Deborah Orr: Drive down the age of criminal responsibility and all you end up with is younger criminals

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The Independent Online

Figures released by the BBC under the Freedom of Information Act tell us that children too young to be prosecuted were suspected of being responsible for nearly 3,000 crimes last year. David Davis, the shadow Home Secretary, is of the opinion that this is another piece of evidence suggesting that the age of criminality is becoming younger and younger. This revelation, it has been further reported, may reignite the debate on the age of criminal responsibility. Good. It's a debate worth having.

The age of criminal responsibility in England, Wales and Northern Ireland was last lowered, to 10 from 14, in 1998. The wisdom behind this change was that straightforward "common sense" dictated that children of 10 were capable of understanding what was right and what was wrong, and facing the consequences of their immoral choices. If it is true that since this time more under-10s have been committing criminal acts, then "common sense" ought to tell us that lowering the age of criminal responsibility has not helped to steer young children away from choosing to commit crime. Certainly, it has not helped to deter many children from criminality, since although the steepest rise in youth custody took place between 1993 and 1997, the number of children in custody has remained stubbornly high since then.

The most starkly obvious example of the way in which punitive interventions can drive down the age of criminality can be seen in the trajectory of gun crime in recent years. Even though the recent wave of gun crime in Britain has decreased since its 2003 peak, it has during the same period become a more worrying and more visible phenomenon, simply because, even though the perpetrators and victims of such crimes are fewer, they are also younger.

Why has this distressing development occurred? In part, at least, it is because the introduction of a five-year mandatory prison sentence for all those found carrying guns applies only to those over 18. People under 18 have become an attractive proposition as couriers of guns for older criminals, because they can do the dirty work of more mature criminals without attracting the same risks. And while the "common sense" of the Crime and Disorder Act 1998 may dictate that an 11-year-old is just as able to understand the gravity of the crime of having or using a gun, a more common strain of common sense suggests that many 11-year-olds are not that great at controlling their destructive impulses, and the law shouldn't, even by accident, contain penalties that result in younger and younger people obtaining guns.

A breakdown of the figures on the criminal acts of under-10s confirms that "destructive impulses" are behind a lot of them, with nearly half of the crimes being not acquisitive or crimes against people, but acts of criminal damage. Again, while it is reasonable to expect that a well-adjusted and well-educated 10-year-old should not be indulging in such acts, many parents will admit that although their child of 10 or 12 or 14 is capable of starting to stamp around slamming doors because they've been told they have to tidy up their bedroom, they understand that this is not likely to remain their child's lifelong response to such requests. We make allowances for the minor antisocial behaviour of our own children, because we understand that however irritating their stroppiness may be, they are young and it is "a phase".

But telling a child they are a criminal because they have committed criminal acts, flies in the face of what good parents regard as common sense. We see that rage in our own children comes of immaturity. We understand that they are not fully in control of their responses. We know that it isn't reasonable to expect them to have fully mastered their impulses until they are round about their mid-teens – and even then they're not always entirely logical in their behaviour.

All the evidence suggests the children who are pushing far beyond that boundary, and behaving criminally, don't actually have the coping mechanisms that even "normal" children have at their disposal. The poorly parented, the poorly educated, the poorly socialised – they are the ones who are running amok and creating havoc. How can we tell them it is more incumbent upon them to understand right from wrong than children who have been taught right from wrong much better? If a child is behaving in that way, then "common sense" ought to tell us that it is most probably because right and wrong has not been adequately taught to them, not because they are definably deviant.

Decisive labelling of young people involved in delinquency defines them as problematic, in a way most people would recognise to be too heavy handed. Further, it actually teaches children a very dangerous thing. If a child has behaved in a fashion that he or she feels he had little or no control over, and then is told this is "criminal", then the child is being taught that his or her criminality is something over which he has no control. How can this help a child to change his ways? It cannot. Instead, it can only suggest that an attempt to change is futile.

The younger you label a child a criminal, the less likely they are ever to stop being one. On the contrary, as has been illustrated in the phenomenon whereby antisocial behaviour orders become badges of pride, a child can cling to any label as being a perverse achievement. The poor sense of identity that can cause aberrant behaviour hardens into an identity in itself. A criminal becomes something powerful and fearsome to be, and if your big brother is a criminal then you might fancy being one as well.

What children need to be taught is that if they carry on behaving in the way they do, then they will become criminals, not that this is what they have become already. They don't need to be excluded from school, and put under the mandatory day-long care of the people who have done such a bad job with them. They need to be placed in environments that address their difficulties with telling right from wrong, with controlling their behaviour and with understanding that while it may feel good to damage other people or other people's belongings, none of this will do anything but make things worse for them.

Letting the criminal justice system have the lead in deciding what should happen to children committing criminal acts is not a good thing, for all of the above reasons. But placing them in educational, or even psychiatric, environments that address that behaviour cannot, in some cases, happen too early. I'm wary of labelling children too early, but I find it telling that in Finland, where the age of criminal responsibility is a civilised 15, residential units catering to children with mental health problems offer 4,000 places, while in Britain the number is less than 1,200, even though our population is 10 times the size of Finland's.

It's about time we realised that getting disruptive children off the streets, and away from the people whose lives they plague, can be done far more efficiently if it is done with the intention of helping them instead of with the intention of punishing them.

d.orr@independent.co.uk

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