Age of criminal responsibility/Strafmündigkeit

I found a reference yesterday that suggested Tony Blair reduced the age of criminal responsibility in the UK from 14 to 10 (14 is the age in Germany and 10 in England and Wales).

Anyone who remembers the two eleven-year-old boys in Liverpool convicted of the murder of a toddler will know the age of criminal responsibility has always been 10 (apparently 8 in Scotland).

What I had forgotten was that there really was a change under Blair: there used to be a get-out condition, in that a child aged between 10 and 13 could only be convicted if he had mischievous discretion, which meant that he knew what he was doing was wrong. There was a presumption (Vermutung) that the child was doli incapax (incapable of committing a criminal offence). I don’t know how often this worked in court, but it won’t have made any difference in the cases of murder that make the headlines.

At all events, this doctrine of doli incapax was indeed abolished, as was the presumption that a boy under 14 is incapable of rape. Here’s Lord Goodhart speaking on the subject in the House of Lords in 1998:

The noble Lord said: Amendment No. 174 proposes the abolition of the rule known by one of those tiresome expressions of legal Latin, doli incapax. The doli incapax rule has come under considerable attack in recent years and that attack is indeed, I believe, to a large extent justified. In many cases the presumption that a child or young person under the age of 14 does not know that what he is doing is seriously wrong is indeed contrary to common sense. It is a waste of time and money to call evidence to prove what is in fact obvious: that a 13 year-old defendant who has done something extremely unpleasant knew that his conduct was seriously wrong.

As Goodhart suggested, it would make more sense to reverse the presumption, thus saving court time.

This move was correctly described in German as a reduction of ‘das Alter der unbedingten Strafmündigkeit’ (Google gives examples). But the ‘unbedingt’ has sometimes been omitted.

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