Criminal Age of Responsibility

1. Criminal Age of Responsibility

2. Aims After the session students will be able to: • Establish a definition for the age of criminal responsibility • Describe rule of doli incapax • Explain the reasons for and against the abolition of the rule

3. What do we mean by age of criminal responsibility? • Group task 1: in groups provide a definition

4. History • Pre Norman Laws of Ine 8th Century = 10 • Laws of Athelstan 10th Century = 12 • Bractons 13th century treatise = should be protected from responsibility due to their ‘harmless intention’ • Pre Norman age limits in 15th century lowered to 7 • Once a child hits 7 then he/she could be held responsible

5. History • Children and Young Persons Act 1933 = 8 years • Criminal Justice Act 1963 = 10 years • Children and Young Persons Act 1969 = suggested an amendment to raise to 14 years of age but this did not become law

6. Who is responsible for those under 10? • Crime and Disorder Act 1998 – child safety orders • Breach of curfew • Committed what would have been a crime if they were 10 or over = suggestion that the age of criminal responsibility has been eroded

7. Group task 2: In pairs identify what you think are the different ages of criminal responsibility for these different countries • England and Wales • Scotland • France • Germany • Italy • The Netherlands • Sweden

8. Minimum Age of Responsibility • England and Wales: 10 – 17 years • Scotland: 8 – 16 or 18 if already under supervision • France: 13 – 18 • Germany: 14 – 17 • Italy: 14 – 18 • The Netherlands: 12 – 18 • Sweden: 15 – 21 (under 18 = ‘child’; under 21 = juvenile)

9. Criminal Justice and Licensing (Scotland) Bill 38 Prosecution of children (1) The 1995 Act is amended as follows. (2) After section 41 insert— “41A Prosecution of children under 12 10 (1) A child under the age of 12 years may not be prosecuted for an offence. (2) A person aged 12 years or more may not be prosecuted for an offence which was committed at a time when the person was under the age of 12 years.”. (3) In section 42 (prosecution of children), in subsection (1)— (a) for “No child under the age of 16 years shall” substitute “A child aged 12 years or 15 more but under 16 years may not”, (b) for “his instance” substitute “the instance of the Lord Advocate”, and (c) for “a child under the age of 16 years” substitute “such a child”. (4) In section 234AA (antisocial behaviour order), in subsection (2), paragraph (b) is repealed.

10. Scotland example: Reasons for • ‘strikes a balance between the age a young person understands that their behaviour is harmful and their ability to understand court proceedings’ • CHS is the best place…. Reasons against • What do you think those maybe

11. Too young to be a criminal? “In the UK, our notions about criminal responsibility are meaningless. 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 should mean to treat children and young people with compassion, dignity and respect.” Richard Garside (The Guardian, 5th February 2009)

12. Children and Young Persons Act 1969 • U-14s not to be referred to juvenile court solely on grounds of committing offences • Care and protection proceedings in cases where care a ‘good parent’ might give was absent • Criminal proceedings against juveniles 14-16 yrs only after consultation between police and social services • Custodial and Attendance Centre sentences limited and replaced by intermediate treatment (educational and social measures) • CYPA 1969 signified move to welfare approach

13. Crime and Disorder Act 1998 (1) • Shift during 1990s back to ‘populist punitiveness’ (see Newburn 2002) • ‘It shall be the principle aim of the youth justice system to prevent offending by children and young persons’ S. 37 CDA 1998 • Youth Justice Board (YJB) established • Youth Offending Teams (YOTs) created to work with offenders on non-custodial penalties – move to ‘intervening’ rather than ‘diverting’ • Restructuring of non-custodial penalties available to youth courts

14. Crime and Disorder Act 1998 (2) [The CAD 1998] “has a central objective to prevent offending by children and young people…. addressing offending behaviour; with early intervention on the basis of risk assessments related to known criminogenic factors; with the systematic use of evidence-based practice; with reparation and, therefore, the needs of victims; and with the promotion of crime prevention measures.” Holdaway et al (2001)

15. Crime and Disorder Act 1998 (3) Significant points • Prevention of offending (and re-offending) • Reparation – sentencing should enable young offenders to understand the harm done to others (hence restorative justice) • Efficiency – ‘fast-tracking’ of cases and statutory time limits

16. Crime and Disorder Act 1998 (4) Significant points (cont’d) • Responsibility, e.g. • abolition of doli incapax assumption (10-13 yr olds) • parenting orders • child curfews • ASBOs

