Rights & Law
Minimum Age of Criminal Responsibility: The Threshold That Isn't Truly Set in Stone
Considering a 10-year-old to be a criminal seems harsh, and not all countries think it's fair, but it's a threshold with a complex legal history. The age at which a child can be held criminally responsible for their actions is a deceptively simple-sounding number.
What this piece covers
What the law is actually trying to do
The definition of minimum age of criminal responsibility comes from UN General Comment No. 24, 2019. It's the age below which children are considered by law not to have the capacity to infringe the criminal law. Many countries set that minimum age at 10, 12, or 14, but the comments specifically advise against prosecutions of children under 14. If the child's age cannot be verified, they should not be held criminally responsible. The concept of doli incapax goes further: it's a common law presumption that a child below a certain age lacks the understanding to know that an act is seriously wrong.
There is more: in New South Wales, the doli incapax presumption applies to a child under 14 years of age, and it means a child aged 10 to 14 is presumed to lack the knowledge for criminal responsibility. Australia has one of the lowest ages of criminal responsibility: the global average is 14. A Hong Kong report recommends continuing a presumption of doli incapax for children aged 10 and below 14 years.
In both NSW and Hong Kong, it's not just about a fixed age: each jurisdiction recognises a presumption that needs to be rebutted. The test is high. An attempted conviction would require the prosecution to prove the child understood their act was seriously wrong.
Why 10, 12, and 14 keep appearing
It's not that 10, 12 or 14 keeps being reviewed. Rather there is a tension, because the UN says to set the threshold at 14 but in Australia the threshold is 10.
The UN's recommendation, that the age of criminal responsibility should not be set below 14, is based on scientific research. It recognises the long period of development for children, affecting their interests and decision making.
There is evidence from the Leiden University about why this matters. There's a distinction between cognitive abilities and reasoning. The former develops early, and so an younger child with good cognitive ability can commit a crime. But the ability to reason, and especially to reason about decision making, develops later. This means that a younger person may have the cognitive ability to commit a crime, but may not have the maturity to be criminally responsible. Only the latter should be protected by the age of criminal responsibility.
Which is why the actual real-world principle is doli incapax. The real question is: did the child actually have the understanding to be criminally responsible? This has to actually be assessed by a court, through evidence, as a legal threshold.
Why the age gets reviewed
Some kind of review is a constant feature, and right now it's happening at both the UN and the regional level. For example, the UN Committee's 2019 general comment recommends states increase the minimum age of criminal responsibility to at least 14 years of age, on the basis of developmental science. It is this recommendation that has spurred campaigning for the age to change in Australia and Hong Kong.
The Hong Kong Law Reform Commission recommended continuing the doli incapax presumption for the 10 to 14 age group.
So what are those rules? The Hong Kong message makes a key point: the doli incapax presumption requires the prosecution to prove the child in question was aware that their actions were seriously wrong. This means that it is not a question of maturity, age, cognition. It requires practical evidence, not just generalized impressions about the child's level of development.
This supports the scientific approach of the UN - that the real question is around understanding the decision - rather than covering all children in a young age bracket.
The other recurring feature is considering different thresholds for different offences. This approach seems to reduce the tension between the different thresholds. For example, The Hong Kong Law Reform Commission doesn't think that the doli incapax test should apply to murder - there it thinks that the child should be dealt with under different laws, instead.
Where does this leave us?
The result is that there is never just one number. The child may be above the age threshold but that is not the end of the analysis. The next question is: was it still presumptively beyond their understanding?
Put another way: the threshold may be 10, but it is asking a different question than a young person's ability to actually commit a crime. It is a higher hurdle - it's about the child's decision making capacity, and liability goes beyond capability.
This may be why in NSW there is clearly a policy debate about whether there should be an exception for offences like murder. That reflects a recognition that an older age is required for the decision to commit the crime, not the capability to commit it.
The result is that beneath a clear minimum age, what is really a feature is doli incapax, as a more flexible and evidence-oriented approach to determining when a child should be criminally responsible.