E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-9447 Volume 10 Number 3 (September 2003) Copyright E Law and author ftp://law.murdoch.edu.au/pub/elaw-issues/v10n3/crofts103.txt http://www.murdoch.edu.au/elaw/issues/v10n3/crofts103.html ________________________________________________________________________ Doli Incapax: Why Children Deserve its Protection Thomas Crofts Murdoch University School of Law Contents * Introduction * The rebuttable presumption of doli incapax * Background * The arguments for reform o The Doli incapax doctrine is outdated o Children can differentiate between right and wrong o Children no longer need protection from the harshness of the criminal law o Doli incapax was unfair in practice * Summary * Notes Introduction 1. In all Australian criminal jurisdictions children under fourteen are presumed criminally incapable. This presumption of criminal incapacity has an irrebuttable and a rebuttable form depending on the age of the child. Since 2000 when Tasmania and the Australian Capital Territory raised the age level, the age under which a child is irrebuttably presumed criminally incapable is now ten throughout Australia.[1] For children aged ten but not yet fourteen the presumption is conditional and may be rebutted by proof that the child understood the wrongfulness of what they were doing. 2. In recent years the validity and fairness of the rebuttable form of the presumption has been increasingly questioned. Unfortunately, such discussion has often been sparked by high profile cases of young offenders committing grave offences. In such a climate reasoned arguments must compete against highly emotive claims about the need to do something about youth crime. This article aims to discuss whether there is still a role for the rebuttable presumption of doli incapax in modern Australian society. It will begin by explaining how the rebuttable presumption operates, before moving on to the background to the presumption and the reasons for increased criticism. Following this the criticisms made of the presumption will be addressed with a view to showing that there continues to be a need for the protection which the presumption of doli incapax provides. The rebuttable presumption of doli incapax 3. The law presumes that a child aged ten but not yet fourteen cannot be convicted of an offence unless the prosecution brings proof that the child understood their act or omission to be wrong. In some states and territories this rebuttable presumption that children of this age group are not able to form a guilty mind is on a statutory footing while in others it remains a matter of common law.[2] In the case of Gorrie it was held that there must be proof that the child had mischievous discretion, or in other words, that he or she knew that they were doing something not just wrong, but seriously wrong.[3] Although in England there was some discussion about what exactly was meant by the term 'seriously wrong',[4] 4. Australian courts have interpreted this term in line with the required understanding in the case of insanity.[5] It must therefore be established that the child understood[6] that the act or omission was wrong according to the ordinary standards of reasonable people.[7] Understanding that the act was disapproved of by adults would not be sufficient, because "[a]dults frequently disapprove of breaches of decorum and good manners on the part of children ... without regarding the acts or omissions in question as wrong in the relevant sense."[8] Lord Goodhart interprets the requirement as an understanding of the criminality of the act, in the sense that the child knows "the difference between doing things which are naughty and for which you will be punished (it is to be hoped) by a parent, and doing those things which are seriously wrong and liable to punishment by a court."[9] 5. Here, it should be clarified that the issue is not about establishing that the child had the requisite intention; that is a separate issue. The prosecution must prove all the physical elements of the offence as well as any necessary fault element, and further that the child knew that what they were doing was wrong.[10] 6. A common misconception is that the presumption of doli incapax is a defence. Yet, the burden is on the prosecution to rebut the presumption in every case or there is no case to answer.[11] According to Hale, "[I]t is necessary that very strong and pregnant evidence ought to be to convict one of that age, and to make it appear he understood what he did."[12] This means that the presumption must be rebutted according to the criminal law standard and therefore beyond reasonable doubt.[13] 7. A further principle regarding rebuttal, identified by the House of Lords in C v DPP, was that the guilty knowledge "must be proved by express evidence, and cannot in any case be presumed from mere commission of the act."[14] The starting point for assessing the child's understanding will generally be the age of the offender and the type of act committed. The closer the child is to fourteen[15] and the more obviously wrong the act,[16] the easier it will be to rebut the presumption. Perhaps the most common form of evidence used to rebut the presumption is what the child says when interviewed by the police.[17] It is also possible, but not necessary, to call an expert witness to give evidence on the child's developmental state.[18] 8. Aside from direct evidence inferences about the child's understanding can be drawn from other factors such as: the normal level of understanding of a child of that age,[19] conduct surrounding the act,[20] home background,[21] appearance in court[22] and past criminal record.