The age of criminal responsibility, meaning the age from which a minor can be considered sufficiently aware to commit an offence and to be subjected to the criminal justice system varies widely accross Europe. In the UK, Spain, The Netherlands, Portugal and Switzerland, the minor who has not yet attained the age of criminal responsibility can never be criminally responsible. The age of criminal responsibility varies between 7 and 16 in those 5 countries. Belgium and the Netherlands are the only countries where a judge can decide to reduce the age of criminal majority (e.g. divestiture in Belgium) based on the seriousness of the act and the character of the offender (who must be at least 16 years old). When this occurs, the minor is then judged as an adult.
This essay compared the different judicial systems for minors in France, Belgium and the UK. The results gathered show that despite France and the UK being among the most repressive systems in Europe and Belgium being one of the most protectionist system, they have common features. Belgium, France and the UK, all consider the age of the offender when dealing with juvenile delinquency. They all provide specific judges and courts for minors: the Youth Judge in Belgium, the Judge or Court for children in France, the Youth Courts in England and Wales and Children’s Hearings in Scotland. They all have in common the necessary attribution of a moral compound to minors when establishing criminal responsibility. The presumption of non-judgement/discernment (with the exception of divestiture) in Belgium, the notion of judgement/discernment as sole condition of criminal responsibility in France and the notion of non-discretion for minors under 8-10 years old in the United Kingdom. Those three countries put great importance in this notion of discnerment/discretion but none of them provide a legal definition of that term. It is up to the judges to define the concept. Another common thread between those three countries is that they all have alternative measures to criminal sanctions, although the latter is still frequently used in France and the UK.
A child can find themselve confronted to the justice system very early on. Over the past few years, we have witnessed an overrepresentation of juvenile delinquency which gives the impression that it is an ever-growing phenomenon. It provokes fear among the population which, in turn, leads to a hardening of viewpoints on criminal matters (Matthews, 2009). As such, the question often asked is: should we help young offenders or punish their actions ? It is an everlasting debate, the one opposing the protectionnist model, which advocates for educational measures, and the repressive model, which argues in favour of more punitive measures. As if the interest of the minors were incompatible with the interest of society at large. As if we had to make a choice between the two. Someone can have discernment and still be taught.
The State’s responsibility is to investigate the causes of the act’s commitment. But it doesn’t mean that we have to suppress responsibility among children. What is important is to put an emphasis on education as well. Otherwise, how can we expect a child to evolve ? Especially if we do not give them the opportunity to learn from their mistakes ? The capacity to bounce back after a shock ? If we fold an iron bar and then release it, it comes back to its initial position ; it’s called resilience. In psychology, it is said that a trauma is not destructive in itself. It becomes destructive if the person is not given the tools to survive it. If we give the right tools to minors, they will become stronger. And the more a child is facing difficulties in their life, the more we should invest in them. But that is not what is happening nowadays.
Words have a power of their own. They have an impressive impact on people’s behaviour. As a consequence, there is a real danger to label minors in conflict with the law as delinquents because they will then be seen and treated as such by society and they will end up viewing themselves as delinquents as well. It will shape their sense of self and make them more likely to be lured into committing other illegal acts instead of rehabilitating into society.
One of the drawbacks of setting a minimum age of criminal responsibility is that it reduces the flexibility of the judges in deciding which measures to apply to minors. Furthermore, if it is set too low, it prevents us from taking into account the different levels of moral development and capacity of understanding among children and teenagers. On the other hand, if it is set too high, it might spark a certain feeling of impunity among youths and a feeling of injustice among victims. As can be seen in this essay, setting the age of criminal responsibility is very complex and more and more people believe that it is very important to include the opinions of qualified psychologists in this process.