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Should the Age of Criminal Responsibility in Australia Be Ch

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Scott Predny

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Transcript of Should the Age of Criminal Responsibility in Australia Be Ch

Should Australia Change the Age of Criminal Responsibility?

Should the Age of Criminal Responsibility be Raised or Lowered?
Social Arguments
United Kingdom
Legal Arguments:

The age of criminal responsibility in the UK subjects those children who are accused of crimes to no assumption that they must be examined as capable of the crime before the elements of the crime can be proven. The current procedures in place could be damaging to children and be a particularly negative experience that could lead to further behavioral problems and also re-offending.

Child development:

The way in which children are treated by the legal system in relation to criminal responsibility has been proven to be psychologically damaging - in the case of Jon Venables and Robert Thompson it was shown that the way in which the trial was conducted was detrimental to their psychological welfare. While children are now given some considerations during these trials for homicide, they are still processed in an adult court room, and there is no consideration given to the fact that they may not be criminally responsible for the crime due to a lack of mental capacity to understand.

International Standards:

Committee on the Rights of the Child - Article 3 Paragraph 1 states that the best interests of the child are considered paramount. Should cases against children concerning serious crimes continue to be heard in the Crown Court, there is a strong case to say that this is not a paramount concern of the British Legal system. It would also seem that being deemed criminally responsible from the age of 10 and being held to such crimes committed during this age is also out of sync with the aims of the Convention on the Rights of the Child.
Iran
Australia
Mexico


The legal framework in Mexico enables children from the age of 6 years old in some states to be held criminally responsible for their actions, although, in most states throughout Mexico, the age of criminal responsibility is 11 years (Law Library of Congress, 2007).

The federal ‘Law on the Protection of the Rights of Children and Adolescents provides guarantees for children accused of having infringed criminal laws’ (Law Library of Congress, 2007). In addition to this, Mexico takes particular measures when dealing minors who have been found to commit a criminal act under the law, in order to uphold the rights of the child. These measures involve interventions such as ‘counselling, placement in custodial homes, educational training programs as well as rehabilitating measures’ (law Library of Congress, 2007).

In terms of protecting the rights of children who have become involved in the criminal justice system, the rights of the child are protected at both a State and Federal level (Law Library of Congress, 2007). Mexico’s framework for protecting the rights of the child is informed by a range of international treaties for which Mexico is a signatory to. The main international treaty Mexico adheres to which relates to children and the rights of the child, is the United Nations Convention on the Rights of the Child (law Library of Congress, 2007).

Mexican Federal Law and legislation adheres to international standards in terms of acknowledging a legal and ethical responsibility to protect the rights of the child. In terms of whether this legislation reaches the ground level and supports children who have been found to be criminally responsible for an illegal act is a complex issue.


Canada
Legal Arguments:

The age of criminal responsibility in Canada is slightly higher than that of Australia and operates on the presumption of Diminished Moral Blameworthiness. The presumption has seen itself codified in the Youth Criminal Justice Act. This has allowed for a seamless test to be implemented and determine whether the prosecution can now rebut the presumption. This has resulted in a fair process for children keeping their vulnerability in mind. The presumption is believed to mitigate many negative impacts which come with criminal behaviour.

Child development:

It is well established children are vulnerable and not fully developed by the age of 12. Therefore the courts recognise the need to take this into account when a child is charged with a criminal offence. This is because the effects of committing the crime, going through the judicial system and then the possibility of being charged can all have a detrimental impact on a child and his or her future. The aim is to not set a child up for a future of crime. Therefore pursuant to section 35 of the Youth Criminal Justice Act the courts must take into consideration the child's welfare amongst all the other requirements.

International Standards:

On an international scale Canada has signed a convention with the United Nations thereby requiring courts to respect the vulnerability of a child and to consider the best interest of the child. Taking these issues into consideration Parliament gave the Youth Criminal Justice Act a face lift and amended many of its sections to include these key principles.

Now when children are brought before the court their age, mental state, development stage, welfare, protection, privacy and many more factors must be taken into consideration. Canada has now been brought in line with many other countries when it comes to children and the criminal justice system.


Legal Arguments
Child Development Arguments
International Convention and Human Rights Arguments
UK
The minimum age of criminal responsibility is 10 years of age

MEXICO
Minimum age of criminal responsibility is 6*-12yrs (most states being 12yrs)
IRAN
Australia

DOLI INCAPAX
SOCIAL ISSUES
DEVELOPMENTAL ISSUES
HUMAN RIGHTS
A LOOK AROUND THE WORLD
Doli Incapax
Social Issues
Developmental issues
Human Rights Issues

Canada
The minimum age of criminal responsibility in Canada is 12


The notion of 'Doli Incapax' does not apply in relation to Mexico. While the minimum age of criminal responsibility is 6-12years old in Mexico, most Mexican states enforce the age of 12 as the minimum.
The minimum age of criminal responsibility in Iran is 9 lunar years (8 years 9 months) for girls and 15 lunar years (14 years 7 months) for boys.

United Kingdom
Previously, the Doli Incapax principle was an English common law principle, however this assumption was abolished by the Crime and Disorder Act 1998.
Section 34 abolished the principle to be applied to children between 10 and 14:

Section 34 Abolition of rebuttable presumption that a child is doli incapax.
"The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished. "

