Young Minds,Old Legal Problems

Introduction

The criminal law does not expect or require that individuals act rationally. ¹ It does not expect or require that individuals exhibit self-control or demand that they act for the benefit of others. It neither requires that individuals exercise a normal standard of normative competency. ² What is required is individuals are capable of possessing and exercising normative competence. ³

Most adults (and older adolescents) are presumed law-abiding citizens, for they are in possession of certain mental capacities—such as cognitive, volitional and rational capacities. ⁴ But can the same be said of younger adolescents aged between 10 and 14 years? In order to answer this question we must consider the possibility that there are adolescents who are responsible for their actions in the cognitive sense, but not responsible in law. Such adolescents have developed a basic degree of mental function to satisfy some of the cognitive mental attributes to be held legally responsible. Nonetheless, there is reason to argue that they still lack other important (advanced) abilities to be held responsible. What we should not do in this pursuit is ignore or deny the dualism involved in development change; (1) the adolescent will be in possession of some degree of mental capacity and (2) the adolescent will have not yet reached complete cognitive maturity.

There are several justifiable reasons why the law should not hold adolescents legally responsible. ⁵ Similarly, there are just as many good reasons for why the law should. ⁶ This article aims to explore what neuroscientific discoveries on cognitive development change could add to our existing discussion, in particular, it will consider broadly which standards of normative competence (conditions) ground the responsibility of the agent in English law.

Perhaps, there is a worry that from identifying the basic conditions of responsibility it could be argued that no attention is paid towards the nature of responsibility. Arguments of this kind have been made in the past. ⁷ However, Lacey asserts that the modern criminal law favours the theory of capacity for

it is only fair to punish someone who has the capacity to understand what they are doing […] it is only justifiable to punish someone who has the capacity or, in some versions, the fair opportunity to act otherwise than they did. ⁸

But it is fitting to recognise that the law embraces several dominant theories of responsibility. These theories include choice, capacity and character. Moreover, each theory adopts a different approach to responsibility by focusing on different senses of the agent. ⁹

First, this article will offer a neuroscientific account of adolescent cognitive development change. The hope is that this section provides the reader with a sufficient understanding of the key stages of cognitive developmental maturation. Secondly, the article will identity which capacities ground responsibility practice. From doing so, it should be possible to investigate, if there is such a claim, that cognitive development and age undermine responsibility. Finally, it will consider Lord Dholakia’s proposition of a two-year increase in the minimum age of criminal responsibility.

Brain Development Explained

Advancements in neuroimaging technologies (fMRI and MRI) make it possible for neuroscientists to map cortical growth and development change across the lifespan of adolescence. ¹⁰ Cognitive development is a process that occurs structurally, functionally and organisationally in the brain. ¹¹

The structural integrity of the brain and its maturity are important to acquisition of mental competence. ¹² Over the course of childhood, children lack the general ability to rationalise, for instance, how to ‘filter and suppress irrelevant information, thoughts, and actions in favour of relevant ones (i.e. cognitive control)’. ¹³ The reason for this is twofold: first, the child brain is not sufficiently developed enough to have obtained the necessary structural composition to function rationally; secondly, the child brain is not able to command (take control) of these decision-making abilities because it has not undertaken the process of synaptic pruning. ¹⁴ Synaptic pruning is the process of internal refinement of the elimination of surplus synapses. ¹⁵

During adolescence, the brain cultivates large and deep structural pathways of white matter (brain tissue), enabling it to share information in a smooth, quick and efficient manner across its circumference. ¹⁶ The purpose of this process is so that a person can acquire the necessary cognitive control over his mental capacities. But, it is region-specific and age-dependant. ¹⁷

Studies show that there is a steady increase of white matter volume in early adolescence with overall improvement between 14 and 21 years of age. ¹⁸ This is concurrent with other findings that reveal white matter maturation is a precursor for general maturity of mental function with time, as the brain becomes communicatively better equipped to receive, respond and transfer information. ¹⁹

