Protections for children before the law: An empirical analysis of the age of criminal responsibility,the abolition of doli incapax and the merits of a developmental immaturity defence in England and Wales

Research Design

This article derives from a wider research project examining legal responses to children who commit homicide in England and Wales. In 2014, as part of that project, 38 in-depth interviews were conducted with members of the English criminal justice system. The interviews examined legal practitioners’ experiences in the courtroom and their views on the adequacy of English law in this area. Practitioners were asked their view on current sentencing approaches for child homicide offenders, the adequacy of the Crown Court system and the use of partial defences to murder in homicide trials involving a child offender among other questions. Specific to this article, one of the key areas under focus was these practitioners’ view on the protections in place for children in trouble with the law, namely the age of criminal responsibility and the (now abolished) presumption of doli incapax in England and Wales. Here practitioners were asked their view on the current age of criminal responsibility, the gap between current practice and the minimum age recommended by the United Nations, their experiences before and after the abolition of doli incapax as well as their views on the Law Commission’s (2005a, 2005b) recommendations for a defence of developmental immaturity. This article presents the findings of those interviews and examines the adequacy of the legal protections for children charged with serious offences as they currently stand. It also considers future needs for law reform.

Of the 38 interviews undertaken, six were conducted with members of the judiciary, 26 with legal counsel, three with solicitor advocates and three with policy stakeholders. ¹ Of those interviewed, six were female (16 per cent) and 32 were male (84 per cent). Interviews were conducted in three major English cities: London, Liverpool and Manchester. All legal practitioners were identified and invited to participate in the research because of their involvement in at least one reported trial involving a child homicide offender. Participants’ prior experience provided direct insight into the experiences of those engaged in contested criminal trials involving a child defendant. Participant anonymity was guaranteed in order to facilitate the expression of honest viewpoints and experience recollections. For this reason, all participants have been assigned a pseudonym according to their professional role within the justice system (e.g. CounselA, JudgeB, SolicitorC, PolicyD) and are referred to only by such pseudonyms throughout this article.

All interviews were audiotaped and lasted between 20 and 90 minutes. The interview recordings were transcribed and the resulting interview data uploaded into the qualitative software Nvivo for thematic analysis. The value of using in-depth interviews with legal practitioners to inform criminological research and provide an understanding of the law in practice is well acknowledged (Fitz-Gibbon, 2014; McBarnet, 2009; Partington, 2005; Ward and Wasby, 2010). Such interviews allow a researcher to gain an understanding of the law in action and to examine the gaps between the law as it is presented in legislation and as it is applied in the courtroom (Fitz-Gibbon, 2014). Specific to this research, given the relative rarity of child perpetrated homicides, drawing directly on the experiences of practitioners involved in such cases allowed the research to gather specialist knowledge on the effectiveness of legal responses and protections in this area. The interview data examined here provide valuable insight into the impact of legislation in practice and thus illuminate the adequacy of the existing law as well as potential needs for future reform from the perspective of those directly involved in the law’s operation.

The Age of Criminal Responsibility

The minimum age of criminal responsibility sets the point at which a child can be held legally responsible. Under Article 40(3)(a) of the United Nations Convention on the Rights of Child, of which the United Kingdom is a signatory, state parties are required to establish the minimum age of criminal responsibility. In providing guidance as to where the age should be set, the Beijing Rules (rule 4.1) provide that the ‘emotional, mental and intellectual maturity’ of the child should be taken into consideration. While, traditionally, the UN were hesitant to denote a specific age at which criminal responsibility should be set, in 2007 the UN Committee on the Rights of the Child (2007) stated that legislating criminal responsibility below 12 years old was not ‘internationally acceptable’ and as a result encourages all states that have ratified the Convention to increase the age of criminal responsibility to 12 years old ‘as the absolute minimum age’.

Under section 50 of the Children and Young Persons Act 1933, English law prescribes that ‘no child under the age of ten years can be guilty of any offence’. Consequently, at 10 years old, England and Wales have set one of the lowest ages of criminal responsibility among comparative jurisdictions (Cipriani, 2009). Beyond England and Wales, while comparative analysis is difficult given variances in jurisdictional approaches (Crofts, 2009), the age of criminal responsibility varies across international jurisdictions with few comparable jurisdictions setting a minimum age lower than 12. Jurisdictions that legislate a higher age of criminal responsibility than England and Wales include Croatia, Germany, Italy and Denmark (14 years old), Sweden, Norway, Czech Republic, Iceland and Cyprus (15 years old), Portugal (16 years old) and Belgium (18 years old) (Arthur, 2010; Cipriani, 2009). In the United States the age of minimum responsibility differs according to state legislation. Of the 50 states only 17 legislate a minimum age of criminal responsibility, of which North Carolina sets the lowest age at seven years old (see Cipriani, 2009: 219–220 for further analysis of the United States). Beyond the United States, the small number of comparative jurisdictions that do align with England and Wales include Australia, New Zealand, Northern Ireland and Switzerland.

