Should the Age of Criminal Responsibility be Raised?

On the 12th of February 1993, two-year-old James Bulger was kidnapped and cruelly tortured to death after going missing during a shopping trip with his mother.

A post-mortem examination revealed the young child had suffered extensive injuries as a result of being kicked, stomped upon and having paint, bricks and stones thrown at him. Batteries were also found stuffed inside his mouth, and a 10-kilogram iron bar had been dropped upon his head, causing him to suffer multiple skull fractures.

Members of the public were horrified to learn that the culprits of this vicious attack were Robert Thompson and Jon Venables, two ten-year-old boys who had skipped school and were on the hunt for a young child to abduct and torture.

Both boys were arrested and charged with Bulger’s murder, and following a highly-publicised trial, each was convicted and sentenced to eight years imprisonment – making them the youngest convicted killers in the 20th century.

The case provoked a heated debate about the age at which a person should be held criminally responsible for their actions.

Now, leading human rights advocates say that the age of criminal responsibility should be raised; arguing that children under the age of 12 are not mentally developed enough to understand the nature of their actions.

The Current Law

In New South Wales, the law assumes that children aged under the age of 10 cannot be found guilty of an offence.

This principle is enshrined in section 5 of the Children (Criminal Proceedings) Act 1987.

Children aged between 14 and 17 can be charged and convicted of a criminal offence – but they will be tried in a special children’s court, which applies different sentencing principles and laws to preserve the child’s best interests. It is not until a person turns 18 (or 17 in Queensland) that they can be tried as an adult in an adult court.

The law is a little more complicated for children aged between 10 and 14: Most Western countries apply the principle of doli incapax to that age bracket – which is a presumption that children of that age are incapable of forming the intention required to commit crimes.

This, however, is a rebuttable presumption – meaning that if the prosecution is able to establish that a child understood what they were doing was ‘seriously wrong’ – along with each element of the offence in question – the child can be tried and convicted of a crime.

This is indeed what occurred in the Bulger case, with psychiatrists testifying that both Venables and Thompson knew the difference between right and wrong – and were aware that their actions were seriously wrong.

But some say that 10 is far too young to be held criminally responsible – and argue that the time is ripe to raise the minimum age of criminal responsibility in line with international legal principles.

How Young is Too Young?

Amnesty International strongly advocate raising the age of criminal responsibility – arguing that the current age contravenes Australia’s obligations under the United Nations Convention on the Rights of the Child.

Although the Convention does not specify a minimum age of criminal responsibility, a UN Committee recommended in 2012 that children under the age of 12 should not be held criminally responsible for their actions.

Following this announcement, several countries amended their laws to reflect the UN’s recommendations, including Canada and Ireland, but there has been no proposal to reform Australian law to follow suit.

Amnesty International argues that this issue is particular pressing in Australia due to the significant overrepresentation of Indigenous children in custody. Recent statistics suggest that Indigenous kids are 28 times more likely to be incarcerated than their non-Indigenous counterparts – and that 48% of children in custody are Indigenous, despite Indigenous Australians making up just 3% of our population.

The organisation’s argument is supported by the UN Committee on the Rights of the Child, which has expressed the view that Australia’s current age of criminal responsibility is too low, recommending that we ‘consider raising the minimum age of criminal responsibility to an internationally acceptable level.’ The UN has since said that any age younger than 12 is ‘not internationally acceptable.’

Doli Incapax Between 10 and 14 is Impractical

The Australian Law Reform Commission (ALRC) has discussed the practical difficulties of enforcing the current principle of doli incapax in the context of children between 10 and  14, pointing out that ‘it is often difficult to determine whether a child knew that the relevant act was wrong unless he or she states this during police interview or in court,’ and that prosecutors often resort to ‘leading highly prejudicial evidence that would ordinarily be inadmissible.’

Science also seems to support the UN’s position: experts saying that there is a wealth of evidence to show that the sections of the brain which dictate impulse control, planning and decision making are not sufficiently developed in children aged 10 or 11.

But despite these finding, it is unlikely that Australian governments will raise the age of criminal responsibility anytime soon.

Rather, the decisions to lower the age for ‘control orders’ to 14 and to monitor kids in schools indicates a willingness to target children in the context of our sweeping ‘moral panic’ about terrorism.