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Responsibility and the Young Person

Published online by Cambridge University Press:  09 June 2015

Lisa Micucci
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In 1993, two young boys were convicted for the murder of a two-year-old toddler, James Bulger. Both boys were ten years old when the murder was committed. Such a violent act raises the timeless question: At what age should a child be held fully responsible by a nation’s criminal justice system for criminal conduct? Serious crimes are being committed by young persons and the public seems to have the impression that such acts are being committed at an increasingly young age.

Generally, the age of criminal responsibility (or legal responsibility) refers to the age at which a person becomes subject to the full penalties provided by the criminal law and this age varies greatly from country to country. In the Bulger case, at the age of ten, both boys had reached the age of criminal responsibility in England. Yet in other countries, this would not have been the case. In Canada, for example, the young persons would not have been subject to the criminal law since the minimum age of legal responsibility is twelve years. Historically, young persons have been given special treatment under the criminal law. Under the doli incapax (incapable of committing a crime) standard, a child’s capacity to commit a crime was questioned when attempting to affix criminal responsibility. Some countries still adhere to this common law doli incapax rule. In the first section of this paper, I will outline both the historical and present diversity between countries in relation to the age of criminal responsibility, as well as the associated advantages and disadvantages of these various systems.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 11 , Issue 2 , July 1998 , pp. 277 - 309
Copyright
Copyright © Cambridge University Press 1998

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References

1. Throughout this paper, the terms “child” and “young person” will be used interchangeably. For my purposes, persons below the age of eighteen years are deemed to fall into that category as they do not generally have most adult prerogatives such as to own and manage property, study at a higher level of education, have full contractual capacity, vote, and legally get married without parental consent.

2. P. H. Robinson, “The Criminal-Civil Distinction and the Utility of Desert” (1996) 76 Bos. U. L. Rev. 201 at 202. The term “moral” is intended as I accept the idea that moral responsibility is tied to legal responsibility.

3. UK Government’s proposal contained in White Paper, The Child, the Family and the Young Offender (1965) Cmnd. 2742, para. 10 (U.K.).

4. Supra note 2 at 206.

5. F. H. Bradley, “The Vulgar Notion of Responsibility in Connexion With the Theories of Free-Will and Necessity” in Ethical Studies (Oxford: Clarendon Press, 1927) 1 at 31 fn 2.

6. S. Asquith, “Justice, Retribution and Children” in A. Morris & H. Giller, eds., Providing Criminal Justice for Children (London: Edward Arnold, 1983) 7 at 14.

7. H. Gross, A Theory of Criminal Justice (New York: Oxford University Press, 1979) at 151. P. J. Fitzgerald, “The Child, the White Paper and the Criminal Law: Some Reflections” (1966) Crim. L. Rev. 607 at 609 expresses the same idea.

8. N. Walker, Sentencing in a Rational Society (London: Penguin, 1972) at 215.

9. T. Morris, “Struggle for the Juvenile Court” (1966) 7 (176) New Society 17 at 17.

10. For more details see A. W. G. Kean, “The History of the Criminal Liability of Children” (1937) 53 L. Q. Rev. 364; S. M. Cox & J. J. Conrad, Juvenile Justice: A Guide to Practice and Theory, 4th ed. (New York: Brown & Benchmark, 1996) at 1–13.

11. Supra note 3.

12. B. Flicker, “Part 1: National Standards for Juvenile Justice” in J. Hall, ed., Major Issues in Juvenile Justice Information and Training OH: Academy of Contemporary Problems (New York: Spinger, 1981) 1 at Standard 2.1, Juvenile Delinquency and Sanctions.

13. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (New York: Department of Public Information, 1986), Part 1, General Principles at 4.

14. House of Lords Hansard, 27 February 1995, col. WA 82 (Penal Affairs Consortium, The Doctrine of Doli Incapax (INRC, November 1995) at 7.

15. The age was seven and was raised to ten under the Criminal Code Amendment Act, 1976 (Qld.), section 19, and remains at that age under the Criminal Code, 1997 (Qld.), section 29.

16. The age was seven under the Criminal Code, 55–56 Vict. C. 29, 1892 (section 9). Now the Criminal Code, R.S.C. 1985, c. C-46 provides for a minimum age of twelve years (section 13).

