Age and Criminal Responsibility

Age is a relatively unexplored topic in the theoretical literature on criminal responsibility. The first part of this paper examines a project on the age of criminal responsibility conducted by the Scottish Law Commission, the official law reform body for the law in Scotland. A key finding of that project was that legal systems tend to use two distinct senses of age of criminal responsibility. One concerns the capacity of a child to commit a crime; the other relates to exemption of a child from the “full” or adult system of prosecution and punishment. The Commission recommended that for Scots law, emphasis should be given to the age of criminal responsibility in this second sense. The second part of the paper explores issues about the age of criminal responsibility at a more theoretical level. It argues that the more coherent theoretical accounts of the concept are at the level of criminal process rather than as capacity or attribution. This is certainly true of cases where age prevents a child from participating in a criminal trial. Furthermore, there are difficulties in conceptualizing the age of criminal responsibility simply in terms of the capacity or incapacity of a child to act with the appropriate mens rea for an offense. Problems also attend theories that consider children as not being the sort of persons to whom the norms of the criminal justice system are addressed. These theories tend to use an analogy between children and the mentally disordered, but this analogy is inaccurate. Instead, it is argued, children below the age of criminal responsibility have, at the least, a degree of responsibility for their criminal actings. Not holding children as criminally responsible is to some extent contrary to fact and is concerned with ensuring that children who commit crimes are exposed to the special social goals of juvenile justice systems.