Child protection expert says MLAs 'overriding obligation' is to child safety - amid dispute about DUP petition of concern
A former top police officer has said that MLAs should put their overriding obligation to protect children and society above any “genuine ethical discomfort” about backing a DUP attempt to block legislation on the age at which children can be prosecuted.
Jim Gamble, writing in today’s News Letter, has also warned that the current debate over the issue creates a “false choice” – and criticised the way the matter is being dealt with at Stormont.
It comes as the DUP takes swipe at internal UUP divisions over the minimum age of criminal responsibility (MACR) – and whether Jon Burrows’s party will help use cross-community protections at the Assembly to block it.
MLAs face a key vote this week on whether to raise the minimum age of criminal responsibility (MACR) from 10 to 14.
Alliance, who initiated the proposals, say that it is evidence based and that children under 14 don’t have the intellectual capacity to fully understand the consequences of their actions – or the judicial process. Despite that, the party wants exemptions for serious offences like murder, manslaughter, and rape.
Mr Gamble has questioned the logic of the exemptions, saying they “collapse the entire developmental argument”.
At the weekend, in an apparent dig at UUP divisions, the DUP’s justice spokesman Paul Frew said his party is united on the issue – while some parties “cannot even agree among themselves”.
Jon Burrows wants to keep the threshold at 10, to allow prosecutions to take place where police deem it necessary and to protect victims, while some of his MLAs back 12 or, ideally, 14.
Before his departure from the party, Doug Beattie proposed a compromise of setting MACR at 12, given that there was an Assembly majority for 14. That amendment is still on the table, presenting a choice for UUP MLAs between their leader’s position or that of his arch critic.
The introduction of a petition of concern (POC) by the DUP is opposed by a number of UUP MLAs, as they see its use in this case as an abuse of the system – as it was designed to protect minority rights.
Mr Burrows sees the risks of the legislation as so grave that he is prepared to back it – but will need three of his colleagues to join him if it is to succeed. If the POC gains enough signatures, MACR proposals can’t proceed – regardless of the wishes of the majority in the Assembly.
Jim Gamble says he understands concerns about the use of a POC, but says that may be the only means of “insisting on proper scrutiny”.
“The discussion around a POC reflects just how seriously some members take what is at stake. I share that concern, and I also recognise the genuine ethical discomfort of those who do not wish to weaponise that mechanism and feel it is wrong to be placed in a position where using it becomes the only means of insisting on proper scrutiny.
“No representative should have to choose between their principles about consensus-based governance and their duty to the children this legislation will affect. But when those two values collide, the overriding ethical obligation must be what is best for children and the society within which they live”, the former Chief Executive of the Child Exploitation and Online Protection Centre said.
Mr Gamble also said it is not good enough that “changes of this magnitude are being progressed as piecemeal amendments to a broader Justice Bill” – and says it would be better dealt with in a dedicated law.
“Rather than removing accountability entirely for children under fourteen, Northern Ireland should consider reviving a modernised form of doli incapax. This long-standing legal principle applies a presumption that children between ten and thirteen lack the maturity to be held criminally responsible. To proceed with a prosecution, the state would have to demonstrate that the child understood their actions were seriously wrong, rather than merely impulsive or mischievous.
“It is a high bar and rightly so”, he said.
In an email to DUP members at the weekend, the party’s justice spokesman Paul Frew MLA said raising the age of criminal responsibility “would significantly limit the ability of the justice system to respond through criminal sanction”.
Similar concerns have been raised by the UUP leader Jon Burrows, who warned at the weekend that the changes would mean a 13 year old in England recently convicted of aiding and abetting the rape of two school girls could not even have been investigated, as it would not be a crime.