Aims
After the session students will be able to:
 Establish a definition for the age of criminal
responsibility
 Describe rule of doli incapax
 Explain the reasons for and against the abolition of the
rule
What do we mean by age of
criminal responsibility?
 Group task 1: in groups provide a definition
History
 Pre Norman Laws of Ine 8th Century = 10
 Laws of Athelstan 10th Century = 12
 Bractons 13th century treatise = should be protected
from responsibility due to their ‘harmless intention’
 Pre Norman age limits in 15th century lowered to 7
 Once a child hits 7 then he/she could be held
responsible
History
 Children and Young Persons Act 1933 = 8 years
 Criminal Justice Act 1963 = 10 years
 Children and Young Persons Act 1969 = suggested an
amendment to raise to 14 years of age but this did not
become law
Who is responsible for those
under 10?
 Crime and Disorder Act 1998 – child safety orders
 Breach of curfew
 Committed what would have been a crime if they were
10 or over
= suggestion that the age of criminal responsibility has
been eroded
Group task 2:
In pairs identify what you think are the different ages of
criminal responsibility for these different countries
 England and Wales
 Scotland
 France
 Germany
 Italy
 The Netherlands
 Sweden
Minimum Age of Responsibility
 England and Wales: 10 – 17 years
 Scotland: 8 – 16 or 18 if already under supervision
 France: 13 – 18
 Germany: 14 – 17
 Italy: 14 – 18
 The Netherlands: 12 – 18
 Sweden: 15 – 21 (under 18 = ‘child’; under 21 =
juvenile)
Criminal Justice and Licensing
(Scotland) Bill
38 Prosecution of children
(1) The 1995 Act is amended as follows.
(2) After section 41 insert—
“41A Prosecution of children under 12
10 (1) A child under the age of 12 years may not be prosecuted for an offence.
(2) A person aged 12 years or more may not be prosecuted for an offence which
was committed at a time when the person was under the age of 12 years.”.
(3) In section 42 (prosecution of children), in subsection (1)—
(a) for “No child under the age of 16 years shall” substitute “A child aged 12 years or
15 more but under 16 years may not”,
(b) for “his instance” substitute “the instance of the Lord Advocate”, and
(c) for “a child under the age of 16 years” substitute “such a child”.
(4) In section 234AA (antisocial behaviour order), in subsection (2), paragraph (b) is
repealed.
Scotland example:
Reasons for
 ‘strikes a balance
between the age a young
person understands that
their behaviour is
harmful and their ability
to understand court
proceedings’
 CHS is the best place….
Reasons against
 What do you think those
maybe
Too young to be a criminal?
“In the UK, our notions about criminal responsibility are
meaningless. We set the age of criminal responsibility too
low because adult society does not have the collective
capacity to imagine a system for dealing humanely with
children and young people who break laws created by adults,
largely to police the behaviour of adults. We prefer to punish
children and young people, so relieving ourselves of the
responsibility of thinking seriously about what it should
mean to treat children and young people with compassion,
dignity and respect.”
Richard Garside (The Guardian, 5th February 2009)
Children and Young Persons Act 1969
 U-14s not to be referred to juvenile court solely on
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


grounds of committing offences
Care and protection proceedings in cases where
care a ‘good parent’ might give was absent
Criminal proceedings against juveniles 14-16 yrs
only after consultation between police and social
services
Custodial and Attendance Centre sentences limited
and replaced by intermediate treatment
(educational and social measures)
CYPA 1969 signified move to welfare approach
Crime and Disorder Act 1998 (1)
 Shift during 1990s back to ‘populist punitiveness’



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(see Newburn 2002)
‘It shall be the principle aim of the youth justice
system to prevent offending by children and young
persons’ S. 37 CDA 1998
Youth Justice Board (YJB) established
Youth Offending Teams (YOTs) created to work
with offenders on non-custodial penalties – move
to ‘intervening’ rather than ‘diverting’
Restructuring of non-custodial penalties available
to youth courts
Crime and Disorder Act 1998 (2)
[The CAD 1998] “has a central objective to prevent
offending by children and young people….
addressing offending behaviour; with early
intervention on the basis of risk assessments
related to known criminogenic factors; with the
systematic use of evidence-based practice; with
reparation and, therefore, the needs of victims; and
with the promotion of crime prevention measures.”