With a linear increase in white matter, a decrease in grey matter volume occurs. ²⁰ Reductions in grey matter density are region-specific, progressive and regressive. An increase in grey matter volume peaks at 12 years in the frontal and parietal lobes; ²¹ this is then followed by large-scale reductions of grey matter throughout the rest of the brain. ²² Grey matter reduction is integral to the process of brain maturation. For it prepares the brain for the next phase of development change—that is, the process of synaptic pruning (cortex maturity). ²³ It is also essential for the fine-tuning of functional networks and improving the overall efficiency of synapsis circuitry across the brain. ²⁴

The central hub of high-order mental functioning—the prefrontal cortex (PFC)—is believed to be why these kinds of mental abilities take a very long time to mature. ²⁵ This is because the brain must reach a level of structural and organisational maturity in order to lay the groundwork so-as-to-speak prior to advanced functional maturation takes place. ²⁶ Again, the maturation of high-order mental competence is age-dependant and sex-specific. ²⁷

Research suggests children from a young age are capable of applying logic, that is, (1) coordinating his or her subjective views with the perspectives of others, (2) processing information, (3) making logical inferences and (4) reflecting on mental tasks. ²⁸ Studies reveal that at 11 years of age, they can demonstrate that they are capable of undertaking logic-based mental tasks by determining, irrefutably, whether a hypothesis is correct or incorrect. These studies also show marked improvements in these abilities during the transition from childhood to early adolescence, previously not exhibited in childhood. ²⁹ However, to be the holder of fully matured rational abilities, the brain has to undergo substantial advanced developments, which are not likely to be complete until the person reaches 20 to 30 years of age. ³⁰ Similar trajectories for the amygdala, the region that regulates emotion (self-control) and the hippocampus, which is the region responsible for long- and short-term memory recall. Studies reveal that the amygdala has a peak maturation age of 15 years in males and 19.7 years in females. In contrast, the hippocampus has a peak maturation of 17.3 years in both males and females. ³¹

According to many legal theorists and criminologists, as stated above, these findings explain why adolescents possess a low degree of mental capacity. Theoretically, it also explains why they are incapable of satisfying capacity standards of legal responsibility. For they are yet to develop mental functions the reasonable person in law (the adult offender) is expected to possess. ³² Moreover, it explains why they would resort to acting impulsively—rather than acting rationally and in control—for they are incapable of satisfying their desires and intentions in any other way or so the evidence suggests.

In order to establish the legitimacy of these kinds of claims (in sections 5, 6 and 7), this article must determine, first and foremost, what are the standards of normative competency ground legal responsibility and why, before any consideration is given to neuroscience. That way it should be possible to examine whether adolescents by reason of their young age and development cannot satisfy capacity criterion in responsibility practice.

Responsibility and Excuse

A person must be in possession of certain mental capacities to be held criminally responsible. ³³ This idea that capacity is essentially linked to responsibility is founded on Hart’s basic conception of responsibility. Hart believed that,

[w]hat is crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities. Where these capacities and opportunities are absent […] the moral protest is that it’s morally wrong to punish because ‘he could not have helped it’, or ‘he could not have done otherwise’ or ‘he had no real choice’. ³⁴

If, as suggested, it is important to responsibility practices whether a person possesses normative competence. That is, as Hart emphasises above, a minimum degree of mental and physical capacities. Intuition insists that an individual incapable of performing actions because he lacks the capacity to do otherwise should be excused from responsibility. This is based on the school of thought that it is unfair to treat an agent lacking in mental capacity as responsible.