[23] Background 9. The presumption of incapacity has a very long history and was expressed in the following terms in 1619 by Dalton in Countrey Justice: An infant of eight yeares of age or above, may commit Homicide ..., and shalbe hanged for it, viz. if it may appeare (by hiding of the preson slaine, by excusing it, or by any other acte) that hee had knowledge of good and euill, and of the peril and danger of that offence. But an infant of such tender yeares, as that he hath no discretion or intelligence, if he kill a man, that is no felony in him. [24] Blackstone noted that this rule has existed since at least the reign of King Edward III (1327-1377).[25] 10. However, recognition of the fact that children may not yet have criminal capacity can be traced back even further to ancient laws, for instance the Laws of King Ine from 688 AD and King Aethelstan from 925 AD.[26] Naturally, a rule having such a long existence is bound to be subject to a degree of criticism and as early as 1883 it was criticised by Stephen that the presumption operates seldom and capriciously.[27] In 1954 Glanville Williams argued that it was no longer necessary and could even be regarded as legally obsolete in modern criminal law,[28] and six years later the Ingelby Committee in England suggested that the presumption should be set aside.[29] 11. Although longevity alone is not a sufficient reason to retain such a rule the fact that it has survived criticism for so long should lead us to be especially cautious to not sweep away the protection provided by the presumption without thorough exploration of the validity of modern concerns. 12. In recent years the criticism of the doctrine has increased. This was fuelled in Britain by the Bulger case where two ten year old boys abducted a two year old child and killed him. This case received extensive media coverage, not least because the abduction was caught on video tape. The result was public panic about escalating youth crime rates and calls for harsher measures to deal with child offenders. The response of the Divisional Court in an unrelated case from 1994 was to hold the rebuttable presumption of doli incapax to no longer be valid law.[30] On the connection between the public's reaction and this decision Freeman comments that "there is no need to believe in conspiracy theories to remark on their coincidence."[31] On appeal the House of Lords held that the presumption was still valid law. However, the basis for this judgment does not appear to be a conviction in the continued need for this doctrine. Rather, the concern was that such a change would be socially and politically controversial and therefore should not come from the court but from Parliament.[32] 13. The Labour party took heed of the call for reform and vowed during its election campaign to examine the law concerning young offenders. Shortly after coming to power the new Labour government published a consultation paper entitled Tackling Youth Crime in which two proposals were made to "modernise the archaic rule of doli incapax": either the presumption was to be reversed or it was to be abolished.[33] The government made clear in its consultation paper that it preferred the latter approach and in 1998 the Crime and Disorder Act was passed. This Act abolished the rebuttable presumption for those aged ten but not yet fourteen, leaving England and Wales with one of the lowest age levels of criminal responsibility in the world. 14. These moves in England did not go unnoticed in Australia and sparked discussion here about the continued need for the rebuttable presumption of doli incapax.[34] In 1997 the Australian Law Reform Commission recommended that all states retain the doli incapax presumption in its current form and place it on a legislative footing.[35] Despite this some States continue to question the need for the presumption in its present form. In 1999 a private members Bill introduced into the Queensland Parliament proposed to reverse the presumption of doli incapax, such that the prosecution would not need to rebut the presumption but that the child could raise incapacity as a defence.[36] In the same year a case in New South Wales involving a ten year old child killing a six year old fuelled a discussion which led to the Criminal Law Review Division of the NSW Attorney-General's Department publishing a discussion paper on the age of criminal responsibility.[37] This paper raised a number of questions in order to discern whether any reform should be undertaken. 15. Despite such reform discussion in Australia the rebuttable presumption of doli incapax remains intact in all Australian jurisdictions. The question is, however, how safe is the presumption from future attack? It may only take another case involving a child offender committing a crime which does not fit the picture of childhood innocence along with the ensuing media hype that children are getting away with crime at the expense of community protection and justice for victims for there to be renewed calls for change.[38] In such a climate the reality of the functioning of this presumption becomes unimportant in the face of government's promising harsh new laws to be tough on crime.[39] Indeed, the Australian Law Reform Commission has noted that: "Community perceptions that youth crime is rampant have led to particularly punitive legislative developments in many jurisdictions."