17. The age was eight under the Children and Young Persons Act 1933, s. 50. See for example, Walters v. Lunt, [1951] 2 All E.R. 645 (K.B.). Since the passing of the 1963 Children and Young Persons Act (s. 16(1)), the age has been raised to ten.

18. Term used in § 4.10 of the Model Penal Code and Commentaries (Official Draft and Revised Comments) With Text of Model Penal Code as Adopted at the 1962 Annual Meeting of The American Law Institute at Washington D.C. May 24, 1962 (Philadelphia, PA: The American Law Institute, 1985) at 274.

19. The Queen v. Sydney Smith (1845), 1 Cox C.C. 260.

20. Sir. W. Blackstone, Blackstone’s Commentaries on the Laws of England, Book IV, 1st ed. (1769) at 23–24.

21. For example, the relevant age is eight in the Australian Capital Territory (Children’s Services Act 1986 (A.C.T.), s. 27) and ten in New South Wales (Children (Criminal Proceedings) Act 1987 (NSW), s.5), Queensland (Criminal Code 1997 (Qld.), s.29), Victoria (Children and Young Persons Act 1989 (Vic.), s. 127), Western Australia (Criminal Code (W.A.), s. 29) and South Australia (Young Offenders Act 1993 (S.A.), s. 5). In Western Australia, Queensland and the Australian Capital Territory, the rule has been given statutory form.

22. Crimes Act 1961 (NZ), ss. 21 and 22.

23. Children and Young Persons Act 1933, s. 50 (as amended by 1963 Children and Young Persons Act s. 16(1)).

24. [1994] 3 W.L.R. 888 (Q.B.).

25. In Re C (A Minor) (A.P.) (16 March 1995) (H.L.).

26. Sections 9 and 10 of the 1892 Criminal Code [55–56 Vict., c. 29] codified the English common law, but now the Young Offenders Act, R.S.C. 1985, c. Y-1 (as amended) denies young offenders over the age twelve (minimal age of legal responsibility) of benefiting from the common law presumption.

27. Carr v. State, 1 S.W. 328 (Tex. C.A. 1888).

28. J. C. Weissman, ‘Toward an Integrated Theory of Delinquency Responsibility” (1983) 60 Denver L. J. 485 at 491–501: the doctrine was endorsed In Re Gladys R., 1 Cal. 3d 855 (Cal. S.C. 1970), but the state of Illinois, for example, has repudiated the rule.

29. Supra note 14 at 6.

30. Supra note 19.

31. (1919), 83 J.P. 136.

32. A. v. DPP, [1992] Crim. L. Rev. 34 (D.C.) [hereinafter A.]; G. L. Williams, “The Criminal Responsibility of Children” [1954] Crim. L. Rev. 493 at 494.

33. Williams, ibid, at 494; J. M. (A Minor) v. Runeckles (1984), 79 Cr. App. R. 255 (D.C.) [hereinafter J. M.] per Goff L.J. at 260: “I do not however feel able to accept the submission that the criterion in cases of this kind is one of morality.”

34. Supra note 32 and J. B. H. & J. H. (Minors) v. O’Connell, [1981] Crim. L. Rev. 632 (D.C.) [hereinafter J. B. H.]. But see L.P.H. v. Chief Constable of South Wales, [1987] Crim. L. Rev. 42 (D.C).

35. B. v. R. (1958), 44 Cr. App. R. 1 (D.C); E v. Padwick, [1959] Crim. L. Rev. 439 (D.C).

36. Reg. v. B., [1979] 1 W.L.R. 1185 (C.A.).

37. J. M., supra note 33; T and others v. D. P. P., [1997] Crim. L. Rev. 125 (D.C).

38. R. v. Coulburn (1988), 87 Cr. App. R. 309 (C.A.).

39. M. Grove, “Are You Old Enough? In Defence of Doli Incapax “ (1996) 70 L. Inst. J. 38 at 41; Supra note 14 at 3; T. Wilkinson, “Doli Incapax Resurrected” (1995) 139 Solicitors J. 338 at 339.

