Youth, competence and criminal responsibility

In England and Wales the age of criminal responsibility is set at 10 years. The current law therefore assumes all children are sufficiently mature at this age to accept criminal responsibility for their behaviour. However the English criminal justice system takes no account of the evidence that children and young people differ in developmental immaturity from adults and thus may be less culpable than adults for their choices and behaviour. Children and young people are less mature than adults in terms of the judgment factors of responsibility, perspective and sensation seeking and thus experience difficulties in weighing and comparing consequences when making decisions and contemplating the meaning of long-range consequences that will be realized 5-10 years in the future. These cognitive difficulties also have implications for young peoples’ ability to be competent defendants in an adversarial atmosphere. In 2006 the Law Commission for England and Wales recommended that ‘developmental immaturity’ be incorporated into the defence of diminished responsibility. The Law Commission recommended that it should be possible for the courts to consider whether the young person’s developmental immaturity and cognitive limitations impairs their ability to stand trial for murder. This recommendation was not included in the Coroners and Justice Act 2009. This paper will argue that the criminal justice system needs to recognise that children may not yet be developed enough to understand the wrongfulness of what they do. Anglo-American criminal jurisprudence on desert and moral fault, neuroscience data which has examined the brain developments and cognitive functioning of adolescents, and US and UK public opinion surveys will be considered as the paper will argue that the low age of criminal responsibility runs the risk of children being held criminally culpable for behaviour they are too immature to fully understand. This paper will consider the question of when is it fair to subject young people to the full rigours of the criminal justice system.