Raising the Minimum Age of Criminal Responsibility in England and Wales
1.0 Introduction
1.1 Rationale
The age of criminal responsibility in England and Wales is the lowest in Europe (Goldson 2012). The currently established minimum age of criminal responsibility (MACR) in England and Wales remains 10 years, which violates international juvenile justice standards (Goldson 2012). Under the current law, all children 10 years and over are assumed to be sufficiently mature enough to take criminal responsibility for their criminal behavior (Goldson 2013). This approach overlooks the psychological and physiological development of children that distinguish them from adults (Mcara&Mcvie2010). Evidence shows that children below the age of 10 are not fully mature in terms of brain and moral development.
The Parliamentary Office of Science and Technology defines age of criminal responsibility as the lowest age a child can be arrested, prosecuted and tried by law for a criminal offense. Although using this chronological age appears simple on the surface, determining this number is complicated. Factors like brain development, capacity and childhood determine whether diversion or juvenile criminal justice is best suited to handle children who commit offenses (Cipriani2009). Abrams et al. (2019) highlights legal concepts associated with age of criminal responsibility that help determine the developmental, cognitive and mental capacity of a person.
The current law holds 10-year olds accountable for their criminal culpabilities. The same 10-year olds are not considered old enough to buy alcohol and cigarettes, to marry or apply for credit card. Arthur (2014) is surprised that a 16-year old is not old enough to have consensual sex but a 10-year old is considered adult enough to be punished for crime committed. Juvenile criminal justice and child welfare were set up on the backdrop that young children lack capacity, rights, capacity and maturity of adults. These protective services focus on rehabilitating the family and child to solve the underlying deviant behavior or criminal behavior (Btlakemore, & Mills 2015).
Goldson (2013) observes that the current age of criminal responsibility is unsafe, unjust, and harmful. He writes, “A reduced age of criminal responsibility functions as “an apprenticeship for career criminality,” (p.122). Goldson believes it is a miscarriage of justice adultifying a 10-year old who is prosecution. Pillay (2019) agrees with Goldson by urging for the raising of the current age of responsibility to give immunity to children in conflict with the law. Noroozi et al (2018) highlights inconsistencies in in developmental and legal perspectives being employed as indicators of competencies across medical and judicial systems. Noroozi et al. (2018) noted that parental consent is mandatory for children accessing mental health services but when it involves criminal justice, the very children are required to assume adult responsibilities for their actions.
The MACR misrepresents the body of evidence that exists regarding children who offend and their developing capacities (McDiarmid 2013). Despite criticism from justice system and youth services professionals as well as overwhelming evidence supporting the reform, the Westminster government is unwilling to consider raising the MACR (Goldson & Muncie 2015). The current study will be based on a review of literature on the current MACR in England and Wales for the purpose of rethinking or raising the current MACR. This review shall derive from criminology, psychology and neuroscience literature.
1.2 Objectives
The Major objective of this review shall be to identify available literature on MACR in both England and Wales. This information will be useful to the criminal justice system. It shall help it to understand the importance of increasing MACR.
This study will be guided by the following specific objectives:
2.0 Philosophical Orientation
There has been a significant reduction in the number of arrested, prosecuted and convicted children in the past decade. For example, children under 11 years accounted for 703 out of the 87,525 children arrested in 2016 comparative to 2000 out of the 200,000 children arrested in 2011 (Gold 2015). Furthermore, the main offenses committed by such children ranged from theft to drug-related, criminal damage and driving offenses (Howard League for Penal Reform 2017). These reductions are attributed to changes in police practices such as reducing first entrants entering the criminal justice system. The police are applying their discretion to decide whether ending a child to protective agencies or the criminal justice is appropriate.
The children who are disproportionately represented in the criminal justice hail from ethnic minority backgrounds, are victims of crime, or have been brought up in underprivileged families (Bateman 2013). Moreover, many of those who offend have high rates of substance misuse and mental illnesses (Mcara & Mcvie 2018). Some have communication and learning difficulties and neurodevelopmental disorders (Bateman 2013). This raises concerns regarding the ability of these children to stand trial (Delmage 2013).
