The Age Of Criminal Responsibility Criminology Essay

The Age Of Criminal Responsibility Criminology EssayOne must be assured that the United Nations Convention on the Rights of the Child professes any sensation under the fester of eighteen is a infant. However, in the criminal law, greater distinctions ar made anyone under 18 is a juvenile, developd 14-18 be classed as young persons and a person under 14 days old be classed definitively as a chela.What does it blind drunk to be a child in this modern succession? Every person has experienced life as a child and could easily accumulate their own perspective, besides that is strikely what it would be a personal definition that begins with infancy and ends when they reach adolescence. However, adolescence, for legal purposes must portray a mental, intellectual, emotional and more specifically, a clean-living capacity to differentiate right from wrong.in the beginning one looks at the legal observations of childhood, it is only sensible to consider the words of those who dedic ate their harps to the study of child psychology, and ultimately develop wider knowledge.Psychological theoryPiaget in his work, The Moral Judgement of the Child1established a theory of not only the cognitive, further withal the moral development of a childs mind, prcising that they cannot compact certain tasks until they are psychologically mature enough to do so. The psychologist Kohlberg expanded on Piagets position2, and their theories reconcile it plain that by ten children are not capable of making moral decisions similar to that of an adult, as they have not in full learned to do so.The theories suggest that t here(predicate) are 2 stages of moral reasoning (which sometimes overlap) named the heteronomous stage and the sovereign stage. At the heteronomous stage, the child is egocentric and believes the world revolves around them, and they leave behind act depending on the severity of the outcome. This stage continues ago the age of ten, so before they reach the next stage it is un wantly that they will be aware of the severity of any outcome. Subsequently, when they are in the autonomous stage, intentions are more chief(prenominal) than the consequences of action and should be the basis for judging behaviour, and it is then that a child should be held accountable for his or her actions, not before. The theories suggested here are, of course, non-conclusive and non-exhaustive, but at least give an insight into the confutable nature of the entire concept of an imperious age of criminal business, so it would be worthy to keep these theories in mind throughout the handling.The age of criminal stateThe age of criminal responsibility in England and Wales is ten years.3All children under this age are presumed to be doli incapax (incapable of frameting a curse). After reaching the age of ten however, and as Elizabeth Stokes informs us, there is nothing within the substantive criminal law regarding the ascription of guilt, which distinguishes the responsibility of young deal from that of adults.4The Home Office White Paper in 1997, signalled the start of New Labours tough and retaliatory, No More Excuses campaign by declaring thatYoung great deal who commit law-breakings must face up to the consequences of their actions for No young person should be al depleteded to feel that he or she can appal with impunity Punishment is important as a means of expressing societys condemnation of unlawful behaviour and as a deterrent.5Even though there was much discussion with reference to raising the age in the late 1960s after the Government White write up Children in Trouble6(1968) along with Section 4 of the Children and Young Persons Act 1969 which would have raised the age of criminal responsibility to 14 but was never implemented and the provision was repealed in 1991. This introduced an unnaturally overreaching dividing line in the midst of criminal responsibility and irresponsibility for children who offend. This wa s the case even though arguments have been put forward suggesting that to criminalise and label children is very dangerous, with Deborah Orr proposing that, if a child has behaved in a fashion that he or she feels he had little or no control over, and then is told this is criminal, then the child is organism taught that his or her criminality is something over which he has no control.7The following doctrine attempted to decrease the amount of children being labelled until it was abolished.Doli incapax Protection or a waste of time?Before the Crime and Disorder Act 1998 which abolished the doctrine, there had existed for hundreds of years8protection for children aged between 10 and 14 years. This protection was the rebuttable self-reliance that children were doli incapax. Under this legal doctrine, as expounded in the case of C v DPP9in addition to committing the actus reus and mens rea of a criminal offence the prosecution also had to ascend beyond reasonable doubt that they kne w what they were doing was seriously wrong.This doctrine was working as a filter which recognised childhood to stop 10 being the absolute age of criminal responsibility. Children aged between 10 and 14 years benefited from the presumption as it protected them from the detrimental effects of the enforcement of criminal law.10But patronage this, it could be suggested that the