The Politics Thread

[mummywhycantieatcrayons]

It seems to me that if someone below the age of 16 commits a horrific act that would usually be associated with adults, then the best chance you have of having all courses of action to choose from is if there is a possibility of the child being held criminally responsible.

So - do you think there should be no age of criminal responsibility at all? This seems to mean this.

not ten? not nine? not eight? no age whatsoever in your view that someone should be considered too young to have criminal intent? And 'of all courses of action'? What does that mean? In Iran it means public hanging for girls of 14 that have sex. In Mary Tudor's England it meant a 9 year old being hanged for eating meat on a Friday.

Does it mean that we could sentence an eight year old to life imprisonment? If not, why not?

Yes - I do not think there should be a minimum of criminal responsibility - correct.

I'm saying that whether or not we sentence an 8-year old to life imprisonment has nothing to do with a bar on finding criminal responsibility below a certain age and everything to do with the fact that we should always try and find a sentence and rehabilitation programme appropriate to the case - and that goes for everyone.

Interesting - does that mean you think that all possibilities should be open? That ways of punishing adult recidivists should be open to punishing five year olds? That there should be no legal bar to doing this?

The legal bar is that all sentencing has to be appropriate to the case - by law.

[William the White]

It seems to me that if someone below the age of 16 commits a horrific act that would usually be associated with adults, then the best chance you have of having all courses of action to choose from is if there is a possibility of the child being held criminally responsible.

So - do you think there should be no age of criminal responsibility at all? This seems to mean this.

not ten? not nine? not eight? no age whatsoever in your view that someone should be considered too young to have criminal intent? And 'of all courses of action'? What does that mean? In Iran it means public hanging for girls of 14 that have sex. In Mary Tudor's England it meant a 9 year old being hanged for eating meat on a Friday.

Does it mean that we could sentence an eight year old to life imprisonment? If not, why not?

Yes - I do not think there should be a minimum of criminal responsibility - correct.

I'm saying that whether or not we sentence an 8-year old to life imprisonment has nothing to do with a bar on finding criminal responsibility below a certain age and everything to do with the fact that we should always try and find a sentence and rehabilitation programme appropriate to the case - and that goes for everyone.

Interesting - does that mean you think that all possibilities should be open? That ways of punishing adult recidivists should be open to punishing five year olds? That there should be no legal bar to doing this?

The legal bar is that all sentencing has to be appropriate to the case - by law.

Does that mean that courts must try a five year old and juries must convict and that sentence options will be the same as for a 50 year old but that there is a requirement of some kind to take into account the age of the convicted prisoner? Would there be quidance on this do you think?

[mummywhycantieatcrayons]

Does that mean that courts must try a five year old and juries must convict and that sentence options will be the same as for a 50 year old but that there is a requirement of some kind to take into account the age of the convicted prisoner? Would there be quidance on this do you think?

Well there is already guidance of this sort that takes into account the difference between 16 year olds, 50 year olds and 90 year olds.

There is another point here that prosecutions are only brought in the public interest... I cannot imagine a case against a 5 year old meeting this hurdle.

I'm happy for these cases to be considered case-by-case... I don't think the CPS would be overwhelmed by under-10s murderers.

[Prufrock]

IIRC Insanity is a full defence because it prevents you understanding the nature and quality of what you do, and so prevents you forming the mens rea. Is what I meant.

I get what you're saying, I just think public policy is better served by not trying ten year olds for murder. I don't think the ten year old exists who could in fact murder someone; kids brains don't work like that. I don't think your insurance policy of leaving it open so we catch the potential 10 year-old criminal mastermind is worth the opportunity it gives nutjob Carol Vorderman types.

[mummywhycantieatcrayons]

IIRC Insanity is a full defence because it prevents you understanding the nature and quality of what you do, and so prevents you forming the mens rea. Is what I meant.

I get what you're saying, I just think public policy is better served by not trying ten year olds for murder. I don't think the ten year old exists who could in fact murder someone; kids brains don't work like that. I don't think your insurance policy of leaving it open so we catch the potential 10 year-old criminal mastermind is worth the opportunity it gives nutjob Carol Vorderman types.

I personally don't feel the need to categorise everyone below a certain age as having the mental capacity of the medically insane. What would be your preferred number here, and how significant would you expect the consequences of being just either side of it to be?

