Doli Incapax: Why Children Deserve its Protection
| Author: |
Thomas Crofts LLB (Hons), LLM, Dr Iur
Senior Lecturer, Murdoch University School of Law
|
| Issue: |
Volume 10, Number 3 (September 2003)
|
Contents:
- In
all Australian criminal jurisdictions children under fourteen are presumed
criminally incapable. This presumption of criminal
incapacity has an
irrebuttable and a rebuttable form depending on the age of the child. Since
2000 when Tasmania and the Australian
Capital Territory raised the age level,
the age under which a child is irrebuttably presumed criminally incapable is
now ten
throughout Australia.[1] For children aged ten but not yet fourteen the presumption is
conditional and may be rebutted by proof that the child understood
the
wrongfulness of what they were doing.
- In recent years the validity and fairness of the rebuttable form of the
presumption has been increasingly questioned. Unfortunately,
such discussion
has often been sparked by high profile cases of young offenders committing
grave offences. In such a climate
reasoned arguments must compete against
highly emotive claims about the need to do something about youth crime. This
article
aims to discuss whether there is still a role for the rebuttable
presumption of doli incapax in modern Australian society. It
will begin by
explaining how the rebuttable presumption operates, before moving on to the
background to the presumption and
the reasons for increased criticism.
Following this the criticisms made of the presumption will be addressed with a
view to
showing that there continues to be a need for the protection which the
presumption of doli incapax provides.
- The law presumes that a
child aged ten but not yet fourteen cannot be convicted of an offence unless
the prosecution brings
proof that the child understood their act or omission
to be wrong. In some states and territories this rebuttable presumption
that
children of this age group are not able to form a guilty mind is on a
statutory footing while in others it remains a matter
of common law.[2] In the case of Gorrie it was held that there must be proof
that the child had mischievous discretion, or in other words, that
he or she
knew that they were doing something not just wrong, but seriously wrong.[3] Although in England there was some discussion about what
exactly was meant by the term 'seriously wrong',[4]
- Australian courts have interpreted this term in line with the
required understanding in the case of insanity.[5] It must therefore be established that the child understood[6] that the act or omission was wrong according to the ordinary
standards of reasonable people.[7] Understanding that the act was disapproved of by adults would
not be sufficient, because "[a]dults frequently disapprove of breaches
of
decorum and good manners on the part of children ... without regarding the
acts or omissions in question as wrong in the
relevant sense."[8] Lord Goodhart interprets the requirement as an understanding
of the criminality of the act, in the sense that the child knows
"the
difference between doing things which are naughty and for which you will be
punished (it is to be hoped) by a parent,
and doing those things which are
seriously wrong and liable to punishment by a court."[9]
- Here, it should be clarified that the issue is not about
establishing that the child had the requisite intention; that is a separate
issue. The prosecution must prove all the physical elements of the offence as
well as any necessary fault element, and further
that the child knew that what
they were doing was wrong.[10]
- A common misconception is that the presumption of doli
incapax is a defence. Yet, the burden is on the prosecution to rebut the
presumption in every case or there is no case to answer.[11] According to Hale, "[I]t is necessary that very strong and
pregnant evidence ought to be to convict one of that age, and to make
it
appear he understood what he did."[12] This means that the presumption must be rebutted according
to the criminal law standard and therefore beyond reasonable doubt.[13]
- A further principle regarding rebuttal, identified by the
House of Lords in C v DPP, was that the guilty knowledge "must be proved
by
express evidence, and cannot in any case be presumed from mere commission of
the act."[14] The starting point for assessing the child's understanding
will generally be the age of the offender and the type of act committed.
The
closer the child is to fourteen[15] and the more obviously wrong the act,[16] the easier it will be to rebut the presumption. Perhaps the
most common form of evidence used to rebut the presumption is what
the child
says when interviewed by the police.[17] It is also possible, but not necessary, to call an expert
witness to give evidence on the child's developmental state.[18]
- Aside from direct evidence inferences about the child's
understanding can be drawn from other factors such as: the normal level
of
understanding of a child of that age,[19] conduct surrounding the act,[20] home background,[21] appearance in court[22] and past criminal record.[23]
- The presumption of incapacity has a very long history and was expressed in
the following terms in 1619 by Dalton in Countrey Justice:
An infant of eight
yeares of age or above, may commit Homicide ..., and shalbe hanged for it,
viz. if it may appeare (by hiding
of the preson slaine, by excusing it, or by
any other acte) that hee had knowledge of good and euill, and of the peril and
danger of that offence. But an infant of such tender yeares, as that he hath
no discretion or intelligence, if he kill a man,
that is no felony in him.
