Date 6^th December 2012

Dear Minister

There is a clear, and growing, consensus among the practitioner, academic and policy communities that the minimum age of criminal responsibility in England and Wales should be reviewed as a matter of urgency.

Set at ten years, the age at which children are deemed to be criminally liable is – excluding the other jurisdictions within the United Kingdom – the lowest in the European Union and is well below the international average outside of Europe. This position has drawn criticism from the United Nations Committee on the Rights of the Child as constituting a breach of international children’s human rights standards.

The adoption of such a low age is also illogical given other statutory age related safeguards and regulations that apply to children: whereas a child of primary school age may be processed through the criminal courts and acquire a criminal record that, for some purposes, will remain with him or her for life, that same child cannot consent to have sex until the age of 16 years and is prohibited from driving a car until he or she is 17. Perhaps more significantly, the attribution of full culpability at such a young age runs counter to all the available evidence on children’s cognitive and emotional development. The pre-frontal cortex of the brain, for instance, which is important for impulse control and decision-making, continues to develop into the early 20s, more than ten years after the point at which children are considered by the criminal law to be fully responsible for their actions just as a mature adult.

We are aware that your predecessor, Crispin Blunt, rejected any suggestion that the age of criminal responsibility was too low, arguing that children know the difference between right and wrong at an early age. We do not deny that there is a sense in which this is true, but ethical understanding, like literacy, is not a once and for all achievement; it improves with conceptual maturity, and in the process takes on a qualitatively different nature. The publication today of a paper by the National Association for Youth Justice, sets out the compelling evidence for change and we would urge you to review the government’s position, accept the need to raise the age of criminal responsibility considerably, and initiate a wide-ranging consultation to determine how best to achieve this.

Yours sincerely,

Pam Hibbert OBE Chair of Trustees, National Association for Youth Justice

and

Dr. Maggie Atkinson Children’s Commissioner for England

Professor Sue Bailey President, Royal College of Psychiatrists

Rob Allen Director, Justice and Prisons; former Member of Youth Justice Board

Eric Allison  Prisons Correspondent, the Guardian

Barry Anderson Former CEO Communities that Care UK

Bob Ashford Wipe the Slate Clean

Mark Ashford TV Edwards Solicitors

Dr Raymond Arthur University of Teesside

John Bache JP Magistrate

Dr Gillian Baird Paediatrician

Dr Tim Bateman Reader in Youth Justice Univ of Bedfordshire

Camila Batmanghelidjh Chief Executive, Kids Company

Sue BerelowitzDeputy Children’s Commissioner for England

Jodie Blackstock Lawyer

Chris Callender TV Edwards Solicitors

David Chesterton JP Chair, Young Offenders Academy Advisory Group; Youth Court Chair

Darren Coyne Care Leavers Association

Frances Crook Chief Executive, the Howard League

Prof. Sean Duggan Chief Executive, Centre for Mental Health

Dr Hilary Emery Chief Executive, National Children’s Bureau

Barbara Esam Lawyer; Trustee, Michael Sieff Foundation

Richard Garside Director Centre for Crime and Justice Studies

Penelope Gibbs Director, Transform Justice

Roger Graef Film maker

Prof Barry Goldson Charles Booth Chair of Social Science, University of Liverpool

John Graham Chair of the Northern Ireland Review of Youth Justice

Prof Kevin Haines Head of Department of Criminology, Swansea University

Dr Richard Hester Senior Lecturer, Health and Social Care, the Open University

Erwin James Journalist

Mark Johnson Founder and Chief Executive, User Voice

Andy Keen-Downs Chief Executive, PACT

Prof Michael Lamb Professor of Psychology, University of Cambridge

Shauneen Lambe Chief Executive, Justforkidslaw

Dr Nick Lessof Paediatrician

The Earl of Listowel House of Lords

Prof Rod Morgan Formerly Chair, Youth Justice Board for England and Wales

Joyce Mosley Previous CEO, Catch 22; former Member of Youth Justice Board

Steve Myers University of Salford

Tink Palmer Chief Executive, the Marie Collins Foundation

Prof Jo Phoenix Chair in Criminology, Durham University

Prof John Pitts Vauxhall Professor of Socio-Legal Studies, University of Bedfordshire

