This chapter outlines the reasons for, and against, the minimum age of criminal responsibility. While there is no dispute that children do need to be held accountable for their actions whether it be criminally or just in general, it is important to note that some think a child should not be criminalized regardless of the crime they commit. Children are not held to the same degree of accountability as adults, and that is reflected in their sentencing procedure. Children may not be held to the same standard as adults but that does not mean that youth offenders should be able to walk free if they have committed a crime. In recent history, there have been numerous under 18’s who have murdered in brutal and grotesque ways and to expect them to be able to walk free is ignorant – there must be something that holds them accountable and allows for them to be punished. However, on the other hand, there was already a system in place that worked with the legal system and that worked perfectly fine – it was only implemented under a government who was trying to crack down on youth crime. Also, there have been numerous attempts to raise the minimum age of criminal responsibility.
When a child under 18 commits a crime, they are not treated the same as an adult who commits the same crime. The process for a child is focused more on making sure they understand what is happening in regard to their charge and the forthcoming trial. For example, during a trial the young defendant does not have to be in the courtroom and instead can provide their testimony through a live link – similar to child witnesses. They also have to go through a youth court before possibly being tried in a Crown Court and additional steps are taken to ensure the child defendant fully understands their trial . There are special sentences that are only allowed for youth offenders, these are categorised into three sections: community sentences, immediate custody and other sentences.
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Community sentences are the most popular sentence to give a youth offender , it avoids sending them to a prison or a home which causes the least amount of stress on the child. Community sentences include referral orders, reparation orders and youth rehabilitation orders. The focus of community sentences is restoration, reparation and reintegration , they are to help the child and change their ways – they realise where they are going wrong. A referral order can be issued to a child and consists of the child being referred to a youth offender panel with a parent – this can last from three months to one year. These orders are generally given to first time offenders who plead guilty to their charge , they incorporate restorative and rehabilitative elements. If the judge does not find a referral order as appropriate, they may be given a reparation order which is what it suggests – the defendant has to compensate for the harm they have done, may it be through monetary compensation or fixing damaged property. The reparation order can relate to either the victim/someone else who is affected or to the community as a whole - whomever it is, has to give consent to the order being placed. This sentence can only be given to someone who is not being sentenced to a custodial sentence or a youth rehabilitation order . These orders are given to make the child understand and witness the effect their crimes have had on others. The final community sentence is a youth rehabilitation order. These last up to three years and include requirements as their sentence. Those requirements include mental health treatment, residence requirement (living in a home), education requirement, intense supervision and surveillance or intense fostering. Intense supervision and surveillance are where instead of going to a secure home, an individual is supervised within the community – this generally includes an electronically monitored curfew. Other sentences are classified as fines, absolute/conditional discharges and victim surcharges – sometimes the judge may find that the experience of going to court is punishment enough. Immediate custody is seen as a last resort , usually given after offenders have failed to comply with the terms in a community sentence – it is the least given sentence . These sentences contain detention and training orders, and a custodial sentence. Detention and training orders are only considered if the offender is between the ages of 12 and 14 years old and are considered a persistent offender . During a detention and training order, the offender is in custody for the first half, then for the second half they are supervised by the youth offending team – similar to the youth rehabilitation order with intensive surveillance and supervision. A custodial sentence is what we know that to be, a prison sentence – they can however only be sentenced to children who have committed grave crimes, and those crimes are laid out in the Power of Criminal Courts (Sentencing) Act , these sentences are usually over two years as in a detention and training order the maximum time the offender can be in custody is two years. If a child is given a custodial sentence, they will be sent to a secure centre for young people – not an adult prison
Youth courts are formed which consist of three magistrates and one district judge. In a youth court virtually all crimes, except for especially grave ones such as murder or rape - which start in a youth court but ultimately are heard in a Crown Court - are heard. In a youth court, only the sentences up until a detention and training order can be given.
