can Article 40(3)(a) to promote the establishment of

can be held
liable for breaching a country or state’s penal laws and so is the lowest age
that a person may be held ‘innocent until proven guilty’ once accused of
committing a crime. A crime or criminal act is legally defined as a violation
of the law of the state with a penalty as a consequence and thus in order for
someone to have been considered to have committed a crime, they must have mens rea (capacity to know the wrongness
of an act) and must have carried out the actus
reus (physicality of the crime) (1). A child under the
MACR of their country or state is immune from criminal prosecution and as a
result cannot be formally charged by authorities nor subjected to criminal law
measures. England and Wales as parties to the United Nations Convention on the
Rights of the Child, are advised under Article 40(3)(a) to promote the
establishment of a minimum age below which the child shall be presumed to not
have the capacity to violate the penal law of the state and thus above which
the child must understand the magnitude of their actions if they do break the
law (2).

Under the Children and Young Persons Act 1933, Section 50 states that the MACR
in England and Wales is 10 years of age however there is much controversy and
debate surrounding this as the Office of the High Commissioner for Human Rights,
1989, for the United Nations Convention on the Rights of the Child defines a
child as ‘every human being below the age of eighteen years unless under the
law applicable to the child, majority is attained earlier’ (2). Therefore, there is
much dispute surrounding the exact age of criminal responsibility, as 10 is
often considered by professionals to be too young for a child to be held solely
responsible and accountable for their actions, particularly considering the age
at which a child is considered by the United Nations Convention to have matured
to adulthood. The United Nations Standard Minimum Rules for the Administration
of Juvenile Justice under Rule 4.1, council that the minimum age of criminal
responsibility should not be fixed at too low a level and should take into
consideration the intellectual, emotional and mental maturity of children (3). However, this broad
notion of ‘too low a level’ remains undefined and is the most contended area of
juvenile justice law as the debate raises crucial issues such as whether
children are protected fully in England and Wales through the law and if the
current MACR correctly measures the age at which children can sufficiently
judge their actions. Currently, there is no exact universal criteria with which
to judge a global MACR, reflected in the differing ages worldwide. For example,
in the UK alone there are three different MACRs, with England, Wales and
Northern Ireland set at 10, Scotland set at 8 and the Republic of Ireland set
at 12 (4).

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This essay will attempt to assess whether the current MACR of 10 in England and
Wales should be increased or whether it is more accurate to judge that it
should stay the same through analysis and evaluation of several factors
including the scientific, legal and global debate.

 

 

 

 

 

How does the global comparison of the
minimum age of criminal responsibility affect the debate?

 

The minimum age
of criminal responsibility varies considerably across the globe, with England
and Wales notably having one of the lowest recorded MACRS internationally.

Therefore, in order to assess whether the MACR correctly stands in England and
Wales at the age of 10, juvenile delinquency statistics in England and Wales
should be analysed and compared with juvenile delinquency statistics worldwide.

According to the Ministry of Justice and Youth Justice Board’s Youth Justice
Statistics for England and Wales 2015/2016, at the end of March 2016, there
were a total of 896,200 arrests in England and Wales with approximately 88,600 (10%)
being that of children of legal offending age (10-17) (5).

This same percentage of 10% is equivalent to the number of children within the
entire population in England and Wales that are of legal offending age (5) (age 10 or over
according to the MACR). This illustrates that as a result of the MACR in
England and Wales being so low, there is a considerable number of child arrests
and official juvenile delinquents with criminal records, highlighting that a
high proportion of England and Wales’ youth are incarcerated per annum. In
contrast to England and Wales, in Brazil where the MACR is set 8 years older at
18 years of age, they operate an interventionist Criminal Justice System,
focusing on welfare based rather than punitive measures to educate juvenile
delinquents rather than punish. In Brazil in 2015, there were only 22,000 arrests
and confinement of juvenile delinquents (6)
which is the “most severe socio-educational measure (6)”
as a means of educating delinquent youth according to the IPEA (Instituto de
Pesquisa Econômica Aplicada) as opposed to England and Wales’ staggering 88,600
arrests, indicating that a lower age of criminal responsibility does not deter
youth from committing crimes and thus a higher age of criminal responsibility
seems to be more successful in deterring criminal action from children. Therefore,
the high proportion of imprisoned juvenile delinquents in England and Wales
could be drastically reduced by increasing the MACR to an age higher than 10,
encouraging rehabilitation of delinquent as opposed to subsequent enrolment
into the Criminal Justice System. Thereby, through analysis of juvenile delinquency
statistics in Brazil, it can be inferred that raising the MACR in England and
Wales should be considered a viable resolution to the current punitive Youth
Criminal Justice System which focuses on retribution and not education of criminal
acts, resulting in more arrests of young children than necessary due to a low
MACR.