[40] It is therefore more necessary than ever to evaluate the criticisms made of the presumption, whether they are valid and why there is still a need for the presumption of doli incapax. The arguments for reform 16. There are varied criticisms made of the doli incapax presumption, however, they can be examined under two main headings. Firstly, that the presumption of doli incapax is outdated and secondly, that it is unfair in practice. The Doli incapax doctrine is outdated 17. The argument that the doctrine of doli incapax is out of date has two aspects: Firstly, it is out of date in assuming that a child up to the age of fourteen cannot differentiate between right and wrong, and secondly, it is out of date because it assumes that children under fourteen continue to need special protection from the harshness of the criminal law. Children can differentiate between right and wrong 18. In Britain the government argued in favour of abolition of the presumption on the basis that: "the notion that the average 10-14 year old does not know right from wrong seems contrary to common sense in an age of compulsory education from the age of five, when children seem to develop faster both mentally and physically".[41] This same common sense argument has been expressed in Queensland and in New South Wales. During the debate on the Criminal Code Amendment Bill in Queensland it was stated that: I believe it would be a difficult task to find a child aged 10 to 14 years who does not know the difference between right and wrong according to what the community would find reasonable, especially in a time when it is clear that the incidences of children, sometimes younger than 10, being involved in serious crime are definitely on the increase.[42] 19. The above claim is particularly disturbing as it suggests that if crimes rates are increasing this equates with a greater understanding amongst children. This leads one to question whether the real concern is establishing the most appropriate age and mechanism for assessing whether children are criminally responsible or rather a desire to deal with the young within the criminal justice system when their offences are perceived to be a social problem. 20. The obvious objection to the argument that the modern education system means that children mature earlier was already raised by Lord Lowry in C v DPP: "better formal education and earlier sophistication do not guarantee that the child will more readily distinguish right from wrong".[43] Similarly, the Australian Association of Child Welfare Agencies comments that: While many children may have access to a greater amount of information (and even this assertion is questionable for highly disadvantaged groups) than in previous centuries when the laws were conceived, information does not necessarily imply a greater maturity or discernment when it comes to matters of right and wrong.[44] 21. In fact, despite compulsory education research shows that a significant number of offending children do not regularly attend school, because of truancy or school exclusion.[45] As such while school may generally contribute to educating children in what is socially acceptable behaviour it may fail to do so with regard to those children most at risk of committing crime. It should also be noted that not all children will have been born and brought up in Australia and so it may not be appropriate to expect that they have experienced a similar standard of education.[46] 22. Similarly, the New South Wales Attorney Generals Criminal Law Review Division questioned whether the doli incapax presumption was still necessary in modern society considering that children today have greater access to technology.[47] Stephen Scarlett, Senior Children's Magistrate in New South Wales, had no doubt that children today are more developed and stated that: It seems obvious that children in the final stages of the 20th century are better educated and more sophisticated than their counterparts 200 years ago. A child of 12 in Australia has access to television, radio and the Internet, and has a far greater understanding of the world than a 12 year old in rural Britain in 1769.[48] 23. It cannot be denied that children today make much greater use of modern technology than in earlier years. However, this does not simply equate with a better ability to understand the wrongfulness of actions. The revolution in the electronic media has not only had a positive influence on the development and maturation of children. Computer games, Internet, television, etc, have led to a reduction in social contact and, as one German author claims, such media have led to a "gradual disappearance of reality".[49] Thus, instead of interacting with others, personally experiencing situations and learning how to behave in them, children learn now increasingly through watching television and playing computer games. As such the young may not fully appreciate the full effects of their actions and how others may be affected or react in real situations. 24. In this vein it was argued in the case of Sheldon that children may well be "shocked and distressed to discover that real people do not get up and walk away as they do after lethal attacks in cartoon films".[50] Such thought processes have indeed been noted in the Bulger case where, "[o]utside the trial, one [of the accused boys] spoke of James Bulger as a character in a chocolate factory and imagined that, as in some Disney-esque scenario, he might be brought back to life."[51] A case where the consumption of violent videos was actually found to have led to a reduction in the guilt of the young offender was heard before the State Court in Passau, Germany. This case involved a fourteen year old dressing up like Jason from the film "Friday the 13th" and attacking his younger cousin and an elderly neighbour with an axe.