Children and the Criminal Justice System

The return of Jon Venables, one of the men (then boys) convicted of the murder of Jamie Bulger has sparked a fresh debate on how we respond to children who commit crimes and what we expect the criminal justice system to achieve in such cases.

Today the Ministry of Justice in the UK has announced that it has rejected calls to raise the age of criminal responsibility from ten to twelve. Scotland is in the process of amending its legislation to raise the age of responsibility from eight to twelve. Ireland made similar moves in 2001 under the Childrens Act, however in serious cases (murder, manslaughter, rape or aggravated assault) ten or eleven year olds can be prosecuted.

The UN Convention on the Rights of the Child sets out, under Article 40, that states should establish “a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.” It does not suggest what this should be. States are therefore left to determine this for themselves. The UN Committee on the Rights of the Child has recommended an age of between fourteen and sixteen. In practice, there is substantial diversity between ages of responsibility internationally:

7 – Switzerland, Nigeria, S Africa, Thailand, Oklahoma
8 – Scotland, Sri Lanka, Nevada
10 – England, Wales, Northern Ireland, Australia, New Zealand
12 – The Netherlands, Canada, Greece, Turkey, Ireland
13 – France
14 – Italy, Germany, Bulgaria, Romania, China
15 – Denmark, Sweden, Norway, Finland, Czech Republic, New York (US), South Carolina (US)
16 – Spain, Japan, Texas (US), Poland
18 – Belgium, Luxembourg

Compared to most European states, the UK, and even Ireland, allow prosecutions against children when it would not happen elsewhere. The issue was considered in the ECHR case of T v. UK and the Court concluded:

“The Court does not consider that there is at this stage any clear common standard amongst the member States of the Council of Europe as to the minimum age of criminal responsibility. Even if England and Wales is among the few European jurisdictions to retain a low age of criminal responsibility, the age of ten cannot be said to be so young as to differ disproportionately from the age-limit followed by other European States. The Court concludes that the attribution of criminal responsibility to the applicant does not in itself give rise to a breach of Article 3 of the Convention… The Court does, however, agree with the Commission that it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings.”

The concern under the Convention then is with the procedure applied, more than the actual age of prosecution. In that case, the fact that Thompson and Venables had been tried in an adult court was a breach of their rights (see an excellent essay on this here) but that they could be criminally responsible was accepted.

The debate centres on whether or not a child, at the age involved, knows right from wrong. (Others on this blog may be more expert on this issue and comments are most welcome.) The UK Ministry’s argument is that children over the age of ten know the difference between ‘bad behaviour and serious wrongdoing’. Dr Atkinson, the Children’s Commissioner in the UK, has criticised this decision and called for the age to be raised to at least twelve, stating that “In terms of knowing what the full consequences of your actions are, you are into older childhood or adolescence.” It’s important to emphasise that saying that a child is not criminally responsibly is not a statement that there should be no response to the events which have occured. In those states with higher ages of responsibility the response will be determined on the basis of an evaluation of the child’s needs. And responses alternative to criminal ones have not caused any crises of child criminality:

“My five year old daughter, Silje, was killed by two boys near our home in Trondheim, Norway. It was a year after the killing of James Bulger, and the two incidents were compared in the press.
In Norway, where the age of criminality is 15, the boys were treated differently. Silje was stripped, stoned and beaten, and left for dead. I do not understand why and I will never recover,
but I don’t hate the boys. I think they understood what they had done, but not the consequences. The boys went back to school, were helped by psychologists and have had to learn how to treat
others to fit back into society. ” Beate Raedergard.

One has to wonder to what extent the debate in the UK at present is being shaped by the Bulger case. Failing to raise the age as a result of that case would, it is suggested, be the wrong lesson to learn from that case. The system has not worked there – Venables has been returned to custody to be tried for what we are told is a serious offence. The victim’s family remains intensely dissatisfied. Some sections of the media retain the belief that justice has not been done. That child’s death has attained a status in British society beyond most deaths, even those of children. This author would suggest that recent events show that how the criminal justice system operated in tha case was a failure, and raising the age of criminal reponsibility, and how we treat children, could play a central role in rectifying that.