By Dr Malvika Unnithan
The minimum Age of Criminal Responsibility (ACR) forms the basis of an age-old yet ongoing debate in England and Wales. Since 1963, the ACR in England and Wales has been 10, and it remains unchanged to date. It is significantly lower than in many countries around the world [1], and there have been numerous calls for it to be raised.
Despite children holding a special status which distinguishes them from adults, their need for protection [2] is largely neglected when they are found to be in conflict with the law. In such circumstances, they go from being a “child” to a “non-child” because the threshold for criminal responsibility is the same as it is for adults [3].The current ACR with no presumption of doli incapax (incapacity to form criminal intent) leaves children with no legal safeguards to protect them from entering into the criminal justice system [4], even though upon entry they are treated different to adults. This is unlike other arbitrary age limits that confer responsibility on the basis of age, such as smoking, sex (consent), and marriage. Here the focus is on protecting children from responsibility and the consequences of certain actions due to their status, and in this regard the ACR stands out as an exception.
Over the years, all moves towards raising the ACR have been met with strong resistance, with none making it beyond the second reading [5], as highlighted by the ACR Bills proposed by Lord Dholakia. Unmoved by the overwhelming evidence and clear grounds for needing to raise the ACR, the government has rejected many calls to raise it as they believe it “appropriately and accurately reflects what is required of our justice system” [6]. They state that it is “important to ensure that serious offences can, where appropriate, be prosecuted and the public protected” [7]. Whilst it is valuable and necessary for the criminal justice system to prioritise protecting the public, criminalising children at a young age is a questionable way of achieving this. It shifts the focus away from protecting children in need who may be at risk of offending and minimising harmful consequences of bringing children into the youth justice system, such as labelling and negative social reaction [8].
As a researcher interested in this topic, I was disheartened to see the apathy and trivialisation of this issue by the government despite the strength of the case in favour of raising the ACR. It made me wonder how the government continues to justify holding children as young as 10 criminally responsible. I found that the basis for holding children criminally liable boils down to the government’s belief that “children know right from wrong” [9].
The abolition of the doli incapax presumption highlighted this belief. It was elaborated further in the White Paper, No More Excuses, which emphasised that the presumption is no longer relevant, even if it was justified at a time when children did not receive compulsory education. However, it has been stipulated that today’s children grow up much faster, both mentally and physically. Therefore, they are assumed to know the difference between “naughtiness and serious wrongdoing” [10]. Although it is generally not necessary to know that an act is unlawful for there to be criminal liability, the assumption that a general understanding of right from wrong is sufficient to hold children to this same standard of responsibility as adults, fails to adequately consider the fact that their cognitive capacities are still developing. The government’s justification highlights the role of education in the development of children’s understanding of wrongdoing and responsibility yet provides no further details on how the link between right and wrong and the law on the ACR is addressed by compulsory education.
In my doctoral research, I carried out a case study in North East England exploring the extent to which compulsory education prepares children between the age of 7-14 for criminal responsibility. I conducted a documentary analysis of some key curriculum documents and interviews with a sample of teachers from a few schools in North East England. My research revealed that there is no formal requirement to inform children about the ACR within the basic curriculum [11].
In fact, the curriculum does not mention the ACR, however concepts related to it are covered, such as right and wrong, social and moral responsibility and role of law and the legal system. These concepts are implicitly linked to the law on criminal responsibility, yet information on the ACR is absent even in parts of the curriculum discussing social and moral responsibilities, despite legal responsibilities having strong links to moral right and wrong and social duties to the public or community. Unless children are informed of this link by individual teachers or their school, the current education system expects them to connect the dots between the topics they are taught as part of the curriculum and the laws that apply to them between the age of 7-14, like the ACR. The only exception is the emphasis on consent in Personal, Social and Health Education (PSHE) and Relationship, Sex and Health Education (RSHE) from key stage 2 to 4.
The concept of right and wrong was found within the curriculum to be taught in terms of acceptable and unacceptable behaviour or safe and harmful behaviour. In such contexts, there are often legal implications to the harmful behaviours discussed like violence, hate crime, sexual abuse (with links to the age of consent), and the misuse of drugs. However, even when legal provisions are brought up as recommended in PSHE and RSHE [12], no link is made to criminal responsibility or the age at which an individual is held responsible under criminal law for such behaviour. From this it can be inferred that the intention behind mentioning these legal provisions is solely to protect children from such offences and does not extend to informing them about the consequences of offending. Moreover, in Key Stage 3 the focus shifts from right and wrong to the role of law and the legal system instead. Subjects like British Values and Citizenship focus on cultivating children’s knowledge of right and wrong by teaching them about tolerance, respect, and behaviour expected in “British” society but mentions little of their legal responsibilities.
These findings illustrate that the current provision of compulsory education [13], does not make clear links between subject material that could be relevant to teaching children about criminal responsibility and the law on ACR. The lack of guidance from the Department for Education (DfE) or relevant curriculum documents, places the onus lies completely on individual teachers or schools with an interest in taking up such an initiative. Without being formally and uniformly informed about the ACR, many children may only find out about this law and its implications once they find themselves in conflict with the law. Arguably, at that point, general discussions on concepts such as right and wrong, social and moral responsibility, the role of law and the legal system, may not be enough to inform them of what constitutes an offence in law and the legal responsibility they possess. This leaves children aged 10 and above unprepared for this responsibility.
Although compulsory education serves as the government’s apparent justification for keeping the ACR in England and Wales at 10, the inadequacy of the curriculum for justifying that responsibility has not been acknowledged or explored. The current policy places the burden of knowing about the law on children without sufficient educational provisions in place.
