Children's Criminal Responsibility in Law - Case Study 3, Part 1, Lectures 1 & 2 (PDF)

CHILDREN’S CRIMINAL RESPONSIBILITY IN LAW* Case Study 3, Part 1 Lectures 1 and 2 Professor Kathryn Hollingsworth LAW 133: Contemporary Issues in Law and Justice...

CHILDREN’S CRIMINAL RESPONSIBILITY IN LAW* Case Study 3, Part 1 Lectures 1 and 2 Professor Kathryn Hollingsworth LAW 133: Contemporary Issues in Law and Justice [email protected] * Image taken from BBC drama ‘Responsible Child’ directed by Nick Holt   To develop a critical understanding of the law relating to the minimum age of criminal responsibility (MACR) in CASE England and Wales;  To understand how and why the law STUDY 3 relating to the minimum age of LEARNI criminal responsibility has changed over time; NG  To understand and critique different perspectives (academic, judicial, OUTCOM political) on the purpose and justifications underpinning the ES minimum age of criminal responsibility;  To critically evaluate arguments for reform of the MACR in England and Wales.  Teac Date Topic 3 activity Other Law hing 133 Wee activities CASE k 8 w/c 18th Lectures 1 and 2 Workshop STUDY 3 November (11am-1pm Thursday 21st) Topic 2 (as per your SCHEDU individual timetable) LE FOR 9 w/c 25th Lectures 3 and 4 November (11am-1pm Tutorial Topic 2 (as THE Thursday 28st) per your individual timetable) TOPIC 10 w/c 2nd Workshop Topic 3 December (as per your individual timetable) 11 w/c 9th Tutorial Topic 3 (as Revision December per your individual Lecture timetable)  1. Introduction and context  Why are we studying the children’s CASE criminal responsibility in law?  Social construction of children and their STUDY 3 criminal responsibility  Consequences of criminal responsibility STRUCT  The statistical picture URE OF 2. The law on MACR in England and Wales  The MACR LECTUR 3.  Doli incapax How is, and should, the MACR be determined? ES  Legal view  Policy view  Politicized view  Rights-based view 4. Reform of the law on MACR in England and Wales? 1. Introduction and Context  Justice for Victims Harm to Principl Public the child es Safety relevan t to the Consistent MACR with the Public Values of the CJS Confiden (autonomy ce and rights)  WHAT IS THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY IN ENGLAND AND WALES? [wooclap slide to be inserted here]  DO YOU THINK THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY IN ENGLAND AND WALES IS TOO HIGH, TOO LOW, OR ABOUT RIGHT? [wooclap slide to be inserted here] Children’s criminal responsibility: a global view (egs) Jurisdiction Age of criminal Jurisdiction Age of criminal responsibility responsibility Albania 14 France 13 Argentina 16 1celand 15 Australia 10 Ireland 12 Belgium 12 Malawi 12 Bulgaria 14 Poland 17 Canada 12 Rwanda 14 Chile 18 Spain 14 Croatia 14 Sweden 15 Denmark 15 Uganda 12 Egypt 12 Uzbekistan 16 How we understand childhood (and the ages it encompasses) varies widely ‘across the boundaries of time, place and social position’ Barry Goldson (2013, p 112)  MACR = the age at which the law allows criminal proceedings to be brought against a child who commits a crime Any child above the age of MACR can be criminally liable if conditions of the offence are met MACR No child BELOW the age of MACR can be criminally liable EVEN if conditions of the offence are met All children below the MACR are CONCLUSIVELY PRESUMED to be DOLI INCAPAX (‘incapable of evil’) = defence of infancy Overview of the possible consequences if a child is over the MACR... Overview of the possible consequences if a child is below the MACR...  Children Act 1989  Crime and Disorder  S 31(2) Care or Act 1989 Supervision order  S 11 Child Safety IF (a) the child is Order, puts child suffering or likely under supervision (of to suffer significant youth justice worker) harm and (b) the and child has to harm or likelihood comply with of harm is requirements attributable to....  Used if child (ii) the child being committed what beyond parental would be an offence if control. over MACR; necessary to prevent offending; caused ’harassment, alarm or distress’  Let’s look at the statistics.... (taken from latest youth justice statistics (up to March 2023)*  59,045 children arrested  16,589 children in court  5,014 cautions given to children  11,911 sentences given to children  8,306 community sentences to children  544 custodial sentences given to children * Taken from https://www.gov.uk/government/statistics/ youth-justice-statistics-2022-to-2023/ youth-justice-statistics-2022-to-2023- accessible-version#gateway-to-the- youth-justice-system  2300 10-14 year olds 3,562 10-14 year olds 16 10-14 year olds  How might such