After the age of criminal responsibility: a defence for children who offend

Abstract

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.

Can lowering the minimum age of criminal responsibility be justified? A critical review of China's recent amendment

“…While agreeing on the necessity to set a MACR to protect innocent children, the precise line is often difficult to draw. A balance must be struck between protecting innocent immature children and protecting the public interest by convicting children worthy of punishment (McDiarmid, 2016). At certain ages, for example between twelve and 15 years, inevitably there will be some children who have developed sufficient maturity to appreciate the wrongfulness of their actions and the ability to exercise self-control, while others at the same age do not.…”

“…Therefore, a new child immaturity defence could be proposed. If, due to the child's developmental immaturity at the time of the offence: (i) his/her ability to appreciate the nature or consequences of the conduct was substantially impaired; or (ii) his/her ability to exercise control over the conduct was substantially impaired, the child should have a valid defence (for other formulae proposed, see Fitz-Gibbon (2016);McDiarmid (2016)).…”

Can lowering the minimum age of criminal responsibility be justified? A critical review of China's recent amendment

“…While agreeing on the necessity to set a MACR to protect innocent children, the precise line is often difficult to draw. A balance must be struck between protecting innocent immature children and protecting the public interest by convicting children worthy of punishment (McDiarmid, 2016). At certain ages, for example between twelve and 15 years, inevitably there will be some children who have developed sufficient maturity to appreciate the wrongfulness of their actions and the ability to exercise self‐control, while others at the same age do not.…”

“…Therefore, a new child immaturity defence could be proposed. If, due to the child's developmental immaturity at the time of the offence: (i) his/her ability to appreciate the nature or consequences of the conduct was substantially impaired; or (ii) his/her ability to exercise control over the conduct was substantially impaired, the child should have a valid defence (for other formulae proposed, see Fitz‐Gibbon (2016); McDiarmid (2016)).…”

Criminal responsibility of older children: The failings of doli incapax in Australia

“…The onus of proof for the developmental immaturity defence would be on prosecution for 14 and 15 year olds and move to defence for 16 and 17 year olds (Delmage, 2013). McDiarmid suggested a development immaturity defence be available to all children who do not understand the wrongfulness or consequences of their actions (McDiarmid, 2016).…”