The approach to child offenders is a long-standing problem and has posed a legal quandary in many jurisdictions over the years. Various countries, including South Africa, find themselves trapped between a rock and a hard place, with rising juvenile crime on the one hand, and the duty to protect the interests of the child on the other.
The current South African position on establishing criminal capacity in incidents involving child offenders is contained in sections 7 and 11 of the Child Justice Act 75 of 2008. At present, a child below the age of 10 (compared with the international norm of 12) is considered not to have criminal capacity; a child between the ages of 10 and 14 is presumed to lack criminal capacity, unless the state proves otherwise (also known as the doli incapax rule), while children aged 14 and older are generally assumed to have criminal capacity and can therefore be prosecuted for an offence.
Rebutting the presumption of criminal incapacity for those aged 10 to 14 involves an extensive process with several stakeholders and tight turnarounds, which further intensifies pressure on the state’s already limited resources. Stakeholders in this predominantly pre-trial matter include the probation officer, the prosecutor, the magistrate and so-called suitably qualified persons (subject experts). The rebuttal process throws up a number of challenges. Perhaps the most significant challenge is the lack of a uniform model for, and limited resources to support, a child’s assessment. Section 11 of the Child Justice Act expressly requires a range of factors to be considered in establishing criminal capacity, including the child’s cognitive, moral, emotional, psychological and social development. This complicated task is further frustrated by the inadequacy of psychometric assessment tools available for local use, with cultural appropriateness being a chief concern. In addition, very few state psychologists specialise in the forensic assessment of children. The inevitable result is long delays in finalising matters. Another practical problem often encountered is the misinterpretation of the doli incapax rule. The theory underlying this principle is that the rebuttal of the presumption of criminal incapacity (and, therefore, a finding of abnormal maturity in a child offender) should be the exception rather than the rule. This implies that most children aged 10 to 14 should be regarded as not having criminal capacity. Yet evidence to the contrary seem to apply in practice: Case law reveals that most children in this age bracket are deemed by our courts to have criminal capacity and, therefore, to be abnormally mature.
Reform is clearly needed, and appears to be on its way in the form of the Child Justice Amendment Bill of 2018. This bill proposes that the minimum age for criminal liability be raised from 10 to 12, retaining the doli incapax rule for those aged 12 to 14. Certain procedural adjustments are also suggested to relieve the pressure on the state by limiting the resource-intensive process of proving criminal capacity to the hearing in the Child Justice Court. Will these amendments put South Africa on the right track in terms of dealing with child offenders, or should we reconsider the proposals in the bill?
England, too, had long struggled to strike the right balance with regard to child offenders, and eventually decided on a considerably stricter approach. While also having 10 as the minimum age for criminal capacity, that jurisdiction went a step further by abolishing the doli incapax rule for children aged 10 to 14 in 1998. This step formed part of the British government’s campaign against juvenile crime, sending a very clear message that children would be held accountable for their actions. The move had been further motivated by the brutal killing of two-year-old James Bulger by two ten-year-olds in 1993. In effect, therefore, all children above 10 in England are deemed to have criminal capacity and are subjected to full criminal prosecution should they run foul of the law. While at first many were in favour of the abolishment of the doli incapax rule, thinking that it was well aligned with international expectations, the practical effects of this step were less than ideal. A mere year following the scrapping of the rule, the number of children between 10 and 14 who had been issued police warnings or convicted of a criminal offence rose by 29%. This, in turn, resulted in an increase in children being detained, as well as longer prison sentences. Most importantly, imprisonment has not done much to reduce juvenile crime. Ever since then, pressure groups have been appealing to the British government to reinstate the doli incapax rule.
While South Africa has high juvenile crime rates, and England’s criminal system for child offenders is regarded as among the strictest in the world, this comparative study suggests that we might be better off not following the English example. Although the practical complexities of rebutting the presumption of criminal incapacity for children aged 10 to 14 impose a huge burden on the criminal system, the practice cannot be abolished at the expense of justice and the best interests of the child. Scrapping the doli incapax principle in England has not reduced juvenile crime, and has served only to significantly increase the number of children in detention. Therefore, should the proposals in the Child Justice Amendment Bill become law, South Africa appears to be heading in the right direction. The retention of the doli incapax rule, with measures to relieve some of the burden of proof on the state, would still offer child offenders much-needed protection. Moreover, raising the minimum age for criminal liability from 10 to 12 would move South Africa closer to the international norm.
Should it later appear that the proposed measures to relieve the burden of proof on the state are insufficient, South Africa might reconsider abolishing the doli incapax rule. Yet, as this contribution shows, such a step cannot occur without also raising the minimum age for criminal liability. Ultimately, the very aim of doli incapax is to offer a measure of protection to children aged between 10 and 14. Should this protection fall away, it would make sense to raise the minimum age for liability to at least 14, when it would be safe to assume that all children indeed have criminal capacity.
Keywords: child offenders; criminal capacity; doli incapax; England; South Africa