Exploring Childhood, Criminal Responsibility and the Evolving Capacities of the Child: The Age of Criminal Responsibility in England and Wales
Arthur, R. (2016) Exploring childhood, criminal responsibility and the evolving capacities of the child Northern Ireland Legal Quarterly 67, 3, 269-282
Posted: 31 Oct 2017
Date Written: October 30, 2017
In England and Wales the age of criminal responsibility is set at 10 years. The current law therefore assumes all children are sufficiently mature at the age of 10 to accept criminal responsibility for their behaviour. This means that normative criteria, such as the physiological and psychological development of the individual child, are not being used to identify the divide between childhood and adulthood. Instead the low age of criminal responsibility misrepresents the evidence we have regarding young people who offend and their evolving capacities. Children are still in the process of maturing at this stage of life and may not yet be developed enough to understand the wrongfulness of what they do. Children and young people are less mature than adults in terms of their judgment and sensation-seeking and experience difficulties in weighing and comparing consequences when making decisions and contemplating the meaning of long-range consequences. These cognitive difficulties also have implications for a young person’s ability to be a competent defendant in an adversarial atmosphere. Young defendants who may not understand the consequence of their offending, including those with impaired mental capacity, are exposed to the full rigours of the criminal justice system unless their decision-making capacities are impaired, for example by a mental illness which is attributable to a condition falling within the M’Nagthen rules, or they are substantially intellectually impaired.
This approach to young people in conflict with the law effectively constructs such children as non-children who do not deserve to remain children. Consequently the rights of the offender as a child, in particular marginalised and socially excluded children, become invisible and ignored. This article will argue that children have a right to respect for their evolving capacities and that respecting this right would re-direct the criminal justice system towards a normative framework better equipped to accommodate the realities of childhood; one which contains a clear foregrounding of the child’s experiences and the reality of their daily lives and in which the child’s experience of vulnerability and powerlessness is embedded throughout. If such a focus on children’s rights were applied to young people in conflict with the law it would ensure that young people who are not sufficiently mature and competent to understand the process of a trial in a criminal court, including the youth court, could not be held criminally culpable for their behaviour. Criminal liability could only be imposed upon children who had sufficient mental capacity, competence and maturity to understand the nature of their conduct and exercise volition over their behaviour.
Keywords: Age of Criminal Responsibility, Individuality, Identity and Welfare
JEL Classification: K14, K36
Suggested Citation: Suggested Citation