[24]
Blackstone noted that this rule has existed since at least
the reign of King Edward III (1327-1377).[25] - However, recognition of the fact that children may not yet
have criminal capacity can be traced back even further to ancient laws,
for
instance the Laws of King Ine from 688 AD and King Aethelstan from 925 AD.[26] Naturally, a rule having such a long existence is bound to
be subject to a degree of criticism and as early as 1883 it was criticised
by
Stephen that the presumption operates seldom and capriciously.[27] In 1954 Glanville Williams argued that it was no longer
necessary and could even be regarded as legally obsolete in modern criminal
law,[28] and six years later the Ingelby Committee in England
suggested that the presumption should be set aside.[29]
- Although longevity alone is not a sufficient reason to
retain such a rule the fact that it has survived criticism for so long should
lead us to be especially cautious to not sweep away the protection provided by
the presumption without thorough exploration
of the validity of modern
concerns.
- In recent years the criticism of the doctrine has increased. This
was fuelled in Britain by the Bulger case where two ten year
old boys abducted
a two year old child and killed him. This case received extensive media
coverage, not least because the abduction
was caught on video tape. The result
was public panic about escalating youth crime rates and calls for harsher
measures to
deal with child offenders. The response of the Divisional Court in
an unrelated case from 1994 was to hold the rebuttable presumption
of doli
incapax to no longer be valid law.[30] On the connection between the public's reaction and this
decision Freeman comments that "there is no need to believe in conspiracy
theories to remark on their coincidence."[31] On appeal the House of Lords held that the presumption was
still valid law. However, the basis for this judgment does not appear
to be a
conviction in the continued need for this doctrine. Rather, the concern was
that such a change would be socially and
politically controversial and
therefore should not come from the court but from Parliament.[32]
- The Labour party took heed of the call for reform and vowed
during its election campaign to examine the law concerning young offenders.
Shortly after coming to power the new Labour government published a
consultation paper entitled Tackling Youth Crime in which
two proposals were
made to "modernise the archaic rule of doli incapax": either the presumption
was to be reversed or it was
to be abolished.[33] The government made clear in its consultation paper that it
preferred the latter approach and in 1998 the Crime and Disorder Act
was
passed. This Act abolished the rebuttable presumption for those aged ten but
not yet fourteen, leaving England and Wales
with one of the lowest age levels
of criminal responsibility in the world.
- These moves in England did not go
unnoticed in Australia and sparked discussion here about the continued need
for the rebuttable
presumption of doli incapax.[34] In 1997 the Australian Law Reform Commission recommended
that all states retain the doli incapax presumption in its current form
and
place it on a legislative footing.[35] Despite this some States continue to question the need for
the presumption in its present form. In 1999 a private members Bill
introduced
into the Queensland Parliament proposed to reverse the presumption of doli
incapax, such that the prosecution would
not need to rebut the presumption but
that the child could raise incapacity as a defence.[36] In the same year a case in New South Wales involving a ten
year old child killing a six year old fuelled a discussion which led
to the
Criminal Law Review Division of the NSW Attorney-General's Department
publishing a discussion paper on the age of criminal
responsibility.[37] This paper raised a number of questions in order to discern
whether any reform should be undertaken.
- Despite such reform discussion in
Australia the rebuttable presumption of doli incapax remains intact in all
Australian jurisdictions.
The question is, however, how safe is the
presumption from future attack? It may only take another case involving a
child offender
committing a crime which does not fit the picture of childhood
innocence along with the ensuing media hype that children are getting
away
with crime at the expense of community protection and justice for victims for
there to be renewed calls for change.[38] In such a climate the reality of the functioning of this
presumption becomes unimportant in the face of government's promising
harsh
new laws to be tough on crime.[39] Indeed, the Australian Law Reform Commission has noted that:
"Community perceptions that youth crime is rampant have led to particularly
punitive legislative developments in many jurisdictions."[40] It is therefore more necessary than ever to evaluate the
criticisms made of the presumption, whether they are valid and why there
is
still a need for the presumption of doli incapax.
- There are varied criticisms made of the doli incapax presumption, however,
they can be examined under two main headings. Firstly,
that the presumption of
doli incapax is outdated and secondly, that it is unfair in practice.
- The argument that the doctrine of doli incapax is out of date has two
aspects: Firstly, it is out of date in assuming that a child
up to the age of
fourteen cannot differentiate between right and wrong, and secondly, it is out
of date because it assumes
that children under fourteen continue to need
special protection from the harshness of the criminal law.
- In Britain the
government argued in favour of abolition of the presumption on the basis that:
"the notion that the average 10-14
year old does not know right from wrong
seems contrary to common sense in an age of compulsory education from the age
of five,
when children seem to develop faster both mentally and physically".[41] This same common sense argument has been expressed in
Queensland and in New South Wales. During the debate on the Criminal Code
Amendment Bill in Queensland it was stated that:
I believe it would be a
difficult task to find a child aged 10 to 14 years who does not know the
difference between right and
wrong according to what the community would find
reasonable, especially in a time when it is clear that the incidences of
children,
sometimes younger than 10, being involved in serious crime are
definitely on the increase.[42]
- The above claim is particularly disturbing as it suggests that if crimes
rates are increasing this equates with a greater understanding
amongst
children. This leads one to question whether the real concern is establishing
the most appropriate age and mechanism
for assessing whether children are
criminally responsible or rather a desire to deal with the young within the
criminal justice
system when their offences are perceived to be a social
problem.
