Correct on the date of publication - 7 April 2025
Question:
Can juveniles under the age of 10 years be arrested and interviewed in respect of criminal offences? One school of thought suggests it is acceptable so as to gather together information for case conferences, but others argue that as a child under the age of 10 years cannot commit crime, no power of arrest exists.
Answer:
In law, not every person will be criminally liable for their actions. Among those exempted from criminal liability are juveniles under the age of 10 years, it being an irrebuttable presumption of law that a child under the age of 10 years cannot be guilty of any offence (section 50 of the Children and Young Persons Act 1933).
The whole object of the powers of arrest provided by section 24 of PACE is to facilitate evidence being gathered in respect of criminal offences in order that charges might be preferred and / or that the detained person's attendance at court - to answer those charges – can be secured.
It is not suggested that the arrest of every juvenile under the age of 10 years ostensibly on suspicion of having committed an offence is, in itself, unlawful. However, once the true age of such a person is discovered, no grounds for arrest and detention under PACE exist.
Under no circumstances do the provisions of section 37 of PACE (detention without charge) extend to providing the authority for juveniles under the age of criminal responsibility being detained. The grounds for detaining a person without charge detailed in section 37(2) are all to do with securing evidence and obtaining evidence by questioning, in order that such evidence might be forthcoming to facilitate a charge(s) being preferred against the detained person.
Under no circumstances does section 37(2) of PACE facilitate juveniles under the age of 10 years being detained to facilitate the gathering of information for case conferences.
If, say, an eight year old child were detained after his age had been discovered, purportedly under the authority of PACE, such detention would:-
ii. amount to false imprisonment;
iii. breach Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
iv. facilitate a claim for damages against all the individuals and the force involved in the decision making process to detain
Such a civil claim might also embrace an additional action founded on section 6 of the Human Rights Act 1998 (public authority acting in a way incompatible with a convention right).
In those exceptional circumstances where a juvenile known to be under the age of 10 years commits what would be an offence if they were aged 10 or over and depriving them of their liberty is considered necessary, the obtaining of an emergency protection order or detaining the child under section 46 of the Children Act 1989 offers the option available.
View the full Legal Q&A document here, with links to related and similar legal questions.