I agree with you that public policy is better served by not trying ten year olds for murder - how many times have we tried under-14s for murder in the last 50 years?

[William the White]

I am so enjoying plebgate.

I think we should give the cops top marks for versatility - they don't just fit up the black, red or poor... they do it to Tory ministers as well...

[William the White]

IIRC Insanity is a full defence because it prevents you understanding the nature and quality of what you do, and so prevents you forming the mens rea. Is what I meant.

I get what you're saying, I just think public policy is better served by not trying ten year olds for murder. I don't think the ten year old exists who could in fact murder someone; kids brains don't work like that. I don't think your insurance policy of leaving it open so we catch the potential 10 year-old criminal mastermind is worth the opportunity it gives nutjob Carol Vorderman types.

I personally don't feel the need to categorise everyone below a certain age as having the mental capacity of the medically insane. What would be your preferred number here, and how significant would you expect the consequences of being just either side of it to be?

I agree with you that public policy is better served by not trying ten year olds for murder - how many times have we tried under-14s for murder in the last 50 years?

I don't know the answer to that, do you? I can think of four - Mary Bell, ten year old - the two Bulger murderers, ten year old and the current Kaiser Osman case (12 year old, 11 at the time of the killing)...

[Lord Kangana]

I am so enjoying plebgate.

I think we should give the cops top marks for versatility - they don't just fit up the black, red or poor... they do it to Tory ministers as well...

I think the changing of statements to fit the general agenda is a perfectly acceptable thing to do.

[Prufrock]

IIRC Insanity is a full defence because it prevents you understanding the nature and quality of what you do, and so prevents you forming the mens rea. Is what I meant.

I get what you're saying, I just think public policy is better served by not trying ten year olds for murder. I don't think the ten year old exists who could in fact murder someone; kids brains don't work like that. I don't think your insurance policy of leaving it open so we catch the potential 10 year-old criminal mastermind is worth the opportunity it gives nutjob Carol Vorderman types.

I personally don't feel the need to categorise everyone below a certain age as having the mental capacity of the medically insane. What would be your preferred number here, and how significant would you expect the consequences of being just either side of it to be?

I agree with you that public policy is better served by not trying ten year olds for murder - how many times have we tried under-14s for murder in the last 50 years?

You said that we do not say that 'fully understanding the consequences' is part of the mens rea of any crime - we simply ask what was intended. But with the defence of insanity we do say that if your insanity causes you not to understand the nature and quality of the act, then you cannot form the mens rea and so aren't criminally responsible. Interestingly, whilst that isn't the wording I used above, it is the exact same wording we use when discussing consent which was where we began.


We don't allow adults to say I didn't understand what I was doing because I was drunk, or because I lost my temper, because people have to take responsibility for their actions and should not get that drunk, or lose their temper in that way. That doesn't apply to the mentally insane where their illness means they don't understand what they are doing. The reason for that seems to me to have two prongs to me. Legally, how can you be said to intend to kill if you don't understand the nature of what stabbing someone is? From a policy point of view, it isn't fair to hold somebody criminally liable on account of something they have absolutely no control, or understanding over.

I'm not making a direct comparison, but I think the same reasoning ought to apply to children. I think that a lot of the time, although not always, those who think children should or could have criminal liability are those who don't spend much time with them. I think we project our own later considerations on our behaviour back onto our younger selves and come away with an impression that children are just smaller versions of our adult, rational, selves. That's all opinion, but I think the chances of a child ever being able to understand with any sense of meaning what 'murder' is are so small as to be discountable.

You don't seem to disagree on those odds, you said it's almost inconceivable that an 8 year-old could be found to have intended to kill someone. Now, whilst I get that you think that the chance, whilst remote, is such that it shouldn't be made criminally impossible, I don't get how that tallies with what you said on consent.

I do think that the age of consent is there because we deem a child under 16 incapable of understanding the nature and quality of having sex and with it the risks and complications. That it lets everyone know where they stand seems to be the sort of shit intellectual cop-out you usually rail against ! If it's policy though, why one rule for the age of consent, and one for the age of criminal responsibility? Both are to do with understanding the nature and quality, IMO. I think on balance having those sort of cut-offs is better than having none, but I can get the argument for having none. Judge each on its own merits blah blah. I just don't get the reasoning for supporting one and not the other!

