Licence to commit crime?

Every now and again a child commits a crime and to gasps of outrage isn't prosecuted due to their age. For a long time you had the ridiculous situation where the law didn't believe it was physically possible for a boy under 14 to have sex, and therefore impossible for him to commit rape. Even if there was no argument that he had raped someone legally he hadn't, even though he had. We all know that people mature at different rates and what is impossible for one 14 year old boy might not be for another, but the law has a habit of treating all individuals as being the same and it took the natural outrage caused by a handful of very young rapists being effectively immune to prosecution for it to catch up with reality. That loophole was plugged quite a while back, but others remain. The most obvious of these is that a child cannot be prosecuted for anything at all before they're 10 years old and even then are given some benefit of doubt that adults and older children don't get until they're 14.

Children under the age of ten are not considered to have reached an age where they can be held responsible for their crimes. Because they are under the age of 'criminal responsibility', they can't be charged with any criminal offence.
Children aged 10-14 can be convicted of a criminal offence if it can be proved that they were aware that what they were doing was seriously wrong.

Seriously wrong? As opposed to what, amusingly wrong?

After the age of 14, young people are considered to be fully responsible for their own actions - in the same way as an adult would. However, there are some differences in the type of sentencing young offenders will receive.

As with the old rape loophole the problem here is assuming that all children are the same rather than recognising, as most of their parents probably do, that they're individuals. Sure, the younger they are the more similar they must be, to the point that aside from very premature babies there's probably not much between one new born and another - they can wriggle, yawn, do gurgling noises, smile and consume liquids, and they can scream, cry, fart, piss, shit and puke. There's not a great deal else at that age. But ten years on and there can be a gulf between those who know right from wrong, those who don't and those who don't care, and that last group is legally fireproof. Worse, it may be about to extend its membership if the Children's Commissar Commissioner has anything to do with it. She feels that children under 12 can't be criminals because, as far as I can make out, the little angels just don't have it in them.

The killers of James Bulger should not have been prosecuted for his murder, the new Children’s Commissioner says today in a call for the age of criminal responsibility to be raised from 10 to 12 years old.

I'm sure that idea is going to go down well in Bootle, especially at the moment.

...Maggie Atkinson argues that children under the age of 12 should not be prosecuted for any crime.

Dr Atkinson, who was appointed by the Government last autumn, said that a civilised society should recognise that children who commit offences should be treated differently from adult criminals.

I wouldn't disagree with that as such, but isn't that what young offender institutions are for? Isn't that why Venables and Thompson were put in secure units rather than an actual prison? Because the UK does treat children who commit offences differently already? Dr Atkinson is arguing for a special status for children that exists already.

"The age of criminal responsibility in this country is ten — that’s too low, it should certainly be moved up to 12; in some European countries it is 14. Even the most hardened of youngsters who have committed some very difficult crimes are not beyond being frightened," Dr Atkinson said.

"In terms of knowing what the full consequences of your actions are, you are into older childhood or adolescence."

...

In other parts of Europe the age ranges from 14 to 18. In Scotland it is eight years old, but legislation is going through Parliament to raise it to 12. The United Nations Committee on the Rights of the Child has said that the age at which people should be held responsible for crimes should be between 14 and 16.

Oh do bugger off. I don't rate myself as being anything other than average and I fucking knew what was right and what wasn't long before I was 14 and certainly before I was 12. Even by the time I was 10 I could tell you that it was wrong to steal, kill, cheat and any number of other things, though I'd probably struggle to articulate exactly why this is so. I think Dr Atkinson, most nations and the UN are all confusing criminal responsibility as being an ability to articulate why something is wrong rather than simply understanding that it is.