Among the jurisdictions that had previously legislated the age of criminal responsibility below 12 the last two decades have witnessed a general trend to raise the age of criminal responsibility to align with the UN recommended standard (Crofts, 2012). For example, in recent years, the Republic of Ireland and Scotland have increased the age of criminal responsibility and criminal prosecution respectively to 12 years old (Ashworth, 2013; Crofts, 2012).

That English law retains the age of criminal responsibility at 10 years old has animated significant debate at both a domestic and an international level, including among members of the UN Committee on the Rights of the Child, the European Committee of Social Rights, the Council of Europe’s Human Rights Commissioner and among legal scholars (Crofts, 2009). Despite a proposed increase in 1969 of the age of criminal responsibility to 14 years (as part of the Children and Young Persons Act 1969) the British government has repeatedly reaffirmed its resolution not to show leniency to young child offenders. Given the gap between European and English practice, Crofts (2009: 268) has pointed to the likelihood of a ‘European challenge to the age level’ at some point in the future, however, he also notes that the British government should not wait for that moment but ‘should now take heed of national and international criticism and strengthen the protection against prosecuting children’. More than five years later, this article draws on the voices of those involved in the delivery of criminal justice to support that call for reform.

There are varying justifications for the age of criminal responsibility across jurisdictions and disciplines. Central to debates surrounding the need for a change in law and policy have been two key justifications: the need to provide very young children with immunity from prosecution as well as the need for a protection in law that recognizes a young child’s lack of capacity to commit a criminal offence (Scottish Law Commission, 2002: 1–2). Maher (2005: 493–494, emphases in original) explains this as a conceptual distinction between capacity and process:

legal systems tend to use two distinct senses of age of criminal responsibility. One concerns the capacity of a child to commit a crime; the other relates to exemption of a child from the ‘full’ or adult system of prosecution and punishment […] The first sense concerned the capacity of a person to engage in criminal conduct. The second related to the process whereby a person was held answerable for such conduct.

This article adopts the same approach as the Scottish Law Commission (2002) in that it is centrally concerned with examining legal practitioners’ views on the role that the minimum age of criminal responsibility plays in procedurally ensuring children’s immunity from prosecution. The extent to which the law should recognize a child’s capacity to commit a crime is explored in the latter half of this article which examines the merits of (re)introducing a presumption or defence in law that would provide better recognition of children’s differing levels of maturity and capacity to commit a criminal offence.

From a theoretical perspective, where the age of criminal responsibility is legislated too low it fails to align the practice of law with key theories of responsibility. Tadros (2005: 45) outlines three main theories of responsibility:

For choice theorists, an agent cannot be criminally responsible for his action unless he had choices. For the capacity theorist, he cannot be criminally responsible unless he had some kind of capacity in relation to his action. For the character theorist, he cannot be criminally responsible unless his action was properly related to his character.

If a child offender does not understand the criminality of their actions, and is not able to meaningfully understand the process of criminal justice, then their prosecution arguably does not uphold the view of choice, capacity or character theorists. This raises a concern as to whether young children, above the age of criminal responsibility but under 18 years old, possess the necessary capacity to be held criminally responsible. Crofts (2009: 286) argues that criminal responsibility should be based on two elements:

First, a cognitive element, the ability to orientate oneself on legal norms, to understand what the law requires one to do or not to do and the ability to understand the nature of the act committed and its consequences. Secondly, it requires a volitional element, the ability to control one’s actions and thus the ability to behave according to the legal norms recognized.

Adopting this as a basis for understanding criminal responsibility, Crofts (2009) argues that the age of criminal responsibility should be increased to 12 years old in England and Wales, and should be progressively increased in the future to ensure that children brought before the law are of an age where their development is mature enough to ensure adequate understanding of their conduct. This view is shared by Arthur (2012: 13–14), among others, who argues that:

The low age of criminal responsibility in England and Wales runs the risk of children being prosecuted for crimes they are too immature to fully understand. A child of 10 years can know that they are doing something wrong but not appreciate it is criminally wrong and thus not form the requisite intent, or mens rea, to be criminally responsible. ²

That the criminal law should not punish those unaware of the consequences and criminality of their actions is a well-established principle beyond the context of child offenders. As Ashworth (2003: 158) states, criminal liability ‘should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and its consequences’.

