The sleep of reason? Childhood and criminal capacity

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 are 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 understanding, 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 children 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