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Criminal Responsibility of Children - Coggle Diagram
Criminal Responsibility of Children
General Rule
:
Everyone should be criminally responsible
Types of Exemptions
Responsibility-based exemptions
Natural Exemptions:
'‘an agent might be exempt from responsibility because that agent will always be incapable of attaining the qualities that are required to be criminally responsible’ [Tadros (2007) 134]
Dolphins [Tadros (2007) 134]
Social Exemptions:
'an agent may be exempt from responsibility because, although he might develop the capacities that are required to be a responsible agent, he does not in fact have those capacities’ [Tadros (2007) 134]
Relevant Capacity:
'capacity to appreciate norms in general' [Tadros (2007) 137]
Capacity as autonomy:
'Autonomous agents are agents who are capable of believing and acting in the light of reasons that they adopt as their own. An agent who is incapable of achieving that fails to be a full subject with whom one can communicate as an equal’ [Tadros (2007) 138]
History of Capacity:
Kant:
'one needed the capacity and a fair opportunity to conform one’s conduct to the law in order to be criminally responsible’ [Wilson 473]
Aristotle:
actions had to be voluntary in order to be either praise- or blame-worthy’ [Wilson 473]
Test:
Whether they they ‘lack the capacities that are required for full moral interpersonal relations’ [Tadros (2009) 392]
Elements of Capacity
[McDiarmid (2013) 149-151]
A simple recognition of doing wrong
Knowledge of right and wrong
Recognition that behaviour was a crime
Recognition of moral wrongdoing
Summary:
'to be fairly found to be criminally accountable, the child should, as a minimum, know that the act is wrong, know the difference between right and wrong, understand that the act itself is contrary to the criminal law (together with some recognition of the wider meaning and consequences of criminality) and be able to place this within a moral context' [152]
Political Exemptions:
'there are agents who are responsible for their actions in a moral sense, but who are not responsible to the criminal law’ for political reasons' [Tadros (2007) 135]
Procedural impropriety [Tadros (2007) 135]
Non-exculpatory exemptions
Exception by application of law:
'although the defendant is a responsible agent, for some reason the law does not apply to him in his circumstances’ [Tadros (2007) 135]
Diplomats
Childhood Development
Piaget's Theory's
4 Stages of Moral Development
(1) Sensorimotor Stage: ages 0-2
(2) Preoperational Stage: 2-7 years
(3) Concrete Operational Stage: 7-11 years
(4) Formal Operational Stage: 12+ years
Kohlberg's Theory
(1) Preconventional Morality: 0-9 years
Stage 1: Obedience and Punishment orientation
Stage 2: Individualism and Exchange
(2) Conventional Morality: 10-18 years
(adolescence to adulthood)
Stage 3: Good interpersonal relationships
Stage 4: Maintaining Social Order
(3) Postconventional Morality: adulthood
(10-15% of adults)
Stage 5: Social Contract and Individual Rights
Stage 6: Universal Principles
Delmage's Analysis
Strict Minimum Age:
'In order to bring the minimum age of criminal responsibility more into line with current devel- opmental research and civil legislation, a minimum age of 14 might be sought' [108]
Presumptive Minimum Age:
'children aged 14 and 15 could reasonably be subject to the aforementioned rebuttable presumption of developmental immaturity (similar to the Gillick position) with the burden of proving compe- tence resting with the prosecution' [108]
Post Minimum Age:
'For complete alignment with civil circumstances, one could argue that young people aged 16 and 17 should be presumed to have capacity to commit offences until proven otherwise, meaning that a defence of developmental immaturity would be available and the burden of disproving capacity would lie with the defence.' [108]
Statutory Law
Minimum Age: 10
Children and Young Persons Act 1933:
'It shall be conclusively presumed that no child under the age of ten years can be guilty of any offence' [s 50, as amended by Children and Young Persons Act 1963, s. 16(1)]
Presumption of Doli Incapax: Ages 10-14
Presumption that the child is ‘‘incapable of committing an evil act’ [Gibbon 398]
Rule
'The presumption of doli incapax required that the prosecution, who bears the burden of proof, prove that a child defendant above the age of criminal responsibility but less than 14 years old understood the difference between right and wrong at the time of the offence’ [Gibbon 399]
Status of Presumption
Abolished [s 34, Crime and Disorder Act 1998]
Foreign Laws