>How old do you have to be before you become fully responsible under the law?

>There was a case this last week of two 10 year old boys being tried for rape in England. If such a case passes in England the children will have the charge on their records for the rest of their lives. The age for criminal responsibility is even lower in Scotland, at 8 years. Yet throughout much of the rest of Europe that age lies somewhere between 12 and 16.

Where do you think that age should be? And should children be treated differently under the law?


  • >I don't agree with determining criminal responsibility by age at all and find such distinctions arbitrary and false.What there ought to be instead is a series of psychoanalytic and cognitive tests applied to all mentally vulnerable and immature defendants, which assesses ethical understanding, verbal reasoning (particularly useful for determining how, if at all, they should be tried) and so on, so as to determine whether they should stand trial at all, and if so in what setting and in what way.It is clear enough to me that, if we take the case of an individual pushing a friend down the stairs to their death, many six year olds can commit the act AND deduce that it is dangerous and intend to seriously harm their friend by doing so (thus satisfying the actus reus and mens rea for a murder trial) while many forty-six year olds might be able to push someone down the stairs (the actus reus) but are completely unable to conceive that they might seriously harm their friend by doing so (they lack either the mens rea of 'intent' for murder or 'recklessnes' for manslaughter and thus cannot stand trial). My point is that mentally immature and vulnerable people are not under 10s or under 5s or under 15s or anything else; our legal system ought to be sophisticated enough to realise that and not absolve criminal responsibility just because a child is under a certain age. All children, just like all adults are different, and there is a place for cognitive psychology here and not for socially acceptable cut-off ages ('oh, he's only a child, he doesn't mean it', they coo at Damien from the Omen – of course, his possession would probably incur diminished responsibility, but let's leave that there).Of course, in the case Rob mentions there is a related but not identical point at issue: not so much whether the defendants possessed the necessary actus rea and mens rea to be prosecuted for attempted rape (they clearly did), but the appropriateness of these two young boys, and their seen year old victim, being tried in what was essentially, if you take into account mothers sat with the defendants and wigless barristers, an adult trial. Most (myself included) felt that elements of such a trial were not suited to their existing cognitive stage. For example, many have shown dislike of the leading 'tagged' questions of the defence counsel which led the victim, initially, to deny that her attackers had done anything wrong. 'They didn't really do anything wrong, did they?' counsel asked, posing a question that, with all its internal juxtaposition of positive and negative statements, coupled with the inherent and assumed authority of an adult in a formal setting, the victim found it very difficult to answer 'no' to. Clearly, such a setting was not appropriate. There has been very little reform of child courts since they were first introduced under Asquith's Children's Charter reforms of 1906-8 and there is, I think, a case for a root and branch overhaul; this does not, however, that children should not stand trial at all, and just as the capability of holding the mens rea ought equally to apply to mentally immature adults, so should the opportunity to face a suitable trial if they do so.In short, there ought to be three linked tests that determine whether any cognitively immature individual stands trial.1) Is it reasonably possible that the Crown could prove the necessary mens rea, therefore making it in the public interest to prosecute?2a) Is the defendant cognitively and emotionally fit to stand in an 'adult' court?2b) Is the defendant cognitively and emotionally fit to stand trial at all?>>Cont'd

  • >>>Cont'dIf the answer is 'no' to question 1 then there can clearly be no trial. If yes, and the answer is also 'yes' to either 2a or 2b, then there should be a trial depending on the cognitive abilities of the defendant. These questions should all be answered following thorough and professional examination of all mentally vulnerable defendants and not answered by a arbitrary and frankly dull age of criminal responsibility.

  • >Pretty good response by Ross and I would support his plan, however, I think that there should always be a trial and a punishment even if the child was less than aware of his/her actions.The reason being that the child needs to learn that actions have consequences, and a punishment helps to reinforce this concept if the child is not able to understand it theoretically.Secondly, the victim and/or the victim's family requires justice. The onus cannot be placed on them to suffer the misfortune of loss 100%, there must be some degree of loss suffered by the perpetrator also.So I think that unless a person is adjudged to be in a vegetative state, then there should always be a trial, and if found guilty, there should always be a punishment.It's at this point that I think Ross' idea of cognitive testing comes in, and depending on how aware the child was of their criminal act, this should have the effect of working as a weighting measure, i.e. if the child is considered 60% aware compared to average, then he/she should receive 60% of the average punishment.Ok, so those quantitative examples aren't exactly how it should work, but you get my idea.