doctrine did not work as it was professed to as it still did not stop children being charged as the prosecution only had to prove that children knew the conflict between the extreme opposites of right and gravely wrong, and not mere naughtiness and wrong. For example, Bandalli suggests that children have a very flexible approach to ownership, if one were to look at the contents of the Theft Act 1968, s.1(1) describes the abomination as dishonesty with intent to permanently deprive a concept which children might only be aware of as merely borrowing. So in practice it did not work sufficiently, but it cannot be ignored that it had very strong symbolism, which was arguably the almost important aspect.The symbolism of the doctrineAn excellent point made by Pickford questions why the opponents of abolition continue to have faith in a doctrine which has be to be so inadequate in protecting children anyway.11But this is perhaps because at least some acknowledgement was given to the notion of childhood with doli incapax, differentiating their sermon from that of adults. It made the police, the CPS and the judiciary stop and think about the degree of responsibility for each man-to-man child,12and doing that, however briefly, kept the childhood status in tact.The symbolism of the abolitionIn spite of these arguments, Jack Straw said on 3 June 1998 with great respect, we are abolishing the concept of doli incapax and thus England and Wales saw the corroding of the insurance of protection. However, this was combated with the unspoiledification that removal of protection was removal of excuse c ulture.13Nevertheless, supporters of the doctrine still implore the judiciary to recognise at least some protection. The upstart case of R v T14in 2008 it was proposed that only the presumption had been abolished15and that the defence remained in tact. But this proposition was quickly flattened and children aged 10-14 would be treated in the same way as some other juveniles in deciding whether to prosecute. The abolition of doli incapax was discoursed in conjunction with change magnitude the age of criminal responsibility, but now there has been an absolute abolition, the government has carried out one without the other, and has left a vacuum where protection should be. Therefore, what doli incapax stood for its symbolism of protection was quashed and children are treated like adults once again. The possible justifications for this are set out in Part Two.PART TWOCRIMINALISATION AND THE RIGHTS OF THE CHILDThere is little doubt that punitive imperatives have shaped contemporary po licy responses to child offenders in England and Wales. Goldson (2002)The government is ignoring the widespread discourse and European recommendations about the rights of children. With their apparent stubbornness, not to mention the abolition of the centuries old presumption of doli incapax, the question is why are we wedded to the extreme desire to pull children into the criminal justice system and criminalise, rather than taking the civilized route which is based on the foundations of protection and welfare? Their policy has brought a large group of children under the auspices of the criminal justice system where antecedently they may have been successfully diverted.This current punitive climate can be justified to an extent because people have an innate interest in punishment. Namely, they will view children as adults seeing them as autonomous beings who bear responsibility for what they do, despite their age.In the NACRO youth crime briefing as late as December 2008, the dele gation expresses concern about the findings of a survey commissioned by Barnados16which show the negative exoteric perception of children49% of people believe that children are increasingly a danger to each other and adults,54% agreed that children are beginning to behave like animals,35% of people feel like the streets are infested with children.In addition to this, after the 1994 government submission to the UNCRC, Barnados and the NSPCC highlighted their outrage of what the government purported to be happening in England and Wales, that it did not theorise what was happening in reality, and thus decided to write their own submissions such as these, showing that the UK Government has much to answer for.The public have a diverse perception of children in contrast with psychologists17and they want to prosecute them. To prosecute and put a child through the criminal system costs between 75,000 (for a youth to be in a young offenders institute) and 150,000 (for secure accommodatio n).18Although it might be a generally useful deterrent to use the nemesis of prosecution, recently it can be seen how arbitrarily it is used (which is in breach of Art 37(b) United Nation Convention on the Rights of the Child). For example, an article in The hop out Online19states that in Newark, Nottinghamshire, letters of warning have been sent out that children face prosecution and fines of up to 100 if they annoy neighbours with ball games. .But if the child was to be prosecuted for kicking a ball around in the street, what would this really achieve? The answer is nothing. Prosecution and custody in this respect would be equivalent to an employer compensable a new employee to go through a process which they know does not work,20which is obviously a waste of time