The minimum age of criminal responsibility
1. Introduction
A child under the age of criminal responsibility lacks the capacity to commit a crime. This means they are immune from criminal prosecution – they cannot be formally charged by authorities with an offence nor be subjected to any criminal law procedures or measures. The significance of the minimum age of criminal responsibility is that it recognises that a child has attained the emotional, mental and intellectual maturity to be held responsible for their actions. The minimum age of criminal responsibility set by different countries ranges hugely from as low as six up to 18 years of age. The median age of criminal responsibility worldwide is 12.
Having the requisite capacity to be held responsible for offending behaviour does not mean that children over the age of criminal responsibility should be subject to adult-oriented, formal criminal prosecution. However, in nearly all countries, children above the age of criminal responsibility can be arrested, detained and imprisoned. This means that children are drawn at an early age into criminal justice systems that can stigmatise them and damage their long-term prospects and opportunities.
This Briefing first examines what the international standards say about the minimum age of criminal responsibility and then looks at how minimum ages work in practice. It concludes that States should set as high a minimum age of criminal responsibility as possible bearing in mind the emotional, mental and intellectual maturity of children. A low age of criminal responsibility sends out a damaging message to society that children are criminals first and foremost and children second. However, irrespective of where the minimum age is set, States have obligations under the UN Convention on the Rights of the Child (CRC) towards all children under the age of 18 and,as a matter of priority, governments should develop separate justice systems for children that do not focus on punishment or retribution but on their rehabilitation and reintegration into society and on promoting respect for the childrsquo;s sense of dignity and worth.
- International standards and the minimum age of criminal responsibility
Setting the minimum age
Under Article 40(3) of the CRC, States parties are encouraged to establish a minimum age below which children are presumed not to have the capacity to infringe the criminal law. There is much controversy about what should be the most appropriate age of criminal responsibility and there are no categorical international standards in this regard. In General Comment No. 10, the Committee on the Rights of the Child concludes that lsquo;a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptablersquo;.2 At the same time it stresses that States parties should not lower their age of criminal responsibility to 12 where it has already been set higher and strongly encourages States to introduce a higher minimum age of criminal responsibility, for instance 14 or 16 years of age. Certainly there is nothing to prevent States from having 18 as their minimum age of criminal responsibility and a number of countries have chosen to do so including Brazil.
Guidance is also found in Rule 4 of the Beijing Rules which recommends that any minimum age of criminal responsibility lsquo;shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturityrsquo;.4 The Commentaryto this Rule states that lsquo;the modern approach is to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially anti-social behaviourhellip;. The Rules advise that in general there should be a close relationship between the notion of criminal responsibility and other social rights and responsibilities (such as marital status, civil majority, etc).
Under Article 12 of the CRC, when a child is the subject of any administrative or judicial proceedings, he or she has the right to be heard directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. General Comment No.10 states that: lsquo;A fair trial requires that the child alleged as or accused of having infringed the penal law be able to effectively participate in the trial, and therefore needs to comprehend the charges, and possible consequences and penalties, in order to direct the legal representative, to challenge witnesses, to provide an account of events, and to make appropriate decisions about evidence, testimony and the measure(s) to be imposed. Article 14 of the Beijing Rules provides that the proceedings should be conducted in an atmosphere of understanding to allow the child to participate and to express himself/herself freely. Taking into account the childrsquo;s age and maturity may also require modified courtroom procedures and practices.rsquo;5 The implication is that children must be able to participate effectively in trials but cannot do so if they are not sufficiently mature.