Steven Pizzey Trustee, Michael Sieff Foundation

Joyce Plotnikoff Researcher, Lexicon Limited

Dr. Rosalyn Proops Community Paediatrician

Lord David Ramsbotham House of Lords former HM Chief Inspector of Prisons

Matthew Reed Chief Executive, the Children’s Society

Enver SolomonDeputy Chair, the Standing Committee for Youth Justice

Chris Stanley JP Magistrate

John Tencomi Chair of Trustees, Michael Sieff Foundation

Dame Clare Tickell Chief Executive, Action for Children

Paola Uccellari Chief Executive, Children’s Rights Alliance for England

Dr Eileen Vizard Consultant Child & Adolescent Psychiatrist;Honorary Senior Lecturer, Institute of Child Health, UCL

Richard White Secretary, Michael Sieff Foundation

Prof Howard Williamson University of Glamorgan former Member of Youth Justice Board

Richard Woolfson Lexicon Limited

Maxine Wrigley Chief Executive, A National Voice

Dr Joe Yates Director School of Humanities and Social Science, John Moores Univ, Liverpool

Melanie Stooks The London Criminal Courts Solicitors Association

Letting down 17 year olds under PACE? NAYJ comments on a new report on appropriate adults and offers a challenging perspective on 17 year olds in police detentionYouth justice appropriate adult services must provide for 17 year olds
There has been a long standing lobby for 17 year olds to be treated the same as other children and young people for the purposes of PACE – including with regard to the provision of appropriate adults. At present, under PACE Codes of Practice, appropriate adults (AA) are provided to two groups of detainees, juveniles (aged 10-16) and ‘vulnerable adults’ (aged 17 and above). Young people aged 17 are not treated as children when detained by the police.
The law requires local authorities to provide AAs to juveniles as a ‘youth justice service’, but there is no statutory provision giving any agency or body a duty to provide AAs for vulnerable adults. Thus, those aged 17 can be doubly disadvantaged in comparison to other young people. In practice, a minority of youth justice appropriate adult (AA) services provide for 17 year olds as well as juveniles (aged 10-16). Some areas do provide AA services to both juveniles and ‘vulnerable adults’ (aged 17 and over) but in many there are separate arrangements for each group.
The NAYJ now makes a strong case that, even under the current statutory framework, youth justice service appropriate adult schemes must provide for 17 year olds as well as juveniles. In essence, this means that although 17 year olds requiring an appropriate adult might be processed as ‘vulnerable adults’ under the ‘PACE’ Codes of Practice, the actual AA service that they receive should be commissioned and provided as a youth justice service, rather than an ‘adult’ service.

A background report from NAAN
A recently published report by the National Appropriate Adult Network (NAAN) indicates a number of concerns about appropriate adult (AA) services in England and Wales. The report can be downloaded at http://www.appropriateadult.org.uk/police-survey-2010
NAAN surveyed all police force areas using a questionnaire (not all forces responded), covering AA provisions for both juveniles (10-16) and vulnerable adults.
The results exposed a lack of accurate data regarding numbers of AA requests and the proportion that involve a ‘professional’ AA as opposed to a relative or other untrained person.
The report finds some significant areas of concern, including:
• lack of AA provision ‘out of hours’
• poor identification of mental disorder and mental vulnerability in police detention, particularly for adults
• lack of clarity regarding statutory responsibility for providing AA services for adults
• lack of independence from the police in areas where the police directly commission AA services
• apparent lack of compliance with PACE Codes of Practice regarding AA presence for identification procedures and charging procedures (the Codes of Practice could be clarified regarding the latter)
• Separate procedures/services/commissioning regarding the British Transport Police
The report makes a number of recommendations which include legislating to include 17 year olds within the ‘juvenile’ definition.
The NAYJ believes that, even without new legislation, AA services for 17 year olds should be reviewed and that a shift in perception is demanded as to the local authority’s duties.