When a young offender is being dealt with, the main aim is the prevent them reoffending – compared to the aims with adults which is generally to punish and to rehabilitate. While the government understands that it is important that young offenders do get sentenced as opposed to merely reprimanded; as Lord Reed states it will not be appropriate to sentence [a child] in the same was an adult, if their immaturity has the consequence that they were less culpable . The case of R v Finnerty is of particular importance when discussing the concept of children being less capable, but still needing to be sentenced – the defendant was initially sentenced to one year in custody for simple arson, a concurrent four years in custody for arson with reckless endangerment to life that had an extension period of three years making it a total of seven years for count two. The initial extended sentence was quashed due to it being unjustified and too harsh; it was replaced with a three-year term – the defendant still received a sentence albeit lesser due the fact he was under 18 reaffirming the principle laid out in the Sentencing Council’s overarching principles . In this case they also stressed that the defendant should be able to remain at home, as it may possibly undo any positive progress made in regard to treatment - keeping the idea of rehabilitation as vital. The factors that are considered when sentencing a child is different to those when discussed while sentencing an adult. These factors are the age of the defendant both chronologically and emotionally, the seriousness of the offence (one such as murder will result in a mandatory custodial sentence, and one such as vandalism may result only in a youth rehabilitation order),the welfare of the child , the likelihood of other offences being committed and the extent of harm likely to occur from those further offences – if someone is seen as highly likely to reoffend they may be given a detention and training order or custodial sentence in order to prevent that. Lady Hale restated the reasons for why children and treated differently from adults in R(Smith) that the great majority of juveniles are less blameworthy and more worthy of forgiveness than adult offenders . The approach to youth sentences is individualistic, each case is different, and all these different factors need to be taken into account each time. These factors become mitigating factors in regard to the actual sentence – the fact they are a child will always reduce their sentence down from the adult mandatory sentence, for example Will Cornick had his 25 year mandatory sentence for murder, reduced to 23 years due to him being under the age of 18 years old (it was then further reduced due to other mitigating factors).
It is not unknown for children to commit crimes, in every corner of the country young offenders operate. One of the most reprehensible crimes anyone could commit, let alone a child, is murder. Child murderers are ones we see in the news and all-over social media; for example, in 2014 a Hartlepool woman was murdered by two teenage girls, aged 13 and 14 years old – it was all over regional news for weeks and so was the consequential trial . Venables and Thompson are another example of the media circus that surrounds juvenile killers, they appealed based on the fact that the sentence given was incredibly harsh due to the fact they had such intense media coverage and scrutiny. Due to the age of these defendants, they tend to garner more attention. Many under 18’s who commit crimes have problems within themselves that may affect them and can contribute to them committing a crime – for instance, James Fairweather has autism , it can be considered that his autism could be the cause for his obsessive behaviour that he exhibited before murdering two strangers and planning to murder more – he also claimed he experienced auditory hallucinations but those claims were never verified . With the ability to arrest and charge youth offenders with crime, there is the chance to help and prevent further crimes from occurring. Helping children is a lot easier then helping adults, and it means if a child is charged with a custodial sentence, they can have mandatory counselling or treatment alongside it. A child who kills has always been more appealing in the argument for a minimum age of criminal responsibility; a child who we see as innocent, naïve and we class as vulnerable – committing one of the most heinous crimes in the criminal calendar – it is unthinkable. Without a minimum age of criminal responsibility, it would not be possible to apprehend these individuals, and some such as Will Cornick would never have had any consequence to their actions – at the time he truly saw no problem with his actions, he knew what he did was wrong but did not have any remorse nor regret The minimum age of criminal responsibility allows for there to be accountability, and for a child to take responsibility for what they have done. Children being made to be held accountable for their actions is not an unpopular belief – from a young age, children are taught to take responsibility for themselves .