[52] It was found to be a case of diminished responsibility because the obsessive consumption of violent horror videos, as well as the severe failings in care on the part of his family, had led to a maladjustment in his personality.[53] 25. Furthermore, formal education is only one of the factors which affects whether a child will understand that a certain act is wrong. The social and family environment in which the child grows up will have a profound influence on whether a child understands the wrongfulness of criminal acts.[54] It is interesting to note how widespread the understanding of the fundamental importance of the home background was during the reform period of the nineteen century. In 1895 one convicted criminal made the following statement in the Minutes of Evidence before the Gladstone Committee: 26. Take for instance a child in its mother's arms; anything that excites its fancy it wants to get, and if that natural feeling is not corrected by parental training and moral influence and education it gets stronger as the child gets older.[55] 27. If there are failings in the family surroundings of the child it can have a damaging effect on the child's understanding. Research shows that living in a family with multiple problems, experiencing poor parenting, lack of supervision and weak discipline can all have a negative effect on the child's development.[56] It may seem surprising then that in Queensland the breakdown of the family and the disintegration of morals in society were referred to in support of the argument of the need for reform. Justice McGuire, then President of the Children's Court of Queensland, claimed that approximately 70% of offending children come from dysfunctional families. He followed from this that there is "a significant number of parents who fall short of the duty cast on them to ensure that their children understand the difference between right and wrong..."[57] McGuire further argued that it is not just families that are failing to provide children the support they need: It is time to take stock of the moral condition of society. Many people of the western democracies are in a state of profound perplexity. Today, western civilisation is marred by violent crime, vandalism and a loss of civility; by a breakdown of family and widespread neglect of our children...[58] 28. Such claims could convince of the need for reform, but not in the direction called for by McGuire. If it really is the case that parents are failing to educate their children on the difference between right and wrong and that modern society is making this learning process more difficult then this would support an argument for keeping the rule as it stands or even increasing the age levels of criminal responsibility rather than reducing the protection offered. 29. It cannot therefore be claimed that the presumption is outdated on the basis that children generally know the difference between right and wrong at an earlier age than in the past. Indeed, it could be argued that modern conditions may mean that the child is less mature than generally assumed. In today's society great emphasis is placed on individuality and freedom of choice. This greater freedom and individualism places heavy burdens on children because they must learn where the limits of freedom are in our open pluralistic society. Indeed: It is in complex cultures ... which are characterized by rapid social change ... an emphasis on individuality with great freedom of choice, and little explicit institutionalization of progressive readjustments of authority as between parents and children, that adolescents are liable to experience serious psychological difficulties that reduce responsibility.[59] 30. Further, if using history as an argument it should be pointed out that in earlier centuries children began to work and assume responsibilities for their lives at an earlier age than children today.[60] It could therefore be argued that children now have less independence and awareness of responsibility. In this vein, Dr Brett Waters, the child psychiatrist who clinically assessed the eleven year old NSW boy charged with manslaughter in 1999, opined that "all the social evidence today indicates that childhood is being extended in a number of ways ... More and more children are being retained for a longer period in a dependant sort of status."[61] Taken together these arguments about the position of children in modern society do not convince of the need to reduce the protection provided by the presumption of doli incapax. Children no longer need protection from the harshness of the criminal law 31. The second basis upon which the presumption is argued to be outdated is that it is founded on the assumption that children still need protection from the criminal law. The presumption of doli incapax took root at a time when the criminal law was more draconian and children were sentenced to death for crimes less than murder.[62] The need for the protection it provided in those times is therefore undoubted. However, now that the criminal law is no longer so harsh it is claimed that there is no longer any need for the presumption of doli incapax.