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Published: Fri, 02 Feb 2018
The age of criminal responsibility
THE AGE OF CRIMINAL RESPONSIBILITY
Explain and evaluate the argument that the age of criminal responsibility in England and Wales is too low.
“The law must be sensitive to human development and social change.”
– Lord Scarman, Gillick.
The United Nations Convention on the Rights of the Child (UNCRC) professes that anyone under the age of eighteen is a child. However, in the criminal law, although it is not written in statute, greater distinctions are made. Anyone under 18 is a ‘juvenile’, persons aged 14-18 are classed as ‘young persons’ and a person under 14 years old is classed as a ‘child’. So, within the Criminal Justice System (CJS) in England and Wales, this means that there is the potential to effectively differentiate between different ages and thus respond to different ages’ behaviours accordingly. However, the age of criminal responsibility being appallingly low does not allow this. Instead of assessing and recognising the different stages of development within ‘childhood’, children are being tried as adults, in adult courts, without the notion of ‘childhood’ and what it encompasses – welfare and the need for protection – sufficiently being taken into account. If it is taken into account it is inconsistent and therefore riddled with injustice.
The inherent difficulty to actually conceptualise an age where a child has or has not the capacity to act with the appropriate mens rea of an offence, our low age of criminal responsibility is simply not acceptable according to the UNCRC and it cannot seemingly be reconciled with being morally acceptable in general, especially after the abolition of the presumption that children aged 10-14 were doli incapax which at least afforded some protection to children. The fact that the law has the discretion to recognise different stages of childhood in practice, but not in our low age of criminal responsibility, needs to be called into question. With crimes such as murder being committed by children as young as ten, Professor Carolyn Hamilton, Director of the Children’s Legal Centre said: ‘…nothing can excuse such violence, but the manner in which society deals with children who commit these acts must be tempered by the fact that they remain children…'
This paper will first explain the main and common concepts which will be at the core of the discussion throughout, and then aim to discuss the problems with having the age of criminal responsibility at ten years old and why it should be increased, taking into account opposing arguments, especially that of the criminological idea that everyone who has committed a crime has done it of their own moral ‘free-will’, the advent of compulsory education and the alternatives available to respond to child criminals without having to subject them to the full extent of the CJS as if they were adults.
A short history of childhood.
A low age of criminal responsibility was not out of place in the seventeenth century as under the original common law a child was not held responsible for crimes until he was seven, and throughout this time it was clear that children aged 10-14 were presumed to be incapable of committing an offence, unless it could be proved that they knew what they did was wrong (the doctrine of doli incapax). Not pulling children under this age into the system was recognition of their state of infancy, but as soon as they reached this age their life was considerably different to the modern day child. Children were no more than “little adults”: they would dress like adults, associate with adults and would have to work long hours as soon as they were capable of undertaking a job (especially in regards to the working classes) so of course they were expected to behave morally like adults at an earlier age. The now obsolete reason for this was if they committed a crime it was down to the Christian religion’s explanation of Original Sin; children were treated the same because they had just as much chance of going to hell as adults. But this is not the case now. As society became more sophisticated, education was required, and with that came enforced dependency, and so there was an enlightenment period where childhood innocence was seen as a weakness that needed to be addressed, not Original Sin. This conception demanded that the CJS changed the way it responded to children with the objectives of recognising that children were indeed different from adults and they needed to be protected from the contamination of adult vices.
Childhood : Modern Day
With these objectives progressing over the years, including the age being eight before 1963, the age of criminal responsibility now resides at ten. With this in mind, the question must be asked of what it means to be a child in this modern era. Education lasts much longer, so dependency lasts longer. England and Wales are lucky to have become wealthy countries where it is extremely rare that anyone under eighteen must find a job so their family can eat; they are not forced into adulthood as once was the case.
