HL Deb 10 December 1962 vol 245 cc397-411

Order of the Day for the House to be again in Committee read.

Moved, That the House do now resolve itself into Committee.—(Earl Jellicoe.)

On Question, Motion agreed to.

House in Committee accordingly.


2.42 p.m.

BARONESS WOOTTON OF ABINGER moved, after Clause 15, to insert the following new clause:

Age of responsibility

"Section 50 of the principal Act shall be amended by substituting therein the word ' twelve ' for the word 'eight'."

The noble Lady said: My noble friend the Leader of the Opposition has asked me to move this Amendment on his behalf, but I think I may say that I do so with his wholehearted co-operation and that it is purely for reasons of convenience that he is not moving it himself. I am very conscious that a number of your Lordships have heard me on this topic before. I would only remind you that if you wish, as understandably you may, to spare yourselves this experience in future all you have to do is to support this Amendment: the matter will then be closed and my voice on the matter will be silenced. I suppose that there is a general feeling in the Committee that this is in many ways the most important of all the Amendments that have been put down from this side of the House, for this Amendment, which is simple enough in itself, seeks merely to raise the age of criminal responsibility from 8, at which it now stands, to 12. Your Lordships may have heard me remark before that in fixing the age as we now do at 8, we are very much out of line with most European countries, where ages of 13, 14 and 15 are very much more frequent.

I say that in full knowledge that the age of criminal responsibility is not a precise concept, and that it can have a number of meanings. It can mean the age, as it does with us, at which a child may be held to know or to be capable of knowing the difference between right and wrong. It can mean, as it does with us, the earliest age at which a child can be brought before any kind of criminal court or be the subject of criminal proceedings. It can mean the age at which a child is subject to the penalties which may be imposed on an adult as, for instance, the penalty of imprisonment. Or it can mean the age at which a child is brought, not before a special juvenile court, but before the ordinary courts in which adults also appear. Those are at least four meanings of this term. But whichever of those meanings you take, you will find, I think, that in this country we are, as I said at the beginning, significantly out of step with most of our European neighbours.

It is natural that in those countries in which there are no special juvenile courts the age of responsibility should be higher than it is where children can be brought before juvenile courts. But even where there are juvenile courts, as in Germany, no child can be the subject of criminal proceedings under the age of 14. From the age of 14 to the age of 18 there are special courts of one kind, and from the age of 18 to 21 there are courts—again special courts—for young persons. To take an example from the opposite camp, that of Sweden, where there are no juvenile courts, a child cannot be made the subject of criminal proceedings under the age of 15 and from the age of 15 onwards children are very commonly referred to welfare administration instead of being prosecuted in the ordinary courts. There is a power to waive prosecution which is very commonly used. So whichever way you look on it, whether from the juvenile courts or not, in this day and age it is very unusual that the minimum age at which a child is held to be capable of committing a crime, and the minimum age at which a child can be brought into a criminal court of some kind, should be fixed as low as 8.

The main burden of my argument on this topic is that this is not the right way to treat small children, nor is it an effective way. It is neither right nor effective, for with small children training them in the way that they should go is an educational and not a penal process. I would argue even further that the present arrangements are likely to cause quite as much delinquency as they can hope to cure. May I ask your Lordships to visualise the whole process with a small child between the ages of 8 and 12? Suppose that this child is alleged to have committed an offence, perhaps to have stolen something from a shop—not, unfortunately, a very uncommon experience. The child is taken to the room of the manager of the shop; the police are sent for, very probably; the child is arrested, and then taken to the police station. He may be taken by police car, or he may on occasion even be taken by police van, what was commonly known as the Black Maria. He is alone at this stage. He arrives at the police station, and his parents are sent for. His parents are not always immediately available; they may well be out, and they may be at work. The child may remain alone in the police station for some hours before the parents can be mobilised and a statement taken from the child. Eventually he is pro- ably released on bail when his parents have appeared, and, very distressed, he goes home with a date to appear in a juvenile court. This may well be a child of 8 years old. When he goes to court the process begins in the waiting room, and I am not sure that more harm is not done in the waiting room than anywhere else.

