When the age of criminal responsibility was raised to 14 in 2014 by this government, arguments for and against this shift dealt with complex and sensitive issues, especially in view of scenarios where young children are involved in particularly grave criminal offences.

As a signatory to the United Nations Convention on the Rights of the Child (UNCRC), the Maltese State was bound to ratify and implement its principles. The committee of that UN convention stated that setting the age of criminal responsibility below 12 is considered “not to be internationally acceptable”. Hence, the amendment in the Maltese Criminal Code.

As things stand, children under the age of 14 who commit criminal acts cannot be charged with and prosecuted for what they did. This applies to crime that could range from theft and murder to sexual offences. Nevertheless, the police still have the power to investigate children under 14 and any criminal offence that is committed by minors under the age of criminal responsibility.

It is well established that for a person to be found guilty of having committed a criminal offence, s/he must not only be responsible for having effectively carried out the commission of the criminal act but must also have the requisite level of mental awareness and be able to form an intent to want that criminal act and foresee its consequences.

Evidence suggests that children who are still under the age of 14 may not truly understand the full impact of their actions on themselves or others.

The truth is that the vast majority of children and young people will never have any contact whatsoever with the police or juvenile justice. This notwithstanding, those children who do are often the ones who would be facing extremely difficult and challenging situations at home. Research shows that abuse, parental neglect, parental addiction or substance abuse and bereavement contribute to the making of child offenders.

It is indeed tragic to witness children, who, aged 12, would have already faced prosecution and acquired a criminal record that they would have to bear for life.

On the other hand, one understands the need to address the problem of child offenders in times where the younger generation is roaming within loose boundaries. Appropriate action has to be taken to address issues as they arise and protect the victims of harm.

The idea behind raising the age of criminal responsibility is to support children rather than criminalising them. Dragging children into a criminal justice system often a time backfires and criminalises children in the process. This is because children are ill-equipped to deal with the difficult circumstances they find themselves in.

Raising the age of criminal responsibility further denotes that people will no longer have to bear a criminal record for events that would have taken place when they were children.

Hence, it is safe to say that the case for raising the age of criminal responsibility to 14 is overwhelming. However, rather than prosecution and conviction, child offenders need a welfare-based approach to their issues and support in troubled times.

The recent legal changes were a step in the right direction. However, equally of value is the new National Crime Prevention Strategy, which includes the drafting of a Youth Justice Act and addresses youth motivations before they find themselves on a criminal path.

Malta was the only European Union country without a National Crime Prevention Strategy. The Youth Justice Act will now lay the foundation for a progressive youth justice that will ensure Malta is a fair place for children and that their rights and welfare will be given the paramount importance that they require rather than criminalising vulnerable children.

Veronique Dalli, Lawyer

There is no doubt that one of the most difficult aspects of any criminal justice system lies in the way its laws and judiciary deal with acts committed by those still in their age of childhood innocence. Different jurisdictions apply different ages and methods to establish when a minor has made it through to maturity and should, therefore, assume full responsibility under criminal law.

The Criminal Code clearly provides that a minor under 14 is exempt from criminal responsibility for any act or omission.

Prior to 2014, this provision of the law was not subject to any other law or restriction. Amendments to the Criminal Code approved that same year clarified that this general rule was to apply without prejudice to the powers of the relevant minister under the Children and Young Persons (Care Orders) Act and any other law providing for measures of protection, help, care and education of minors.

Through these amendments, the legislator wanted to subject this general exemption to a myriad of already existing and future powers afforded to the State in fulfilling its obligation to protect, help, care and educate minors.

Our Criminal Code also provides an exemption from criminal responsibility in the case of a minor under 16 who commits an act or omission without any mischievous discretion.

In cases where a crime is committed by a minor aged between 14 and 16 with mischievous discretion and in the case where the minor is aged between 16 and 18, the applicable penalty is decreased by one or two degrees.

It is clear that our legislator wanted to distinguish between adults and minors. Rightly so, adults are presumed to have a far greater understanding of the world and a full understanding of the consequence or gravity of their behaviour. The same certainly cannot be said of minors, particularly those under 14.

The United Nations Convention on the Rights of the Child, which Malta ratified in 1990, requires signatory states to seek “the establishment of a minimum age below which children shall be presumed not to have the capacity”. The convention does not specify a particular minimum age of criminal responsibility although states in which the minimum age is 12 or less have been criticised.

The UN’s Standard Minimum Rules for the Administration of Juvenile Justice (also known as the ‘Beijing Rules’) explain the general philosophy behind this approach: “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. If the age of criminal responsibility is fixed too low or if there is no age limit at all, the notion of responsibility would become meaningless.”

Our courts have repeatedly stated that the exemption from liability afforded to minors under 14 is a matter of public policy. As such, the exemption cannot be renounced by the minor, his parents or any other person charged with the upbringing of the minor.

One could easily feel it is unjust and nonsensical not to impose a punishment on a minor but then impose it on others who have committed the same crimes. However, this is certainly not the case. While it is true that minors are today more discerning than ever before – mostly because of the advancement of education and the social media revolution – lowering the age of criminal responsibility would send out a wrong message to society: that children are criminal first and foremost and children second.

Yes, justice should be blind but it should also be fair with the accused, the victims and society in general, not least with those who have not yet attained the emotional, mental and intellectual maturity to be held responsible for their actions.

Karol Aquilina, President, Nationalist Party Administrative Council