Decriminalising children

Raising age of criminal responsibility would be treated with ‘utmost care’

The government is considering whether to raise the age of criminal responsibility in England and Wales. Currently 10 years, it compares with the age of 12 in Scotland and 14 or higher in most European countries.

In a policy document published yesterday afternoon, the Ministry of Justice said that comparing England and Wales with other jurisdictions was “a more nuanced picture than is sometimes reflected in commentary”.

Even so, it welcomed the Bar Council’s decision to set up a working group on the issue. “Its analysis will make an important contribution to the wider evidence base,” the government said. “We will carefully consider and respond to the Bar Council’s findings as we assess whether, and when, it may be appropriate to explore reform in this area.”

The youth justice white paper stressed that any future decisions on the minimum age of criminal responsibility would be approached with the utmost care:

This is a complex and sensitive issue that relates to child welfare, public protection, victim confidence and wider societal expectations. It is therefore essential that any potential reform is not rushed and grounded in robust evidence, shaped by expert insight and mindful of the needs and perspectives of victims, children and the wider public.

Professor David Ormerod CBE KC (hon)

It will be well over a year before the government has to decide what to do. The justice secretary David Lammy has appointed the former law commissioner Professor David Ormerod CBE KC (hon) “to take a fundamental look at the function and purpose of criminal courts for child defendants and identify options for longer-term reform”.  He’s not expected to report until August 2027.

A terrifying picture

The government’s 89-page policy paper — called Cutting Youth Crime. Changing Young Lives. — paints a terrifying picture. Here are some extracts:

• Harmful sexual behaviour, coercion and abuse are now routine in many children’s everyday lives. A survey found that nearly half of 13-17-year-olds in an intimate and partner relationship reported experience of violence or controlling behaviour, including sexual coercion, physical violence and image-based abuse. These harms reflect patterns of behaviour that, if left unchallenged, risk becoming normalised and entrenched at a young age and escalating into adulthood.

• The number of children involved in terrorism remains very low. However, we have seen a worrying rise in recent years, particularly in the number of cases where children have been radicalised online, often becoming fixated on violence. The first phase of the Southport public inquiry has reported and identified terrible failings which can never happen again.

• While small in number, cases involving extremism, radicalisation and violence-fixation are becoming increasingly prevalent among children. Youth justice services may increasingly need to support children who display ideologically-motivated behaviour, consume extremist or hate-based material online or demonstrate obsessive interest in weapons and mass-harm narratives.

• Too often in the past, children carrying knives has become normalised and the response has been too slow and too weak. This government is clear that responses to child knife possession must be swift, robust and grounded in evidence, with the primary aim of preventing further offending and improving public safety.

Government response

“There is clear evidence that over-criminalisation of children is not effective,” said the white paper. “Charging a child, taking them to youth court or detaining them in custody all have (and will have) a vital role to uphold justice and protect the public. But there are many circumstances where diversion out of the criminal justice system, with proportionate intervention, is more efficient and effective.”

Crucially, though, “not criminalising children does not mean failing to intervene and we must remain alert to the risk of perverse incentives created by an overly narrow focus on reducing first-time entrants to the youth justice system. Benign neglect, however well-intentioned, is still neglect.”

There is need to improve multi-agency working, the government said: “we know that the early intervention and prevention landscape across England and Wales is complex, with multiple statutory arrangements, thresholds, processes and funding streams. Not only is this a complex landscape for professionals, children and families to navigate but too often fragmented responsibility means that risks are not owned by any single part of the system, increasing the likelihood that warning signs are missed and children slip through the gaps as risks escalate.”

Out-of-court resolutions are increasingly replacing prosecutions. But these are being used inconsistently, according to the government. To target improvements, the Youth Justice Board will begin gathering data “from April 2026” — phrasing which suggests some delay in publishing the white paper.

Some police forces are offering deferred prosecution schemes, under which young offenders are not required to admit guilt and cases may eventually lapse. To encourage their use, charges dealt with in this way will be counted as “resolved”. But the government is insisting on thorough intervention and proper oversight. “We must not see a return to the empty warnings and insufficient grip that has typified too many out-of-court resolutions,” it said.

The youth court has changed little over 25 years, even though it now deals with children who have more complex needs and have committed more serious offences. Around one-third of the 13,000 children sentenced by the youth court go on to reoffend. The reoffending rate for children who receive youth rehabilitation orders — which combine supervision, support and sometimes restrictions — has now reached 60%.

Adapting an idea from the adult justice system, ministers will legislate to introduce problem-solving courts for children. These youth intervention courts, we are told, will set clear expectations, monitor compliance closely and use the authority of the court to motivate and sustain change.

Children awaiting trial are less likely to be remanded in custody under the government’s plans. And although there will be no presumption against short sentences, the minimum term for a detention and training order — a sentence of up to two years, with half served in custody and half in the community — will be raised to 12 months, reducing the use of short detention periods. “The combined impact of our remand and sentencing reforms,” ministers predicted, “could see a gradual reduction in the custodial population of 20% by the end of this parliament.”

Parents

“Parents and guardians have a fundamental responsibility to properly care for and supervise their children.” the government observed, adding that they must be held to account if they do not.

“Parenting orders provide an important tool to do so,” the policy paper said, “yet their use in criminal courts has declined dramatically from more than 1,000 orders in 2009/10 to just 33 in 2022/23.”

Parents and carers will face “more meaningful consequences”— unspecified in the white paper — “when they wilfully do not comply with an order that the court considers key for their child’s rehabilitation or prevention of further offending”.

Comment

In a written parliamentary statement, the justice secretary David Lammy set out the balance he was attempting to strike:

Children are still developing and have a strong capacity to change and the system must respond accordingly. But avoiding unnecessary criminalisation must never come at the expense of public protection.

Nowhere is this more difficult than in deciding the age at which children may enter the criminal justice system. Presumably, that was why raising the age of criminal responsibility was not mentioned in the government’s pre-publication press release.

Nobody attending Preston Crown Court in 1993, when two 10-year-old boys were tried for the murder of the two-year-old James Bulger, will forget how young the defendants looked. When standing, the two killers were barely able to see over the sides of the dock.

Fortunately, such cases are extremely rare. But if the Bar Council does recommend a more humane way of dealing with young children who carry out the most appalling acts, the justice secretary will be able to say that advice is being sought from one of the leading criminal justice experts. And if, as seems likely, Ormerod recommends bringing England and Wales in line with other jurisdictions, justice ministers will be able to respond to public concerns by saying they are simply following the recommendations of their expert adviser.