The case for criminal responsibility

Many countries impose minimum ages, and they set an age under which children cannot be held criminally responsible
The case for criminal responsibility
Representational PhotoFile/ GK

In this write up, I will speak about minimum ages of criminal responsibility. I will first tell you something about the long past in the history, how these questions were dealt with. And then move on to say something about the ages of penal majority. And at the end, look at minimum ages within the juvenile justice system. First, a historical anecdote. In Roman times, judges were also confronted with questions of young people committing offences. And the question then was, is this person not too old? Or is this person not too young to know that what he did was wrong? For instance, take the case of Lupus, who was six and a half. And he was caught because he stole crops. Brought before the judge, the judge had to decide whether he could prosecute him. Could he impose a penalty upon Lupus, who indeed had stolen some crops from the land? Now, in order to find out if he was sufficiently mature or he had the age of reason, the judge would show him an apple and a coin. And he'd give him the choice, he'd say, Lupus, I'll give you a present. You want to have an apple, want to have a coin? Now, in case Lupus would go for the apple, that meant that he was maybe too young to understand that what he did was wrong, and he was going to go free. While if Lupus would take the coin, with which you could buy at least five or ten apples, that meant that he knew that what he did was wrong. That he knew, he had some understanding of the differences between right and wrong, he was mature enough. So unfortunately for Lupus, taking the coin was rather a bad idea. Because it meant he could be severely punished under the Roman law.

Today, of course, the situation is no longer the same. We do not ask children whether they want to have an apple or a coin to decide whether they are criminally responsible or not.
Many countries impose minimum ages, and they set an age under which children cannot be held criminally responsible. Above that age, they can be held responsible. Now, questions then arise about what is then the proper age to set? Is it 12, 8, 18, even 21?, so these are many questions. To approach these questions, a first notion we have to understand is the notion of the penal majority.

Now, the Convention on the Rights of the Child has set the minimum age for penal majority. So the convention urges states to set the age at 18, and to design a separate juvenile justice system for all children. This is clear in article 43 from the Convention on the Rights of the Child, which reads as follows. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law.

Now, this means that every country should set a separate system for dealing with child juvenile defenders, so the age of penal majority.

The minimum age of penal majority, in principle, is 18. Because the CRC defines children as every person below the age of 18. And many countries have indeed set their minimum ages for penal majority at age 18. While in other countries, there are exceptions. And sometimes children under 18 who have committed an offense, but an offense that is judged very severe, can be transferred to the adult criminal justice system.

This is against the text of the Convention on the Rights of the Child. But some countries do still have this possibility. So now we've established the idea that there is a minimum age of penal majority. And states need to design a separate juvenile justice system. That doesn't resolve all questions related to minimum ages. There are certain age limits, also within the separate juvenile justice system, that can be set. And just to illustrate, I'll briefly say something about the sanctions, minimum ages for imposing certain sanctions. And something about the criminal responsibility and minimum ages for criminal responsibility. So within a separate juvenile justice system, there can be sanctions that are the same or different compared to the adult justice system. And in some juvenile justice systems, certain sanctions, like, for instance, the deprivation of liberty, are limited to children of a certain age onwards, let's say 15. And would be not possible to lock children up under 15. I only impose that sanction once they become 15.

Now, another field where minimum ages play out are related to criminal responsibility. So within a separate juvenile justice system, we can still ask if there is need for imposing a minimum age for criminal responsibility. Which would mean that if a person under, let's say, 10 or 12 who commits a crime cannot be prosecuted at all. Not even within a separate juvenile justice system. That is, in fact, the real discussion about minimum ages of criminal responsibility. There are many differences between countries about these minimum ages of criminal responsibility. Some set them as low as seven or ten. Others go a bit higher, they say 12 or 14 years. There are also countries who did not set a minimum age at all. And it is up to the judge to decide, case by case, if in this particular case the juvenile is to be held criminally responsible according to his age and maturity.

When we turn back to article 40 of the Convention on the Rights of the Child, we see that states are required to set a minimum age for criminal responsibility. But the convention itself does not set what that age should be. It reads that states should establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.

Now, the Committee on the Rights of the Child has interpreted this provision and has said that. Well, given the knowledge today, this minimum age should be, at a minimum, 12. And countries are even encouraged to go beyond 12 and to set their minimum ages for criminal responsibility even at 14 or 16.

Now, in conclusion, in this video, I have spoken about minimum ages and criminal responsibility. I have emphasized the idea of a penal majority, age of penal majority, which should be set, according to the CRC, at age 18. And then within the separate juvenile justice system, discussions can arise about what should, within the system, be a particular minimum age for criminal responsibility. Should it be 12?, well, the Committee says 12, or even higher. Even if some countries think seven or ten should be enough. In any case, what isn't happening anymore is that judges, like in the Roman times, would ask children, would you like a coin, or an apple? That, I think, was something that was happening in the Roman time, but today, not so much anymore.

SHABIR AHMAD is a UPSC Aspirant from Raiyar Doodhpathri.

Disclaimer: The views and opinions expressed in this article are the personal opinions of the author.

The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of GK.

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