- The obvious objection to the argument that the modern education
system means that children mature earlier was already raised by
Lord Lowry in
C v DPP: "better formal education and earlier sophistication do not guarantee
that the child will more readily
distinguish right from wrong".[43] Similarly, the Australian Association of Child Welfare
Agencies comments that:
While many children may have access to a greater
amount of information (and even this assertion is questionable for highly
disadvantaged
groups) than in previous centuries when the laws were conceived,
information does not necessarily imply a greater maturity or
discernment when
it comes to matters of right and wrong.[44]
- In fact, despite compulsory education research shows that a
significant number of offending children do not regularly attend school,
because of truancy or school exclusion.[45] As such while school may generally contribute to educating
children in what is socially acceptable behaviour it may fail to do
so with
regard to those children most at risk of committing crime. It should also be
noted that not all children will have
been born and brought up in Australia
and so it may not be appropriate to expect that they have experienced a
similar standard
of education.[46]
- Similarly, the New South Wales Attorney Generals Criminal
Law Review Division questioned whether the doli incapax presumption was
still
necessary in modern society considering that children today have greater
access to technology.[47] Stephen Scarlett, Senior Children's Magistrate in New South
Wales, had no doubt that children today are more developed and stated
that:
It
seems obvious that children in the final stages of the 20th century are better
educated and more sophisticated than their
counterparts 200 years ago. A child
of 12 in Australia has access to television, radio and the Internet, and has a
far greater
understanding of the world than a 12 year old in rural Britain in
1769.[48]
- It cannot be denied that children today make much greater
use of modern technology than in earlier years. However, this does not
simply
equate with a better ability to understand the wrongfulness of actions. The
revolution in the electronic media has not
only had a positive influence on
the development and maturation of children. Computer games, Internet,
television, etc, have
led to a reduction in social contact and, as one German
author claims, such media have led to a "gradual disappearance of reality".[49] Thus, instead of interacting with others, personally
experiencing situations and learning how to behave in them, children learn
now
increasingly through watching television and playing computer games. As such
the young may not fully appreciate the full
effects of their actions and how
others may be affected or react in real situations.
- In this vein it was argued
in the case of Sheldon that children may well be "shocked and distressed to
discover that real people
do not get up and walk away as they do after lethal
attacks in cartoon films".[50] Such thought processes have indeed been noted in the Bulger
case where, "[o]utside the trial, one [of the accused boys] spoke
of James
Bulger as a character in a chocolate factory and imagined that, as in some
Disney-esque scenario, he might be brought
back to life."[51] A case where the consumption of violent videos was actually
found to have led to a reduction in the guilt of the young offender
was heard
before the State Court in Passau, Germany. This case involved a fourteen year
old dressing up like Jason from the
film "Friday the 13th" and attacking his
younger cousin and an elderly neighbour with an axe.[52] It was found to be a case of diminished responsibility
because the obsessive consumption of violent horror videos, as well as
the
severe failings in care on the part of his family, had led to a maladjustment
in his personality.[53]
- Furthermore, formal education is only one of the factors
which affects whether a child will understand that a certain act is wrong.
The
social and family environment in which the child grows up will have a profound
influence on whether a child understands
the wrongfulness of criminal acts.[54] It is interesting to note how widespread the understanding
of the fundamental importance of the home background was during the
reform
period of the nineteen century. In 1895 one convicted criminal made the
following statement in the Minutes of Evidence
before the Gladstone Committee:
- Take for instance a child in its mother's arms; anything that excites its
fancy it wants to get, and if that natural feeling is
not corrected by
parental training and moral influence and education it gets stronger as the
child gets older.[55]
- If there are failings in the family surroundings of the
child it can have a damaging effect on the child's understanding. Research
shows that living in a family with multiple problems, experiencing poor
parenting, lack of supervision and weak discipline
can all have a negative
effect on the child's development.[56] It may seem surprising then that in Queensland the breakdown
of the family and the disintegration of morals in society were referred
to in
support of the argument of the need for reform. Justice McGuire, then
President of the Children's Court of Queensland,
claimed that approximately
70% of offending children come from dysfunctional families. He followed from
this that there is
"a significant number of parents who fall short of the duty
cast on them to ensure that their children understand the difference
between
right and wrong..."[57] McGuire further argued that it is not just families that are
failing to provide children the support they need:
It is time to take stock of
the moral condition of society. Many people of the western democracies are in
a state of profound
perplexity. Today, western civilisation is marred by
violent crime, vandalism and a loss of civility; by a breakdown of family
and
widespread neglect of our children...[58]
- Such claims could convince of the need for reform, but not in the
direction called for by McGuire. If it really is the case that
parents are
failing to educate their children on the difference between right and wrong
and that modern society is making this
learning process more difficult then
this would support an argument for keeping the rule as it stands or even
increasing the
age levels of criminal responsibility rather than reducing the
protection offered.