In international criminal law, the issue of the minimum age of criminal responsibility has not been addressed. The statutes of the International Criminal Tribunals for Former Yugoslavia and Rwanda do not include any provisions governing the age of criminal responsibility, nor have they indicted anyone under 18. The Rome Statute of the International Criminal Court states that lsquo;the court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of the offence.rsquo;This is a jurisdictional provision and in effect defers the issue to national law
Con
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The minimum age of criminal responsibility
1. Introduction
A child under the age of criminal responsibility lacks the capacity to commit a crime. This means they are immune from criminal prosecution – they cannot be formally charged by authorities with an offence nor be subjected to any criminal law procedures or measures. The significance of the minimum age of criminal responsibility is that it recognises that a child has attained the emotional, mental and intellectual maturity to be held responsible for their actions. The minimum age of criminal responsibility set by different countries ranges hugely from as low as six up to 18 years of age. The median age of criminal responsibility worldwide is 12.
Having the requisite capacity to be held responsible for offending behaviour does not mean that children over the age of criminal responsibility should be subject to adult-oriented, formal criminal prosecution. However, in nearly all countries, children above the age of criminal responsibility can be arrested, detained and imprisoned. This means that children are drawn at an early age into criminal justice systems that can stigmatise them and damage their long-term prospects and opportunities.
This Briefing first examines what the international standards say about the minimum age of criminal responsibility and then looks at how minimum ages work in practice. It concludes that States should set as high a minimum age of criminal responsibility as possible bearing in mind the emotional, mental and intellectual maturity of children. A low age of criminal responsibility sends out a damaging message to society that children are criminals first and foremost and children second. However, irrespective of where the minimum age is set, States have obligations under the UN Convention on the Rights of the Child (CRC) towards all children under the age of 18 and,as a matter of priority, governments should develop separate justice systems for children that do not focus on punishment or retribution but on their rehabilitation and reintegration into society and on promoting respect for the childrsquo;s sense of dignity and worth.
- International standards and the minimum age of criminal responsibility
Setting the minimum age
Under Article 40(3) of the CRC, States parties are encouraged to establish a minimum age below which children are presumed not to have the capacity to infringe the criminal law. There is much controversy about what should be the most appropriate age of criminal responsibility and there are no categorical international standards in this regard. In General Comment No. 10, the Committee on the Rights of the Child concludes that lsquo;a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptablersquo;.2 At the same time it stresses that States parties should not lower their age of criminal responsibility to 12 where it has already been set higher and strongly encourages States to introduce a higher minimum age of criminal responsibility, for instance 14 or 16 years of age. Certainly there is nothing to prevent States from having 18 as their minimum age of criminal responsibility and a number of countries have chosen to do so including Brazil.
Guidance is also found in Rule 4 of the Beijing Rules which recommends that any minimum age of criminal responsibility lsquo;shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturityrsquo;.4 The Commentaryto this Rule states that lsquo;the modern approach is to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially anti-social behaviourhellip;. The Rules advise that in general there should be a close relationship between the notion of criminal responsibility and other social rights and responsibilities (such as marital status, civil majority, etc).
Under Article 12 of the CRC, when a child is the subject of any administrative or judicial proceedings, he or she has the right to be heard directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. General Comment No.10 states that: lsquo;A fair trial requires that the child alleged as or accused of having infringed the penal law be able to effectively participate in the trial, and therefore needs to comprehend the charges, and possible consequences and penalties, in order to direct the legal representative, to challenge witnesses, to provide an account of events, and to make appropriate decisions about evidence, testimony and the measure(s) to be imposed. Article 14 of the Beijing Rules provides that the proceedings should be conducted in an atmosphere of understanding to allow the child to participate and to express himself/herself freely. Taking into account the childrsquo;s age and maturity may also require modified courtroom procedures and practices.rsquo;5 The implication is that children must be able to participate effectively in trials but cannot do so if they are not sufficiently mature.
In international criminal law, the issue of the minimum age of criminal responsibility has not been addressed. The statutes of the International Criminal Tribunals for Former Yugoslavia and Rwanda do not include any provisions governing the age of criminal responsibility, nor have they indicted anyone under 18. The Rome Statute of the International Criminal Court states that lsquo;the court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of the offence.rsquo;This is a jurisdictional provision and in effect defers the issue to national law
Con
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