Protections for children before the law: An empirical analysis of the age of criminal responsibility, the abolition of doli incapax and the merits of a developmental immaturity defence in England and Wales
| Published date | 01 September 2016 |
| DOI | 10.1177/1748895816632579 |
| Author | Kate Fitz-Gibbon |
| Date | 01 September 2016 |
| Subject Matter | Articles |
Criminology & Criminal Justice
2016, Vol. 16(4) 391 –409
© The Author(s) 2016
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DOI: 10.1177/1748895816632579
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Protections for children
before the law: An empirical
analysis of the age of criminal
responsibility, the abolition of
doli incapax and the merits of
a developmental immaturity
defence in England and Wales
Kate Fitz-Gibbon
Monash University, Australia
Abstract
The law’s response to child offenders has long animated debate and sparked doctrinal law reform
in England and Wales. The provision of legal protections for children in trouble with the law has
been central to such debates, and questions surrounding the age at which a child should be held
criminally responsible remain a contested area of law both domestically and internationally. In
1998 England and Wales abolished the presumption of doli incapax and retained the minimum
age of criminal responsibility at 10 years old; two years below the United Nations’ recommended
standard. This article examines the legal protections provided for child offenders under English
criminal law with a focus on the adequacy of the age of criminal responsibility, the now abolished
presumption of doli incapax and the merits of a developmental immaturity defence. Drawing on
data obtained from interviews conducted with members of the English criminal justice system,
this article analyses the extent to which legal practitioners perceive that the existing provisions
are adequate and concludes by reinvigorating debate surrounding the need for future review and
reform.
Keywords
Age of criminal responsibility, child offenders, developmental immaturity, doli incapax, law
reform
Corresponding author:
Kate Fitz-Gibbon, Criminology, School of Social Sciences, Monash University, Clayton Campus, Wellington
Road, Clayton, Victoria, 3800, Australia.
Email: kate.fitzgibbon@monash.edu
632579CRJ0010.1177/1748895816632579Criminology & Criminal JusticeFitz-Gibbon
research-article2016
Article
392 Criminology & Criminal Justice 16(4)
Debates surrounding the criminal law’s response to child offenders have long been the
focus of discussion and doctrinal reform in England and Wales. The provision of legal
protections for children in trouble with the law has been central to such debates, and
questions surrounding the age at which a child should be held criminally responsible
remain a contested area of law both domestically and internationally. In 1998 in England
and Wales this debate culminated in the abolition of the presumption of doli incapax as
part of the British government’s Tackling Youth Crime campaign, which aimed to send a
clear message to children that they would be held accountable in law for their own
actions. The abolition of doli incapax occurred alongside the government’s expressed
unwillingness to increase the age of criminal responsibility above 10 years old – an age
that sits well below the United Nations minimum recommended standard. This is par-
ticularly significant as it now stands English and Welsh law as adopting one of the most
punitive approaches to very young children in trouble with the law.
This article examines the legal protections provided for child offenders in English
criminal law with a specific focus on the adequacy of the age of criminal responsibility,
the now abolished presumption of doli incapax and the merits of a developmental imma-
turity defence. Drawing from qualitative data obtained from 38 interviews conducted
with members of the English criminal justice system, this article analyses the extent to
which legal practitioners with direct experience in homicide cases involving a child
offender perceive that the existing provisions are adequate and reinvigorates debates sur-
rounding the need for future reform. In order to do so, this article is structured in four
parts. Part one provides an overview of the qualitative research upon which this article
draws. Part two sets out the current debates surrounding the age of criminal responsibil-
ity, and highlights legal practitioners’ views on the current adequacy of the minimum age
of criminal responsibility in England and Wales. In part three, the abolition of doli inca-
pax is explored with a particular focus on the experiences of legal practitioners prior to
its abolition as well as arguments surrounding the evolving maturity of children and the
over-criminalization of young children post the 1998 reform. The final section of the
article, part four, explores the Law Commission’s 2005 proposal for a defence of devel-
opmental immaturity to be included within the confines of the partial defence of dimin-
ished responsibility. In examining the merits of each of these three legal protections, this
article reveals that those charged with the daily implementation of the law perceive
English law to be lacking in the protections offered for children charged with very seri-
ous offences and in doing so highlights the need for future reform in this area of the law.
The resulting analysis seeks to build on prior research that has examined the protections
for children in trouble with the law from a socio-legal, children’s rights, youth justice and
developmental perspective.
Research Design
This article derives from a wider research project examining legal responses to children
who commit homicide in England and Wales. In 2014, as part of that project, 38 in-depth
interviews were conducted with members of the English criminal justice system. The
interviews examined legal practitioners’ experiences in the courtroom and their views on
the adequacy of English law in this area. Practitioners were asked their view on current
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