Why Children Must Not be Regarded as Criminals

In dealing with children who commit offences, we must remember that they cannot be expected to have an adult understanding of their behaviour.

The recent furore over Shamima Begum’s desire to return to the UK and the government’s desire to keep her out, and even remove her British Citizenship, has shown that as a society we are nothing but conflicted in terms of how responsible we believe children are for their actions. Whilst Shamima’s words suggest she is still radicalised, leading many to claim that she should not be allowed to return to the UK, others point out that she was just fifteen when she set off for Syria where she had clearly been groomed by ISIS. Whatever your views on Shamima Begum, discussions about her culpability suggest that we still struggle to reconcile the need to protect and rehabilitate those who commit offences as children with the need to protect the public from their offending.

Supporting a terrorist organisation, still less running off to join one abroad, is thankfully a rare occurrence for children. However, entering the Criminal Justice System is not. In 2017-18, 65,833 10-17-year olds were arrested in the UK, and 26,700 young people were sentenced or cautioned for an offence. Recidivism is high, with 40.9 per cent of child offenders reoffending. ‘Behaviour Management Incidents’ in custody are on the rise, in particular self-harm, with nearly 1,800 incidents in the last year.

Do we criminalise children too early in the UK? In England, Wales and Northern Ireland, the Age of Criminal Responsibility (ACR) is 10. In Scotland it is just 8, although the age of criminal prosecution is 12 and children aged 8-11 attend a Children’s Hearing, as opposed to criminal court.  There is currently a bill going through the Scottish Parliament to increase the ACR to 12. The ACR in the UK is the lowest in Europe and conflicts with advice from the UN Committee on the Rights of the Child which states that an ACR lower than 12 is not acceptable. In the UK we criminalise children whilst acknowledging that they are too young to consent to sex, to smoke, drink or vote.

Does criminalising children reduce offending? Research suggests otherwise. Contact with the Criminal Justice System (CJS) can result in further criminality, and those countries with lower ACR, such as the UK, actually have the poorest outcomes when it comes to reoffending and rehabilitation [1]. Therefore, the argument that criminalising children protects society is not one that stands up to scrutiny. By involving children in the CJS we are locking some of them into criminality and in many cases reducing their chances of going on to complete their education and secure both qualifications and employment.

The children who end up in contact with the CJS are often already disadvantaged in some way. Many have grown up in care or poverty, others have mental health conditions. Most disturbingly, many have learning and communication difficulties or neuro-developmental conditions such as autism. Criminalising many of these children might not be the most appropriate response, particularly as it doesn’t seem to offer public protection in terms of preventing recidivism. Equally, children with neuro-developmental conditions or learning difficulties might struggle to understand the criminal proceedings they are involved in.

The ACR in England and Wales was set in the 1960s when relatively little was known about brain development. There seemed to be no compelling reason why the age was set at 10, and research since then suggests that this is arbitrarily low. Impulsive and risk-taking behaviour increases during adolescence, before peaking and then decreasing as the adolescent brain transitions into adulthood.  The prefrontal cortex which controls executive function, such as decision-making, and also inhibits risky behaviour, develops later than the amygdala and ventral striatum which are associated with risk and reward. This would suggest that the adolescents are particularly vulnerable to making risky decisions which could result in criminal behaviour. Young people are also particularly vulnerable to peer pressure and are more likely to commit crimes in groups rather than as individuals.

“By involving children in the CJS we are locking some of them into criminality and in many cases reducing their chances of going on to complete their education and secure both qualifications and employment. “

When setting an ACR, it is generally considered important to conceptualise criminal responsibility in two ways:

1. The ability to engage in criminal behaviour – the doctrine of doli incapax.
2. The capacity to participate in a trial and to be held legally accountable.

Asthere is no clear way to determine when children achieve these capacities, there will be inconsistencies in the ACR across the world. The UN considers 12 to be the earliest age at which these capacities can be expected to develop, but others argue that even this is too young. In general, it is accepted that logical thinking and problem-solving develop dramatically between the ages of 11-15 and that conventional morality is generally not achieved until mid-teens. Children who have been abused or neglected, or who have learning or neuro-developmental difficulties, are known to be delayed in developing the capacities needed to achieve criminal responsibility. It can be no surprise that these children are over-represented in the CJS. Disturbingly, there is no statutory requirement to assess the fitness of children to plead and it is thought that adolescents can be particularly vulnerable to suggestibility and prone to false confessions.

If the ACR is raised, what should happen to those children who commit crimes but who will now not enter the CJS? Countries with higher ACR tend to divert children into the social welfare system or use restorative justice to address criminal behaviour. These paths are available in the UK and are being used more often, although significant investment may be required. Early intervention via parenting programmes such as Triple P, or Youth Inclusion, are favoured as they can prevent criminal behaviour in the first place. If children are considered a danger to themselves or others, they can already be sent to Secure Children’s Homes under present welfare laws. Around half of all children detained in these homes at present are there under the Children Act 1989, rather than having been sentenced by the youth courts. There is also capacity to divert children with mental health conditions away from the CJS into the mental health system, although Child and Adolescent Mental Health Services (CAMHS) are struggling to meet demand in general.

We must consider the victims of child offending. Although little work has been done as to the feelings of victims with regards to the ACR, the response of Victim Support Scotland to proposals to raise the ACR in Scotland from 8 to 12 were broadly supportive and the organisation seemed convinced that the rights of victims could be respected in ways other than criminalising young children.

We view children as worthy of protection and guidance until they commit a crime. Then there is a danger that we take an entirely punitive approach which actually results in more youth offending. The horrific murder of James Bulger by two ten-year-old boys 26 years ago solidified the idea that young children could be held criminally responsible for their actions. Raising the Age of Criminal Responsibility would not have meant that the perpetrators were not dealt with. Diverting children from the Criminal Justice System does not mean ignoring crimes committed by children. It means dealing with these clearly troubled individuals in a way that recognises the seriousness of their behaviour whilst acknowledging that children are not adults in miniature and cannot be expected to have an adult understanding of, and control over, their behaviour.

1. 108 Goldson, B. (2015) ‘The Circular Motions of Penal Politics and the Pervasive Irrationalities of Child Imprisonment’, in Goldson, B. and Muncie, J. (eds) Youth Crime and Justice, 2nd edition. London, Sage: 170-190.