Criminal responsibility and buying a hamster: getting the age right

CYCJ Director, Claire Lightowler, reflects on the launch of the consultation about the minimum age of criminal responsibility in Scotland.

The Scottish Government has today launched a consultation about the minimum age of criminal responsibility. Will Scotland decide eight-year-olds are too young to be criminally responsible for their actions and that this should be increased to 12 years old?

Scotland currently has the lowest age of criminal responsibility in Europe, where the average age of criminal responsibility is 14 years. In contrast, later this month CYCJ will be visiting New York State, where the age of criminal responsibility is 16 years and they are currently debating increasing it to 18 years. Most people agree that ideally a definitive cut off point at any age is not the best approach, given children mature at different rates, however, if age is to be the determining factor then why is 12 year old more appropriate than the age of eight as the age of criminal responsibility?

Firstly, there are arguments about children’s ability to be held responsible for their offending behaviour, this is the mens rea debate (meaning the act is not culpable unless the mind is guilty) (Goldson, 2013). Research actually suggests that amongst all young people, socially responsible decision-making, in particular, does not kick in until the ages of 16-19. This means that children can struggle to make appropriate decisions, especially around taking chances, acting on impulse and thus getting into trouble (Cauffman and Steinberg, 2000). However, levels of social immaturity tend to be more pronounced from those who have faced barriers to their development such as those children who have experienced trauma, neglect, maltreatment, domestic abuse or been a victim of crime themselves. The vast majority of children involved in offending have experienced such issues and are the most vulnerable and victimised of young people in Scotland. A really powerful piece of research, known as the Edinburgh Study of Youth Transitions and Crime, demonstrates this through following a group of 4,300 children who started secondary school in Edinburgh in 1998. When these children were aged 15, 23% of them had been involved in one or more episodes of violence, and these children were significantly more likely to:

• be victims of crime and adult harassment;
• be involved in self-harming and para-suicidal behaviours;
• have problematic health risk behaviours;
• have weak bonds (particularly to parents and schools);
• have personality issues (particularly around impulsivity and risk-taking);
• have experience of family turbulence;
• experience social deprivation; and,
• have friends that are involved in offending

(Source: McAra and McVie, 2010)

So, if we think about who we are currently holding criminally responsible at the age of eight, it is usually the most vulnerable and victimised children, those who are therefore also likely to be less mature, developmentally, than their counterparts who have had a better start in life.

While sometimes young children may be able to differentiate between right and wrong, when the life experiences of those children involved in offending are taken into account, they have not always benefited from parenting or guidance to help support their ability to differentiate. In fact, of course, sadly some parents actively encourage their children to commit offences. But more than an ability to understand right from wrong, I would also argue that to hold a child criminally responsible for their actions they should be able to understand what the law requires them to do or not to do, and also to be able to understand the consequences of any act they commit. This ability to think through the social consequences of impulsive acts requires a higher level of understanding than just what is right or wrong. I find it difficult to think of an 11 year old who is capable of this level of comprehension.

Since 2010, children under the age of 12 are not prosecuted in Court within Scotland. However, if children aged eight-12 year old accept their offence, through the Children’s Hearing System, this is counted as a conviction in relation to the Rehabilitation of Offenders Act, 1974. This means that many of Scotland’s most vulnerable young people are carrying ‘convictions’ with them into adulthood, which they then have to declare in various settings. This potentially has a labelling effect, making it more difficult for these, usually already more vulnerable, young people to go on to access education and employment. The evidence also suggests that adding the label of ‘offender’ to a child makes their continued involvement in offending more likely. So, there are both questions about how appropriate this approach is, as well as how effective it is in actually addressing these children’s needs and their offending behaviour.

Evidence also shows that the key predictor of future offending behaviour is actually involvement in the youth justice system. Amongst children committing the same severity of offences with the same frequency, those who don’t get caught and subsequently don’t come into contact with formal youth justice system, are more likely to stop offending at an earlier age than those that are caught and come into contact with youth justice specific services (McAra and McVie, 2010). So, it is not effective to criminalise children in terms of supporting them to stop offending. We also know that actually most children are involved in low level offending at some point in their childhood, but most stop this as they get older, that is unless they come into contact with the youth justice system. To a large extent, therefore, low level offending is a natural part of growing up and most of us grow out of it.

Then there is the inconsistency with other judgements about what children are able to consent to and take responsibility for. In Scotland young people are not able to join the armed forces until the age of 17, consent to their own medical treatment until 16, or buy a pet until 16 (see http://young.scot/information/rights/what-can-you-do-at-what-age/). When you actually think about that then, as Brooks (2011) clearly puts it, the: “psychological sophistication required to look after a domesticated rodent… is considered worthy of a longer period of development than the capacity to understand the moral responsibility inherent in the commission of a serious criminal act”.

This is not to say that we should do nothing when children are involved in offending. We should collectively act quickly and intervene early on to address the young person’s issues, but if we want to prevent future offending, the evidence clearly suggests we need to do so in a way that is not stigmatising, labelling or criminalising.

Increasingly political debate in Scotland is focusing on the need to get smarter about justice, not focusing on being hard or soft on crime but doing what is most likely to prevent harm to individuals and communities. The advisory group on the minimum age of criminal responsibility has recommended the age of criminal responsibility is increased to 12 years old to achieve better outcomes for our most vulnerable children and as a smarter response, to help reduce the harm that some children cause. The consultation is now open and I look forward to hearing what Scotland thinks. I have no idea what the response will be but I am pleased that we are having this conversation.

References

Brooks, L. 2011, ‘An ugly totem for the abject failure of our criminal justice system’, The Guardian, http://www.theguardian.com/commentisfree/2011/mar/18/justice-10-age-criminal-responsibility?INTCMP=SRCH

Cauffman, E. and Steinberg, L. 2000, ‘(Im)maturity of judgment in adolescence: Why adolescents may be less culpable than adults’, Behavioural Science Law, vol 18, no 6, pp 741-60.

Goldson, B. 2013, ‘Unsafe, unjust and harmful to wider Society’: Grounds for raising the minimum age of criminal responsibility in England and Wales, Youth Justice, August vol. 13 no. 2 111-130.

McAra, L & McVie, S 2010, ‘Youth crime and justice: Key messages from the Edinburgh study of youth transitions and crime’, Criminology and Criminal Justice, vol 10, no. 2, pp. 179-209.