The Children and Young Persons Act of 1963 provides ten years as the minimum age of criminal responsibility (MACR) for England and Wales (Goldson, 2013, p.113). This implies that for more than half a century, the exposure of children who reach ten to the law's full force has been much the same way as adults. Children as young as ten years are being convicted of crimes and subjected to a police investigation. In this regard, they may end up having a criminal record for life. England and Wales' MACR is the lowest in Europe. It also fails to consider developmental psychology and neuroscience findings to inform children's age of capacity and culpability. The low MACR also violates international norms and human rights decrees requiring detesting a MACR below 12 years (Abrams, Jordan, and Montero, 2018). This policy briefing will identify social harms caused by the current MACR, how England and Wales’ MACR compares to other nations in the European Union, criticisms of the MACR, and recommendations to reduce challenges attributable to the low MACR.
Compliance with Human Rights
Despite there not being an explicit international requirement about the age of imputing criminal responsibility, the dictates of many international human rights instruments may help decide what may be considered a reasonable age (Goldson, 2013, p.117). The Beijing Rules provided under Article 4(1) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice provide that the beginning of the criminal responsibility age should not be fixed as a low age level (Goldson, 2013, p.117). Article 3(1) of the UNCRC focuses on prioritization of the best interest of the child by all institutions (Goldson, 2013, p. 118). Article 40 urges governments to make laws, institutions, authorities, and procedures that can help in dealing with children who are alleged to have violated the penal law to avoid the use of judicial proceedings (Goldson, 2013, p.118). These human rights instruments do not specify an arbitrary age of criminal responsibility. However, these international instruments seek to prohibit or urge nations to shun practices that expose children as young as ten years to an adversarial criminal justice system's full weight.
International human rights decrees influence how nations set the MACR. The Beijing Rules recognized the importance of setting a MACR that takes care of children's cognitive maturity and emotional development (Abrams, Jordan, and Montero, 2018). The UNCRC recognizes that every child accused of a crime has a right to receive treatment in a way that promotes a sense of worth and dignity. The UNCRC defines a child as a human being below 18 years (Abrams, Jordan, and Montero, 2018). Except for the US, all other UN members have ratified UNCRC. In 2008, the General Comment No. 10 of the Committee on Rights of the Child provided international standards that would not accept a MACR below 12 years (Abrams, Jordan, and Montero, 2018).
The low MACR in Wales and England shows tangible incoherence in the statutory determination of social rights and responsibilities, and the construction of the child's legal personality (Goldson, 2013, p. 119). The law helps transition from childhood to adulthood, where the responsibilities and rights increase with age increase. The law determines the maximum working hours and wages they receive. However, young people can only access apprenticeships after attaining 16 and can only enter the armed forces at 17 years (Goldson, 2013, p.119). Further, one cannot ride a motorcycle or drive a car before attaining 16 and 17 years, respectively (Goldson, 2013, p. 119). Young people cannot legally purchase cigarettes or alcohol before attaining the age of 18 years. One gains the legal right to claim state benefits, leave school, and choose their doctor at 16 years (Goldson, 2013, p.119). Further, the right to open a bank account, get married, and vote is withheld until one attains 18 years (Goldson, 2013, p.119). Thus, it is legally inconsistent and perfectly insensible to expect a child of ten years to suffer the full consequences of criminal law.
At ten years, the MACR in Wales and England is the lowest in the European Union. The MACR in Austria, Estonia, Germany, Lithuania, Hungary, Latvia, Romania, Spain, Bulgaria, Italy, and Hungary is 14, while Ireland and Netherlands are 12 (Goldson, 2013, p. 119). The MARC in Poland, Greece, and France is 13, 16 for Portugal, 15 for Sweden, and 18 for Luxembourg and Belgium (Goldson, 2013, p.119). By considering 27 members of the European Union, the average MACR is 14 years (Goldson, 2013, p.119). This makes it hard to defend or understand the methodology in Wales and England that appears to be conspicuously out of line with the European practice. There are innumerable countries where, despite having a MACR that is substantially higher than England and Wales, they do not register negative consequences such as abnormal crime rates (Goldson, 2013).
Developmental psychology and neuroscience
The contemporary youth justice law in England and Wales has a problem of being stubborn by negating knowledge and denying history. Juvenile crime has been established to be a normal phenomenon during adolescence (Goldson, 2013, p. 121). Further, many youth tend to quit crime as they grow hence implying that the cure for juvenile crime is to elevate the MACR. Developmental psychology and neuroscience show significant developmental differences between adults and children (Dwyer and McAlister, 2017, p.2). Using complex scanning techniques, scientists can show that testosterone in boys tends to be much higher during adolescence than other life stages and is responsible for aggressive behaviors (Delmage, 2013). During adolescence, the anterior part of the brain tends to develop slowly compared to the amygdala. The amygdala deals with emotion and reward processing. In this regard, the imbalance in the brain's development leads to increased arousal or impulsivity, poor reasoning skills, poor consequential thinking, sensation-seeking tendencies, and risk-taking behaviors among adolescents (Delmage, 2013, p.106). Thus, children have a lower capacity and culpability (Dwyer and McAlister, p.2, 2017). The delay in mental, intellectual, and emotional maturity among children affects their ability to make decisions, levels of understanding, and control impulses. Thus, it is irrational to subject children of 10 years to the consequences of criminal law in a similar manner as adults (Dwyer and McAlister, p.2, 2017).
