The law


The law, as a structure of guidelines that administrates and regulates society, is built on the perception that individuals of that society can understand and follow rules. The law’s benchmark in assessing that person is that they are seen to be practical, reasoning, rule-following, and who can discern the difference between right and wrong. It is a fundamental and basic principle of criminal law that an accused must possess the required mental competence to understand criminal misconduct before criminal action can be brought against them in a court of law. In order to protect children from the full force of the criminal justice system, there are guidelines set, stretching back into the early days of English common law, that help protect children from adult punishment, and distinguish them from the culpability associated with what the courts perceive as adult criminal responsibility. The minimum age of criminal responsibility is set to reflect the level at which a child is determined to possess the required awareness to discern between actions that are merely naughty, from those which are seriously wrong in a criminal sense. With giant leaps in science, educational reform and the advent of mass social media, our understanding of child development rates have changed to such an extent that to determine a current comprehensive age of criminal responsibility may prove difficult. In this essay, I will contemplate the argument that society does not take the concept of criminal responsibility seriously. I will argue that the common law safeguards put in place are central to shielding children from the full punitive brunt of the criminal law, and protective mechanisms such as ‘doli incapax’ although seen as some as outdated and problematic, should remain.

Minimum Age of Criminal Responsibility in Australia:
In Australia, any person that is under the age of ten who commits a criminal act cannot be charged with a criminal offence. Further to this, any person over the age of eighteen who commits that same criminal act will be deemed as criminally responsible for the act, charged for that offence, and brought before the court and tried as an adult. Nestled between these ages of ten and eighteen, is a span of four years, from the age of ten, that the common law of ‘doli incapax’ presumes that a child between the ages of ten and fourteen lacks the necessary comprehension to possess criminal intent. This presumption is rebuttable if it can be proven that the child committing the criminal act possessed the knowledge that what they were doing was seriously wrong, and not just naughty. Many organisations, including the United Nations and Amnesty International, believe that the minimum age of criminal responsibility in Australia is too low. These organisations believe that the minimum age of criminal responsibility should be raised to at least twelve years of age.
Since the mid-eighties, there has been growing international support to have the minimum age of criminal responsibility raised. In 1985, the United Nations agreed upon a Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), recommending jurisdictions set the minimum age of criminal responsibility at an age where the child can understand and recognise the psychological, moral and legal factors of criminal responsibility. In 1989, the Convention on the Rights of the Child (CRC) required states to set an absolute minimum age under which children were exempt from criminal prosecution, and again in 2007 it advocated for a minimum age of 12 with further increases to follow. Since 1989, over 65 countries world-wide have increased their minimum age of criminal responsibility.
In 2012, the UN committee advocated that all Australian states needed clear guidance and recommendations regarding the minimum ages of criminal responsibility and concluded that an age level below 12 years is not internationally acceptable for a child to be prosecuted for a criminal act. It also observed that a higher minimum age of 14 or 16 was regarded as being significant as it contributed to the juvenile justice system which deals with children in conflict with the law without having to resort to judicial proceedings. In order for Australia to fulfil its obligations under the Convention on the Rights of the Child (CRC) agreement, the minimum age that a child should be held criminally responsible would have to be raised to 12.

Arguments for and against a child’s understanding of criminal intent.
It is a popular view amongst contemporaries that children in this time of enlightened society are maturing at a much faster rate than previous generation of children. Therefore, it may be argued that more children now are able to possess the required mental, moral and ethical capacity to understand criminal wrongdoing. Research has found that children are maturing faster due to the advent of mature content video games, easy access to adult subject matter on the internet and social media.

While, in this aspect, children may be perceived as maturing at a faster rate, this brand of maturity still lacks the type of maturity that can distinguish between the nature of right and wrong in a criminal sense, and the type of maturity that would find that child capable of facing adult criminal justice. It may also be argued that the kind of maturity that is garnered from video games, adult internet and television may hinder a child’s perception of right and wrong, thereby impeding their moral development.

There are also problems in reconciling the minimum age of responsibility with other standards of maturity. In Western Australia, the age of consent for consensual sex is 16. The minimum age that a person is legally allowed to consume alcohol is 18. The minimum age a person can legally purchase cigarettes is also 18, as is the age that a person becomes entitled to vote. All of these ages depict a perception that a child’s maturity has not sufficiently developed until these ages have been attained. It is, in the light of these higher ages, difficult to justify that a child of 10 can be held to possess the maturity inherent to be able to stand trial for criminal acts committed as would an adult committing that same criminal act. Yet at the same time that same child is seen as not mature enough to smoke, drink vote or engage in consensual sexual activity.

Additionally, research into the development of the minds of children found that children are less psychologically mature than adults in ways that affect their decision-making in anti-social situations, therefore supporting an increase in the minimum age of criminal responsibility. To further bolster these findings, the Report of the Royal Commission into the Protection and Detention of Children in the Northern Territory in 2017 stated; ‘Recent neurobiological research has prompted a reassessment of how recognition of developmental immaturity should affect the way society treats young offenders, particularly in determining the age at which criminal responsibility should be imposed’.

Judicial affirmations of ‘doli incapax’.
There are many prominent cases which exemplify situations where children brought before the courts and prosecuted for their perpetration of criminal acts were found to be incapable of understanding the criminal nature of their wrongdoings. In IPH v Chief Constable of South Wales, an 11 year old was charged with vandalising a motor vehicle. It was found that even though the defendant made an admission of guilt, there was no evidence that the 11 year old child knew what he was doing was wrong and was acquitted.