I think it is of some significance that when some children were asked not so long ago to recount their juvenile court experiences, they paid more attention to the waiting room than ever they did to the court itself. They gave more space to it in their essays. In the waiting room he may have to wait again, if it is a busy court in London or another big city, a matter of some hours, and he will remain there in company with young men of rising 17 many of whom may be charged with serious offences and be quite formidable anti-social characters. He then comes into court. His court appearance, according to the nature of the case and his plea, may last anything from a few moments to perhaps an hour and a half. He is probably unrepresented and he will have to decide whether he pleads guilty or not guilty, which may be quite a difficult matter in view of the technicalities of the law. He will have to decide whether to give evidence on his own behalf or make a sworn statement or to say nothing at all. He is only, let us say, something between 8 and 12 years old. Most important of all, he will be in the room being dealt with by strangers, and children do not learn from strangers. Children learn, particularly moral lessons, as much by example as by precept—perhaps more by example than by precept—and they learn from people whom they know well, whom they respect and, usually, whom they love. They are quite mystified by strangers, even by the most sympathetic and understanding magistrates.

The Ingleby Committee referred at one point to the salutary effect of court appearance, though not in connection with these very young children. There is very little evidence that a court appearance of a very young child has a salutary effect. There is a great deal of evidence that it has a mystifying effect. A child does not understand what is going on and, owing to the inevitable delays, the taking to the station and charging, the delay before the court meets, which may be quite a long time in country areas, the whole thing becomes far too far removed from the original offence that gave rise to it. It ceases to have meaning in the child's mind; the proceedings cease to be properly related to the actual offence with which he is charged; and it is no good saying that this difficulty would be overcome if we substituted civil proceedings of the court or control type for criminal proceedings.

A great many adults—indeed, I would have said a great many knowledgeable adults—are quite puzzled as to this distinction. Only the other day I read an interesting and very knowledgeable review of a number of shoplifting cases both by children and by adults, and although the authors of this report were people who have the closest contact with the courts, I found them referring to certain civil proceedings, such as the present proceedings for dealing with children beyond control, as those for non-indictable offences. If that kind of confusion can exist in the minds of adults who are in and out of the courts, there is no hope at all that a child of 8 years will understand the difference between civil and criminal proceedings.

So that the essential thing, I am sure, is to deal with very young children under the age of 12 outside the courts altogether. After all, the numbers involved—those between the age of 8, which is the present age of criminal responsibility, and the age of 12, which this Amendment proposes—are not very large. There are about 1⅓rd million boys in this age group and no more than some 12,500 of them were in 1961 found guilty of any indictable offence. There are also about 1⅓rd million girls, and I need hardly say that the contrast is very flattering to our sex. Of the 1⅓rd million girls, fewer than 1,000 were found guilty of any offence which is dealt with in the courts; and the rate of delinquency between the ages of 8 and 12 by which I mean the number of young people found guilty of offences in proportion to the population, is lower than it is at any other age until we reach the age of 25.

Nor is it true that these children are at present taken out of the community. They are not taken out of the community. Whatever they have done—whether they have stolen; whether they have done damage, as they sometimes unfortunately do—they are not placed, even as things are, in secure institutions. We are, therefore, not proposing in this Amendment to unlock the doors and release upon the community a number of little savages who were previously kept in safe confinement. The great majority of these children are dealt with in very simple ways. They are put under the guidance of a probation officer; they are perhaps discharged conditionally; they are perhaps discharged absolutely. A very small handful are in approved schools. But fewer than 2,000 children under 14 are sent annually to approved schools, indeed fewer than 1,800, and there must be less than half that number winder the age of 12.

I must once again remind the Committee of the vast range of educational provision that we now have for difficult children which we did not have when juvenile courts were first established and the age of criminal responsibility was set, as it first was, at the age of 7 and subsequently at 8. We now have schools for the educationally subnormal; we have schools for the maladjusted, which are appropriate for the numbers of these children; boarding-school accommodation provided by local authorities in suitable cases; and we have occupational centres for those who are seriously mentally backward. We have a vast range of educational provisions. And my plea is that, in the case of the small children, we ought to view any anti-social behaviour as an educational and not a criminal problem. The education of a child needs to be looked at as a whole and not simply to hinge upon some particular instance in which he may or may not have been guilty.

One of the great drawbacks of the present procedure is that if a child is charged in court with an offence and, for whatever reason, perhaps for what to him must appear to be a technical reason, he is found not guilty of that offence, the whole of the welfare provisions of which the court is so proud—its probation service, its approved schools and so on—become inoperative because the child's career is determined by the single instance of whether he did or did not, in the eyes of the law, commit the offence with which he was charged. This constantly happens, if I may quote one example, with children who take other people's bicycles. Children take other people's bicycles rather too frequently.