- It cannot therefore be claimed that the presumption is outdated on the
basis that children generally know the difference between
right and wrong at
an earlier age than in the past. Indeed, it could be argued that modern
conditions may mean that the child
is less mature than generally assumed. In
today's society great emphasis is placed on individuality and freedom of
choice.
This greater freedom and individualism places heavy burdens on
children because they must learn where the limits of freedom are
in our open
pluralistic society. Indeed:
It is in complex cultures ... which are
characterized by rapid social change ... an emphasis on individuality with
great freedom
of choice, and little explicit institutionalization of
progressive readjustments of authority as between parents and children,
that
adolescents are liable to experience serious psychological difficulties that
reduce responsibility.[59]
- Further, if using history as an argument it should be
pointed out that in earlier centuries children began to work and assume
responsibilities for their lives at an earlier age than children today.[60] It could therefore be argued that children now have less
independence and awareness of responsibility. In this vein, Dr Brett
Waters,
the child psychiatrist who clinically assessed the eleven year old NSW boy
charged with manslaughter in 1999, opined
that "all the social evidence today
indicates that childhood is being extended in a number of ways ... More and
more children
are being retained for a longer period in a dependant sort of
status."[61] Taken together these arguments about the position of
children in modern society do not convince of the need to reduce the
protection
provided by the presumption of doli incapax.
- The second basis upon which the presumption is argued to be
outdated is that it is founded on the assumption that children still
need
protection from the criminal law. The presumption of doli incapax took root at
a time when the criminal law was more draconian
and children were sentenced to
death for crimes less than murder.[62] The need for the protection it provided in those times is
therefore undoubted. However, now that the criminal law is no longer
so harsh
it is claimed that there is no longer any need for the presumption of doli
incapax.[63] While it is, thankfully, quite true that the criminal law is
not so retributive and brutal as it was in earlier times and that
there is an
emphasis on the welfare of the child, the fact cannot be denied that the
system for dealing with young offenders
has remained embedded in the criminal
justice system. There are therefore still considerable objections to the
argument that
children do not need protection from the criminal law.
- The first
objection to using the criminal law on children who may not have been able to
form a guilty mind is the stigmatisation
which it causes. The criminal law is
society's most condemnatory instrument. The government in Britain recognised
the effects
of stigmatisation and welcomed it. The Home Secretary stated: "We
must introduce an element of shaming people. There is nothing
wrong with
that--it is what kept many of us in check when we were at school; it is an
important element of social control."[64] Colin Barnett, leader of the Opposition in Western
Australia, also recently called for a system to humiliate young offenders.[65] It is highly doubtful whether the experience of being shamed
at school can be compared to being shamed by the criminal justice
system.
Shaming the young offender is unlikely to nurture an understanding of the
wrongfulness of acts and could be counterproductive.
A child who did not
understand the wrongfulness of what they had done may feel unjustly treated
and feel resentment toward
society. It is also possible that the child simply
accepts the label of being criminal and resigns themselves to it.[66] None of these reactions would be conducive to helping a
child learn where the borders of socially acceptable behaviour lie.
- A second
reason why the child still needs protection from the harshness of the criminal
law is that the criminal trial itself
and the surrounding proceedings can be a
heavy burden for a child. This is especially so when the case is heard in
higher courts.
Although children are generally tried in children's courts,
Australian States and Territories do provide for children charged
with serious
offences, such as murder, to be dealt with before higher courts. Such trials
can be long, complex, technical and
traumatising for children who are unlikely
to have the concentration to follow the evidence properly and may not be able
to
give clear and consistent instructions to their lawyers.[67] Indigenous children may be especially vulnerable in such an
environment "because of cultural differences in methods and styles
of
communication."[68] This can lead to severe injustice if the child cannot
adequately engage in the trial because they do not understand, or are
intimidated by, the strange environment and the language and mannerisms used.
- An example highlighting the concerns about trying children in such a way is
the English Bulger case where it was noted that throughout
much of the three
week trial the boys looked bewildered and bored and neither boy gave
evidence.[69] The fact that children may not be mature enough to follow
and participate in their trial raises serious questions about whether
children
are being denied the right to a fair trial. Indeed, in the Bulger case it was
held by the European Court of Human
Rights that the right to a fair trial had
been breached.[70] Similarly, in Australia trying children in adult courts
could be argued to be in breach of the United Nations Convention on the
Right
of the Child.[71]
- Apart from the problems of the criminal trial itself there
is also the fact that real punitive sanctions are available for children.
For
instance, section 282 of the Criminal Code of Western Australia provides for
long term detention of children found guilty
of wilful murder. Western
Australia also provides for mandatory sentencing of juveniles convicted of
repeated burglary.[72] This latter provision represents a recent addition to the
Criminal Code, which shows that in an ever more punitive climate there
may be
an increasing need for the protection that the doli incapax presumption
provides.
