The Modern Legal History of Criminal Liability of Children in the United Kingdom 1938–2008
| Published date | 01 September 2011 |
| Date | 01 September 2011 |
| DOI | http://doi.org/10.1177/203228441100200308 |
| Subject Matter | Article |
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 3, 2011 301
THE MODERN LEGAL HISTORY OF
CRIMINAL LIABILITY OF CHILDREN
IN THE UNITED KINGDOM 19382008
T C J, Esq.*
ABSTRACT
is article i s a historical narrative of the mile stones in the history of crimina l liability
of children in the United Kingdom a nd the legal implications of these de velopments for
academics and legal s ystems within and beyond the United Kingdom.
Keywords: children; criminal liability; implications for UK and non-UK
jurisdic tions
INTRODUCTION
One of the major and ea rliest rules of crimi nal law under common law and statute is
that every person is liable for punishment for crimes that such person(s) commit. One
of the major e xceptions to this genera l rule is that children, minors below t he age of
legal maturity a re not to be held liable for crimes that they commit.
is recognized exception granted to children has become codied and enacted in
both international law and nat ional legislation.
Under International law, the age of criminal l iability of chi ldren has been put at
eighteen years a nd above. Since the year 1989, this rule of international law ha s been
enshrined in the United Nations C onvention on the Rights of the Ch ild.
At the national law level, t he United Kingdom rati ed the UN Convention on the
Rights of the Child in t he year 1991 (with some reservation) thus committi ng itself to
‘ Barrister, S ecretary, Legis lative Drai ng Clinic, Ins titute of Advanced Legal Studie s, University of
London. Ph D student, Institute of advanced Legal Studies. is artic le is a modied version of a
research project of t he Brit ish In stitute of Intern ational and C omparative Law, the project was
supervise d by Dr. Nsrine Abiad, who gave constructive advic e and gu idance on t his research,
however I accept respons ibility for the view s and errors expressed here in.
Tonye Clinton Jaja
302 Intersentia
observe the rules of international law in this regard. In addition the UK has enacted
legislation t hat provides for the age of crimi nal liability at 10 years for England and
Wales and 8 years for Scot land respectively. Alongside t his general rule was the
exception as expressed by the common law Rule of law that there is an IRREBUT TABLE
PRESUMPTION OF LAW that a child of seven years of age or below is legally incapable
of committing a crime; the Latin term of this rule of law became known as doli incapax
(however as we sha ll see later, this doctrine has been aboli shed in the United
Kin gdom).
is study exa mines t he development of the rule of law in respec t of criminal
liability of children in the United Kingdom i n the l ight of how these developments
measure up to best pract ices especially the United Nations Convention on the Rights
is study does not pretend to be exhaustive in the sense of attempting to examine
every court c ase law, legal writing or legislat ion on the subject rather it is essentia l in
its approach by focusing its exa mination on the landmark judgments , legislation and
legal writings on t he subject.
e criteria for selec ting landmark judgment, leg islation and legal writi ng in this
study are two fold. e rst approach is to the select ion of judgment(s), legislation or
legal wr iting(s) were (and sti ll remain) that dwell directly on the subject of c riminal
liability of children. e second criterion is to select judgements, legislation or legal
writings that focus on the impact of age of criminal liability. e result of a combination
of both approaches is a compendium of all legis lation, judgments, w ritings, studie s
etc. that were compell ing or persuasive in initiati ng or inuencing law reform on the
area of crimina l liability of children in the United K ingdom.
e primary rationale for selecting the period under review (1933–2008 with
in-depth focus on 1983–2008) is that thi s time period witnessed the enactment of the
most signicant legal instruments on age of criminal liability both at the international
(United Nations), regional (European Union treaties) and national level (1998 Crimes
and Disorder Act).
Also, the last legal scholarly works on thi s subject by A.W. KEANE , History of
Criminal Liability of Children (1937) Law Quarterly Review 364–370 and Robyn Linde,
Early Abolition of the Death Penalty for Chil d Oenders: e United Ki ngdom, 1925–
1959 respectively covered the period of early yea rs of UK history from years 1300 to
1933 a nd 1959 A.D. respectively. Since then there has not been published (to the
knowledge of this study) any single lega l study of the period bet ween 1933 to 2008.
is study attempts to bridge th is gap.
e signica nce of period covered by t his study is t hat the rst nomin al starting
point (1933) marks the year when the age of criminal liabi lity was xed by parliament
to be eight years and it wa s subsequently raised to ten years by vi rtue of the Children
and Young Persons Act 1933. Also, the year 20 08 is signica nt as the year when the
landmark judgment on the doctrine of d oli incapax was delivered. is judgment
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