Sample Undergraduate 1st Criminal Law Assignment

Criminal Responsibility / Criminal Liability

Introduction

English law sets the age of criminal responsibility, the lowest age at which a person may be criminally liable,[1] at ten years old.[2] This is controversial for being among the lowest in Europe (where many countries set the age at fourteen or higher^[3]) since Scotland raised its age of criminal responsibility from eight to twelve in December 2021.[4] Justifying this low threshold is important because of the severe impact on a child’s life the label and consequences of criminality have.[5] Several commentators and politicians have argued that English law should follow Scotland’s lead and raise the threshold. Amendments to raise it to fourteen and then to twelve were withdrawn in the House of Lords in 2026. The Bar Council subsequently recommended fourteen.[6]

These bids to raise the age of criminal responsibility in the UK raise the issue of whether the current age at which children can be labelled criminals under English law is too low. This essay will explore this issue. After an examination of theories of criminal responsibility and their application to children, it will argue that many children over ten years old lack the qualities required to justifiably label them criminals. It will discuss how the law might be improved through reform in this regard.

Justifying Criminal Liability

Criminal liability is distinct from other forms, as reflected in the heightened consequences of stigma, the label of ‘criminal’ and potential loss of liberty.[7] This difference is because criminal liability reflects a moral judgement; that what the defendant did was seriously morally wrong.[8] Moral judgment of this kind requires the defendant to be sufficiently ‘culpable’ that they can reasonably be blamed for their actions.[9] As such, a child should be capable of criminal liability only if they demonstrate the requisite culpability.

What does it mean to be culpable? Two theories of criminal culpability have traditionally been deployed to explain culpability: character and choice theory.[10] Character theory posits that criminal judgement is only warranted where the person’s behaviour indicates a moral defect in their character.[11] For example, a person acting involuntarily due to a reflex or without knowledge of consequences which would have deterred them is not culpable.[12] Some, such as Brudner, have argued that this theory unfortunately characterises mental disorders with character-based symptoms as a ‘defect’ rather than ground for exculpation or mitigation, putting it out of step with modern thought.[13] This is not a necessary feature of the theory, however. Bayles describes Brandt’s view that blame requires a high degree of voluntary control over how a character trait is expressed.[14] On this view, symptoms the defendant cannot control do not justify blame.

In this sense, character theory overlaps with choice theory. Choice theory posits that blame can only be ascribed to a person who has moral agency. This requires both ‘capacity’ and ‘freedom’ to make moral decisions.[15] Capacity requires the defendant to be sufficiently capable of certain cognitive functions: commonly identified as the ability to understand, remember and properly evaluate information.[16] These functions allow the defendant to consider their desires and beliefs and deliberate on the value actions accordingly.[17] Freedom, meanwhile, is the absence of external duress, coercion or unreasonable influence.[18]

This essay does not propose to evaluate which theory is ‘correct’. Rather, the next section will demonstrate that ascribing criminal blame to many children is problematic under both theories. 

Children and Blame

Brain-development in children is incomplete, and areas associated with decision-making (moral and otherwise) continue to develop into early adulthood.[19] Children are also less socially and emotionally mature than adults, both as a matter of their physical development and because of the unique social dynamics which are imposed upon them within the family and their peer groups.[20]

The combination of these two factors means that children’s capacity is impaired. Research by Cauffman and Steinberg indicates that this is particularly true in three areas. The first is ‘responsibility’, which includes independence and ‘clarity of identity’.[21] The second is ‘temperance’, which they define as the tendency to evaluate situations before acting and to resist impulses.[22] The third is perspective, which is the ability to consider ‘situations from different viewpoints and placing them in broader social and temporal contexts’ (itself part of the function of weighing-up relevant information).[23] These deficiencies can lead to children being unable to easily consider the justifications for their actions, prioritising irrational considerations or being unduly influenced by external circumstances (such as peer pressure or abuse). In the JM case, a ten-year-old objected to life-saving surgery for a jaw tumour. He feared he might not survive and, because bone from his leg would be used to reconstruct his jaw, told his doctor he did not want ‘a foot in my mouth’.[24] According to Cauffman and Steinberg’s research, the sharpest increase in the aspects of psychosocial maturity they measured occurred between sixteen and nineteen years, particularly for perspective and temperance. Later research distinguished this from cognitive capacity, which on average reached adult levels around sixteen.[25]

How are these deficiencies to be evaluated under choice and character theories? The implications for choice theory are relatively obvious: children are deficient in several crucial functions for having ‘capacity’, particularly the ability to understand and properly evaluate information. Their lack of psychosocial maturity and the heightened risk of coercive social relationships also have significant implications for their freedom of action. This can be seen from cases where an abusive parent orders the child to commit a crime. In Wilson the court considered a thirteen-year-old who was afraid to disobey his father,[26] although duress was no defence to murder. It is for these reasons that other laws concerning consent and capacity presume its absence in children below a certain age.[27]

At first brush character theory seems to condemn children, since their lack of capacity is a matter of biological and psychological characteristics which form their character. However, on the view that blame requires voluntary control, a child should not be blamed for behaviour they cannot control. Since the deficiencies which might lead them to criminal action are normal and unavoidable, they should not be characterised as defects. As such, the child who commits a crime because of his underdevelopment has not done something indicating a defective character; moral judgement is unwarranted.