40. White Paper Crime, Justice and Protecting the Public (1990), Cmnd. 965 at para. 8.4 (U.K.).

41. J. K. Bentil, “Juvenile Offenders and the Rebuttable Presumption of Doli Incapax’ (1990) 106/107 Law & Justice 14 at 21; J. Seymour, Dealing With Young Offenders (Sydney: The Law Book Company, 1988) at 185.

42. G. Williams, Textbook of Criminal Law, 2nd ed. (London: Stevens & Sons, 1983) at 639.

43. Williams, supra note 32 at 494–97.

44. Ingleby Committee, Report of the Committee on Children and Young Persons (1960) Cmnd. 1191 at 36, para. 94 (U.K.).

45. A., supra note 32 (Bingham L.J.); J. B. H., supra note 34 per Forbes J.

46. Supra note 24.

47. Supra note 25, per Lord Lowry at 9.

48. Ibid. at 24.

49. Ibid, at 24. This is in fact the case. In the fall of 1997, a Consultation Paper entitled “Tackling Youth Crime” sought views on the Government’s proposal to abolish the application of the doli incapax doctrine (Part 1 : Taking Responsibility). In November 1997, the Home Secretary published a White Paper called “No More Excuses – A New Approach to Tackling Youth Crime in England and Wales” that sets out the Government’s program of reform for the youth justice system in England and Wales. In Part III—Responding to Youth Crime—Chapter 4: Reinforcing Responsibility of the White Paper, the Government restates its position of abolishing the presumption of doli incapax. This measure has been taken forward through the Crime and Disorder Bill which was passed by the House of Lords and was recently introduced in the House of Commons on April 1,1998. Section 31 of the Bill reads as follows: The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished. The issue has also been reported in various newspapers, for example, F. Gibb & S. Tendler, “Labour Promises to Prosecute Offenders Under 14” The Times (4 March 1997) 8; P. W. Davies, “Labour Redefines the Age of Innocence” The Independent (4 March 1997) 4.

50. H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968) at 210–30; W. Kneale, “The Responsibility of Criminals” in H. B. Acton, ed., The Philosophy of Punishment: A Collection of Papers (London: MacMillan, 1973) 172 at 172–96; C. T. Sistare, Responsibility and Criminal Liability (The Netherlands: Kluwer, 1989) at 13–23.

51. Supra note 42 at 640.

52. J. Glover, Responsibility (London: Routledge & Kegan Paul, 1970) at 19.

53. Peter Arenella also explains that the criminal law ties legal to moral blame for serious mala in se crimes, those behaviours that breach community moral norms independent of its illegality. See P. Arenella, “Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability” (1992) 39 UCLA L. Rev. 1511 at 1513; P. Strawson, Freedom and Resentment (London: Methuen, 1974) also discusses the link between moral blame and the criminal law.

54. Supra note 6 at 11; Williams, supra note 32 at 494–95.

55. H. Fingarette, “Criminal Insanity” in P. A. French, ed., The Spectrum of Responsibility (New York: St. Martin’s Press, 1991) 242 at 243.

56. Williams, supra note 32 at 494.

57. In this section I will be examining what conditions are necessary to be considered a morally responsible agent in the sense of moral agency. I will not be discussing responsibility in respect of particular outcomes or actions. Although the terms culpability and blameworthiness will be mentioned, I will not be discussing these issues any further than is necessary in attempting to establish agency.

58. Supra note 50 at 210–30.

59. Ibid, at 152.

60. Ibid. at 227–28, 218.

61. M. S. Moore, “Choice, Character, and Excuse” in E. F. Paul, F. D. Miller Jr. & J. Paul, eds., Crime, Culpability and Remedy (Oxford: Basil Blackwell, 1990) 29 at 29.

62. M. Bayles, “Character, Purpose, and Criminal Responsibility” (1982) 1 Law & Phil. 5 at 7.

63. Arenella, supra note 53 at 1524.

64. Ibid, at 1610.

65. Ibid, at 1525, 1609.

66. Supra note 61 at 45.

67. P. Arenella, “Character, Choice and Moral Agency” in E. F. Paul, Fred D. Miller Jr. & J. Paul, eds., supra note 61, 59 at 67–68.

