Debate on minimum age of criminal responsibility inevitable

Today’s comments by the Childrens’ Commissioner for England and Wales are sure to re-open debate about the minimum age of criminal responsibility (MACR).

The Celtic League first raised concerns about the MACR almost a decade ago see links below:

https://groups.yahoo.com/group/celtic_league/message/2978
https://groups.yahoo.com/group/celtic_league/message/170

Speaking as the furore about the situation surrounding Jon Venables one of two children convicted by an adult court for the murder of two year old James Bulger the Commissioner, Maggie Atkinson, said that the two (Venables and his co-accused) should not have been prosecuted for his murder because children under the age of 12 who commit crimes are too young to understand the full consequences of their actions.

The Commissioner went on to say that:

“The age of criminal responsibility in this country is 10 – that’s too low, it should certainly be moved up to 12; in some European countries it is 14,” she said.

“In terms of knowing what the full consequences of your actions are, you are into older childhood or adolescence.”

The Commissioner was soon on the defensive however issuing a statement of clarification as a spokesman for the United Kingdom government rejected suggestions the MACR should be raised.

In the febrile atmosphere generated by the Venables controversy it¡¦s clear that dispassionate discussion about the MACR is difficult in the UK.

It is also clear that Atkinson’s suggestion that the MACR should be adjusted to 12 indicates the timidity with which she thinks she should approach the issue.

Outside the UK the treatment of child offenders has also drawn criticism. John Lonergan the Governor of one of Europe¡¦s toughest prisons (Mountjoy in Dublin) and no stranger to criminal justice controversy speaking on RTE earlier this week he criticised the British legal system saying:

“Obviously, it¡¦s a very complex case. First of all, they were children. I don¡¦t think the English society responded very humanely to them. They treated them like adults. They were children and while the crime was horrific, they were still only 10-year-olds. That¡¦s the first thing.

“You can¡¦t just erase away what happened from 10 to 27. There is 17 years in between. What happened in that period of time they were in detention? What happened to them during detention?”

Mr Lonergan also said he that while he believed that people such as Venables were capable of evil acts, nobody was intrinsically evil saying:

“I am well aware of many, many people in Ireland whose behaviour was evil and have been guilty of very evil acts, but it is a behaviour. I honestly believe, and this has been my experience, that there is no such thing as a totally evil person.”

The United Nations Committee on the Rights of the Child is unequivocal in its criticism of the treatment of children in the British justice system and the MACR fails to meet its benchmark in England and Wales, N. Ireland, Scotland or the Isle of Man.

In its most recent report it said:

¡§The Committee recommends that the State party fully implement international standards of juvenile justice, in particular articles 37, 39 and 40 of the Convention, as well as general comment No. 10 on ¡§Children¡¦s rights in juvenile justice¡¨ the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (¡§the Beijing Rules¡¨), the United Nations Guidelines for the Prevention of Juvenile Delinquency (¡§the Riyadh Guidelines¡¨) and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (¡§the Havana Rules¡¨). It also recommends that the State party:

(a) Raise the minimum age of criminal responsibility in accordance with the Committee¡¦s general comment No. 10, and notably its paragraphs 32 and 33;

(b) Develop a broad range of alternative measures to detention for children in conflict with the law; and establish the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle;

(c) Children in conflict with the law are always dealt with within the juvenile justice system and never tried as adults in ordinary courts, irrespective of the gravity of the crime they are charged with;

(d) Following the welcome withdrawal of its reservation to article 37

(c) of the Convention, ensure that, unless in his or her best interests, every child deprived of liberty is separated from adults in all places of deprivation of liberty;

(e) Provide for a statutory right to education for all children deprived of their liberty;

(f) Review the application of the Counter Terrorism Bill to children;

(g) Ensure that, when children in the Overseas Territories are subject to deprivation of liberty in another country, all the guarantees enshrined in article 40 of the Convention are respected and that this respect is duly monitored; the State party
should also ensure that those children have the right, unless it is considered in the child¡¦s best interest not to do so, to maintain contact with their family through regular visits;

(h) Adopt appropriate measures to protect the rights and interests of
child victims or witnesses of crime at all stages of the criminal justice process.¡¨

Full report here:

https://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf

UNCRC General Comment No 10 referred to above says:

