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Age of criminal responsibility

A juvenile is a minor who has committed an offence/crime, thus finding him/herself in the child criminal justice. The United Nations Committee on the Rights of the Child states that a juvenile is anyone under 18 years of age, that is anyone who is a minor.

The establishment of a minimum age is a basic requirement in a juvenile criminal justice system. It marks the age when a child can be held responsible for his/her actions. Internationally, there is no common minimum age of criminal responsibility (MAoCR), with the European Convention on Human Rights being silent about the matter. Article 40(3) of the United Nation Convention on the Rights of the Child (UNCRC) merely obliges states to adopt a MAoCR but it does not impose on them a specific age to which they must adhere. In the developed states, Switzerland has the lowest age of criminal responsibility at seven years and Belgium has the highest at 16 to 18 years of age.

In some states the age of criminal responsibility can be reduced according to the gravity of the crime committed so that juvenile perpetrators can be held responsible for their actions. For example, New Zealand lowers the age of criminal responsibility from 14 to 10 years if the crime is murder or manslaughter.

A low age of criminal responsibility encourages states to hold responsible children who do not have the maturity to understand the extent of their wrongdoings. In England, Jon Venables, one of the boys who murdered James Bulger, a toddler, "suffered post-traumatic effects of the offence and cried inconsolably throughout, found it difficult to talk about what he and T. had done and suffered fears of punishment and terrible retribution" (V. vs the United Kingdom).

In Malta, the Juvenile Court Act seems to point out that a juvenile is any person below 16 because article 6(2) states: "Where in the course of any proceedings before the Court of Magistrates it appears to the court that the person charged or to whom the proceedings relate is under the age of 16 years, the said court shall adjourn the case and refer it to the Juvenile Court..."

Article 35 of the Maltese Criminal Code lays down that minors under the age of nine years are exempt from criminal responsibility. It adds that minors under 14 years of age shall likewise be exempted unless they have mischievous discretion. However, if a minor who is above nine years but below 14 years, is found to have mischievous discretion, he/she can be held responsible but being given only the punishments established for contraventions. However, the court can impose the punishment allotted to that particular offence decreased by three years and under no circumstance can the punishment exceed four years imprisonment, if taking into account the age of the offender, his previous conduct, the gravity of the fact of which he has been convicted and the degree of the mischievous discretion, the court believes he/she should so warrant.

If the offender is below 18 but above 14 years of age, upon conviction he/she will be sentenced to the punishment allocated to that offence diminished by one or two degrees.

The juvenile justice system, unlike the adult system, began with a strong welfare direction. However, by time such direction regressed back towards the less paternal and more aggressive justice model. Recently, in Edlington, England, two brothers, now aged 11 and 12, who were convicted of sadistically torturing young boys were given an indeterminate sentence, that is they can be jailed forever.

Research has shown that the majority of child offenders are victims themselves. This strengthens the argument that a child who has committed an adult act should not be treated as an adult because he/she is still cognitively, emotionally and socially different from adults. Instead, there should be the promotion of the child's reintegration and assuming a positive role in society.

Juveniles are different from adults and should be treated as juveniles and not given adult sentences. The US Supreme Court, in Roper vs Simmons (2005), said that, juvenile actions are the result of a lack of maturity and an underdeveloped sense of responsibility. Juveniles are more vulnerable and susceptible to negative pressure and the character of a juvenile is not well-formed as that of an adult. Thus, it would be wrong to equate a juvenile with an adult offender because there is a greater possibility that a minor will be reformed. The MAoCR should not be too low and sentences should not be harsh but should be aimed to rehabilitate.

Dr Mangion is a lawyer and a published author with a special interest in Family Law and Child Law.

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