A similar trend can be found in children’s rights education where information pertaining to children’s rights or human rights provisions are found to be largely absent from the National Curriculum [14]. The two main subjects where rights are discussed, albeit not explicitly, in relation to the United Nations Convention on the Rights of the Child (CRC), are RSHE and Citizenship education. Within these subjects, children are taught about some of their rights. The emphasis is placed on helping them recognise uncomfortable or unsafe feelings in relationships, and to recognise unacceptable behaviours which could constitute sexual harassment or violence. They are also taught about legal rights and responsibilities in terms of equality and online rights, and how to report and get help in such circumstances [15].
Although children are taught about some of their rights, the focus is on keeping children safe rather than empowering them with fuller knowledge of their rights. With this approach, the curriculum material seems to place children in a more passive role rather than empowering them. A similar approach is taken when it comes to informing children about the ACR, however the passivity in this context is manifest through the predominant focus on safeguarding them from harm caused by the mentioned criminal offences, rather than also using this opportunity to make the link to the criminal responsibility they possess from the age of 10. Providing children with very limited knowledge on such legal topics may contribute towards their awareness of the law, but it does not help them realise and understand how it affects their lives (i.e. what constitutes a criminal offence, how it affects them, differences in its affects outside and inside school etc.). A more explicit approach is necessary. However, such an approach is not possible when opportunities for cultivating legal consciousness are not clearly outlined and prioritised in the basic curriculum [16].
One main alternative to this has been educational material and programs created to support schools in delivering human rights education to children through the Rights Respecting Schools Award (RRSA) and Amnesty International’s Human Rights Friendly Schools [17]. However, with the school uptake of the RRSA being only around 17% of all schools in the UK [18], the widespread impact of this on the development of children’s legal knowledge is controvertible. Once again, this brings into question whether compulsory education and the main educational provisions in place, such as the basic curriculum used in schools, prepare children for the legal rights and responsibilities conferred on them as they grow older.
From my study exploring the role of compulsory education on ACR, the discrepancy between what children are taught in relation to this law and what children should know about this legal responsibility not only presents a missing link, but highlights a missed opportunity. One that the government recognises when using compulsory education as a justification to maintain the current ACR yet avoids when it comes to empowering children with information about the laws that apply to them.
It is imperative to go further than merely recognising the crucial role that compulsory education can play in holding children legally responsible and assuming that its provisions are adequate as it stands. Instead, active steps need to be taken towards the general development of children’s legal consciousness in an age-appropriate and fair manner, to prepare children for a responsible life in society [19].
[1] Some examples include the ACR being set at age of twelve in Scotland, Canada and Netherlands, the age of fourteen in Germany, China, Romania, and sixteen in Poland, Argentina and Spain.
[2] United Nations Declaration of the Rights of the Child (1959) as cited in Penelope Brown, ‘Reviewing the age of criminal responsibility’ (Criminal Law Review, 2018)
[3] Stephen Case and Tim Bateman, 'The Punitive Transition in Youth Justice: Reconstructing the Child as Offender' (2020) 34 Children & Society.
[4] Claire McDiarmid, 'After the Age of Criminal Responsibility: A Defence for Children who Offend' (2016) 67 Northern Ireland Legal Quarterly.
[5] Age of Criminal Responsibility Bill HL [2021-22]
[6] Age of Criminal Responsibility Bill HL [2017] Vol 783
[7] Age of Criminal Responsibility Bill HL [2016] Vol 768 Lord Faulks
[8] Barry Goldson, '‘Unsafe, Unjust and Harmful To Wider Society’: Grounds For Raising The Minimum Age Of Criminal Responsibility In England And Wales' (2013) 13 Youth Justice.
[9] & [10] Home Office, No More Excuses – A New Approach to Tackling Youth Crime in England and Wales(White Paper, Cm 3809, 1997).
[11] It is important to note that the national curriculum and subjects that fall outside it form the basic curriculum that maintained schools all over the country can use to inform and determine their own school curriculum. The national curriculum framework within the basic curriculum is compulsory along with some subjects such as RE, some parts of PSHE, namely RSHE, and British Values. Schools can then choose to include or exclude optional elements to form their own curriculum.
[12] Department for Education, 'Relationships Education, Relationships and Sex Education (RSE) And Health Education' (Department for Education 2019); PSHE Association, 'Programme of Study for PSHE Education: Key Stage 1-5.' (PSHE Association 2020)
[13] This refers to compulsory education in local authority maintained schools, foundation schools and voluntary schools as all of them base their school curriculum on the National Curriculum, and they also follow similar guidelines for teaching “other” subjects.
[14] Alison E. C Struthers, Teaching Human Rights in Primary Schools (Routledge 2021) pg 64.
[15] Department for Education, 'Relationships Education, Relationships and Sex Education (RSE) And Health Education' (Relationships Education, Relationships and Sex Education (RSE) and Health Education 2019) pg 21-29.
[16] Walter C. Parker, 'Human Rights Education’s Curriculum Problem' (2018) 1 Human Rights Education Review.
[17] Ally Dunhill, 'The Language of The Human Rights of Children: A Critical Discourse Analysis' (PhD Thesis, University of Hull 2019).
[18] Here ‘all schools’ includes primary, secondary, nursery schools and schools for further education for children with special needs and pupil referral units as mentioned in
UNICEF UK, “Accredited Rights Respecting Schools in the UK - UNICEF UK” (Rights Respecting Schools Award, April 14, 2022) <https://www.unicef.org.uk/rights-respecting-schools/the-rrsa/awarded-schools/> accessed March 10, 2023
[19] Article 29(d) of the UNCRC
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