Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Wednesday, 7 December 2016

On the age of criminal responsibility

Scots criminal law has long prided itself on its distinctiveness, though recently it has seemed as though some of the areas in which it is distinctive give little cause for celebration: the retention of the requirement of corroboration, the anomaly of the not proven verdict, exceptionally high rates of stop and search of young people, and, of course, an age of criminal responsibility of 8.

This last has long been the target of legal reformers. It is inconsistent with international standards as laid down by the UN Committee on the Rights of the Child, and makes a mockery of claims to be world-leading in the area of criminal justice. The Children's Hearings system, introduced in Scotland following the Kilbrandon Report in 1968 is in many ways a model system of juvenile justice, informed by welfare principle and a commitment to the needs of the child, but it has always sat uneasily with the fact that a child as young as 8 might be prosecuted. And though the most recent review led to a formal legislative commitment not to prosecute a child below the age of 12, this sat awkwardly with the retention of 8 as the age of criminal responsibility. The situation in law was that an immunity from prosecution was conferred on a child between the ages of 8 and 12, rather than a recognition that a child below the age of 12 lacked the capacity for criminal responsibility altogether. It also meant that a child between the ages of 8 and 12 might have a criminal record if they had been before a Children's Hearing  and were judged to have committed a criminal offence.

So it was pleasing to see the announcement made last week that there Scottish Government planned, finally, to raise the minimum age of criminal responsibility to 12 by 2018. It seems right that children should not be labelled as offenders or criminals for things done before they reached the age of 12, but this is merely bringing Scotland into line with international standards. A more radical move might be a commitment not to prosecute children between the ages of 12 and 16. If Scotland were serious about recognising the Kilbrandon principles this would be step worth taking.


  1. This is an interesting post given the recent charge of a girl of just 15 years of age for the murder of Katie Rough, what are your thoughts on this?

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