The law, as a structure of guidelines that administrates and regulates society, is built on the perception that individuals of that society can understand and follow rules. The law’s benchmark in assessing that person is that they are seen to be practical, reasoning, rule-following, and who can discern the difference between right and wrong. It is a fundamental and basic principle of criminal law that an accused must possess the required mental competence to understand criminal misconduct before criminal action can be brought against them in a court of law. In order to protect children from the full force of the criminal justice system, there are guidelines set, stretching back into the early days of English common law, that help protect children from adult punishment, and distinguish them from the culpability associated with what the courts perceive as adult criminal responsibility. The minimum age of criminal responsibility is set to reflect the level at which a child is determined to possess the required awareness to discern between actions that are merely naughty, from those which are seriously wrong in a criminal sense. With giant leaps in science, educational reform and the advent of mass social media, our understanding of child development rates have changed to such an extent that to determine a current comprehensive age of criminal responsibility may prove difficult. In this essay, I will contemplate the argument that society does not take the concept of criminal responsibility seriously. I will argue that the common law safeguards put in place are central to shielding children from the full punitive brunt of the criminal law, and protective mechanisms such as ‘doli incapax’ although seen as some as outdated and problematic, should remain.
Minimum Age of Criminal Responsibility in Australia:
In Australia, any person that is under the age of ten who commits a criminal act cannot be charged with a criminal offence. Further to this, any person over the age of eighteen who commits that same criminal act will be deemed as criminally responsible for the act, charged for that offence, and brought before the court and tried as an adult. Nestled between these ages of ten and eighteen, is a span of four years, from the age of ten, that the common law of ‘doli incapax’ presumes that a child between the ages of ten and fourteen lacks the necessary comprehension to possess criminal intent. This presumption is rebuttable if it can be proven that the child committing the criminal act possessed the knowledge that what they were doing was seriously wrong, and not just naughty. Many organisations, including the United Nations and Amnesty International, believe that the minimum age of criminal responsibility in Australia is too low. These organisations believe that the minimum age of criminal responsibility should be raised to at least twelve years of age.
Since the mid-eighties, there has been growing international support to have the minimum age of criminal responsibility raised. In 1985, the United Nations agreed upon a Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), recommending jurisdictions set the minimum age of criminal responsibility at an age where the child can understand and recognise the psychological, moral and legal factors of criminal responsibility. In 1989, the Convention on the Rights of the Child (CRC) required states to set an absolute minimum age under which children were exempt from criminal prosecution, and again in 2007 it advocated for a minimum age of 12 with further increases to follow. Since 1989, over 65 countries world-wide have increased their minimum age of criminal responsibility.
In 2012, the UN committee advocated that all Australian states needed clear guidance and recommendations regarding the minimum ages of criminal responsibility and concluded that an age level below 12 years is not internationally acceptable for a child to be prosecuted for a criminal act. It also observed that a higher minimum age of 14 or 16 was regarded as being significant as it contributed to the juvenile justice system which deals with children in conflict with the law without having to resort to judicial proceedings. In order for Australia to fulfil its obligations under the Convention on the Rights of the Child (CRC) agreement, the minimum age that a child should be held criminally responsible would have to be raised to 12.
Arguments for and against a child’s understanding of criminal intent.
It is a popular view amongst contemporaries that children in this time of enlightened society are maturing at a much faster rate than previous generation of children. Therefore, it may be argued that more children now are able to possess the required mental, moral and ethical capacity to understand criminal wrongdoing. Research has found that children are maturing faster due to the advent of mature content video games, easy access to adult subject matter on the internet and social media.
While, in this aspect, children may be perceived as maturing at a faster rate, this brand of maturity still lacks the type of maturity that can distinguish between the nature of right and wrong in a criminal sense, and the type of maturity that would find that child capable of facing adult criminal justice. It may also be argued that the kind of maturity that is garnered from video games, adult internet and television may hinder a child’s perception of right and wrong, thereby impeding their moral development.
There are also problems in reconciling the minimum age of responsibility with other standards of maturity. In Western Australia, the age of consent for consensual sex is 16. The minimum age that a person is legally allowed to consume alcohol is 18. The minimum age a person can legally purchase cigarettes is also 18, as is the age that a person becomes entitled to vote. All of these ages depict a perception that a child’s maturity has not sufficiently developed until these ages have been attained. It is, in the light of these higher ages, difficult to justify that a child of 10 can be held to