If Gove can use youth to excuse his illegal drug use...

... surely it's time to talk about the criminal age of responsibility. Thirty is a lot older than 10, says Pam Jarvis

Pam Jarvis

Michael Gove

Former education secretary Michael Gove made the news this weekend with his admission of cocaine use – something he repeatedly told Andrew Marr was a "mistake" when he was "a young journalist".

He’s not alone in using his age as an excuse for poor behaviour. The BBC reported that in 2008 Marie Clare asked Boris Johnson about claims he had taken cocaine at university. He told the magazine: "That was when I was 19."  

And yet, the Tory government as a whole has repeatedly opposed attempts to raise the very young age of criminal responsibility in England (at 10, the lowest in Europe and one of the lowest in the world).

International comparisons include 14 in Russia, North Korea and China, 12 in Saudi Arabia and Egypt … and 10 in England, Wales, Syria and Bhutan. The United Nations Convention on the Rights of the Child (UNCRC) has repeatedly asked the UK to raise its criminal age of responsibility to an age "acceptable to international standards".

England has been the western world’s pariah with respect to its treatment of young offenders since 1998's Crime and Disorder Act made far-reaching amendments to the English criminal justice system. These changes weren’t based on evidence-based research but a declared intention to "stop making excuses for children who offend".

The criminal age of responsibility 

Watching Gove making excuses for his own behaviour, at the "young" age of 30, over Sunday breakfast was laugh or cry material for those of us who know the history of the ancient English right of "doli incapax": centuries of carefully balanced justice for children and young people, summarily banished at the dawn of the 21st century.  

Doli incapax means incapable of wrong. Traditionally in England, the assumption of Doli incapax applied from the age of 7 to 14. A child accused of a crime was brought before a judge who decided whether s/he understood what s/he had done was criminal, rather than naughty. If the judge was satisfied that the prosecution could not prove beyond reasonable doubt that the child had full adult understanding of the crime committed, the prosecution was halted due to doli incapax. In 1963, children between 7 and 10 were granted automatic doli incapax, raising the age at which a child had to be brought before a judge to 10.

Would raising the age of criminal responsibility to age 14 mean that children under that age would simply be allowed to "get away" with offending?

Looking to our closest neighbours with higher ages of criminal responsibility, why is it then that we don’t find gangs of uncontrollable young children roaming their streets? It’s because the custom of dealing with crime involving children under 14 in continental Europe is through child protection and safeguarding laws, in which children who commit crime are taken through a form of care proceedings.

This may involve court orders, or even a period living away from home in secure accommodation. On the surface, this may not seem that different to current ways in which England treats its young offenders.

However, the difference that exists is fundamental: the child is not identified as an "offender" at any point in the process, but as a child in need of guidance, and when s/he emerges at the end of the process, s/he has no criminal record. In other words, s/he is treated as a child.

We did not know in 1998 what we know now. Through advances in neuroscience, we’ve discovered that the human brain is not fully adult until it reaches 25 years of age, and that the neuronal changes of puberty may, in certain social situations, impede self-control.

In a nation where people vying for the role of prime minister are citing youthful impulsiveness as a reason for offending behaviour, do we really need to go into human neuropsychology to make the point that people make mistakes, and that the lack of experience and impetuosity of youth is where our biggest mistakes are usually made?

As Gove points out in his interview, should we then be made to suffer for these for life, as many have done due to criminal records imposed for such youthful mistakes? Since 2006, England has adopted a policy of electronically retaining all criminal records on individuals until they pass their 100th birthday.

There is currently a bill slowly passing through Parliament to raise the age of criminal responsibility to 12 in England.

Perhaps, in the light of politicians citing youth as an excuse for their own criminal behaviour at much older ages, MPs might consider passing this bill into law as quickly as possible. They should also consider raising the age of responsibility to 14, as the UNCRC recommends. This would ensure that caring and reformative responses – rather than punitive ones – are available for those who engage in offending behaviour under this age.

Yes, youth offending must be effectively dealt with to protect all concerned, but surely, as the UNCRC urges us, young offenders should first be considered as children rather than criminals.

Dr Pam Jarvis is a reader in childhood, youth and education at Leeds Trinity University

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