- The second group of criticisms
concern the arguments that the presumption of doli incapax is unfair in
practice because in some
cases it may be impossible or difficult for the
prosecution to bring the evidence necessary to rebut the presumption. This
means that some children who ought to be prosecuted avoid conviction.[73] As a result it is claimed that "[t]he message the doli
incapax rule sends to the community is not one of justice, nor is it one
of
responsibility".[74]
- This argument seems to ignore the fundamental nature of the
presumption and the reality in practice. The presumption is based on
a
fundamental principle of criminal law, that a person should not be punished
unless they freely chose to do something which
they knew to be wrong. In the
words of Hart: "unless a man has the capacity and a fair opportunity or chance
to adjust his
behaviour to the law its penalties ought not to be applied to
him."[75] Clearly, children do not have this ability from birth but
develop it gradually as they grow up. As noted by Justice "there is
no single
age at which it can be said that physical and mental development have reached
maturity."[76] The doli incapax rule takes account of the fact that the
path of development of the young is not steady and consistent and is
therefore
flexible; it is presumed that the child is incapable but it can be rebutted by
proof that the child was able to understand
the wrongfulness of the act. As a
result conviction is only hindered when there is insufficient proof that the
child knew that
what they had done was wrong.
- In requiring such proof it could
be argued that the presumption makes prosecution more difficult, but that is
exactly the purpose
of the rule, it creates "a due process safeguard, a hurdle
to be jumped by the prosecution."[77] The prosecution are therefore forced to investigate whether
the child really was developed enough to be criminally responsible
and not
just assume this to be the case. This is in line with Article 37(b) of the
United Nations Convention on the Rights
of the Child from 1989, which states
that the criminal law should only be used as a last resort.
- Furthermore, there
appears to be no empirical evidence in Australia or England to support the
claim that the presumption does
cause real difficulties in prosecuting
children. As early as 18[83] it was commented that the presumption was practically
inoperative[78] and little seems to have changed since then. In the United
Kingdom, when asked in Parliament what research supported this assertion
the
government admitted that there were no empirical data available on the
operation of the presumption of doli incapax.[79] In the Queensland Parliament it was noted that "[t]here is
not a shred of evidence before this Parliament that this is causing
a
difficulty in the prosecution of child offenders."[80] The Association of Childrens Welfare Agencies have similarly
stated that: "There are no statistics on the number of times doli
incapax is
argued in New South Wales Courts, successfully or otherwise."[81] Even more concerning is the comment that in Victoria in
rural and regional areas many practitioners are not even familiar with
the
principle.[82]
- The argument that the presumption is hindering prosecution
is not convincing and in fact all indicators suggest that the contrary
is the
case. It is often stated that not much evidence is needed to rebut the
presumption.83 Furthermore, perhaps the most
common factor used to rebut the
presumption is what the child says when interviewed by the police and it has
been found in
Victoria,[84] in New South Wales[85] and in England[86] that children confess to their crimes much more readily than
adults. In the face of evidence that children readily confess to
their crimes
and the power imbalance between the police and the child, the claim that the
police find it difficult to gather
evidence to rebut the presumption does seem
far fetched.[87]
- The criticisms levelled at the presumption of doli incapax do not convince
of the need for any weakening of the protection it provides.
Even though the
presumption took root at a time when the criminal law was more draconian there
remains a need for some protection.
The system for dealing with young
offenders remains embedded in the criminal justice system with its
condemnatory nature and
possibility of severe penalties. It is also by no
means clear that today children more readily understand the wrongfulness of
criminal acts than in earlier times. Indeed, there are many indicators that
conditions in modern society may be making it more
difficult for children to
learn what is right and wrong than is commonly thought.
- The presumption of doli incapax is a recognition of the fundamental nature
of childhood, that children are not naturally equipped
with an ability to
understand the wrongfulness of criminal acts but develop this gradually, at
different and inconsistent rates.
The presumption is flexible and practical.
The assumption of absolute incapacity for children under ten is an expression
of
the conviction that they are not ever developed enough to be held
criminally responsible. For children aged ten but not yet fourteen,
it is
acknowledged that some may be able to form a guilty mind. The presumption of
incapacity can therefore be rebutted if
there is proof to the contrary. This
affords protection to those who are not developed enough to be criminally
responsible
while at the same time allowing the conviction of those who are
able to understand the wrongfulness of what they have done.
