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Essays in Criminal Law in Honour of Sir Gerald Gordon$
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James Chalmers and Fiona Leverick

Print publication date: 2010

Print ISBN-13: 9780748640706

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748640706.001.0001

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Child Defendants and the Doctrines of the Criminal Law

Child Defendants and the Doctrines of the Criminal Law

(p.27) 3 Child Defendants and the Doctrines of the Criminal Law
Essays in Criminal Law in Honour of Sir Gerald Gordon

Andrew Ashworth

Edinburgh University Press

This chapter considers the effect of youth on defences such as duress, provocation, diminished responsibility, and ignorance of the law, on consent, and on intention and recklessness. In view of the breadth of the field this is merely an exploratory study; but it is offered as a modest tribute to Gerald Gordon, whose ground-breaking and theoretically sophisticated works on Scots criminal law have had an influence on the author of this chapter and on many others beyond his native land. The chapter is organized as follows. Part A examines some relevant characteristics of childhood. Part B discusses the question of children as moral agents. Part C outlines some actual and possible responses to misconduct among the young. These three opening sections are merely brief discussions of complex issues, intended to sketch the background for Part D on general defences, Part E on consent and Part F on fault requirements. The fundamental question is whether the criminal law should be more flexible in its assessment of child defendants and, if so, how this would best be accomplished.

Keywords:   youth, defence, Scots criminal law, moral agents, juvenile misconduct, consent, fault requirements, child defendants, childhood

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