Keywords: criminal responsibility age, youth offending age, young offender responsibility
In recent years the attitude and mood towards young offenders is more server, due to a wide spread public perception of mounting youth crime, and the killing of toddler James Bulger by Jon Venables and Robert Thompson, who were only 10 years old at the time. Over the past years we are seeing more and more youths engaging in criminal behaviour, some not so serious, and a few striking cases for example, the Jamie Bulger case, and the Doncaster attacks. However only 17 percent of known offenders are aged between 10 and 17, which is surprising considering how much the media report on youth crime (Elliott, Quinn, 2009). Over the past year juvenile crime rates across the continent have remained more or less stable. However, this does not mean that the problem of youth crime is insignificant. Several countries have reported a worrying trend that more young offenders are committing more violent and serious crimes. Young people, who commit crimes at a young age start with an early criminal career, are harder to reintegrate back into a normal life. This is one reason why it is necessary to discuss the problem of juvenile justice in depth (Hammarberg, 2008).
There are two different trends in Europe at the current time. One is to reduce the age of criminal responsibility and to lock up more children at younger ages and for more offences. The other trend is – in the spirit of the UN Convention on the Rights of the Child – to avoid criminalization and to seek family-based or other social alternatives to imprisonment. However in the UK there’s a debate on whether or not the age of criminal responsibility should be higher, in which I argue it should. However, the age of criminal responsibility varies greatly across the world. It ranges from 6 in North Carolina or 7 in India, South Africa, Singapore and most of the United States of America, to 13 in France 16 in Portugal and 18 in Belgium. There has recently been much talk in England and Wales, where the age is now 10, about whether this should be raised.
Britain and other countries set minimum ages at which a child or young person are allowed to make decisions without a adult or guardian’s consent for good reason. It is related to judgments about a child’s intellectual, emotional and mental maturity. The position where a child has to make far-reaching decisions about their future should never be choice, children need appropriate adult support, guidance and, in some cases, veto. Adults take responsibility for children in decision making as it is seen that children cannot make informed choices and do not have the capacity to do it themselves. The United Nations believe that the same principles should be applied to the age of criminal responsibility (Guardian). The age of criminal responsibility is the age at which it is possible to be charged with a crime and put on trial. (REFERENCE) The UN Committee suggested that twelve is a too low number on the rights of a child and has recommended that “serious consideration to be given to rising the age of criminal responsibility throughout the areas in the UK”
It is difficult to understand and defend the UK and prevailing practices in Europe for being so out on line. Other methods needs to be thoroughly explored when it comes to ensuring that children take responsibility for their own actions, by drawing what the UN Committee have commended by the positive lessons from reparation, referral orders and other restorative justice schemes for offenders.
It might also be an area where “listening to children” could pay dividends (Broadbridge, 2009).
In 1985 the General Assembly of the United Nations adopted the Beijing Rules of juvenile justice, which go further than the UN Committee on the rights of the child. The rules state that the age of criminal responsibility “shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity”. It then goes on to argue that countries should “consider whether a child can live up to the moral and psychological components of criminal responsibility” and details that if the age of criminal responsibility is set too low “the notion of responsibility would become meaningless”. On this basis the minimum age of criminal responsibility in the UK should be 16 (guardian).
It is also important to know and understand that some countries have a rule called ‘doli incapax’. It is held with an assumption that over a certain age that children can be criminally responsible, however, sufficiently mature enough for such a responsibility. If the defence team are successful then that child cannot be found guilty (Muncie, 2009). Generally speaking, there are two major issues to this debate. Firstly, at what age can you call a child ‘grown- up’ enough to understand right from wrong, and the consequences of those actions? Secondly, at what age can a child comprehend and understand the criminal justice system and trail process enough to take part in it? (REFERENCE).
