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Download (8MB) https://theses.gla.ac.uk/ Theses Digitisation: https://www.gla.ac.uk/myglasgow/research/enlighten/theses/digitisation/ This is a digitised version of the original print thesis. Copyright and moral rights for this work are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This work cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Enlighten: Theses https://theses.gla.ac.uk/ [email protected] THE SLEEP OF REASON? CHILDHOOD AND CRIMINAL CAPACITY Claire Robertson McDiarmid LL.B Dip.L.P. LL.M Submitted in fulfilment of the degree of Ph D in the University of Glasgow School of Law, March 2004 Claire McDiarmid 2004 ProQuest Number: 10395312 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 10395312 Published by ProQuest LLO (2017). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLO. ProQuest LLO. 789 East Eisenhower Parkway P.Q. Box 1346 Ann Arbor, Ml 48106- 1346 ^ A S G O W " UNIVERSITY JUBRARY; Acknowledgments This PhD was funded, at different times, by a University of Glasgow Major Postgraduate Scholarship, a Student Awards Agency for Scotland Major Postgraduate Award and by the Centre for Professional Legal Studies at Strathclyde University. At Glasgow University, I thank Elspeth Attwooll for starting me off; Sheila McLean for commenting on endless drafts over a number of years; Elaine Sutherland for sharing her encyclopaedic knowledge of child law and for her friendship; and Lindsay Farmer for gently and deftly guiding the research, ideas and arguments into a PhD thesis. Administratively, Liz Wilson and Cathie McCarthy provided me with a lot of assistance. It would simply have been impossible for me to write up the research without my husband, John Murray. For his care for our two small children, for attending to our domestic arrangements and for still finding time to provide me with emotional and practical support, I am more grateful than I can say. Also, my friend, colleague and mentor at Strathclyde University, Jenifer Ross has read every word of the thesis and, at every stage, has added something to the emerging manuscript. I thank her for her generosity with her time and for the quality of her own criminal law scholarship which was always an Inspiration. Innumerable others have helped me. I single out my parents, Donald and Audrey McDiarmid, my friends Donald and Jackie Murray and the entire staff of the Law School at the University of Strathclyde, but particularly Jane Secular, Nicky Burns, Donald Nicolson, Alison Cleland, Thérèse O’Donnell, Scott Wortley, Jean McFadden, Peter Robson, Neil Hutton, Barry Rodger, Cyrus Tata, Kenneth Norrle, Cathy Smith, Anne Lamble and Linda Ion. Abstract This thesis is concerned with the response of the criminal law and the criminal justice system in Scotland to children who commit serious crimes. It has two major themes. First, it seeks to reconcile the paradox inherent in the status of “child-criminal” between an individual who is, simultaneously, in need of protection (as a child) and the perpetrator of a seriously wrongful, sometimes violent act (as a criminal). Its second theme, and its main premise, is that the tendency which the criminal law has sometimes shown to respond only to one of the opposing elements of “child” and “criminal” can be rectified by a thorough investigation the child’s understanding of his/her criminal act in its context, the results of which ar e then used to inform decision-making about the child and, in particular, sentencing. The thesis is particularly concerned, therefore, with the child’s criminal capacity and his/her criminal responsibility. The thesis re-examines the mental element in crime where the accused is a child, organising it into three discrete but overlapping constituents. First, there is a threshold (conceived as three preconditions of imderstanding, empathy and knowledge of criminality) which the court must establish that the child-accused crosses before s/he can be tried at all. Thereafter, assuming the threshold is met, the court must investigate his/her criminal capacity by hearing evidence on the six capacity points set out in thesis (volitional element, distinction between right and wrong, causation. understanding of criminality and criminal consequences, rationality and mens rea-related capacity points). Finally, mens rea is defined, in the most pared down fashion possible, so that it is principally a factual issue for the Crown to prove. All elements of understanding which are sometimes subsumed within it are stripped out and become part of criminal capacity. The thesis then examines the approach taken by Scots criminal law, both historically and in modem times, to the child’s criminal capacity and also the role of welfare and the children’s hearings system in relation to the child’s criminal responsibility. It concludes first that it is possible to reconcile the welfare and justice approaches to childien who offend so that a more holistic picture of the child-criminal emerges and, second, with a plea for the fair, equal and compassionate treatment of child-accused, to be facilitated by changes to existing criminal procedure necessary to accommodate the reconceived mental element. Table of Contents Acknowledgments 2 Abstract 3 Introduction 6 Chapter 1 The Social Context and the Bulger Case 12 Chapter 2 Childr en and the Mental Element in Criminal Law 74 Chapter 3 The Treatment of Children in Scots Criminal Law 145 Chapter 4 Reconciling Welfare and Justice 226 Chapter 5 Procedural Framework and Conclusions 278 Bibliography 311 Introduction This thesis is concerned with the response of the criminal justice system in Scotland to children who offend - and, particularly to those who commit serious crimes. The first difficulty for any legal system is that such children are a contradiction in terms. On the one hand, as children, they belong to a group which is generally regarded as vulnerable and in need of protection; on the other, as the peipetrators of seriously wrongful, sometimes violent, acts, they are perceived as deserving of punishment and condemnation. The thesis examines how the law might best respond, so as to accommodate this paradox, by rendering fair and compassionate judgments to child-accused which do not lose sight of the public interest in justice being seen to be done, and the need to retain public confidence in the criminal justice system. The term “child” is used consciously throughout. Terminology is important in this area. Chapter 1 will demonstrate that legal systems’ current responses to “child”-“offenders” sometimes overemphasise one element of their dual status as children and as criminals. In the wake of the Bulger case, which is discussed in detail in chapter 1, this is often the “criminal” element. Using the teim “child” even for adolescents, as opposed to the, perhaps more correct and less pejorative, term “young person” serves to focus attention on the youth of those with whom the criminal process is engaging so that this does not disappear from consideration in the decision-making process. Also, this tenninology is technically correct, in a legal sense, because Scots law, as a whole, categorises all young people as “children,” this being the only class which it recognises.^ The category is defined rigidly, by reference to chronological age and, technically, includes those aged seventeen and under.^ hi fact, in the criminal justice context, it is largely limited to those aged fifteen and under. No child aged under sixteen can be prosecuted except on the instructions of the Lord Advocate^ and, for the purposes of a first referral to the children’s hearings system, “child” is defined as “a child who has not attained the age of sixteen years.”^ It might have been appropriate to deal only with children aged between eight and fifteen, because the age of criminal responsibility is currently eight^ and no child aged seven or under is capable, in law, of committing a criminal offence.^ Nonetheless, because much of the discussion in ‘ English law draws a technical distinction between “childien” - those aged 13 and under - and young persons - those aged 14 and over. See, for example, Children and Young Persons Act 1969, s 70(1) ^ “[A] person attaints] majority on attaining the age of eighteen”: Age of Majority (Scotland) Act 1969, s 1(1). The United Nations Convention on the Rights of the Child states that “[f]or the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” ^ Criminal Procedure (Scotland) Act 1995 [hereinafter “CP(S)A 1995”], s 42(1), Even then, prosecution is only possible in the Sheriff and High Courts. ^ Children (Scotland) Act 1995, s 93(2)(b). In certain limited circumstances, those aged sixteen and over may also referred to a children’s hearing and, hence, brought into the category of child. See the discussion of the age of criminal responsibility in chapter 5.
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