There is a private members Bill making its way slowly through Parliament seeking a simple change in the law by replacing the word “ten” with the word “twelve” in s 50 of the Children and Young Person’s Act 1933.
It is a change that would mean that children under 12 could no longer be prosecuted for a criminal offence. I once believed that the age of criminal responsibility in the UK was okay provided that decisions to prosecute were made fairly and court hearings were adjusted to accommodate children.
The reality is that the current system is hopeless and prosecuting children aged between ten and 12 is pointless, whatever the crime. It cannot be left to individual prosecutors or police officers to decide on paper which children will receive a criminal record, be placed on the sex offender list and/or have their employment histories affected for the rest of their lives.
The court and prison estates are ill equipped to deal with children whether as victims or suspects and need to concentrate on adult offenders. The CPS cannot have a blanket policy not to prosecute and have to apply the law as it currently stands. The consequence is that potentially valuable lives and scarce financial resources are being thrown away.
I would go further than the current private members bill – in relation to even older children, many cases would be so much better dealt with by some sort of judge led deferred prosecution agreement with intensive supervision. I still don’t believe in delaying a prosecution for corporate crime but the last summer the MOJ announced plans for new legislation for business crime, so why not use a similar formula for youths.
The argument for raising the age at which children can be prosecuted is always affected by the murder of James Bulger by two boys aged 10 and 11. However, the fact that there has only been one such case in the last few decades demonstrates just how pointless the current system is.
Horrific crimes should not beggar a system and put needy children at risk of a criminal record. Public opinion changes with the wind. Ask them about the Bulger killers and they would lock them up for life. Ask them about the boys tried for rape of an eight-year-old girl at the Old Bailey and they believe that the boys were just playing happy families. Ask them what they would want for their sons accused of rape and murder and the answer is always a good barrister at any price. Ask them about barristers’ fees and they will all say we are overpaid. These are opinions on a whim. Expert and international legal and social opinion is that we should raise the age of criminal responsibility and I agree.
Ironically, the old law in this context was much more forgiving. When the Children and Young Person’s Act 1933 was debated and implemented, we had a system whereby it was conclusively presumed that boys under 14 could not commit rape. This allowed for childhood experimentation. We also had a system where the prosecution had to prove that a child under 14 knew what they had done was seriously wrong. This allowed scope for the acquittal of children who had made errors of judgement. Both of these laws have been swept away years ago and there is now no protection for boys or girls who engage in criminal or sexualised quasi criminal behavior. It is time for us to relax about child and youth crime and treat children separately from adults and away from the court system.
Obviously, we can’t just sweep away the current law without putting something else in its place. It is extremely important that children are not labelled perpetrators in a civil system or left untreated if they do a bad thing. Serious cases involving children usually involve experienced advocates. There is a move across Europe to make sure that such advocates are accredited. There is no reason why these skills cannot be used in a social setting.
Most children know right from wrong. They just need to be in a situation where they have the choice. Feral children need social workers and decent parents, not prison or the threat of restorative justice – this only makes them more entrenched and recalcitrant. God forbid that a child is ever abducted from a shopping centre and murdered again by two children. But if one is, the killers shouldn’t go to court, instead they should have therapy. If you don’t agree just think about Venables and Thompson for a moment – do you know why they killed? Has locking them up made any difference? Have the past few years brought any peace to James Bulger’s mother? Are we reassured by their treatment? The answer to all these questions is a resounding “no”.
2000 primary school age children were arrested in 2011. Primary school age! What is going so wrong that such young children are out of control? Arresting them is not going to cure deep seated social problems. For the parent reading this blog, look at your own ten-year-old child: when he plays with his willy, is he a sex offender? When he neglects his hamster, is he a potential killer? When he steals money from your purse to buy sweets, do you really think he is a future drug dealer? For all of these actions you would discuss the behavior with the child and possibly his teachers. For violent conduct you might seek some anger management counselling. If he kills the neighbour’s dog or baby, you would expect a psychiatrist not a police officer.
This debate is bound to be long and hard. The quickest solution would be to bring back the old presumptions and restrictions immediately but the real answer is for the UK law makers to step up to the plate and say: “we are not going to criminalise our children”. To follow the passage of the private members bill click here.