By Lucy Crabtree
UK law dictates that children older than 9 may legally be arrested and taken to court. This is alarmingly young considering that the “States parties are encouraged to increase their minimum age to at least 14 years of age” by the UN in General Comment No.24 2019. What is strange is that the UK did use to comply with this as the defence of doli incapax was the presumption that persons under 14 did not yet know right from wrong. However, S34 of the Crime and Disorder Act 1998 abolished the defence off the back of the Home Office Report ‘No More Excuses: A new approach to tackling youth crime in England and Wales’. In this report, the Secretary of State for the Home Department presented the notion that doli incapax was “contrary to common sense” and that children need to be punished for their actions in order to prevent further offending. Now the common standard of practice is that children aged 10-17 may be prosecuted if it is proved beyond all reasonable doubt that the child did the act and that they knew it to be “seriously wrong, rather than just naughty”.
While younger children, particularly aged between 10-13, may have a shallow understanding of right and wrong, I do not believe this translates to a child being capable of understanding a seriously wrong act. It is ironic and borderline hypocritical that the state would suggest that a child can understand a criminal act when it at the same time suggests that children are not capable of giving consent. The case of Burrell v Harmer even states that the 12 and 13-year-old boys could not consent to a tattoo specifically because they could not understand the nature of the act. It is not in line with any common sense to suggest that children as young as 10-13 could have the same comprehension of serious wrongfulness as a 17-year-old.
Strict liability offences also contradict the concept that children can understand an act which is seriously wrong. For example, under the Sexual Offences Act 2003, children 12 and under cannot legally consent to any sexual act even if they verbally consent. Again, this illustrates that children do not have the maturity to understand complex concepts. The EU Agency for Fundamental Rights states that “persons below the age of 18 years are often considered to lack the necessary knowledge, experience and maturity to make responsible decisions” and I believe that the UK fails to recognise this in its age of criminal responsibility. To accommodate to this ideology, the UK should adopt the German standard of criminal responsibility which states in s19 of the German Criminal Code that a child under the age of 14 cannot be prosecuted for committing an offence.
While children do need to be disciplined to develop a moral compass, I believe that criminal responsibility does not achieve this. A 10-year-old would not be permitted into most films without the accompaniment of an adult, yet the state finds is appropriate not only to arrest a child but to bring a trial against them as well? While youth courts are no doubt less harsh than adult courts this cannot be the way to nurture a child’s moral development. A child should not be written off as a criminal before their life has even had a chance to begin.
HOW WOULD I USE THIS IN AN INTERVIEW?
This would primarily have its applications in criminal law but discussing areas of law you believe need reforming demonstrates that you are a critical thinker who challenges the status quo. Applying this to an interview shows that you take your learning into your hands to expand your understanding of wider topics. If you have an understanding of the structure of law, you can more effectively form opinions. Do not be afraid to be opinionated in an interview as long as it is an informed opinion!