his or her legal status.119 Ultimately Article 1 serves to deprive persons younger than the age of
eighteen but older than the age of majority set by an individual county, from rights which they
would have otherwise been entitled to under the CRC and which are enjoyed by their
counterparts in countries with a higher age of majority.
In Trinidad and Tobago the definition of a child is contained in the Children Act Chapter
46:01.120 Section 2 defines a child as a person under the age of 14 years.121 Section 2 also creates
a category of person between the ages of 14 and 16 known as young persons.122 The distinction
is essential for how they are treated when in conflict with the law, with regards to bail, detention
during and after trial and sentencing.123 Essentially persons between the ages of 16-18 are
unprotected in the criminal justice system in Trinidad and Tobago and are treated and prosecuted
as adult offenders.
With regard to attributing criminal liability, the minimum age for criminal responsibility must be
considered.
This has been recognized in the CRC which at Article 40 (3) (a) creates an
obligation upon countries to establish a minimum age below which children shall be presumed
not to have the capacity to infringe the penal law.124 The minimum age of criminal responsibility
is either defined in the domestic statute of a country, or is governed by the common law in the
absence of statute.
The common law position was that a child below the age of seven could not differentiate
between good and evil and where thus incapable of forming the mens rea necessary for
committing a crime.125 Children between the ages of seven and fourteen were presumed to lack
the minimum mental capacity necessary to commit a crime, and to understand the moral
implications of their actions, and it was the role of the prosecution to rebut this presumption.
119
Ibid
Children Act Chapter 46:01, Laws of Trinidad and Tobago
121
Supra fn 14 at s 2
122
Ibid
123
Supra fn 14 at s 10-14, 29-32, 43-64
124
Supra fn 1 at Article 40
125
D Seetahal, Commonwealth Caribbean Criminal Practice and Procedure (1st, Cavendish Publishing Limited,
London 2001) 454
120
85