Setting a minimum age is fundamental in a juvenile criminal justice system, as it determines when a minor can be legally held accountable for their actions. There is no universally agreed-upon minimum age of criminal responsibility (hereinafter “MAoCR”) internationally, and the European Convention on Human Rights do not address this issue. Article 40(3) of the United Nations Convention on the Rights of the Child requires states to establish a MAoCR but does not specify a particular age.
Juveniles differ significantly from adults and should be treated accordingly, avoiding adult sentences for young offenders. In the 2005 judgment in the names of’ Roper vs Simmons’ the US Supreme Court highlighted that juvenile behaviour often stems from immaturity and an underdeveloped sense of responsibility. Juveniles are more susceptible to negative influences and lack the fully developed character seen in adults. Therefore, treating juvenile offenders the same as adults is inappropriate, as minors have a higher potential for reform. The MAoCR should not be set too low, and sentencing should focus on rehabilitation rather than harsh punishment.
Under Maltese law[1], the general rule is that minors under 14 years of age are exempt from criminal responsibility for any act or omission. The presumption thus follows that a minor under the age of 14 years is doli incapax[2]
In such cases, the court may on the application of the police require the parent or any person charged with the upbringing of the minor to appear before it and if the alleged crime is proved and contemplated by the law as an offence, the court may bind the parent or other person to watch over the conduct of the minor under penalty for non-compliance of a sum not less than Eur 100 and not exceeding Eur 2000 and this with regard being had to the means of the person bound over and the gravity of the fact.
If the fact committed by the minor is contemplated by law as an offence punishable with a fine (ammenda) the court may in lieu of applying the aforementioned penalty award the punishment against the parent or other persons charged with the upbringing of the minor, if the fact could have been avoided by his diligence.
In the case ‘Il-Pulizija vs Paulo Farruġia’[3] the court stated:
“Fost ir-rekwiżiti meħtieġa biex wieħed ikun responsabbli għall-kontravenzjoni kommessa minn minuri taħt it-treġija tiegħu hemm dak ir-rekwiżit li huwa kien fil-possibilita’ li jimpedixxi l-kontravenzjoni. Il-piż tal-prova ta’ din in-negliġenza jinkombi fuq il-prosekuzzjoni; imma l-istess prova tiddependi, kwantu għal mod li bih tiġi stabbilita’, miċ-ċirkostanzi tal-każ.”
Children aged between 14 years of age to 16 years can be charged with a crime. However, they may be exempt from criminal responsibility if the courts determine that the offence was not committed with malice or, as the law refers to it, mischievous discretion (Ħażen).
To establish that a child has acted with mischievous discretion, the courts must ascertain that the child is aware of their wrongdoing and understands the consequences of their actions. If this is proven, the child can be found guilty of a crime but will receive a reduced sentence, typically lowered by one or two degrees.
The reason Maltese law grants an attenuation to minors is due to considerations tied with the charter of the council of Europe. According to the Juvenile Court Act[4], individuals under 18 accused of a crime are to be tried in the Juvenile Court, which holds the same authority as the Court of Magistrates. Those aged between 16 years to 18 years, who are found guilty receive a sentence reduced by one or two degrees, in accordance with the criminal code.[5]
Minors who are older than 16 years of age but younger than 18 years benefit from a reduction in punishment of one or two degrees. The court will not inquire as to whether the minor acted with mischievous discretion or not. Thus, in determining the guilt or otherwise of an offender within this age bracket the court shall not take into consideration the young age of the offender. The young age will only be considered when it comes to handing down punishment.
Additionally, the court, where the law allows it, is more likely to give a non-custodial punishment to a young offender instead of sending him to prison for his first offence. With this being said, there is nothing in the law which prohibits the court from sending a minor to prison. It all depends on the crime that has been committed by the minor and the circumstances of the case. Minors sent to prison are kept in the Juvenile Section.
In the case of ‘Il-Pulizija vs Omissis’[6] the accused was a 16-year-old who had been charged with having failed to give a VAT receipt whilst working in a kiosk. At appeal stage, the defence raised the issue that the accused was inexperienced and that is why he had committed the
said offence. However, the court of appeal dismissed this defence and confirmed the guilty sentence of the court of first instance.
For more information or assistance related to Criminal Law please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] Article 35(1), Chapter 9 Laws of Malta.
[2] Not capable of committing a criminal offence.
[3] Court of Criminal Appeal (inferior) 01/08/1959
[4] Chapter 287, Laws of Malta.
[5] Chapter 9, Laws of Malta, article 37(2).
[6] Court of Appeal (inferior) 20/09/2011 Onor. Judge. Dr. Lawrence Quintano