As previously stated, there are good reasons to exempt some agents from responsibility. For example, individuals who possess some of the necessary capacity attributes of responsibility, but ultimately lack general mental competence. ³⁸ Young children, in particular, are deemed irresponsible for they lack core rationality. So are those who suffer from a recognised mental condition, ³⁹ which impairs their ability to possess or exercise the requisite cognitive faculties. ⁴⁰

Logic therefore should prevail, for the excusing condition (what the agent should be excused for) should be available to those whose degree of mental capacity is questionable. ⁴¹ But the problem is a lack of cognitive capacity has had no real bearing on the evaluation of an adolescent’s responsibility. ⁴² The following section will investigate why this maybe the case in light of the neuroscientific account provided in the ‘Responsibility and Excuse’ section.

Cognitive Development and Responsibility in Context

So far, it has been established certain capacities are important to the determination of an agent’s responsibility. Capacities, argued by Hart, include the ability to understand the nature of one’s actions, practical reason (rationality) and self-control. ⁴³ The question is then why should the law be concerned with these capacity-based conditions, in particular, in the determination of responsibility?

It is understood an agent may be exempt from criminal responsibility for it is unfair to punish him for not possessing certain capacities. Nevertheless, despite the normative importance of having capacity, the law sometimes functions objectively evaluating the reasonableness of the event, instead of the person. ⁴⁴ Under such circumstances, an agent can be held responsible for acting irrationally; for acting without thought to the consequences of his actions; for his failure to take self-control of his actions. The agent may even lack one or more of the general capacities outlined by Hart, for example, due to stunted cognitive development, but still be held responsible. ⁴⁵

The standard of reasonableness ‘does not purport to be a standard for measuring lack of individual fault or blameworthiness. It is a standard for measuring the acceptability of outcomes, and, as such, it has no place for individual traits’. ⁴⁶ This means that the criminal law is perfectly within its purview to discarded subjective standards of responsibility for objective standards to secure liability. Could this be why age and development are not taken seriously with regard to the adolescent’s evaluation of responsibility? Consider R v G and another to place this into context. ⁴⁷ The case concerned two young boys (11 and 12 years of age) who wilfully and unlawfully entered a supermarket backyard in the early hours. Once on the premises, the boys decided to create a fire using a large stack of newspapers located underneath a large plastic wheelie bin. Afterwards, the boys left the vicinity without concern for the consequences of their actions. The result of their inadvertence: the fire destroyed several buildings including the supermarket costing £1 million in damages. ⁴⁸ Both were charged under s. 1(1) of the Criminal Damage Act [1971]. It provides that,

[a] person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

Presumably, most people possess a basic knowledge of fire and its hazards—for it needs (1) a source of ignition (e.g. matches or cigarettes), (2) oxygen and (3) a fuel source (e.g. wood or paper). ⁵⁴ It is conceivable that the boys also acquired this knowledge prior to acting. Therefore, the argument of inadvertent thinking becomes believable if this knowledge had escaped them prior to leaving the premise.

Intuition suggests that both boys did have some degree of knowledge. For without it how can you identify what you are doing? But the law requires more than mere knowledge of a subject matter to perceive a risk; it could be submitted that it also requires that they had this knowledge and were stimulated by it, due to their understanding of its particular subject matter. Studies suggest that the boys may have lacked this capacity.

Early adolescence is a period of significant developmental immaturity structurally, organisationally and functionally. ⁵⁵ The PFC, at 10 years, is too underdeveloped to have attained rational competence. Schauble suggests that,

[r]ationality entails more than mere logical validity. To decide which of several potential causes are plausible, people bring to bear both specific knowledge about the target domain and general knowledge based on experience about the mechanisms that usually link causes with effects. ⁵⁶

This is a reason why we should be sceptical of using these standards of normative competency in the determination of an agent’s responsibility. Even if it were to be concluded that the criminal law works better in approaching the question of whether an agent should be held responsible for a wrongdoing from a capacity-based perspective, the fact that certain mental capacities (lack of capacities) can be abandoned does make a difference to the subjective assessment of an agent’s responsibility. This article has made this inexplicably clear.

