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Table of Contents

LEGALDATE

Volume 34, Issue 2, 2022

LEGALDATE

Volume 34, Issue 2, 2022

Criminal Responsibility – at what age?

David Hamper

One of the key differences in the application of criminal law is how it applies to children. Throughout Australia, the minimum age that a child can be held to account for their actions criminally is 10 – this is known as the age of criminal responsibility. However, there are special considerations that must be taken into account until a child has reached 14. What the age of criminal responsibility should be is one of the most contentious issues in Australian law at present. There are many who argue that 10 is far too young, disproportionately affecting disadvantaged groups, particularly Indigenous Australians.

Doli incapax

Throughout Australia, the concept of doli incapax applies. This is the concept that a person is too young to form criminal intent or mens rea. The literal translation of doli incapax being – “incapable of crime”. As such a child may still commit a criminal act – actus reus – but because they lack the criminal intent they can not be held to account for their actions – therefore they have no criminal responsibility.

Like some other English based common law jurisdictions, all Australian states and territories set the age of criminal responsibility at age 10. This means that a child below the age of 10 can not be charged with any criminal offence. However, all jurisdictions also then apply the rule of doli incapx to children aged between 10 and 14. This means that the presumption is that the child has no mens rea but they can still be held to account. In these instances, the onus rests with the prosecution to present proof that the child understood the wrongfulness of their actions. Hence it is possible for a child to be criminally prosecuted between the ages of 10 and 14 if the prosecution can successfully demonstrate the mens rea of the child. 

There is considerable case law around this concept. In the so-called Cory Davis case, R v LMV [1999] NSWSC 1128, a group of boys were playing on the banks of Sydney’s Georges River. A ten year old boy threw Cory Davis into the river, where he drowned. It was later established that the boy knew Cory was unable to swim. The Children’s Court applied the concept of doli incapx but after intense public pressure including a concerted media campaign the Director of Public Prosecution appealed the decision after initially refusing to do so. The case was held in a closed court of the NSW Supreme Court and was quickly dismissed again on the grounds of doli incapax. 

In the 2006 case R v BP & SW [2006] NSWCCA172, the NSW Court of Criminal Appeal was asked to consider the legality of the conviction of 2 minors, one aged 12 and the other 11, for the aggravated sexual assault in the company of a 16-year-old girl. The defence argued that given the defendant’s age, the prosecution had the onus to prove beyond reasonable doubt that they were aware of the criminality of their actions. The defence argued that the original judge had not been clear enough in their directions to the jury around the concept of doli incapx. The appeal was dismissed and the original conviction upheld. 

These cases demonstrate the complexity of dealing with criminal cases involving very young children. While the law is clear in relation to a child under the age of 10 it is less so for a child aged between 10 and 14. This has become the crux of the current debate around the age of criminal responsibility with many calling for the age to be increased. 

Research by Amnesty International (2022) has found that the average age of criminal responsibility globally is 14, although it is highly variable around the world. Interestingly the research found that around two-thirds of Australians understood the law to be that children must be 14 before they can be held criminally liable.

Children and crime

A 2019 report from the Australian Human Rights Commission found that around 4800 children were under youth justice supervision in Australia in 2018. Over time the rate has been falling gradually, although there was a slight increase in the number of children in actual detention rather than in community-based supervision. Across Australia in 2019, around 7% of children in youth justice supervision were aged 10-13 years of age, with 81% aged 14 to 17. The remaining 12% were people aged 18 and over still within the youth justice system. So, although the number of 10-13 years interacting with the criminal justice system is small, just 0.01% of the total overall offender population (children and adults), there are serious implications for any child who finds themselves engaged with the youth justice system. 

Age of Criminal Responsibility in other jurisdictions

Article 40 (s.3) of the United Nations Convention on the Rights of the Child (UN CROC) requires that signatory nations to;

“seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law”

The Convention does not stipulate what that age should be, but the UN Committee on the Rights of the Child indicates that 12 should be considered an absolute minimum age. This age has been adopted by many countries, for example, Canada, Scotland, Netherlands and Ireland. 14 has been widely implemented throughout the world, including Austria, South Korea, China and Italy. Many countries have made their age even older with Argentina, Portugal and Lithuania among those setting 16 and even some go up to 18, including Belgium, France and Luxemburg. 

Few countries persist with a minimum age of criminal responsibility set at 10. Australia and New Zealand and among the few examples. However, New Zealand reserves 10 for the crime of murder and 12 for all other offences. Interestingly within the United Kingdom, there is a division with England, Wales and Northern Ireland persisting with 10 while Scotland moved to 12 in 2019. 

Impact on Indigenous Children

In 2021 more than half of all children in detention were Aboriginal or Torres Strait Islander (Australian Institute of Health and Welfare, 2021), despite making up just 6% of Australia’s population aged 10-17. An Indigenous Australian child is 17 times more likely to be placed in detention compared to a non-Indigenous child. 

When considering children under the age of 14 the statistics are even more startling. 65% of all children aged 10-13 currently in detention in Australia are Indigenous. More than two-thirds of these children are awaiting trial and being held on remand so have yet to be found guilty of any crime. 

