The age of innocence: raising the age of criminal responsibility

By Thomas Crofts | 30 Jul 12
Children behind bars

The age at which a child can be held responsible for criminal acts and dealt with within the criminal justice system varies enormously around the world.

This is partly a reflection of the fact that systems for dealing with young offenders differ significantly. Some countries adopt a welfare-based approach where children are not punished for behaviour that would otherwise be considered a crime, but instead are provided care and support through social services. For instance, in Scotland children who are neglected or who commit crimes are generally dealt with through the Children’s Hearing system introduced through the Social Work (Scotland) Act 1968. Only rarely can a child be prosecuted with the approval of the Lord Advocate.

Other countries deal with children within a criminal justice system which is usually tempered by welfare considerations but does not rule out the possibility of punishment. Modifications are usually put in place to ensure the welfare of young people, such as measures to divert the young away from criminal proceedings (e.g. youth justice conferencing), separate youth courts, sanctions designed to support rather than punish the young offender, and the setting of an age below which children should not be drawn into the criminal justice system.

The importance of this latter measure is enshrined in the United Nations Convention on the Rights of the Child (CRC) which requires states to set a minimum age “below which children shall be presumed not to have the capacity to infringe penal law”.

In setting this requirement the Convention does not actually specify what age level is appropriate; however, the commentary on the United Nation’s Beijing Rules notes that: “The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child … can be held responsible for essentially antisocial behaviour.” More recently the UN Committee on the Rights of the Child has taken a more concrete stance on age levels. In General Comment No. 10 (2007) the Committee noted that internationally the minimum age level of criminal responsibility varied from “a very low age level of 7 or 8 to the commendable high level of age 14 or 16.” The Committee concluded “that a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable.” It went on to encourage States that have ratified the CRC to raise the minimum age level to at least 12 but preferably higher.

So how does Australian law fit within this international framework?

Australia has a criminal justice approach when dealing with children who commit offences. Most jurisdictions have youth justice conferencing schemes which aim to divert children from the criminal justice system and encourage them to take responsibility for their offending behaviour. However, children can be and are regularly prosecuted in criminal courts. Prosecution may occur if the child does not wish to attend a conference, if they are ineligible due to repeat offending, or because of the seriousness of the offence.

For criminal proceedings all Australian criminal jurisdictions have two age levels of criminal responsibility: a lower one under which a child is always presumed too young to ever be capable of guilt; and a higher one where the presumption that a child is incapable of crime (termed the presumption of doli incapax) is conditional. Children in the lower age group (currently under the age of 10) can never be dealt with in criminal proceedings but civil law measures (such as a care order) can be used where there are signs of the need for care and protection. Children in the higher age group, between 10 and 14 years old, can be convicted of criminal offences if the prosecution brings evidence to show that the presumption is wrong in a particular case. This requires proof beyond reasonable doubt that the child understood that what he or she had done was wrong according to the ordinary standards of reasonable adults.

A common misconception is that the presumption of doli incapax is a defence. It is not. The child does not need to raise this issue and bring evidence to show that they might not have had sufficient understanding. Rather, the burden is on the prosecution to bring evidence to rebut the presumption in every case, otherwise there is no case to answer and the child must be acquitted.

The evidence must show more than a simple understanding that the behaviour was naughty or disapproved of by adults. It cannot simply take the form of evidence of the commission of the act and the argument that all children know that the act is wrong. The age of the child and the type of offence are starting-points and further evidence will usually take the form of what the child says to police when interviewed. If the child is found to have understood the wrongfulness of the act and all other elements of the offence are established, the child can be convicted and a range of sanctions applied. Depending on the offence and the circumstances of the child, these sanctions do not preclude punitive measures, such as long-term detention.

From an international perspective the minimum age level in Australia exposes children to the criminal justice system at too young an age.

Aside from the sanctions that are available, the criminal justice system is still stigmatising, no matter how things are modified. Such modifications include, for instance, hearing children in a separate children’s court and barring identification of young people involved in criminal proceedings. It is because children are dealt with inside a criminal justice system that the age of criminal responsibility is of great importance in acting as a gateway to that system.

From an international perspective the minimum age level in Australia exposes children to the criminal justice system at too young an age. The UN Committee on the Rights of the Child already commented in its Concluding Observations on Australia in 2005 that it considers the age of 10 to be too low and recommends that the minimum age level be increased. Internationally, some other countries with historically similar legal systems to Australia which had even lower minimum age levels have increased these to 12 (Republic of Ireland, formerly, and Scotland, formerly eight).

In contrast, England, Wales and Northern Ireland, which also have a minimum age level of under 10 years, no longer have a conditional age period of 10 to 14. This higher level was abolished in 1998 following much media concern over the perceived high rate of offending by children, partly fuelled by the outcry over the James Bulger case in which two 10-year-old boys abducted and tortured a three-year-old child. This has led to national and international calls for England, Wales and Northern Ireland to increase the age of criminal responsibility from 10.

While the UN prefers for the minimum age level to be increased to at least 12, there is much that speaks in favour of retaining a conditional age period during which there is an individual assessment of the criminal capacity of the child. This upper age period provides a degree of protection for children in countries where there is insufficient political will to increase the minimum age level to that at which other civil responsibilities are assigned to children (16 or even 18). The advantage of a conditional age period, as presently exists in all Australian jurisdictions, is that it recognises that around the age of puberty children develop at vastly different and inconsistent rates.

Thus, if taken seriously by the courts it should protect against the conviction of children who are not developed enough to understand the wrongfulness of their behaviour, while allowing conviction of those who are so developed.

The real issue, of course, is whether the criminal justice system is the best place for dealing with childhood offending and whether a more appropriate reform might be to remove children completely from the criminal justice system.