Not only children.


And not only children; but I am sure the noble and learned Viscount the Leader of the House would be the first to say I was out of order if I were to discuss adults. Children constantly take other people's bicycles and when they do so they are generally very conscious that they have done wrong, but since there is no offence of taking and riding a bicycle comparable with the offence of taking and driving away a car, they cannot be found guilty of stealing a bicycle unless the court is satisfied they did not mean to put it back; and quite a number of children are aware of this. Possibly they did mean to put it back; possibly they are merely aware that this is a good defence; and, an consequence, the court, which would like perhaps to deal with a child for taking a bicycle which was not his, is obliged to give him a discharge.

All this kind of thing is mystifying, illogical and non-understandable to children and is not the right way to deal with them. The education of a child, in effect, is a whole process and, as I said just now, it is not a process to which strangers can effectively contribute. And this is an effect which, after all, in other contexts we do realise. Only a day or two ago I read in The Times of the case of a number of junior boys in Tonbridge School, who, it was said in this report, had been guilty of stealing from local shops. There was no suggestion that these children would be charged in the juvenile court, but the report said that the headmaster took a serious view of this; that the children had been severely dealt with and that they had been sent home for the rest of the term—possibly not the wisest method of dealing with them, to interrupt their education: but let that pass. The point I want to make is that for a number of our young people, for very young children, we do not contemplate criminal proceedings, but so long as other criminal cases are heard in the juvenile courts the children become, I have no doubt at all, contaminated by their experience, contaminated in the first place in the waiting room and subsequently in the court itself. With the vast and varied educational provision we have to-day I hope the Committee will appreciate that a far better way of not starting children on a career of delinquency but of turning them aside from it is to deal with them through their homes and through their schools, because it is there that the children will learn, and not by at a very early age mastering, as they now sometimes do with considerable precocity, the mysterious processes of the law. I beg to move.

Amendment moved— After Clause 15, insert the said new clause".—(Baroness Wootton of Abinger.)

3.12 p.m.


If I may intervene at this stage I think it would be for the general convenience, because this proposal was one of the more important proposals in the Report of the Committee over which I had the honour to preside. I am very glad to see my noble and learned friend the Lord Chancellor on the Government Front Bench and evidently prepared to participate in OUT discussion on this Amendment this afternoon.

As a preliminary precaution to this debate I took the step of looking up in the Library the course of the debate on the Criminal Justice Bill, 1961, when my noble and learned friend occupied the position of Attorney General and was a member of the Standing Committee which considered this Bill in the House of Commons. An Amendment was moved to raise the age of criminal responsibility. It was clearly outside the scope of the Bill, as my noble and learned friend pointed out to the Committee, but he went on to say: I agree there are some fairly strong arguments in favour of raising the age limit, but before we do that—and I am not entering into any commitment about it—there should be a careful survey of the whole field. For nearly four years I and my colleagues on what is known as the Ingleby Committee made a very careful survey of the whole field, so I think we may claim that what the then Attorney General was suggesting was then required had in fact already been done.

My noble friend, speaking as Attorney General, went on as follows: But on the alteration from the need for care or protection to the need for care or discipline, once we got that we would get into a code which we should have to consider very carefully indeed. Now we have got into a code where the words "care or control" which to me mean precisely the same thing as the words "care or discipline", have been adopted by Her Majesty's Government. So already the Government have gone quite a long way down the road which the Ingleby Committee, if I may so call it, recommended. I only hope that this afternoon we may be able to persuade them to go just a little further. Agreement to this proposal was almost unanimous in my Committee; there was one dissentient, the chief metropolitan stipendiary; but all the members who signed the Report, including the head of the Children's Division of the Home Office, wore in favour of this recommendation. I do not think, therefore, it can be said at this stage that at would be administratively impracticable or that there can be serious obstacles in the way of its adoption.

This recommendation for raising the age was, in the view of my Committee, only half of a balanced scheme, a threefold scheme designed to secure the more effective treatment of the young offender, or, as I prefer to call him, the naughty child. We, the Committee, were not prepared to recommend simply raising the age of criminal responsibility and leaving everything else as it was before. Nor could we have supported the proposal which the noble Baroness, Lady Wootton of Abinger, puts forward of leaving these naughty children entirely to the education authorities. After all, the ultimate sanction for dealing with these children, whether they be called offenders or whether they be described as being in need of care or protection, is to deprive them of their liberty, to send them to an approved school, and nobody on my Committee would have supported the suggestion that that decision should be left in the hands of schoolmasters or schoolmistresses. It is a pretty severe sanction, and a parent is entitled, we thought, to have it decided in a court of law with a right of appeal against the decision of the first court.

