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Abstract
With doubts regarding the possible continuing status of doli incapax now resolved in favour of criminal liability of all children aged 10 to under-14, other safeguards arising from the psychological development, capacity and participation in the prosecution of this age group remain active considerations. Having considered the steps available in pursuing alternative interventions, promoting fairness and pursuing a range of defence avenues this Commentary concludes by briefly noting the scope for reforming the age of criminal responsibility in England and Wales.
Notes
1. This title originates from observations of Lord Diplock in DPP v. Camplin [1978] AC 705.
2. See note 9 below.
3. Section 13 embraces a cluster of sexual offences committed against a child by a young person aged under 18 which, if committed by an adult, would fall within ss. 9–12 of the 2003 Act, the effect being to subject a youthful perpetrator to a lower maximum penalty.
4. Affirmed by the Divisional Court in O'Gorman v. DPP (1999) (CO 4817/98).
5. In R v. Riseborough [2008] EWCA Crim 1272, the Court of Appeal was satisfied that a man aged 21 when arrested had appreciated at the time the wrongness of his sexual behaviour at age 12 towards his then foster-carer's granddaughter aged eight.
6. The Criminal Justice and Immigration Act 2008 s. 9 has since amended the Criminal Justice Act 2003 by inserting section 142A which specifies the following ‘purposes of sentencing’ in respect of young offenders: (a) the punishment of offenders; (b) the reform and rehabilitation of offenders; (c) the protection of the public; and (d) the making of reparation by offenders to persons affected by their offences.
7. Per Smith LJ in CPS v. P [2007] EWHC 946 (Admin) at para. 33.
8. Hughes LJ commented: in R: ‘Where very young, or very handicapped, children are concerned, there may often be better ways of dealing with inappropriate behaviour than the full panoply of a criminal trial. Even where the complaint is of sexual misbehaviour, it ought not to be thought that it is invariably in the public interest for it to be investigated by means of a criminal trial, rather than by inter-disciplinary action and co-operation between those who are experienced in dealing with children of this age and handicap.’
9. Lord Falconer of Thoroton observed that ‘the possibility is not ruled out, where a child who has genuine learning difficulties and who is genuinely at sea on the question of right and wrong, of seeking to run that as a specific defence’ (Hansard, Lords Debates, vol. 584 col. 596, 16 December 1997).
10. A child's inability to take any effective part in such proceedings would not breach Article 6 rights under the European Convention since the exercise would be fact-finding & protective and he would not be in jeopardy of punishment. As Smith LJ noted in P, a court may halt criminal proceedings and switch to the fact-finding procedure at any stage.
11. Current CPS guidance (accessible at: http://www.cps.gov.uk/legal/v_to_z/youth_offenders/#a06) requires that review of files involving young persons should be undertaken by a ‘youth offender specialist’.
12. Where the court is satisfied that this would be in the interests of justice and, in respect of a defendant aged under 18, that his ability to participate effectively as a witness is compromised by his level of intelligence or social functioning and would be improved by giving evidence by this means (YJCEA 1999 s. 33A, introduced by the Police and Justice Act 2006, thus resolving the uncertainty in this respect raised by R (on the application of S) v. Waltham Forest Youth Court [2004] EWHC 715 (Admin)).
13. Where the court is satisfied, in respect of a defendant aged under 18, that his ability to participate effectively when giving oral evidence as a witness is compromised by his or her level of intellectual ability or social functioning (YJCEA 1999 s. 33BA, introduced by the Coroners and Justice Act 2009, thus assisting to resolve the issues in this respect raised by C. v. Sevenoaks Youth Court [2009] EWHC 3088 (Admin)).
14. Further to R v. Camplin [1978] AC 705, in respect of a partial defence to murder, the issue being whether the defendant exercised ‘the power of self-control to be expected of an ordinary person of the sex and age of the accused’.
15. In respect of duress, regard may be had to youthful age that might render the subject more timid or less courageous than an adult so placed: R v. Bowen [1997] 1 WLR 372.
16. In the context of the application of recklessness in respect of criminal damage, Lord Steyn commented in R v. G and another [2004] 1 AC 1034 at para. 54 that it would be contrary to article 40.1 of the UN Convention on the Rights of the Child ‘to ignore in a crime punishable by life imprisonment … the age of a child in judging whether the mental element has been satisfied’.
