Abstract
One of the most complex, contested and controversial questions confronting modern juvenile/youth justice systems concerns the minimum age of criminal responsibility: the age at which a child is deemed to be sufficiently ‘mature’ to be held responsible before the substantive criminal law. In the three UK jurisdictions – England and Wales, Northern Ireland and Scotland – the minimum age of criminal responsibility falls significantly below the European average. In England and Wales, for example, the largest UK jurisdiction by some distance, children are held to be fully responsible in criminal proceedings once they reach the age of 10 years. The legitimacy, or otherwise, of exposing such young children to the full weight of criminal law is increasingly a source of lively debate, attracting interest from a broad range of stakeholders. It is timely, therefore, to subject the minimum age of criminal responsibility to analytical scrutiny.
It is within this context that the Royal College of Psychiatrists’ Adolescent Forensic Psychiatry Special Interest Group took the initiative, in October 2012, to convene a conference in order to explore the question of criminal responsibility from different disciplinary perspectives: clinical, criminological/sociological, developmental and legal. The substantive articles that form the basis of this ‘special issue’ began life at that conference. They have since been developed and subjected to peer review and what follows is an attempt to open up an informed inter-disciplinary discussion.
It is no coincidence, given the low minimum ages of criminal responsibility that prevail, that each article centres its analytical focus on youth justice jurisdictions within the UK. That being said, each article also draws upon a wide-ranging international literature in addressing questions that extend far beyond any single, and nationally bounded, jurisdiction.
Enys Delmage opens the ‘special issue’ by offering a medico-legal perspective. He begins by tracing the origins and evolution of the minimum age of criminal responsibility and, by analysing the concepts of competence and capacity, he exposes manifest tensions between civil and criminal statute, policy and practice. Delmage proceeds to explore some of the key contributions that neuroscience can offer towards understanding child development and he suggests that a developmental continuum, as distinct from an arbitrary age, might provide a more constructive basis for progressing practice.
Barry Goldson applies a criminological/sociological lens to the analysis of criminal responsibility. He engages theoretically with both social and statutory (institutionalized) constructions of the ‘child offender’ and considers the different ways in which criminal responsibility might be conceptualized. Furthermore, by addressing questions relating to international human rights standards, the wider corpus of civil and criminal law, comparative criminological analysis and sociological research, he makes the case for, and assesses the prospects of, raising the minimum age of criminal responsibility.
Michael Lamb and Megan Sim approach the complex question of criminal responsibility from the perspective of developmental psychology. Moreover, the authors broaden the discussion by contrasting responses to, and socio-legal formulations of, children as both victims/witnesses and offenders/suspects. The authors mobilize a substantial volume of recent research-based literature in considering the applications and implications of child development for youth justice law, policy and practice.
Finally, Claire McDiarmid embraces the myriad legal complexities intrinsic to notions of criminal responsibility and criminal capacity and illustrates inconsistencies in practice by referring to case law. For McDiarmid the child’s levels of understanding and experience are of pivotal importance and neither, she argues, necessarily map onto chronological age.
Inevitably, there are key points of divergence and difference within, and across, each of the substantive articles. There are also core points at which the articles converge and intersect. All of the authors are struck by inconsistencies between civil and criminal statute. Each is concerned with the conspicuously low minimum ages of criminal responsibility that pertain in UK jurisdictions. All four articles unsettle what might otherwise be taken-for-granted and each makes a case for reforming the way in which law, policy and practice define the legal personality of the child in criminal proceedings.
By organizing the Royal College of Psychiatrists Special Interest Group conference in October 2012, and by co-editing this special issue of the journal, we hope that what follows will make a positive contribution towards illuminating understanding and improving practice. We submit that the substantive articles provide a reasoned treatment of the issues under consideration and should support progressive reform in the way in which youth justice systems and criminal statutes impact upon children and, ultimately, the wider community.