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. This approach to youth criminal capacity pays little attention to the evidence that children and young people differ in developmental maturity 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 their judgment and sensation-seeking and experience difficulties in weighing and comparing consequences when making decisions and contemplating the meaning of long-range consequences. These cognitive difficulties also have implications for a young person’s ability to be a competent defendant in an adversarial atmosphere. In 2006 the Law Commission for England and Wales recognised that the current law is unduly harsh on young offenders and recommended that ‘developmental immaturity’ be incorporated into the defence of diminished responsibility thus allowing the courts to consider whether a 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 chapter will consider whether young people’s developmental immaturity and cognitive limitations impairs their capacity to understand the wrongfulness of their actions and to answer for this in a criminal trial. A UNICEF report on The Evolving Capacities of the Child pointed out that in practice ‘adults consistently underestimate children’s capacities’. It is argued herein that the English youth justice system takes a contrary view and that its approach to young people in conflict with the law has overestimated children’s capacities and disregarded the child’s right to respect for their evolving capacities and competencies. Further, the author considers the question of when is it fair to subject young people to the full rigours of the criminal justice system.
|Title of host publication
|Mental Condition Defences and the Criminal Justice System: Perspectives from Law and Medicine
|Ben Livings, Alan Reed, Nicola Wake
|Place of Publication
|Number of pages
|Published - 1 Feb 2015