[63] While it is, thankfully, quite true that the criminal law is not so retributive and brutal as it was in earlier times and that there is an emphasis on the welfare of the child, the fact cannot be denied that the system for dealing with young offenders has remained embedded in the criminal justice system. There are therefore still considerable objections to the argument that children do not need protection from the criminal law. 32. The first objection to using the criminal law on children who may not have been able to form a guilty mind is the stigmatisation which it causes. The criminal law is society's most condemnatory instrument. The government in Britain recognised the effects of stigmatisation and welcomed it. The Home Secretary stated: "We must introduce an element of shaming people. There is nothing wrong with that--it is what kept many of us in check when we were at school; it is an important element of social control."[64] Colin Barnett, leader of the Opposition in Western Australia, also recently called for a system to humiliate young offenders.[65] It is highly doubtful whether the experience of being shamed at school can be compared to being shamed by the criminal justice system. Shaming the young offender is unlikely to nurture an understanding of the wrongfulness of acts and could be counterproductive. A child who did not understand the wrongfulness of what they had done may feel unjustly treated and feel resentment toward society. It is also possible that the child simply accepts the label of being criminal and resigns themselves to it.[66] None of these reactions would be conducive to helping a child learn where the borders of socially acceptable behaviour lie. 33. A second reason why the child still needs protection from the harshness of the criminal law is that the criminal trial itself and the surrounding proceedings can be a heavy burden for a child. This is especially so when the case is heard in higher courts. Although children are generally tried in children's courts, Australian States and Territories do provide for children charged with serious offences, such as murder, to be dealt with before higher courts. Such trials can be long, complex, technical and traumatising for children who are unlikely to have the concentration to follow the evidence properly and may not be able to give clear and consistent instructions to their lawyers.[67] Indigenous children may be especially vulnerable in such an environment "because of cultural differences in methods and styles of communication."[68] This can lead to severe injustice if the child cannot adequately engage in the trial because they do not understand, or are intimidated by, the strange environment and the language and mannerisms used. 34. An example highlighting the concerns about trying children in such a way is the English Bulger case where it was noted that throughout much of the three week trial the boys looked bewildered and bored and neither boy gave evidence.[69] The fact that children may not be mature enough to follow and participate in their trial raises serious questions about whether children are being denied the right to a fair trial. Indeed, in the Bulger case it was held by the European Court of Human Rights that the right to a fair trial had been breached.[70] Similarly, in Australia trying children in adult courts could be argued to be in breach of the United Nations Convention on the Right of the Child.[71] 35. Apart from the problems of the criminal trial itself there is also the fact that real punitive sanctions are available for children. For instance, section 282 of the Criminal Code of Western Australia provides for long term detention of children found guilty of wilful murder. Western Australia also provides for mandatory sentencing of juveniles convicted of repeated burglary.[72] This latter provision represents a recent addition to the Criminal Code, which shows that in an ever more punitive climate there may be an increasing need for the protection that the doli incapax presumption provides. Doli incapax was unfair in practice 36. The second group of criticisms concern the arguments that the presumption of doli incapax is unfair in practice because in some cases it may be impossible or difficult for the prosecution to bring the evidence necessary to rebut the presumption. This means that some children who ought to be prosecuted avoid conviction.[73] As a result it is claimed that "[t]he message the doli incapax rule sends to the community is not one of justice, nor is it one of responsibility".[74] 37. This argument seems to ignore the fundamental nature of the presumption and the reality in practice. The presumption is based on a fundamental principle of criminal law, that a person should not be punished unless they freely chose to do something which they knew to be wrong. In the words of Hart: "unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him."[75] Clearly, children do not have this ability from birth but develop it gradually as they grow up. As noted by Justice "there is no single age at which it can be said that physical and mental development have reached maturity."[76] The doli incapax rule takes account of the fact that the path of development of the young is not steady and consistent and is therefore flexible; it is presumed that the child is incapable but it can be rebutted by proof that the child was able to understand the wrongfulness of the act. As a result conviction is only hindered when there is insufficient proof that the child knew that what they had done was wrong. 38. In requiring such proof it could be argued that the presumption makes prosecution more difficult, but that is exactly the purpose of the rule, it creates "a due process safeguard, a hurdle to be jumped by the prosecution."[77] The prosecution are therefore forced to investigate whether the child really was developed enough to be criminally responsible and not just assume this to be the case. This is in line with Article 37(b) of the United Nations Convention on the Rights of the Child from 1989, which states that the criminal law should only be used as a last resort. 