Presentation Transcript

1. AGE OF CRIMINAL RESPONSIBILITY Ever seen a 5 year old kid on trial? Of course not. Why not? They’re evil… There is a long-standing (500-1000 years old) agreement in most parts of the world that children are NOT to be held responsible for crimes because they’re not totally aware of what they are doing. The age at which a child can be held responsible for a crime is called the age of criminal responsibility. In Australia, the lowest age at which someone can be charged with a crime is 10 (in line with our commitment to the Convention on the Rights of the Child (CRoC). The average around the world is 13. In the United States, a lot of States have a minimum age of just 6! Why the differences?
2. AGE OF CRIMINAL RESPONSIBILITY The idea is called doliincapax, meaning ‘incapable of crime’. A child in NSW under 10 is considered to be doliincapax, meaning that they don’t understand that what they did was seriously wrong (from R v Gorrie (1919). These words are VERY important. My 3 year old son knows when he has done something naughty or that he’s being mischievous, but it takes a much more developed mind to understand that something is seriously wrong. The differences between countries (and States within countries) has developed because of 2 things: Different opinions about when children actually do become aware that their actions are seriously wrong; and Every time a kid around 10 commits a terrible crime (like murder), the victim’s family is obviously distraught, and wants the murderer to face court (to “get justice”). So, the media ends up getting involved, and we ask the same question that has been asked over and over and over – should we get rid of the principal of doliincapax? Why not?
3. AGE OF CRIMINAL RESPONSIBILITY End of ‘doliincapax’ presumption Age of Criminal Responsibility No longer a juvenile In NSW… Born 14 18 10 Rebuttable Presumption of DoliIncapax No DoliIncapax, but still a juvenile Full responsibility DoliIncapax ‘Presumption’ when you assume something is true without even having to check. ‘Rebuttable’when there is a way of refuting/proving something wrong. So, there is a presumption that a kid between 10 and 14 isn’t able to know if he’s doing something seriously wrongBUT this presumption IS REBUTTABLE (meaning that it’s up to the Prosecution to prove that the kid IS capable of knowing what is right and what is seriously wrong)
4. AGE OF CRIMINAL RESPONSIBILITY End of ‘doliincapax’ presumption Age of Criminal Responsibility No longer a juvenile In NSW… Born 14 18 10 Rebuttable Presumption of DoliIncapax No DoliIncapax, but still a juvenile Full responsibility DoliIncapax Why does it go from green to yellow gradually? If the kid is 10, the prosecution has to have an overwhelming amount of evidence to show that he’s capable of understanding that what he did was seriously wrong. The closer the kid is to 14, the easier the Prosecution’s job is to prove that he understood what he was doing.
5. AGE OF CRIMINAL RESPONSIBILITY You might already be able to see where this might raise a few questions… So, we’re gonna discuss the issues surrounding (about) the age of criminal responsibility. DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY
6. AGE OF CRIMINAL RESPONSIBILITY DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY
7. A few horrible cases first, just so you know why the debate about the age of criminal responsibility comes up every once in a while… AGE OF CRIMINAL RESPONSIBILITY Jamie Bulger(1993) (UK) These two 10 year-old kids kidnapped a 2 year old (Jamie Bulger), torturing and killing him. Because they tried to hide what they had done, and that it took them so long to do it, they were found guilty and spent about 10 years locked up. DISCUSS the issues surrounding the age of criminal responsibility R v LMW (death of Corey Davis) (1999) A 10 year old boy threw a 6 year old (who he knew couldn’t swim) into the Georges River (Macquarie Fields). He drowned. Originally, the case against him was dismissed, but there was enormous outrage in the media about it. The NSW DPP (Nick Cowdery) got around the Children’s Court and took the case straight to the Supreme Court, charging LMW with Manslaughter. The jury heard that LMW was immature for his age (more like 8, rather than 10/11) and found him not guilty in less than 3 hours. AGE OF CRIMINAL RESPONSIBILITY So you can see where the controversy comes in – Where’s the justice for the victim? Especially when the victim is a child too? And their family?
8. The effect of the Jamie Bulger case in the UK… AGE OF CRIMINAL RESPONSIBILITY 1993 – Jamie Bulger is murdered in the UK. Two 11 year-olds are found guilty and sentenced to a minimum of 10 years in jail. 1998 – The ‘New Labour’ government in the UK passes the Crime and Disorder Act 1998, which removes the rebuttable presumption of doliincapax for 10-14 year-olds, leaving the UK with one of the lowest ages of criminal responsibility in the world. 1996-2006 – There is a 550% increase in the number of juveniles sentenced to jail in the UK DISCUSS the issues surrounding the age of criminal responsibility The effect of the Corey Davis case in Australia… 1997 – Australian Law Reform Commission recommends raising the age of criminal responsibility to 14 in all States and Territories. It doesn’t happen. AGE OF CRIMINAL RESPONSIBILITY 1998 – Corey Davis dies. 1999 – LMW is charged and put on trial in the Supreme Court of NSW. The Prosecution fails to rebut the presumption of doliincapax. 2000 –The Attorney-General’s department publishes A Review of the Law on the Age of Criminal Responsibility of Children after a lot of media attention about the Corey Davis case. The decision is made to keep the rebuttable presumption of doliincapax.
9. Issue 1: 10-14 year old kids probably don’t know right from wrong. AGE OF CRIMINAL RESPONSIBILITY DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY
10. Issue 2: Has there been any change in how well children understand their actions in the past 100 years? AGE OF CRIMINAL RESPONSIBILITY DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY
11. AGE OF CRIMINAL RESPONSIBILITY So what’s going to happen? So, yeah, the rebuttable presumption of doliincapax will probably disappear in the future when a 10 or 11 year-old kid commits a horribly gruesome crime. The media will go berserk and demand action and the government will follow through (especially if it is an election year). It will get popular support because, as the Australian Law Reform Commission found in the report Young Offenders (2005), there is this nagging public perception that youth crime is “rampant” and that young people are increasingly uncontrollable, but it’s generally not true. Another option? Some lawyers have argued that it might actually just be a better idea to shift the burden of proof to the Defence (meaning that, if a 10-13 year-old is facing charges, it will be up to his lawyer to prove (on the balance of probabilities) that he didn’t understand that what he was doing was seriously wrong. Could be a good compromise, instead of losing it all together… DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY
12. AGE OF CRIMINAL RESPONSIBILITY The question of keeping, raising or lowering the age of criminal responsibility came up again in 2012. The submissions to a government inquiry suggested: DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY Age of criminal consent: 16 or 8 (SMH 2012)