  • >I see where Sean is coming from, in principle, only I doubt how it could be considered just or workable, at least in the law.Taking my push down the stairs analogy, the law requires that to be convicted of murder the defendant should 'intend' to cause death or GBH – you can't 60% intend something, you either do or you don't. Similarly, the recklessness element that would be necessary for manslaughter means that the actions would seem likely to result in harm to another according to the 'reasonable man'; if an individual is so far cognitively deficient that he foresees no possible harm whatever, then he the 'reasonableness' test becomes irrelevant and he cannot meet this element of the mens rea either; if he does foresee any risk, however remote, then the recklessness test is met. In short, the law cannot and should not convict an individual who does not meet these tests and therefore has no right to punish.The only way out of this is to bring in the carers and others responsible for such mentally vulnerable defendants and issue them an order, not to punish (it is unjust and counter-productive to punish anyone if they did not know and are unable to accept that they did anything wrong), but to seek to demonstrate, as far as possible, the consequences of their actions and to educate them. But even this raises questions about the ability to educate such individuals and the rectitude of placing the onus on third party carers. There may also, in some instances, especially involving adults, a very strong case for detaining such offenders in the interests of public safety, but this does not result from a criminal conviction and should not be seen as a punishment any more than would be sectioning under the Mental Health Act.I take Sean's point regarding the victims' rights, but just as one cannot prosecute a bolt of lightning that struck down an individual, one cannot prosecute the physical act of an individual that is unguided by mental processes, i.e. no intent or recklessness or whatever. It is, to all intents of purposes, an act of nature, as difficult as this might be to accept (and I really do appreciate that it probably would be).

  • >To clarify my second paragraph, if Sean's individual sees the potential consequeces at a level of 60% of a reasonable man, he could obviously not intend his friend to die having being pushed down the stairs. He would, however, knowing that risk, albeit at only 60% of the reasonable man, have been reckless as to the consequences and face prosecution for manslaughter. That is the case even now.The issue is where indivduals have absolutely no concept of the potential harm or a mental process guiding the act (i.e. no mens rea); that would include those so mentally deficient as to never recognise it (failure to grasp the basic logic of gravity in the stairs incident, for example) or a partial inability (pushing his friends down the stairs whilst sleepwalking). It is simply unjust to prosecute in these circumstances and, even as it stands, the law won't allow it.My point in the first post is that the establishment of this mental state should be a pre-trial requisite for all cases, rather than suggesting the fallacy that all ten year olds are mentally incapable of commiting a crime.

  • >Ok, Ross' arguments are fairer and I agree. I do like the lightning bolt analogy as well. However, a lightning bolt does not think at all, whereas only a person in a vegetative state could be ascertained as having that same lack of thought.I think there is a problem of cognition. Does the accused really need to be cognitively aware in order to be prosecuted. Forgoing the sleep walking case.My reasoning is that some acts are done on instinct. Taking the push down the stairs incident. It could be possible that the accused was for some reason angry, annoyed, or other, at the victim and chose to push him down the stairs because of these feelings. Cognitively the accused may not have realised that it would result in broken arms and legs, possibly death, but instinctively the accused would have known that it would cause pain, otherwise he would not have chosen the action of pushing.Even if there was no emotional cause for the action, it could be that as an intellectually under-developed person, the accused may have simply seen his fellow person as a potential competitor, much the same way that happens in nature, and pushed him down the stairs again on instinct.The instinct, and not the thought, is what has moved him to cause pain to the victim. And should this instinct not be corrected via means of punishment and education ?