Most European countries have a welfare based system in place to deal with young offenders as their age of criminal responsibility is mostly higher than England and Wales. The Criminal Justice Act 1998 abolished the doli incapax increased the tendency to treat children as if they were adults. Which can be seen in the James Bulger case as John Venables and Robert Thompson were tried in an adult court. Although a ten year old may understand what is right and what is wrong, they do not understand the implications of what they have done and what has to be as a consequence of those actions. Capacity and competence relate to age, understanding and maturity should be considered in any trial in which a child is a defendant (MaMahon, Payne, 2001). England has one of the highest conviction rates for young offenders; this may be due to the low age of criminal responsibility or the fact that we have a punitive state. Whereas in contrast Belgium on the other hand have a high criminal responsibility age with only a faction on youth offenders in custody. (NACRO, 2002)
Offenders who are under the age of 18 years old are delt with differently from adults, as it is believed that children are less responsible for their actions than adults, a wish to steer children away from further involvement in crime. Sentencing young people has always posed a dilemma: should such offenders be seen as a product of their upbringing and have their problems treated, or are they to be regarded as bad, and have their actions punished? Over the past couple of decades sentencing policy has swung between two views. In 1969, the Labour Government took the approach that delinquency was a result of deprivation, which could be ‘treated’, and one of the aims of the Children and Young Persons act of that year was to decriminalise the offending of young people.
The opposite approach was introduced by the conservatives which led to the UK having a high number of young people locked up than any other west European country, but reconviction rates of 75-80percent suggested that this was not benefiting the young offenders or the country as a whole.
Since 1982, the philosophy behind legislation has been that the sentencing of young people should be based on the offence committed and not on the offender’s personal or social circumstances, or the consequent chances of reform. (Elliott, Quinn, 2009)
In law many children do not possess the emotional maturity to be held responsible for their actions. Everyone knows that children cannot always make informed choices. It is for this reason that children are not allowed to vote in many countries and cannot consent to sex or drink alcohol. It is seen that children do not have enough life experience and more importantly they do not have the same mental and emotional abilities as adults. Children are often not aware of the consequences of their actions. It is unfair to hold children accountable for these actions as even though children know the difference between right and wrong, they often do not understand the difference between various levels of wrongdoing. However you could argue that children do know right from wrong, for example. In the abduction of Jamie Bulger in 1993, Jon Venables and Robert Thompson must have known to some degree that what they did was wrong, or they would not have lied about it and tried to cover it up. Moreover, It is important that the criminal law underlines the difference between right and wrong by punishing children and adults who commit crimes.
By criminalising children it harms their development and makes the situation even worse. Labelling a child as criminal at a very young age is less likely to lead to a better understanding of what is right and what is wrong. If the child does not understand the wrongfulness of what they have done, they may feel unjustly treated by society and rebel against them accepting the label in which society has given them, and also feel bitter towards society as a whole. The people who surround the child are more likely to be treated worse such as parents and teachers which inevitably separate them from society.In addition to this, those who are sent to prison or young offender institutes get cut off from their family and friends and can develop friendships with other criminals, they can also learn more knowledge about committing crimes before they went into prison, therefore, never really breaking free from the life of crime. All of these reactions are likely to make the child’s situation worse and increase the chance of future criminal behaviour. However criminalising children is a necessary step to show the child that those actions were wrong. Children that have committed crimes have often grown up in communities without a structure or control in their lives. The child may see drug-taking, domestic violence and criminal activity in their homes, and they may have often skipped school.
These children need to be punished as without punishment the children will never know the cost of their own actions. The children are then less likely to commit crimes in the future as they now know that if they do something wrong a punishment will follow. In addition to this, other children will be are less likely to commit crimes if they know a punishment will follow their actions.
We are not persuaded by the argument that criminalising children is the best route to rehabilitation. As the Children’s Rights Alliance for England put it, responding directly to the Minister’s comment-
‘The UK has a well-developed child welfare system that is more than capable of assessing and meeting the needs of children without them having to be charged or treated as criminals. The [JCHR] will be aware of the recent very critical joint report from eight Inspectorate and regulatory bodies into how well children are being safeguarded. Of the youth offending teams’ work with children in prison, the report concludes, “the focus was almost exclusively upon the offending behaviour of the young people, and there was little evidence of welfare needs being considered and addressed.” This should give a red signal to a government so intent on responding to children in trouble-especially the youngest ones -through the criminal justice system rather than through our child welfare system’ (Broadbridge, 2009).