- The claim that the presumption is stopping children from being dealt with
by the courts must also be put into perspective. Firstly,
the rebuttable
nature of the presumption should be borne in mind and, secondly, there is no
evidence that the presumption is
in fact hindering prosecutions. The
objections to the presumption seem to be based on a misunderstanding about the
nature of
the presumption and about its practical application. It may slow
down proceedings in requiring the prosecution to consider the
development of
the child, but it does not stop prosecution if there is proof of
understanding. The presumption is therefore
one of the possible methods of
ensuring that Australian law complies with Article 37 of the United Nations
Convention on the
Rights of the Child which requires that criminal proceedings
should only be used as a last resort. It is also in line with the
United
Nations Standard Minimum Rules for the Administration of Juvenile Justice
(1985):
The modern approach would be to consider whether a child can live up
to the moral and psychological components of criminal responsibility;
that is,
whether a child, by virtue of her or his individual discernment and
understanding, can be held responsible for essentially
anti-social
behaviour.[88]
- The criticisms of the presumption of doli incapax do not convince of a
need for change to the presumption, rather, they persuade
of a need to take
the presumption seriously. The presumption exists because children are dealt
with in a criminal court with
the possibility of punitive sanctions. In such
an environment and due to the nature of childhood, the presumption allows
children
what they deserve: protection if they are unable to understand the
wrongfulness of their actions and conviction if they are so
able.
[1] S18(1) Criminal Code (Tas), effective 1.2.2000; s71(1)
Children and Young Persons Act 1999 (ACT), effective 1.5.2000. The United
Nations Committee on the Rights of the Child has, however, noted in its
Concluding Observations
of the Committee on the Rights of the Child: Australia
from 10.10.1997 that it considers the age of ten to be too low for the
minimum
age of criminal responsibility, CRC/C/15/Add.79, para 29. It should also be
noted that in 2003 Hong Kong raised the
age of absolute criminal incapacity
from seven to ten in s3 of the Juvenile Offenders Ordinance. This was based on
the Law
Reform Commission of Hong Kong's Report on the Age of Criminal
Responsibility in Hong Kong (2000), which can be found at http://www.info.gov.hk/hkreform/reports/rage-e.doc.
[2] Commonwealth: s7.
[2] Criminal Code Act 1995; ACT: s71(2) Children and Young Persons
Act 1999; NT: s38(2) Criminal Code; NSW: common law; Qld: s29(2) Criminal
Code; SA: common law; Tas: s18(2) Criminal Code; Vic: common law; WA: s29,
second para Criminal Code.
[3] (1919) 8
[3] JP 136.
[4] For discussion of whether the term meant understanding of
legal or moral wrongfulness, see for instance Glanville Williams, Criminal
Law, The General Part, 2nd ed (London: Stevens, 1961), 817-818; see also
Thomas Crofts, The Criminal Responsibility of Children
(Aldershot: Ashgate,
2002), 42-45.
[5] For the case of insanity see for instance Stapleton v The
Queen (1952) 86 CLR 356.
[6] This is the requirement at common law and in the Commonwealth
Criminal Code. Some of the statutory provisions, however, speak
of the
capacity to know (ACT, NT, Qld, Tas, WA).
[7] R v M (1977) 16 SASR 589 and R v Whitty (1993) 66 A Crim R
462.
[8] R v M [1977] SASR 589 at 591.
[9] UK Hansard, House of Commons (1
[9] March 1998), 832.
[10] Glanville Williams, above n 4 at 814.
[11] Glanville Williams, "The Criminal Responsibility of
Children" [1954] Criminal Law Review 498.
[12] Hale, Mathew, History of the Pleas of the Crown, vol 1
(1736), 27.
[13] C v DPP [1995] UKHL 15; [1995] 2 All Er 43 at 62. For further details and
analysis of the evidence employed to rebut the presumption of doli incapax see
Thomas Crofts,
"Rebutting the presumption of doli incapax" 62 (1998) Journal
of Criminal Law 185-193.
[14] C v DPP [1995] UKHL 15; [1995] 2 All ER 43 at 62.
[15] See B v R (1958) 44 Cr App R 1 at 3.
[16] C v DPP [1995] UKHL 15; [1995] 2 All ER 43 at 62.
[17] See for instance JM v Runeckles (1984) 79 Cr App R 255,
where admission of the criminal act was taken as proof of understanding. See,
however, IPH v Chief Constable of South Wales
[1987] Crim LR 42, where
admission of the act was seen as showing understanding of the consequences of
the act but not that the act was wrong.
Also T v DPP [1989] Crim LR 498, where
denial was seen as showing that the child understood the wrongfulness of the
act. Regarding the relevance of admission
of past offences, see R v M [1977]
SASR 589 at 594.
[18] L v DPP [1992] 2 Cr App R 501.
[19] JBH and JH v O'Connell [1981] Crim LR 632.
[20] Sheldon [1996] 2 Cr App R 50.
[21] B and A (1979) 69 Cr App R 362.
[22] Ex parte N [1959] Crim LR 523.
[23] B and A (1979) 60 Cr App R 362; see also R v M [1977] SASR
589 at 594-595.
[24] Michael Dalton, Countrey Justice (1619), 223-224.
[25] William Blackstone, Commentaries on the Laws of England,
Book 4 (1769), 23.
