Infancy and criminal responsibility under the Brunei penal code: an overview

Infancy is a legal incapacity to be held responsible for a crime due to the age of the perpetrator. Infancy asserts that the defendant is not subject to criminal responsibility because he is too young to commit a crime. The policy supporting the infancy defence is the belief that juvenile defendants are too immature to form criminal intent. In other words, the infancy defence operates under the idea that children cannot be prosecuted as adults because they lack the emotional and cognitive maturity to understand the moral nature of their actions. It is a standard feature of all criminal jurisdictions to permit youthful immaturity to negate criminal responsibility. The criminal responsibility of infants is defined in ss 82 and 83 of the Brunei Penal Code (Cap 22). The sections mandate that the acts committed by a child without attaining sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion should not be considered as an offence. The paper aims to examine the operation of the infancy defence by making reference to ss 82 and 83 of the Brunei Penal Code. The paper concludes that a child under the age of seven years is unable to form a criminal mens rea and therefore, a child that young cannot be convicted of a crime. Children between the ages of seven and 12 years are also presumed incapable of forming criminal mens rea. However, this presumption is rebuttable. For example, the prosecution can still obtain a conviction by proving that the child knew what he was doing was wrong. The paper recommends that there is a need to relook into the age thresholds as far as the operation of the infancy defence under the Penal Code is concerned. For instance, the seven years age limit set by s 82 should be raised to 12. This should be subject to the fact that if the child is found to have not attained the ability of understanding the nature and consequences of his act. Raising the minimum age of criminal responsibility from seven to 12 years is inevitable, judging on account of the recent and significant increase in general knowledge of today’s children through improved education and access to information technology. In addition, the paper also recommends that s 83 should remain unchanged in terms of its operation. Alternatively, if a change is to be made to s 83, then the change has to embrace the spirit embodied in the definition of a “child” under the Children and Young Persons Act 2006 (Cap 219) as well as the Children Order 2000.