The thing is that 12 may be no better than 10 or 14, 16 or any other arbitrarily chosen number. As with nearly all hard limits/minimums I have a big problem not just with the number as is or as proposed changes would make it, but with the whole idea of there being a magic number at all. As things are not only is someone aged 9 years and 364 days not legally responsible for their actions while someone else aged 10 years and one second is but also everyone is suddenly mature enough at the same age, and it's patently ridiculous. Even allowing for the fact that, as I quoted above

Children aged 10-14 can be convicted of a criminal offence if it can be proved that they were aware that what they were doing was seriously wrong.

the idea that no-one under a given age can possibly be criminally responsible is useless. The problem is not that such an age doesn't exist since we'd all agree that a baby can't possibly have any sense of right and wrong, much less the ability to physically commit a crime. It's that to get universal agreement you'd have to set it so low as to be meaningless. Raising it will allow more early developers to get off, while reducing it simply moves the goalposts in the other direction. Why not get rid of them altogether and just let courts decide whether kids accused of crimes knew that what they did was wrong? That's what happened with the Jamie Bulger murder trial after all.

"Youngsters are usually tried in a youth court, they were tried in an adult court. What they did was exceptionally unpleasant and the fact that a little boy ended up dead is not something the nation can easily forget. But they shouldn’t have been tried in an adult court because they were still children".

She might have a point there, but saying that an adult court isn't always appropriate doesn't mean we shrug and ignore offences that really ought to be tried. And while there are youth courts I can think of practical reasons for using an adult court instead - better security if the accused were at risk of revenge attacks for example. But that would probably mean a youth court sitting in an adult courtroom. I can understand the reasons for it and I agree that if you're on trial the more you understand what's going on the better, but I'm not totally sold on the need to avoid an intimidating atmosphere. Go to a court sometime and sit in the public gallery while a case is on, and just imagine yourself sitting in the dock. A court trial can be intimidating for an adult (though not for career criminals perhaps) so is there really a need to make it all fluffy and friendly for child defendants? Isn't it actually slightly cruel to produce a non-threatening environment for them when there's a distinct possibility of severe punishment? No, as long as they can follow what's going on, which is the responsibility of their lawyers, there doesn't need to be many changes made apart from perhaps ditching the wigs and robes and speaking fucking English instead of Legalese.* The point is to actually prosecute people when they commit crimes and not use a tender age as a fucking excuse.

Now if we're just talking about a bit of graffiti or throwing stones at phone boxes or something then perhaps there's no need for a prosecution when there are alternatives available. For example, when I was a kid it was probably still possible for a policeman to give a misbehaving child a stern lecture and a clip round the ear and take him home to his mum (where he'd get another one of each), and that would obviously mean no charges being brought. Yes, it does smack (forgive the pun) of summary justice, but children need to be educated and a clip round the ear with scary lecture from a copper was as much an educational experience** as a disciplinary or judicial one - if anything the judicial part was practically non-existent. But try it now and charges will be brought... against the copper and possibly the mother as well. I'm not sure what the procedure is these days but from reading The Thinking Policeman's blog (and he's touched on the topic again recently) it sounds like it's something along the lines of un-scary ticking off, followed by more of the same until someone finally loses patience with the kid. At this point there may be a caution involved (which by this time the kid will see as a variation on the theme of getting away with it), or possibly an ASBO if it's really serious (ditto). There seems to be something called the Youth Offender's Team, whose function appears to me to be taking over the task of ineffectual lecturing from the police so they can get on with other things such as searching photographers*** and setting speed traps, and beyond that there's the eventual nuclear option of actually sending them to jail for five minutes. By this time many will be total little shits and close to irredeemable, so while jail will keep them from reoffending while they're in it the opportunity to prevent them going off the rails in the first place will have been long gone. In hindsight shouldn't we have taken that opportunity more often?


* There's an argument for doing that anyway since legalese is hard to follow for people who are adults but not lawyers.
** Or so I imagine. I never got one.
*** While I'm appalled that the British police seem to treat anyone with a Canon as actually having a cannon I can understand why, having possibly dealt all week with feral yoofs who simply don't give a fuck about anyone, least of all the police, a copper might be tempted to get a bit 'power trippy' when he finds some law abiding soul taking a snap of Winston Churchill in Parliament Square or something. Not condoning it by any means, just saying we shouldn't be surprised that having hamstrung the police's ability to tackle low level criminal behaviour we shouldn't be surprised that some occupy their time by hassling the rest of us instead.