68. R. A. Duff, “Choice, Character, and Criminal Liability” (1993) 12 Law & Phil. 345 at 356.

69. B. Williams, How Free Does the Will Need to be?, The Lindley Lecture (Lawrence, KN.: University of Kansas, 1985); G. Watson, “Free Agency” in G. Watson, ed., Free Will (New York: Oxford University Press, 1982) 96.

70. H. G. Frankfurt, “Freedom of the Will and the Concept of a Person” in The Importance of What We Care About: Philosophical Essays (Cambridge: Cambridge University Press, 1988) 11.

71. Derived from a summary by R. C. Boldt, “The Construction of Responsibility in the Criminal Law” (1992) 140 U. Pa. L. Rev. 2245 at 2257.

72. Supra note 70 at 12.

73. Ibid, at 16.

74. Ibid. at 20.

75. Ibid. at 16.

76. Ibid, at 18–19.

77. Ibid. at 17.

78. Ibid, at 12.

79. Many theorists focus their analysis upon the reflective component of the decision-making process, for example, Watson, supra note 69; P. Russell, Freedom and Moral Sentiment: Hume’s Way of Naturalizing Responsibility (New York: Oxford University Press, 1995); R. J. Wallace, Responsibility and the Moral Sentiment (Cambridge, MA: Harvard University Press, 1994).

80. Supra note 71 at 2262.

81. M. Moore, Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984) at 101.

82. R. A. Schopp, Automatism, Insanity and the Psychology of Criminal Responsibility: A Philosophical Inquiry (Cambridge: Cambridge University Press, 1991) at 190–91 offers a similar definition, without discussing the process in terms of a syllogism.

83. Arenella, supra note 53 at 1525.

84. Wallace, supra note 79 at 86.

85. Supra note 50 at 32.

86. Ibid, at 33. The more elusive elements Hart is referring to are the excusing conditions that can be invoked to deny self-control, such as provocation. Since the mental elements involved in such defences are harder to prove, he explains that many systems will give prominence to the two mental elements listed. For my purposes, it is sufficient to analyse whether or not a young person had the capacity for control without discussing excuses that go to mens rea.

87. Ibid, at 151.

88. J. Piaget, “The Theory of Stages in Cognitive Development” in D. R. Green, M. P. Ford & G. B. Flamet, eds., Measurement and Piaget (New York: McGraw-Hill, 1971) at 1.

89. Summary by J. T. Dalby, “Criminal Liability in Children” (1985) 27 Can. J. Crim. 137 at 140.

90. H. Rosen, The Development of Sociomoral Knowledge: A Cognitive-Structural Approach (New York: University Press, 1980) at 5.

91. See L. Kohlberg, Stage in the Development of Moral Thought and Action (New York: Holt, Rinehart and Winston, 1969).

92. Supra note 89 at 141.

93. Supra note 90 at 66–67.

94. S. B. Billick, “Developmental Competency” (1986) 14 Bulletin Am. Aca. Psychiatry & Law 301 at 304–5.

95. Supra note 81 at 245.

96. They are often classed together as excuses: Gross, supra note 7 at 149–51. In the Model Penal Code, supra note 18, both mental disease and immaturity are discussed under the heading of Responsibility.

97. See Arenella, supra note 67 at 65–69; see Duff supra note 68 at 356–57.

98. Supra note 82 at 192–93.

99. W. F. Overton et al., “Formal Operations as Regulatory Context in Adolescence” in S. C. Feinstein, ed., Adolescence Psychiatry, vol. 18 (Chicago: University of Chicago Press, 1992) 502 at 503.

100. Supra note 89 at 12; Ralph Gemelli, Normal Child and Adolescent Development (Washington, DC: American Psychiatric Press, 1996) at 455 expresses the same idea.

101. Gemelli, ibid, at 309, 392; H. M. Wellman, The Child’s Theory of Mind (Cambridge, MA: MIT Press, 1990) at 188.

102. Supra note 90 at 9; Gemelli, ibid, at 395, 398.

103. See J. Piaget, Moral Judgment of the Child (New York: Macmillan, 1955).

104. R. M. Liebert, “What Develops in Moral Development?” in W. M. Kurtines & J. L. Gewirtz, eds., Morality, Moral Behavior, and Moral Development (New York: John Wiley & Sons, 1984) 177 at 179.

