Unfitness to Plead Consultation Responses - Law Commission ...

Question 12 – Decision making capacity and the age of criminal
responsibility
Sense is of the view that decision making capacity relates to the age of criminal
responsibility because children who are born with a dual sensory impairment or
who lose one or both senses at a young age develop at a much slower rate than
sighted hearing children. The current system where a child is automatically
deemed to have the decision-making capacity to carry out a criminal act at the
age of 10, indirectly discriminates against deafblind children whose grasp of the
concepts of right and wrong would generally be achieved at a later age.
Development of congenitally deafblind children is significantly delayed due to the
impact of the lack of information received by the distance senses of sight and
hearing. Deafblind children miss out on the incidental learning experienced by
sighted hearing children and are often misdiagnosed with a learning disability,
when in fact it is the presentation of dual sensory loss.
With the right intervention and support many deafblind children are able to
become effective communicators and become successful learners. Deafblind
children require a multi-sensory approach to learning utilising any residual
distance senses and the remaining near senses (touch, taste, proprioception,
vestibular and smell). This makes the teaching and learning of concepts a
significant challenge, and for children who reach symbolic and linguistic
competence, the concepts of right and wrong are often achieved later than
expected compared to a hearing-sighted child’s typical development. The
development of the awareness of others, perception of self and the relationship
between the actions of self on others may all be impacted upon. Age is not a
clear cut indicator of a child’s capacity or intention to act, a developmental
perspective should be an important factor when assessing whether a child is
deemed to be capable of carrying out a criminal act.
Children who acquire deafblindness in childhood or teenage years will have a
more developed linguistic system, however they continue to require modifications
to access information and further considerations will be required in relation to
timings and communication methods. Even with developed language abilities a
child with acquired deafblindness, may have experienced significant emotional
impact during the diagnosis of their dual sensory impairment. It would not be
uncommon for children to have less well matured social emotional skills in
comparison to their hearing-sighted peers. Children may experience difficulties
with self esteem or emotional resilience.
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