Age Of Criminal Responsibility

Every criminal jurisdiction should have a minimum age below which children will be presumed not to have the capacity to infringe the penal law (United Nations Convention on the Rights of the Child, Article 40(3)(a)) and this age 'shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity' (United Nations Standard Minimum Rules for the Administration of Justice; UN, 1986).

In England and Wales the age of criminal responsibility is set at 10 years (Children and Young Persons Act 1933). In the eyes of the law, a child under that age is incapable

Handbook of Psychology in Legal Contexts, Second Edition Edited by D. Carson and R. Bull. © 2003 John Wiley & Sons, Ltd.

of committing a crime. It follows that prior to his or her tenth birthday he or she can neither be arrested nor prosecuted in the criminal courts for any act considered to be criminal. However, after a child has attained the age of 10 years, he or she is subject to the full rigours of the criminal law.

In England and Wales, until 1998, there was a presumption that a child under the age of 14 years was incapable of forming the necessary criminal intent. This presumption— known by the Latin phrase doli incapax—could be rebutted if the prosecuting authorities could prove that the child knew that the criminal act was seriously wrong as opposed to merely naughty. However, judges felt that the presumption was inappropriate and unnecessary. So it was abolished. Now there is no longer any assessment of the child's moral understanding before attributing criminal culpability. Now childhood provides scant protection from the full rigours of the substantive law, although there are procedural differences, or from a penal philosophy of retribution which underlies its application to adults.

The age of 10 years is not remarkable in comparison with other jurisdictions in the British Isles (in Scotland the age of criminal responsibility is 8 years while in the Republic of Ireland it is 7 years) but it is low in comparison with other countries within the European Union where the median age is 14 or 15 years. It is noteworthy, too, that the trend in Europe has been to raise the age: for example, from 14 to 15 in Norway, and from 14 to 18 in Romania.

Article 6 of the European Convention on Human Rights guarantees to all defendants the right to a fair hearing. It states that 'it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings' (paragraph 85). Bearing in mind these Human Rights considerations, therefore, the trial of children and young people within a full adult court context is inappropriate in relation to his or her developmental immaturity and cognitive limitations and a more appropriate youth court context should be sought in all cases to ensure that the child's human rights are not contravened and that he or she is able to participate effectively in the trial process. A recent Practice Direction (Practice Direction: Trial of Children and Young Persons in the Crown Court, 2000) suggests ways in which the trial procedure may be modified for a child defendant to promote understanding and participation. Suggestions include allowing the child to sit with his or her family and legal advisers; removal of wigs and gowns; simplification of the language used in court; and regular breaks.

Local authorities in England and Wales have a duty to safeguard and promote the welfare of children who are in need (Children Act 1989). The main agency that carries out this duty is the Social Services department. Where a child is considered to have suffered, or to be at risk of suffering significant harm and that harm is attributable to the care received from his or her parents, the local authority may institute care proceedings.

Many of the children charged with a criminal offence, whose backgrounds include experiencing very high levels of abuse, trauma and psychiatric disturbance, fulfil the threshold criteria for the making of a full care order under the Children Act 1989. In addition there is an argument, applicable to some cases at least, that offending behaviour on the part of the child represents a breakdown in parenting on the part of the parent(s). The reality is that while some of the children charged with criminal offences may be known to Social Services, very few are the subjects of interim or full care orders.

0 0

Post a comment