UK
The fact that children could not be held responsible for any crime they commit was a centuries-old English principle.
Thomas Crofts notes that the principle can be traced back to the reign of King Edward III, between 1327 and 1377, as noted by Blackstone.
Reniger v Fogossa (1552) 2 Plowden 19, 75 ER:
“As is an infant of tender age kills a man, it shall not be felony, because he has not dis[cre]tion nor understanding; for which reason the law imputes it to his ignorance, which is natural to every one at that age, an so there is no fault in him; and therefore t is called involuntary ignorance, for he cannot be wise nor prudent if he would, but he is ignorant by compulsion, and therefore should be excused.”
Guilty knowledge of committing the act and knowing that it was wrong ‘must be proved by express evidence, and cannot in any case be presumed from the mere commission of the act.’ (Smith [1845] 9 JP 682)

v

Secretary of State for the Home Department ex parte Venables and Thompson, R v. [1997] UKHL 25
This case is more widely known as the James Bulger case, identified by the victim.This case concerned Jon Venables and Robert Thompson, both aged 10 at the time of the crime. Both children were charged with the murder of 2 year old James Bulger on 24 November 1993. The case was very high profile at the time, and caused international shock that two children were guilty of such an offence. Venables and Thompson both abducted James, walking him approximately two miles during which they tortured him, and then finally taking him to the site of a railway track where they beat him to death. They left his body across the tracks, and as a result his body was decapitated as it was run over by a train. Both Venables and Thompson were found to be guilty of the crime. Their case was appealed to the House of Lords where the appeal was rejected. Both children were tried in the adult courts, which is standard procedure when a child is charged with a serious offence such as murder. Each boy served approximately 8 years for the crime.
This case was shocking not only due to the severity and grisly details of the way in which James was tortured and subsequently murders, but also that Venables and Thompson were so young when they committed the crime.
Morland J (trial judge): “This child of 2 was taken from his mother on a journey of over two miles and then, on the railway line, was battered to death without mercy and then his body was placed across the railway line so that his body would be run over by a train in an attempt to conceal his murder. In my judgment, your conduct was both cunning and very wicked.”
BIBLIOGRAPHY
Australia
Articles/Books
Cipriani, Don, Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective (Ashgate Publishing, 2009)

Human Rights Watch, Codifying Repression: An Assessment of Iran’s New Penal Code (2012)

Mousavi, Shohreh, Rohimi Shapiee and Rohaida Nordin (2012) ‘Child Offenders in Iran: Legal Analysis on the Age of Criminal Responsibility and Sentencing’ 4 International Journal of West Asian Studies 31

Nordin, R., S. Mousavi and R. Shapiee, ‘The Minimum Age of Criminal Responsibility of Children in International and Iranian Law: A Comparative Study’ (2012) 7 The Social Sciences 797

Legislation

Islamic Penal Code of the Islamic Republic of Iran (1998)

Treaties

Convention on the Rights of Child, opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 2 September 1990)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS171 (entered into force 23 March 1976)

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) GA Dec 40/33, UN GAOR, 40th sess, 96th plen mtg, Supp No 53, UN Doc A/40/53 (29 November 1985)

Other

Baharan, Bijan, Iran/Death Penalty: A State Terror Policy, (April 2009) International Federation for Human Rights <www.fidh.org/IMG/pdf/Report_Iran_2010_En-2.pdf‎>

Bahreini, Raha, Execution of Children and Iran’s New Penal Code, Justice for Iran <http://justiceforiran.org/articles/english-execution-of-children-and-iran%E2%80%99s-new-penal-code-by-raha-bahreini-2/?lang=en>

Committee on the Rights of the Child, General Comment No. 10: Children’s Rights in juvenile justice, CRC/C/GC/10, 25 Apr 2007

Nayyeri, Mohammad, Criminal Responsibility of Children in the Islamic Republic of Iran’s New Penal Code (22 February 2012) Iran Human Rights Documentation Centre <<http://www.iranhrdc.org/english/publications/legal-commentary/1000000054-criminal-responsibility-of-children-in-the-islamic-republic-of-irans-new-penal-code.html#.Ult-gtJmh8E>

Nayyeri, Mohammad, Gender Inequality and Discrimination: The Case of Iranian Women (8 March 2013) Iran Human Rights Documentation Centre <http://iranhrdc.org/english/publications/legal-commentary/1000000261-gender-inequality-and-discrimination-the-case-of-iranian-women.html#2>


Canada
Articles/Books

Barron, Christie; Lacombe, Dany 'Moral panic and the Nasty Girl' (1 February 2005) 42 (1) The Canadian Review of Sociology and Anthropology 51

Covell, Katherine and R Brian Howe (1996) 'Public Attitudes and Juvenile Justice in Canada' 4 International Journal of Children's Rights 345
Godfrey, Rebecca Under the Bridge Publisher (Simon & Schuster 2005)
Hutchinson, Terry C. & Smandych, Russell 'Juvenile justice in Queensland and Canada: New Legislation Reflecting New Directions' (2005) 22(2) Australasian Canadian Studies 101

Lesched, Aland D, Wilson, W, & Kaye, Susan 'Criminal Liability of Children under Twelve: A Problem for Child Welfare, Juvenile Justice or Both' (1988) 30 Canadian J. Criminology 17

McLeod, Jill L 'Doli Incapax: The Forgotten Presumption in Juvenile Court Trials' (1980) 3 Can.J. Fam. L 251
Rikhof, Joseph 'Child Soldiers: Should they be Punished?' (2009) CBA National Military Law Section Newsletter 1

Wilson, Larry C. 'Changes to Federal Jurisdiction Over Young Offenders: The Provincial Response' (1989 -1990) 8 Can. J. Fam. L 303
Thomas J. Dalby 'Criminal Liability in Children' (1985) 27(2) Canadian Journal of Criminology 137

Cases

R v DB [2008] 2 SCR 3
R v Ellard [2003] BCCA 68
R v Ellard [2005] BCSC 1087
R V Ellard [2008] BCCA 341

Legislation

Criminal Code of Canada (1985)
Youth Criminal Justice Act (2002)


Other

Armstrong, Jane and Makin, Kirk 'Supreme Court Restores Ellard Conviction in Virk Case' The Globe and Mail (Toronto) (online), 12 June 2009 < http://www.theglobeandmail.com/news/national/supreme-court-restores-ellard- conviction-in-virk-case/article1179394/>
'Top Court rules Crown Must Prove Convicted Youth Deserve Adult Punishment' CBCNews Canada (online), 16 May 2008 < http://www.cbc.ca/news/canada/top-court-rules-crown- must-prove-convicted-youth-deserve-adult-punishment-1.752357>
Youth Criminal Justice Act Amendments Bill (C -4) 2010 Canada
Not Criminal Responsible Reform Act Bill (C -54) 2013 Canada

