Towards a Principled Legal Response to Children Who Kill
| Date | 01 December 2018 |
| Published date | 01 December 2018 |
| Author | Nessa Lynch |
| DOI | 10.1177/1473225418819056 |
819056YJJ0010.1177/1473225418819056Youth JusticeLynch
research-article2018
Original Article
Youth Justice
2018, Vol. 18(3) 211 –229
Towards a Principled Legal
© The Author(s) 2018
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Response to Children Who Kill
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https://doi.org/10.1177/1473225418819056
DOI: 10.1177/1473225418819056
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Nessa Lynch
Abstract
This article surveys common-law jurisdictions, finding that the typical response to a homicide charge
against a child is prosecution and sentencing in the adult jurisdiction. Reforms, such as alterations to trial
procedure, and lower sentencing starting points have focussed on mitigating the excesses of adult trial and
sentence. A principled approach requires a different lens. Practical strands of an age-appropriate response
include custody as a last resort and only where there is a risk to public safety, an automatic prohibition on
publication of identifying biographical details, and a child-specific jurisdiction. The prevailing societal interest
is in reintegration.
Keywords
child-friendly justice, comparative, homicide, public interest, reintegration
Introduction
As was said in a recent review of the youth justice system in England and Wales, ‘it is
right that children who break the law are dealt with differently to adults’ (Taylor, 2016:
para 6). There is essentially a societal consensus that children should receive a diversion-
ary and reintegrative response in a separate youth justice system, at least for minor to
moderate offending (Barretto et al., 2018; Nagin et al., 2006; Trzcinski and Allen, 2012).
Children1 who kill are an exception to these norms. The prevailing legal response across
the common-law jurisdictions surveyed here is trial in the adult court system with applica-
tion of adult sentencing principles, and for murder, an outcome of a mandatory or pre-
sumptive life sentence (Child Rights International Network (CRIN), 2015). The effect of
adult trial procedures and long sentences of imprisonment on children is severe, and they
may even suffer additional consequences (such as ongoing notoriety and the trauma of the
process itself) than an adult in the same situation (Haydon and Scraton, 2000). Furthermore,
in some aspects (the effects of contemporary mandatory sentencing laws and salacious
Corresponding author:
Nessa Lynch, Faculty of Law, Victoria University of Wellington, PO Box 600, Wellington 6011, New Zealand.
Email: nessa.lynch@vuw.ac.nz
212
Youth Justice 18(3)
media coverage in the digital age), the effect on children may be more punitive than in the
past (Tanenhaus, 2000).
This article has three sections. First, it reviews the legal responses to children who kill
across a selection of common-law jurisdictions, highlighting the harsh effects of jurisdictional
exceptions and the application of adult sentencing regimes. Second, it is argued that attempts
towards reform thus far are best described as ‘re-arranging the deckchairs on the Titanic’: miti-
gating the worst effects on children without properly addressing the evidence that these adult
legal responses are entirely unsuited to children’s developmental profile. Finally, it is argued
that a principled approach requires a different lens. The legal approach must be based on age-
appropriate accountability and on the temporality of risk factors for many in this age group.
While children who kill are the focus of this article, the concepts discussed also have relevance
for children who commit other grave violent and sexual offences.
The Law’s Response to Children Who Kill – A Comparative
Survey
The harm and wrong resulting in the intentional, reckless or negligent taking of another’s
life is expressed in common-law jurisdictions in offences such as murder, manslaughter or
infanticide, reflecting varying levels of fault and culpability (Law Commission of England
and Wales, 2006). Such offences (hereinafter ‘homicide’) are regarded as topping the
harm scale and attracting a high degree of societal condemnation (Greenfield and Paoli,
2013). Jurisdictions have varying methods of recording alleged offending and final dispo-
sition, but where age of the suspect or offender is available, it is apparent that not insig-
nificant numbers of children are accused of homicide. As examples, in Canada, 4.6 per
cent of persons accused of homicide in 2016 were under 18 at the time of the offence
(Statistics Canada, 2018), while 13.1 per cent of 2016–2017 homicide proceedings were
against under-19s (New Zealand Police, 2017). Ten years of homicide conviction data
from England and Wales (2007–2017) indicates that homicide convictions of males under
16 make up 1–5 per cent of convictions, while those of females under 16 make up 0–5 per
cent. The raw numbers are small, however, with between 3 and 29 convictions per year of
males under 16 and 0–5 convictions of females (Office for National Statistics, 2018).
