The age limit of 8 years under which no act of a child is considered an offence is to be increased to 12, by way of an Amendment to the Penal Code. The Government gazetted a Bill to amend Chapter 19 of the Penal Code to give effect to the above revision of the age limit. According to the Bill “Nothing is an offence which is done by a child under 12 years of age. Nothing is an offence which is done by a child above twelve years of age and under fourteen, if the judge is of the opinion that he has not attained sufficient maturity to understand the nature and consequences of his act”.
Consent of the parent
If the child, who committed the offence, is between 12 and 14 years of age, law enforcement authorities must consult the Magistrate, on his discretion to determine whether the child has the required degree of maturity to commit an offence.
In order to facilitate this revision of law, the Government also gazetted an amendment to the Criminal Procedure Code to insert a new section to enable the officer in charge of a police station to direct a child between 12 and 14, alleged to have committed an offence, to be examined by a Government Medical Officer or other expert in the relevant field, in order to assist the Magistrate to form his opinion on the maturity of understanding of such child. It must be done with the consent of the parent or guardian of the child.
The two Bills have been gazetted by the Justice Ministry and will be presented to Parliament for approval by Justice Minister Thalatha Athukorale. The Cabinet approval for the amendments was granted last month.
The move to increase the minimum age of criminal responsibility was decided, considering the opinions of psychologists and other experts on the subject. Government authorities said, the expert view of psychologists and other specialists is that the current minimum age of 8 is too young to be subjected to criminal responsibility.
The Sunday Observer spoke to the Chairperson, National Child Protection Authority (NCPA) and some Psychologists, seeking their views on the new amendment.
Chairperson (NCPA), Marini de Livera says, it is an excellent move because, if children are drawn at a tender age into criminal justice systems they can get stigmatized and their mental and intellectual development could be affected, as well as their long term ambitions, prospects and opportunities.
“Therefore, the move to increase the Minimum Age of Criminal Responsibility is laudable. For children to be held criminally responsible they ought to have maturity, understanding and the capacity to commit a crime. At 8 years it is doubtful whether a Sri Lankan child has the emotional, mental and intellectual maturity to be made legally-accountable for his/her actions. There is no set of international standard for this.
However, Article 40(3) (a) of the Child Rights Convention encourages State Parties to establish a minimum age below which children are presumed not to have the capacity to infringe the law. In General Comment 10, the Committee on the Rights of the Child has concluded that: (a) minimum age of criminal responsibility below 12 years is not internationally acceptable,” she said.
Tina Solomons, Senior Lecturer, Clinical Psychologist, Department of Psychiatry, Faculty of Medicine, General Sir John Kotelawala Defence University (KDU), Ratmalana, and Consulting Clinical Psychologist at Asiri Surgical, Durdans and Ninewells Hospitals spoke to the Sunday Observer on the subject.
Theories of development
According to her, raising the age limit from 8 to 12 is a good move. “As per the theories of moral development, understanding of what is good and bad starts to dawn at a reasonable level by age 8.
To actually come to the point of taking serious responsibility for one’s action therefore, age 12 would be appropriate.
The government would nevertheless have to find a mechanism to provide rehabilitatory services for children who do commit crimes earlier than this, though they may not have criminal responsibility. This is because, definitely, such a tendency could reasonably predict criminal behaviour in time to come,” she said.
“Children who receive a diagnosis of conduct disorder, which strongly predisposes the child to develop antisocial personality disorder as an adult, should receive psychological treatment and other monitoring mechanism to prevent developing antisocial personality disorders as an adult.
Therefore, I believe, the change of age limit might not reap the intended benefits if plans are not afoot to research and provide services to prevent childhood criminal tendencies in progressing into adulthood,” she explained.
Dr. Kumaranayake, Clinical Psychiatrist, Base Hospital Kohuwala said, “Our law has not changed for decades and we are far behind, compared with other countries.