These concerns were shared by the vast majority (over two-thirds) of legal practitioners and stakeholders interviewed. Throughout the interviews, practitioners echoed concerns surrounding the low age of criminal responsibility and the limited capacity of children at 10 years old to understand the wrongfulness of their actions. As one legal counsel observed:

Ten is ridiculously young to hoist full criminal responsibility on people. They’re children, their brains aren’t developed. They may know what they’re doing in one sense, but I think it’s counter-productive. I don’t think it improves them. I don’t think it improves society to have people marked as criminals from a very young age […] My point is that if you’re going to criminalize children, you’ve got to think of the long-term effect, not just on their behaviour, but on what it is going to mean for them for work and for getting a visa, for example. (CounselF)

Dissatisfaction with the current age of criminal responsibility is further captured in comments made by legal counsel who commented that it is set ‘way too low’ (CounselU), ‘very, very young indeed’ (CounselX) and at an age which has ‘always concerned me’ (CounselW). Mirroring this view, of the three solicitor advocates interviewed, two described the age of criminal responsibility as ‘much too low’ and ‘too low’. Policy stakeholders interviewed were equally critical of the current age of criminal responsibility, with one stakeholder commenting:

I think all the evidence shows that children don’t have the capacity, the competency to fully understand what’s going on, to be fully capable for their actions. It’s such an arbitrary age, which has been set […] all the neural developmental evidence has come along so much in the past 20 years that it just doesn’t reflect the evidence. (PolicyC)

The neural development argument for increasing the age of criminal responsibility, finds support in the findings of the Royal College of Psychiatrists (2006: 38) who note that frontal lobe maturity of the brain is not found to occur until a child is around 14 years old. McDiarmid (2013: 155) explains that the impact of limited development of the frontal lobe prior to this age is that ‘children’s reasoning and risk assessment will be more impulsive than adults’ reasoning until this point’. For this reason, critics argue that to prescribe an age of criminal responsibility below 14 years of age risks bringing children with limited neural developmental capacity into the confines of a criminal justice system that they are unable to adequately understand and participate in.

As a follow-up question, respondents were asked to identify at what age they believed children should be made criminally responsible in England and Wales. The dominant view was that 14 was an appropriate age and would provide a more satisfactory protection for very young persons who commit a criminal offence. This is reflected in the view of one legal counsel, who commented, ‘I would like to see the age raised to 14 in any event because criminalizing young people early on is unhelpful and not very civilized it seems to me’ (CounselE). Another legal counsel said,

I would probably say at least 14 but I’m open to discussion […] but I’m certain 10 is far too young […] You can’t punish somebody if they don’t understand the concept of having done wrong and what punishment is meant to achieve. (CounselU)

Similar views were expressed by solicitor advocates and policy stakeholders interviewed, two of whom stated:

I have absolutely no qualms in saying that anybody under the age of 14 should not be criminally responsible […] it breaks my heart seeing small children at court for naughtiness. (SolicitorC)

My own belief is that the age of criminal responsibility in this country is too low and that it should be 14, however, I recognize as a reality that that is not going to happen […] I do think it’s probably the most important issue that’s hanging out there. I’ve visited many countries that have higher age of criminal responsibility and I don’t see them to be falling apart. That doesn’t mean that children who commit crimes aren’t dealt with in some way. They’re just not stigmatized with the criminal process and not confused by it. (PolicyB)

As is evident in the above responses, while the majority of those interviewed advocated for a higher age of criminal responsibility, many of these practitioners also recognized the political reality and the difficulty of persuading politicians and the wider community of the need for reform. As one legal counsel explained:

It would be unpopular though because the general view would be young people these days grow up very quickly. They all know what’s going on. They’re running around without fear or etcetera, etcetera. This government would never do it because ‘we’ like to be tough on crime. (CounselE)

Echoing this view, and emphasizing the ongoing legacy of public sentiment surrounding the February 1993 murder of two-year-old James Bulger by two 10-year-old boys, another legal counsel commented:

I’m convinced that the attitude to it [age of criminal responsibility] – as with so much – is dictated by determination on the part of politicians not to be perceived as being soft on crime. That’s the motivating factor in relation to these issues […] You see in this country you would only have to cite one case, which is the Jamie Bulger case, and say to the public – ‘it would have meant that you couldn’t have prosecuted those two young men, for the murder of that child’ and that’s the end of it […] I know hard cases make bad law but the effect of that case in this country has been so profound, even now, all those years later. (CounselJ)

