AGE OF CRIMINAL RESPONSIBILITY

January 9, 2018 | Author: Anonymous | Category: Social Science, Law, Criminal Justice
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AGE OF CRIMINAL RESPONSIBILITY

Ever seen a 5 year old kid on trial? Of course not.

Why not? They’re evil… There is a long-standing (500-1000 years old) agreement in most parts of the world that children are NOT to be held responsible for crimes because they’re not totally aware of what they are doing.

The age at which a child can be held responsible for a crime is called the age of criminal responsibility. In Australia, the lowest age at which someone can be charged with a crime is 10 (in line with our commitment to the Convention on the Rights of the Child (CRoC). The average around the world is 13. In the United States, a lot of States have a minimum age of just 6!

Why the differences?

AGE OF CRIMINAL RESPONSIBILITY

The idea is called doli incapax, meaning ‘incapable of crime’. A child in NSW under 10 is considered to be doli incapax, meaning that they don’t understand that what they did was seriously wrong (from R v Gorrie (1919). These words are VERY important. My 3 year old son knows when he has done something naughty or that he’s being mischievous, but it takes a much more developed mind to understand that something is seriously wrong.

The differences between countries (and States within countries) has developed because of 2 things: 1. Different opinions about when children actually do become aware that their actions are seriously wrong; and 2. Every time a kid around 10 commits a terrible crime (like murder), the victim’s family is obviously distraught, and wants the murderer to face court (to “get justice”). So, the media ends up getting involved, and we ask the same question that has been asked over and over and over – should we get rid of the principal of doli incapax? Why not?

AGE OF CRIMINAL RESPONSIBILITY

In NSW… Born Doli Incapax

Age of Criminal Responsibility

End of ‘doli incapax’ presumption

No longer a juvenile

10

14

18

Rebuttable Presumption of Doli Incapax

No Doli Incapax, but still a juvenile

Full responsibility

‘Presumption’ when you assume something is true without even having to check. ‘Rebuttable’ when there is a way of refuting/proving something wrong.

So, there is a presumption that a kid between 10 and 14 isn’t able to know if he’s doing something seriously wrong BUT this presumption IS REBUTTABLE (meaning that it’s up to the Prosecution to prove that the kid IS capable of knowing what is right and what is seriously wrong)

AGE OF CRIMINAL RESPONSIBILITY

In NSW… Born Doli Incapax

Age of Criminal Responsibility

End of ‘doli incapax’ presumption

No longer a juvenile

10

14

18

Rebuttable Presumption of Doli Incapax

No Doli Incapax, but still a juvenile

Full responsibility

Why does it go from green to yellow gradually? If the kid is 10, the prosecution has to have an overwhelming amount of evidence to show that he’s capable of understanding that what he did was seriously wrong.

The closer the kid is to 14, the easier the Prosecution’s job is to prove that he understood what he was doing.

AGE OF CRIMINAL RESPONSIBILITY

DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY

You might already be able to see where this might raise a few questions… So, we’re gonna discuss the issues surrounding (about) the age of criminal responsibility.

AGE OF CRIMINAL RESPONSIBILITY

DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY

AGE OF CRIMINAL RESPONSIBILITY

A few horrible cases first, just so you know why the debate about the age of criminal responsibility comes up every once in a while… Jamie Bulger (1993) (UK) These two 10 year-old kids kidnapped a 2 year old (Jamie Bulger), torturing and killing him.

Because they tried to hide what they had done, and that it took them so long to do it, they were found guilty and spent about 10 years locked up.

DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY

R v LMW (death of Corey Davis) (1999) A 10 year old boy threw a 6 year old (who he knew couldn’t swim) into the Georges River (Macquarie Fields). He drowned. Originally, the case against him was dismissed, but there was enormous outrage in the media about it. The NSW DPP (Nick Cowdery) got around the Children’s Court and took the case straight to the Supreme Court, charging LMW with Manslaughter. The jury heard that LMW was immature for his age (more like 8, rather than 10/11) and found him not guilty in less than 3 hours.

So you can see where the controversy comes in – Where’s the justice for the victim? Especially when the victim is a child too? And their family?

AGE OF CRIMINAL RESPONSIBILITY

The effect of the Jamie Bulger case in the UK… 1993 – Jamie Bulger is murdered in the UK. Two 11 year-olds are found guilty and sentenced to a minimum of 10 years in jail. 1998 – The ‘New Labour’ government in the UK passes the Crime and Disorder Act 1998, which removes the rebuttable presumption of doli incapax for 10-14 year-olds, leaving the UK with one of the lowest ages of criminal responsibility in the world.