39. Furthermore, there appears to be no empirical evidence in Australia or England to support the claim that the presumption does cause real difficulties in prosecuting children. As early as 18[83] it was commented that the presumption was practically inoperative[78] and little seems to have changed since then. In the United Kingdom, when asked in Parliament what research supported this assertion the government admitted that there were no empirical data available on the operation of the presumption of doli incapax.[79] In the Queensland Parliament it was noted that "[t]here is not a shred of evidence before this Parliament that this is causing a difficulty in the prosecution of child offenders."[80] The Association of Childrens Welfare Agencies have similarly stated that: "There are no statistics on the number of times doli incapax is argued in New South Wales Courts, successfully or otherwise."[81] Even more concerning is the comment that in Victoria in rural and regional areas many practitioners are not even familiar with the principle.[82] 40. The argument that the presumption is hindering prosecution is not convincing and in fact all indicators suggest that the contrary is the case. It is often stated that not much evidence is needed to rebut the presumption.83 Furthermore, perhaps the most common factor used to rebut the presumption is what the child says when interviewed by the police and it has been found in Victoria,[84] in New South Wales[85] and in England[86] that children confess to their crimes much more readily than adults. In the face of evidence that children readily confess to their crimes and the power imbalance between the police and the child, the claim that the police find it difficult to gather evidence to rebut the presumption does seem far fetched.[87] Summary 41. The criticisms levelled at the presumption of doli incapax do not convince of the need for any weakening of the protection it provides. Even though the presumption took root at a time when the criminal law was more draconian there remains a need for some protection. The system for dealing with young offenders remains embedded in the criminal justice system with its condemnatory nature and possibility of severe penalties. It is also by no means clear that today children more readily understand the wrongfulness of criminal acts than in earlier times. Indeed, there are many indicators that conditions in modern society may be making it more difficult for children to learn what is right and wrong than is commonly thought. 42. The presumption of doli incapax is a recognition of the fundamental nature of childhood, that children are not naturally equipped with an ability to understand the wrongfulness of criminal acts but develop this gradually, at different and inconsistent rates. The presumption is flexible and practical. The assumption of absolute incapacity for children under ten is an expression of the conviction that they are not ever developed enough to be held criminally responsible. For children aged ten but not yet fourteen, it is acknowledged that some may be able to form a guilty mind. The presumption of incapacity can therefore be rebutted if there is proof to the contrary. This affords protection to those who are not developed enough to be criminally responsible while at the same time allowing the conviction of those who are able to understand the wrongfulness of what they have done. 43. The claim that the presumption is stopping children from being dealt with by the courts must also be put into perspective. Firstly, the rebuttable nature of the presumption should be borne in mind and, secondly, there is no evidence that the presumption is in fact hindering prosecutions. The objections to the presumption seem to be based on a misunderstanding about the nature of the presumption and about its practical application. It may slow down proceedings in requiring the prosecution to consider the development of the child, but it does not stop prosecution if there is proof of understanding. The presumption is therefore one of the possible methods of ensuring that Australian law complies with Article 37 of the United Nations Convention on the Rights of the Child which requires that criminal proceedings should only be used as a last resort. It is also in line with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (1985): The modern approach would be 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 behaviour.[88] 44. The criticisms of the presumption of doli incapax do not convince of a need for change to the presumption, rather, they persuade of a need to take the presumption seriously. The presumption exists because children are dealt with in a criminal court with the possibility of punitive sanctions. In such an environment and due to the nature of childhood, the presumption allows children what they deserve: protection if they are unable to understand the wrongfulness of their actions and conviction if they are so able. Notes [1] S18(1) Criminal Code (Tas), effective 1.2.2000; s71(1) Children and Young Persons Act 1999 (ACT), effective 1.5.2000. The United Nations Committee on the Rights of the Child has, however, noted in its Concluding Observations of the Committee on the Rights of the Child: Australia from 10.10.1997 that it considers the age of ten to be too low for the minimum age of criminal responsibility, CRC/C/15/Add.79, para 29. It should also be noted that in 2003 Hong Kong raised the age of absolute criminal incapacity from seven to ten in s3 of the Juvenile Offenders Ordinance. This was