The law surrounding the doctrine of doli incapax has always proven to be extremely controversial, and not just in England. No doubt every single country in the world has deliberated over the age at which a child should be presumed to know that he/she is culpable of wrongdoing to the same extent as an adult. However, where England is concerned, there are reasons that the Liberal Democrat Party is calling for the age of criminal responsibility to be raised.
Now that Scotland has raised the age of culpability from eight to 12 years, England has the lowest age of criminal responsibility (10) in the whole of Western Europe. It is important to note that before the case of Jon Venables and Robert Thompson, England’s age of criminal responsibility was actually set at 14.
The sickening murder of two-year-old James Bulger shocked the entire nation, prompting the revision of doli incapax by four years. As Venables and Thompson were only 10 at that time, it would not have been possible to punish them to the full extent of the law if the age of criminal responsibility had not been changed.
Opponents of raising of the age of criminal responsibility draw our attention to other, equally despicable cases involving children of similar ages that have come to light in recent years. There is the case last year in Edlington, Yorkshire, where 10- and 12-year-old boys tortured two younger boys in a perverse and extremely cruel way. These youths were given indefinite sentences when the case went to court. In another recent case, 10- and 11-year-old boys were convicted for the attempted rape of an eight-year-old girl.
Basically, English law states that these children were fully aware of the crimes they were committing. The doctrine of doli incapax insists that from the age of 10, a person has a fully developed understanding of the difference between what is right and what is wrong. This is where this issue becomes so controversial.
Has England insisted on keeping its age of criminal responsibility lower than the rest of Western Europe’s merely due to the fact that we have been unlucky enough to witness heinous crimes committed by such young members of our society? This must be the case; after all, the law of doli incapax would never have been changed but for the murder of James Bulger.
Other Western European countries take an entirely different approach when the most serious crimes are committed by children who are too young to be held criminally responsible. I can recall considering the James Bulger case in detail during my own legal studies, when I learned about a very similar crime committed in Trondheim, Norway. The Norwegians sought to handle the perpetrator of the crime in an entirely different manner than the English. Their approach focused far more on rehabilitation and restorative justice rather than the ‘lynch’ mentality that was so prevalent in England in the wake of the Bulger case.