By Thomas Crofts -
Snapshot
- While some jurisdictions have raised the minimum age of criminal responsibility to 12 or 14, others remain at 10, creating legal inconsistencies and concerns about fairness.
- Despite these changes and an ongoing review, the rebuttable presumption that children under 14 lack criminal capacity persists, with recent High Court cases reaffirming its importance and evidentiary standards.
- This article looks at the need for clearer statutory definitions of doli incapax to ensure consistent protection for children and better alignment with developmental science and international obligations.
Debate around the minimum age at which a child should be held criminally responsible and whether above this age there should be any presumption that a child lacks the capacity to be held criminally responsible— better known by the Latin, doli incapax—has recently intensified. This has led to some jurisdictions raising the minimum age of criminal responsibility (‘MACR’) and considering whether there should be reforms to the presumption of doli incapax. It is an opportune time to reflect on the foundations of the law relating to the criminal responsibility of children, why some jurisdictions have raised the MACR and what this means for the presumption of doli incapax.
History and basic elements of the MACR and doli incapax in Australia
From Anglo-Saxon times (see, e.g., the Laws of King Ine (688) and King Athelstan (925)) special provisions have been made in relation to the age at which children can be held accountable for criminal behaviour. At common law this developed into two presumptions regarding a child’s criminal capacity: a lower one where the child is absolutely or irrefutably presumed incapable of guilt (MACR) and a higher age where the presumption of incapacity is rebuttable (presumption of doli incapax).
