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.
In Scotland, the age of criminal responsibility is 8, although children cannot be prosecuted until they are 12. In England and Wales, for all purposes, the age is 10. This article argues that a further mechanism is needed to protect the young who do wrong within the criminal process and it argues for a new, bespoke defence, to be available to young people from the age of criminal responsibility until they attain the age of 18. It looks firstly at criminal capacity – what it is that needs to be understood fairly to hold anyone criminally responsible – and draws on material from developmental psychology and neuro-science, as well as looking at the child’s lived experience, to provide some evidence that the young may, without fault, lack this capacity. It then examines the use of age generally in law, and the age of criminal responsibility within this. Next, it considers existing lack of capacity defences – nonage, diminished responsibility, insanity (or mental disorder) and absence of mens rea – to consider their suitability for use by young and immature defendants. Finally, it presents a proposal for the form of the new defence, taking into account the need for balance with the public interest in conviction of the guilty. Throughout, it notes and analyses the Law Commission’s proposals in this respect.
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