Charlotte Reynolds on New Labour's plan to abolish the line between young children and adults in criminal law
Now we are all 10 again
Jack Straw's plans to crack down on youth crime will be at the centre of the home secretary's forthcoming Crime and Disorder Bill. Lurking between the 'reparation orders' and the 'Youth Offender Teams', almost obscured by the 'parenting orders' and the 'child curfews' is Straw's most worrying proposal of all; abolition of the common law presumption of doli incapax.
Common law in England and Wales presumes a child under the age of 14 to be doli incapax, that is, incapable of evil. The age at which a child can be found guilty of a crime, the age of criminal responsibility, is 10 years (section 50 of the Children and Young Persons Act 1933). However, between the ages of 10 and 14 a presumption of incapacity exists, which can only be rebutted by proof that the child had 'mischievous discretion' - that is to say he knew the act was seriously wrong.
The presumption of doli incapax derives from a recognition of the immaturity of children, who do not have a complete understanding of what is right and wrong. Conversely, adults are presumed to be responsible actors with rational capacity and an ability to understand the nature of their actions, the circumstances in which they occur and the consequences which may flow from them. The government's proposals would abolish this presumption, leaving children as young as 10 in the same position as adults.
The principle of doli incapax was first called into question in 1995, in the case of C (a Minor) v DPP. Then, the House of Lords ruled that, while the doctrine of doli incapax did indeed continue to be a part of English law, the time might be right for parliament to re-examine it. But when the Penal Affairs Consortium subsequently addressed the question of doli incapax, they concluded that the doctrine is 'an important recognition that young people of this age should not be considered as fully criminally responsible as adults. In our view it should not be abolished unless this is accompanied by a substantial raising of this country's unusually low age of criminal responsibility'.
It is true that, at 10, the age of criminal responsibility in the UK is out of line with other European countries (in France it is 13; in Germany, Austria and Italy it is 14; in Scandinavia 15; in Spain and Portugal 16; and in Belgium it is 18). However, the key point in the Penal Affairs Consortium's conclusion is the distinction they draw between the responsibility of children as against adults. It is this distinction that New Labour seems intent on ignoring.
In March this year, Jack Straw announced that doli incapax 'defies common sense. Most young people aged 10 to 13 are clearly capable of knowing the difference between right and wrong'. As capable, it would appear, as an adult. The advantages of education and experience, of maturity and knowledge are ignored as adult rationality is placed on a level with that of a 10 year old. And so, the distinction between adult and child is at best confused and at worst obliterated.
In New Labour's consultation paper 'Tackling youth crime', which helped pave the way to the Crime and Disorder Bill, the message is clearer still: 'abolishing the presumption outright...would send a clear signal that in general children of 10 and over should be held accountable for their own actions.' But in order to be held accountable for your own actions, you surely need to have a degree of control over what you do. It seems ridiculous to say that, at the age of 10, when it is probably somebody else who chooses which clothes you wear, what you eat and where you go, a child should be held accountable for what it does in the same way that an autonomous and independent adult should be. The distinction between adult and child is blurred - and in the process, the real meaning of being independent and responsible is lost.
To understand the significance of attacking the adult-child distinction in law, it is worth looking at the principles underlying the separ-ation in the first place. It is a fundamental principle of law that 'a person should only be held criminally liable where he has the capacity to understand his actions, in the sense of being able to understand the nature of those actions and the circumstances in which they occur, and to recognise the consequences that may flow from them, and, having understood them, where he has the capacity, to control them' (M Allen, Criminal Law, 1995).
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Moral culpability should not be attached to a person who does not understand what he is doing, since he is not a responsible actor and is therefore not deserving of blame or punishment. Indeed, the legal system is organised around the notion that a common standard of behaviour can be expected from all citizens, and in the past this level has been taken to be the rationality and capacity of an adult.
The abolition of doli incapax and the erosion of any real distinction between what should be expected from adults as against children, implies that the legal system should be organised around the lowest common denominator of behaviour, that being expected of a 10 year old. The implication is that nobody should really be considered any more competent, autonomous or rational than a primary school girl or boy.
Since the time of Edward III, the doctrine of doli incapax has recognised infancy as an exception to the presumption of rationality - along with intoxication and insanity. When the capability of a 10 year old is equated with that of a grown adult, the notion of rationality disappears altogether. If the legal system is organised on this basis and we are all viewed as having the rational capacity of children, how long will it be before we organise society on the basis that we are all drunk or mad? But then, perhaps that has already happened. What else could be behind the recent attempts to ban guns, knives and mobile phones but an assumption that we all need to be treated like crazy, out of control children?
Reproduced from LM issue 105, November 1997