for everyone involved. The government maintains that it is providing proportionate penalties for child offending and in its report to the CRC states they are keen to ensure that children are not prosecuted whenever a n alternative can be found but the NACRO youth crime briefing successfully contests this articulating even those who are diverted away from the courts by being dealt with reprimand of final warning, are in effect still criminalised.It is also exceptionally questionable whether children should be tried in the Crown Courts, as the NACRO briefing21suggests that the Crown Court is primarily an arena for relations with adult offenders through jury trial, and children who commit grave crimes are, in large degree, processed as if they were adults.22And so, in the shadow of sympathetic European progressiveness, New Labour, with its No More Excuses draconian approach has conceded to the whims of the public and are practically stealing away what it is to be a child, including what they deserve and have a right to protection, which a higher age of criminal responsibility would ensure.In Europe UN Convention on the Rights of the Child (UNCRC)According to United Nations Committee on the Rights of the Child regarding the age of criminal responsibility, countries should consider whether a child can live up to the moral and psychological components of criminal responsibility and notes that if the age of criminal responsibility is set too low the notion of responsibility would become meaningless. The Committee has recommended demesne Parties not to set a minimum age of criminal responsibility at a too low direct and to increase an existing minimum age to an internationally acceptable level concluding that the minimum age below the age of 12 is considered unacceptable.According to UK Childrens Commissioners reveal to the UNCRC, although the UK has ratified the UNCRC, the Convention is not part of domestic law and remains unenforceable. Recent legislative and policy developments are in clear breach of the UNCRC, for example, the appointee and shaming of children subject to anti-social behaviour orders23. Even if these did not breach the Convention rights, it would be unsuc cessful anyway, as some children, especially the higher end of the spectrum would actually be proud of having an ASBO, or as Deborah Orr suggests24, they would be self-aggrandizingges of pride and perverse achievements.Thompson and Venables case studyHow it came about that two mentally normal boys aged 10 of total intelligence committed this terrible crime is very hard to comprehend . . . Morland, JThe cases of R v. Secretary of State for the Home Department, Ex parte V. and R. v. Secretary of State for the Home Department, Ex parte T, concerned Robert Thompson and Jon Venables, both 10 year old boys, being convicted of the murder of a two year old boy. They were only just over the age of criminal responsibility. They were sentenced to detention during Her Majestys Pleasure and the trial Judge Morland J set the minimum term to be served at eight years to reflect their extreme youth.The NACRO youth crime briefing25Grave crimes, mode of trial, and long term detention, reports that the European Court of Human Rights (ECHR hereafter) determined that the defendants were denied a clean trial since they were unable to participate effectively in the proceedings given the nature of the court room and the intense public scrutiny saying the formality and ritual of the Crown Court must have seemed incomprehensible and intimidating for a child of eleven. This breaches Art 3 of the Convention, to have the best interests of the child as the primary consideration.The Youth Crime Briefing26reports that even after the Lord Chief Justice issued a send Direction (in February 2000), which gave guidance for the conduct of such proceedings and calls upon Crown Courts to have regard to the welfare of the child and to avoid exposing him or her, so far as possible, to intimidation, humiliation or distress (my stress added),further cases go on to breach Convention rights. This was detailed in the case of SC v UK27where an eleven year old boy who did not have the intellectual, mor al or cognitive capacity for his age group, had his right to a fair trial breached even though the procedure adopted would have complied with the Practice Direction.The ECHR stated thatHe has little comprehension of the role of the jury . Even more strikingly, he does not seem to have grasped the event that he risked a tutelary sentence, and even once sentence had been passed he appeared confused and expected to be able to go home with his foster father.The Court then went on to answer recommendations as to how a child with the handicap of childhood should be processed that they should be tried in a specialist tribunal noting afterwards that there are at present no proposals to develop one.The United Nations Standard Minimum Rules for the Administration of Juvenile Justice The Beijing Rules.The Beijing Rules adopted by the General Assembly in 1985, specifies in section 4.1 that the lower age of criminal responsibility shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.The commentary states that a specific approach should be concentraten, which is whether a child can live up to the moral and psychological components of criminal responsibility and making