What was our scheme? It was first to raise the age from 8 to 12; secondly, to change the definition of a child in need of care or protection to a child in need of protection or discipline; thirdly, to enlarge the powers of the court in dealing with care or protection or care or discipline or care or control cases, call them whichever you will, so that they had a wider range of treatment open to them in the case of children brought before them under this provision. The Government have adopted the change of definition pretty well in the words which we recommended, and that change lays a firm foundation for the other changes which we desire to see, for the other two reforms, the raising of the age and the enlargement of the powers of the court in care or control cases.

The advantages which we thought would follow from the adoption of our plan were these: we thought that by raising the age there would clearly be no criminal charge brought against a child below the age of 12, and the first point I want to emphasise is that there is very great reluctance to prefer a criminal charge against a child under 12 years old. Many of these stores that display their goods on the counters and from whose counters goods are so easily stolen by children are very reluctant indeed to prefer a charge against a child unless it has stolen quite a number of times. The children very often are confirmed criminals before they ever get to the juvenile court because of this reluctance to prefer a charge. "Getting away with it" is, in my view, one of the greatest misfortunes that a child can suffer. Our system of criminal law is designed, of course, to ensure, so far as is humanly possible, that no innocent person is found guilty; but the corollary of that is that inevitably quite a large number of guilty people go scot-free. We accept that in cases of adults charged with crime. In the case of children, however, if we can get away from the conception of crime, the primary job of the juvenile court, which, under Section 44 of the Act of 1933, is to consider what is best for the welfare of the child, can be taken in a much more straightforward and clear-cut manner.

To those who object that if a civil form of proceeding is adopted, instead of a criminal form of proceeding, there is a real risk of innocent and virtuous children being committed to approved schools, all I woud say is that I cannot for a moment accept that argument. The approved school is the last resort of juvenile court magistrates. They apply or adopt it with the greatest possible reluctance; indeed, by Section 44 (2) of the principal Act, it is a course virtually forbidden for children under the age of 10. Of course in every case, whether it be one of care or control or of a prosecution, there is a right of appeal to a higher court So I cannot accept that the children will be at any greater risk than they are to-day of being unjustly deprived of their liberty if we were to adopt a civil instead of a criminal form of proceeding. None of your Lordships would wish a child of yours to come before a court at the age of 8 or 9 on a criminal charge, and the public at large to-day think, and rightly, that the law as it stands is wrong.

To reluctance to charge must be added—and the noble Baroness will confirm this—reluctance to convict or to find guilty. Therefore, when the matter reaches the court stage many children get away with it again, either because of the necessity that the charge must be proved beyond any reasonable doubt or because of the presumption of law that a child under the age of 14 is doli incapax—that is, incapable of crime. It is because of this reluctance to charge, and this reluctance to convict or to find guilty, that juvenile liaison schemes, as they are called, were invented by the Chief Constable of Liverpool, Sir Charles Martin, in the year 1949. I shall return to these liaison schemes, and to the relation between them and the age of criminal responsibility, for a few minutes before I sit down. But let it be observed that the probation service cannot come into operation until the case has reached the court stage because, as your Lordships know, the probation officer is an officer of the court.

The Government have already accepted the change of definition which we recommended. Their new definition satisfies me, and it provides means by which naughty children can be brought to court in a civil and not in a criminal proceeding. Our Committee went on to recommend, as part of a balanced whole, that wider powers of disposal or wider powers of treating these naughty children should be given in care or control cases. If your Lordships wish to see the matter set out in detail you can find it in paragraph 273 of our Report. We proposed three additions to the powers of the court in the case of children found to be in need of "protection or discipline", which were the words which we used at that time. We proposed that in the case of a child there should be the power, which the court has in the case of an offender, to commit it to a remand home for a period not exceeding one month. We went on to suggest that the powers of the court to order offenders to attendance centres (which, as your Lordships know, are places where they have to attend, forgoing their Saturday afternoon half-holiday, and go through some useful physical exercises and things of that sought) should be available also in cases of children in need of protection or discipline.

