Doli incapax: why do we hold our 10 year olds to have criminal responsibility?

In 1998 the Government abolished the principle of doli incapax. This was the presumption in law that children aged under 14 did not know the difference between right and wrong and were therefore not capable of committing an offence. This presumption could be rebutted for children between the ages of 10 and 14 if the prosecution could satisfy the court that the child knew that what he was doing was seriously wrong, not “merely naughty or mischievous”.

The change in the law means that children over the age of 9 can be arrested, taken to a police station, interviewed and charged with offences. They can be taken to court and convicted of crimes, receiving a criminal record.

It is the youngest age of criminality in all of Europe. It has been condemned by The United Nations Committee on the Rights of the Child and is held not to be internationally acceptable.

Was this change in law due to evidence-based research? No – the government decided to reform youth justice with the explicit intention to “stop making excuses for children who offend”. A major focus of the reforms was to remove doli incapax, which was achieved by the enactment of section 34 of the Crime and Disorder Act 1998.

Undoubtedly the high profile and tragic Jamie Bulger case was a major influence in focusing the government on the issue of the age of criminality. In the House of Lords decision of C (A Minor) v DPP Lord Lowry acknowledged that there were ‘popular and political overtones’ which surrounded the abolition.

The shocking killing of 2-year-old Jamie Bulger by two 10-year-olds Jon Venables and Robert Thompson led to worldwide media attention and the two boys were vilified in the British press. Doli incapax had not yet been abolished but the boys were deemed to know right from wrong and were therefore prosecuted. They were sentenced to imprisonment at Her Majesty’s pleasure with a tariff of 15 years (a minimum period in custody to be served).

This sentence was passed upon the intervention of the Secretary of State, who set the tariff based on petitions and correspondence from members of the public and national press coverage endorsing a long or whole-life tariff.

The House of Lords quashed the sentence in 2000, in part due to the fact that it was deemed that the conduct of the Secretary of State was contrary to the rule of law. In other words, it was an abuse of executive power to step in and interfere with the case as a result of public pressure.

The government, in abolishing doli incapax, accused it of being antiquated and unnecessary. Yes, the criminal law should mirror the morals of society at the time and evolve to changing attitudes. However, this sad case demonstrates how governments can sometimes bow to whoever’s voice is the loudest. This is not true democracy and can lead to widespread unfairness.

Although the terrible violence inflicted by such young boys was and is exceptionally rare, children of 10 years are now held automatically to be criminally responsible across England and Wales. But do those children receive fair treatment at the hands of the law? Has it made society safer?

What is the science?

Neuroscience suggests that the pre-frontal cortex (responsible for executive functions, such as problem solving, planning and decision making) is only fully developed by the age of 25. At 10 years old, our ability to fully comprehend the impact of our actions is simply not present.

This is before we take into account the fact that children, young people and adults who are exposed to the criminal justice system are far more likely to suffer from learning disabilities than those that do not.

In the Bulger case the psychiatrist who assessed Venables said that although he was chronologically over the age of 10 at the time of the killing, he was less mature as far as psychological or emotional age was concerned.

The Centre for Social Justice’s “Rules of Engagement: Changing the Heart of Youth Justice”, concluded that there was a significant body of research that indicated that early adolescence, a period thought to occur before the age of 13 or 14 years, is a period of marked neurodevelopment immaturity. The law as it currently stands holds children accountable to the same extent as an adult but a child’s capacity at this age is not equivalent to that of an older adolescent or adult. As a result, adolescents are particularly prone to risk taking behaviours which they often grow out of later in life.

In my work as a criminal defence lawyer, it is not unusual to see adult defendants with IQs as low as 65 (the average is 100). The ability of a client like this at any age to appreciate the consequences of their actions is much lower than someone without these vulnerabilities.

Re-offending

Thompson and Venables received substantial custodial sentences. In court Mr Justice Morland told them: ‘You will be securely detained for very, very many years until the Home Secretary is satisfied that you have matured and are fully rehabilitated and no longer a danger to others.’

We need to learn the lessons of mistakes made. There is ample evidence that criminalising children does not reduce future offending behaviour.

Venables has continued to offend in adult life, recently receiving a 40 month sentence for possession of indecent images of children.

The case can be compared to a similar crime that occurred in Norway just twenty months after the Bulger killing whereby a young girl was violently killed by two little boys. In stark contrast to the UK, there was no highly politicised media campaign condemning the boys and they were dealt with primarily as a welfare issue. The focus was on reintegrating the boys as much as possible. There has been no re-offending and no similar cases of extreme violence committed by young children since.

An approach focussed on rehabilitation as opposed to retribution is required if not for the children’s benefit but for society.

Can’t an offender’s young age be reflected by a more lenient sentence?

It may be suggested that 10 year olds receive much more lenient sentences than older children, young people and adults and this is a safeguard for their wellbeing. There are several issues with this argument.

Can they have a fair trial?

We all have the right to a fair hearing. This is enshrined in the Human Rights Act in the UK and in many constitutions around the world. If the state has such immense power to interfere with our liberty it should be done fairly.

The case of Venables and Thompson itself demonstrated how difficult it is for a 10 year old to receive a fair trial. The intimidating ambience of the court room; the immense amount of legal jargon; the foreign procedures; and the lack of ability of the child to effectively instruct his legal representatives all make it very difficult for a child as young as 10 to effectively participate in the trial process. Children may know in basic terms the difference from right or wrong -research suggests that we do so from the age of around 6 years old. That said, is this the correct test for whether a child should be brought through the terrifying experience and consequences of the criminal process?

