UN Convention on the Rights of the Child Art 40(3) . 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, and, in particular: the esta
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1. AGE OF CRIMINAL RESPONSIBILITY & BILL OF RIGHTS 19 October 2007
2. UN Convention on the Rights of the Child Art 40(3)
“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, and, in particular:
the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.”
3. Key Issues Capacity – maturity, understanding
Child –centred specialised legal & justice process
4. UNCRC Under Article 40(4) of the Convention, it is further provided that: “A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”
5. Beijing Rules UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (1985):
“In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the fact of emotional, mental and intellectual maturity.” (4.1)
6. Beijing Rules commentary “The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour…
7. Beijing Rules continued “If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc.)”
8. Situation in GB & NI Age 10 – England, Wales & NI
Crime & Disorder Act 1998 – ended protection of Doli Incapax, the presumption of innocence for children aged 10 - 14
The Criminal Justice (Northern Ireland) Order 1998 – removed Doli Incapax
9. European Age Republic of Ireland - 12
France, Holland, Poland - 13
Germany and Italy - 14
Spain - 16
Luxembourg - 18
10. Thompson & Venables decision T&V v UK 1999 - European Court of Human Rights held that rights of Thompson and Venables breached during trial for the murder of two year old James Bulger.
Decision based on UNCRC, ICCPR, Beijing Rules and ECHR.
11. T&V v UK [The trial] was conducted with the formality of an adult criminal trial. The judge and counsel wore wigs and gowns. The procedure was, however, modified to a certain extent in view of the defendants’ age. They were seated next to social workers in a specially raised dock. Their parents and lawyers were seated nearby. The hearing times were shortened to reflect the school day.... [They] were allowed to spend time with their parents and social workers in a play area.
12. T&V v UK “…the cumulative effect of the age of criminal responsibility, the accusatorial nature of the trial, the adult proceedings in a public court, the length of the trial, the jury of twelve adult strangers, the physical lay-out of the courtroom, the overwhelming presence of the media and public, the attacks by the public on the prison van which brought him to the court and the disclosure of his identity... gave rise to a breach…”
13. UN Committee Rights of the Child “The Committee is particularly concerned that the age at which children enter the criminal justice system is low with the age of criminal responsibility still set at 8 years in Scotland to 10 years in the rest of the State party and the abolition of the principle of doli incapax. (Concluding Observations 2002 para 57)
14. UN Committee Rights Child General comment (10), February 2007 praised states with “commendable high age of 14 – 16”
Age below 12 – “not internationally acceptable”
15. Europe’s Ombudsmen for Children “Children in conflict with the law are still children first and do not lose their human rights, including rights to special treatment and protection, to education and to health.
We believe that current trends to reduce the age of criminal responsibility and to lock up more children at younger ages must be reversed. The treatment of young people placed in penal institutions in many of our countries is a scandal – breaching their fundamental human rights.”
16. Europe’s Ombudsmen for Children “We do believe that children should be held “responsible” for their actions in line with the concept of evolving capacities and our strong advocacy for respect for children’s views in all aspects of their lives. It is essential to establish responsibility for crimes. Where responsibility is disputed, there has to be a formal process to determine responsibility in a manner which respects the rights of the alleged offender. But this process does not have to lead to criminalising children.”
17. Europe’s Ombudsmen for Children “We believe that all states, far from considering lowering current ages of criminal responsibility, should aim progressively to raise them to 18, developing innovative systems for responding to all juvenile offenders below that age which genuinely focus on their education, reintegration and rehabilitation.” (2003)