UK
Books
Crofts, Thomas, The Criminal Responsibility of Children and Young Persons (Ashgate publishing Compmany, 2002)

Newspaper articles

Taylor, Anna Louise, 'How should young killers be treated?' (News UK 2011)

Verkaik, Robert, 'Adult court trials harm children, says QC' (The Independent) *i needed to check the web page for the date of this article but as I don't have any working Internet I can't sorry

Cases
Secretary of State for the Home Department ex parte Venables and Thompson, R v. (1997) UKHL 25
Reniger v Fogossa (1552) 2 Plowden 19,75 ER
Gorrie (1919) 83 JP 136
Smith (1845) 9 JP 682

Legislation

Crime and disorder Act 1998 (UK)

Magistrates Court Act 1980 (UK)

Other

Hill, Jo, 'Are children who commit violent acts against other children born evil? An evaluation through case studies' (Dissertation, University of Huddersfield, May 2011)


Mexico
Law Library of Congress.(2007). Children’s Rights: International and national Laws and Practices. Mexico: Law Library Congress.

Special Protections Progress and Disparity.(1997). How old is enough. UNICEF


Iran
Conclusion
In the UK, there is an issue with procedure and children relating to criminal charges. Under s 24 of the Magistrates’ Court Act 1980, children who are charged with a crime such as homicide are to have their trial heard in the Crown Court (an adult court, which is the equivalent of the Supreme Court in Australia). However, in last two decades changes have been made in the way these trials are conducted:
‘"When a person under 18 is tried at a Crown Court, special provisions are made to make the proceedings less intimidating. For example, gowns and wigs are not worn, frequent breaks are taken and the defendant is allowed to have a parent in the dock with them." (Robert Verkaik, ‘Adult court trials harm children, says QC’, The Independent Online)
In the case of Venables and Thompson, they two were tried in the Crown Court, however, the trial was run as if they were adults accused of the crime. As the trial was held in an adult court, the case was later investigated by the European Court of Human Rights and it was found that both children were not given a fair trial due to the circumstances.
United Kingdom
The Bulger Case
United Kingdom
There are developmental issues in relation to the way children are treated in the UK in respect to their criminal responsibility.
The abolition of the assumption presumes that children all develop at the same rate, not taking into account that children are as diverse as adults and their development is varied.
‘…while children may generally appreciate the wrongfulness of certain acts (such as theft) by the age of ten it is not guaranteed that all children will have this understanding at that age, nor is it guaranteed that children will generally understand the wrongfulness of all criminal acts.’ (Crofts, 84)
There is also the issue of those children being tried in the Crown Court when accused of serious crimes such as homicide. This experience can cause psychological trauma and be emotionally draining on children.
United Kingdom
The UK does not have a principle to allow for children who have been taught criminal behaviour. Therefore, this is not taken into account during the trial. The prosecution merely has to prove the necessary elements of that particular crime and that the child is responsible. It is at the Judge's discretion during sentencing as to what punishment is handed down and whether or not any factors such as being impressionable, persuaded or taught such behaviours are taken into consideration.
United Kingdom
One issue in relation to the UK is that should a particular case concerning a child become high profile (as in the case of Jon Venables and Robert Thompson) there is no anonymity or privacy with regard to the proceedings. Children are presumed to be capable of criminal acts from the age of 10 and are put through most of the same procedures as adults in their position with minimal changes to how these proceedings are conducted to allow for the fact that they are children.
Canada
The Canadian Judicial system never adopted the doctrine of Doli Incapax, even though it was a British doctrine.

This was true even when the age of criminal responsibility was as low as 7 before the increase in 1984.

Instead....
Canada
the Canadian Judicial system throughout history has held the presumption of Diminished Moral Blameworthiness and Culpability for young persons. This has now been codified within the Youth Criminal Justice Act 2002 section 3(1)(b).

The presumption is children due to their age, have heightened vulnerability, less maturity and reduced capacity for moral judgement.
Canada
Pursuant to section 3(1)(b) of the Youth Criminal Justice Act of Canada the court must take into account the following:

rehabilitation and reintegration
fair and proportionate accountability that is consistent with the the child's reduced level of maturity
procedural protection to ensure young persons are treated fairly and their rights are protected
intervention must reinforce the link between the crime and the consequence
Canada
Unlike Australia where the Prosecution must rebut the presumption, up until 2008 in Canada the young offender had prove the presumption was not rebutable.

In R v DB [2008] 2 SCR 3 it was argued the fact the young offender must demonstrate the presumption is not rebuttal was unconstitutional.

This is because unlike Australia, Canada has adopted a Charter of Rights and Freedoms. The Supreme Court of Canada in this case did conclude the requirement as unconstitutional, because it deprived young offenders of the presumption.

In 2012 the Youth Criminal Justice Act was amended, now requiring the prosecution to rebut the presumption of Diminished Moral Blameworthiness.
Canada
Similar to the UK, Canada has acknowledged the severity of exposing children to the "criminal" world. The case of R v DB acknowledged children need to be protected from the media and more importantly from the stigma of a "criminal".

To counter such issues the Youth Criminal Justice Act has introduced the requirement of:
- publication bands
- protection of privacy
- right the wrong
- punishment should fit the crime

Secondly the Canadian Judicial system especially in regards to young persons prides itself on rehabilitating and reintegrating them back into society. This can only be facilitated with the above mentioned principles.
Canada
The courts and the legislation have acknowledged children are not fully developed at the age of 12 and therefore this needs to be taken into consideration when a young person is brought before the court.

To aid in this regard it is encouraged when a child is brought before the court and is "convicted" for an offence that the sentence should right the wrong and not "punish" the child. It is felt this will teach the child and provide a "meaning" to what has taken place.

