common sense’ (Home Office 1997). Thereafter, children from the age of 10 were presumed to be ‘unequivocally responsible and accountable for choices made and harm caused’ (Bandalli 2000: 86-87) and exposed to the full rigor of the criminal law. The impact on children was clear in the data: within a year of implementation, there were was a 29 % rise in the number of 10-14-year-olds cautioned or convicted for an indictable offense. The equivalent figures for older children showed a fall (Bateman 2012a).

Critics contend that the age of criminal responsibility in England and Wales is in tension with international standards (see later). It also fails to reflect the latest evidence in relation to children’s cognitive development which raises questions as to the legitimacy of holding younger children criminally culpable for their wrongdoings (Lipscombe 2012). Recent advances in neuroscience have established that, by comparison with young adults, teenagers find it harder to adopt the perspectives of others, have a reduced capacity for abstract thought, and an increased propensity for risk taking (The Royal Society 2011). Formal induction at a young age into the formal justice system is also associated with an increased risk of reoffending (Huizinga et al. 2003), indicating that early criminalization may be counterproductive. Such factors are pertinent across all jurisdictions, but within England and Wales, the age of criminal responsibility appears out of kilter with other legislative provisions that offer age-related safeguards or impose limitations on children’s behavior. Children are precluded from buying alcohol or tobacco below the age of 18 years; they cannot drive under 17; and below 16 years, they are not allowed to purchase a lottery ticket or buy a pet and are not considered competent to consent to sex. Imputing criminal responsibility to much younger children suggest that different standards are being applied to behavior that transgresses the criminal law (Bateman 2012a).

Young people older than 18 years cannot be processed through the youth justice system: they are considered adults for criminal justice purposes with the exception that there are distinct custodial sentences and a discrete secure estate for those aged 18-20 years. Until recently, 17-year-olds represented something of an anomaly since they did not enjoy the same rights applicable to all other children in police detention and the remand options available to them at court were those associated with adult proceedings. These anomalies have now been remedied and arrangements for this age group have been harmonized with those for younger children.

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