[26] Laws of King Ine 7.2 and Laws of King Aethelstan (Council of
Greatanlea) both reproduced in Wiley Sanders (ed), Juvenile Offenders
for a
Thousand Years: Selected readings from Anglo-Saxon Times to 1900 (Chapel Hill:
University of North Carolina Press, 1970),
3.
[27] James Fitzjames Stephens, A History of the Law of England,
vol 2 (London: Macmillan, 1883), 98.
[28] Glanville Williams, above n 11 at 496.
[29] Home Office, Report of the Committee on Children and Young
Persons, Cmnd 1191 (1960), chaired by Viscount Ingelby. Although it
must be
noted that the Ingelby Committee did suggest this as part of a package of
reforms designed to introduce a welfare system
and so remove children from the
criminal justice system.
[30] C v DPP [2005] EWHC 2993; [1995] 1 Cr App R 118.
[31] Michael Freeman, "The James Bulger tragedy: Childish
Innocence and the Construction of Guilt", in: Anne McGillivary (ed), Governing
Childhood (Aldershot: Dartmouth, 1997), 123.
[32] The following comments are from C v DPP [1995] UKHL 15; [1995] 2 All ER 43.
Lord Bridge of Harwich: "In today's social conditions the operation of the
presumption that children between the ages of ten
and fourteen are doli
incapax may give rise to anomalies or even absurdities. But how best to remedy
this state of affairs
can, in my view, only be considered in the context of
wider issues of social policy respecting the treatment of delinquency in
this
age group" (at 46). Lord Lowry: "This is a classic case for parliamentary
investigation, deliberation and legislation"
(at 64). Lord Jauncey: " I add my
voice to those critics and express the hope that parliament may once again
look at the presumption"
(at 45). Lord Ackner: "I have, however, considerable
sympathy with the criticisms expressed by laws J and would hope that
parliament
will provide and early opportunity for its review" (at 46).
[33] Home Office, Tackling Youth Crime: A Consultation Paper
(1997), para 15.
[34] See for instance, Michael Grove, "Are you old enough? In
defence of doli incapax", (1996) Law Institute of Victoria Journal 38;
Patricia Blazey-Ayoub, "Doli Incapax", (1996) 20 Criminal Law Journal 34.
[35] Australian Law Reform Commission, Seen and Heard: Priority
for Children in the Legal Process (1997), ALRC Report No 84, Recommendation
195.
[36] Criminal Code Amendment Bill, Queensland Hansard, (18 August
1999), 3178-3179.
[37] New South Wales Attorney General's Criminal law Review
Division, A Review of the Law on the Age of Criminal Responsibility of
Children (2000).
[38] Patricia Blazey-Ayoub, above n 34 at 37, also notes that:
"Of concern is the fact that with questions of law and order prominent
on the
agenda of major political parties, the presumption may be abolished, before it
can be properly considered by the High
Court."
[39] Such a process has been noted in regard to the Divisional
Courts decision in C v DPP. Hay calls this the judicial internalisation
of the
discourse of moral panic. This is explained as the judiciary feeling compelled
to act to restore authority and avert
criticism of the justice system when the
media have caused a moral panic over a certain social issue. Colin Hay,
"Mobilization
through Interpellation: James Bulger, Juvenile Crime and the
Construction of Moral Panic" (1994) 4 Social and Legal Studies 200.
[40] Australian Law Reform Commission, above n 33 at 18.3.
[41] Home Office, Tackling Youth Crime: A Consultation Paper
(1997), para 8.
[42] Mr Paff, Queensland Hansard, (18 August 1999), 3179.
[43] C v DPP [1995] 2 All ER
[43] at 57.
[44] Association of Child Welfare Agencies, Newsletter 2000.
<http://www.acwa.asn.au/acwa/publications/newsletter/2000/feb2000.html>
.
[45] John Graham, Benjamin Bowling, Young People and Crime
(1995), Home Office Research Study 145, 39-42.
[46] A similar point was raised regarding the United Kingdom by
Baroness Mallalieu, UK Hansard, House of Lords (19 March 1998), 834.
[47] New South Wales Attorny General's Criminal Law Review
Division, A Review of the Law on the Age of Criminal Responsibility (2000),
Issue 1.
[48] Cited in Trish Luker, Legal Information Access Centre, "The
Age of Criminal Responsibility" [1999] HotTopics 3.
[49] Hartmut von Henting, Das allmähliche Verschwinden der
Wirklichkeit (Wien: Hanser, 1984).
[50] [1996] 2 Cr App R
[50] at 54.
[51] Michael Freeman, above n 31 at 120.
[52] [1996] Neue Zeitschrift für Strafrecht 601.
[53] Ibid at 602.
[54] This was acknowledged by the Ingelby Committee when it
discussed reforming the presumption of doli incapax, Home Office, Report
of
the Committee on Children and Young Persons, Cmnd 1191, 1960, para 81.