Where possible it is encouraged the courts involve the entire family and the victim so as to provide the child with a view and impact of his or her actions on the community.

These principles are codified under the Youth Criminal Justice Act.
Canada
In Canada, there have been many instances where a child has had to face criminal charges in 'adult court'. The most famous case is the beating and murder of Reena Virk a 14 year old girl in 1997. The offenders were all girls aged 14 to 16. Of those girls two of them went on to be tried as an adult due to the seriousness of their actions in the commission of the crime. The two girls were believed to be the instigators and also continued to beat a lifeless Virk and left her for dead.

The decision to charge the two girls as adults did not come without any controversy. For one of the offenders (Kelly Ellard) it came with an abundance of 4 trials. Ellard argued the jury was not instructed correctly on one occasion. On another occasion it was regard to a publication ban. However it was held due to the heinous acts of these girls there would be no publication ban.

Since this case there has been much deliberation on how the two offenders were treated. Canada has recognised the vulnerability of young offenders both in the Virk case and others. In 2009 with the aid of Parliament, the Youth Criminal Justice Act, the United Nation's convention on the Rights of the Child and the R v DB case, the Canadian Judicial system recognised the human rights aspect of separating a young person's offence from that of an adult.

Canada has promised through its signature with the United Nations to protect the vulnerability of children amongst its borders because 'the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection." Furthermore Article 3 of the United Nation's Convention on the Rights of the Child promotes that ' the best interests of the child shall be a primary consideration."
Iran has never adopted a doli incapax presumption.

Before a girl aged above 8 years 9 months or a boy aged above 14 years 7 months can be found criminally responsible, he/she must also be found to be ‘of sound mind’ and to have willingly committed the criminal act or omission.
MINIMUM AGE OF CRIMINAL RESPONSIBILITY DEFINED
The minimum age of criminal responsibility is the 'minimum age below which children shall be presumed not to have the capacity to infringe the penal law'.

Article 40(3) Convention on the Rights of the Child
Iran
Iran’s minimum age of criminal responsibility is substantially lower than other legal age requirements. While people below the age of 18 are not considered responsible enough to vote, drive a car or obtain a passport, they can be deemed criminally responsible.


Gender Disparity in Iran
Iran inconsistently applies gender differences to different age requirements. A female is treated equally to a male in matters of voting, obtaining a passport or driving yet will be discriminated against by different treatment for her minimum age of marriage and criminal responsibility.

As outlined in the ‘Human Rights Issues’ topic, Iran’s gender differences concerning criminal responsibility offend international standards of gender equality, resulting in gender-based discrimination. These are serious social and human rights issues concerning Iran's age of criminal responsibility.
Iran
Iran’s age of criminal responsibility is set as the age of maturity under Shari’a law, which is equivalent to the age of religious puberty (8 years 9 months for girls and 14 years 7 months for boys). However puberty should not be used to define criminal responsibility (Nordin, Mousavi and Shapiee, at 803). The onset of puberty changes between individuals, depending merely on physical development. Reaching the age of puberty does not necessarily mean that a child’s reasoning is fully developed.

Rule 4 Beijing Rules recommends that a MACR should be defined considering emotional, mental and intellectual maturity. The age of criminal responsibility in Iran only takes into account physical changes and the age at which a child is able to perform religious duties, rather than considering intellectual maturity. This disregard for mental growth ignores contemporary international child development knowledge and standards

Furthermore, in equating the age of criminal responsibility with puberty, Iranian law discriminates against females, as the onset of puberty is earlier for females than males
Iran - Death Penalty for Children

International law prohibits the death penalty against anyone aged under 18. It is accepted internationally that people under 18 should not be subject to capital punishment nor life imprisonment (Article 37(a) Convention on the Rights of Child).

Yet Iran continues to allow the imposition of hudud (death penalty, flogging, stoning) and qisas (retribution) punishments on people under 18 years old. Children between the minimum age of criminal responsibility and 18 years old may be sentenced to death if it is proved that he/she understood the nature or prohibition of the committed crime. As a result, it is believed that Iran executes more people under the age of 18 than any other country - a clear violation of international children's rights.

QUICK FACTS:
Between 1999 and March 2009, 42 juvenile executions recorded in Iran
Between 2009 and 2011, 9 juvenile executions recorded in Iran
Iran - Gender Discrimination
Iran is a member state of the International Covenant on Civil and Political Rights, which prohibits gender distinctions and discrimination between individual rights (Articles 2(1) and 26).

Iran’s minimum ages of criminal responsibility produce differential gender treatment as girls are presumed criminally responsible 5 years and 10 months earlier than boys.

This means that qisas and hudood punishments (such as the death penalty, flogging or amputation) may be imposed on females aged over 8 years and 9 months, while boys will receive minor correctional measures until they are 14 years and 7 months old. For example, a boy under the age of criminal responsibility may merely be ordered to see a psychologist.

This clear gender discrimination against women is a serious violation of international human rights standards of gender equality.
Child Development Arguments

Iran equates the minimum age of criminal responsibility with puberty, without thought for mental growth. This disregards international recommendations that the minimum age should consider emotional, mental and intellectual maturity of children (Rule 4, Beijing Rules). In this sense, Australia's minimum age of 10 years may need to be re-considered in order to parallel current scientific and psychological research into the development of children's mental maturity.

International Human Rights Arguments

Iran's minimum age of criminal responsibility of 9 lunar years for girls and 15 lunar years for boys has been criticized as defying internationally accepted standards of children's rights. The Committee on the Rights of the Child have established that a minimum age of criminal responsibility below 12 years is not internationally acceptable. The Committee recommends to increase the minimum age to at least 12 and continue to increase it, stating that a minimum age of 14 to 16 is a 'commendable high level' (General Comment No 10, para 30). Therefore it is desirable for Iran to increase the minimum age of criminal responsibility of girls to at least 12 to be in line with international standards. Australia's minimum age of 10 years is also at an unacceptable level and international treaties suggest that it needs to be raised to at least 12 years.
However Iran must also remove gender distinctions in their minimum ages in order to protect its women from gender discrimination. The most acceptable approach on an international level is for Iran to set the single State-wide minimum age of 14 years for the presumption of criminal responsibility of children.