In R v LMW, A 10 year old boy was charged with the manslaughter of a six year old. The defendant LMW pushed the six year old into a river knowing that the six year old could not swim. The defendant was found not guilty of manslaughter as it was found that the act of drowning the younger boy had been ‘an act of bullying that went wrong’.

In C (A Minor) v DPP a 12 year old boy was observed by police holding the handlebars of a motorcycle while another boy was trying to break the padlock and chain securing the motorcycle. The boys fled when approached but were arrested shortly after. Once again, the boy was acquitted of the charges against him as he was seen as too young to appreciate what he was doing was wrong even though the damage done to the motorcycle was substantial.

The abolishment of ‘doli incpax’ in England and Wales:
In England and Wales, the government ruled to abolish the doctrine of ‘doli incapax’ on the belief that an average 10 to 14 year old knows the difference between right and wrong and develops at a faster rate both physically and mentally, from the age of five due to compulsory education. To believe anything other than this does not prevail to common sense.

In its White Paper, Tackling Youth Crime, the Government proposed that by taking account of the child offender’s age and level of maturity at the sentencing stage, rather than prevent and protect that child from being prosecuted for criminal acts committed, would be seen as a better fit for the justice system. It was also viewed that by precluding children from being held accountable at trial, the prosecution was being hindered. In abolishing the presumption made out by ‘doli incapax’, the British government disregarded the notion that it would be unacceptable and profoundly unjust to hold children personally accountable for criminal acts committed, who are yet to develop full autonomy and the benefits of freedom of choice.

This basically means that the only way a 10 to 14 year old child could escape adult prosecution by the criminal law, with adult penalties, would be to argue an unfitness to stand trial. In CPS v P, a 13 year old’ stay of prosecution due to being unfit to plead was appealed against as an abuse of process. The prosecution argued that if it was decided that the defendant should not face trial as he was unfit to plead, then prosecution should be allowed to continue so it could be decided whether the defendant was guilty of the alleged acts. Only then, should medical evidence and circumstances of the case be considered before deciding on whether an order under the Mental Health Act was appropriate. The disadvantages of this are far reaching, and would see that the young offender subject to psychiatric evaluation and perhaps hospitalisation, or detention at a secure youth centre. With the abolishment of ‘doli incapax’, the focus is shifted away from the child’s capacity to understand what they were doing was criminally wrong at the time the act was committed, to that child’s same capacity at the time of trial. This also extinguishes the chance of analysing the child’s behaviour and the reasons behind why the criminal act was committed at the time the act was perpetrated. As the rate at which children mature is difficult to gauge, it is possible that a child’s capacity to understand may have progressed since the time that child committed a criminal act through to the time that that same child is prosecuted by the justice system. The defence of being unfit to stand trial is not a replacement for the defence that a child lacks the understanding and mental competence to understand the gravitas of the criminal wrong they have performed.

Also, as exemplified in CPS v P, the premise, argued by the prosecuting lawyers, that the doctrine of ‘doli incapax’ is hindering the prosecution is more about a misunderstanding of the why the presumption exists in the first place, and how that presumption should be applied. As inconvenient as it may be for the prosecution to have to prove that a child defendant possesses the requisite moral understanding of the alleged wrongdoings, it can be rebutted, and proof of understanding will allow the prosecution to continue. This rebuttal of the presumption afforded by the doctrine of ‘doli incapax’ is exemplified in the case of RP v The Queen. The defendant was a 12 year old boy who sexually abused his younger brother on two occasions. The trial judge ruled that the presumption of ‘doli incapax’ was rebutted by evidence that the defendant was aware of his victim’s distress, and was afraid of being caught.

If children do not possess the maturity and requisite competency to understand the processes at work in a courtroom, it raises the question of whether they can be held criminally accountable for their wrongdoings and anti-social behaviour. Child defendants rarely understand the legal proceedings against them or the language used by lawyers during the trial. This often leads to feelings of intimidation and isolation in court, and they may not have court proceedings explained to them until after the hearing is over. There may also be frustration that courts may not necessarily understand the context and circumstances in which their offences were committed. Raising the minimum age of criminal responsibility may prove to be a successful approach for preventing children who offend from entering the criminal justice system entirely.

Conclusion:
Although there remains criticism of the presumption of ‘doli incapax’ as stated above, I do not believe that this protection should be removed, nor disregarded as archaic with little relevance to modern society. There is a great need for children to be protected in the judicial system from the possibility of severe punishments. I believe that the minimum age of criminal responsibility should be raised to at least bring Australia into line with the UN Committee on the Rights of the Child recommended guideline of 12 years, with serious consideration of 14 years. Further to this, children charged with a criminal offence should not be brought before the court to face prosecution, but should be dealt with by welfare based agencies and departments instead of the criminal justice system. This would mean that children who have committed alleged criminal wrongdoings have access to a range of social, health and community based services. By meaningfully engaging with the offending child, these services can then ascertain the reasons behind why that child has offended and seek appropriate avenues that will provide the best outcome for the child’s wellbeing and future. By diverting the child from the criminal justice system, that child will have a better chance at rehabilitation, while at the same time minimal to no interaction with a system that can be over-punitive, stigmatizing and alienating to youth offenders. This will also prevent the child from interacting with an environment that may be in some cases, criminogenic. In the meantime, the presumption provided for by ‘doli incapax’ should continue to be used to protect and shield child offenders from the harsh penalties that are administered by the adult criminal law system. These measures will at least be an indication to the United Nations, and indeed the rest of the world, that Australia takes the concept of criminal responsibility seriously.