Reference to the Bulger case in respondents’ assessment of the adequacy of the age of criminal responsibility was not uncommon nor was it limited to the views of legal counsel. A solicitor interviewed similarly commented, ‘I think 10 [years old] is way too low. The Bulger case just creates a certain problem […] it’s just political, it’s very difficult to deal with’ (SolicitorB). The legacy and influence of high profile cases, including Bulger, is well recognized in research (Crofts, 2009; Elliott, 2011; Green, 2008; McDiarmid, 2013) and undoubtedly creates significant barriers for reform in this area of law. Compounded by the current ‘law and order’ political climate, the likelihood of a challenge to the age of criminal responsibility succeeding appears unlikely. For this reason, Elliott (2011: 302) warns that a gradual rise in the age of criminal responsibility would be more likely than one substantial increase and that reform will need to be accompanied by a change in ‘society’s attitudes to children and misbehaviour’ to avoid political and community pushback.

It should be noted, however, that in contrast to these views, there were a small proportion of respondents interviewed (n = 9) who expressed support for the current age of criminal responsibility. When asked their view on the age of criminal responsibility, three legal counsel commented that ‘10’s about right’ (CounselB), ‘that’s probably about right’ (CounselR) and ‘I think that is reasonable’ (CounselZ). Similarly, one member of the judiciary commented that ‘it’s probably all right’ at present (JudgeC). Several of these participants noted that they had not participated in a case involving a young child defendant that had led to concern, hence their perception that the existing age of criminal responsibility was adequate.

It is important to emphasize that increasing the age of criminal responsibility would not signify the removal of all responses to criminal offences perpetrated by a young child but it does challenge governments to ask ‘whether other mechanisms might be more effective in the prevention of recidivism through positive responsibility taking’ (McDiarmid, 2013: 158). Recognizing that young children exhibiting anti-social behaviour often have disadvantaged backgrounds with histories of abuse, poverty and/or family disruption (Boswell, 1996; Crowley, 1998; Farrington, 2002), the challenge must be to divert vulnerable children away from the justice system wherever possible. As the above respondent views indicate, the interviews revealed a consistent critique of the low age of criminal responsibility among those charged with implementing the law as well as a majority perception that to label children who lack the necessary maturity to understand their offences as offenders is ineffective in terms of achieving specific deterrence and future prevention.

The Presumption of Doli Incapax

The presumption of doli incapax, which means ‘incapable of committing an evil act’ (Arthur, 2010: 43), recognizes that children below a certain age, although older than the age of criminal responsibility, may still be unable to understand the wrongfulness of their behaviour due to differences in maturity rates (Crofts, 2009). Prior to its abolition in England and Wales, the presumption of doli incapax required that the prosecution, who bears the burden of proof, prove that a child defendant above the age of criminal responsibility but less than 14 years old understood the difference between right and wrong at the time of the offence. The presumption required that the prosecution show that the accused knew the act was ‘seriously wrong’ as opposed to being ‘merely naughty or mischievous’ (Urbas, 2000: 4, see also R v Gorrie [1919] 83 JP 136). To do so, prosecution evidence of knowledge on the part of the child could include:

Surrounding circumstances, what the child said or did before or after the act […] other evidence may come from interviewing the child, from a psychiatric examination or it may be given by someone who knows the child well, such as a teacher […] Evidence of the child’s life circumstances, education and especially home background are [also] highly material to the state of the child’s knowledge as is evidence of previous convictions. (as listed by Bandalli, 1998: 114)

Originally introduced to protect children from ‘suffering the full extent of the law’ (Arthur, 2010: 45), doli incapax has long provided a safeguard in English law for children under 14 years old but above the age of criminal responsibility who were deemed unable to sufficiently appreciate the wrongness of their actions and were unlikely to fully understand the process of criminal justice: ‘a system geared to convicting and punishing adults’ (Arthur, 2010: 50).

In 1998, in response to mounting criticism, the presumption of doli incapax was abolished in England and Wales by section 34 of the Crime and Disorder Act 1998. Since then all children over the age of 10 who commit a criminal offence in this jurisdiction are left ‘open to the full rigours of the criminal law’ (Ashworth, 2013: 178). ³ The abolition of doli incapax followed the 1997 Home Office No more excuses: A new approach to tackling youth crime in England and Wales Consultation Paper, which proposed a package of reforms aimed at establishing a clear message that children would be ‘held accountable for their own actions’ (Home Office, 1997: 15). As part of this reform agenda, the government proposed abolition of the presumption of doli incapax on the basis of its ‘inherent illogicality, its unfairness in practice and its archaic nature’ (Bandalli, 1998: 115). The report (Home Office, 1997: para. 4.4) argued that doli incapax was ‘contrary to common sense’ and that its operation was ‘not in the interests of justice, or victims or of the young people themselves’. It suggested that the sentencing stage of the criminal justice process was better able to take into account a child’s age and maturity than a presumption which could prevent prosecution and conviction.