We went on to provide an additional sanction, not existing to-day, against the parents whose children are brought before the court in such a kind of proceeding. That was the power to order the parents to pay compensation for damage done by mischievous children over whom they had failed to exercise a proper control. I have an Amendment, which stands next on the Marshalled List (whether I shall move it of course depends on the answer we get to the present Amendment), in which I have embodied two of the three additional powers. I have omitted the power to order punitive detention in a remand home because over that matter there was a balanced division of opinion both among the witnesses who appeared before my Committee and among the members of the Committee itself. In order not to overload the situation today I thought that the Amendment might be more likely to gain the support of the noble Baroness, and some of her colleagues on the other side of the Committee, if I omitted from it punitive detention in a remand home. But the other two powers I think are necessary and desirable.

The first power, to order attendance at an attendance centre, is a sanction most useful against ill-disciplined children; and, after all, if the court already possesses the power to send such a child to an approved school, it is not asking much more that it should be able to deprive the child of some of its half-holidays. As regards the compensation provision which we should like to sec, every juvenile court magistrate has come across cases of children, even under the age of 8, who have set fire to haystacks, smashed cucumber frames galore, all entirely through the neglect of those children by their parents. It therefore seems to me a most desirable power for the court to have, to order the parents of the children who will be before the court to pay compensation.

One objection that might be raised to this proposal to raise the age of criminal responsibility is that there are many cases where joint charges are preferred—cases where children both above and below the age of 12 go out on a joint escapade—and it might be thought that in those cases it would be necessary for some of the children to have criminal charges brought against them because they were over 12, while others would have to be brought before the court in a civil proceeding because they were under 12. But that is by no means necessary. We have just the same dividing line to-day in the case of children of the age of 8. Children under the age of 8 can be dealt with as in need of care or protection. Children over the age of 8 can be charged with criminal offences. We get gangs of little children, some over 8 and some under 8, going out on joint escapades, and often these little urchins know so much about the law that the child under 8 is sent in to do the actual stealing while the others keep watch outside. So this will not be a new difficulty or objection, and it will be equally open to the police to bring children over 12 before the court as being in need of care or control. And children in a gang can, and in my opinion should, be brought before the court in the same type of proceeding.

Finally, I want to draw your Lordships' attention to the important bearing on the question of the age of criminal responsibility of what are known as juvenile liaison schemes, to which I have already briefly referred. There is a strong divergence of opinion about these schemes, which were started in Liverpool and later adopted in a great many of our county boroughs, and under which the police, as a rule in collaboration and co-operation with the child's parents, act in a kind of supervisory capacity to a child who has committed a first offence. Sir Charles Martin and those who followed his example are wholeheartedly in favour of the scheme. The Commissioner of Police for the Metropolis, on the other hand, was wholly opposed to it.

Perhaps I may quote just a paragraph or two from our Report. We had examined this matter rather fully, and paragraph 145 says that the Commissioner of Police and his predecessors had taken the view that the intention of Parliament…was to provide in the juvenile court system a means of dealing with young offenders in the interests of their own welfare and in a way that would prevent them from taking to a life of crime. The police would be open to serious criticism if they took upon themselves to withdraw some children from the operation of this system to be dealt with in a different way. That was the view of the Commissioner of Police. The conclusions of my Committee on this question will be found in paragraph 147, which we conclude by saying: while, therefore, we have nothing but commendation for the aims and achievements of those who have instituted and worked police juvenile liaison schemes, we are unable to recommend that the Government should encourage their general adoption. Then in paragraph 148 we say: One argument used in favour of juvenile liaison schemes is that they enable the younger child especially to avoid the stigma of appearing in court as offenders and so acquiring 'criminal records'. We think that whatever validity this argument may have had will disappear if the new procedure that we recommend is introduced, so that younger children who have committed acts of delinquency will appear in court as in need of protection or discipline instead of being charged with a criminal offence. Your Lordships will therefore see that this tremendously important question of the future of juvenile liaison schemes is very closely tied up with the future age of criminal responsibility; and if the proposal to raise the age of criminal responsibility were adopted, then the probation service and the other skilled social agencies would come into the picture at a much earlier stage. This is one more powerful argument for adopting this long overdue reform. I hope that this debate will show the Government how earnestly those of us who have studied this matter believe that it cannot now be shelved.


AS this debate is obviously going on for at least two more speakers, it may be convenient now if I move that the House do resume in order to allow a statement to be made on fluoridation. That will enable my noble and learned friend on the Woolsack, in due course, to reply to the debate. I beg to move.

Moved, That the House do now resume.—(Viscount Hailsham.)

On Question, Motion agreed to, and House resumed accordingly.