17. doli incapax • Children did not become FULLY criminal responsible when they reached the age of 10 • ONLY held responsible if the prosecution could prove that the child knew that what they were doing was SERIOUSLY WRONG

18. doli incapax • So Prosecution would need to prove BEYOND REASONABLE DOUBT: • 1) Actus Reus • 2) Mens Rea • 3) that the child knew that what they were doing was SERIOUSLY WRONG

19. doli incapax • At common law a child below 7 was considered doli incapax • At common law a child between the age of 7-14 was PRESUMED doli incapax • They were incapable of identifying right from wrong • Therefore lacked any criminal intent

20. doli incapax • BUT…. • Prosecution can prove beyond reasonable doubt that the child, at the time of the alleged act, was aware that what they were doing was seriously wrong as opposed to being naughty

21. Knowing right from wrong……. • How do we test for this? • Difference between good and evil (Blackstone) • Not just wrong but GRAVELY wrong or SERIOUSLY wrong (Gorrie (1918) • Moral test (Glanville Williams) • So this is a REBUTTABLE presumption but prosecution must prove BRD.

22. Why did the presumption exist? • Protect children from suffering the full extent of the law (death penalty at the time)

23. How do we apply the presumption? • A v DPP [1997] Crim LR 125 • That the child knew that something was ‘seriously wrong’ could not be inferred from the mere commission of an offence it could be inferred from the surrounding circumstances (i.e. threats, distress of victim) • L (A Minor) v DPP [1997] Crim LR 127 • It is for the court to decided • An admission from the child to the police that they knew what was wrong would be admissible

24. How do we apply the presumption • C (a minor) v DPP [1994] 3 All ER 190 • Mr Justice Laws (High Court)– ‘doli incapax is no longer part of English Law • ‘whatever may have been the position in an earlier age, when there was no system of universal compulsory education and when perhaps children did not grow up as quickly as they do nowadays, this presumption is a serious disservice to our law’ • TASK 3 – discuss in groups, do you agree?

25. Mr Justice Laws • ‘out of step with the general law’ • ‘outdated and unprincipled presumption’ • ‘capable of giving rise to the risk of injustice’ • BUT…….

26. House of Lords disagreed • ……reinstated the presumption and said that only statute can only decide on the doli incapax rule • However decided on issues around the separation of powers rather than the merits or de-merits of the rule

27. White Paper ‘No More Excuses’ (1997) • …’doli incapax is contrary to common sense’……it is not in the interests of justice or victims or young people themselves……’ • Led to s34 Crime and Disorder Act 1998 • Child aged 10 can now be considered as legally responsible for their actions as an adult • = completely responsible 10 + • =completely irresponsible 9 and below

28. Bandalli (1998) • Critical of this approach: • No understanding of children • Makes childhood irrelevant to criminalisation • Presumption operated in a manner ‘ to protect and shield the child from the damaging criminal justice system

29. Defence of doli incapax • DPP v P [2007] EWHC 946 • Smith LJ suggested obiter that s34 had abolished presumption and retained defence (i.e. children could use it as a defence) • R v T [2008] WCWA Crim 815 • Latham LJ: defence abolished • R v JTB [2009] UKHL 20 • HL: both defence and presumption are 2 different things and s34 of the CDA 1998 abolished both

30. How did they know? • Outright abolition of the presumption is the simplest approach (No More Excuses, 1997) • Sends a clear message to children 10 and over that they would be responsible for their actions • If they retained a defence then it would be used a lot and would make it difficult to prosecute those under 14 • Looked at White Paper etc for clarification as to the intention of Parliament with s34

31. Is this a punitive or welfare oriented approach? • Argument that it is punitive • DPP v P and R v T – young defendants with impaired mental health can face the full rigours of the criminal justice system • Children are still developing – how do you judge the age at which someone can make a moral judgement

32. International Perspective • UN Convention on the Rights of the Child – Article 40 • Reasonable minimum age • Beijing Rules • Bear in mind their emotional, mental and intellectual capacity • UN Committee on the Rights of the Child • Concerned about the abolition of doli incapax • ECHR in V and T v UK (2000) 3 EHRR 121 • 10, not so young as to differ disproportionately to the rest of Europe

33. Why the differences? • Need to understand differences between adults and children in their ability and capacity to make judgements • Look at other European countries with higher age of responsibility and lower offending

34. Summary