The minimum age of criminal responsibility (MACR)

Article 40(3)(a) of the UNCRC requires the ‘establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law’. Although the Convention does not specify an appropriate age, the United Nations Committee on the Rights of the Child (2007: para 32) -via its ‘General Comment No. 10’ on juvenile justice - has stated that: ‘from these recommendations, it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable’ (see also Beijing Rules article 4(1)). The same UN Committee (2007: para 33) argues that a higher MACR of 14 or 16 years

contributes to a juvenile justice system which, in accordance with article 40(3)(b) of the CRC, deals with children in conflict with the law without resorting to judicial proceedings, providing that the child’s human rights and legal safeguards are fully respected.

Furthermore, at the time of writing this position - to formally recommend a higher MACR - is being reflected in the redrafting of‘General Comment No. 10’.5 Set against this, in both Australia and England and Wales, the MACR stands at just 10 years old.

Throughout Australia a presumption against full and unmitigated criminal responsibility exists until the age of 14 years. The principle of doli incapax is the rebuttable presumption that children between the ages of 10 and 14 years are not necessarily capable of discerning between right and wrong. In cases where a child of such age is facing criminal charges the presumption of innocence is only rebuttable if the prosecution can satisfy the court, beyond reasonable doubt, that at the time of the ‘offence’ the child knew that what s/he did was seriously wrong, not merely naughty or mischievous. In England and Wales, the principle of doli incapax provided a similar measure of protection ‘for hundreds of years’ (Bandalli 2000: 83), before the Crime and Disorder Act 1998 had the effect of abolishing it. Bateman (2012: 5) has argued that ‘the abolition of doli incapax represented] an effective lowering of the age [of criminal responsibility]’, meaning that, in 1999, the number of children aged between 10 and 14 years issued with police cautions and/or court convictions for indictable offences was 29 per cent higher than it had been the year prior to abolition (ibid: 5). In Australia there have also been attempts to either abolish doli incapax, or to limit its scope. However, advocates of children’s human rights have so far successfully argued that there is no compelling evidence to support the abolition of doli incapax and that the principle represents ‘an important way of recognising that young people mature at varied rates and have varied levels of development and lived experience’ (Cunneen et al. 2015: 250). Furthermore, after the release of findings and recommendations from a major high-profile inquiry into juvenile detention (Royal Commission into the Protection and Detention of Children in the Northern Territory 2017), there is currently a stated commitment in the Northern Territory to raise the MACR to 12 years (Blanco 2018) and, more widely, a meeting of the Coalition of Australian Governments Council of Attorneys-General (2018: 4) has ‘agreed... to examine whether to raise the age of criminal responsibility from 10 years of age’ and has undertaken to establish a working group ‘to review this matter, drawing from relevant jurisdictional and international experience, and will report back within 12 months’.

At 10 years, the current MACR in Australia and in England and Wales is inconsistent with prevailing practice both in Europe (House of Lords House of

Commons Joint Committee on Human Rights 2003: 19) and much of the world (Cipiani 2009). Indeed, the average MACR in the European Union is 14 years (Goldson 2013) where ‘it can be shown that there are no negative consequences to be seen in terms of crime rates’ (Dünkel 1996: 38). Similarly, in some 86 countries surveyed worldwide the median age was 14 years and, despite variation, ‘there has been a trend for countries around the world to raise their ages of criminal responsibility’ (Hazel 2008: 31-32). The situation in Australia and in England and Wales is clearly anomalous with global norms.