DISCUSS the issues surrounding the age of criminal responsibility

1996-2006 – There is a 550% increase in the number of juveniles sentenced to jail in the UK

The effect of the Corey Davis case in Australia… AGE OF CRIMINAL RESPONSIBILITY

1997 – Australian Law Reform Commission recommends raising the age of criminal responsibility to 14 in all States and Territories. It doesn’t happen. 1998 – Corey Davis dies. 1999 – LMW is charged and put on trial in the Supreme Court of NSW. The Prosecution fails to rebut the presumption of doli incapax. 2000 –The Attorney-General’s department publishes A Review of the Law on the Age of Criminal Responsibility of Children after a lot of media attention about the Corey Davis case. The decision is made to keep the rebuttable presumption of doli incapax.

AGE OF CRIMINAL RESPONSIBILITY

Issue 1: 10-14 year old kids probably don’t know right from wrong.

The killers of Jamie Bulger obviously knew what they were doing, they even tried to cover-up their crime.

DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY

One of the killers of Jamie Bulger was heard to be talking about “bringing him back to life”, like in a Disney movie. THEIR brains weren’t fully developed.

But there are kids who even do the HSC at age 14, what about them? Can someone doing the HSC really not understand what actions are seriously wrong?

That’s why it’s a REBUTTABLE presumption – if they DO understand what “seriously wrong” really means, then they CAN be put on trial

AGE OF CRIMINAL RESPONSIBILITY

Issue 2: Has there been any change in how well children understand their actions in the past 100 years? Kids have access to an almost INFINITE amount of information. How could they not know the consequences of their actions?

“Information” doesn’t mean moral or ethical guidance. Just because a child knows more, it doesn’t mean that he has a greater ability to make wise decisions. Perspective Program, ABC Radio National (2004)

DISCUSS the issues surrounding the age of criminal responsibility

Children receive a much better education today (no more leaving at the end of Year 6).

Most of the young people facing up to the Children’s Court are chronically absent from school (whether by neglect, truancy or expulsion)

AGE OF CRIMINAL RESPONSIBILITY

Kids watch so much adult content on tv and on the internet, and they are much more comfortable “living in the world of adults” rather than being “innocent” children like they used to be (shielded from seeing the real consequences of people’s actions)

But at the same time, kids are really only pretending to be adults. They’re not paying mortgages or raising kids of their own. “There are many indicators that conditions in modern society may be making it more difficult for children to learn what is right and wrong than is commonly thought” (e.g. watching realistic portrayals of violence without seeing the victim as a “real person” may have a desensitizing effect, leading a young person to commit a violent act without really feeling bad because they’ve seen it and done it all before, but virtually) - Doli Incapax: Why Children Deserve its Protection Murdoch University Electronic Journal of Law (2003)

AGE OF CRIMINAL RESPONSIBILITY

DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY

So what’s going to happen? So, yeah, the rebuttable presumption of doli incapax will probably disappear in the future when a 10 or 11 year-old kid commits a horribly gruesome crime. The media will go berserk and demand action and the government will follow through (especially if it is an election year). It will get popular support because, as the Australian Law Reform Commission found in the report Young Offenders (2005), there is this nagging public perception that youth crime is “rampant” and that young people are increasingly uncontrollable, but it’s generally not true. Another option? Some lawyers have argued that it might actually just be a better idea to shift the burden of proof to the Defence (meaning that, if a 10-13 year-old is facing charges, it will be up to his lawyer to prove (on the balance of probabilities) that he didn’t understand that what he was doing was seriously wrong. Could be a good compromise, instead of losing it all together…

AGE OF CRIMINAL RESPONSIBILITY

DISCUSS the issues surrounding the age of criminal responsibility AGE OF CRIMINAL RESPONSIBILITY

The question of keeping, raising or lowering the age of criminal responsibility came up again in 2012. The submissions to a government inquiry suggested: Mayor of Wentworth Shire Council

Lower to 8

Bar Association

Keep at 10

NSW Police

Keep at 10

UN High Commissioner for HR

Raise to at least 12

Law Society

Raise to 13

Youth Justice Coalition

Raise to 14

NSW Commissioner for Children and Young People

Raise (over time) to 16

9 year old criminal masterminds

Raise by one year, every year from now on…

Age of criminal consent: 16 or 8 (SMH 2012)

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