Getting to the Heart of the Matter: Addressing the Minimum Age of Criminal Responsibility
The Centre for Children’s Rights (CCR) at Queen's University Belfast are delighted to host this blog series in partnership with the Children’s Law Centre, Include Youth, NIACRO and VOYPIC. Academics within the CCR, in partnership with some of these organisations, co-hosted a seminar at Queen’s in 2015 attended by the then Minister for Justice, David Ford in which we discussed the very same issue of raising the age of criminal responsibility in Northern Ireland. It is disappointing that little has been progressed in the intervening years. This blog series represents our joint commitment to keeping debate and discussion about raising the minimum age of criminal responsibility (MACR) on the public and political agenda.
In the first in a series of articles, Siobhan McAlister and Laura Lundy from the Centre for Children’s Rights at Queen’s University Belfast outline rights obligations regarding the age of criminal responsibility. This will be followed by a series of blogs and vlogs from representatives across a range of sectors who are involved in the discussion on raising the minimum age of criminal responsibility.
Over 10 years after the Review of Youth Justice which recommended that the minimum age of criminal responsibility be raised with ‘immediate effect’, and despite repeated criticism from the UN Committee on the Rights of the Child, the age of criminal responsibility in Northern Ireland is still below international standards and obligations.
While the Committee on the Rights of the Child have reviewed the evidence and recommend a minimum age no lower than 14, with a preference for a higher age of 15/16 (UNCRC, 2019, GC No. 24), and fifty States parties have raised their minimum age to some degree (ibid), Northern Ireland retains one of the lowest ages of criminal responsibility in Europe. At the same time, there has been an increase in the proportion of 10-13 year olds and 14 years olds referred to the youth justice system (from 7.9% to 14.3% and 10.5% to 14.8% of total referrals respectively from 2016-2020) (Brown, 2020: 7).
Northern Ireland does not have a particularly punitive youth justice system or approach to engaging with children in conflict with the law. The best interests principle has been enshrined in the aims of the youth justice system, the Juvenile Justice Centre is run on a welfare ethos, there have been moves to divert children from formal (court) processes, and significant developments in early intervention and prevention. Indeed the Outcomes Delivery Plan of the Programme for Government sets clear actions aimed at ‘exit[ing] children from the youth justice system at the earliest point’ (TEO, 2019: 52). This is all in line with UN obligations on children’s rights in the child justice system (UNCRC, 2019). Such a low MACR, therefore, stands in direct contrast to some of the more progressive developments in youth justice.
Article 40 (3)(b) of the UNCRC requires States parties to promote ways to divert children over the age of criminal responsibility from formal judicial processes, and while the majority of children in Northern Ireland are dealt with through diversionary disposals (Brown, 2020), these still bring children into the formal justice system and carry a criminal record. Early Stage Intervention, while perhaps aimed to ‘support children on the cusp of or in the early stages of offending’ (ibid: 5) still involves referral to the Youth Justice Agency – a body of the criminal justice system. This is important because criminological research reports that formal system contact can, even if diversionary and welfare-orientated can be detrimental to children – enhancing risk, potentially leading to further system contact (criminalisation) and stigmatisation (McAra and McVie, 2007; O’Brien and Fitz-Gibbon, 2017).
Raising the MACR to 14 would remove 156 children from the youth justice system and processes that can be potentially detrimental. Raising it to 16 would remove an additional 330 children. But to do so of course necessitates responses outside the youth justice system. The UN Committee is clear that an effective approach to raising MACR:
… depends on how each State deals with children above and below that age. … Children below the minimum age of criminal responsibility are to be provided with assistance and services according to their needs, by the appropriate authorities, and should not be viewed as children who have committed criminal offences. (UNCRC, 2019, para 23)
A ‘systemic approach to prevention’ (ibid, para 12) could provide community-based initiatives and supports that avoid the negative impacts of criminal justice system contact at such a young age.
Children in conflict with the law represent some of our most vulnerable children, and despite some of the good work that takes place within our youth justice system, dealing with welfare issues and complex needs through criminal justice mechanisms can add to some of the difficulties these children already experience.
O’Brien and Fitz-Gibbon (2017: 148) remind us that there is not only ‘greater utility’, but also ‘greater humanity’ in responses that prioritise welfare over punishment/ justice’.
We believe this can be achieved by raising the age of criminal responsibility.
About the Authors
Laura Lundy is Co-Director of the Centre for Children’s Rights and Professor of Children’s Rights at Queen’s University Belfast, and Professor of Law at University College Cork. Laura’s expertise is international children’s rights with a particular focus on the implementation of the UN Convention on the Rights of the Child in law and policy, education rights and children’s right to participate in decision-making.
Dr Siobhan McAlister is a senior lecturer in Criminology at Queen’s University Belfast. Her research interests are in the fields of youth, social justice and criminal justice. Siobhan has a particular interest in in-depth qualitative research with marginalised groups, including those who have experience of care and/or justice systems.