Recent advances have improved human understanding concerning neurological processes behind adolescent behavior. These advances have raised concerns with respect to the extent to which young people should be accountable for their offenses (Blakemore & Cloudhury 2006). There was limited knowledge regarding brain development at the time the MACR was established. But now that the children’s decision making capacities and developing brains are known, the current MACR appear to be unreasonably low.
Adolescence is a period in which children are prone to risk-taking behaviors. Risk taking, impulse behavior and sensation seeking behavior tend to peak in adolescence and the come out later in life as witnessed across cultures and societies (Steinberg et al 2018). Children during adolescence are still maturing and thus not fully developed enough to comprehend the wrongfulness nature of their behavior or deeds (Goldson 2013). The brains of children are not fully developed by age 10 to stand trial. Advances in brain imaging techniques indicate that the brain of a 10-year old is not fully developed and undergoes through significant developments during adolescence (Delmage 2013). They are less developed as far as their sensation-seeking and judgments are concerned and experience challenges in weighing corollaries when making decision (Delmage 2013). Furthermore, adolescents are especially prone to risk-taking behaviors that they grow out later in life.
Criminalizing children negatively makes them more likely to reoffend in the future. Criminalizing children as young as 10 years does not sever future offending behavior, rather it harms them (Smith 2014). Furthermore, a good number of children who come into contact with criminal justice are victims of crime themselves (McAra&McVie 2010; Taylor 2016). In addition to that, many have communication, learning and mental health difficulties (Goldson, 2013). These difficulties have far-reaching ramifications for the ability of a child to competently stand in an adversarial atmosphere (Taylor 2016). With these concerns, such children are not able to participate in criminal trials.
The insistence on the post-1998 approach to MACR by UK government comes from the ministers’ conviction age 10 for criminal responsibility is appropriate. Former minister for youth affairs, Jeremy Wright insisted that the government has no intentions of changing or repealing the current law despite criticisms from various stakeholders, such as the National Association for Youth justice (Bateman 2015).the government has failed to bow to calls by national commission on children’s rights to rethink is threshold for age of criminal responsibility (Newton 2017). The Westminster government emphasizes on the enforcement of the 1998 Crime and Disorder Act to the letter. 10-year olds who commit an offense should be held accountable for their actions. This law allows underage child to be prosecuted, tried and convicted in court proceedings.
Despite mounting evidence that 10-year olds are not fully mature to participate in criminal court proceedings, the government insists that children about the MACR are capable of comprehending the crime and consequences of their deeds (Cipriati 2016). MACR reform is key to removing young children from the reach of the criminal justice system. McAra and McVie (2007) argue that raising MACR would prevent a good number of children who come into contact into contact with the law. in addition to that, children are likely to benefit from raised MACR through diversion into primary prevention and community-based initiatives (Soppitt& Irving 2014). According to Goldson (2013) “the most effective diversionary strategy, of course, is literary to remove children from the reach of the youth justice system altogether” (pp.22).
2.1 Research Question
Based on the objectives of this study and the participants, interventions, comparisons, outcomes and study design (PICOS), the researcher developed the following research question to guide him in conducting the literature review:
To answer the above question, the researcher will carry out a review of relevant secondary sources of information. This will enable him to come up with useful information about raising MACR for offenders in Wales and England.
3.0 Research Design
This study will be based on a literature review. The process generally involves selecting, reading, and evaluating the available literature sources (Bell 2005; Trochim 2021). BrymanandBell (2003) describes literature review as a critical examination of available research and literature on a topic of interest to discover what is known, what theories, concepts and research methods used; and existing evidence. Fink (2014) defines literature review as the survey of scholarly sources such as books and journals relevant to the topic of interest. According to Jesson (2011), a literature review summarizes, describes and evaluates scholarly works relevant to the research problem being investigated. Literature review provides information on what is already known about research area of interest (Crewel 2003; Crewel 2018). The reviewer can also learn about varied methodological and theoretical approaches to any research area and also learn from others’ mistakes (Collis & Hussey 2009; Bell, Bryan & Harley 2019). Fink offers that literature review demonstrates how the research under study fit within the wider field of study. Ridley (2012) highlights that the primary goal of conducting literature review is to detect any gaps/weaknesses in extant literature, find new ways to interpret prior research, as well as address contradictions among conflicting previous studies (Crewel 2003).