explicit reference to the individual discernment and understanding. This relates profusely to the theories that Piaget and Kohlberg propose where they have said that moral development is a continual process that occurs throughout the lifespan, and I would suggest that to fix the age at ten is to put a limit on an uncertain event, that is to say, they are severely generalising the mental capacity of children, leading to injustices in the due process that children are entitled to have. Even if it can be argued that increasing the age would lead to net-widening of children (who may have developed moral capacity earlier) being excused for crimes, that does not displace the argument that the majority of crimes committed by children are minor, and could be prevented with concern for the individual offender and not the offence. .In fact, the Beijing Rules state in part 11.1, consideration shall be givento dealing with juvenile offenders without resorting to formal trial emphasizing that, this practice will serve to hinder the negative effects of subsequent proceedings, such as the stigma of conviction and sentence.The Rules also make clear the relationship that the age of criminal responsibility must have with its other limitation counterparts the legal age of consent, the legal age of drinking, matrimonial status, civil majority for example. There is also the notion of the emergency of a higher mental intelligence, emotional and moral capacity to be responsible in respect to all of these, and this just does not sit well with having the age of criminal responsibility at ten.28Risk and Predictive FactorsIn addition to disregardless the Beijing Rules, the government have actually contributed to the reason that children are c ommitting crimes, evidenced by certain predictive factors that have led to increased youth crime in certain contexts. The Youth Offending Board29maintains that anti-social behaviour and crime is not immediately down to the childs choice, but rather the context in which they are placed. From their web page headed, Targeted Prevention of Youth Crime and Anti-Social Behaviour they raise the policy issue of funding for a start, and reinforce that, one of the best and most cost-effective ways to reduce youth crime is to prevent young people from getting into trouble in the first place, by dealing with the problems that make it more likely they will commit crime or anti-social behaviour. They then proceed to list possible predictive factors such as lack of or poor education, poor family relationships (bad parenting), and the child living in public housing located in high risk, inner city areas.To start with, the report from the UK Childrens Commissioners to the UN Committee on the Rights of the Child evidenced that child poverty is high with around 3.1 million people living in poverty (29% of children) in England and more than 1 million children living in poor housing, which is a possible reason why children commit crime. Here it is not individual choice, but the governments own policy that is creating the increased likelihood of child offenders. The Joseph Rowntree Foundation suggests that current measures mean child poverty will rise from 18% to 33% over the next 20 years. They say the poverty gap is created by state benefits which are linked to inflation, rather than earnings, and that is of government concern. And so, if the Government is likely to miss its target to halve the subprogram of children living in poverty by 2010, then they are in theory adding to the offending rates instead of reducing them, defeating their on the whole objective of being tough on crime.Other factors arise from poor parenting and bad education. In a speech to the Association of Te achers and Lecturers in 2002, the former education secretary Estelle Morris argued that bad parenting has created a cycle of disrespect among children, and again does not show it to be the individuals own choice. Poor education leads to truancy, alcohol misuse and other antisocial activities that adults would not be punished for. The Joseph Rowntree Foundation found that almost half the young people aged 11 to 17 reported committing at least one criminal act in a survey of 14,000 school students.30It is fair to argue that this shows crimes are being committed by children to whom doli incapax formerly applied, but this paper is not insisting that children between 10 and 14 do not commit crimes, it is reiterating that the punitive measures for this age group are a step rearward in an otherwise progressive world, and alternative measures are needed. The government have excused themselves of any blame, when it is obvious from the above factors that they have an inherent part to play.Ch ildren are no longer treated as special cases when it comes to the types of penalties available to the courts when they ought to be. The status of childhood still remains and needs to be protected. But condemning children to the penalties that adults have, they are subverting the whole concept of childhood and are returning to the stage in history where children were no less than little adults31a definition which philanthropists such as Mary Carpenter in the very early stages of the youth justice system were trying to eradicate.PART THREEALTERNATIVESJustice/WelfareBurgeoning youth internment and high reconviction rates in England