AGES OF CRIMINAL RESPONSIBILITY A COMPARISON
Mexico:
Mexico is a signatory on a number of international treaties relating to the rights and protection of children......


Among other relevant treaties and agreements, the following treaties with provisions that affect children, have entered into force in Mexico:
• International Covenant on Civil and Political Rights;3
• Convention on the Elimination of All Forms of Discrimination against Women;4
Convention on the Rights of the Child;5
• Hague Convention on the Civil Aspects of International Child Abduction;6
• Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption;7
• Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women;8
• Worst Forms of Child Labor Convention;9
• Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography;10
• Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict;11
• Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Transnational Organized Crime. 12

Law Library of Congress.(2007). Children’s Rights: International and national Laws and Practises. Mexico: Law Library Congress.
Mexico:
The Federal Law for the Treatment of Juvenile Offenders provides that children between eleven and eighteen years of age are subject to special courts for juvenile offenders.48

Juveniles are assisted by Guardianship Councils, which are responsible for the care and protection of juvenile defendants.49 Children that are accused of committing an infraction must be treated fairly and humanely.50 Ill treatment, incommunicado detention, psychological coercion or any other action impairing the child’s dignity or physical or mental integrity during legal proceedings are prohibited.51

The Law on the Protection of the Rights of Children and Adolescents provides that children shall be protected against any act that violates their constitutional guarantees or the rights recognized by law or by international treaties subscribed to by Mexico.52 This law also provides guarantees for children accused of having infringed criminal laws, including a presumption of innocence, prompt notification of any charges, prohibition of self incrimination, and prompt trial.53

Law Library of Congress.(2007). Children’s Rights: International and national Laws and Practices. Mexico: Law Library Congress.

Mexico:
Federal law allows for the possibility of alternative social intervention which may be more beneficial and appropriate to the child offenders developmental, educational or mental health needs...........

Minors who are found responsible of committing an infraction may be subject to a wide variety of measures, including:
• Counseling
• Educational and vocational training programs, and other rehabilitating measures.54
• Warning
• Admonition
• Prohibition to go to certain places
• Prohibition to drive motor vehicles
• Placement in custodial homes
• Confinement in educational institutions55

Law Library of Congress.(2007). Children’s Rights: International and national Laws and Practices. Mexico: Law Library Congress.
Socio-Political Arguments
Whilst from a social, human rights, fairness and child development perspective it may make sense to increase the age of criminal responsibility in Australia, for political and social reasons, such a change seems unlikely.
These political and social reasons are of particular topical relevance at present in light of the current NSW bushfire situation and the charging of two young people (aged 11 and 15) with lighting the recent Heatherbrae fires:
http://www.abc.net.au/news/2013-10-22/children-to-face-court-over-heatherbrae-fire-catastrophe/5036894
Dichotomy Between Age of Criminal Responsibility and other Ages of Majority
It is inexplicable that a young person can be considered an adult for different legal purposes at such wildly varying ages. The age of absolute criminal incapacity of 10 and the threshold age of doli incapax- being up to 14 years of age- can be contrasted with what is generally considered the age of majority, 18, being when a person may vote, buy alcohol etc.

Such a dichotomy between these ages- and other ages which could be considered as relating to majority, being 16 years of age to obtain a license and engage in consensual sexual intercourse- is confusing and it is troubling that a person may be considered to possess the necessary mental capacity to commit a crime at 14 or younger, but is considered to lack the ability to consent to sexual intercourse until 16 years of age.

These examples may suggest it is appropriate to raise the absolute age of criminal responsibility to 16 or older, however, such an action would disregard the importance of the flexible nature of the doctrine of doli incapax. With consideration to the varying ages at which young people become mature enough to comprehend the wrongness of their actions, it is more appropriate that a rebuttable presumption of incapacity should exist either in the form of the doctrine of doli incapax or in a form similar to the Gillick competence test adopted in Australia in relation to parental responsibility. (Keating, "The 'Responsibility' of Children in the Criminal Law," 203).

Accordingly, it may be appropriate to raise the threshold maximum age of doli incapax from 14 to 16 years of age or higher.
Gender discrimination in Age Requirements in Iran
Iran
Mexico:
The article ‘How old is enough?’ (Special Protections Progress and Disparity, 1997) which was produced by UNICEF makes an interesting point with regards to the variables which relate to how juvenile offenders are actually treated by the respective criminal justice bodies which they face. The age of criminal responsibility outlined by a particular justice system is outlined as only one variable among many, which impact upon the experience a child may have of the criminal justice system as an offender (Special Protections Progress and Disparity, 1997). Other variables may range from ‘punitive to socio-educational measures’ (Special Protections Progress and Disparity, 1997). Despite the fact that Mexican federal law adheres to the United Nations Convention on the Rights of the Child, the individual experience of child offenders is much more circumstantial based on which state the child is being held criminally responsible.


Special Protections Progress and Disparity.(1997). How old is enough. UNICEF.
Mexico:
Should the Principle of Doli Incapax be Abolished in Australia?
In light of the abolition of the doctrine of doli incapax in the United Kingdom, should that principle be abolished in Australia.
Arguments For Abolishing
Arguments Against Abolishing
Should Principle of Doli Incapax be revoked in Australia?
The principle of doli incapax serves an important role in Australia in acknowledging that not all children mature at the same rate and providing some protection from prosecution for children who cannot comprehend the wrongness of their actions.

