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The age of criminal responsibility: Developmental science and human rights perspectives

Authors:

Abstract

Purpose: The minimum age of criminal responsibility (MACR) was set at 10 years in 1963. Since then we have gained a deeper appreciation of children's rights, as well as a fuller understanding of their unique capabilities and experiences. This article sets out to examine the implications of these developments for our understanding of this MACR. Design/Methodology/Approach: Research is reviewed that illuminates questions about children's culpability, their competence to participate in the criminal justice system (CJS) and the consequences of criminalising them at a young age. Recent understandings of how children's rights apply to the MACR are also summarised. Findings: Developmental science and human rights perspectives are inconsistent with a MACR no younger than 12 years.
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The age of criminal responsibility:
Developmental science and human rights perspectives
Farmer, E. (2011). In Journal of Children’s Services, 6 (2), 86-95. Winner of Emerald Literati
Outstanding Paper Award 2012
Abstract
Purpose
The minimum age of criminal responsibility (MACR) was set at 10 years in 1963. Since then
we have gained a deeper appreciation of children’s rights, as well as a fuller understanding of
their unique capabilities and experiences. This article sets out to examine the implications of
these developments for our understanding of this MACR.
Design/Methodology/Approach
Research is reviewed that illuminates questions about children’s culpability, their
competence to participate in the criminal justice system (CJS) and the consequences of
criminalising them at a young age. Recent understandings of how children’s rights apply to
the MACR are also summarised.
Findings
Developmental science and human rights perspectives are inconsistent with a MACR no
younger than 12 years.
Originality/Value
The paper is one of the first to extensively apply developmental science research to the
MACR. The author finds that although a just and rehabilitative CJS may be achievable in the
case of most adolescent defendants, this is an unrealistic goal for younger children who
instead require a welfare-based system that addresses underlying causes of antisocial
behaviour, facilitates accountability and ensures child protection.
Key words
Age of criminal responsibility; child development; children’s rights; human rights
Introduction
The recently published Government Green Paper, Breaking the Cycle (MoJ, 2010), states that:
The purpose of the youth justice system [YJS] is to prevent offending by children and
young people… while safeguarding their welfare.’ (p 67)
In Time for a Fresh Start, the Independent Commission on Youth Crime and Antisocial
Behaviour (2010) sets out sensible proposals designed to enable the YJS to meet more
effectively these aims at the same time as achieving justice for victims and communities. It
does not however, challenge the current low MACR in England and Wales, which at 10
years is the lowest in Europe.
Over the past two decades, considerable progress has been made in mapping the
neuropsychological and social development of children and adolescents. The emerging
picture of adolescence is of a period in which individuals may be near mature levels of
competency in some areas while far from these in others. This developmental understanding
is of direct relevance to three salient questions that any attempt to improve the YJS must
address (Steinberg, 2009): how culpable are young people for the unlawful behaviour they
engage in; how competent are they to participate in the YJS as individuals alleged of a crime;
and what is the impact of involving them in the criminal justice system?
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This article contends that developmentally-informed responses to each of these questions, in
conjunction with an understanding of the children’s rights the UK has agreed to protect,
challenge the current MACR, deeming it to be too low to achieve the stated aims of
prevention of offending, safeguarding of welfare, and delivery of justice.
Culpability
Three of the domains that undergo substantial development during adolescence are
executive functioning (EF), emotional processing and social cognition. EF skills are involved in
controlling and coordinating thoughts and behaviours, and include working memory (the
ability to hold information in mind), selective attention, and inhibition of emotional
responses. They are utilised in a variety of everyday tasks such as decision-making, problem-
solving, long-term planning and social interaction. The improvement of EF skills over the
course of adolescence (Anderson et al, 2001) is associated with dramatic changes in the
prefrontal cortex (Blakemore & Choudhury, 2006a). This neural development may also
explain changes in the related capacity of future orientation (Crone & van der Molen, 2004).
From age eight upwards, young people become increasingly able to plan ahead and factor
future consequences into their decision-making (Steinberg et al, 2009).
The maturation of the prefrontal cortex occurs gradually over adolescence and is near
completion by 18 years. This protracted development occurs alongside greater reactivity of
the socioemotional systems of the brain and a general increase in dopaminergic activity
associated with heightened sensitivity to reward. This creates a window of potential
vulnerability in the early to mid-adolescent period during which the likelihood of impulsivity,
sensation-seeking and risk-taking behaviours is raised (Van Leijenhorst et al, 2010).
