Raising The Age Of Criminal Responsibility: An Essay On Social Justice And Child Protection.

The Purpose of Criminal Justice System and Child Responsibility

Question:

Discuss about the Royal Commission and Board of Inquiry.

The purpose of criminal justice system is to deliver justice for everyone, where different measures are adopted by the ones in this system, to punish, rehabilitate or hold the guilty person responsible, in a way where the principles of fairness and equity are followed, along with protection of rights of person. One of the aspects of criminal justice system is to punish the offender. The role is further enhanced when it comes to making children liable for the offences undertaken by them[1]. Under the common law, children can be made liable criminally at the age of seven, whilst the state of Victoria makes this age as 10. Though, the modern scientific research shows that the young individuals should be made liable only after they reach later age. The recommendations of Royal Commission provide that there is a need for bringing up the age of criminal responsibility to 12 years. This is partly true as there is a need to increase this age to 14 instead of the present proposition of 12 years, due to the fact that there is a deeper appreciation at the present time of the rights of the children, and in their understanding regarding the experiences and unique capabilities gained by them[2].

When it comes to the criminal justice policies, the most difficult area is the determination of proper legal mechanisms for reflecting the transition from the age which the child is innocent to their age of full responsibility and maturity management. In the jurisdictions of Australia, the statutory minimum age for imposing criminal responsibility on a person is ten years. In between the ages of 10 to 14 years, there is applicability of doli incapax where a further rebuttable presumption operates when it comes to the children committing criminal act. Only when the presumption can be rebutted by the prosecution, by proving before the court that the accused child had been able to differentiate between wrong and right at the relevant time, can the conviction of such child be contested at trial. Even in cases where criminal liability is absent, the children can be subjected to welfare measures through court orders. Basically, criminal prosecution is part of a number of societal responses to the youthful wrongdoing and is adopted when there is repetitive or serious misbehaviour, particularly where education or family environment is not deemed as adequate[3].

Current Age of Criminal Responsibility in Australia and International Standards

The United Nations Convention on the Rights of the Child is aimed at promoting the laws, institutions, procedures and authorities where the specific focus is on children. Article 40 is focused on creating minimum age below which the children are presumed to not have the capacity of infringing the penal laws. Even though this convention does not provide minimum age for the children’s criminal responsibility, the committee of UN responsible for monitoring compliance sets this age as 12 years. There are a number of other jurisdictions where the age of criminal responsibility is 12 years, which includes Netherlands, Canada and Greece; 13 years in New Zealand, France, Israel; 14 years in Germany and Italy; 15 years in Norway, Iceland, Sweden; 16 years in Spain and Japan; and 18 years in Luxemburg and Belgium. In Australia, this age is at 10 year as is the case in UK[4].

With the work of Urbas being published, a number of jurisdictions revised their legislations are they agreed that in a past twenty years, a lot had changed, which required the changing of age limits for criminal responsibility as well. The applicability of doli incapax is under the presumption that a child is not capable of crime. There have been scholars who have asked for this resumption to be amended, along with reversing the onus of proof and also bringing changes in application of it to ages of 12 or below it[5]. The Royal Commission into the Protection and Detention of Children has recommended that the age of criminal responsibility needs to be raised to 12. In this context, they have presented certain statistics management . These shows that an average of 600 children below the ages of 14 were serving sentences each year in the youth detention and out of these 70% were indigenous children. The Victorian Aboriginal Legal Service and the Federation of Community Legal Centres along with other organizations called on to the Victorian Government to bring up the age of criminal responsibility to 14 from the present 10 years limit. This was because the present criminal responsibility age of Australia was not consistent with the international standards, particularly in context of the research surrounding brain development. There was a need for reflecting the manner in which the young people are treated under the criminal justice system[6].

Children require to be provided with necessary support and intervention in order to reduce, instead of bringing up the chances of reoffending. As per the brain development researches, it shows that the brain of the young people are still at developing stage. The younger children have low capacity of decision making, and of controlling and understanding behaviour. When the children come in contact with the criminal justice system at a tender age, it makes them more likely to reoffend and that too in a more frequent manner, in comparison to receiving custodial sentence. The 2016 report of the Sentencing Advisory Council, i.e. Reoffending by Children and Young People in Victoria has shown that there was a high chance of young person or child going towards adult criminal jurisdiction from the Children’s Court and this was deemed as their entrance towards the criminal courts. The children at their first sentence were more likely to reoffend that too in a violent manner and continue in adult criminal jurisdiction and even sentenced under this jurisdiction before they reach their 22^nd birthday. It is important to not here that by bringing up the criminal responsibility age does not mean that the children below the new age limit should not be responsible or accountable for their actions. What it means is that they should be made liable through some other measures instead of the criminal justice system[7].

Impact of Early Criminal Justice System Involvement on Children

Even the United Nations has grilled Australia for such low age of criminal responsibility. They have also condemned the nation for racial discrimination as the children in Australia are arrested for crimes where they attain 10 years of age and there were 25 times more chances of an Aboriginal and Torres Strait Islander child to be arrested in comparison to the non indigenous child. When a child as young as 10 years of age is taken away from their families, they are forced to rely on criminal justice system for their future, which simply takes away the basic rights of the children in context of learning, growing and thriving[8]. The research has shown that the children, who are initially sentenced at the ages of 12 or below it, have an 86% chance of offending again. The rate for the children where they are first sentenced in late teenage years stands at 33. The linking between reoffending and criminal responsibility has already been pointed out. There was an adult recidivism in Vitoria at 42.8%, whilst this figure stood at 30% and 20% for Spain and Norway whee the age of criminal responsibility was 15 years[9]. To focus the children as criminals at the tender age of 10 years of age is sheerly wrong and there is a need to put efforts and focus on keeping such children safe, where they are supported in their communities[10].

