An Age of Complexity: Children and Criminal Responsibility in Law
| Published date | 01 August 2013 |
| Date | 01 August 2013 |
| DOI | 10.1177/1473225413492056 |
| Subject Matter | Articles |
492056YJJ13210.1177/1473225413492056Youth JusticeMcDiarmid
2013
Article
Youth Justice
13(2) 145 –160
An Age of Complexity:
© The Author(s) 2013
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DOI: 10.1177/1473225413492056
Responsibility in Law
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Claire McDiarmid
Abstract
This article examines the age of criminal responsibility in law. It argues that the fair imputation of criminal
responsibility requires understanding of a number of interlinked concepts, including knowledge of
wrongfulness, understanding of criminality and its consequences and an internalized moral appreciation of the
quality of the conduct. Taken together, alongside the child’s psychological development and lived experience,
the matter is complex. Development from baby to adulthood also involves a shift from dependence to
autonomy. The age of criminal responsibility must be set so as properly to take into account both the
underlying complexity and the acquisition of autonomy.
Keywords
age of criminal responsibility, children, criminal capacity, doli incapax
Introduction
The age of criminal responsibility as established in English law is deceptively easily
stated: ‘It shall be conclusively presumed that no child under the age of ten years can be
guilty of any offence’ (Children and Young Persons Act 1933, s. 50 as amended by
Children and Young Persons Act 1963, s. 16(1)). (The provision in Scots law is worded
identically, although the age is eight. Additionally, in Scotland, no child under 12 may be
prosecuted in court (Criminal Procedure (Scotland) Act 1995, ss. 41 and 41A(1))).
Children aged 8, 9, 10 or 11 may be referred to a children’s hearing on the ground of
having committed an offence (Children’s Hearings (Scotland) Act 2011, s. 67(2)(j)). The
principle underlying the age can also be stated succinctly: ‘[c]hildren below th[e] age are
irrebuttably presumed to be incapable of committing crime’ (Clarkson et al., 2010: 428).
Or ‘[a] person under the age of criminal responsibility cannot commit any offence’
(Gordon, 2000: 8.28).
Corresponding author:
Claire McDiarmid, The Law School, University of Strathclyde, Level 7, Graham Hills Building, 50 George Street, Glasgow,
G1 1QE, UK.
Email: claire.mcdiarmid@strath.ac.uk
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Youth Justice 13(2)
The matter of criminal responsibility is, however, rather more complicated than these
statements might suggest and this article examines some of the issues that surround the
child’s deemed inability to offend. In particular, it argues that criminal capacity – the core
set of understandings which are required as the basis on which to impute criminal respon-
sibility – is complex, a key point which must be properly recognized in setting or chang-
ing the minimum age of criminal responsibility. This, it will be contended, is because it
rests not on a simplistic, single strand, such as knowledge of the difference between right
and wrong but rather on a set of interlinked understandings, some of which the criminal
law has previously excavated, but not synthesised, in relation to the, now abolished, doli
incapax presumption. In addition, the child’s psychological development and his/her lived
experience should be taken into account. In proceeding to examine, on this basis, where
to set the age, the role played by the acquisition of criminal responsibility in the transition
from the total dependence of babyhood to the autonomy of adulthood will be particularly
scrutinized. Drawing these points together, the core argument advanced in this article is
that the ages of criminal responsibility that pertain to UK jurisdictions should be raised.
Debate in this area is sometimes characterized by entrenched views as to the relative
complexity of the concept of criminal responsibility when placed alongside the age-based
understandings associated with other developmental milestones identified in law. In other
words, it is sometimes assumed that criminal responsibility rests on such a simple moral
foundation that it is easily acquired and imputed. Justice Antonin Scalia’s dissenting judg-
ment in the US supreme court case of Roper v Simmons (543 U.S. Prelim. Print 551
2004−2005) provides an example of this in relation to homicide. (The majority decided
that the death penalty could not be imposed on anyone convicted of murder who was aged
less than 18 when the crime was committed.) Scalia said:
As we explained in Stanford, 492 U. S. at p. 361--374, it is ‘absurd to think that one must be
mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be
mature enough to understand that murdering another human being is profoundly wrong, and
to conform one’s conduct to that most minimal of all civilized standards’. Serving on a jury
or entering into marriage also involve decisions far more sophisticated than the simple deci-
sion not to take another’s life (at p. 619).