I think the idea of a blanket cut-off age is a bit mad anyway. I think a better system is to have a lower age below which for policy reasons we just say you can't consent or you can't be held criminally liable. Above that I'd have band where there was a presumption you couldn't consent/form the mens rea.

For arguments sake, I don't think a 12 year old can understand the nature of having sex. I think it's unlikely that a 13-16 year old will, though not impossible, and getting more likely the nearer to 16 you get. Above 16 it's still possible that you wouldn't, but that ought to be something for the prosecution to prove. Now obviously, that still proposes an artificial distinction between someone 12 years 364 days old and someone 13 years old exactly, but I think it's a bit more sensible.

A child killing someone is a rare occurrence, but when it does happen, I think it's much better for all involved if the focus is on looking after and treating the child. I'd even go as far as to say that even if an 8 year old evil genius were to be found capable of intending to kill, the public interest is still better served trying to fix the kid rather than punishing him or her.

[mummywhycantieatcrayons]

I do think that the age of consent is there because we deem a child under 16 incapable of understanding the nature and quality of having sex and with it the risks and complications. That it lets everyone know where they stand seems to be the sort of shit intellectual cop-out you usually rail against !

Actually that's not true - I don't regard it as an intellectual cop out. Sometimes an unsophisticated one-size-fits-all rule is justifiable because the alternatives are too difficult and costly, and the certainty is useful in itself.

I do not often rail against this sort of utilitarian efficiency.

[Prufrock]

I don't think it is utilitarian efficiency.

What are the benefits? Certainty of what? That someone is over 16 doesn't mean they do consent (although I think some people think that is what it means). The overriding question people should be asking themselves is 'do I reasonably believe this person is consenting'. If the other person is 12 then, with or without an age limit, that answer is no.

I think a 16 'limit' is positively unhelpful. I also think criminalising (whether or not they'd actually be prosecuted) a 16 year old sleeping with his 15 year old girlfriend is unhelpful. It's going to happen, and making it harder for them to get proper advice, or think they can get proper advice is a bad idea.

[mummywhycantieatcrayons]

I'm saying that because we have a hard rule on this we do not have to make a subjective determination in every case about whether the individual is mature enough or ready. Without the rule, if a 40 year old slept with a 15 year old, we'd have to try and figure out whether the 15 year old was ready. On balance, the benefits of our drawing a line in the sand seem to outweigh the costs (especially given that we have prosecution guidelines against prosecuting when the two parties are very close in age).

In the context of wider discussion, I believe a subjective determination is worth doing in the case of young people doing things that would be called crimes in the adult context.

You keep talking about 'punishment', but that is not my focus at all. To take the Bulger killers as an example - there was an obvious need to keep them in secure conditions to make sure they were not a danger to the public or indeed themselves. It was also a good thing that they had a trial because that's the best way of working out what actually happened - getting to that conclusion is vital to working out what the best treatment for the child killers is, just as it is the case that has prompted this discussion. It goes without saying that legal proceedings involving children should take account of the challenges and senstivities that come with that.

Anyway I am now slightly unsure of your position. I have tried to say why I think our current arrangements are more or less the right ones, and that the gap we have between the ages of criminal responsibility and consent is correct and justifiable. If you could start from scratch, what ages of consent and criminal responsibility would you have?

[Lord Kangana]

I'm sure the law is capable of having hard and fast rules with objectively deduced or inferred caveats.

[Prufrock]

I'm saying that because we have a hard rule on this we do not have to make a subjective determination in every case about whether the individual is mature enough or ready. Without the rule, if a 40 year old slept with a 15 year old, we'd have to try and figure out whether the 15 year old was ready. On balance, the benefits of our drawing a line in the sand seem to outweigh the costs (especially given that we have prosecution guidelines against prosecuting when the two parties are very close in age).

In the context of wider discussion, I believe a subjective determination is worth doing in the case of young people doing things that would be called crimes in the adult context.

You keep talking about 'punishment', but that is not my focus at all. To take the Bulger killers as an example - there was an obvious need to keep them in secure conditions to make sure they were not a danger to the public or indeed themselves. It was also a good thing that they had a trial because that's the best way of working out what actually happened - getting to that conclusion is vital to working out what the best treatment for the child killers is, just as it is the case that has prompted this discussion. It goes without saying that legal proceedings involving children should take account of the challenges and senstivities that come with that.

