Zenith Crime Current Awareness

Determining the age of defendants in criminal trials

24 May 2018

Christopher Machin

It might seem a straightforward task to spot who is a child and who is an adult, but this is an issue that has caused some confusion in the criminal courts. When faced with a Defendant who sports a full and luxuriant beard, we might easily assume his age to be over eighteen. However, the fact is that teenagers start puberty at different ages and progress through it at varying paces. Spotting the differences between a pre-pubescent ten-year-old and a fully-grown adult is easy. The differences between a seventeen and an eighteen-year-old are harder; you can’t cut people open and count the rings inside. The age of a defendant has a huge impact on the proceedings; it affects which court he or she will appear in and the sentences available should a guilty plea or conviction follow.

Section 99 of the Children and Young Persons Act 1933 and section 150 of the Magistrates’ Courts Act 1980 established that when a person appears before any court and it appears that they are a child or young person, the court is obliged to make enquiries to determine their age. What these enquiries might involve is not set out. Under section 164(1) of the Powers of the Criminal Courts Act 2000, the age of a Defendant ‘shall be deemed to be that which it appears to the court or (as the case may be) the Secretary of State to be after considering any available evidence.’ This is a straightforward task when the available evidence is an identity card, birth certificate or passport. However, these documents are not always available. Many asylum seekers do not even know their date of birth having been born in a country where births are not recorded. Some have never celebrated a birthday. There are others who have been coached to lie about their birth date in order to access certain legal rights or avoid deportation.

Trying to navigate through these issues is problematic and there is no clear guidance in relation to determining age in the criminal courts. Where a defendant has been charged with an offence and he or she claims to be under eighteen, where does the burden of proof lie in establishing their age? In relation to motoring offences there are well-established examples of where the burden of proof is reversed. It is easier for a driver to prove they have a licence and are insured than it is for the prosecution to prove they are not. The same might be said in terms of a defendant trying to prove their age, but not if they have arrived in the UK without a passport or ID card. Equally, what is the standard of proof in relation to this issue? Does the Court have to be sure to the criminal standard? Or is a decision reached on the balance of probabilities sufficient?

There is some case law in relation to immigration tribunals and the civil courts. The case of R (on the application of B) v The Mayor and Burgesses of the London Borough of Merton [2003] EWHC 1689 (Admin.) provides guidance to local authorities when determining the age of a person claiming to be under 18. At paragraph 22, the Honourable Mr Justice Stanley Burnton highlighted a key issue by citing the Guidelines for Paediatricians published in November 1999 by the Royal College of Paediatrics and Child Health. These state that, ‘In practice, age determination is extremely difficult to do with certainty, and no single approach to this can be relied on. Moreover, for young people aged 15–18, it is even less possible to be certain about age. There may also be difficulties in determining whether a young person who might be as old as 23 could, in fact, be under the age of 18. Age determination is an inexact science and the margin of error can sometimes be a much as 5 years either side... Overall, it is not possible to actually predict the age of an individual from any anthropometric measure, and this should not be attempted. Any assessments that are made should also take into account relevant factors from the child's medical, family and social history.’

This case also provided guidance in relation to the lawful assessment by a local authority of the age of a young asylum seeker claiming to be under the age of eighteen. All assessments by local authorities must be ‘Merton compliant’ and normally involve a face-to-face meeting with the young person. Decision-makers cannot base their judgment solely on the appearance of the individual. They must also question the young person about their background, family circumstances, and educational history, taking into account any relevant ethnic and cultural information. If the decision maker believes that the young person lacks credibility, they can ask questions to test this. If they believe that the young person is lying, they must give them the opportunity to address the matters that have led to this view. Finally, decision-makers must provide adequate reasons if they reach the conclusion that a person claiming to be a child is not a child.

This all seems quite reasonable, but is it sufficient? David Davies did not think so in October 2016 when he sparked a controversy by stating that some unaccompanied minors entering the UK as asylum seekers from Calais ‘don’t look like children’ and should undergo dental x-rays which would ‘verify their age very, very accurately.’ X-rays of the human jaw reveal the development of wisdom teeth, and thus provide some indication of a person’s age. Davies’ comments were condemned by many as a heartless vilification of migrants, and the British Dental Association questioned the effectiveness of x-rays for this purpose. In a position statement, the BDA stated that they were ‘vigorously opposed to the use of dental x-rays to determine whether asylum seekers have reached 18. This is an inaccurate method for assessing age.’ In addition, the BDA are concerned about the risk of exposing people to low-level radiation when there is no clinical need to do so. They argue that, ‘it is inappropriate and unethical to take radiographs of people when there is no health benefit for them. X-rays taken for a clinically-justified reason must not be used for another purpose without the patient's informed consent, without coercion and in full knowledge of how the radiograph will be used and by whom.’

However, R. (on the application of ZM) v Croydon LBC [2016] UKUT  559 (IAC) offers a detailed examination of the efficacy of dental analysis in the context of immigration and asylum claims. C.M.G.Ockelton (Vice President of the Upper Tribunal Immigration and Asylum Chamber) concluded at paragraph 78 that, ‘despite all the reservations, a dental tomograph may provide information making a claim extremely likely or extremely unlikely, and may identify features of assistance between those extremes.’

Another issue that arises is whether the young person can actually consent to an x-ray. Following the case of Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1985] UKHL 7, someone claiming to be under 16 can consent to medical treatment without their parents’ consent if they are believed to have sufficient intelligence, competence and understanding to fully appreciate what is involved. But what happens if they lack this? A defendant claiming to be under 16 who lacked the capacity to consent could not do so, and so an x-ray could not be undertaken to determine their age.

Until further guidance is passed down from one of the appellate courts, these are issues counsel and judges will have to wrestle with when trying to determine a defendant’s age. Despite the willingness to use dental tomography in some immigration and asylum cases, it is doubtful whether these tests would enable the criminal courts to reach a conclusion to the criminal or civil standard.

Current Awareness

By the Crime team