The decision to abolish the presumption of doli incapax has been heavily criticized by legal scholars and stakeholders (e.g. Arthur, 2010, 2012; Bandalli, 1998; Goldson, 2013; Jack, 1995; McDiarmid, 2013; Wilkinson, 1995). The essence of these critiques is aptly captured by Smith (1994: 427) who argues that the change in English law ‘holds that a person is completely irresponsible on the day before his tenth birthday, and fully responsible as soon as the jelly and ice-cream have been cleared away the following day’. The abolition of doli incapax has also caught the attention of the UN Committee on the Rights of the Child who, in a 2002 report, stated it was ‘particularly concerned’ and recommended that the British government consequently raise the age of criminal responsibility considerably to ameliorate against the potential negative consequences of this approach to reform.

This article makes an important contribution to this debate by revealing the extent to which these concerns are shared by English legal counsel and senior judicial members. Throughout the interviews, legal practitioners’ views on the abolition of doli incapax varied significantly – more so than the views on the current age of criminal responsibility – with some practitioners supporting its abolition, while others criticized its abolition and expressed significant concern as to the perceived lack of legal protections for children in trouble with the law.

One of the key explanations provided by the government in support of their abolition of doli incapax was that better formal education systems for children meant that children of a younger age were perceived as more adept and able to distinguish right from wrong (Home Office, 1997). This justification has previously gained support among the English High Court judiciary. For example, in 1994 Mr Justice Laws argued:

Whatever may have been the position in an earlier age, when there was no system of universal compulsory education and when perhaps children did not grow up as quickly as they do nowadays, this presumption at the present time is a serious disservice to our law. (C (A Minor) v DPP [1994] 3 All ER 190: at 196, as cited in Arthur, 2010: 46–47)

While they did not link the perceived increased maturity among children specifically to education, throughout the interviews practitioners who supported the abolition of doli incapax often expressed the view that children are maturing at an earlier age and therefore do not require the same level of protection from the law. As one legal counsel commented:

They’re not young; they are very streetwise young men. They may not be clever, they may not be intelligent, but streetwise they are and because they’re streetwise, they basically understand exactly what’s going on […] in their own way they are perfectly articulate and they know precisely what they’re charged with, they know exactly what their defence is and they will stick to it. And all right you can catch them out when they tell lie after lie, but that’s the result of trying to evade their responsibilities. (CounselB)

Another member of the judiciary agreed:

My experience of children between 10 and 14 [years old] at the Bar, on the Bench and in life generally leads me to believe that they are almost always perfectly capable of committing offences, and I saw no reason for a rebuttable presumption to the opposite effect. I therefore did not mourn the passing of the doctrine. (JudgeD)

For another member of the judiciary the perceived severity and sophistication of the offence committed by young children was suggested as evidence of their maturity:

I do think these days that the sort of crimes that are committed sadly by very, very young defendants, they know the difference between right and wrong […] when you look at the type of offences which are being committed by those who are aged between 10 and 14 now, I think it speaks for itself. There is no way these sorts of offences are committed by children who do not know the difference between right and wrong. (JudgeE)

This ‘streetwise’ justification for the removal of doli incapax has, however, been criticized by Arthur (2012) and Bandalli (1998). The latter argues that the multiple influences on a child – including education, family and the media – justify the need for protections in law that cast the net of responsibility wider than the individual child. Cavadino (1997: 167) also argues that the streetwise justification fails to recognize the well-established link between criminality and truancy, which suggests that ‘many of the children concerned have in practice failed to benefit from universal compulsory education’. The streetwise justification similarly fails to engage with a harm minimization approach and the aforementioned research that has consistently found high rates of poverty, abuse and/or family disruption among child offenders.

Beyond citing earlier maturity among children, legal practitioners who supported the abolition of doli incapax also commented that, in their experience the presumption was too complex and rarely relied upon, leading to the perception that its abolition had had minimal impact in practice. Several practitioners noted that the complexities inherent in the presumption made it difficult to understand and apply, to the point that one counsel conceded they ‘didn’t understand the concept’ (CounselC). Mirroring this view, other legal counsel agreed that the presumption was ‘an overcomplicating feature’ of the criminal law (CounselS), ‘a bit obsolete’ (CounselM), ‘far too arbitrary’ (CounselK) and that by ‘the time it was abolished by statute, it had already been rather teetering for some years’ (CounselZ).