Anyway I am now slightly unsure of your position. I have tried to say why I think our current arrangements are more or less the right ones, and that the gap we have between the ages of criminal responsibility and consent is correct and justifiable. If you could start from scratch, what ages of consent and criminal responsibility would you have?

But that is the question we'd have to ask where a 40 year old slept with a 16 year old.

I think the reasoning behind an age of consent, or of criminal responsibility should be to do with whether the child understands what is going on. That might not quite be the same age for murder and having sex, but I doubt they'd be far apart. That an 11 year old could be said to be guilty of murder, but that a 15 year old cannot possibly consent to sex just seems mad.

For me, the best solution would be a fairly low age below which we accept that children cannot be responsible for their actions, and then a range in which it is presumed that they aren't. That gives a bit more felxibility than the current system which assumes children develop uniformly.

Also, whilst the prosecution guidelines are a good thing in the current system once it comes to a decision to prosecute, I'm not sure too many 15 year old are aware of them, rahter thinking that what they are doing is 'criminal' and so not talking to doctors, teachers, parents etc.

On the issue of criminal responsibility, I agree that figuring out the best treatment for the child killers is important, I just don't see why you feel that has to be conducted in the context of a criminal trial. There are other ways of finding out what happened and deciding what to do, without having to find a child innocent or guilty. For instance, even if the child were found inncoent, presumably rather than just setting them free, there'd still be decisions about counselling etc. Why can't we just have that bit?

[mummywhycantieatcrayons]

That an 11 year old could be said to be guilty of murder, but that a 15 year old cannot possibly consent to sex just seems mad.

Oh well - I think that's comparing apples with oranges and that the policy concerns and cost-benefit analyses are different, but it's clear that we are not going to agree on this.

We can't be accused of not giving it sustained thought, however!

So come on - commit to some numbers.

[Hoboh]

A child killing someone is a rare occurrence, but when it does happen, I think it's much better for all involved if the focus is on looking after and treating the child. I'd even go as far as to say that even if an 8 year old evil genius were to be found capable of intending to kill, the public interest is still better served trying to shoot or hang the kid rather than punishing him or her.

[Bijou Bob]

Not having studied politics in any detail, I've stayed out of this extended series of debates however tonight, during politics lectures on my current course, I have discovered 2 things:

1. I'm something of a neo liberal, although more in the Keynesian sense than that of Murray

And

2. This means that WtW will probably not speak to me before kick off on Saturday or most likely again.

[William the White]

Not having studied politics in any detail, I've stayed out of this extended series of debates however tonight, during politics lectures on my current course, I have discovered 2 things:

1. I'm something of a neo liberal, although more in the Keynesian sense than that of Murray

And

2. This means that WtW will probably not speak to me before kick off on Saturday or most likely again.

You don't shut me up that easily...

[Prufrock]

That an 11 year old could be said to be guilty of murder, but that a 15 year old cannot possibly consent to sex just seems mad.

Oh well - I think that's comparing apples with oranges and that the policy concerns and cost-benefit analyses are different, but it's clear that we are not going to agree on this.

We can't be accused of not giving it sustained thought, however!

So come on - commit to some numbers.

Ha, indeed we can't!

I'm not sure about committing to any exact numbers, but above I wrote,

"For arguments sake, I don't think a 12 year old can understand the nature of having sex. I think it's unlikely that a 13-16 year old will, though not impossible, and getting more likely the nearer to 16 you get. Above 16 it's still possible that you wouldn't, but that ought to be something for the prosecution to prove. Now obviously, that still proposes an artificial distinction between someone 12 years 364 days old and someone 13 years old exactly, but I think it's a bit more sensible."

I wouldn't say those numbers had to be set in stone, but I think that's a more nuanced approach that recognises that children develop at different rates. I'd have similar ages for criminal responsibility, though not necessarily the same. My two main points were that having a cliff-drop cut off point is artificial, and any ages set for being able to give consent, and for criminal responsibility shouldn't be too different.

[mummywhycantieatcrayons]

You're like Michael Howard - just tell us what you think the law should be! We know it's difficult and we won't hold you to it. The system has to commit to something, so it's a bit rich for you to criticise it when you're not prepared to!