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Criminal Responsibility
Children below the age of ten cannot be charged with criminal offences as they are considered incapable of committing criminal offences. This is considerably lower than the age in most other countries and in both 1995 and 2002 the UN Committee recommended that the age of criminal responsibility be raised. Under the CDA, children under the age of ten can be the subject of a Child Safety Order. The order has the effect of placing the child under the supervision of a social worker or the youth offending team and it may require a child to comply with certain conditions such as curfews.
Another new measure introduced by the CDA is the introduction of Local Curfew Schemes which allow the Local Authority in consultation with the Home Office to introduce a scheme whereby children are banned from being in a public place during certain hours unless they are accompanied by an adult. Police can take a child home and inform the local authority if they are of the view that the child breached the order. The local authority has an obligation to follow up on any breach by making its own enquiries. This scheme was originally intended to apply to children under ten but can now be used for older children as well.
A further initiative of the CDA is the Anti Social Behaviour Order (ASBO) which can be used on any person over the age of ten years. The local authority or the police can make an application to a Magistrates’ Court for an ASBO where it appears that a person or family is behaving in a manner which has caused or is likely to cause harassment, alarm or distress to a person or people not of the same household. This is a civil application and the onus is on the defendant to disprove the allegations. ASBOs can last up to two years and a breach of an ASBO is a criminal offence.
In 2002 the UN Committee recommended that the Government review the use of ASBOs because it considered that they were incompatible with the UNCRC. This is because they are ‘status offences’ and also because they can be imposed without compliance with the minimum fair trial guarantees in Article 6 of the Convention.
In 2005 the CDA was amended to allow Parental Compensation Orders to be granted in relation to the behaviour of children under the age of 10 (there is no minimum age). Under these measures a parent can be fined up to £5,000 for the behaviour of their children.
The CDA also removed the concept of ‘doli incapax’ under which children between the ages of ten to 13 were deemed incapable of knowing the difference between right and wrong. These children are now treated the same as other young people aged 14 to 17 years.
