AimsAfter the session students will be able to:Establish a definition for the age of criminal

responsibility Describe rule of doli incapaxExplain the reasons for and against the

abolition of the rule

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

HistoryPre Norman Laws of Ine 8th Century = 10Laws of Athelstan 10th Century = 12Bractons 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

HistoryChildren and Young Persons Act 1933 = 8

yearsCriminal Justice Act 1963 = 10 yearsChildren and Young Persons Act 1969 =

suggested an amendment to raise to 14 years of age but this did not become law

Who is responsible for those under 10?Crime and Disorder Act 1998 – child safety

ordersBreach of curfewCommitted what would have been a crime if

they were 10 or over

= suggestion that the age of criminal responsibility has been eroded

Group task 2: In pairs identify what you think are the different

ages of criminal responsibility for these different countries

England and WalesScotlandFranceGermanyItalyThe NetherlandsSweden

Minimum Age of ResponsibilityEngland and Wales: 10 – 17 yearsScotland: 8 – 16 or 18 if already under

supervisionFrance: 13 – 18Germany: 14 – 17Italy: 14 – 18The Netherlands: 12 – 18Sweden: 15 – 21 (under 18 = ‘child’;

under 21 = juvenile)

Criminal Justice and Licensing (Scotland) Bill38 Prosecution of children(1) The 1995 Act is amended as follows.(2) After section 41 insert—“41A Prosecution of children under 1210 (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 whichwas 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 or15 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) isrepealed.

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 againstWhat do you think

those maybe

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)

Children and Young Persons Act 1969U-14s not to be referred to juvenile court

solely on grounds of committing offencesCare 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

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) establishedYouth 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

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)

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

Crime and Disorder Act 1998 (4)Significant points (cont’d)

Responsibility, e.g. abolition of doli incapax assumption (10-13 yr olds)parenting orderschild curfewsASBOs

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

doli incapaxSo Prosecution would need to prove BEYOND

REASONABLE DOUBT:1) Actus Reus2) Mens Rea3) that the child knew that what they were

doing was SERIOUSLY WRONG

doli incapaxAt common law a child below 7 was

considered doli incapaxAt common law a child between the age of 7-

14 was PRESUMED doli incapax They were incapable of identifying right from

wrongTherefore lacked any criminal intent

doli incapaxBUT….

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

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.

Why did the presumption exist?Protect children from suffering the full extent

of the law (death penalty at the time)

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 127It is for the court to decidedAn admission from the child to the police that

they knew what was wrong would be admissible

How do we apply the presumptionC (a minor) v DPP [1994] 3 All ER 190Mr 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?

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

BUT…….

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

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 1998Child aged 10 can now be considered as legally

responsible for their actions as an adult

= completely responsible 10 +=completely irresponsible 9 and below

Bandalli (1998)Critical of this approach:

No understanding of childrenMakes childhood irrelevant to criminalisationPresumption operated in a manner ‘ to protect

and shield the child from the damaging criminal justice system

Defence of doli incapaxDPP v P [2007] EWHC 946Smith 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 815Latham LJ: defence abolishedR v JTB [2009] UKHL 20HL: both defence and presumption are 2

different things and s34 of the CDA 1998 abolished both

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 actionsIf 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

Is this a punitive or welfare oriented approach?Argument that it is punitiveDPP 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

International PerspectiveUN Convention on the Rights of the Child –

Article 40 Reasonable minimum age

Beijing RulesBear in mind their emotional, mental and

intellectual capacityUN Committee on the Rights of the Child

Concerned about the abolition of doli incapaxECHR in V and T v UK (2000) 3 EHRR 121

10, not so young as to differ disproportionately to the rest of Europe

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

Summary