In fact, considering that the principle is rebuttable, it would be more appropriate to raise the age to which that principle applies, perhaps to 16 years of age, to provide protection to children who mature at an older age.
Legal Arguments to Raise Age of Criminal Responsibility
Child Development arguments
International Convention and Human Rights Arguments
The age of conditional criminal responsibility. In the Australian jurisdiction, this principle provides a rebuttable presumption that a child of 10-14 years of age is incapable of committing a crime.
For example: Criminal Code Act 1995 (Cth) s7.2; State and Territory Criminal Codes in WA, Qld, Tas, NT and ACT and Common Law in NSW, Vic and SA.
1. In the interests of procedural fairness.

2.In order to abolish the principle of doli incapax and any inconsistencies and pitfalls associated with that doctrine
With reference to the examples of Mexico, the United Kingdom and Iran, it is clearly not desirable to lower the age of criminal responsibility below its current threshold age in Australia. Doing so would raise fears that the mental and social development of young children who would therefore suffer criminalisation would be detrimentally impacted.
Canada provides an example of a child welfare focused criminal law system, aimed at education and reformation rather than punitive measures.
Case Study- Sexting
Young People and Sexting in Australia: Ethics Representations and the Law
A study of young people aged 16-17 demonstrated that children of that age, did not understand, or would not accept, that engaging in sexting with their peers is criminal behaviour.
This study demonstrates a lack of understanding of the wrongness and illegality of those actions.
If those children/teenagers cannot understand the wrongness of their actions, they will be unable to comprehend the proceedings against them. In such a situation, it would be contrary to human rights and procedural fairness to prosecute those children.

In light of the findings of this report, might it be appropriate to raise the age of criminal responsibility for certain matters only, such as those which apply to sexting or even to raise the age of criminal responsibility generally, to avoid breaching human rights through prosecution of those children?

Alternatively, education of those children as to the wrongness of their actions may be a more appropriate action.

Children develop at vastly different rates and the principle of doli incapax allows Courts to take this into account. The presumption therefore serves to protect children who do not comprehend the wrongness of their actions, nor the criminal justice system, from being prosecuted and thus denying those children procedural fairness and natural justice.

Increasing the age group that doli incapax covers- say to 10-16 years of age- would give Courts much more flexibility to consider the vastly different rates at which children develop mentally and physically around puberty (Crofts, "Age-old Question: When Should Children Be Responsible for their Crimes?").


The Courts have deemed the presumption of normality to apply to rebutting the presumption of doli incapax.. The presumption of normality allows prosecutors to lead evidence that a child is "normal"and to allege that the offence is an offence which a normal child between 10 and 14 years of age would have deemed wrong. It has been held that the child must be shown to have ordinary mental aptitude (JBH and JH v O'Connell [1981] Crim LR 632 as quoted in Monahan & Young, "Children and the Law in Australia" 177).

This presumption is problematic as a child may demonstrate an ability to function at an adult or almost adult level in some areas, but this does not mean the child can function at an adult level in all areas (Bryan-Hancock & Casey, "Young People and the Justice System: Consideration of Maturity in Criminal Responsibility," 72). evidence may be adduced that the child is particularly mature and thus likely to comprehend the proceedings, however, the child may be unable to function as an adult and comprehend what is occurring in the context of the high pressure and stress situation of a hearing. In such a situation, the child would be denied procedural fairness.


Accordingly, it may be more appropriate to amend the presumption of doli incapax to increase the difficult of rebutting the presumption.

It may also be appropriate to increase the age at which such a presumption applies as it is possible that children older than 14 may lack the understanding and maturity to comprehend criminal proceedings,.
Thinking Outside:
Alternatives to Remand for Children
Jesuit Social Services Report (2013)
This report from Victoria has acknowledged that the younger a child is at first contact with the criminal justice system, the more likely that child is to re-offend and have numerous other contacts with the the criminal justice system.

The report recommends raising the age of criminal responsibility to 12 years of age and encouraging the diversion of young offenders away from the criminal justice system (Page 62). This recommendation correlates to Article 37 of the Convention on the Rights of the Child and s33(2) of the Children (Criminal Proceedings) Act 1987 (NSW) which require that the involvement of a child in criminal proceedings and the incarceration of a child should be a last resort.

The report also recommends that children should be diverted away from the criminal justice system via education as to the wrongness and impact of their actions (page 62-3). This recommendation can be seen to correspond to the child welfare centric approach of Canada to young offenders and that jurisdictions recognition of the desirability of preventing the recidivism of young offenders and thus avoiding a permanent, detrimental impact on the child's development.
Clearly raising the age of criminal responsibility in Australia would have positive impacts on child development (through diverting children away from the criminal justice system and lessening the likelihood of recidivism amongst children), bringing Australia into line with international recommendations and ensuring procedural fairness and justice for young offenders.

However, due to political concerns and particularly in light of events such as the James Bulger case in the UK or the manslaughter of Cory Davis in Macquarie Fields in 1999 and the impact of the recent severe NSW fires, of which some were apparently started by children as young as 11, such an increase in the age of criminal responsibility seems unlikely at present.

Regardless, it is still clearly preferable for the age of criminal responsibility in Australia to remain at 10, rather than being lowered to a similar age as that of Iran or parts of Mexico and for the principle of doli incapax to continue to apply, in contrast to the United Kingdom and Canada.

The age thresholds of doli incapax roughly correspond to typical age of puberty for children. As discussed with reference to Iran, that a child has gone through puberty does not necessarily mean they have sufficient cognitive development to understand wrongness in their actions and to comprehend any criminal proceedings they are involved in.

Matthews notes it is inappropriate to deem children to possess the requisite understanding of wrongness and criminal culpability simply because they have attained a certain age. He further notes that children should be brought into the criminal justice system in order to hold them accountable for their actions and encourage rehabilitation, rather than as a punitive measure (Matthews, "Time, Difference and the Ethics of Children's Criminal Responsibility", 81). Accordingly, whilst children may have a sense of wrong and right at any age, their definition of wrong may differ to that of the general public, particularly when influenced by their social background. Matthews provides the example of a child who has suffered sexual abuse and who may deem incest to not be wrong or a child who may deem robbing a store to be right in order to gain acceptance from peers (Ibid, 79).