The final report of NT royal commission provided that these measures were aimed at restoring the failed child protection and detention systems in NT, where it called for children under ages of 14 to be jailed only for violent and serious crimes[11]. They also highlighted the recommendation of 12 years as being the absolute minimum age for child to be charged with criminal offence as per the UN Committee on rights of Child. There was a median age of criminal responsibility across the globe as being 14 years which is based on recommendation of scientific studies, which have demonstrated that on an average, the children below the ages of 14 are not maturely developed enough to be made liable for a criminal activity. Where there was a failure in caring, protecting and supporting the children in need, which is over 3000 children below ages of 14, there is a need to change the system[12]. Lord Lowry, in C v DPP[13], provided that the effect and objective of the presumption under doli incapax was that there was a need of protecting the children when they were under the age of 10 to 14, from the criminal law’s full force.

Support and Intervention for Reducing Reoffending

In Minister for Immigration, Local Government and Ethnic Affairs v Ah Hin Teoh[14], it was held by the High Court that the children can have a legitimate expectation that when the discretionary powers are exercised by the decision maker, they could consider the best interest of the children. Removing a child from the care of parents cannot be deemed as best interest for the child as they leave their support system and go in a new environment, which as per the statistics, pushes them towards the criminal path. The recommendations given by the Royal Commission were based on the evidence which they had attained, the stories which they heard from individuals in the community, and the documents which had been submitted to it. They established that the youth detention centres were not fit for accommodating the children and were far from being rehabilitated. There were also cases of children being subjected to physical control and humiliation, verbal abuse and being denied human needs, which in turn pushes them to continue on criminal path, instead of being a noble citizen. They are even put in this path when they are bribed or dared to do humiliating or degrading acts, or to undertake acts of violence with each other. In context of providing these young children the necessary care and protection, the justice system had failed, and there was a need to adopt immediate measures to correct this, one of which is increasing the criminal responsibility age to 12 and children below 14 to be detained only for heinous crimes[15].

In order to hold a person liable for a criminal offence, mens rea has to be established. But a child, who is not aware of his own wellbeing, cannot be assumed to use this defence each time a criminal allegation is raised against them. This is particularly due to the lack of mental competence of the child to differentiate at the age of 10 between right and wrong, or the possible defences which such child can raise. In absence of these, it is harsh to make such children liable for their acts, particularly when they were not aware of the magnitude of it[16].

Conclusion

Thus, from the discussion undertaken in the earlier parts, it can be concluded that the responsibility of criminal justice system in cases of children is increased manifolds. The present limit of 10 years of age for the criminal responsibility to be imposed on children is harsh and not justified. The times have changed and it has been proved through the discussion undertaken here that the criminal justice system has failed in correcting the children undertaking criminal offences. Further, by taking away the child from the parents at tender age, they become detached and again get pushed towards the criminal path. These entire factors require the age of criminal responsibility to be revisited. This shows that there is a need to bring up the age of criminal responsibility from 10 to 14, as even the common law principle of doli incapax shows that a child is unable to decide what is best for them during these ages. This becomes the work of the decision makers to take corrective measures, to protect and safeguard the children, and to uphold the actual theme of criminal justice system.

Bradley L, ‘The age of criminal responsibility revisited’ (2003) 8(1) Deakin law review 71.

Crofts T, ‘Doli Incapax: why children deserve its protection’ (2003) 10(3) eLaw Journal: Murdoch University Electronic Journal of Law 1.     

Dowd NE, Justice for Kids: Keeping Kids Out of the Juvenile Justice System (NYU Press, 2012)

Farmer E, ‘The age of Criminal Responsibility: Developmental science and Human Rights Perspectives’ (2011) 6 (2) Journal of Children’s services 86 

Urbas G, ‘The Age of Criminal Responsibility’ (2000) 181 Trends and Issues in Crime and Criminal Justice

Minister for Immigration, Local Government and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 128 ALR 353

Blanco C, Will Australia follow the NT's promise to raise the age of criminal responsibility? (05 March 2018) <https://www.sbs.com.au/nitv/nitv-news/article/2018/03/05/will-australia-follow-nts-promise-raise-age-criminal-responsibility>

Derkley K, Open letter calls for age of criminal responsibility to be raised to 14 (28 November 2017) <https://www.liv.asn.au/Staying-Informed/LIJ/LIJ/November-2017/Experts-call-to-raise-age-of-criminal-responsibili>

Human Rights Law Centre, UN grills Australia over low age of criminal responsibility (28 November 2017) <https://www.hrlc.org.au/news/2017/11/28/un-grills-australia-over-low-age-of-criminal-responsibility>

Royal Commission, Report Overview (2018) <https://childdetentionnt.royalcommission.gov.au/Documents/Royal-Commission-NT-Report-Overview.pdf>

Royal Commission, Royal Commission and Board of Inquiry into protection and detention systems of the Northern Territory has revealed systemic and shocking failures (17 November 2017) <https://childdetentionnt.royalcommission.gov.au/media-centre/Documents/Royal-Commission-Board-Enquiry-Media-release.pdf>

Victoria Legal Aid, Victoria Legal Aid supports raising the age of criminal responsibility (30 November 2017) <https://www.legalaid.vic.gov.au/about-us/news/victoria-legal-aid-supports-raising-age-of-criminal-responsibility>