Holdaway et al (2001)
Crime and Disorder Act 1998 (3)
Significant points
 Prevention of offending (and re-offending)
 Reparation – sentencing should enable young
offenders to understand the harm done to
others (hence restorative justice)
 Efficiency – ‘fast-tracking’ of cases and
statutory time limits
Crime and Disorder Act 1998 (4)
Significant points (cont’d)
 Responsibility, e.g.
 abolition of doli incapax
assumption (10-13 yr olds)
 parenting orders
 child curfews
 ASBOs
doli incapax
 Children did not become FULLY criminal responsible
when they reached the age of 10
 ONLY held responsible if the prosecution could prove
that the child knew that what they were doing was
SERIOUSLY WRONG
doli incapax
 So Prosecution would need to prove BEYOND
REASONABLE DOUBT:
 1) Actus Reus
 2) Mens Rea
 3) that the child knew that what they were doing was
SERIOUSLY WRONG
doli incapax
 At common law a child below 7 was considered doli
incapax
 At common law a child between the age of 7-14 was
PRESUMED doli incapax
 They were incapable of identifying right from wrong
 Therefore lacked any criminal intent
doli incapax
 BUT….
 Prosecution can prove beyond reasonable doubt that
the child, at the time of the alleged act, was aware that
what they were doing was seriously wrong as opposed
to being naughty
Knowing right from wrong…….
 How do we test for this?
 Difference between good and evil (Blackstone)
 Not just wrong but GRAVELY wrong or SERIOUSLY
wrong (Gorrie (1918)
 Moral test (Glanville Williams)
 So this is a REBUTTABLE presumption but
prosecution must prove BRD.
Why did the presumption exist?
 Protect children from suffering the full extent of the
law (death penalty at the time)
How do we apply the
presumption?
 A v DPP [1997] Crim LR 125
 That the child knew that something was ‘seriously
wrong’ could not be inferred from the mere commission
of an offence it could be inferred from the surrounding
circumstances (i.e. threats, distress of victim)
 L (A Minor) v DPP [1997] Crim LR 127
 It is for the court to decided
 An admission from the child to the police that they
knew what was wrong would be admissible
How do we apply the
presumption
 C (a minor) v DPP [1994] 3 All ER 190
 Mr Justice Laws (High Court)– ‘doli incapax is no
longer part of English Law
 ‘whatever may have been the position in an earlier age,
when there was no system of universal compulsory
education and when perhaps children did not grow up
as quickly as they do nowadays, this presumption is a
serious disservice to our law’
 TASK 3 – discuss in groups, do you agree?
Mr Justice Laws
 ‘out of step with the general law’
 ‘outdated and unprincipled presumption’
 ‘capable of giving rise to the risk of injustice’
 BUT…….
House of Lords disagreed
 ……reinstated the presumption and said that only
statute can only decide on the doli incapax rule
 However decided on issues around the separation of
powers rather than the merits or de-merits of the rule
White Paper ‘No More Excuses’
(1997)
 …’doli incapax is contrary to common sense’……it is not
in the interests of justice or victims or young people
themselves……’
 Led to s34 Crime and Disorder Act 1998
 Child aged 10 can now be considered as legally
responsible for their actions as an adult
 = completely responsible 10 +
 =completely irresponsible 9 and below
Bandalli (1998)
 Critical of this approach:
 No understanding of children
 Makes childhood irrelevant to criminalisation
 Presumption operated in a manner ‘ to protect and
shield the child from the damaging criminal justice
system
Defence of doli incapax
 DPP v P [2007] EWHC 946
 Smith LJ suggested obiter that s34 had abolished
presumption and retained defence (i.e. children could
use it as a defence)
 R v T [2008] WCWA Crim 815
 Latham LJ: defence abolished
 R v JTB [2009] UKHL 20
 HL: both defence and presumption are 2 different
things and s34 of the CDA 1998 abolished both
How did they know?
 Outright abolition of the presumption is the simplest
approach (No More Excuses, 1997)
 Sends a clear message to children 10 and over that they
would be responsible for their actions
 If they retained a defence then it would be used a lot
and would make it difficult to prosecute those under 14
 Looked at White Paper etc for clarification as to the
intention of Parliament with s34
Is this a punitive or welfare
oriented approach?
 Argument that it is punitive
 DPP v P and R v T – young defendants with impaired
mental health can face the full rigours of the criminal
justice system
 Children are still developing – how do you judge the
age at which someone can make a moral judgement
International Perspective
 UN Convention on the Rights of the Child – Article 40
 Reasonable minimum age
 Beijing Rules
 Bear in mind their emotional, mental and intellectual
capacity
 UN Committee on the Rights of the Child
 Concerned about the abolition of doli incapax
 ECHR in V and T v UK (2000) 3 EHRR 121
 10, not so young as to differ disproportionately to the
rest of Europe
Why the differences?
 Need to understand differences between adults and
children in their ability and capacity to make
judgements
 Look at other European countries with higher age of
responsibility and lower offending
Summary