Therefore, the age of criminal responsibility should not be based solely on passing through puberty, but also on the specific development of the child.
Puberty
Abolition of Doctrine of Doli Incapax
Procedural Fairness
The challenge to the European Court of Human Rights following the James Bulger case in the United Kingdom acknowledged concerns of whether the trials of young offenders who face criminal prosecution can be considered procedurally fair.

Hubble notes that, with reference to that European Court of Human Rights judgment, a child who cannot understand the proceedings due to developmental immaturity cannot receive a fair trial (Hubble, "Juvenile Defendants: Taking the human rights of children seriously," 120). Hubble notes that the defendants in the James Bulger case demonstrated physical signs that they were unable to concentrate on their trials. In such a situation, it is clearly unlikely that the young offenders would be able to comprehend the totality of the trial and to effectively instruct their lawyers.

Whilst that judgment would not be binding on Australia, being a judgment of the European Court of Human Rights, Australia is a signatory to similar human rights conventions (Ibid, 120). Accordingly such judgment may be persuasive on Australian courts in their consideration of whether the doctrine of doli incapax should apply to a young offender.

In light of the findings that young offenders who cannot comprehend their own criminal trials are being denied procedural fairness, it may be appropriate to raise the age of criminal responsibility in Australia to 12 or higher. Whilst, raising the age would not ensure the young offenders comprehended the criminal proceedings, it would ensure children involved in the criminal justice system were older and more likely to comprehend the proceedings.

However, as will be discussed, for political reasons the raising of the age of criminal responsibility in Australia is unlikely.


It could be argued that, as the doctrine of doli incapax is not codified in New South Wales and other Australian jurisdictions, the application of said doctrine could applied inconsistently.

In light of such allegations, it may be appropriate for a consistent, codified doctrine of doli incapax to be adopted in all Australian jurisdictions.

Such a codified doctrine could be comparable to the Canadian presumption of diminished moral blameworthiness. This would help ensure that there was no or limited inconsistency in the application of doli incapax and thus ensure fairness.

However, it shou.d be noted that such codification may detrimentally impact on the current flexibility of doli incapax n Australia.
Recidivism
It is clearly preferable from a social perspective if children do not re-offend. Recidivism will lead to a greater cost to society who must shoulder the burden of the damage caused by the offence and also the cost of prosecuting and gaoling a persistent offender.

As will be discussed in greater detail under the heading of "Child Development Arguments", Australia's criminal justice approach to young offenders (see Croft, "The Age of Innocence: raising the Age of Criminal Responsibility") as well as Australia's relatively low age of criminal responsibility, serves to increase the incidence of recidivism amongst young offenders.

By following the lead of Canada and raising the age of criminal responsibility as well as taking a child welfare centric approach to young offenders, the instances of recidivism amongst young offenders may well fall.

It should also be noted that young offenders are, relative to adult offenders, less likely to re-offend (Bradley, "The Age of Criminal Responsibility Revisited" 89-90). Therefore the purpose of trying young offenders should not be focused on deterrence and more focus should be placed on reeducating young offenders and ensuring that their development is not stunted.

Furthermore, it should be noted that adopting the recommendations of the Jesuit Social Services Report and raising the age of criminal responsibility to allow a more welfare centric approach to young offenders or 12 or younger, should not be a particularly onerous imposition on welfare authorities. Currently, such authorities are tasked with diverting young offenders under the age of 10 and educating and assisting those offenders to not re-offend (Ibid, 90) and therefore should not be dismissed due to the difficulty of implementation.
Human Rights Issues
As with Canada, Mexico, the United Kingdom and Iran, Australia is a signatory to the Conventions on the Rights of the Child. Article 3 of that convention requires Australia to consider best interest of children paramount in all legal proceedings. It is evident that the best interests of a young offender would not be served by being processed through the criminal justice system and the associated detriment caused to the child’s development. However, it is possible that a young offender’s best interests would be best served through the criminal justice system and re-education as to the wrongness and effect of their wrongful behaviours, through discouraging recidivism and, in serious cases, through removal from a detrimental social context through incarceration. Whilst the bests interests are the paramount consideration, they are not the sole consideration and the best interests of the child must also be balanced with any need to punish the offender or protect society from the offender.

Whilst the age of criminal responsibility in Australia is in line with its commitments under the Convention on the Rights of the Child- which simply requires a state to establish a minimum age of criminal responsibility (article 40(3)(a))- the United Nations Committee on the Rights of the Child has declared that 12 should be the minimum age of criminal responsibility. That committee has also encouraged countries to adopt a higher minimum age of criminal responsibility than 12 and criticised countries who do not meet that standard, including Australia, but more particularly Mexico, Iran and the United Kingdom.

Whilst Australia may not meet this standard, it can be contrasted with countries that have a much lower age of criminal responsibility and which have not adopted the doctrine of doli incapax or a similar provision.

The recommendation of the Committee on the Rights of the Child is not binding on Australia unless it is introduced into domestic law. Accordingly, Australia's age of criminal responsibility does not breach international law and it could be argued that Australia meets the recommendation of the Committee with reference to the doctrine of doli incapax which applies up to the age of 14. However, it may be appropriate for Australia to adopt an absolute minimum age of criminal responsibility at 12 years of age to serve as an example to other foreign jurisdictions, such as Iran with its distinction in the age of criminal responsibility on gender lines.

Article 40(2)(b)(iii) of the Convention on the Rights of the Child provides that children should have the right to a fair hearing on all legal matters.

As discussed under the heading of “Legal Arguments to Raise Age of Criminal Responsibility” and with reference to the United Kingdom, children who cannot comprehend the court proceedings in which they are involved are denied procedural fairness. Accordingly, children in such a situation have been denied their human right to a fair hearing. Such a concern is more relevant to the United Kingdom as children in that jurisdiction no longer have the protection of doli incapax, but may arise where a child older than 15 in Australia, cannot comprehend the wrongness of their actions nor the criminal proceedings they are involved in. As Hubble states, if the legal proceedings are incomprehensible to the child and the child is unable to instruct their legal representation adequately, then the fact of competent legal representation will not serve to remedy the injustice of the proceedings (Hubble, “Juvenile Defendants: Taking the human rights of children seriously”, 120). In such a situation, the child cannot receive a fair trial.