It could be suggested that every person has experienced life as a child and could easily accumulate their own subjective definition where they could say at what stage they should be held responsible, but as this would be open to untruth, self-determination of responsibility is merely hopeful reverie. So the law must govern the imposition of responsibility in such a way as to provide for the circumstances, shortcomings and experiences of the individual child himself (the ways this can be achieved will be discussed below). For example, certain people could have mentally, biologically and morally ‘grown up’ extremely fast and thus they would be expected to be responsible at an earlier age, but conversely, even now another person may not have the capacity to understand that they have committed a crime at the age of eighteen. This leaves a huge gap in the system which craves the remedy of raising the age of criminal responsibility as to balance out these polar differences within the CJS. Having the age so low does now allow for latter eventuality and this is not fair.
The counter argument is that because our society now is sophisticated, children nowadays are better educated and physically more mature, and by the age of ten it is most likely that children have had at least five years education in which to gain a sound grasp of the difference between right and wrong and the consequences of one’s actions. However, the weaknesses in this argument can be somewhat quashed because compulsory education does not necessarily mean better education, and the consequences of the attribution of guilt – especially for serious offences – are so dire, it would be arguably asking too much of a child despite their education.
An “age of criminal responsibility”
For legal purposes and because of its strong implications, the concept of an age of criminal responsibility should be such that it reflects a generalised and realistic age for a person to be held responsible for a crime. It must be the portrayal of a mental, intellectual, emotional and more specifically, a moral capacity to differentiate right from wrong. It would seem having it at the age of ten is expecting far too much of a child who is arguably incapable of doing this. R. Garside of the Guardian newspaper summarises this point succinctly in that, “No child should be placed in a position where they are making far-reaching decisions about their future without appropriate adult support.”
Regarding this point, it is wise to contrast the age of criminal responsibility with the age at which it has been decided that persons are responsible enough to make other important decisions. For example, the age at which one can legally consent to having sexual intercourse is 16; drive a car at 17; marry at 18; vote at 18, and some of these could arguably said to have less serious consequences. So why then does our society allow children to be treated as criminals at such a young age with such serious implications, when one is said to only be responsible enough to merely get a tattoo when they are eighteen.
Section 16 of the Children and Young Persons Act 1963 states the age of criminal responsibility in England and Wales at ten years. All children under this age are presumed to be doli incapax (incapable of committing a crime). After reaching the age of ten however, and as Elizabeth Stokes informs us, there is nothing within the substantive criminal law regarding the attribution of guilt, which distinguishes the responsibility of young people from that of adults. And the argument is that there most definitely should be because of the natural differences between the two.
The Home Office White Paper in 1997, signalled the start of New Labour’s tough and punitive, ‘No More Excuses’ campaign by declaring that:
‘Young people who commit offences must face up to the consequences of their actions for … No young person should be allowed to feel that he or she can offend with impunity … Punishment is important as a means of expressing society’s condemnation of unlawful behaviour and as a deterrent.'
This is an explicitly punitive approach that is wholly and specifically rejecting any findings that children need to be looked at differently and it disregards the nature and psychology of childhood. It is like expecting a newborn baby to drive a car, disregarding the knowledge you have that they cannot. Every government wants to win votes by appearing to be tough on crime because that reflects the general consensus of the public. But the question is has the UK government and legal system gone too far and made their approach too tough by not realising that the laws created by adults, to govern the conduct of adults, cannot be translated onto children and also, why over ten years later have they kept this punitive approach in the light of so much criticism, wider knowledge and such a range of alternatives.
At one point, the law seemed to be making progress in that there was much discussion with reference to raising the age in the late 1960s after the Government White paper ‘Children in Trouble' (1968) along with Section 4 of the Children and Young Persons Act 1969 which would have raised the age of criminal responsibility to 14. This would have bought the England and Wales in line with the rest of Europe regarding the age of criminal responsibility, as for example, we have one of the lowest ages compared to Luxembourg and Belgium at 18, France 13, Germany 14, Finland 15, and this would have been acceptable to the UNCRC. But these positive acts of recognising childhood were never implemented and the provision was repealed anyway in 1991.
