The Big Question: Should 12, rather than 10, be the age of criminal responsibility?

Why are we asking this now?

The new Children's Commissioner, Maggie Atkinson, said at the weekend that the age of criminal responsibility should be raised from 10 to 12. She told The Times: "The age of criminal responsibility in this country is 10 – that's too low. It should certainly be moved up to 12. In some European countries it's 14. People may be offenders, but they are also children. Even the most hardened of youngsters who have committed some very difficult crimes are not beyond being frightened."

Did her comments cause controversy?

Yes, but mainly because she supplemented her comments with the suggestion that perhaps Jon Venables and Robert Thompson should not have been tried in an adult court. She said: "What they did was exceptionally unpleasant and the fact that a little boy ended up dead is not something the nation can easily forget. But they shouldn't have been tried in an adult court because they were still children."

James Bulger's mother, Denise Fergus, said that Ms Atkinson should be sacked. She said that to suggest her son's killers should not have been tried in an adult court was "stupid" because they had committed "an adult crime".

What is Ms Atkinson basing her comments on?

The fact that England and Wales has one of the lowest ages of criminal responsibility in the EU. The lowest is Scotland where the age is eight. Switzerland, which is not in the EU, has a criminal age of responsibility of seven, as does Nigeria and South Africa. The rest of the EU varies between 12 and 16 although in Belgium and Luxembourg the age is 18.

Is this the first time anyone has suggested raising the age?

The age of criminal responsibility in England and Wales is 10 and has been since 1963. Before that it was eight. A 2003 UN convention called for the UK to raise the age of criminal responsibility "considerably". In 2006 the Home Office was urged to raise the age. A report by the Centre for Crime and Justice Studies said that an increasing number of children were being criminalised because of the law. Its contents were backed by the Children's Society which said it was "absolutely essential" that the age be raised to 14.

So Ms Atkinson is by no means a lone voice on the subject?

In 2001 a report by The Guardian newspaper quoted several people in favour of raising the age. Dr Ann Hagell, the co-director at the Policy Research Bureau, said: "There is no other legal or social arena where we give children complete responsibility at 10, mostly for good reason."

Frances Crook, director of the Howard League for Penal Reform, said: "If children do something wrong they should be dealt with through the care system not the criminal justice system. Children know if they have done something wrong, but they don't know the difference between various levels of wrongdoing." Professor Rod Morgan, who resigned from the chairmanship of the Youth Justice Board in 2007, has also said that he would prefer to see the age raised.

Should victims of crime influence policy?

It is sensible that those affected by a particular crime – in Mrs Fergus's case the most heinous of crimes – should be allowed to air their views on how the crime impacted upon their lives. That is why impact statements were introduced into the UK court system. They allow those affected by a crime to explain to the court and the judge how the crime has changed their lives and they can be taken into account by a judge when he is sentencing the culprit. But this is altogether different to allowing victims to shape government policy and law.

"Victim's justice" is a very dangerous idea: victims of crime, by their very nature, are not going to be able to make policy changes that are rational and impartial. Nor is there a logical link between their grief and the demands of justice. No punishment, no matter how severe, is going to bring their loved one back and so is never enough. The same goes for the age of criminal responsibility.

By asking Mrs Fergus whether the age should be raised she is effectively being asked whether her son's killers should have been punished or let off. Clearly she is going to choose the former. Alas, the demands of tabloids and law are very different.

Does that mean no child under 10 can be charged with a criminal offence?

Exactly that. If a crime is committed, no matter how serious, and the police discover that it has been committed by an under-10, even if they admit to it, nothing can be done. The law in the UK operates now on a two-tier system: either you can be tried for a criminal offence or you cannot, depending on your age. There used to be a third tier which presumed that children aged between 10 and 13 could not be tried for a crime unless the prosecution could prove that the child knew what he was doing was wrong. But that law was scrapped in 1998 by the new Labour government.

So does that mean that children aged 10 and over can be tried as adults?

They can be, as in the case of Thompson and Venables, but it is rare. Children between 10 and 17 are automatically tried in the youth courts and only if the crime is serious can the prosecution argue that the case should be moved to an adult crown court. The differences between the courts is that in a youth court the defendants have automatic anonymity and the setting is less formal – barristers and judges do not wear wigs or gowns.

Is it likely the age will be raised?

Not unless the Liberal Democrats win power any time soon. They are the only one of the three major political parties that has policy on the matter which advocates raising the age to 12. They have also said that Ms Atkinson was correct to raise the debate on the age of criminal responsibility because of Britain's status as the country with one of the lowest age of responsibility in the world and the fact that the age has remained the same for nearly 50 years.

The Labour Party distanced itself from Ms Atkinson's comments. Ed Balls, the Children's Secretary who appointed Ms Atkinson, said the comments were "ill-advised". The Tories have also said they have no plans to raise the age. Lady Butler-Sloss, the former judge who granted the killers anonymity in 2001, said: "I do not believe the government, any government of any political persuasion, could introduce this at the moment. I have great sympathy with the children's commissioner but I believe it is unworkable because I do not think the public will accept it.

The Ministry of Justice has said it does not intend to raise the age of criminal responsibility, saying it is "not in the interests of justice".

Is 10 simply too young for children to be tried in an adult court?

Yes

*Ten-year-olds barely know the difference between right and wrong, let alone legal or illegal

*It is shameful that the UK has the lowest age of criminal responsibility in the EU

*Refusing to imprison children is a worthwhile measure of civilised societies, which Britain should adopt

No

*Children who commit the most serious crimes should not be allowed to get away with it

*Raising it could remove a useful deterrent to would-be law-breakers

*By 10 children do know the difference between right and wrong, so they should be held legally responsible for their actions

m.hughes@independent.co.uk