Several offences in the Cybercrime Code Act 2016 contemplate child offenders and set separate penalties for them. Section 5 sets the threshold.
Section 5 — age of criminal culpability
(1) A child under the age of 10 years at the time of the act or omission is not criminally responsible for it.
(2) A child between the ages of 10 and 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
(3) Where any of the offences in this Act are committed by a child between the ages of 10 and 18 years, the provisions of the Juvenile Justice Act 2014 shall apply.
Section 2 defines “child” for the purposes of the Act as a person under the age of 18 years. That single definition does two jobs: it identifies who is protected by the child offences, and who is a child offender under section 5.
The three age tiers
| Age at the time of the act | Position |
|---|---|
| Under 10 | Not criminally responsible — absolute. No prosecution is possible |
| 10 to 14 | Not criminally responsible unless it is proved that the child had capacity to know that he ought not to do the act. The burden is on the prosecution |
| 14 to 18 | Criminally responsible, but the Juvenile Justice Act 2014 applies to the proceedings and disposition |
| 18 and over | An adult offender — the adult penalties in sections 22, 23 and elsewhere apply |
Subsection (2) states the common law presumption of doli incapax: a child in that band is presumed not to have the capacity for criminal responsibility, and the prosecution must prove otherwise.
What must be proved is capacity to know that he ought not to do the act — not that the child knew the act was a crime, and not merely that the child knew it was naughty. It is a question of the particular child’s understanding at the time.
In a cybercrime context this can be a real issue. A 12-year-old who shares a password, forwards an image, or posts an insulting comment may not have the capacity to appreciate the wrongfulness of conduct that the Act treats very seriously.
Offences that contemplate a child offender
Section 14(1) — electronic gambling or lottery by a child. The offence can only be committed by a child. Penalty: subject to the Juvenile Justice Act 2014, imprisonment up to seven years, or prohibition from accessing ICTs for the term plus two years, or both.
Section 22 — cyber bullying. A child offender faces detention up to three years (s 22(1)) or five years (s 22(2)), or an ICT prohibition, or both; and where the offence results in death, imprisonment for life under section 22(3), subject to the Juvenile Justice Act and section 19 of the Criminal Code.
Section 23 — cyber harassment, on the same pattern, including the section 23(4) offence of posting obscene or vulgar commentary, for which a child offender faces detention up to three years or a fine up to K5,000 or an ICT prohibition, or all of them.
Sections 22(3) and 23(3) both provide for imprisonment for life where cyber bullying or harassment results in death — expressed to apply to a child offender as well as an adult, subject to the Juvenile Justice Act 2014 and section 19 of the Criminal Code Act (Chapter 262).
Section 19 of the Criminal Code is the general sentencing discretion, allowing a court to impose less than the maximum. Together with the Juvenile Justice Act, it is the mechanism by which a court moderates what would otherwise be an extraordinary sentence for a child.
What the Juvenile Justice Act 2014 brings
Where any offence in the Cybercrime Code Act is committed by a child between 10 and 18, the Juvenile Justice Act 2014 applies. That is not limited to the offences with express child penalties.
So a 16-year-old charged with hacking under section 6, identity theft under section 15, or defamatory publication under section 21 is dealt with under the juvenile justice regime — its procedures, its diversion options and its dispositions.
Note that several of the child penalties in this Act are expressed to operate “subject to the Juvenile Justice Act 2014”, which confirms the point.
Children as victims
The Act protects children as well as exposing them. The child-protection offences are:
- Section 18 — using an electronic system or device to commit the child pornography offences in sections 229R, 229S and 229T of the Criminal Code, or to access child pornography.
- Section 19 — child online grooming, with life imprisonment where the child is under 16, and a separate offence in section 19(3) of receiving any reward or benefit from grooming.
- Section 14(2) — a gaming operator who knowingly or recklessly makes gaming available to a child.
- Section 22 — cyber bullying, which is defined by reference to communications with or regarding a child. Section 22 protects only children; adult victims are covered by section 23.
Practical guidance for parents, schools and children is collected in the article on protecting children online.
Sources
- Cybercrime Code Act 2016 — ss 2, 5, 14, 18, 19, 22, 23
- Juvenile Justice Act 2014; Criminal Code Act (Chapter 262) — ss 19, 229R–229T
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.