The New Labour policy introduced an unnaturally bold dividing line between criminal responsibility and irresponsibility for children who offend. This was the case even though arguments have been put forward suggesting that to criminalise and label children is very dangerous, with Deborah Orr proposing that, ‘if a child has behaved in a fashion that he or she feels he had little or no control over, and then is told this is “criminal”, then the child is being taught that his or her criminality is something over which he has no control.' The following doctrine attempted to decrease the amount of children being labelled until it was abolished by the Crime and Disorder Act 1998 and give protection to children aged between 10 and 14 years. This protection was the rebuttable presumption that children were ‘doli incapax’. Under this legal doctrine, as expounded in the case of C v DPP, in addition to committing the actus reus and mens rea of a criminal offence, the prosecution also had to prove beyond reasonable doubt that they knew what they were doing was seriously wrong, not merely naughty or mischievous. For example, Bandalli suggests that children have a very flexible approach to ownership, if one were to look at the contents of the Theft Act 1968, s.1(1) describes the crime as ‘dishonesty with intent to permanently deprive’ a concept which children might only be aware of as merely ‘borrowing.’
THE ARGUMENTS THAT THE AGE OF CRIMINAL RESPONSIBILITY IS TOO LOW
It is only sensible to consider the words of those who dedicate their lives to the study of child psychology because they ultimately have wider knowledge of what age a person should be when they can truly be responsible for their actions.
Piaget in his work, ‘The Moral Judgement of the Child' established a theory of not only the cognitive, but also the moral development of a child’s mind, précising that they cannot undertake certain tasks until they are psychologically mature enough to do so. The psychologist Kohlberg expanded on Piaget’s position, and their theories make it plain that by ten children are not capable of making moral decisions similar to that of an adult, as they have not fully learned to do so.
The theories suggest that there are 2 stages of moral reasoning (which sometimes overlap) named the heteronomous stage and the autonomous stage. At the heteronomous stage, the child is egocentric and believes the world revolves around them, and they will act depending on the severity of the outcome.
This stage continues past the age of ten, so before they reach the next stage it is unlikely that they will be aware of the severity of any outcome. Subsequently, when they are in the autonomous stage, intentions are more important than the consequences of action and should be the basis for judging behaviour, and it is then that a child should be held accountable for his or her actions, not before. The theories suggested here are, of course, non-conclusive and non-exhaustive and cannot give a precise indication of what the age should be, but at least give an insight into the questionable nature of the entire concept of an absolute age of criminal responsibility. With that in mind, the age of criminal responsibility cannot remain at ten years old because children’s mind have just not developed enough to justify the implications of being found guilty and put into a system which would label them as criminals for possibly the rest of their lives.
Abolition of doli incapax
The doctrine of doli incapax was working as a filter which recognised ‘childhood’ to stop 10 being the absolute age of criminal responsibility. Children aged between 10 and 14 years benefited from the presumption as it protected them from the detrimental effects of the enforcement of criminal law and made allowances for their young age.
However, the counter point made by Pickford questions why the opponents of abolition continue to have faith in a doctrine which has proved to be so inadequate in protecting children anyway. It could be suggested that the doctrine did not work as it was professed to as it still did not stop children being prosecuted; as the prosecution only had to prove that children knew the difference between the extreme opposites of right and gravely wrong, and not mere naughtiness and wrong.. So in practice it did not work sufficiently, but it cannot be ignored that it had very strong symbolism, which was arguably the most important aspect
The remaining faith would probably lie in the symbolism of the doctrine and not its precise application. This is because at least some acknowledgement was given to the notion of ‘childhood’ with doli incapax, differentiating a child’s treatment from that of adults. It made the police; the CPS and the judiciary stop to think about the degree of responsibility for each individual child, and doing that, however briefly, kept the childhood status in tact.