 

However, although
Brazil has a lower proportion of juvenile delinquents in contrast to England
and Wales due to a higher MACR reducing criminalisation of children, this does
not come without its consequences. For example, in 2015 there were a series of
worrisome attacks throughout Brazil on children below the age of criminal
responsibility accused of crimes (7)
during a period of severe political turmoil following the
rejection to lower the minimum age of criminal responsibility from 18-16 to be
able to criminalise child offenders, which lost due to concern over children’s
welfare in highly dangerous and overcrowded Brazilian prisons (8). These child attacks
indicate that both the police and the public took justice into their own hands
in light of lack of response from their Criminal Justice System as a result of
the MACR being set so high at 18. Therefore, as suggested by these cases in
Brazil, by raising the minimum age of criminal responsibility in England and
Wales, one potential danger in light of public opposition, if also fuelled by
widespread political reports and anger could result in victimisation of juvenile
delinquents by those in society who believe that a higher MACR provides
opportunity for offenders to evade the course of justice. Thus, it should be
considered that raising the age of criminal responsibility in England and Wales
is not a legal measure that should be taken lightly as instead of a resolution
to incarcerating young children, the Criminal Justice System could result in
inadvertently victimising youth instead.

 

Despite these
concerns however, with an MACR of just 8 years of age, Scotland has proven that
a lower minimum age of criminal responsibility can be successful in preventing juvenile
delinquency. This is shown through the statistical outcome of the annual number
of youth referrals and hearings on offence
grounds throughout Scotland, which has dropped significantly from 17,361 in the
year 2005-2006 to 2,891 by the end of 2015 (9). Therefore, this
suggests that if the minimum age of criminal responsibility was increased in
England and Wales, this would not necessarily increase the already high number
of juvenile delinquents as youth would perhaps be more deterred from committing
crimes through education and other means from a much younger age when perhaps
children are more impressionable. However, this is not to say that England and
Wales should reform the minimum age of criminal responsibility to an age lower than
that of 10 years but perhaps indicates that England and Wales are not wrong to
have a lower minimum age of criminal responsibility than the majority of other
countries in the Western World as this trend could corroborate that a lower
MACR discourages criminal activity due to serious penal repercussions being applicable
to children from 10 years of age.

 

In comparison to England and Wales, Australia also have an MACR of 10
years of age but in tandem with this, Australian law throughout all territories,
invokes the legal principle of doli
incapax between the ages of 10-14.

This principle now retracted from English and Welsh law, presumes that a child
is incapable of crime and criminal acts in the face of the law between the ages
of 10-14 as they lack the mens rea, which
as a result means that despite the MACR being 10 years of age, Australian
juvenile delinquents below the age of 14 cannot be prosecuted for a crime
through the Criminal Justice System unless the Crown can prove beyond all
reasonable doubt that the child had the capacity to know that they should not
have done the criminal act (10). This highlights
that the legal principle of doli incapax
could perhaps resolve issues seen to arise in Brazil of violence towards youth
as the MACR is set so high at 18, meaning that with the reintroduction of doli incapax in England and Wales, the
MACR could remain the same at 10 years of age but children could be protected
more in law through use of doli incapax
in court. This could be a viable resolution to the protection of children as it
also appeases heated political tension that could arise within society with the
raising of the MACR as youth could still be convicted of crimes, particularly
heinous crimes, although it is more difficult to prosecute them, protecting
young children from the isolation of incarceration but means that juvenile
delinquents guilty of crimes with a more serious criminal nature won’t evade
the course of justice when justice is deemed by a jury. Furthermore, the use of
doli incapax in Australia seems to be
successful as in the year 2015/2016 the
total number of juvenile delinquents of ages 10–17 came to a total of 54,974
offenders (11), a staggering 33,626
less recorded offenders than in England and Wales in the same year. Moreover, in
the same year, only 214 children aged 10 to 12 years had a an official offence
logged against them (10).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

What legal factors are there that affect
the debate?

 

Criminal
records will affect children into adulthood. Since England and Wales do not
have relaxed laws concerning the disclosure of childhood convictions, the age
of criminal responsibility needs to be raised to protect those who have made wrong
decisions in their childhood to increase effects of rehabilitation in prison. According to the Youth Justice
Statistics for England and Wales 2015/2016, the majority of offences that are
committed by children arrested are arrested on convictions of a lesser criminal
nature with 14% convicted of handling stolen goods and theft, 12% convicted of
criminal damage and 8% convicted of drugs related crimes (5).

Therefore, it should be argued that by having the MACR set at such a low age,
the current Criminal Justice System is in danger of preventing adults from
meeting full potential due to illegal actions made in early childhood, before full
adult maturity has been reached. This conclusion is corroborated by statistics
published in The Independent taken from the Westminster Justice Select Committee
Report that in 2014/2015, 26% of standard Disclosure and
Barring Service (DBS) checks and 23% of enhanced checks made by prospective
employers were related to people who were under 18 at the time of their
conviction (9),
thus undermining the purpose of youth justice to rehabilitate young offenders
so that they can mature to become law abiding adult citizens as criminal
records including offences made before the age of 18 are flagged by DBS checks.

A resolution to this issue since Parliament blocked the motive to tighten laws
concerning disclosure of childhood convictions, would be considering increasing
the age of criminal responsibility to protect those 10 year olds who have
committed crimes from re-entering the Criminal Justice System once
rehabilitated due to missing out on opportunities such as employment as they
would have never entered the Criminal Justice System in the first place. However,
although this seems to be a viable resolution, it should also be considered
that if the age of criminal responsibility is raised to an age higher than 10,
those that do commit heinous crimes such as murder at 10 years of age will be
free from punishment and retribution and thus this invokes the question, is
this just and fair?

 

In the case of James Bulger,  

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