This article argues, to the contrary, that ‘sophisticated’ understandings are required before
criminal responsibility may fairly be imputed automatically on the basis of age.
The Purpose and Function of the Age of Criminal Responsibility
in Law
As a legal concept, the age of criminal responsibility is not particularly meaningful, on its
own. In Scotland, for example, the age, as such, remains eight but the vast majority of
young people (though not quite all) who offend between that age and 16 will be referred
to the children’s hearings system which is required to hold their welfare, throughout their
childhood, as its paramount consideration (Children’s Hearings (Scotland) Act 2011, s.
25). (The legislative framework permits the prosecution, in court, of any child aged 12 or
McDiarmid
147
over but only on the instructions of the Lord Advocate (Criminal Procedure (Scotland)
Act 1995, ss. 41A and 42(1)). In practice, this happens rarely.) This does not mean that the
acquisition of criminal responsibility at eight has no consequences but it does, to some
extent, mitigate these in that no disposal ordered by a children’s hearing should be overtly
punitive and there are restrictions on recording (as criminal convictions) offences admit-
ted or established through the hearings system (Rehabilitation of Offenders Act 1974, ss.
3, 5(3)(b), 5(5)(f) but also s 7 and s 8B(1A)).
The issue under consideration here is the minimum age of criminal responsibility, or
MACR. It is an absolute cut-off point, signified by a chronological age, below which
children are deemed incapable of committing crime. It constitutes a bright line signifying
the total criminal irresponsibility of the very youngest individuals. Higher ages are used,
in some jurisdictions, alongside this lowest one to provide some acknowledgment that
children develop, and may therefore become criminally responsible, at different rates.
Variants of the doli incapax presumption (discussed below), for example, indicate a period
prior to adulthood (commencing with the MACR) when young people generally are
deemed either criminally responsible or not. Evidence may be brought to rebut the pre-
sumption where an individual child-defendant’s development does not conform to the
deeming provision (see for example, Arthur, 2012: 15−17). The (absolute) age after which
young people are automatically referred to adult courts and criminal justice systems is
known as the age of criminal majority (see, for example, Hjalmarsson, 2009: 211).
The need for a normative justification of the age
The basic notion that (young) children should be treated differently from adults in terms
of being excluded from adult criminal justice systems by virtue of age is widely accepted.
In his comprehensive examination of MACRs across the globe, Don Cipriani identifies
only 19 (out of over 200) states (Bahrain, Cambodia, Cuba, Democratic Republic of
Congo, France, Luxembourg, Malaysia, Marshall Islands, Mauritius, Micronesia,
Mozambique, Nauru, Nepal, Pakistan, Poland, Solomon Islands, Somalia, Sudan and
some US states) with a MACR of zero – in other words, effectively, no age of criminal
responsibility so that all children, however young, can, potentially, be criminally liable.
(In fact, the issue is rather more complicated with some of these jurisdictions claiming a
MACR, while still imposing penal measures below that age and others seeking to assess
the child’s discernment on a case-by-case basis (Cipriani, 2009: Annex 2). Overall, this
widespread provision of a MACR is evidence of a recognition that criminal responsibility
is not appropriate for the very young.
The normative justification for this is, however, sometimes challenged on occasions
where a child who is only just over the MACR commits a grave, and widely reported,
crime. This may lead to invocation of an ‘adult crime; adult time’ mantra (see for exam-
ple, Hudson, 2009). The argument is that serious crimes characterized by, say, extreme
cruelty or a sexual element, should be categorized as ‘adult’ because such behaviour is not
‘childish’. Thus, a child who commits such an act is said to deserve to be sentenced in the
same way as an adult because the ‘adult’ quality of the act justifies this. This has stimu-
lated the use of waiver procedure in the US whereby juveniles can be transferred into the
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adult system on the basis of the gravity of their offences (Caldwell, 2011: 119–120,
129–130). In the UK, there is the 20 year-old example of the murder of two year-old
James Bulger,...
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