[55] Gladstone Committee, Parliamentary Papers, vol 56 (1895),
15. For a modern debate on the link between lack of parental discipline
of the
young and delinquency see for instance, Michael Gottfredson and Travis
Hirschi, A General Theory of Crime (Stanford:
Stanford University Press,
1990).
[56] See for instance, Home Office, No More Excuses (1997), para
1.5.
[57] McGuire J., cited in Queensland Hansard (4 October 2000),
3453.
[58] Ibid at 2455.
[59] Jeffrey Blustein, "Adolescence and Criminal Responsibility"
(1985) 2 International Journal of Applied Philosophy 12.
[60] Louis Schetzer, Director of National Children's and Youth
Law Centre, The Law Report, ABC Radio National, 07.03.2000.
[61] Quoted in Richard Phillips, "Child psychiatrist discusses
Supreme Court manslaughter trial of young boy in Australia" World Socialist
Web Site, 11 January 2000.
<http://www.wsws.org/articles/2000/jan2000/bwin-j11.shtml>
.
[62] Home Office, Tackling Youth Crime (1997), para 9. Also Mr
Springborg, Queensland Hansard, (4 October 2000), 3456.
[63] See for instance, Dr Prenzler, Queensland Hansard (4 October
2000), 3455.
[64] Jack Straw, UK Hansard, House of Commons (27 November 1997),
1101.
[65] The West Australian, 14 June 2003.
[66] Jeremy Blustein, above n 59 at 14.
[67] Justice, Children and Homicide: appropriate measures for
juveniles in murder and manslaughter cases (1996), para 4.3.
[68] Australian Law Reform Commission, above n 33 at 18.184.
[69] Michael Freeman, above n 31 at 120.
[70] T v UK (application number 24724/94) and V v UK (application
number 24888/94), judgement delivered 16th December 1999, judgement
available
at
<http://www.echr.coe.int/Eng/Judgments.htm>
.
For the implications of this case for Australia, see Gail Hubble, "Juvenile
defendants: taking the human rights of children
seriously", (2000) AltLJ 116
at 119-120.
[71] The UN Committee on the Rights of the Child has already
noted with concern that children can be tried in adult courts in certain
circumstances in the UK. Concluding Observations of the Committee on the
Rights of the Child: United Kingdom and Northern Ireland
(2002),
CRC/C/15/Add.188, para 60(b). It recommended that the UK ensures that children
are not tried as adults (para 62(c)).
Such concerns could also be raised about
Australia.
[72] Section 401(4)(b) Criminal Code (WA).
[73] For instance Ms Barbara Holborow, former children's
magistrate, claimed that doli incapax is a myth that has helped children
escape guilty verdicts. Refered to in Linda Doherty, "Children still presumed
to be innocent - at least until age 14", Sydney
Morning Herald 12.02.2001.
[74] Mr Pfaff, Queensland Hansard (18 August 1999), 3179.
[75] H.L.A. Hart, Punishment and Responsibility (Oxford: Oxford
University Press, 1968), 181.
[76] Justice, above n 67 at 3.12.
[77] Nicola Padfield, "No More Excuses" (1998) 148 New Law
Journal 561.
[78] James Fitzpatrick Stephen, above n 27 at 98.
[79] House of Commons Standing Committee B on the Crime and
Disorder Bill, ninth sitting, clause 31 (12 May 1998), col 332.
[80] Mr Foley, Attorney-General and Minister for Justice and
Minister for the Arts, Queensland Hansard (4 October, 2000), 3453.
[81] Association of Child Welfare Agencies, Newsletter 2000.
<http://www.acwa.asn.au/acwa/publications/newsletter/2000/feb2000.html>
.
[82] L. Schetzer, Director and Principle Solicitor, National
Children's and Youth law Centre, witness before the Law Reform Committee,
Inquiry into legal services in rural Victoria, in Wodonga, 13 June 2000.
Available at
<http://www.parliament.vic.gov.au/lawreform/Legal_Services_Inquiry/default.htm>
.
[83] For example, Andrew West, (1998) 19 Queensland Lawyer 56;
Michale Grove, above n 34 at 41; Mr Foley, Queensland Hansard (4 October
2000), 3452; see also, C v DPP [1995] UKHL 15; [1995] 2 All ER 43 at 63; CC v DPP [1996] 2 Cr
App R 375.
[84] L. Schetzer above n 82.
[85] Judy Cashmore, "Should the age of criminal responsibility be
lowered in NSW?", On Line Opinion 15/07/00.
<http://www.onlineopinion.com.au/July00/Cashmore.htm>
.
[86] Roger Evans, The Conduct of Police Interviews with
Juveniles, The Royal Commission on Criminal Justice, Research Study Number
8
(1993), 29.
[87] See Sue Bandalli, "Abolition of the Presumption of Doli
Incapax and the Criminalisation of Children" (1998) 37 Howard Journal of
Criminal Justice 117.
[88] Commentary on rule 4.1.
<http://www.unhchr.ch/html/menu3/b/h_comp48.htm>
.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MurdochUeJlLaw/2003/26.html