We cannot ignore the reality that youth offenders commit crimes other than murder, and that those crimes need to be held accountable for also. In 2018-19, there were over 4,500 reported crimes involving knives or other offensive weapons . Over 60,000 youths were arrested last year, and within that, 19,000 of them received a sentence in court . It would be ignorant to think that those numbers do not warrant a minimum age of criminal responsibility. The ability to apprehend and charge a minor with a criminal offence, is incredibly beneficial as those who go on to commit more serious offences tend to be small time offenders first. One of those forms of crime that youth offenders steer towards is robbery, with its offending rising 5% since 2017 .To be able to catch what could potentially be incredibly dangerous people is beneficial to the criminal justice system. To be able to give children a custodial sentence, which in and of itself is a punishment, with mandatory rehabilitative treatments such as mental health or substance abuse could considerably lessen the risk of them reoffending through a more serious crime. Without the ability to charge, 60,000 children could be walking around causing mayhem with no consequence. A lot of children who are destructive come from backgrounds where their parent is not necessarily present and therefore there are no repercussions to their actions. Without any accountability, there is no responsibility. When a youth offender is sentenced, it is possible for them to be sentenced in a way that places responsibility on the parent as well as the child to help correct their ways – such as a referral order. The application of this would suggest that in some way or another, the parent is also accountable for the actions of the child.
The arguments against a minimum age of criminal responsibility, and specifically the one enforced since 1963, are not hard to come by. Many of those arguments include the doctrine of doli incapax, the criminalisation of children, and
Children between the ages of 10 to 14 years old benefitted greatly from the defence of doli incapax, it worked as a filter which recognised what childhood was, and essentially stopping the minimum age of criminal responsibility from being a definitive age of 10 years old. The presumption benefitted children ages 10 to 14 years old greatly, stopping them from being impacted negatively by the inflexibility of the criminal justice system and the enforcement of it - there was the acknowledgement of their age. It can be argued that the doctrine, however, did not work fully in the way it was supposed to as youths were still being prosecuted despite it being determined they were not mature enough nor did they know the difference between right and seriously wrong – but this is where it fell short: the prosecution only had to prove the child knew the difference between two ends of a spectrum, not between mere naughtiness and seriously wrong. For example, Bandalli suggests that children have a flexible approach to ownership – in the Theft Act 1968 it states that theft is dishonesty with intent to permanently deprive’ – a child may only understand this as only borrowing. Pickford makes the point that opponents of the abolition of the presumption continue to have faith in it despite it being proven to be inadequately protecting the very children it was supposed to protect . This was, however, defended with the justification that the removal was actually the removal of excusing young offenders . In practice, it just did not work sufficiently – it cannot be ignored that it has incredibly strong symbolism, however. The doctrine made it clear that children are different to adults, and therefore need to be dealt with accordingly; the judiciary and the CPS all had to consider the degree of responsibility each child can actually hold and in doing that, help to keep the ‘childhood’ status intact. The abolition of doli incapax, was discussed jointly with the idea to raise the minimum age of criminal responsibility – now with the abolition the government has carried out on without the other, leaving a vacuum where there should be protection for children. The case of R v T in 2008 proposed that in actuality, the presumption of doli incapax had been abolished but not the defence itself, that was still, in the law’s eyes, able to be used.
Another reason against a minimum age of criminal responsibility, is the idea of criminalising what is supposed to be a child, and whether it is against their right to be criminalised in such a way. Goldson notes that there is little doubt that punitive imperatives have shaped contemporary policy responses to child ‘offenders’ in England and Wales . The government directly ignores international debate and regulations regarding the age in which to ‘criminalise’ a child. Their stubbornness, alongside the abolition of a defence created purely to protect children, shows almost an obsession with criminalising children and forcing them into our criminal justice system in a hostile way – rather than taking a welfare and approach route which many other European countries follow. These policies that are created by the United Kingdom’s government force a large group of children we would not usually see into the crosshairs of our justice system – sometimes being unfairly punished in a system that in any other circumstance would avert them from unnecessary harm or distress. The inclination to criminalise children could potentially be explained through the idea that we as humans have the innate interest in punishment.
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