and Wales haveprompted a search for alternative responses. Pitts and Kuula32The overall aims of the criminal justice system are to avoid future re-offending and to exact retribution on behalf of the victim and society33as defined in s.37 of the Crime and Disorder Act 1998. The UK government for England and Wales have two main options they could take toward s a child who has committed a crime a diversionary approach operating at a cautionary level or to prosecute amounting to either a judicial process of punishment on the basis of harm done or a punishment approach regarding the welfare of the child. The inability to comply with the UNCRC recommendations is exposed where they take the punitive route almost every time.The response to juveniles oscillates between the justice or welfare approach, that is to say whether you look to the offence of the offender. The welfare approach is founded on determinist reasons outside of the childs control, so he or she bears no responsibility. However the justice approach appears to predominate in England and Wales, which will inevitably mean that the age of criminal responsibility will remain too low, as it does not allow a child to be anything but responsible.Civil Law approachThe civil family law is an example of the welfare approach. There is an odd dichotomy because, in contrast with the crimina l law which employs a fixed cut-off point, family law takes an individualised and functional approach, joined with a completely different perception of childhood, which is in line with the UNCRC. The perception seems nearer to that outlined by Piaget and Kohlberg which understands the vulnerable and dependent nature of a child, and again works on the basis that the childs welfare is paramount. Helen Keating also suggests that the child may also be seen as incompetent in legal terms, and that developmental discourse has found expression in law and has made its way into the system through the test hypothesise from Gillick v West Norfolk and Wisbech Area Health Authority and Another34. .The level of competence required is sufficient understanding and intelligence to enable him to understand fully what is proposed and sufficient discretion to enable him to make a wise choice in his or her own interests.35Despite the problems that the test can amount to, such as delay in ascertaining th e competence, its influence has become enshrined in statute. The Children Act 1989 even begins with a checklist for the welfare principle stating that the court should have regard to the the determinable wishes and feelings of the child considered in the light of his or her age and understanding.36 .There is no such parallel in criminal law, which begs the question of why two systems campaign side by side are contradictory. It cannot be that the children in family law cases are more vulnerable than those in criminal law, so it must be due to the approach. The UK Government should take a step back and try to ignore the distorted perceptions of children that the public emanate, and look more closely at the individual child perhaps even looking at them as if they were their own young.Comparative SystemsWith the New Labour policy so behind most other countries it is unsurprising that one can find models of welfare based systems which, despite their own shortcomings (such as paternali stic decision-making) still puts us to shame.Lesley McAra introduces a substantive compend of the developments in Scottish Youth Justice37noting it exhibited a high degree of stability in its welfare based institutional framework and policy ethos, up until it started acting like England. By filtering in punitive measures such as anti-social behaviour legislation when the Children (Scotland) Act was passed in 1995, Scotland has conceded to the publics moral panics about persistent offenders and is transforming. The fact that their age of criminal responsibility is going to raise to 12 (from 8) when the Scottish Governments Criminal Justice and Licensing Bill passes in 2009, may just have rescue them from themselves.This was the philosophy of the Kilbrandon Committees38childrens hearing system. Here a child, passing several grounds for referral (which are astonishingly similar to the grounds that the civil (family) law invokes for a concern Order39.. is or is likely to suffer serio us harm and/or with admission of guilt) are referred to a tribunal consisting of lay-people, who operated from a needs not kit and caboodle viewpoint was in direct contrast with Englands Ingleby Committee.It will bring Scotland into line with most of Europe, but the Scottish Government said the rise would not mean letting off younger offenders, as Justice Secretary Kenny MacAskill said amongst recent discourse,Evidence shows that prosecution at an early age increases the chance of reoffending so this change is about preventing crime. Rather they will be held to account in a way that is appropriate for their stage of development and ensures that we balance their needs with the need to protect our communities.Similarly in Finland a different approach is taken. The age of criminal responsibility is 15, and their answer is to look at the child on the whole their environment whilst dividing children into their age groups based on cognitive functions, needs, and understanding. Moving fr om a punitive to welfare syste