Neuroimaging research in social cognition suggests that young people become more efficient
in perspective taking and recognising others’ mental states as they progress from early
adolescence to adulthood (Wang et al, 2006; Blakemore et al, 2007). Children at the onset
of puberty are particularly limited at recognising emotions, compared to both their older
and younger counterparts (McGivern et al, 2002). As these skills develop, so does the ability
to empathise (Strayer, 1993). Pre- and early adolescents appear then to be less than
adequately equipped to navigate their increasingly salient social worlds, and this may partly
explain the particular vulnerability of 10 to 14 year olds to peer influence (Steinberg &
Monahan, 2007).
Criminal law recognises that persons are less than fully culpable for their behaviour if their
thinking was substantially impaired at the time of the crime (for example, the Diminished
Responsibility defence), and the developmental trajectories reviewed above indicate that this
may be true for children and young adolescents moral decision making is impaired by limits
in domains such as EF, future orientation, and social cognition, as well as the increased
motivational salience of rewards and value of peer acceptance. Research is increasingly
documenting the explicit links between psychological development and offending; for
example Modecki (2009) found that sensation-seeking and peer pressure influenced
adolescent but not adult criminal behaviour.
All of this does not mean that young people bear no responsibility for their behaviour, but
rather that they may be less responsible. In line with the legal principle of proportionality,
this understanding should lead to less punitive sentences. However, taking the argument
further, is there a point at which mental functioning is so constrained by development that
the very act of punishment is unjust? This question becomes more pressing when we
consider the particular group of children who have contact with the CJS. First however, I
explore the implications of developmental science for our understanding of children’s
competence to participate as an accused person in this system.
Competence
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Adjudicative competence is mainly comprised of those abilities laid out in fitness to plead
and effective trial participation criteria (see R. v Pritchard (1836) 7 C & P 303; R TP v West
London Youth Court (2005) EWHC 2583; M (John) (2003) EWCA Crim 3452). These include
understanding court processes, charges, defences and their possible consequences, deciding
how to plead, challenging jurors, instructing lawyers, giving evidence and responding to
cross-examination. Pre-adjudicative competence includes fitness to be interviewed abilities
(Home Office, 2008), such as understanding the purpose of interviews, and comprehending
the questions asked and the significance of answers given.
Both forms of competency are threatened by suggestibility (the tendency to change one’s
mind as a result of pressure or suggestion from others) and compliance (the tendency to go
along with others’ propositions or instructions without internal agreement), and these
dispositional characteristics are associated with youth. In a study examining how individuals
would choose to respond in police interrogations, Grisso and colleagues (2003) found that
decision-making biased by compliance was substantially influenced by age; for example, 75%
of 11-13 year olds compared to 50% of young adults chose to accept a plea offer, and 55%
chose full confession compared to only 15% of young adults.
Suggestibility and compliance also compromise the identification of truth. Individuals provide
distorted or incomplete versions of events when susceptible to the pressure to do so, and in
extreme cases, this leads to false confessions (Gudjonsson, 1990). Unsurprisingly, young
people are more likely to falsely confess than adults (Redlich & Goodman, 2003). Although
limiting suggestive interviewing techniques reduces the influence of these tendencies, it is the
bias of the questioner beyond the specific techniques used that is the crucial mediator
(Bruck & Ceci, 2004). Bias might feasibly be removed from witness interviews, but is
arguably one of the most central aspects of courtroom questioning and suspect interviews.
The abilities of children to make decisions about how to plead and how to interact with legal
actors are also compromised by their limitations in future orientation, risk/reward
perceptions, logical reasoning, and planning. Limited attentional capacities and intellectual
functioning make it difficult for children to understand and keep track of court processes,
the questions asked and the significance of answers given. Giving evidence requires the
ability to recall accurately past events, and children are especially limited when asked to
remember events that were not repeated or that occurred months rather than days
beforehand, or when questioned by a detached rather than warm interviewer (Blandón-
Gitlin & Pezdek, 2009) all features that typically characterise the circumstances of memory
recall for the accused.
In their sample of 11 to 24 year olds, Grisso and colleagues (2003) found that competence
to participate in the CJS increased linearly with age, reflecting the typically linear
development of the underlying capacities. In an attempt to correct for the reduced pre-
adjudicative competence of young people, the UK government now entitles them to
assistance from an ‘appropriate adult’ during detention and custodial interrogation (Home
Office, 2008). However, a study comparing samples of juveniles and adults with appropriate
adults present at police questioning (Medford et al, 2003) found that this was an inadequate
protection for example, 62% of young persons, compared to 34% of adults, waived their
right to legal representation (an indication of decision-making biased by compliance).