The case for youth justice appropriate adult services to provide fully for vulnerable 17 year olds
Commentators have tended to refer to the AA anomaly as 17 year olds being ‘treated as adults’. The NAYJ presents the view that, contrary to common perception, current law indicates that those aged 17 can and should be treated as young people, and differently to adults, with regard to AA services. This interpretation of the current position could improve the lot of 17 year olds pending new legislation bringing them within the juvenile provisions (legislation which may or may not actually materialise).
The reason that 17 year olds should be provided with the same AA services as ‘juveniles’ emerges from the Crime and Disorder Act 1998. That act gives local authorities a duty to provide ‘youth justice services’. Section 38 defines, and lists, those ‘youth justice services’ and includes appropriate adults services as follows:
Section 38(4) In this section and sections 39 to 41 below “youth justice services” means any of the following, namely—
(a) the provision of persons to act as appropriate adults to safeguard the interests of children and young persons detained or questioned by police officers;
The important aspect of this is that the local authority is here being required to provide appropriate adults for all children and young persons. ‘Children and young persons’ are defined in s107 of the Children and Young Persons Act 1933 and the Children and Young Persons Act 1969 – section 70 stating that a child is under the age of 14 and that:
“young person” means a person who has attained the age of fourteen and is under the age of eighteen years;
and that
“youth offending team” means a team established under section 39 of the Crime and Disorder Act 1998.
On the other hand, the PACE Act and the Codes of Practice do indeed treat 17 year olds as adults (by not including them in the definition of ‘juvenile’). The Codes go so far as to provide different definitions of ‘appropriate adult’ – one for ‘juveniles’ (10-16 years) and one for ‘vulnerable adults’ (17 years and above).
Thus, there is some anomaly and tension to resolve. The duty on local authorities to provide appropriate adults to 17 year olds (as ‘young people’) is in primary statute, whereas the provisions of the PACE Codes of Practice fall short of that status. Bearing in mind other principles and provisions of the Children Act 1989, the Human Rights Act 1998 and the legal obligations arising from the United Nations Convention on the Rights of the Child, it becomes apparent that the duty on local authorities to provide appropriate adults to vulnerable 17 year old detained young people outweighs any provision in PACE or the Codes of Practice – particularly as the latter are in tension with, or even in breach of, children’s human rights (in this sense, the NAYJ considers it to be shameful that many YOTs and even more police forces have opposed the notion of treating 17 year olds as juveniles ).
By way of comparison, a similar situation arises with regard to the duty to provide a youth justice service to ‘children and young people’ with regard to bail and remand – but, in contrast, this has never given rise to any confusion in that such services are provided for 17 year olds by the local authority (coordinated by the YOT).
With regard to AA services to juveniles, there is some confusion about the duty to provide youth justice services. Some sources, including the NAAN report, mistakenly consider the youth offending team to carry the burden of the duty. In fact, the CDA 1998 gives the duty to provide youth justice services to the local authority – with a consequential duty on the youth offending team to ‘coordinate’ those services – as must be set out in the local authority’s ‘youth justice plan’. Whilst there is, therefore, a clear statutory duty on the local authority to provide appropriate adults for children and young people, there is no such duty upon any agency with regard to AA services to vulnerable adults. It is therefore critical to the best interests of 17 year old young people that the NAYJ position is adopted.
This interpretation of the statutory framework suggests that many of the AA service models for juveniles across England and Wales are complying neither with the law nor with children’s human rights.
The principle that should apply, even without further legislation, is that:
Local authority youth justice appropriate adult services must provide for all ‘vulnerable’ 17 year olds as well as for ‘juveniles’.
Finally, the NAYJ stresses that this principle would improve compliance with the rights of 17 year olds, but would still fall short of resolving the problem of being ‘treated as an adult’. There are many other aspects of the rights and special treatment afforded to juveniles in detention that remain denied to 17 year olds. And the custody officer must make a decision about ‘vulnerability’ before requesting an AA – it is not automatic in the way that applies to juveniles. The next chapter of a case for 17 year olds would therefore turn to Healthy Children, Safer Communities with its application of ‘vulnerability’ to all those under the age of 18 in contact with the youth justice system.