There is no breakdown available which indicates the number of 16- and 17-year-old chil-
dren convicted. Paucity of specific statistics on children who commit offences, and who
are victims of crime, is a concerning issue (Lynch, 2018c). An Australian report on homi-
cide by young offenders reports that ‘of the 6,544 homicide incidents that occurred
between 1989–90 and 2013–14 where an offender was identified, 410 (6%) involved an
offender aged 10–17 years’ (Bricknell and Bryant, 2018: 3). In Scotland, in the 2016–2017
reporting period, no under 16s were accused of homicide, but 18 per cent of accused were
aged 16–20 years (Scottish Government, 2017).
A jurisdictional exception
The prevailing approach to the resolution of allegations of homicide against children,
across the common-law jurisdictions considered here, is removal from the youth jurisdic-
tion to the adult court system (Figure 1).
Lynch
213
Jurisdiction
Age of Criminal
Normal Age of
Jurisdiction for Murder and
Responsibility2
Penal Majority3 Manslaughter
New Zealand
10
174
High Court
England and
10
18
Crown Court
Wales
Republic of
10
18
Central Criminal Court
Ireland
Scotland
85
16
High Court of Justiciary
Canada
12
18
Youth Court6
ACT
10
18
Supreme Court of the ACT7
New South Wales
10
18
Supreme Court of NSW
Queensland
10
18
Supreme Court of Queensland
South Australia
10
18
Supreme Court of South Australia
Tasmania
10
18
Supreme Court of Tasmania
Victoria
10
18
Supreme Court of Victoria
Western
10
18
Children’s Court of Western
Australia
Australia8
Northern
10
18
Supreme Court
Territory
2Minimum age from which a child may be held liable for a criminal offence.
3Age at which a child normally ‘ages’ out of the youth justice system.
4The age of penal majority will be raised to 18 by mid-2019.
5While the official age remains 8 years, the minimum age for prosecution is 12.
6The Youth Court can impose a full adult sentence upon an application by the Attorney-General.
7 The Children’s Court does not have jurisdiction over offences punishable by life imprisonment.
Manslaughter only carries a 20-year maximum sentence.
8 Children can be tried as adults in the Supreme Court in some circumstances, such as where there
is a co-accused who is an adult, or where the accused has subsequently turned 18.
Figure 1. Homicide as a jurisdictional exception in prosecution of children.
Except for Canada and Western Australia, this means that the child defendant in a homi-
cide case is tried through a formal adversarial criminal trial in a senior Court, without the
benefit of the specialised and separate procedure in youth courts. The effect on child
defendants is stark, including trauma from the process itself and a lack of effective and
meaningful participation (Royal College of Psychiatrists, 2006; Taylor, 2016). Notoriety
has a particular impact on children (Stone, 2015). The situation of the two children con-
victed of the murder of James Bulger in England in the early 1990s is a case in point, where
media coverage was intrusive and vicious (Franklin, 2002). In New Zealand, a 12-year-old
214
Youth Justice 18(3)
child convicted of manslaughter for his part in a group killing in 2002 appears regularly in
the media with the label ‘New Zealand’s youngest convicted killer’, while it is highly
unlikely that members of the public could name his adult co-offenders (Monod, 2017a).
Disproportionate and severe punishment for children who kill
A general theme across jurisdictions is how sentencing for violent offences such as homi-
cide has become more punitive and with less scope for judicial discretion (Tonry, 2009).
As the table demonstrates (Figure 2), the offence of murder is typically punished through
mandatory or presumptive sentencing laws, where life imprisonment,2 whole-of-life terms
or long minimum periods of imprisonment3 are enshrined in legislation, often with no or
minimal exceptions for children (Lynch, 2018b). While the lesser culpability of the
offence of manslaughter means a broader range of sentences available, conviction is still
likely to result in a sentence of imprisonment.
Such punitive sentences have a disproportionate effect on children, with minimum terms
of imprisonment sometimes exceeding the child’s lifespan to date. In New Zealand, the
minimum term attached to a life sentence for a child convicted of murder generally ranges
from 11–14 years (Lynch, 2018a), and a 16-year-old has been sentenced to life with 17-year
minimum term (R v Hamilton, 2005). Approximately 20 individuals are serving life impris-
...
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