Training of police officers in child development may also be insufficient Meyer and
Reppucci (2007) found that police officers did not apply their knowledge of child
development to the interrogation context, treating young adolescents and adults largely the
same. This may be in part because young people suspected of a crime are seen as more
sophisticated than other young people (Redlich & Kassin, 2009), despite the evidence for the
reverse being true.
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Distinctive features of young child defendants
Young people caught up in the CJS are more likely to have been physically abused and
neglected than their counterparts, as documented by numerous longitudinal studies. For
example, English and colleagues (2002) found that young people who had experienced abuse
were 11 times more likely than matched controls to be arrested for a violent crime.
Maltreatment is associated with changes in stress response systems, in particular the
hypothalamus-pituitary-adrenal (HPA) axis. This axis may become over- or under-
responsive, the direction of the change likely to depend on factors such as onset, chronicity
and type of maltreatment (McCrory et al, 2010). Overreactivity to stress can result in
impulsive aggression, and it is therefore not surprising to find that Post-Traumatic Stress
Disorder (PTSD), a disorder featuring symptoms of heightened arousal, is highly prevalent in
young offenders (Zoccolillo, 1992). An underreactive stress system on the other hand is
linked to lack of empathy, nonresponsiveness to punishment and instrumental aggression
(Kiehl et al, 2001). A subset of young offenders display these characteristics (Frick &
Petitclerc, 2009).
At the psychological level of explanation, social learning theory (Bandura, 1973) posits that
maltreated children learn through modelling and reinforcement that aggressive behaviour is
linked to more attention and status. These children also form negative working models of
other people, mistrusting their intentions and interpreting their behaviour accordingly
(Dodge et al, 1995); they then deploy defensive aggression to protect themselves from this
perceived hostility. Other contributory pathways include the routes from maltreatment to
avoidant coping mechanisms, such as substance misuse and exposure to criminal subcultures.
Indeed young people involved in crime have more mental health and substance misuse
problems than other young people (Chitsabesan et al, 2006). On average they are less
intelligent (Grisso et al, 2003), have limited EF skills (Morgan & Lilienfeld, 2000)and there is
a high rate of learning disability among them (Chitsabesan et al, 2006). These and other
vulnerabilities result not only from abuse but also other adverse life experiences for
example maternal post-natal depression and exposure to violence (Hay et al, 2003; Nofziger
& Kurtz, 2005) frequently interacting with genetic factors (Caspi et al, 2002).
The youngest juveniles who come into contact with the law are likely to be the most
vulnerable, and not simply by virtue of their age. Child, compared to adolescent, onset of
offending is associated with significantly greater childhood adversity and neuropsychological
impairment (Moffitt & Caspi, 2001; Raine et al, 2005). Children who begin offending young
are also more likely to commit serious crimes (Wiesner & Windle, 2004).
Vulnerabilities stemming from developmental adversity act in addition to developmental
immaturity to constrain the ability to act freely and maturely, raising further questions about
culpability. Paradoxically however, in some circumstances their presence is used to justify a
more punitive approach to young offenders, perhaps because they are viewed as signs of
irremediable damage (Najdowski et al, 2009; Independent Commission, 2010). Punitive
sanctions presuppose the centrality of cognitively-based decision making in juveniles’
offending. Yet, as outlined above, there seem to be far more significant processes at play.
Regarding competence, learning disability is recognised by the law as reducing a person’s
fitness to plead (R. v Pritchard (1836) 7 C & P 303), but more subtle vulnerabilities are not.
For example, adverse life experiences increase suggestibility (Drake, 2010), rendering young
people less competent to navigate the CJS (Gudjonsson et al, 2009).
In summary, many young people who come into contact with the CJS are those least
competent to engage with it. Why has this research not significantly changed the way the
CJS responds to young defendants, in the same way it has for child victims and witnesses?
Fear in relation to youth crime has been heightened by high profile cases and their treatment
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by the media (Haydon & Scraton, 2000), and this has arguably led to a situation in which ‘a
persistent judgemental moral reaction to youths has interfered with reasoning about their
developmental capacities’ (Owen-Kostelnik et al, 2006, p299).
Impact
Once within the CJS, the vulnerabilities of children are exposed and exacerbated. The trial
process in an adult court is likely to be traumatizing for young child defendants.
Imprisonment is associated with high levels of distress and mental health problems (Cesaroni
& Peterson-Badali, 2005). Additionally, the absence of adequate education and care (Howard
League for Penal Reform, 2010) may constrain adolescent neurological development. Neural
processes responsible for skills such as EF and social cognition are likely to be particularly
sensitive to experience at this life stage (Blakemore & Choudhury, 2006b).