In a joint policy statement, the Law Council of Australia and the Australian Medical Association (2019) highlight the disproportionate impact of juvenile justice on Indigenous Australians. The reports note that young Indigenous Australians are more likely to receive custodial sentences for relatively minor offence compared to non-Indigenous Australians. In 2019, 94% of all children in juvenile detention in the Northern Territory were Indigenous and in some years this figure is 100%. Furthermore, the report notes that the underlying medical and social conditions experienced by many Indigenous children are impactful on the rate of offending. For example, Australian Medical Association research found that young Indigenous Australians with mental health issues are more likely to have exposure to the criminal justice system than non-Indigenous Australians with the same issues.

Arguments for maintaining the current age

Advocates of maintaining the current age of criminal responsibility typically point to the need for an effective alternative, and in its absence, the criminal justice system must prevail. Speaking to the media in July 2020 following the Council of Attorneys-General meeting the, NSW Attorney-General Mark Speakman said of the issue:

“If there is a move to raise the age of criminal responsibility you to have to identify what is the alternative for children who would otherwise be subject to the criminal justice process… What are the therapeutic interventions, the behaviour interventions the social support, the educational intervention that offending children need…” (cited, Ralston & Whitbourne, 2020). 

This view that there needs to be a clear consequence for children who engage in criminal acts is the most common one put forward by those who advocate for no change to the current -age. Cases such as R v BP & SW are often cited in such arguments. Others have argued that the very things that the Attorney-General discusses in the cited quote are exactly why there needs to be a change. There should instead be a focus on interventions and support outside of the criminal justice system for children aged 10-13. 

In Britain, the 1993 brutal torture and murder of a 2 year – Jamie Bulger by two other children – Robert Thompson and Jon Venables, who were both aged 10, saw a dramatic change in the law. An amendment to the Crime and Disorder Act 1988 (UK) removed the presumption of doli incapax for children aged 10-13, meaning the prosecution no longer had to show that the child had mens rea. This is not the case in Australia, but it does highlight the pressure high profile and particularly heinous crimes committed by children can place on the justice system.

Arguments for lowering the age of criminal responsibility

Bateman (2013) argues that the fundamental premise that children can understand the difference between right and wrong, and therefore have mens rea is flawed. He argues that developing a moral understanding is not a fixed concept that just occurs but instead happens incrementally over time as a child’s cognitive capacity expands. Bateman points to the growing body of brain research that shows that the parts of the brain responsible for judgement, decision making and impulse control do not fully develop until young adulthood and are particularly under-developed in children under 14 years of age.  A 2019 report by the Australiasian College of Physicians also commented on this point and further noted that many children who have contact with the youth justice system are even more under-developed stating in the report:

“There is now mounting evidence the children in youth detention in Australia have a very different neurodevelopmental and mental health profile compared to children who are not in custody” (Australiasian College of Physicians, 2019, p.4). 

Therefore, there is strong evidence to suggest that children have at best limited capacity to develop mens rea. Furthermore, the children more likely to commit an offence are those that are less cognitively developed and hence have even less capacity to form criminal intent. 

The statement by the Law Council of Australia and the Australian Medical Association notes that laws that hold 10-year-old children criminally accountable are “…out of step with medical consensus regarding brain development” (p.2). It is also interesting to note here that it is also out of step with other aspects of the law. For example, a child is not considered old enough to consent to sex until they are 16, consent to medical treatment until they are 14, and can’t vote until age 18. These age-based restrictions are a reflection of the significant cognitive capacity needed to make informed decisions. Yet the law seemingly applies a very different standard when considering the issue of criminal responsibility. 

A House of Representatives study noted that there were very high rates of incarcerated young Indigenous Australians who suffer from foetal alcohol syndrome (FAS). This effectively causes cognitive development delays and is the result of the unborn foetus being exposed to excessive alcohol while in the uteri. Higher rates of FAS amongst Indigenous children are likely to account, at least in part, for the higher rates of incarceration of young Indigenous Australians as it limits the cognitive capacity of these children to form mens rea. In this way, the very reason for committing the offence is that they do not have the cognitive capacity to form intent but this is not being considered when they are charged. This is particularly relevant when we consider that 68% of Indigenous children under 13 in detention are yet to have their cases heard. 

Cunneen (2020) cites 2017 research by O’Brien and Fitz-Gibbon into the operation of doli incapax in Victoria. Their research found that while the onus of proof is meant to rely on the prosecution proving a child under 14 has the capacity to form criminal intent it is more often than not the case that this onus is actually being reversed. In reality, the defence is required to have psychological assessments completed to show that the child does not have the capacity to form the intent, these expensive assessments are at the cost of the defence (p.11). This creates particularly serious concerns for children of disadvantaged backgrounds who rely on Legal Aid defence and for whom the cost of such assessments is out of reach. 