In spite of these arguments, Jack Straw said on 3 June 1998; “with great respect, we are abolishing the concept of doli incapax” and thus England and Wales saw the erosion of the policy of protection. However, this was combated with the justification that ‘removal of protection was removal of ‘excuse’ culture.' Nevertheless, supporters of the doctrine still implore the judiciary to recognise at least some protection. The recent case of R v T in 2008 it was proposed that only the presumption had been abolished and that the defence remained in tact. But this proposition was quickly flattened and children aged 10-14 would be treated in the same way as other juveniles in deciding whether to prosecute. The abolition of doli incapax was discoursed in conjunction with increasing the age of criminal responsibility, but now there has been an absolute abolition, the government has carried out one without the other, and has left a vacuum where protection should be. Therefore, what doli incapax stood for; its symbolism of protection was quashed and children are treated like adults once again.
Criminalisation and the rights of the child.
“There is little doubt that punitive imperatives have shaped contemporary policy responses to child ‘offenders’ in England and Wales.”
– Goldson (2002)
The government is simply ignoring the widespread discourse and European recommendations about the rights of children. With their apparent stubbornness, not to mention the abolition of the centuries old presumption of doli incapax, the question is why are we wedded to the extreme desire to pull children into the criminal justice system and criminalise, rather than taking the civil route which is based on the foundations of protection and welfare? Their policy has brought a large group of children under the auspices of the criminal justice system where previously they may have been successfully diverted.
This current punitive climate can be justified to an extent because people have an innate interest in punishment. Namely, they will view children as adults seeing them as autonomous beings who bear responsibility for what they do, despite their age. If one were to look at the way criminology could explain this tough approach, it would be clear New Labour projected a consensus theory argument. This is that as a society we have agreed what behaviour we will tolerate and what we will not, and they are trying to persuade the public that we should share their view and accept this as a new norm.
In the NACRO youth crime briefing as recent as December 2008, the Committee expresses concern about the findings of a survey commissioned by Barnado’s which show the negative public perception of children and their adherence to this new norm:
* 49% of people believe that children are increasingly a danger to each other and adults,
* 54% agreed that children are beginning to behave like animals,
* 35% of people feel like the streets are infested with children.
In addition to this, after the 1994 government submission to the UNCRC, Barnado’s and the NSPCC highlighted their outrage of what the government purported to be happening in England and Wales, that it did not reflect what was happening in reality, and thus decided to write their own submissions such as these, showing that the UK Government has much to answer for. R. Garside, an academic writer summarises a strong view against our current system, when he states, “We set the age of criminal responsibility too low because adult society does not have the collective capacity to imagine a system for dealing humanely with children and young people who break laws created by adults, largely to police the behaviour of adults. We prefer to punish children and young people, so relieving ourselves of the responsibility of thinking seriously about what it would mean to treat children and young people with compassion, dignity and respect.”
According to the UNCRC regarding the age of criminal responsibility, countries should “consider whether a child can live up to the moral and psychological components of criminal responsibility” and notes that if the age of criminal responsibility is set too low “the notion of responsibility would become meaningless”. The Committee has recommended State Parties not to set a minimum age of criminal responsibility at a too low level and to increase an existing minimum age to an internationally acceptable level concluding that the minimum age below the age of 12 is considered unacceptable, so without a higher age of criminal responsibility, an absence of protection, and such a punitive system can we ever ensure that the rights of children are ever being met? According to UK Children’s Commissioners’ Report to the UNCRC, although the UK has ratified the UNCRC, the Convention is not part of domestic law and remains unenforceable. Recent legislative and policy developments are in clear breach of the UNCRC as reported in the Second Report of Government to UNCRC and Concluding Comments of UN Committee on the Rights of the Child especially anti social behaviour orders (ASBOs), secure training orders, sentencing and conditions in custody for example. ASBOs expose children to ‘naming and shaming’, giving them a criminal personality before they have even begun grown up life. Even if these do not breach the Convention rights, they are arguably unsuccessful anyway, as some children, especially the higher end of the spectrum would actually be proud of having an ASBO, or as Deborah Orr suggests, they would be ‘badges of pride and perverse achievements.’