105. L. Kohlberg, “Moral Stage and Moralization: The Cognitive-Developmental Approach” in T. Lickona, ed., Moral Development and Behavior (New York: Holt, 1976) 31.

106. E. Piesach & M. Hardman, “Moral Reasoning in Early Childhood: Lying and Stealing” (1983) 142 J. Genetic Psychiatry 107.

107. Supra note 90 at 72.

108. A. Colby & L. Kohlberg, “Invariant Sequence and Internal Consistency in Moral Judgment Stages” in W. M. Kurtines & J. L. Gewirtz, eds., supra note 104, 41 at 47.

109. Supra note 89 at 141.

110. Gemelli, supra note 100 at 225–26.

111. N. Richards, “Criminal Children” (1997) 16 L. & Phil. 63 at 77.

112. Which means being aware of certain strengths and limitations inherent in the structure of human psychology as defined in D. Schmidtz, Rational Choice and Moral Agency (Princeton, NJ: Princeton University Press, 1995).

113. M. Pritchard, On Becoming Responsible (Lawrence, KN.: University Press of Kansas, 1991) at 22.

114. Arenella, supra note 53 at 1594.

115. Noted by Gemelli, supra note 100 at 283 in referring to J. Kagan, The Nature of the Child (New York: Basic Books, 1984).

116. Ibid, at 432.

117. Stillwell, B.M. et al., “Conceptualization of conscience in normal children and adolescents, ages 5 to 17” (1991) 30 J. Am. Acad. Child Adolesc. Psychiatry 16.

118. Gemelli, supra note 100 at 299.

119. Supra note 105 and supra note 108 at 47.

120. Supra note 90 at 71.

121. Ibid, at 75.

122. Supra note 89 at 140.

123. In his article, ibid at 139, Dalby equates wrongfulness of an illegal act to mens rea. As previously stated, since moral agency presupposes criminal responsibility, if a child meets the criminal responsibility criteria, he or she is obviously considered a morally responsible actor.

124. M. L. Hoffman, “Empathy, Social Cognition, and Moral Action” in W. M. Kurtines & J. L. Gewirtz, eds., Handbook of Moral Behavior and Development, vol. 1 (New Jersey: Lawrence Erlbaum Associates, 1991) 275.

125. Ibid. at 279.

126. R. Barnum, “The Development of Responsibility: Implications for Juvenile Justice” in F. X. Hartmann, ed., The Role of the Juvenile Court: From Children to Citizens, vol. II (New York: Springer-Verlag, 1987) 67 at 68.

127. Ibid, at 68.

128. Gemelli, supra note 100 at 223.

129. J. C. Schwarz et al., “Delay of gratification by preschoolers: Evidence for the validity of the choice paradigm” (1983) 54 Child Dev. 620.

130. Gemelli, supra note 100 at 239.

131. Supra note 89 at 142.

132. Ibid, at 142.

133. Supra note 99 at 507.

134. J. Q. Wilson, The Moral Sense (New York: The Free Press, 1993) at 90–91.

135. Ibid. at 85.

136. I. Sagel-Grande, “Looking for One Age” in T. Booth, ed., Juvenile Justice in the New Europe, Social Services Monographs: Research in Practice (Joint Unit for Social Services Research, 1991) 66 at 68.

137. T. J. Berndt & E. G. Berndt, “Children’s Use of Motive and Intentionality in Person Perception and Moral Judgment” (1975) 46 Child Dev. 904.

138. C. B. Keasey, “Young Children’s Attribution of Intentionality to Themselves and Others” (1977) 48 Child Dev. 261.

139. Supra note 89 at 140.

140. Supra note 104 at 179.

141. S. Millett, “The Age of Criminal Responsibility in an Era of Violence: Has Great Britain Set a New International Standard?” (1995) 28 Vand. J. Transnat’l L. 295 at 346.

142. Seymour, supra note 41 at 185 expresses the same idea.

143. Williams, supra note 42 at 638–39.