While it is acceptable to shift between subjective and objective principles, the intuition is that once the concept is chosen for the agent’s assessment of responsibility, its basic criterion should be applied to prevent undermining responsibility. The hypothesis that the relationship between capacity and responsibility would change for the hope is that it will make us question which mental capacities we should care about for the purpose of punishment. The next section will question if there is also reason to increase the minimum age of criminal responsibility to 12 years because of the problems identified throughout this article.

Lord Dholakia’s Proposal—Is Our Only Way Forward With the Bill?

Recently, Lord Dholakia took to the floor of the House of Lords, Parliament, in 2013 to discuss the minimum age of criminal responsibility. He stated the following,

[c]hildren are deemed to be criminally responsible from the age of 10. That means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a ‘grave crime’—that includes serious violent and sexual crimes but can also include burglary—can be tried in the Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the adult Crown Court…Those who oppose increasing the age of criminal responsibility often argue that children of 10 and 11 are capable of telling right from wrong, as though it automatically follows that they should be dealt with in criminal courts. That does not logically follow at all. Most six year-olds have a sense of right and wrong, but no one suggests that they should be subject to criminal proceedings or prosecution.

Compared with mainland Europe, England and Wales adopts a very low threshold age of criminal responsibility, contrary to the enactment of the Children and Young Persons Act (1969). This is telling when one identifies that Belgium implements a threshold of 18 years of age, Norway 15 years of age and Spain 16 years of age. ⁶⁰ Therefore, it should come as no surprise that a bill to increase the threshold age has made its way to Parliament. The bill is to some extent a byproduct of the collective efforts of those who have pleaded the case for a raise in the threshold age of responsibility. ⁶¹ Lord Dholakia tries to capture these reasons in his speech to the House of Lords:

[t]here is now a significant body of research evidence indicating that early adolescence (under 13–14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process and this raises the question of whether the current minimum age of criminal responsibility, at ten, is appropriate. ⁶²

Even if 12 years was of some developmental significance to us, can a 2-year increase to 12 years of the threshold age remedy the issues outlined in Lord Dholakia’s speech? This is hard to hypothesis, for it is impossible to know if increasing the threshold age would result in fewer adolescents being held responsible in law. According to the Ministry of Justice crime statistics in 2012–13, the police arrested 1.07 million offenders in England and Wales with 129,809 of those arrests being attributed to young offenders between 10 and 17 years of age. ⁶⁶ This comprised of 10.5 per cent of the total arresting population. What we do not know is how many 10- to 12-year olds were arrested during 2012–13 for the annual statistical bulletins do not provide this information. Again, whether this would make a difference in practice is something that cannot be ascertained for; therefore further investigation is needed.

Conclusion

The bill’s lack of expediency and progress in the House of Lords over the last 5 years is very troubling. The bill has not surpassed the second reading stage in the House of Lords during this time. Therefore, this author remains unconvinced the bill is to receive royal assent in the near future. For the following reasons, first, the underlying premise for the increase in threshold age is unsubstantiated by neuroscience. Neuroscience tells us adolescents lack capacity, as suggested, but these studies do not distinguish 12 years of age as developmentally of important (e.g. as a key stage of the developmental process). What is even more questionable is whether a two-year increase could do all what Lord Dholakia says it can do. In this case ‘help to move this country away from its unenviable position of having the highest prison population in Western Europe’. ⁶⁷ It seems more plausible, if there were to be an increase, that the minimum age of criminal responsibility is raised higher than 12 years to reflect the stages of developmental maturity obtained.

We also must be mindful of the limitations of neuroscience in our pursuance of policy reforms. Arguably, neuroscience is unlikely to tell us what we really want to know about young persons. If applied and interpreted correctly, there should be no reason why it cannot serve as a platform for further inquiry into the mentality of the adolescent offender. More specifically, the relationship responsibility practice plays with age and development. Only time can tell us whether this will be the case or not.