It is often said that children who commit crimes are victims of circumstance, and instead of punishing children we need to address those circumstances. Studies such as (REFERENCE) show that more often than not the most vulnerable children have grown up in poverty, and have been uncared for by their parents, often skipped school, and even abused. By sending these children to young offender’s institutions, their education is harmed, and the possibility of the University of Crime, other measures should be considered. For example, in Norway, social authorities need to take action to secure a child’s development through counselling or time spent in a special care unit. The measures that are take should depend on the child’s circumstances, rather than how bad the crime was. This is more than likely to reduce the criminal behaviour of young people in the future. There could be issues to do with class in the mix here. Rich children are less likely to be criminalised as their parents will be able to afford better lawyers which will be able to deal with the situation better. However people argue that a child is more at risk if they do not receive a criminal punishment. Not all punishments are retributive; rehabilitation can be combined with the education and training that the child will receive in prison in order to integrate the child back into society. If these sanctions were not in place, it would be more difficulty for younger children to resist the temptation of assisting older criminals.
It is seen that children cannot have a fair trial. Many children often struggle to understand the trial process, which can be stressful and also have technical problems. Given the seriousness of being found guilty, it is only fair and important that people do have a fair trial and punishment is given if found guilty. It is more than likely that children do not have the concentration to follow evidence properly, therefore they may not be able to give fluent instructions to their lawyers and are misunderstood. This is a considerable injustice to the child/ children that are on trial, as if they do not understand, or potentially intimidated by the foreign surroundings and language they are not familiar with, then a grave injustice can occur. For example, in the Jamie Bulger case, thoroughout the trail process it was noted that the John Venables and Robert Thompson looked bored and bewildered by the whole process. It is argued that it is possible to make the system work for children. Australia, Singapore and the USA and many other countries have special courts for offenders under the age of 18.The design of the courts are simpler and designed to be less intimidating for a child, which allows them to be able to follow the criminal process more clearly. As long as the safeguards are in place to protect young people, it is possible for a child to have a fair trial, as long as that child is not tried in an adult court.
Societies’ understanding of childhood do not arise because of some innate nature of children child’s rights. In particular, children’s competence, to what extent a child a child can assert their legal rights and to what extent do adults interpret a child’s competence, with this political question proves the rights and policies for the child.
The history of juvenile history reflects the influential portrayals of perceived child competence.
The origins of juvenile justice along the welfare approach are based upon the belief that children’s incompetence and lack of criminal responsibility. This foundation lends itself to broad state authority to intervene in children’s lives, which in reality has often proven disastrous for children. In response to these problems, a shift in juvenile justice occurred towards the justice approach, which inevitably constructed a childhood based around the notion that children did have the mental capacity and competence to understand and have criminal responsibility The MACR notes the tipping point among tipping notions about childhood; competencies; liberty and protection rights; and the welfare justice continuum.
However in the justice approach the notion of responsibility often, if not always, serves as a trap door rather than a safeguard, in which it was originally intended.
. Instead of ensuring freedom for the state intrusion, its meaning can become distorted and may legitimise social control over children whose true responsibility is questionable. The effects of moral condemnation and punishment follow even where underlying moral responsibility is missing. At the cost of individual liberly, moral legitimacy, and justice, the public’s conscience is relieved and authorities’ effective social control is consolidated. Paradoxically, the welfare approach may appeal to different concepts of children’s rights, but neither communicates a clear role for society at large, and bother bring the weight of problems down upon individual children and families. Such inherent flaws leave both the justice approach and the welfare approach as problematic models.
We also note, as did the UN Committee, that the Government has abolished the common law principle of doli incapax (the rebuttable presumption that children aged 10-13 years are incapable of criminal intent). The effect of this has been described as follows.This means that a 10year old child, till in primary school is presumed to be as criminally responsible as a fully mature adult. This surely cannot be right. In the light of the removal of this safeguard, we recommend that the government review the effects of the low age of criminal responsibility on children and on crime. The criminalisation of young children has to be justified by very convincing evidence- it is not sufficient to assert that it is the best, or the only way to diverting them from a future of crime.