Secure Training Orders are a concern of the Committee because it means that now children 12-14 are being deprived of their liberty, which is contrary to s.37b of the Convention, which would not be the case if the age was raised.
Conditions in custody
Section 37 and 40 of the Convention are particularly aimed at the treatment of children within the CJS so it is wise to summarily observe each section as to whether the law is ensuring these rights and thus whether the low age of criminal responsibility is preventing this.
37.b: The public have a diverse perception of children in contrast with psychologists and they want to prosecute them. To prosecute and put a child through the criminal system costs between £75,000 (for a youth to be in a young offender’s institute) and £150,000 (for secure accommodation). Although it might be a generally useful deterrent to use the threat of prosecution, recently it can be seen how arbitrarily it is used (which is in breach of Art 37(b) United Nation Convention on the Rights of the Child). For example, an article in ‘The Mail Online' states that in Newark, Nottinghamshire, letters of warning have been sent out that “children face prosecution and fines of up to £100 if they annoy neighbours with ball games.”
But if the child was to be prosecuted for kicking a ball around in the street, what would this really achieve? The answer is nothing. Prosecution and custody in this respect would be equivalent to an employer paying a new employee to go through a process which they know does not work, which is obviously a waste of time for everyone involved.
The government maintains that it is providing proportionate penalties for child offending and in its report to the CRC states they ‘are keen to ensure that children are not prosecuted whenever an alternative can be found’ but the NACRO youth crime briefing successfully contests this articulating ‘even those who are diverted [away from the courts] by being dealt with reprimand of final warning, are in effect [still] criminalised.’
And so, in the shadow of sympathetic European progressiveness, New Labour, with its ‘No More Excuses’ draconian approach has conceded to the whims of the public and are practically stealing away what it is to be a child, including what they deserve and have a right to – protection, which a higher age of criminal responsibility would ensure.
Thompson and Venables – case study
The Bulger effect
A critic of what he describes as England’s “extraordinarily low age of criminal responsibility” at age 10, Mr. Jakobi attributes this comparably tougher strain of child criminalization in England and Wales as possibly an effect of the notorious homicide of the toddler James Bulger 14 years ago by two 10 year olds.
And he is not alone in this assumption, “The James Bulger case is seminal, It had a huge impact on the system” said the previous head of the Youth Justice Board, Rod Morgan, who resigned this January citing concern with breach of ASBO orders as a mechanism to unduly increase the English custodial population below age 18.
There are currently 2,878 children behind bars in England and Wales, according to a spokesperson from the Youth Justice Board, who described the situation as “a bit tight”.
“How it came about that two mentally normal boys aged 10 of average intelligence committed this terrible crime is very hard to comprehend . . .”
– Morland, J
The cases of R v. Secretary of State for the Home Department, Ex parte V. and R. v. Secretary of State for the Home Department, Ex parte T, concerned Robert Thompson and Jon Venables, both 10½ year old boys, being convicted of the murder of a two year old boy. They were only just over the age of criminal responsibility. They were sentenced to detention during Her Majesty’s Pleasure and the trial Judge; Morland J set the minimum term to be served at eight years to reflect their “extreme youth.”
This case highlights the exceptionally question of whether children should be tried in the Crown Courts, as the NACRO briefing suggests that the Crown Court is primarily an arena for dealing with adult offenders through jury trial, and children who commit grave crimes are, in large degree, processed as if they were adults. So this case shines a light on many concerns about the age of criminal responsibility.
Firstly, although most sentencing is carried out in the youth court, children as young as ten are being tried in the crown court and it is arguable that it is not place for a child.