based on the Law Reform Commission of Hong Kong's Report on the Age of Criminal Responsibility in Hong Kong (2000), which can be found at http://www.info.gov.hk/hkreform/reports/rage-e.doc. [2] Commonwealth: s7. [2] Criminal Code Act 1995; ACT: s71(2) Children and Young Persons Act 1999; NT: s38(2) Criminal Code; NSW: common law; Qld: s29(2) Criminal Code; SA: common law; Tas: s18(2) Criminal Code; Vic: common law; WA: s29, second para Criminal Code. [3] (1919) 8 [3] JP 136. [4] For discussion of whether the term meant understanding of legal or moral wrongfulness, see for instance Glanville Williams, Criminal Law, The General Part, 2nd ed (London: Stevens, 1961), 817-818; see also Thomas Crofts, The Criminal Responsibility of Children (Aldershot: Ashgate, 2002), 42-45. [5] For the case of insanity see for instance Stapleton v The Queen (1952) 86 CLR 356. [6] This is the requirement at common law and in the Commonwealth Criminal Code. Some of the statutory provisions, however, speak of the capacity to know (ACT, NT, Qld, Tas, WA). [7] R v M (1977) 16 SASR 589 and R v Whitty (1993) 66 A Crim R 462. [8] R v M [1977] SASR 589 at 591. [9] UK Hansard, House of Commons (1 [9] March 1998), 832. [10] Glanville Williams, above n 4 at 814. [11] Glanville Williams, "The Criminal Responsibility of Children" [1954] Criminal Law Review 498. [12] Hale, Mathew, History of the Pleas of the Crown, vol 1 (1736), 27. [13] C v DPP [1995] 2 All Er 43 at 62. For further details and analysis of the evidence employed to rebut the presumption of doli incapax see Thomas Crofts, "Rebutting the presumption of doli incapax" 62 (1998) Journal of Criminal Law 185-193. [14] C v DPP [1995] 2 All ER 43 at 62. [15] See B v R (1958) 44 Cr App R 1 at 3. [16] C v DPP [1995] 2 All ER 43 at 62. [17] See for instance JM v Runeckles (1984) 79 Cr App R 255, where admission of the criminal act was taken as proof of understanding. See, however, IPH v Chief Constable of South Wales [1987] Crim LR 42, where admission of the act was seen as showing understanding of the consequences of the act but not that the act was wrong. Also T v DPP [1989] Crim LR 498, where denial was seen as showing that the child understood the wrongfulness of the act. Regarding the relevance of admission of past offences, see R v M [1977] SASR 589 at 594. [18] L v DPP [1992] 2 Cr App R 501. [19] JBH and JH v O'Connell [1981] Crim LR 632. [20] Sheldon [1996] 2 Cr App R 50. [21] B and A (1979) 69 Cr App R 362. [22] Ex parte N [1959] Crim LR 523. [23] B and A (1979) 60 Cr App R 362; see also R v M [1977] SASR 589 at 594-595. [24] Michael Dalton, Countrey Justice (1619), 223-224. [25] William Blackstone, Commentaries on the Laws of England, Book 4 (1769), 23. [26] Laws of King Ine 7.2 and Laws of King Aethelstan (Council of Greatanlea) both reproduced in Wiley Sanders (ed), Juvenile Offenders for a Thousand Years: Selected readings from Anglo-Saxon Times to 1900 (Chapel Hill: University of North Carolina Press, 1970), 3. [27] James Fitzjames Stephens, A History of the Law of England, vol 2 (London: Macmillan, 1883), 98. [28] Glanville Williams, above n 11 at 496. [29] Home Office, Report of the Committee on Children and Young Persons, Cmnd 1191 (1960), chaired by Viscount Ingelby. Although it must be noted that the Ingelby Committee did suggest this as part of a package of reforms designed to introduce a welfare system and so remove children from the criminal justice system. [30] C v DPP [1995] 1 Cr App R 118. [31] Michael Freeman, "The James Bulger tragedy: Childish Innocence and the Construction of Guilt", in: Anne McGillivary (ed), Governing Childhood (Aldershot: Dartmouth, 1997), 123. [32] The following comments are from C v DPP [1995] 2 All ER 43. Lord Bridge of Harwich: "In today's social conditions the operation of the presumption that children between the ages of ten and fourteen are doli incapax may give rise to anomalies or even absurdities. But how best to remedy this state of affairs can, in my view, only be considered in the context of wider issues of social policy respecting the treatment of delinquency in this age group" (at 46). Lord Lowry: "This is a classic case for parliamentary investigation, deliberation and legislation" (at 64). Lord Jauncey: " I add my voice to those critics and express the hope that parliament may once again look at the presumption" (at 45). Lord Ackner: "I have, however, considerable sympathy with the criticisms expressed by laws J and would hope that parliament will provide and early opportunity for its review" (at 46). [33] Home Office, Tackling Youth Crime: A Consultation Paper (1997), para 15. [34] See for instance, Michael Grove, "Are you old enough? In defence of doli incapax", (1996) Law Institute of Victoria Journal 38; Patricia Blazey-Ayoub, "Doli Incapax", (1996) 20 Criminal Law Journal 34. [35] Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process (1997), ALRC Report No 84, Recommendation 195. [36] Criminal Code Amendment Bill, Queensland Hansard, (18 August 1999), 3178-3179. [37] New South Wales Attorney General's Criminal law Review Division, A Review of the Law on the Age of Criminal Responsibility of Children (2000). [38] Patricia Blazey-Ayoub, above n 34 at 37, also notes that: "Of concern is the fact that with questions of law and order prominent on the agenda of major political parties, the presumption may be abolished, before it can be properly considered by the High Court." [39] Such a process has been noted in regard to the Divisional Courts decision in C v DPP. Hay calls this the judicial internalisation of the discourse of moral panic. This is explained as the