Emotional Maturity
Whilst the doctrine of doli incapax acknowledges that children mature at different rates and thus a set minimum age of criminal responsibility is not appropriate, it should be noted that Rule 4 Beijing Rules recommend that the minimum age of criminal responsibility be formulated with reference to not only the intellectual and mental maturity of a child, but also the emotional maturity.

It can be argued that that a child who falls outside the scope of the absolute age of criminal incapacity and outside the scope of doli incapax, still lacks the emotional maturity to comprehend the wrongness of their actions. Such a young offender would still, regardless, be charged and dealt with as an adult within the criminal justice system. Accordingly, if the child did not understand the proceedings, s/he would be denied procedural fairness. Matthews notes that emotional maturity is a relevant factor in the development of a child’s impulse control (Matthews, “Time Difference and the Ethics of Children’s Criminal Responsibility,” 86). Without impulse control, a child may perform wrongful actions without understanding or regard. Matthews further notes that this impulse control may develop at vastly different rates in children (Ibid, 81) and so a single set age of criminal responsibility is inappropriate. If the current common law interpretation of doli incapax in New South Wales and Australia does not consider the development of emotional maturity of children as a factor in the application of that doctrine, children who are unable to comprehend the wrong they have done may be charged leading to procedural unfairness and the child being denied human rights.

Political Arguments
In order to canvass votes, politicians have alleged that the presumption of doli incapax should be abolished as it impedes prosecution (Monahan & Young, "Children and the Law in Australia", 178). The implication that can be derived from these statements is that the presumption may serve to prevent a child who has committed an offence from being convicted of that offence. Such an argument should be given little weight, as the purpose of the presumption is to protect children too young to comprehend their actions from the severe outcomes associated with such conviction. Furthermore, Crofts notes that, rather than being too liberally applied- and thus preventing offenders who should be convicted from facing prosecution- the presumption is rather easily rebutted (Ibid, 179). In light of this, it may be that children who do not comprehend the proceedings are being convicted of criminal offences and thus that that are being denied procedural fairness.

It has further been suggested that the presumption of doli incapax should be abolished as it is no longer needed (Ibid, 180). Such an argument arises from the fact that the presumption arose in the context of draconian laws wherein capital punishment was available to child offenders.. Furthermore, such arguments suggest that children mature more quickly these days and so a rebuttable presumption is no longer needed up to the age of 14 (ibid, 182). However, such arguments should be rebutted as, if a child is mature enough and if no need to protect the child from a draconian legal system, then the prosecutor can rebut the presumption. It is not terribly difficult to rebut the presumption and courts make concessions as to what evidence can be admitted to rebut the presumption (Ibid, 173), thus making such rebuttal a simpler task.
Legal Arguments
The highly discretionary nature of exercise of the presumption may result in the presumption being exercised in a discriminatory manner.

The presumption has been found to be more often rebutted for more serious crimes (Ibid, 172), so that the age of criminal responsibility is usually higher for less serious crimes. In this way, the presumption may impose artificial age limits according to the type of offence, rather than with reference to the maturity of the child.

While such concerns suggest issues with the interpretation of the presumption, such concerns should perhaps be dealt with by codifying the presumption and providing guidance to judicial officers on how the presumption should be applied.

The presumption of doli incapax provides too useful a protection for children aged 10-14, to completely abolish and, if the presumption was simply abolished, all children of that age group, regardless of their maturity, would be prosecuted to their, and societies detriment.
http://www.aic.gov.au/publications/current%20series/cfi/101-120/cfi106.html
Legislation:
Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
JBH and JH v O’Connell [1981] Crim LR 632

Treaties:
Convention on the Rights of Child, opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 2 September 1990)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS171 (entered into force 23 March 1976)
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) GA Dec 40/33, UN GAOR, 40th sess, 96th plen mtg, Supp No 53, UN Doc A/40/53 (29 November 1985)

Reports:
ARC Centre of Excellence for Creative Industries and Innovation, Young People and Sexting in Australia: Ethics Representation and the Law, Final Report (2013)
Australian Law Reform Commission, Seen and heard: priority for children in the legal process (ALRC Report 84)/18. Children's involvement in criminal justice processes, Report No 84 (1997)
Jesuit Social Services, Thinking Outside: Alternative to Remand for Children, Research Report (2013)

Books:
Monahan, Geoff and Young, Lisa, (eds) Children and the Law in Australia (Lexis Nexis Butterworths, 2008)

Articles:
Bradley, Lisa, “The Age of Criminal Responsibility Revisited,” (2003) 8(1) Deakin Law Review 73
Bryan-Hancock, Claire and Casey, Sharon, “Young People and the Justice System: Consideration of Maturity in Criminal Responsibility” (2011) 18(1) Psychiatry, Psychology and Law 69
Crofts, Thomas, “Age-old Question: When should children be responsible for their crimes?” on The Conversation (15 May 2012) < http://theconversation.com/age-old-question-when-should-children-be-responsible-for-their-crimes-6794>
Crofts, Thomas, “The Age of Innocence: Raising the Age of Criminal Responsibility” on Right Now (30 July 2012) < http://rightnow.org.au/topics/children-and-youth/the-age-of-innocence-raising-the-age-of-criminal-responsibility/>
Keating, Heather, “The ‘Responsibility’ of Children in the Criminal Law” (2007) 19(2) Child and Family Law Quarterly 183
Mathews, Ben, “Time, Difference and the Ethics of Children’s Criminal Responsibility” (2003) 5(2) Newcastle Law Review 65

Part One
Part Two
Children's Perspective
What is court?

What is the difference between right and wrong?

At what age do you go to prison?
Full transcript