Impact of a criminal conviction

A criminal conviction or caution can in practice seriously impact a young person’s chances to become gainfully employed in later life. Although some convictions and out-of-court disposals become spent after a period of time, some offences, such as arson or robbery or any offence resulting in a custodial sentence do not and these convictions can haunt people and hinder their careers for the rest of their lives.

Not only this, the stigma of a criminal conviction can psychologically make it very difficult for young people to engage with education, training or employment. Studies show that a conviction has a significant impact in reinforcing a criminal identity, making it harder for the children to escape criminality. I know from my youth work, that young people who receive convictions in childhood and youth often do not have the confidence to apply for even low skilled jobs, due to the anticipated embarrassment and disappointment of going through the recruitment process and having to reveal criminal records.

In short, criminalisation means reoffending is more likely later in life. We are effectively creating criminals and the chronic unemployment which burdens society.

What if raising the age of criminality will lead to younger children being used to commit offences and evading justice?

Firstly this would be invariably be an offence, either under the Modern Slavery Act 2015 or under the Accessories and Abettors Act 1861.

Secondly, this does happen currently regardless. “County lines” have grabbed the headlines and exposed that children as young as 10 are frequently groomed into committing offences such as drug dealing by older youths and adults. Either way, young people coerced into committing offences are victims and should be treated as such. This is because firstly, they deserve our protection and secondly because without free will, they are not truly culpable. We do not allow children to be capable of consenting to having sex until they are 16 years old. Why should the age to consent to other activities which may harm them or others be any different?

A new approach: focus on the causes of crime

Often young offenders are victims of far worse crimes that the usually petty crimes they commit when they first start offending. Rather that criminalise, we should be looking at the causes of this behaviour as a safeguarding issue. Not only is this necessary in the interests of the right of the child but also in order to prevent re-offending and an escalation of offending.

Newspapers mislead the public about “criminals”. We frequently hear young people referred to as “gang” members and thugs but this is not the full story.

Children who enter the criminal justice system, more often than not, have suffered terribly in their short lives before they begin committing offences and are very vulnerable. For example, I represented an 18 year old who was charged with selling drugs. When he was assessed by a psychologist it was discovered that he had been raped as a young child, did not have either parent at home growing up, and had a very low IQ. The prison sentence he received will not punish him effectively when he has a limited understanding of what he has done wrong. Nor will it protect society in the future because going to prison serves to make it harder to integrate into society and thus more vulnerable to further criminality.

The fact is, punishment in these circumstances will not prevent re-offending and thus jeopardises the aim of sentencing to prevent future societal harm.

Perhaps it is time to abandon the connection between crime and punishment- not an automatic one but actually a concept conceived in ancient times which no longer serves the needs of our society. Ample statistical data demonstrates that crime and punishment fluctuate independently of each other and that is because deterrence and retribution do not stop people committing crimes. The reason for this is that crime generally doesn’t occur simply because of the immorality of the perpetrators but for a host of reasons that we as a society can and need to address if we are indeed committed to reducing crime.

How should the law change?

The law should be changed in line with research and facts not superstition and witch hunting.

Youth Justice Statistics for 2016/17 show that around 28,400 individual children and young people received a caution or conviction in the year ending March 2017. Of this number, 24% fell into the age bracket of 10 to 14 years old. There are therefore a substantial number of juveniles in the criminal justice system, whose behaviour prior to 1998 may not have been found to rebut the presumption imposed by the doli incapax doctrine.

The recent Lammy report suggested that the Ministry of Justice and the Department of Health should work together to develop a method to assess the maturity of offenders entering the justice system up to the age of 21.

From my own experience, young people very rarely enter the criminal justice system who have not faced substantial adversity. Sexual and physical abuse, growing up in the care system, abject poverty, homelessness, horrific violence, parental separation through death, imprisonment of the parent, immigration policy, parents with drug abuse and mental health issues.

This is relevant because it impacts the ability of children who grow up in those environments to make prosocial decisions. This is important because attaching morality to criminality does nothing to address the causes and so does not prevent further criminality and society is left open to further offending.

When a child or young person offends it is a society which has failed. Society continues to fail where we focus on punishing that individual as opposed to transforming our society so that we protect young people from the risk factors that make us vulnerable to criminality.

The criminal justice system, while it has some limited ability to enquire into reasons for offending – does not have the tools or resources and is not the appropriate forum to discover or deal with the causes of crime.

Most offences committed by children under 12 are of low gravity. There do currently exist mechanisms to divert young people out of the criminal justice system for low level offending where the offender admits an offence. We urgently require these procedures to be expanded to include more serious offences and to encompass cases or create separate provision where the offence is denied. Currently, if a child or young person denies the offence they are accused of, they will inevitably end up in the court system defending the charges at trial. It is not fair that asserting innocence projects a young person into the criminal justice system when otherwise they would be diverted. It also has the inevitable effect of young people accepting guilt more readily in order to avoid the trauma of a criminal trial.

Under 18s should not receive a criminal record and instead be engaged into appropriate support. This proposal would be in line with both the principle aim of Youth Justice System – to prevent offending and s.11 Children’s Act 2004 which imposes a duty on public bodies to safeguard the welfare of children. Also most importantly, it would serve to tackle the causes of crime which is necessary for a safe society.

At any age, if a person is not capable of effectively participating in the criminal process they should be diverted out of it. Shrinking the reach of the criminal justice system should not be a cause for concern. It is immensely expensive to the public and largely ineffective at reducing crime.

Lynch mob mentality not conducive to justice and a properly functioning democracy requires a fair justice system.

The author of this blog is Elena Papamichael who has left the firm. If you have a question about the issues raised in this blog, please contact the Criminal Defence team on 0808 271 9413.