Minimizing Social Harm
O'Brien and Fitzgibbon (2017) provide that welfare services and diversionary services that support vulnerable children should be recognized as integral facets to deal with children's overcriminalization. The Youth Justice Board and the Youth Offending Teams have been driving a diversionary policy at the local level to reduce the number of children engaging in conflict with the law. Recent government data reveal that the number of first-time entrants (FTES) exhibits a downward trend of 86 percent from 2008 to 2018 (Brown and Charles, 2019, p.4). FTEs is an important key performance indicator that measures the system's success, hence its adoption by Westminster's central government (Brown and Charles, p.4, 2019). The criminal justice system and Parliament promotes diversion schemes to reduce FTE numbers
Despite the use of diversion programs as an effective and important tool to engage with children and help young offenders to avoid conviction, the problem is that it is employed after an offense has been committed. The child has already had contact with the criminal justice system with the possibility of being harmed (Brown and Charles, 2019). This implies that embracing progressive reform of MACR can help children evade contact with the criminal justice system and its associated negative implications. Reviewing MACR upwards would imply that children have an opportunity to avoid the potential criminogenic risks emanating from the exposure to a diversionary arena after an offense and benefit from non-stigmatizing community-based supports and primary prevention initiatives (Brown and Charles, 2019). This implies that the most effective diversionary strategy separates children from the youth justice system's (YJS) reach completely through a significant increase of MACR.
The use of overzealous and premature youth justice intervention tends to be counterproductive (Goldson, 2013, p.121). Harmful consequences of premature youth justice intervention include stigma and negative social reaction, criminalization, and labeling. This implies that early youth justice intervention is a conduit of social harm. Just being naughty is likely to cause an arrest and lead to a criminal record that may affect a child's entire life due to a reduced likelihood to complete education. Consequently, reduced educational qualifications lead to a reduction in employment prospects. Countries with the lowest MACR tend to have the highest youth or child imprisonment rates, showing that this is the most harmful intervention. The youth justice system also fails in terms of improving community safety and preventing crime. This emanates from the fact that the YJS has damaging effects and makes it hard for children who have contact with the system to desist from crime (Goldson, 2013, p.122). Thus, one way to reduce harm and offending is to promote maximum diversion and minimal intervention.
The YJS in England and Wales seeks to deter reoffending and offending among children. The number of children aged 10-17 cautioned or sentenced in the year ended Mach 2019 was 21,700 (Youth Justice Board / Ministry of Justice, 2020, p.2). in the year ended March 2019, 10-14-year-olds registered a reoffending rate of 38.6% compared to 37.9% for 15-17-year-olds (Youth Justice Board / Ministry of Justice, 2020, p.65).
If England and Wales were to increase the MACR to 15 years, the reoffending rate of 10-14-year-olds would be eliminated, while the number of children with contact with the YSJ would reduce by more than 6000. This age is aligned with regional and international legal norms. A MACR of 15 years also takes care of a child's capacity to determine whether an action is seriously wrong.
If England and Wales were to increase the MACR to 18 years, there would be no cases of children having contact with the YSJ due to offending or reoffending. A MACR of 18 shows a high degree of compliance with developmental psychology and neuroscience, showing that adolescents' brains develop incrementally into their early twenties. This age also complies with intra-jurisdictional integrity and international human rights best practices. Therefore, England and Wales would match a few nations in Europe, such as Luxembourg, which set a good example of MACR. Compared to a MARC of 15 years, a MARC of 18 years seems to make perfect sense in YJS.
Conclusion and Recommendation
England and Wales should set a MARC of 18 years. Raising MACR would lead to a surge in non-stigmatizing forms of initiatives and support that would minimize the possibility that a child will contact the formal youth justice system. One of the fundamental benefits would be that many children would bot encounter adverse experiences such as impairment of their future life prospects, stigma, and labeling. Labeling has detrimental effects as it may impair the chances of reintegrating the child back into society.
MACR in England and Wales are among the lowest in Europe; hence raising it to 18 makes England and Wales have the highest MARC. This will end the current misalignment that creates a picture that England and Wales are isolated from other European countries. The United Kingdom is a nation devoted to promote and protect human rights hence it should set a good example by surpassing expectations of human rights organizations.
Children in the YJS account for some of the most vulnerable groups in society. Thus, exposing 10-17-year-old children to a maximum force of the law is equivalent to responding to addressing matters of welfare with criminal justice responses that have the potential of ruining the prospects or the future of young people. As a result, the only way to reduce the harm is to raise the MARC to the Luxembourg level.
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Brown, A. and Charles, A., 2019. The Minimum Age of Criminal Responsibility: The Need for a Holistic Approach. Youth Justice, p.1473225419893782.
Delmage, E. 2013. ‘The Minimum Age of Criminal Responsibility: A Medico-Legal Perspective. Youth Justice, 13,2: 102-110.
Dwyer, C. and McAlister, S., 2017. Raising the age of criminal responsibility: endless debate, limited progress. ARK Feature, (3).
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, 13(2), pp.111-130.
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