Custody does not simply constrain development, but potentiates deviant development
(Tracy & Kempf-Leonard, 1996). This may be partly the result of young people adapting to a
hostile environment, where power and status are salient, through inhibition of vulnerable
emotions, pre-emptive aggression (Gilligan, 1996) and isolation (Lindquist, 2000). If these
strategies that are conducive to offending are laid down during sensitive points of
development, they may be resistant to change in more ambient social worlds.
Although many young people involved with the YJS are not trialed in adult courts or
detained, contact with the YJS of even the most minimal kind, such as being charged with an
offence, appears to increase re-offending (McAra & McVie, 2007). Processes at play in this
relationship include identity development and labelling. Early adolescent involvement with
the CJS increases the salience of an offender identity just at the point at which individuals are
most focussed on developing a coherent sense of self (Erikson, 1968). Once formed,
identities draw individuals to behave in ways that are consistent with themselves. Similarly if
others label an individual as delinquent, they tend to treat him or her as such (for example,
searching for confirmation or restricting positive opportunities), thereby also increasing the
risk of reoffending (McAra & McVie, 2007).
In sum, the CSJ poses pre- and early adolescent offenders appreciable risks. Clearly the
stated aim of safeguarding (MoJ, 2010) has been violated. While some might argue that this is
justifiable to protect public safety, the evidence on re-offending suggests that this is in fact a
further unmet goal.
A children’s rights perspective
Concerns about children’s culpability, competence and vulnerability within the CJS have
shaped international legal guidance related to the MACR. These directives are underpinned
by a children’s rights perspective and attempt to resolve tensions between welfare and
justice concerns, and between children’s protection and liberty rights (Cipriani, 2009). Key
guiding principles include: children’s best interests as a primary consideration; assurance of
their effective participation in legal proceedings; attention to their evolving capacities; and
non-discrimination.
Instruments relevant to law in the UK include the 1985 United Nations (UN) Standard
Minimum Rules for the Administration of Juvenile Justice (the ‘Beijing Rules’), the 1990
Convention on the Rights of the Child (CRC; implementation is monitored by the
Committee on the Rights of the Child), the 1990 UN Guidelines for the Prevention of
Juvenile Delinquency (the ‘Riyadh Guidelines’) and the 1950 European Convention on
Human Rights (ECHR). Some key points of convergence can be derived from these
instruments alongside the commentary of their monitoring bodies:
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Each State Party must enforce a single MACR, at the minimum age of 12 years,
although somewhere within the 14-16 age range is most desirable (see Cipriani,
2009, for a comprehensive list of the relevant guidance)
Children who infringe the penal law at a younger age than the MACR cannot be
criminalized in any sense.
Special protective measures may be applied to children. In rare circumstances this
may include deprivation of liberty. There should be a focus on family and educational
support.
Procedural guarantees should be in place to protect children’s rights on either side
of the MACR. For example, younger children are entitled to any protective
measures applied to them being regularly reviewed and to legal assistance. Older
children have the right to a fair trial in which they are able to participate effectively.
Secondary and multiple MACRs are not appropriate. These include the Doli Incapax
rebuttable presumption and differing age limits according to the seriousness of the
offence (see Alternative Reforms below).
No group of children shall be discriminated against.
These stipulations appear compatible with a developmentally informed perspective. As
research on children’s emerging capacities and understandings of children’s rights
increasingly inform one another we can expect increased conceptual clarity and specification
of MACR guidance.
Raising the MACR
England and Wales have been repeatedly criticised by the Committee on the Rights of the
Child for their MACR of 10 years old. Current understandings of children’s developmental
capacities and their rights are clearly incompatible with such a low threshold. The exact
point to which the MACR should be raised is hard to specify given that changes in capacities
and rights are on a continuum. In light of this, my view would be to increase the MACR in a
conservative fashion raising it to 12 in the first instance. The research reviewed above
would suggest that children aged 10 and 11 are most definitely not competent to participate
effectively in the legal system and have reduced culpability. Additionally, those particular 10
and 11 year olds who come into contact with the YJS are likely to be especially vulnerable.
The intervention of the YJS in their lives harms them as well as wider society (via re-
offending). An initial raise of the MACR to 12 years would significantly improve the fairness,
utility and, indeed, cost-effectiveness of the YJS. Substantial numbers of children would be
removed from its influence; for example, in 2009/10 2,886 children aged 10 and 11 received
some form of youth justice disposal (MoJ, 2011).
