The Recognition of the Child’s Criminal Capacity in Law
The Recognition of the Child’s Criminal Capacity in Law
Two Examples
This chapter draws on the theoretical approach to the mental element outlined in chapter 3 and looks at two examples of areas where the criminal law has engaged with the child’s criminal capacity: (1) the doli incapax presumption and (2) the age of criminal responsibility. Before the presumption’s abolition in 1998, the prosecution in all cases of child-defendants in England and Wales had to lead evidence to rebut the principle that children were incapable of the wickedness necessary for conviction of a criminal offence and to establish, instead, that they knew that their action was seriously wrong. The chapter critically assesses the case law demonstrating that while it is possible for a capacity requirement to be imposed in relation to child-offenders, this will not work well if it is drawn too narrowly. On the second example, an age of criminal responsibility exists in many legal systems and international law requires that this should be linked in some way to the criminal capacity of children. The chapter examines the age’s relationship to capacity in Scots law and explores arguments about the point in the lifespan at which it should be set.
Keywords: Children, Criminal law, Criminal capacity, Age of criminal responsibility, Doli incapax
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