There is also significant evidence to suggest that the younger a person is when they enter the criminal justice system the likelihood of more serious offending in the future increases significantly. Trivett and Browne, researchers with The Australian Institute cite US research conducted in Oregon that found an offender arrested before the age of 14 was 3 times more likely to reoffend as an adult than a child first arrested older than 14 (2020, p.6).

In Conclusion

With an age of criminal responsibility of 10, Australia is very much in the minority globally. Worldwide the average at which a person can be held criminally liable for their actions is 14 and in many jurisdictions, it is even older, up to 18 in some cases. While the concept of doli incapax, is applied in Australia resulting in convictions of children below age 14 being rare, just 0.01% of the total offender population, this still represents a significant impact on the very young people who are interacting with the youth justice system. Indigenous and other disadvantaged children are massively over-represented in the statistics of young offenders. These children have the least opportunity to defend themselves within the criminal justice system and are the most likely to have pre-existing cognitive issues that result from their disadvantage and contribute to their offending. Arguments around the need for consequences and the need to ensure justice for victims most typically cite rare, but nonetheless extreme cases, such as the Jamie Bulger murder. While these are heinous crimes, they are incredibly rare and are committed by children whose needs appear to be least served by the criminal justice system. Instead, as NSW Attorney-General Mark Speakman notes an alternative requires therapeutic, social and educational interventions. The absence of such services would appear to be the main reason for Australia continuing to maintain 10 as the age of criminal responsibility but is such an absence really a good reason for not raising the age? 

Student Activities

  1. What is the age of criminal responsibility throughout Australia? Do you think this is too young? Discuss.

  2. Explain the concept of doli incapax.

  3. What must be present for a child to be successfully prosecuted at the age of 12?

  4. In your own words, explain the case of R v LMV [1999] NSWSC 1128.

  5. Do you agree with the decision in R v BP & SW [2006] NSWCCA172? Discuss.

  6. Do you think children should be held on remand awaiting trial? Explain the problems and injustices of this, especially for Aboriginal and Torres Strait children.

  7. What did NSW Attorney-General Mark Speakman identify as the difficulties of increasing the age of criminality? What measures would you take to solve the problems highlighted?

  8. Do you think that the age of criminality should be lowered? Explain.

  9. In your opinion, explain the reasons for excessive arrests of Indigenous children.

  10. How do you think the age of the offender when first offending can affect the outcome?

References

Amnesty International (2022) Why we need to raise the minimum age of criminal responsibility https://www.amnesty.org.au/why-we-need-to-raise-the-minimum-age-of-criminal-responsibility/?msclkid=9ed18bafab1911eca19abffdd051d1de

Australian Human Rights Commission (2019) Children’s Rights Report 2019. In their own right: children’s rights in Australia, https://humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2019 

Australian Institute of Health and Welfare (2021) Youth detention population in 2021, https://www.aihw.gov.au/reports/youth-justice/youth-detention-population-in-australia-2021/contents/summary

Australiasian College of Physicians (2019) RACP submission to the Council of Attorneys General Working Group reviewing the Age of Criminal Responsibility July 2019 https://www.racp.edu.au/docs/default-source/advocacy-library/b-20190729racp-submission-cag-review_final-gm-approved.pdf?sfvrsn=b384e61a_6

Bateman, T. (2013), ‘Keeping up (tough) appearances: the age of criminal responsibility’, Criminal Justice Matters, (92) [accessed online at https://www.crimeandjustice.org.uk/publications/cjm/article/keeping-tough-appearances-age-criminal-responsibility

Cunneen, C. (2020) Arguments for Raising the Minimum Age of Criminal Responsibility, Research Report, Comparative Youth Penality Project, Jumbunna Institute for Indigenous Education and Research, University of Technology, Sydney. [accessed online https://jrna228913579.files.wordpress.com/2020/02/macr-final-2020.pdf

House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Parliament of Australia (2011) Doing Time – Time for Doing: Indigenous Youth in the Criminal Justice System, https://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=atsia/sentencing/report.htm – Parliament of Australia (aph.gov.au)

Law Council of Australia (2019) Minimum age of criminal responsibility – joint policy statement of the Law Council of Australia and the Australian Medical Association https://www.lawcouncil.asn.au/publicassets/20fb2a76-c61f-ea11-9403-005056be13b5/AMA%20and%20LCA%20Policy%20Statement%20on%20Minimum%20Age%20of%20Criminal%20Responsibility.pdf

Office of the High Commissioner for Human Rights, Convention on the Rights of the Child¸ https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child

Ralston, N. & Whitbourn, M. (2020), ‘Age of criminal responsibility to remain at 10 until at least 2021’, The Sydney Morning Herald [online], 27 June 2020 https://www.smh.com.au/national/age-of-criminal-responsibility-to-remain-at-10-until-at-least-2021-20200727-p55fy6.html 

Trivett, S. & Browne, B. (2020), Raising the age of criminal responsibility – The Australian Institute discussion paper https://australiainstitute.org.au/wp-content/uploads/2020/12/P952-Raising-the-age-of-criminal-responsibility-Web.pdf?msclkid=9ecfcbe5ab1911ec864d727b9f8c3343

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