In contrast to those who supported its abolition, several practitioners emphasized the importance of having a protection in law that tests a child’s capacity to understand right from wrong and argued that removing it ‘was a very big error’ (SolicitorC). As explained by one legal counsel:

They probably would have been wiser to leave it as it is. I think when you’re dealing with children aged 10 to 14, if indeed you are going to prosecute them at all, I think it’s wise to have a procedure that enables you to forensically establish that they are in fact capable of understanding what goes on. (CounselJ)

Another legal counsel agreed:

I think it is right for the prosecution to be forced to prove that a child has sufficient understanding of the criminal nature of what they were doing […] I think it was in many ways a sensible rule. I wouldn’t be opposed to it being bought back. (CounselW)

Similarly, while one policy stakeholder conceded that it may have ‘needed modernizing’, the presumption was described as ‘sound and practical’ and the stakeholder expressed that it ‘should never have been abandoned’ (PolicyB).

In expressing further support for the presumption, legal practitioners raised a key concern that the abolition of doli incapax would result in a widening of the net in terms of the number of children being brought within the confines of the English criminal justice system (see also Elliott, 2011). As one legal counsel questioned:

What are we doing? Why are we prosecuting them if they don’t know it’s seriously wrong? […] I rather like doli incapax as a dividing line […] otherwise you’re applying the same test to someone of 10 and 11 and 12 as you are to somebody of 41 or 42 or 43. I feel very uncomfortable with it […] I don’t quite see the justification in prosecuting anybody who doesn’t know it’s seriously wrong […] I do think we need something, I think we’re over-criminalizing children. (CounselA)

Such fears about the effect of abolishing doli incapax are not ill-founded. Evidence suggests that, since the abolition of doli incapax, there has been an increase in the number of children in detention and the length of the terms being served (Allen, 2006). Most problematically further research reveals that increased detention of youths has done little to deter or reduce youth offending (Solomon and Garside, 2008). This raises the very real question of what benefit the reforms have actually had in practice. The abolition of doli incapax effectively brings more children into the criminal justice system, ignoring the mounting body of research that recognizes the value of non-punitive responses for child offenders. Such responses involve engagement with family members and schools, and include prevention and early intervention programmes for young lawbreakers.

A Developmental Immaturity Defence

Beyond doli incapax, this study also sought to identify whether there was support within the legal community for a defence of developmental immaturity, as previously proposed by the Law Commission (2005a). In their 2005 Consultation Paper, A new homicide act for England and Wales?, the Law Commission raised a concern that children were inadequately catered for under existing homicide laws. Noting that the actions of adults who suffer from abnormality of the mind are partially catered for under the defence of diminished responsibility, the Commission (2005b: 27) observed that this partial defence ‘is designed with adults in mind’ and as a result ‘makes no allowance for “normal” developmental immaturity of a child or young person’. To address this perceived gap in the law the Commission (2005a: 163) proposed that ‘developmental immaturity should become in itself a ground on which a verdict of diminished responsibility can be brought in’.

To establish the partial defence of diminished responsibility on this basis, the Commission (2005b: 44) proposed that an under 18-year-old defendant would need to meet three requirements:

That at the time of the killing:

was substantially impaired by an abnormality of mental functioning arising from an underlying condition or developmental immaturity, or both, and

Under this model, a verdict of diminished responsibility would reduce what would otherwise be first-degree murder to second-degree murder (now manslaughter). This would have the important impact of moving the child offender out of the confines of the mandatory term of detention at Her Majesty’s pleasure and allow the judge discretion in sentencing. In explaining the need for the proposal, the Commission (2005b: 43–44) noted:

The number of children and young people who kill is mercifully small. Some of the cases raise very strong public emotions and can lead to a distorted picture. Many (although not all) children and young people who kill come from dysfunctional families. They have often been the victims of abuse or neglect and in their relationships with others are emotionally and morally immature. However, they may well not fit within the present definition of diminished responsibility.

This proposal was supported by Ashworth (2013: 185) who described it as a ‘significant step forward’ and noted that it provided a ‘flexible’ approach to assessing the age and developmental maturity of a specific child.