statistics be used in critique about the MACR? In arguments to Counter: eg Counter: eg what support OR lower regardless of about those the MACR (eg numbers, we still young children ‘there aren’t many need to think that remain in children affected about the issue the CJS? Think so what difference from a principled about ‘system does it make?’) perspective contact’ (see McAra and McVie, 2007) 2. The law on the MACR  The Legal Development of the Minimum Age of Criminal Responsibility Children and Common Law Children and Young Persons (from around Young Persons Act 1963, s 16 15th Century): Act 1933, s 50: amended the 7 years 8 years 1933 Act: 10 years Current Law: Children and Young Persons Act 1933, s 50: ‘It shall be conclusively presumed that no child under the age of ten years can be guilty of any offence’. Section 4: Prohibition of criminal proceedings for offences by children A person shall not be charged with an offence, except homicide, by reason of anything done or omitted while he was a child. Section 70: Interpretation and ancillary provisions " child ", except in Part II (including Schedule 3) and sections 27, 63, 64 and 65 of this Act, means a person under the age of fourteen, So Children and Young Persons Act 1969, s 4 - Raised MACR to 14 BUT it was never implemented - So why have I mentioned it? Reveals key issue/tension in MACR Younger children as vulnerable and/or less capable = should be below MACR Children over 10 DO have adequate capacity and ‘robust’ enough = above MACR  We need to talk about... Doli incapax (‘incapable of evil’): a bit of history Conclusively presumed to be capable of wrongdoing (ie criminally responsible) 14 Rebuttable presumption of doli yrs A ‘buffer incapax: ie presumed to be doli incapax zone’ UNLESS prosecution could prove that the child knew the act was ‘seriously wrong’ (as well as proving the elements of the offence (actus reus and mens rea). Recognises MAC INDIVIDUAL development R Conclusive presumption of doli incapax (ie can NEVER be held criminally responsible) (10 yrs)  Crime and Disorder Act 1998 Section 34: The rebuttable presumption of criminal law that a child aged over 10 or over is incapable of committing an offence is hereby abolished Shaping the law? The murder of James Bulger Two 10-year-old boys (Jon Venables and Robert Thompson) convicted of the murder of 2-year-old James Bulger in 1993  Highly significant event, shaping media and public images of children, youth offending, and the legal response Goldson (2001): it exacerbated the ‘demonization’ of children and increased adult fears of the ‘evil’ that children can commit. C v DPP 3 ALL ER 190 Court (Mr Justice Laws) held that the common law presumption of doli incapax should be abolished: ‘The common law is not a system of rigid rules, but of principles whose application may alter over time, and which themselves may be modified’. 3 All ER 190, 199 C v DPP 3 ALL ER 190 Reasoning? ’Common sense’ argument: the rule assumes the ‘normal’ child does not understand that their actions go against moral norms: this is ‘unreal and contrary to common sense’ (p 196) Practical argument: it’s hard to prove if child does or does not understand especially if they remain silent Conceptual argument: conceptually ‘obscure’ as it does not also apply to adults (p 197) (the law does not require proof the D knew what they did was seriously wrong) Injustice argument: children brought up in ‘good homes’ and who know difference between right and wrong prosecuted; those who are ‘morally irresponsible are not: this is ‘perverse’ (p 198) Outdated argument: children no longer need protection from barbaric punishment as the system is based on rehabilitation and welfare C (A Minor) v DPP AC 1 The distinction between the treatment and the punishment of child 'offenders' has popular and political overtones, a fact which shows that we have been discussing not so much a legal as a social problem, with a dash of politics thrown in, and emphasises that it should be within the exclusive remit of Parliament. (Lord Lowry, p 40) Egs of Critique? (See academic critique and the reasoning on appeal) ’Common sense’ argument: Do children know difference between right and wrong? Do they ‘grow up quicker’ now (as Laws said?) (See Raymond Arthur, 2012). Also, increasing evidence from neuroscience about the adolescent brain (Hannah Wishart, 2018) and Enys Delmage, 2016). Practical argument: Elizabeth Stokes (2000, p 58). argues in practice it WAS easy to rebut the presumption (see also Lord Lowry in the appeal ( 2 All ER 43) who observed ‘the courts, lacking really cogent evidence, often treat the rebuttal as a formality’. Conceptual argument: See Hamer and Crofts (2023, p 553), citing Lord Lowry: ‘general law’ was never meant to apply without qualification to children Injustice argument: lacks logic? Biased? Outdated argument: Hamer and Crofts (2023, p 553): ‘Any suggestion that the criminal justice system provides an appropriate environment for young children seriously underestimates its negative impacts’.  