This decision by the government is a good move. It should have been introduced earlier.
Allowing the judge and doctors to decide whether the child is at fault is a good resolve.
Childhood is a special time. The parents and society have a great responsibility and a role to play during one’s childhood. It is time we have proper counsellors in schools. At present, school counsellors are not given a proper training in counselling. It is very poor, and in such a situation, how can we reduce criminal offence committed by children? Our curriculum is subject oriented.
There is no space for children to devote time on extra-curricular activities. The brain is stressed out by the end of the day.
Scientists have recently found that teenage children are mostly under stress, personality development is disturbed and they are not able to control emotions.”
He explained that the prefrontal cortex, which is responsible for decision-making, impulse control and cognitive control, is among the slowest parts of the brain to mature and is not fully developed until around age 20. “As the prefrontal cortex, the principal decision making circuit is not fully developed, judgment making is poor in children.
So, they are not wholly responsible for the crime they commit. Parts of the brain responsible for decision-making and impulse control are still developing during a person’s teens,” he said.
“There is a huge variation among children in the rate of brain development and associated changes in mental function.
The age of criminal responsibility in England, Wales and Northern Ireland could be “unreasonably low” given the emerging understanding of how slowly the brains of children mature, according to a report by the Royal Society.
Neuroscience
Widespread differences between individuals also mean that the cut-off age at which children are deemed fit to stand trial, at 10 years, might not be justifiable in all cases.
The comments are part of an assessment carried out by a panel of scientists, lawyers and ethicists of how developments in neuroscience and brain imaging should inform the future practice of law.
Neuroscience and the Law examines how scientific understanding of the brain has advanced in recent decades and the light this has shed on behaviour. The report also assesses the reliability of lie detector tests,” he said.
Dr. Kumaranayake says, in England, Wales and Northern Ireland, a child is deemed fit to stand trial at the age of 10, but in recent years it has been shown that important changes in the brain’s neural circuits go on well into a person’s teens.
“In Scotland, children cannot be convicted until they are 12. A number of psychologists have already shown that adolescents are not wholly responsible individuals and are inclined to take risks and behave in irresponsible ways. What neuroscience has shown in the last 10 years is that this is at least associated with the fact that the brain continues to develop throughout adolescence,” he explained.
“Neuroscience adds to the evidence that a 10, 12 or 15-year-old does not have a fully adult brain in many important respects. Research has also shown that there is a huge variation between individuals, and the development of the slowest-developing parts of the brain is associated with comparable changes in mental functions such as, IQ, suggestibility, impulsivity, memory and decision-making. In contrast, the amygdala, an area of the brain responsible for reward and emotional processing, develops during early adolescence. “It is clear that at age 10 the brain is developmentally immature, and continues to undergo important changes linked to regulating one’s own behaviour.
Criminal responsibility
There is concern among some professionals in this field that the age of criminal responsibility in the UK is unreasonably low, and the evidence of individual differences suggests that an arbitrary cut-off age may not be justifiable,” he adds.
“Roger Brownsword a former professor of law at King’s College, London, says, the question of criminal responsibility showed how neuroscience should form part of general policy debates around criminal justice.
It would not be so much neuroscience driving that, but it may be that neuroscience became very relevant in the background as we review that particular question,” explained Dr. Kumaranayake.
He further said, Lawyers and neuroscientists have to be educated in the nature of behavioural and neuroscientific evidence that all it can do is, by and large, indicate changes in probability.
“The law is not only concerned with passing sentence in court, it is also concerned with prediction and risk assessment. Is this person likely to re-offend if released now from prison? It is impossible to make this prediction with any degree of certainty or accuracy. Risk assessment is a risky business and is notoriously inaccurate.
One of the main recommendations of the Royal Society report is that there should be an international meeting of neuroscientists and lawyers every three years to discuss the latest advances in areas at the intersection of neuroscience and the law to identify practical applications that need to be addressed,” he concluded.