The NACRO youth crime briefing ‘Grave crimes’, mode of trial, and long term detention,’ reports that the European Court of Human Rights (ECHR hereafter) determined that the defendants were denied a fair trial since they were unable to participate effectively in the proceedings given the nature of the court room and the intense public scrutiny saying ‘the formality and ritual of the Crown Court must have seemed incomprehensible and intimidating for a child of eleven’. This breaches Art 3 of the Convention, to have the best interests of the child as the primary consideration.
The Youth Crime Briefing reports that even after the Lord Chief Justice issued a Practice Direction (in February 2000), which gave guidance for the conduct of such proceedings and ‘calls upon Crown Courts to have regard to the welfare of the child and to avoid exposing him or her, so far as possible, to intimidation, humiliation or distress (my emphasis added),’further cases go on to breach Convention rights. This was detailed in the case of SC v UK where an eleven year old boy who did not have the intellectual, moral or cognitive capacity for his age group, had his right to a fair trial breached ‘even though the procedure adopted would have complied with the Practice Direction’.
The ECHR stated that:
‘[He] has little comprehension of the role of the jury …. Even more strikingly, he does not seem to have grasped the fact that he risked a custodial sentence, and even once sentence had been passed … he appeared confused and expected to be able to go home with his foster father.’
The Court then went on to make recommendations as to how a child with the ‘handicap’ of childhood should be processed that they should be tried in a specialist tribunal’ noting afterwards that there are at present no proposals to develop one.
Secondly, although Thompson and Venables were both 10½ at the time they committed the crime, it cannot be ignored that decisions are made due to age, and it is not easily ascertained at what moment is age relevant. It could be when the offence was committed, or at the date of conviction, and there can be a passage of time between arrest charge and sentence. The question is whether this impacts on the decisions that the courts make.
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice – The Beijing Rules.
The Beijing Rules adopted by the General Assembly in 1985, specifies in section 4.1 that the lower age of criminal responsibility “shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity”.
The commentary states that a specific approach should be taken, which is ‘whether a child can live up to the moral and psychological components of criminal responsibility’ and making explicit reference to the ‘individual discernment and understanding.’ This relates profusely to the theories that Piaget and Kohlberg propose where they have said that moral development is a continual process that occurs throughout the lifespan, and I would suggest that to fix the age at ten is to put a limit on an uncertain event, that is to say, they are severely generalising the mental capacity of children, leading to injustices in the ‘due process’ that children are entitled to have. Even if it can be argued that increasing the age would lead to net-widening of children (who may have developed moral capacity earlier) being excused for crimes, that does not displace the argument that the majority of crimes committed by children are minor, and could be prevented with concern for the individual offender and not the offence. .
In fact, the Beijing Rules state in part 11.1, ‘consideration shall be given…to dealing with juvenile offenders without resorting to formal trial’ emphasizing that, ‘this practice [will] serve to hinder the negative effects of subsequent proceedings,’ such as ‘the stigma of conviction and sentence’.
The Rules also make clear the relationship that the age of criminal responsibility must have with its other limitation counterparts; the legal age of consent, the legal age of drinking, marital status, civil majority for example. There is also the notion of the need of a higher mental intelligence, emotional and moral capacity to be responsible in respect to all of these, and this just does not sit well with having the age of criminal responsibility at ten.
Risk and Predictive Factors
In addition to disregarding the Beijing Rules, the government have actually contributed to the reason that children are committing crimes, evidenced by certain predictive factors that have led to increased youth crime in certain contexts. The Youth Offending Board maintains that anti-social behaviour and crime is not immediately down to the child’s choice, but rather the context in which they are placed. From their web page headed, ‘Targeted Prevention of Youth Crime and Anti-Social Behaviour’ they raise the policy issue of funding for a start, and reinforce that, “one of the best and most cost-effective ways to reduce youth crime is to prevent young people from getting into trouble in the first place, by dealing with the problems that make it more likely they will commit crime or anti-social behaviour.” They then proceed to list possible predictive factors such as lack of or poor education, poor family relationships (bad parenting),
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