Beyond the minimum age of criminal responsibility and the presumption of doli incapax : the case for a child immaturity defence

It is a fundamental principle of criminal law that a person should not be criminalised unless they have the capacity and a fair opportunity to comply with the law. Recognising that children, particularly younger ones, undergo rapidly evolving neurodevelopmental processes during which their criminal capacity remains underdeveloped, many jurisdictions have adopted a minimum age of criminal responsibility. Furthermore, the presumption of doli incapax is available in some jurisdictions to protect children who fail to understand the wrongfulness of their acts from being criminalised. While both protections are useful, this article argues that they are insufficient in fully protecting unblameworthy children from criminalisation. It is proposed that, from both neuroscientific and criminal law perspectives, a child immaturity defence should be introduced to protect children who (i) lack the capacity to appreciate the nature or consequences of their criminal conduct or (ii) are unable to exercise adequate control over that conduct. The potential challenges in enacting the defence will also be examined.