A later decision about whether to raise it further to a point between 14 and 16, as appears
recommended by the Committee on the Rights of the Child, can then be made in light of the
outcomes of the raise to 12 (for example, has this reduced antisociality in 10 and 11 year
olds?), the impact of the promised rehabilitative changes to the YJS and further insights from
developmental research. Any consideration needs to bear in mind the liberty rights that
young people gain from engaging in the CJS, such as entitlement to a fair trial, and the desire
for society to see justice done.
For a raise in the MACR to improve justice and safeguarding, it must be accompanied by the
development of a robust welfare-based system for younger children who have offended.
Following the direction of the CRC, this system should focus on the best interests of the
child, addressing individual and systemic influences on their behaviour and well-being.
Further, it must minimise risk and, in rare circumstances, this may include the deprivation of
liberty. Such measures would require civil judicial procedures involving legal safeguards for
the child, such as those outlined in Section 25 of the Children Act, 1989. These are necessarily
less extensive than those applicable to penal law proceedings; in this sense children younger
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than the MACR forgo certain liberty rights in order to enjoy greater protection rights.
Lastly, a welfare-based system, although avoiding punishment, would usefully include a focus
on accountability (Hammarberg, 2008). Without the long delays and obscure processes
within the CJS, children are better able to make the links between their behaviour and its
consequences, and victims to achieve timely redress.
Alternative reforms
Independent Commission (2010) argue that the problems of involving young children in the
CJS can be avoided if the system is transformed along rehabilitative lines, for example,
limiting trials to youth courts and improving custodial education.
Youth courts are undoubtedly better at enabling participation in the trial process, but do
nothing to allay concerns about children’s competence in pre-trial procedures (and, as
reviewed, these concerns remain even when there is police training and ‘appropriate adult’
provision). Additionally, although youth courts may limit the impact of suggestibility by
reducing the formality of procedures, the limitations in logical reasoning, planning, memory
and future orientation skills of the youngest of defendants remain a serious risk to due
process.
It might also be proposed that the maturity of children above the MACR of 10 years can be
assessed on a case-by-case basis in order to inform judgments around competence and
culpability. Apart from being prohibitively expensive, this approach may breach the principle
of non-discrimination and the specific directive of the Committee on the Rights of the Child
that the MACR must not differ for different children. This instruction seems to arise from a
concern about the wide discretion this would afford judges and other decision-makers on
the fate of individual children. It is easy to envisage bias towards certain groups of children
creeping into purportedly objective assessments, and certainly current medicolegal
assessments contain much opinion and subjectivity.
Calls to raise the MACR except for those accused of the most serious crimes (Barnardo’s,
2010) also contravene this directive, and may in fact constitute a particularly heinous form of
discrimination, as these children are likely to be the most vulnerable. The presumption of
Doli Incapax (whereby children between 10 and 14 are presumed to lack the understanding
to be criminally responsible unless proved otherwise) is similarly flawed and has the further
problem of being based on the faulty assumption that children between 10 and 14 generally
do not understand the difference between right and wrong.
Lastly, while improving custody would be a welcome move, it would not remove all negative
effects of the CJS, such as the fact that rehabilitative custody within the CJS still excludes
children from their communities, restricts their peers to those involved in delinquency and
facilitates identity development around ‘deviant’ constructions.
Conclusion
In reaching its recommendation to maintain the current MACR of 10 in England and Wales,
the review by the Independent Commission (2010) does not consider the implications of
current developmental research and the UK’s obligations to children’s rights. As a result it is
tempting to surmise that this recommendation arose from motivations of political
expediency rather than a close consideration of the evidence.
The MACR was set at 10 years old in 1963 without a clear or evidenced rationale. Nearly
50 years later, it is time to revisit this age limit. A significant body of developmental research,
a formal commitment by the UK to children’s rights and the clearly stated aims of the
government are incompatible with the criminalisation of young children.
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Summary of implications for policy and practice
Increasing the MACR to 12 years would remove significant numbers of children
from the CJS who are not competent to participate within it (and have diminished
culpability), avoiding injustice and harm to their later development.
Developing a robust welfare-based system for younger children who have offended
could address the significant vulnerabilities that characterise this population, as well
as reduce re-offending and facilitate accountability. Work with families and
communities should be a central aspect.
Existing proposals to deal more fairly with this group of children do not go far
enough in achieving these aims and are less cost-effective.
Acknowledgements
Thank you to Dr Eamon McCrory, Dr Eileen Vizard and Bradley Platt for their invaluable
support in writing this article.
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About the author
Elly Farmer is a Clinical Psychologist working in an NSPCC team that assesses, treats and
conducts research into young people with harmful sexual behaviour. She also provides
consultation to the Child Exploitation and Online Protection Service.
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