The current consideration of a proposal to raise the age of criminal responsibility in Northern Ireland from 10 to 14 is the latest in a series of reforms over the past 100 years. While there are competing views based on recommendations from the United Nations and other international bodies, Northern Ireland has traditionally looked inward when making such decisions.
The age of criminal responsibility has changed before. Under English common law prior to 1933, children under the age of seven were conclusively presumed incapable of committing a crime (doli incapax). Children aged between seven and thirteen could be held responsible only if it could be proved that they understood their actions were seriously wrong. In 1933, the age of criminal responsibility was raised to eight, and it was further increased to ten in 1963. The principle of doli incapax continued to apply to children aged between ten and thirteen; in effect, the prosecution had to prove that the child knew their actions were seriously wrong. This principle was abolished in 1998 and provides important context for the current debate.
We live in a society that recognises that the challenges facing children are increasing and extend beyond those experienced by previous generations. Within the next few weeks, the UK Government is expected to introduce proposals to limit children’s access to social media under the age of 16. A significant driver behind such proposals is the concern that malign actors and harmful online influences can shape children’s understanding of right and wrong more powerfully than parents, educators, or legislators.
Neither our educational resources nor our health services are currently capable of fully addressing the increasing number of young people presenting with complex behavioural, developmental, and mental health challenges. These issues are not criminal in themselves, yet without the principle of doli incapax, the legal protections available to some children may be limited, particularly where a formal diagnosis remains outstanding.
If we cannot be certain that our young people, whether through inadequate access to healthcare or exposure to harmful external influences, possess the maturity required to distinguish fully between right and wrong, how can we be confident that any criminal prosecution meets the most basic principles of justice?
Previous reforms have involved relatively modest increases in the age of criminal responsibility. An increase to fourteen would represent a significant shift in UK terms, although not by international standards. Considering the issue through the lens of child development, rather than relying on a simplistic age-defined cut-off, provides a more appropriate basis for decision-making. Any parent knows that a child completing their first year of post-primary education is a very different individual from the child who completed primary education only a year earlier. Growing maturity, together with an increasing understanding of relationships and social norms, is fundamental to becoming a constructive member of society. Increasing the age of criminal responsibility to twelve, based on recognised child development milestones, represents a rational and justifiable position.
There is a possible route to blocking the proposal to raise the age to 14 through the use of a Petition of Concern. Petitions of Concern should be subject to limitations that prevent their use in routine political disputes. They exist to protect minorities from discrimination and to safeguard fundamental human rights. The use of a Petition of Concern to overturn a democratically reached decision sets a dangerous precedent. It allows political parties to avoid the responsibility of engaging in debate, persuading others through cogent argument, and securing support through the normal democratic process.
There is a fundamental question about the nature of justice in todays world, are the interactions our children encounter, experience, learn from the same as existed in 1963 when the age of criminal responsibility was established at 10. Does the removal of doli incapax strengthen the protections for vulnerable children in todays society. The challenges are different, shouldn’t the response be capable of meeting them.
Cicero's Voice 