Crime and Disorder Act 1998 Section 34: The rebuttable presumption of criminal law that a child aged over 10 or over is incapable of When a child turns 10, they become criminally committing an offence is responsible ‘.. as soon as the jelly and ice cream is cleared away... ’). (A Smith (1994) ‘Doli incapax hereby abolished under threat’ Cambridge Law Journal 426). Abolition of the presumption is ‘symbolic of the state’s limited vision in understanding children, the nature of childhood or the true meaning of an appropriate criminal law response’ Sue Bandalli (2000, at 94) ‘Children, responsibility and the new youth justice’ (2000) in Goldson, B (ed) The New Youth Justice (Lyme Regis: Russel House) See also Bandalli (1998) ‘Abolition of the presumption of doli incapax and the criminalisation of children’ Howard League of Criminal Justice 37, 2, 114-23. Presumption abolished – but does a defence of doli incapax remain? Section 34: The rebuttable presumption of criminal law that a child aged over 10 or over is incapable of committing an offence is hereby abolished But can this be interpreted to mean that only the PRESUMPTION was abolished but that a child can raise it as a DEFENCE? See DPP v P 1 WLR 1005, Lady Justice Smith (obiter comments): ‘It seems to me that... section 34 abolishes only the presumption of doli incapax so that the defence is still available.’ (para 40). Why?  literal meaning of the words. Government intent and the ‘mischief’ it intended to redress (difficulty of prosecution proving it in every case) Presumption abolished – but does a defence of doli incapax remain? But see R v T EWCA Crim 815, affirmed by House of Lords UKHL 20 House of Lords was very clear in its decision that section 34 abolished both the presumption AND the defence. Why: Government’s intent and mischief (refer to White Paper) Nb See Ray Arthur’s ‘rewritten’ version of the House of Lords decision in R v T where he reimagines a different outcome and reasoning (nb this is a different way of academics critiquing legal judgments). In Stalford, Hollingsworth, and Gilmore (2017) Academic references from these lectures Raymond Arthur (2012) ‘Rethinking the Criminal Responsibility of Young People in England and Wales’ 20 European Journal of Crime, Criminal Law and Criminal Justice 13 Raymond Arthur (2017) ‘Rewritten Judgment: R v JTB’ in Stalford, Hollingsworth, and Gilmore (2017) Rewriting Children’s Rights Judgments (Hart) Sue Bandalli (1998) ‘Abolition of the presumption of doli incapax and the criminalisation of children’ 37(2) Howard Journal of Criminal Justice 114-23 Sue Bandalli (2000) ‘Children, responsibility and the new youth justice’ (2000) in Goldson, B (ed) The New Youth Justice (Lyme Regis: Russel House) Barry Goldson (2001) ‘The demonisation of children: from the Symbolic to the Institutional’ in P Foley et al (eds) Children in Society: Contemporary Theory, Policy and Practice (Basingstoke, Palgrave) Barry Goldson (2013) ‘”Unsafe, Unjust and Harmful to Wider Society”: Grounds for Raising the Minimum Age of Criminal Responsibility in England and Wales.’ 13(2) Youth Justice 111-130. Enys Delmage (2016) ‘The Minimum Age of Criminal Responsibility: A Medico-Legal Perspective’ 13(2) Youth Justice 102-110 Academic references from these lectures David Hamer and Thomas Crofts (2023) ‘The Logic and Value of the Presumption of Doli Incapax (Failing that, an Incapacity Defence’ 43(3) Oxford Journal of Legal Studies pp 546-573 McAra, L and McVie, S (2007) ‘Youth Justice?: The impact of system contact on patters of desistence from offending’ 4(3) European Journal of Criminology 315-345. Elizabeth Stokes (2000) ‘Reflections on the Death of a Doctrine’ in Pickford, J (ed) Youth Justice Theory and Practice (Cavendish) Hannah Wishart (2018) ‘Young Minds, Old Legal Problem: Can Neuroscience Fill the Void? Young Offenders & the Age of Criminal Responsibility Bill -Promise and Perils 82(4) Journal of Criminal Law 311-320. Nb (1): when looking on the reading list on blackboard, book chapters will be listed under the editor of the book NOT the author of the chapter (unless they are the same). NB (2): Some references are only available in hard copy in the library. Please do not let this put you off going to the library and reading them