judiciary feeling compelled to act to restore authority and avert criticism of the justice system when the media have caused a moral panic over a certain social issue. Colin Hay, "Mobilization through Interpellation: James Bulger, Juvenile Crime and the Construction of Moral Panic" (1994) 4 Social and Legal Studies 200. [40] Australian Law Reform Commission, above n 33 at 18.3. [41] Home Office, Tackling Youth Crime: A Consultation Paper (1997), para 8. [42] Mr Paff, Queensland Hansard, (18 August 1999), 3179. [43] C v DPP [1995] 2 All ER [43] at 57. [44] Association of Child Welfare Agencies, Newsletter 2000. . [45] John Graham, Benjamin Bowling, Young People and Crime (1995), Home Office Research Study 145, 39-42. [46] A similar point was raised regarding the United Kingdom by Baroness Mallalieu, UK Hansard, House of Lords (19 March 1998), 834. [47] New South Wales Attorny General's Criminal Law Review Division, A Review of the Law on the Age of Criminal Responsibility (2000), Issue 1. [48] Cited in Trish Luker, Legal Information Access Centre, "The Age of Criminal Responsibility" [1999] HotTopics 3. [49] Hartmut von Henting, Das allmähliche Verschwinden der Wirklichkeit (Wien: Hanser, 1984). [50] [1996] 2 Cr App R [50] at 54. [51] Michael Freeman, above n 31 at 120. [52] [1996] Neue Zeitschrift für Strafrecht 601. [53] Ibid at 602. [54] This was acknowledged by the Ingelby Committee when it discussed reforming the presumption of doli incapax, Home Office, Report of the Committee on Children and Young Persons, Cmnd 1191, 1960, para 81. [55] Gladstone Committee, Parliamentary Papers, vol 56 (1895), 15. For a modern debate on the link between lack of parental discipline of the young and delinquency see for instance, Michael Gottfredson and Travis Hirschi, A General Theory of Crime (Stanford: Stanford University Press, 1990). [56] See for instance, Home Office, No More Excuses (1997), para 1.5. [57] McGuire J., cited in Queensland Hansard (4 October 2000), 3453. [58] Ibid at 2455. [59] Jeffrey Blustein, "Adolescence and Criminal Responsibility" (1985) 2 International Journal of Applied Philosophy 12. [60] Louis Schetzer, Director of National Children's and Youth Law Centre, The Law Report, ABC Radio National, 07.03.2000. [61] Quoted in Richard Phillips, "Child psychiatrist discusses Supreme Court manslaughter trial of young boy in Australia" World Socialist Web Site, 11 January 2000. < http://www.wsws.org/articles/2000/jan2000/bwin-j11.shtml>. [62] Home Office, Tackling Youth Crime (1997), para 9. Also Mr Springborg, Queensland Hansard, (4 October 2000), 3456. [63] See for instance, Dr Prenzler, Queensland Hansard (4 October 2000), 3455. [64] Jack Straw, UK Hansard, House of Commons (27 November 1997), 1101. [65] The West Australian, 14 June 2003. [66] Jeremy Blustein, above n 59 at 14. [67] Justice, Children and Homicide: appropriate measures for juveniles in murder and manslaughter cases (1996), para 4.3. [68] Australian Law Reform Commission, above n 33 at 18.184. [69] Michael Freeman, above n 31 at 120. [70] T v UK (application number 24724/94) and V v UK (application number 24888/94), judgement delivered 16th December 1999, judgement available at . For the implications of this case for Australia, see Gail Hubble, "Juvenile defendants: taking the human rights of children seriously", (2000) AltLJ 116 at 119-120. [71] The UN Committee on the Rights of the Child has already noted with concern that children can be tried in adult courts in certain circumstances in the UK. Concluding Observations of the Committee on the Rights of the Child: United Kingdom and Northern Ireland (2002), CRC/C/15/Add.188, para 60(b). It recommended that the UK ensures that children are not tried as adults (para 62(c)). Such concerns could also be raised about Australia. [72] Section 401(4)(b) Criminal Code (WA). [73] For instance Ms Barbara Holborow, former children's magistrate, claimed that doli incapax is a myth that has helped children escape guilty verdicts. Refered to in Linda Doherty, "Children still presumed to be innocent - at least until age 14", Sydney Morning Herald 12.02.2001. [74] Mr Pfaff, Queensland Hansard (18 August 1999), 3179. [75] H.L.A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968), 181. [76] Justice, above n 67 at 3.12. [77] Nicola Padfield, "No More Excuses" (1998) 148 New Law Journal 561. [78] James Fitzpatrick Stephen, above n 27 at 98. [79] House of Commons Standing Committee B on the Crime and Disorder Bill, ninth sitting, clause 31 (12 May 1998), col 332. [80] Mr Foley, Attorney-General and Minister for Justice and Minister for the Arts, Queensland Hansard (4 October, 2000), 3453. [81] Association of Child Welfare Agencies, Newsletter 2000. . [82] L. Schetzer, Director and Principle Solicitor, National Children's and Youth law Centre, witness before the Law Reform Committee, Inquiry into legal services in rural Victoria, in Wodonga, 13 June 2000. Available at . [83] For example, Andrew West, (1998) 19 Queensland Lawyer 56; Michale Grove, above n 34 at 41; Mr Foley, Queensland Hansard (4 October 2000), 3452; see also, C v DPP [1995] 2 All ER 43 at 63; CC v DPP [1996] 2 Cr App R 375. [84] L. Schetzer above n 82. [85] Judy Cashmore, "Should the age of criminal responsibility be lowered in NSW?", On Line Opinion 15/07/00. . [86] Roger Evans, The Conduct of Police Interviews with Juveniles, The Royal Commission on Criminal Justice, Research Study Number 8 (1993), 29. [87] See Sue Bandalli, "Abolition of the Presumption of Doli Incapax and the Criminalisation of Children" (1998) 37 Howard Journal of Criminal Justice 117. [88] Commentary on rule 4.1. .