Children under 12 could escape criminal prosecution

In an apparent shift, the Ministry of Justice is to include the point at which someone can be charged for a crime, currently 10 years-old, as part of a wider review of sentencing and rehabilitation policies, it emerged last night.

Just three months ago the department strongly ruled out any such change insisting that children aged ten were old enough to distinguish between bad behaviour and crime.

Officials said they will now consider a call by Barnardo's, the children's charity, to raise the bar from 10 to 12 for all but the most serious offences.

The Children's Commissioner for England and leading barristers have also called for a review amid concerns the courts are not the best place to deal with child criminals.

However, any blanket rise would cause controversy at it would mean in future the likes of Jon Venables and Robert Thompson, who were both aged ten when they killed two-year-old James Bulger, would escape conviction.

In July, Venables was sent back to jail for two years after admitting child pornography offences.

Barnardo's recommendations could offer ministers a way around that as the charity said the limit should be raised for all offences except murder, attempted murder, manslaughter, rape and aggravated sexual assault.

Martin Narey, chief executive of Barnardo's and former director general of the Prison Service, said: "It is crucial that those 10- and 11-year-olds who commit the most grave crimes are taken to court.

"Yet there is nothing to be gained from criminalising very young children for less serious offences and putting them through a court process they can barely fathom.

"In fact the repercussions are a heightened chance of further offending, more victims and unnecessary cost to the taxpayer.

"This is not to suggest that these children should not face up to the consequences of their bad behaviour. There are a range of meaningful and effective interventions, involving the whole family, which can and should be employed."

But Dee Edwards, of the crime victims group R and K Foundation, said: "Ten is the correct limit and I know children younger than that who need taking in hand.

"Just months in and this Government is going to be swayed by people. Ten is the right age and I do not see why they should change it."

The report, From Playground to Prison: The Case for Reviewing the Age of Criminal Responsibility, found that in 2008, 5,671 children aged 10 and 11 received a youth justice disposal – but only three were placed in custody.

The vast majority, 5,007, were given a reprimand or final warning.

England and Wales has one of the lowest ages of criminal responsibility in Europe.

Concerns were raised over the way children were dealt with in the criminal justice system after the conviction in May of two schoolboys, aged 10 and 11, for attempted rape on an eight-year-old girl, based on the evidence of their even younger victim.

Maggie Atkinson, the Children's Commissioner for England, has also called for the age of criminal responsibility to be raised.

In June, one of the country's leading barristers said the age should be raised to 14 to protect the "truly young".

Paul Mendelle, QC, the then chairman of the Criminal Bar Association, said that the current limit runs the risk of children being prosecuted for crimes that they are too immature to understand.

At the time, an MoJ spokesman said: "The Government believes that children are old enough to differentiate between bad behaviour and serious wrongdoing at age 10."

But responding to the Barnardo's report yesterday, a spokeswoman from the same department said: "The Ministry of Justice is currently conducting a full assessment of sentencing and rehabilitation to ensure that it is effective in deterring crime, protecting the public, punishing offenders and cutting reoffending.

"We welcome this report and will consider its recommendations as part of this process.”

A Whitehall source insisted the age of criminal responsibility was not a priority in the wider review and there were no current plans to raise the age limit.

:: The review will also re-examine the Rehabilitation of Offenders Act 1974, which sets the limit at which a conviction becomes "spent" and therefore does not have to be disclosed in background checks, such as those for employers.

There is currently a sliding scale with an upper limit where sentences of two and a half years or less are spent after ten years. Any sentence over that is never cleared.

Nacro, the crime reduction charity, called for a dramatic reduction in the limits including any sentence of four years or more becoming spent after four years.

Jonathan Aitken, the former Tory minister who was jailed for 18 months in 1999 for perjury and perverting the course of justice, backed the call for a review.

Under the current system his conviction is now spent but he added: "After 36 years, the Rehabilitation of Offenders Act 1974 is in need of reform because its limitations make it out of date and ineffective. The rehabilitation periods are also too onerous.”