Despite the Commission’s proposal receiving some support among legal scholars and relevant stakeholders (e.g. Ashworth, 2013; Standing Committee for Youth Justice, 2009), the government feared that a developmental immaturity provision would ‘catch inappropriate cases’ (Ministry of Justice, 2008: 17) and was ‘not convinced that the absence of a provision along these lines is causing significant problems in practice’ (MOJ, 2008: 17). Consequently, the reformed defence of diminished responsibility which was introduced as part of the Coroner’s and Justice Act 2009 (UK), makes no specific reference to children and developmental immaturity. As a result the reforms produce:

the bizarre result that if a 25 year old killer has the developmental age of a 12 year old, that is something which the jury may take into account because it would be a recognised medical condition; but if a 12 year old killer has the developmental age of a 12 year old, it is apparently not something which the jury can take into account. (Toulson, 2009: 5–6)

In the wake of the 2009 Act it is as yet unclear to what extent the revised diminished responsibility provisions will be able to be used by under-18-year-old defendants who suffer from developmental immaturity. Given this degree of uncertainty the interviews sought to uncover the extent to which legal practitioners with direct experience in cases involving a child homicide offender were supportive of the Law Commission’s proposals or conversely, the approach to reform taken by the government in the 2009 Act. The resulting interview data, drawn upon here, reveal not only practitioners’ reflections on the status quo but also their view on the need for greater flexibility in this area of the law, the dangers of an increasing reliance upon expert testimony as well as the potential merits of introducing a defence designed specifically for child offenders.

In reflecting on the current status quo, legal counsel expressed a concern that, by having its basis in abnormality of the mind, diminished responsibility would not provide an adequate substitute for a specialist defence for children charged with serious offences. As argued by one legal counsel:

Diminished responsibility has to be an abnormality of mind and developmental immaturity is not. First off it’s [immaturity] not a medical condition, and it’s a phase isn’t it? Someone might well come through all that, so no, it wouldn’t be diminished. (CounselD)

This concern is shared by Fortson (2011: 31) who argues that where the developmental immaturity ‘is merely the result of social and/or environmental influences, then it seems unlikely that the defendant would satisfy the requirements of the reformed partial defence of diminished responsibility’. Similarly, Elliott (2011: 303) argues that the Law Commission’s proposal ‘ties youth with a defence which is generally associated with mental ill health’. Building on this concern, some legal practitioners interviewed expressed hesitance to support a reform that would create a greater need for expert evidence and medical assessment in criminal trials. As one legal counsel commented:

I’m not necessarily in favour of anything that gives experts a greater role in the judicial process […] I’m not sure I want two experts presenting competing arguments about something like that [developmental immaturity] […] I would have thought things as they are, are probably right. (CounselR)

Another legal counsel agreed:

I think it probably gives too much authority to experts and you’ll get more and more litigation based on psychologists […] It doesn’t sound immediately attractive to me […] I think wherever possible we should avoid too heavy a reliance on expert evidence particularly where it’s about something so difficult to measure as developmental maturity […] It becomes very difficult for juries to understand it. (CounselW)

This concern, that an over-reliance on expert evidence would complicate the criminal justice process, was to some extent addressed by the inclusion of a template for the assessment of a young person’s developmental immaturity in the Law Commission’s (2005a) proposal. The template provided guidance on how the nature and degree of a child’s developmental immaturity should be evaluated by an expert, including guidance on how cognitive functioning, mental state, behavioural problems, intellectual level and psychological development should be assessed (Law Commission, 2013: 187).

The template itself does not, however, address the concern that the creation of a developmental immaturity defence would ‘become a growth industry for psychologists and psychiatrists’ (JudgeF). While this was one of the main concerns among the small number of legal counsel who opposed the Law Commission’s proposal (n = 5), three members of the Crown Court judiciary also expressed some hesitance noting that they would regard such reform ‘with great suspicion’ (JudgeA) and would require ‘a lot of persuasion’ as to its merits (JudgeE).

In contrast to this minority-held view, over two-thirds of the practitioners and policy stakeholders interviewed expressed support for the introduction of a defence of developmental immaturity. Legal counsel interviewed described the Law Commission’s proposed defence as ‘an interesting course to pursue’ (CounselD), ‘a very good idea’ (CounselU), ‘reasonable’ (CounselV) and as ‘an interesting concept which should be pursued’ (CounselH). Explaining why they would support the proposed defence, one legal counsel explained:

It seems attractive to me […] in principle I’m always attracted by the possibility of a flexible response to a set of as yet unknown circumstances […] there needs to be a flexible response, which is a very different thing to saying that young people simply get away with murder, literally. Not at all, I think a flexible response, the possibility of that is a very useful tool. (CounselZ)

Several practitioners who recognized the difficulty of a predetermined age range also saw the flexibility inherent in the proposed defence as a positive feature that addressed the need to provide a legal protection based on an individual assessment of maturity. As one legal counsel commented:

