Kiss Chase, Doctor’s and Nurses and the age of Criminal Responsibility
A recent article in the Telegraph entitled ‘When did a game of Doctors and Nurses become a sex crime?’ caught my attention. The writer discusses ‘sexual offences being committed by children in reception class’. She writes that according to official figures the number of ‘sex crimes’ reported in schools has trebled in the last four years and that statistics include two cases of 5 year old children engaging in sexual activity with other children under the age of 13.
The article was curious in that it did not match my experience acting as a criminal defence solicitor in the Youth Court, not least of which, because in this country the age of criminal responsibility is 10 years old.
This article and the recent release of the House of Commons briefing paper on the subject led me to look at the age of ‘criminal responsibility’ and whether we may be on course for a change is this area of law.
The age differs throughout Europe and most European states have higher ages of criminal responsibility. The UN Convention on the Rights of the Child call for a higher age due to the impact of higher ages of criminal responsibility on the lowering rates of early entry into the criminal justice system and ongoing research into the development of children’s brains at differing rates.
In the past it has been argued that the current age allows children to learn that criminal actions are serious actions that lead to sanctions.
The age of criminal responsibility in Scotland is currently 8, which is one of the lowest in Europe. There are current calls to increase that to 12 years after expert research and recommendations. The age in Northern Ireland remains at 10. Whilst higher ages are consistently recommended, cases such as the murder of Jamie Bulger are consistently referred to as evidence for the need of a younger age.
Currently in the UK no child under the age of 10 can be found guilty of a criminal offence. There can therefore be no sexual offences being committed by reception class aged children as the Telegraph article suggests. The UN Committee on the Rights of the Child believes this age should be increased to 12 years. The argument is that until early adulthood brains are still developing and impulse control and decision making is a long way off being mature.
The Law Society itself is of the view that the age of 10 is too low and have called for the age to be raised to 14. They recognise that there is a strong impact of an early age of criminal responsibility on relapses back into crime following any sanction and the beginnings of a criminal record.
England and Wales currently lock up more children than any other country in Europe – 4 x more than Portugal, 25 x more than Belgium and 100 x more than Finland (Figures detailed by All Party Parliamentary Group for Children). Evidence shows that the earlier a child is drawn into the criminal justice system the greater chance of a custodial sentence in the future.
The stance taken by some other European Countries is that if the age is raised then children involved in problematic behaviour become a welfare issue rather than a criminal justice issue. Early warning signs are identified and alternatives to prosecution can be offered such as supervision and educational intervention. Reports acknowledge that children convicted of crime are often those in the most need of help and suggest working with the family and avoiding a criminal record at such an early age.
Our Government’s position as is stands is that the age of criminal responsibility will not be raised. ‘..children aged 10 and above are, for the most part, able to differentiate between bad behaviour and serious wrongdoing and therefore should be held accountable for their actions’. The Government view that the age of criminal responsibility set at 10 years allows flexibility to deal with young offenders’.
So how then are our youths dealt with over 10 years of age? The Youth Offending Team have been set up to assess children that are found to be guilty of a criminal offence. Representatives from a number of agencies come together to offer support and assistance with any sentence. The vast majority of criminal allegations are heard in the Youth Court.
So what options are available for those under 10 who break the law? Children of this age can be given a local child curfew order requiring a child to be indoors between 9pm and 6am or a child safety order placing them under the supervision of the youth offending team. Parenting programmes or contracts are often put in place, though rest assured a child below 10, whatever their involvement in kiss chase or doctors and nurses will not be guilty of a criminal offence, and this looks unlikely to change any time soon.
By Rob Rode