This leads to the conclusion that many children, particularly those under sixteen, do not meet the conditions for moral blame under either theory of criminal culpability. The implications of this for the age of criminal responsibility will be discussed in the next section.

Implications for the Age of Criminal Responsibility

The analysis of the previous section indicated that children may fail to meet the capacity and freedom requirements for criminal culpability. This leads to the conclusion that these children should not be capable of criminal liability, because liability without culpability is inappropriate. Given that aspects of judgment continue to develop well beyond childhood, setting the age of criminal responsibility at ten seems obviously too low. 

As Sutherland points out, however, increasing the threshold to sixteen is unlikely to be politically feasible.[28] In addition, children mature and develop at different rates: raising the age of criminal responsibility too high will result in culpable children escaping liability. As such, there is a strong case for raising the age of responsibility to one below which children are very unlikely to have the necessary development (perhaps fourteen to reflect common practice in Europe[29]) and finding an alternative solution for excusing incapable older children while still allowing capable children to be prosecuted.

Previously, the law provided an alternative solution: doli incapax. Immediately before abolition, children aged ten to thirteen were presumed incapable of crime unless the prosecution proved beyond reasonable doubt that the child knew their actions were ‘seriously wrong.’[30] This could not be presumed from the act alone, however obviously serious it appeared to an adult. Running away could be evidence of that knowledge, depending on the circumstances.[31] The defence was abolished for offences committed on or after 30 September 1998. The prosecution must still prove any mental element required by the offence.[32]

The broad approach of the defence of doli incapax would be desirable for protecting non-culpable minors. However, it had problems and so would require modification if reintroduced. Firstly, given that development continues through adolescence and even seventeen-year-olds can be insufficiently developed, the threshold for the defence was too low. A reintroduced defence would need to apply from the new minimum age until eighteen. To increase the political palatability of the defence, perhaps the burden of proof could be on the prosecution for children under sixteen and on the defence for sixteen- and seventeen-year-olds, although a legal burden on the child would have to be justified under the presumption of innocence in Article 6(2) of the European Convention on Human Rights. The UN Committee on the Rights of the Child recommends a single minimum age of at least fourteen and warns that assessing maturity between two age thresholds has led to discriminatory decisions.[33] Secondly, any reintroduction of the defence would need to rectify its incomplete view of children’s capacity. As explained above, the deficiencies which children have are not merely a reduced ability to understand right and wrong, but an inability to properly prioritise and weigh-up information. A child may conclude that the action is seriously wrong if asked to think about it, but still be non-culpable because they fail to realise this is relevant at the time of acting or over-prioritise a coercive social influence or some other irrational factor. A better defence would arguably turn not only on whether the child knew that the action was seriously wrong, but also on whether they had sufficiently developed reasoning skills and psychosocial maturity to assign proper weight to this consideration relative to other factors.

Conclusion

In conclusion, an analysis of the choice and character theories of culpability and research on the development of children, leads to the conclusion that ten is too low an age of criminal responsibility. This is because many children at ten have yet to acquire the maturity necessary for culpability. This leads to the conclusion that the age of criminal responsibility should be raised. Nevertheless, there is still a need to distinguish between capable and incapable children at or above the age of criminal responsibility to ensure that children who have matured particularly quickly can still be prosecuted without criminalising those who have not. To this end, the law should reintroduce a modified defence of doli incapax, turning on whether the child was capable of evaluating the morality of their actions before deciding to act and of giving it proper weight (perhaps with a reversed burden for sixteen- and seventeen-year-olds).

References

Table of Cases

C (A Minor) v DPP [1996] AC 1

Sheldrake v DPP [2004] UKHL 43

A v DPP [1997] Crim LR 125

A v DPP [1992] Crim LR 34

JTB [2009] UKHL 20

Re JM (a child) [2015] EWHC 2832 (Fam)

R v Wilson [2007] EWCA Crim 1251

Table of Legislation

Children and Young Persons Act 1933

Age of Criminal Responsibility (Scotland) Act 2019

Crime and Disorder Act 1998

Bibliography

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UN Committee on the Rights of the Child, General Comment No 24 (2019) on children’s rights in the child justice system, CRC/C/GC/24, paras 22, 26–27.

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̶   ̶  The Moral Foundations of the Youth Justice System: Understanding the Principles of the Youth Justice System (Taylor & Francis 2016)

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