17. Blackstone's Criminal Practice (2010 edition) at A3.39, where it is also speculated that impaired mental development may provide the basis for a diminished responsibility defence to murder under the Homicide Act 1957 section 2. Such a verdict on grounds of developmental immaturity was recommended by the Law Commission (Citation2006), although this was anticipated to affect only a very few cases.
18. Bennion (Citation2009) has argued that the ignorance of law doctrine – that it is no excuse that the perpetrator had been unaware that the actus reus formed an element of an offence – does not apply to a child aged under 14, on the basis that ‘a rule that imputed knowledge of the law generally to children of that tender age would be preposterous’. He expresses surprise that the Lords did not address the issue in JTB. With respect, it is difficult to follow this assertion, one that Bennion does not support with any case law authority.
19. As suggested by the Home Office (Citation1997a, para. 13): ‘Justice is best served by allowing courts to take account of the child's age and maturity at point of sentence.’
20. The facts in N were not unlike the circumstances of the reckless fire-setting ‘prank’ perpetrated by the two boys in R v. G and another (note 16), when they set fire to newspapers in the backyard of a shop while stopping out overnight without parental knowledge. Unlike G, N pleaded guilty.
21. In R v. TF (2000, 199902279/Y3), a boy's possession of rubber gloves when seen breaking the window of a flat was considered an essentially unambiguous basis for rebutting the presumption. But what of the more subtle offences of fraud or forgery? How should a court interpret an instance where a child has altered a birthday cheque from a relative in a bid to cash it for a greater sum?
22. For a further illustration, concerning a boy aged 11 at the time of his sexual misbehaviour, see R v. F [2006] EWCA Crim 251 and [2009] EWCA Crim 319, detailed in Stone (Citation2009). See also Stone (Citation2007).
23. In a study commissioned by the Youth Justice Board, surveying 301 young offenders resident in custodial settings or attending youth offending teams in the community, Chitsabesan et al. (Citation2001) found that 20% met the criteria for mental retardation (IQ < 70), while problems with reading (52%) and reading comprehension (61%) were common. Verbal IQ scores were found to be significantly lower than performance IQ scores, particularly in male offenders.
24. Children and Young Persons Act 1969 s. 4 that remained unimplemented until repeal by the Criminal Justice Act 1991 s. 72.
25. In proposing to abolish doli incapax the government stressed the educative and rehabilitative benefits of criminal responsibility. In arguing for early intervention through the criminal justice system, the Minister of State at the Home Office, Lord Williams of Mostyn asserted: ‘It does the child no favours to let it (sic) drift on without knowing … that if it commits criminal acts there will be a sanction’ (Hansard, Lords Debates, vol. 587 col. 838, 19 March 1998).
26. In the four years 2004–2007, 27 boys and six girls aged 10–11 (24 of the 33 being charged with violent or sexual offending) faced trial at Crown Court, 15 being convicted and seven attracting a custodial sentence. In that period, 4598 children aged under 12 were prosecuted at youth court, of whom 3216 were convicted. Of those dealt with 14% incurred a discharge or fine, 60% a referral order and 22% a supervisory sentence. Source: Supplementary Criminal Statistics for England and Wales.
27. It is acknowledged that conviction as a child of a grave crime attracting an indeterminate term of detention under PCC(S)A 2000 ss. 90–91 can result in continuing detention into adulthood on the basis that the offender continues to pose an unacceptable risk of serious harm to the public, a safeguard not afforded by intervention under child care legislation. However, it is submitted that notwithstanding the anxiety prompted at time of writing by the conviction of two Doncaster brothers who perpetrated a sustained, life threatening, part-sexualized attack on two other children (having experienced what has been described (BBC News Citation2010) as a ‘toxic’ upbringing in which they were exposed to extreme violence, with ill-judged lack of appropriate early intervention), this notional protective advantage does not serve a significantly practical purpose. When determining the minimum terms that should apply in respect of the HMP sentences imposed on the boys who had been convicted of murdering James Bulger (Re Thompson [2001] 1 All ER 737), Lord Woolf CJ referred to the desirability of reintegrating children in their position back into society, noting that transfer to ‘the corrosive atmosphere’ of young offender institutions would be likely to undo much of the good work achieved thus far towards their rehabilitation, promoting neither the child's nor the public's interests.