Should the age of criminal responsibility be lowered in NSW?

In February 2000, the Criminal Law Review Division (CLRD) of the NSW Attorney-General’s Department published a discussion paper, A Review of the Law on the Age of Criminal Responsibility of Children. The discussion paper outlined several proposals to reform the law in relation to doli incapax in NSW. The Australian Section of Defence for Children International (DCI-Australia) applied for and received a small grant from the Law Foundation of NSW to prepare a submission. The focus of this submission is outlined below.

Doli incapax refers to the presumption that children below 14 are incapable of committing a crime because they are deemed to lack mens rea or the intent to commit a crime. At common law, children over seven (where legislation has not raised that age) can be charged with a crime but if they are under 14, the onus is on the prosecution to prove that the child was aware at the time that what he or she was doing was seriously wrong, as opposed to merely ‘naughty’ or ‘mischievous’. In practice, this generally means that children are asked by the police or the prosecution whether they knew whether what they did was seriously wrong.

It appears, however, that the defence of doli incapax is often not raised by defence lawyers, especially in rural and regional areas, but there are no figures to indicate how often it is raised nor how often it is successful. However, it is only applicable where the child pleads not guilty and 80-90% of children plead guilty. There is no evidence therefore that the existence of the presumption prevents most children from being held criminally liable for their actions in New South Wales.

Recently, here in Australia and elsewhere, there have been moves to allow more punitive sanctions against children who commit offences, and there has been some debate about the need for doli incapax and the possibility of reducing the age of the presumption to 12. This debate was given some impetus in New South Wales by a high profile case in which an 11-year-old was prosecuted for the manslaughter of a younger child in 1999. This case attracted considerable media attention and stimulated community debate about the appropriateness of charging a child of this age with manslaughter. In the course of this debate it was suggested, as it has been in the UK and elsewhere, that doli incapax may have outlived its usefulness because children today are more able to distinguish between right and wrong than their earlier counterparts by virtue of their advanced education and access to information technology.

Whether or not this is the case was one of the key questions CLRD asked for comment on as part of their review of doli incapax. DCI-Australia’s submission reviews the psychological literature relating to the moral development of children and adolescents and concludes that there is no reliable evidence to justify this proposition. While children clearly learn the difference between right and wrong by observation, by learning from the consequences of their actions and by the model provided by others, especially their parents, peers and teachers, there is no good evidence that formal education or exposure to information technology is effective in promoting moral development. Indeed, there is some evidence that exposure to some of aspects of the modern media may have a negative rather than a positive effect on moral development. For example, one study found that children who frequently watched violent television programs were behind their peers in moral development. An analysis of television programs found that violence on television is often shown as a quick-fix solution with few serious consequences.

In order to be fair in holding children criminally responsible for their actions, it is important that they not only know right from wrong but also that they are able to understand and foresee the consequences of their actions, and that they have control over their actions at the time. While the research does indicate that many children are capable of moral reasoning and decision-making capabilities by the age of 12, it is clear that other capacities that affect their understanding of the risks and likely consequences of their behaviour are still developing until mid-to-later adolescence. For example, children’s sense of time and susceptibility to peer influence, and their impulsiveness and risk-taking, may over-ride their careful assessment of the options and the consequences.

It therefore makes sense to provide a period of time in early adolescence to take account of the fact that children develop at different rates. There are, of course, difficulties in choosing any particular age as a cut-off point (as the law requires). DCI-Australia’s submission argued against the proposed changes on the basis that there is no reliable evidence that the proposed changes to doli incapax would be in the best interests of children and would provide better protection for the community. DCI-Australia considers that increased pro-active measures, early intervention and diverting children from the juvenile justice system are likely to be more effective in protecting the rights of children and the community.