Reviewing the minimum age of criminal responsibility

The measure of society is how it treats its children and most vulnerable. The minimum age of criminal responsibility (MACR) in England and Wales is 10 years old, which is the lowest in Europe.

In January, I set up a working group with experts across law, neuroscience, psychiatry and psychology to ask the question: is society best served by bringing children, who are alleged to have committed offences, within the criminal justice system, or can the aims of the state in relation to these children be better met by some other means?

In June, the Bar Council launched Reviewing the minimum age of criminal responsibility (the ‘MACR Report’) which recommends that 10 is too young and the threshold should change to 14.

Doli incapax: a history

Our own common law did not always assume that every child over 10 possessed full criminal capacity. In England and Wales, the rebuttable presumption of doli incapax applied at common law to children aged from 7 to 13. That had been so since at least the time that Sir Matthew Hale was writing in the 18th century and probably much earlier. In History of the Pleas of the Crown (1778, Vol 1 Ch 3), Hale traces the principle back to the reign of Edward III, in the 14th century.

The Children and Young Persons Act 1933 largely preserved the doctrine, although the MACR was raised to 8, where it remained for 30 years. From 1963 until 1998 the presumption remained applicable for children aged from 10 to 13. It required the prosecution to prove that the child knew that their conduct was ‘seriously wrong’. R v Gorrie (1918) 83 JP 136, per Salter J, and JM (A Minor) v Runeckles (1984) 79 Cr App R 255 per Mann J, were both cited in R v JTB [2009] UKHL 20, in which it was confirmed that s 34 of the Crime and Disorder Act 1998 (CDA 1998) had had the effect of abolishing not merely the presumption of doli incapax but also the defence itself.

Parliament reconsidered the issue in 1969 and provision was made for the MACR to be raised to 14, save in cases of homicide, by s 4 of the Children and Young Persons Act 1969. However, s 4 was never brought into force, and the provision was repealed by the Criminal Justice Act 1991.

Doli incapax was repealed under s 34 CDA 1998, leaving children as young as 10 able to be prosecuted without any freestanding safeguard around their difference to adults and with only a requirement to prove mens rea in the usual way.

A criminal pathway

Bringing young children into the criminal justice system is more likely to result in further offending. Mechanisms that reduce the number of children in the system, through diversion as well as raising the MACR, are less likely to result in an increase in crime among this cohort. Diversionary programmes are beneficial to the child and public in terms of reducing future crime and attendant resources. It is cost-effective financially as well as societally. (MACR Report, Section 6.)

The government’s latest Youth Justice Statistics reveal that in the year to March 2025, 1,590 children aged 10 to 14 were found guilty of offences, with only 22 receiving sentences of immediate custody. In the year to March 2025, there were just 233 first-time entrants to the criminal justice system aged between 10 and 12, only one received a sentence of immediate custody. However, most of those children will have been set on a criminal pathway. According to Home Office data, two-thirds of young offenders go on to commit more crimes and 80% of adult persistent offenders first entered the justice system as children. The small number of immediate custodial sentences imposed shows the argument for criminalisation of this cohort cannot realistically be supported by an appeal to protect the public, even for the short duration of a custodial sentence.

The removal of the youngest children from the criminal justice system would not lead to a situation in which the state had no control. Where there is a need for the detention of a child, there are two main non-criminal frameworks each involving judicial oversight: the Mental Health Act 1983 and family court processes. This is not to suggest that these are functioning alternatives. However, their demerits are largely those which also manifest themselves in the criminal justice system, and they each have the advantage that they avoid the stigmatisation attached to criminalisation.

While the current police-operated scheme of out-of-court resolutions is improvable, it is a sensible starting point from which an enhanced diversionary model should be helped to grow.

What does the science tell us?

There also is concerning clinical and empirical evidence that increasingly reveals that children, particularly aged 10 to 14, lack adjudicative competence and are unable to meaningfully exercise the rights which are essential to the fairness of the criminal process. Whatever adjustments are made to the procedures, children routinely struggle to participate in justice processes, rendering their conviction and punishment fundamentally unfair.

While the MACR in England and Wales has remained unchanged for over 60 years, knowledge about children based on developmental neuroscience and psychology has not remained static. It has advanced. Evidence shows that the adolescent brain is still maturing in ways that are essential for judgement, impulse control and decision-making, especially in emotional or social contexts. Due to heightened neuroplasticity, adolescents are more vulnerable than adults to negative environmental influences while, at the same time, more capable of positive change. (MACR Report, Section 2.)

There are clear links between offending behaviour and childhood adversity and trauma. Children experiencing poverty and prior victimisation are also more likely to be brought into the system. Children who are neurodivergent, have communication difficulties and/or learning disabilities are overrepresented in the criminal justice system, as are Black and minoritised children, and children with any level of social care contact are more likely to have a criminal conviction or caution. (MACR Report, pp 23, 25.)

Law should not stand still

It is encouraging that the recent Ministry of Justice white paper Cutting youth crime, changing young lives states: ‘The government will carefully consider the Bar Council’s review about whether the age of criminal responsibility remains appropriate.’

Society should have moved on since the 1800s when Charles Dickens railed at the storm cloud of unfairness that gathered over children. However, Dickens’ anger at the law and society, and the harsh treatment of children remains familiar today. England and Wales are an outlier in bringing the criminal justice system to bear on young children who cause harm.

The law should not stand still where knowledge has moved on. Protecting childhood and protecting society are not competing aims. In the long term, they are the same endeavour. The measure of a justice system lies not in how early it punishes children but in how wisely it protects their future. 

Support for raising the MACR