The current study shall specifically adopt a systematic review of literature. Systematic literature review entails an evaluation of various pieces of evidence available on a given clearly defined question which makes use of systematic methods in identification, selection, and appraisal of primary researches (Quinlan 2011). This approach enables the researcher to synthesize and critically analyze various studies. It makes the evidence available more accessible to policy makers. Unlike empirical studies, systematic review of literature is cost-effective since it can be conducted quickly within a short period of time (Quinlan, et al 2019). This makes the approach suitable for the study of MACR.
4.0 Research Methods
In the current review, journal articles and books on MACR in England and Wales shall be reviewed. Credible databases such as Scopus, SSCI, Google Scholar, and SocINDEX will be searched. The databases will be identified by both librarians and experts drawn from the criminal justice system. Apart from using databases, some studies will be identified through hand searching. This is due to the fact that some important journal articles cannot be assessed using electronic databases.
Some of the key words and phrases that will be used in the search include “criminal responsibility,” “criminal justice,” “minimum age of criminal responsibility,” “age of criminal responsibility,” and “rethinking juvenile criminal responsibility.” During the review, articles will be screened using their abstracts and titles. Duplicate studies shall be removed from the list. The criteria shown in table 1 below shall be used in the selection of the articles.
Table 1: Inclusion and exclusion criteria
Criteria | Inclusion | Exclusion |
Type of studies | Books, journal articles (both peer-reviewed and not peer-reviewed), and articles based on qualitative, quantitative and mixed method of study. | Wikipedia, and opinions. |
Language | Articles published in English | Articles not published using English language |
Subject matter | Articles about MACR | Articles not containing information about MACR |
Publication date | Articles published after the year 2007. | Articles published before 2007. |
Relevance | Articles containing relevant information | Articles not containing relevant or useful information |
5.0 Literature Standard
This literature review shall take into consideration all the requirements of reliability, validity, credibility, representability, and generalizability. It will be reliable since the researcher will use quality sources of information that contain relevant information MACR (Neuendorf 2017). Since the researcher will use current sources of information, the study will probably be valid (Neuendorf 2017; Yin et al 2017). Most of the sources that will be reviewed are written by authors who are knowledgeable in criminal justice (Schreier 2012; Yin et al 2017). This will make the study credible. The study shall compare MACR in Wales and England (Kirppendorff 2018). Thus, the results of the study will be representative of the two countries as far as MACR is concerned. Lastly, the findings of the study can be used to generalize what happens in other parts of the world (Kirppendorff 2018; Mogaji, Czarnecka & Danbury 2018).
6.0 Ethics
Research ethics for conducting literature review is not discussed explicitly as far as criminal justice research is concerned (Resnik 2015). Perhaps this is due to the fact that literature reviewers employ publicly accessible records opposed to gathering of sensitive and confidential information from research subjects (Easterby-Smith, Thorpe & Jackson 2015). But these reviewers are required to make ethical choices, including acknowledging secondary sources from which the information was obtained (Resnik 2015; Hart 2018). The current literature review shall be informed by principles of audience-appropriate transparency, informed selective inclusivity as well as informed subjectivity (Mogaji, Czarnecka & Danbury 2018). These are the principles that will guide the reviewer in making ethical decisions.
7.0 Conclusion
Evidence from literature reviews indicates that the current MACR in England and Wales is unreasonably low and not evidence-based. It is also important to note that evidence from neurodevelopmental, brain imaging and developmental studies show that 10-year olds are not mature enough to participate in criminal justice trial proceedings. Neurodevelopmental studies reveal that the children’s brain is not fully developed, particularly the brain area responsible for decision making. In addition to that, adolescents are especially prone to risk-taking behaviors that they grow out later in life.
There is need for the criminal justice system to rethink the MACR. Raising the age will be advantageous to juvenile offenders since most of them are ignorant of the law compared to adult offenders. Therefore, the initiative will help to ensure that the young offenders get the justice they deserve. It will as well help to promote fairness of the criminal justice systems of England and Wales.
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