ABSTRACT
The police have no powers to arrest children under the age of 10. The law conclusively presumes that children under the age of 10 cannot be guilty of a criminal offence (s 50 of the Children and Young Persons Act 1933). This has the following consequences:
• a child under the age of 10 years cannot be prosecuted in a court in respect of a criminal offence; but
• the police have powers to take them into police protection for up to 72 hours where ‘there is reasonable cause to believe they may otherwise be likely to suffer significant harm’;
• where the child has been involved in wrongdoing the police and/or social services may informally warn the child’s parent or guardian;
• commence care proceedings under s 31 of the Children Act 1989;
• make an application for an emergency protection order under ss 44 and 45 of the Children Act 1989;
There is a rebuttable presumption that children aged between 10 –13 years old cannot commit a criminal offence. This is known as doli incapax which means incapable of crime. The rule presumes that such a child is incapable of having sufficient understanding to distinguish between right and wrong and is incapable of forming the necessary mental state to commit the crime (ie the mens rea).
