Abstract

Section 50 of the Children and Young Persons Act 1933 states that the minimum age of criminal responsibility in England and Wales is 10 years of age. 1 The provision has been the subject of considerable criticism, particularly since the rebuttable presumption of doli incapax was abolished in 1998. 2 For example, the United Nations Committee on the Rights of the Child believes that the age of criminal responsibility is ‘unacceptably low’ and has urged policymakers to increase it to at least 14 years of age. 3 Like many other proponents of law reform, the Committee believes that the low age is at odds with recent scientific research which demonstrates that children, particularly those below the age of 14, are ‘unlikely to understand the impact of their actions’. 4 The Committee states that this is because the rapid brain development which occurs during adolescence ‘affects risk-taking, certain kinds of decision-making and the ability to control impulses’. 5 Much of the extant scholarship also claims that scientific research, particularly in the emerging field of neuroscience, demonstrates that the presumption of capacity embodied in section 50 is flawed and is in need of reform. Furthermore, proponents of law reform often argue that the minimum age of criminal responsibility treats children as ‘fully responsible’ from 10 years of age. 6

Whilst there is now a considerable body of literature which contends that children above the minimum age of criminal responsibly lack the capacity to be deemed criminally responsible, there exists no singular body of work which critically considers whether such scholarship provides an objective basis for reforming section 50. The thesis therefore seeks to make an original and substantial contribution to the field of study by filling this significant gap in the existing scholarship. Furthermore, the thesis advances original recommendations as to how limitations of the existing scholarship could be addressed.

1 Children and Young Persons Act 1933, s50.
2 Crime and Disorder Act 1998, s34.
3 United Nations Committee on the Rights of the Child (2019), General comment no. 24, para 22. Available at: https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-24-2019-childrens-rights-child, accessed on 08 July 2024.
4 Ibid.
5 Ibid.
6 For example: ATH Smith, 'Doli Incapax under Threat' (1994) Cambridge LJ 426, 427 ,Tim Bateman ‘Criminalising children for no good purpose: The age of criminal responsibility in England and Wales’ [2012] National Association for Youth Justice Campaign Paper. Available at: https://thenayj.org.uk/campaigns-and-publications/, accessed 03 March 2025, Kathryn Hollingsworth ‘Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights’ (2013) 76(6) Mod. L. Rev. 1046, and Nicola Wake, Ray Arthur, Thomas Crofts and Sara Lambert, ‘Legislative Approaches to Recognising the Vulnerability of Young People and Preventing Their Criminalisation’ (2021) PL (Jan) 145.