Notwithstanding the provisions of international human rights standards, the weight of authoritative/expert opinion and international evidence (Cunneen et al. 2018) - and the repeated recommendations issued by the UN Committee on the Rights of the Child (1995, 2002, 2008, and 2016) to the UK Government - the political mood remains resistant to raising the MACR is England and Wales. As stated above, recent developments in Australia - where the UN Committee on the Rights of the Child (1997, 2005, and 2012) has made similar recommendations - look to be more positive and chime with the widespread (although not unanimous - see Chapter 7) support for raising the MACR expressed by the youth justice stakeholders and experts who we interviewed. Typical comments included:

We should be looking at what the best practice is around the world... and most of the world would tell us that it’s much higher than 10 [years old] ... If you’re saying that a 10-year-old is responsible for criminal behaviour and activity and they understand what they are doing, then I think you don’t take human rights very seriously. (NSW, Senior Civil Servant)

So, I think that the age of criminal responsibility in England and Wales is too low... I think it could be higher... I think we can manage young people under the age of 13 in the community setting, out of court and out of the criminal justice system altogether. I think we have already demonstrated that in many respects with the Youth Justice Liaison and Diversion Programme that those young people who present challenges... or have committed offences can receive a full range of interventions that the YOT has at its disposal without the need for a conviction. Certainly, some of the work we have done here helps us to understand... that their thinking and level of ability is not functioning at a standard 10 or 11-year-old. So, I think a lot of the young people we are seeing at the age of 10, 11, 12 we could be working with outside of the system altogether. I think yes if I was given a chance to sit before the Parliamentary Select Committee I would say that we have a lot of evidence to support the argument that we are bringing young people into the system too early’. (E&W, Senior Youth Justice Officer)

But what are the implications of the low MACR for understanding youth penality? A low age of criminal responsibility, and the abolition of doli incapax in

England and Wales, inevitably serves to criminalise children and young people rather than address their developmental, welfare and care needs (Gillen 2006). Several of our interviewees commented on the often striking differences between the chronological ages of children and young people and their emotional, psychological and/or developmental age. For example, an Australian interviewee explained:

The youngest person who has been in one of our [detention] centres was 11... Whilst that young person might have had a chronological age of being 11, he could have just been 7 or 8... We really need to be looking at where these young people are functioning. (NSW, Juvenile/Youth Justice Senior Manager)

Similarly, a youth justice expert from England and Wales reflected on the absurdity of holding children and young people legally responsible when their capacity is manifestly wanting:

It has always struck me as not amusing but odd that... we hold children and young people to be criminally responsible but then, having assessed risk and need, we get to a point where we say, “ooh well what you need is a dose of cognitive behavioural intervention so that your thinking is more effective”. Well if there is acknowledgement that someone’s thinking is not effective surely that should be acknowledged at the sentencing stage and not afterwards. There is a paradox there of holding children responsible when they may not have the capacity to be responsible. (E&W, Academic Expert)

The current low MACR in Australia and in England and Wales, not only compromises international human rights standards but it also imposes harm and increases the prospect of further criminalisation. Youth justice systems are themselves criminogenic, of course, and early contact is one of the key predictors of future offending and further youth intervention (Chen et al. 2005; McAra and McVie 2007; Payne 2007; Gatti et al. 2009; AIHW 2013; McAra and McVie 2019), There is, therefore, strong evidence to suggest that raising the MACR has the potential to offset social harm and to reduce the likelihood of ‘persistent’ or ‘life-course’ interaction with the youth justice system. The same action would also promise to rectify the substantial over-representation of Aboriginal and Torres Strait Islander children (in Australia) and black and minority ethnic children (in England and Wales) in youth justice systems, particularly their concentration among the younger age groups subject to community supervision and custodial detention (see Chapter 5).

At a more abstract or theoretical level, the low MACR that currently pertains in Australia and in England and Wales is a strong statement about how children’s capacity is conceptualised and operationalised in criminal law and how young people are held to be accountable. It defies the jurisprudential logic that prevails in civil law where capacity - in respect of both rights and responsibilities - is invoked at significantly later stages in the lifecourse (the right to leave school, to consent to medical treatment or a sexual relationship, to purchase alcohol or to vote, for example). Further the low MACK, also signifies a range of social, cultural and political sensibilities that imply that penal sanctions, rather than educational, health and welfare services, represent the preferred strategies and responses for governing, regulating and ordering some of the most disadvantaged and vulnerable children and young people in the respective jurisdictions.

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