¡§C. Age and children in conflict with the law

The minimum age of criminal responsibility

30. The reports submitted by States parties show the existence of a wide range of minimum ages of criminal responsibility. They range from a very low level of age 7 or 8 to the commendable high level of age 14 or 16. Quite a few States parties use two minimum ages of criminal responsibility. Children in conflict with the law who at the time of the commission of the crime are at or above the lower minimum age but below the higher minimum age are assumed to be criminally responsible only if they have the required maturity in that regard. The assessment of this maturity is left to the court/judge, often without the requirement of involving a psychological expert, and results in practice in the use of the lower minimum age in cases of serious crimes. The system of two minimum ages is often not only confusing, but leaves much to the discretion of the court/judge and may result in discriminatory practices. In the light of this wide range of minimum ages for criminal responsibility the Committee feels that there is a need to provide the States parties with clear guidance and recommendations regarding the minimum age of criminal responsibility.

31. Article 40 (3) of CRC requires States parties to seek to promote, inter alia, the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law, but does not mention a specific minimum age in this regard. The committee understands this provision as an obligation for States parties to set a minimum age of criminal responsibility (MACR). This minimum age means the following:

ƒ{ Children who commit an offence at an age below that minimum cannot be held responsible in a penal law procedure. Even (very) young children do have the capacity to infringe the penal law but if they commit an offence when below MACR the irrefutable assumption is that they cannot be formally charged and held responsible in a penal law procedure. For these children special protective measures can be taken if necessary in their best interests;

ƒ{ Children at or above the MACR at the time of the commission of an offence (or: infringement of the penal law) but younger than 18 years (see also paragraphs 35-38 below) can be formally charged and subject to penal law procedures. But these procedures, including the final outcome, must be in full compliance with the principles and provisions of CRC as elaborated in the present general comment.

32. Rule 4 of the Beijing Rules recommends that the beginning of MACR shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. In line with this rule the Committee has recommended States parties not to set a MACR at a too low level and to increase the existing low MACR to an internationally acceptable level. 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. States parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level.

33. At the same time, the Committee urges States parties not to lower their MACR to the age of 12. A higher MACR, for instance 14 or 16 years of age, contributes to a juvenile justice system which, in accordance with article 40 (3) (b) of 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. In this regard, States parties should inform the Committee in their reports in specific detail how children below the MACR set in their laws are treated when they are recognized as having infringed the penal law, or are alleged as or accused of having done so, and what kinds of legal safeguards are in place to ensure that their treatment is as fair and just as that of children at or above MACR.

34. The Committee wishes to express its concern about the practice of allowing exceptions to a MACR which permit the use of a lower minimum age of criminal responsibility in cases where¡¨

the child, for example, is accused of committing a serious offence or where the child is considered mature enough to be held criminally responsible. The Committee strongly recommends that States parties set a MACR that does not allow, by way of exception, the use of a lower age.

35. If there is no proof of age and it cannot be established that the child is at or above the MACR, the child shall not be held criminally responsible (see also paragraph 39 below).

The upper age-limit for juvenile justice

36. The Committee also wishes to draw the attention of States parties to the upper age-limit for the application of the rules of juvenile justice. These special rules – in terms both of special procedural rules and of rules for diversion and special measures – should apply, starting at the MACR set in the country, for all children who, at the time of their alleged commission of an offence (or act punishable under the criminal law), have not yet reached the age of 18 years.

37. The Committee wishes to remind States parties that they have recognized the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in accordance with the provisions of article 40 of CRC. This means that every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice.

38. The Committee, therefore, recommends that those States parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years. The Committee notes with appreciation that some States parties allow for the application of the rules and regulations of juvenile justice to persons aged 18 and older, usually till the age of 21, either as a general rule or by way of exception.

39. Finally, the Committee wishes to emphasize the fact that it is crucial for the full implementation of article 7 of CRC requiring, inter alia, that every child shall be registered immediately after birth to set age-limits one way or another, which is the case for all States parties. A child without a provable date of birth is extremely vulnerable to all kinds of abuse and injustice regarding the family, work, education and labour, particularly within the juvenile justice system. Every child must be provided with a birth certificate free of charge whenever he/she needs it to prove his/her age. If there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.¡¨

Full text of UNCRC General Comment No 10 can be found here:

https://www2.ohchr.org/english/bodies/crc/comments.htm

Current minimum age of criminal responsibility in each of the Celtic countries is as follows:

Scotland 8 (There are plans to increase it to 12)

Wales (& England) 10

N Ireland 10

Ireland 12

Isle of Man 10

Brittany (France) 13

All fall below the United Nations CRC minimum benchmark.

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