Criminal Responsibility and Children: A New Defence Required to Acknowledge the Absence of Capacity and Choice

Date01 August 2011
DOI10.1350/jcla.2011.75.4.717
Published date01 August 2011
AuthorCatherine Elliott
Subject MatterArticle
Criminal Responsibility and
Children: A New Defence
Required to Acknowledge the
Absence of Capacity and Choice
Catherine Elliott*
Abstract When children reach 10 years old they are exposed to the full
brunt of the criminal law with no defence available to them to ref‌lect their
status as children. Legal theorists have repeatedly argued that criminal
responsibility should only be imposed on individuals who have the ca-
pacity and freedom to choose how they behave. Children only have
limited personal autonomy and therefore lack this capacity and freedom
to make a genuine choice about their behaviour. They should therefore
benef‌it from a new defence which moves away from the doli incapax
emphasis on moral understanding and is available to children up to the
age of 14.
Keywords Minors; Doli incapax; Criminal responsibility; Defence
When children reach 10 years old they are exposed to the full brunt of
the criminal law with no defence available to them to ref‌lect their status
as children.1This situation has frequently been criticised,2but the law
has not been changed; in fact it has been made more severe for children
with the abolition of the doli incapax defence conf‌irmed in R v JTB.3One
reason why criticism of this area of law has not lead to reform may be
that there has been no methodical analysis to explain why it is wrong to
criminalise young children, instead there are general assertions of the
harm done to children in the criminal justice system or general refer-
ences to children’s human rights. This article seeks to f‌ill this gap by
exploring the fundamental question of why criminal responsibility
should not be imposed on children aged over 10 years old. To do this,
we need to go back to the fundamental question considered by legal
theorists about when criminal responsibility should be imposed.4In this
article it will be argued that criminal responsibility should only be
imposed on individuals who have the capacity and freedom to choose
* Senior Lecturer, City University, London; e-mail: C.Elliott@city.ac.uk. I would like
to thank Kabir Sondhi and Tom Collins for their assistance in carrying out the
research for this article.
1 Section 50 of the Children and Young Persons Act 1933 provides: ‘It shall be
conclusively presumed that no child under the age of ten years can be guilty of
any offence’.
2 See, e.g., the European Committee of Social Rights, Conclusions XVII-2 (United
Kingdom), reference period 1 January 2003 to 31 December 2004.
3 [2009] UKHL 20, [2009] 2 WLR 1088, interpreting s. 34 of the Crime and
Disorder Act 1998.
4 See, e.g., H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law
(Clarendon Press: Oxford, 1968).
289The Journal of Criminal Law (2011) 75 JCL 289–308
doi:10.1350/jcla.2011.75.4.717
how they behave. Children only have limited personal autonomy and
therefore do not have the capacity and freedom to make this choice and
there is therefore a fundamental injustice when criminal liability is
imposed on children. While the concept of childhood may be a social
concept with no f‌ixed boundaries, a 10-year-old is unquestionably in
UK society a child who is still experiencing childhood, but there is
currently no recognition of this in the criminal law. Childhood now
provides young people with very little protection from the full rigours of
the criminal law and the priority of retribution. While there were clearly
problems with the defence of doli incapax which have been well docu-
mented,5its abolition represents a move towards adultif‌ication6and
the gap left by the abolition of the old defence needs to be f‌illed with a
new defence that more accurately ref‌lects the reason why children
should be treated differently from adults. By exploring the concept of
criminal responsibility it will become clear that the historical defence of
doli incapax was fundamentally f‌lawed because it was permitting the
defence for reasons which were not at the heart of why criminal
responsibility was inappropriate for many children. This gap between
the legal requirements for the defence and the reason for denying
criminal responsibility ultimately meant the defence became disengaged
from reality and lost the support of the judges and practitioners, to the
point where it became almost routine to conclude the presumption of
doli incapax had been rebutted, with very little evidence to support this
rebuttal being required. The way forward is to establish a new defence of
being a minor which has its foundations built on the childs lack of
capacity and freedom to choose because of his or her limited personal
autonomy, which is the reason for the denial of criminal responsibility
and the intervention of the civil system instead.
Young people and the courts
In recent years, the criminal justice net for young people has widened
with such legal developments as the abolition of the defence of doli
incapax and the creation of anti-social behaviour orders, which are civil
orders, but which, if breached, give rise to criminal liability. The aboli-
tion of the defence of doli incapax was conf‌irmed by the House of Lords
in R v JTB.7This case was criticised by Francis Bennion who argued that
the decision:
should be treated as incorrect so far as it fails to recognize that in the case
of complex offences, for example forgery and certain consensual sexual
behaviour such as that engaged in by Boy A, the prosecution may still need
to establish by evidence that a defendant who is below the age of discretion
5 Laws J in the Divisional Court in C (A Minor) vDPP [1994] 3 WLR 888 declared
the presumption defunct, and though his decision was reversed on appeal ([1996]
AC 1), the House of Lords accepted that the rebuttable presumption could give
rise to anomalies.
6 L. Steinberg and R. G. Schwartz, Developmental Psychology Goes to Court in
T. Grisso and R. G. Schwartz (eds), Youth on Trial: A Developmental Perspective on
Juvenile Justice (University of Chicago Press: Chicago, 2000) 13.
The Journal of Criminal Law
290

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