Picture of boy being examining by doctor at a tuberculosis sanatorium

Understanding our future through Open Access research about our past...

Strathprints makes available scholarly Open Access content by researchers in the Centre for the Social History of Health & Healthcare (CSHHH), based within the School of Humanities, and considered Scotland's leading centre for the history of health and medicine.

Research at CSHHH explores the modern world since 1800 in locations as diverse as the UK, Asia, Africa, North America, and Europe. Areas of specialism include contraception and sexuality; family health and medical services; occupational health and medicine; disability; the history of psychiatry; conflict and warfare; and, drugs, pharmaceuticals and intoxicants.

Explore the Open Access research of the Centre for the Social History of Health and Healthcare. Or explore all of Strathclyde's Open Access research...

Image: Heart of England NHS Foundation Trust. Wellcome Collection - CC-BY.

After the age of criminal responsibility : a defence for children who offend

McDiarmid, Claire (2016) After the age of criminal responsibility : a defence for children who offend. Northern Ireland Legal Quarterly, 67 (3). pp. 327-341. ISSN 0029-3105 (In Press)

[img]
Preview
Text (McDiarmid-NILQ-2016-a-defence-for-children-who-offend)
McDiarmid_NILQ_2016_a_defence_for_children_who_offend.pdf
Final Published Version

Download (187kB) | Preview

Abstract

In Scotland, the age of criminal responsibility is eight though children cannot be prosecuted until they are twelve. In England and Wales, for all purposes, the age is ten. This article argues that a further mechanism is needed to protect the young who do wrong within the criminal process and it argues for a new, bespoke defence, to be available to young people from the age of criminal responsibility until they attain the age of 18. It looks firstly at criminal capacity – what it is that needs to be understood fairly to hold anyone criminally responsible - and draws on material from developmental psychology and neuroscience, as well as looking at the child’s lived experience, to provide some evidence that the young may, without fault, lack this capacity. It then examines the use of age generally in law, and the age of criminal responsibility within this. Next, it considers existing lack of capacity defences – nonage; diminished responsibility; insanity (or mental disorder) and absence of mens rea - to consider their suitability for use by young and immature defendants. Finally, it presents a proposal for the form of the new defence, taking into account the need for balance with the public interest in conviction of the guilty. Throughout, it notes and analyses the Law Commission’s proposals in this respect.