I do believe that in each case the child should be judged individually, and then a process can move on, on the understanding that we know where the child is […] I think it [developmental immaturity defence] should be a consideration that is available in court. (CounselQ)

From a judicial standpoint, this proposal was also viewed as an attractive option for reform given that it permits assessments of maturity on an individual case-by-case basis. As explained by one judge:

You can have a 13-year-old going on 20 […] you can have a 16-year-old who is really a child […] so I say every case is case sensitive. You read what they’ve done, you read harm whether intended or non-intended that they’ve caused and you look at the maturity of the individual child. You read about the maturity of the individual child in the view of people who are rather more sensitive and experienced than judges. I don’t really see how you can have a rule of thumb. In my view, in my court, every single case, whatever anybody’s done is case sensitive. There are no two cases that are the same. There are no two offenders who are the same. (JudgeB)

Supporting this view, another member of the Crown Court judiciary described the proposed defence as ‘very sensible’ (JudgeC). The need for a mechanism for individualized assessments was also previously recognized by the Law Commission (2005a: 162) which noted:

In some instances, a child’s culpability may be significantly less in respect of a killing that would attract severe censure if perpetrated by an adult. As between individual children, there may also be considerable variation in the rate at which moral development occurs. Even a child who admits intending ‘to kill’ may not have understood the full significance of killing, still less of notions such as the sanctity of life.

The interviews also identified recognition among practitioners of the dangers of the status quo where the only legal protection in place – the age of criminal responsibility – is based on a predetermined age model that does not allow for individual assessment. Practitioners interviewed believed the current approach was ‘a bit risky’ (CounselL) and described it as a ‘sledgehammer approach’ which failed to allow ‘nuances of variability in how these children function’ to be reflected in the law’s response (CounselP). For this reason, one legal counsel saw the idea of a developmental immaturity defence as ‘a first step in terms of creating some sort of more graduated process to assessment of our young people’ (CounselK).

The difficulty of having protections in place based solely on a predetermined age range has been noted by several legal scholars (Crofts, 2009; Norrie, 2010). Norrie (2010: 281) argues that ‘age is no more than a rough and ready way of marking maturity. One could have twelve year olds with very different levels of maturity, and one could have adults with the maturity of 12 years old’. The consequential need for a defence which recognizes developmental immaturity was revisited by the Law Commission in their 2013 paper, Criminal liability: Insanity and automatism, which recommended that the merits of such a defence be given ‘separate, full, treatment’ (Law Commission, 2013: 191). While to date this has not eventuated, the views of English legal practitioners reflect the appetite for such reform among those engaged in the delivery of criminal justice.

Conclusion: Recognizing the Need for Review and Reform

In June 2015 Amnesty International published a report calling on the Australian government to raise the age of criminal responsibility nationally from its current position of 10 years old to align with the UN recommended standard of 12 years old. The report supports the UN’s stance that 12 years old is ‘the lowest internationally acceptable minimum age of criminal responsibility’ (Amnesty International, 2015: 5, for further analysis of this report see Crofts, 2015). The Amnesty International report comes nearly a decade after the 2006 call for reform made by Thomas Hammarberg, then Council of Europe Commissioner for Human Rights. Hammarberg argued that all European jurisdictions should raise the age of criminal responsibility: ‘with the aim of progressively reaching 18 and that innovative systems of responding to juvenile offenders below that age should be tried with a genuine focus on their education, reintegration and rehabilitation’ (Hammarberg, 2006, as cited in Crofts, 2009: 276). Like its Australian counterparts, and despite repeated calls for reform at a domestic and international level, English law remains in breach of international standards and stands apart from jurisdictions that have introduced reform to bring the law in line with the UN recommendation.

Drawing from the specialist views and experiences of those charged with the daily implementation of the law, it is the contention of this article that further review and reform is needed in England and Wales both to increase the minimum age of criminal responsibility and to introduce a presumption or defence which provides further protection for children above that age but under 18 years old. Both legal changes would ensure that the law is better able to protect children from a capacity and process perspective. At present, without doli incapax or any other conditional age period protection in law, the English courts are unable to recognize and adequately protect children who lack the necessary development and maturity needed to understand the consequences of their wrongful actions. Legal practitioners’ views, as explored throughout this article, highlight that the current approach fails to allow for individualized justice, ignores differences in rates of maturity and risks over-criminalizing very young children. Whether reform reinstates the presumption of doli incapax or introduces a new developmental immaturity defence, it is evident that without it children in England and Wales are significantly more vulnerable of ‘being absorbed into the criminal justice system’ than their European counterparts (Bandalli, 1998: 118).