  • >And thinking more along those lines.Forgive my lack of knowledge in neuroscience, but there are different parts of the brain which are responsible for different functions.One part controls instinctive animalistic functions, i think its the cerebellum. this is the oldest most primitive part of our brain.the cognitive functions are performed by, i think, the frontal lobes.Therefore it is likely that most people use certain parts of their brains for certain situations.we've all heard the expression 'what was i thinking?'. Possibly this is when we remember acting in a way that was not reasoned out well, possibly due to our cerebellum having more influence on that particular occassion.If we are going to make allowances for those who are not cognitively aware of their actions, should we also only prosecute normal thinking adults, if it can be proved that on this particular occassion, their actions were not overly influenced by their cerebellum ?

  • >Good points. Thinking back to my A Level Law, people outside of their right mind are given some diminished responsibility. That's why we allow provocation and duress as mitigating circumstances for many crimes. Similarly it would be taken into account if a person was intoxicated at the time of commiting the acts (though with the careful proviso of a 'dutch courage' test, where one who gets drunk intentionally in order to enable himself to commit a murder cannot use this as a defence. There is also, I think, a careful consideration of how to treat out of their mind on illegal and mind-altering substances at the time. In a case where a woman suffocated her partner with a pillow, thinking he was a snake whilst on an LSD trip, might have faced manslaughter charges because of her recklessness in taking the drug in the first place, knowing the potential for halucenation and its effects). In essence, we already do enable some mitigation for adults temporarily out of their normal mental states.The distinction between instinct and thought is an interesting one. Instinct means that one cannot mentally control ones actions – if, for example, a man with a phobia of wasps was walking along some cliffs with his girlfriend and, seeing a wasp land on his shirt, started dancing and panicking and, in the process, knocked his girlfriend off the cliff, there would be no cause to prosecute. It would be a tragedy over which no one could do anything about and the only suitable 'correction' could be voluntery therapy to deal with his phobia (on top of everything else he would need). What you describe when you consider a person seeing a competitor and pushing him down the stairs is not instinct but a thought process – i.e. enemy sighted, enemy met, action taken. That he would not have acted that way had he met a friend implies a thought process there which satisfies some element of the mens rea, at least for manslaughter. There would be case for diminished responsibility on account of mental faculties, of course, but he should face charges, provided he was mentally fit to stand trial (2a or b above). Clearly he knows his actions would damage his 'competitor' and he ought to face some punishment for that, albeit mitigated. Only where there is no sign of any mens rea at all (i.e. no 'guilty mind' whatever) should there be no prosecution.

  • >Instinct means that hte action does not pass through the cognitive part of the brain, e.g. removing your hand from a hot stove plate.I understand the diminshed responsibility laws etc, but what I'm suggesting is that there may come a time when lawyers can argue that because an accused was acting on the influence of their cerebellum that they cannot be found guilty because no thought passed through the cognitive section of their brain.As an aside, did you know that this year NZ passed a law that outlawed provocation as a defense.

  • >I had no idea re: NZ and the provocation defence? What were the key issues in the debate that led to that happening?It's not an absolute defence here, but does contribute towards mitigating circumstances.

  • >I'm not sure, I think maybe 2 reasons.1. people were taking the mickey. For people who were as guilty as sin, some of them started using weak forms of provocation to get themselves a manslaughter charge, e.g. some uni lecturer killed his girlfriend by stabbing her 100 times and used as his defense that she was psychologically manipulative.that was the last case that provocation was used and it was high profile but i think the law was already going through the parliament at that stage.and 2. the belief that murder cannot be condoned in a civilised society. if we allow some form of mitigation then we are accepting that murder has some degree of legitimacy. In a civilised country where a lot of money is spent of support systems, social work, publicity of issues, education of issues, etc, it's now expected that people should use one of the many services in order to deal with their problems.But those are just my ideas on what caused the change.

  • >Right, finished that damned essay! I can join in now. I absolutely agree that determining criminal responsibility at a set age is arbitrary. I also agree with the ideal solution of psychoanalytic and cognitive tests. However there are three problems: one is the cost, two is the fact that some people will fail on purpose to diminish their responsibility, and three is the potential hypocrisy of dictating criminal responsibility through individual testing, yet leaving other distinctions such as the right to vote and have sex based on age. So basically, I agree with the logic and principle behind the argument, but I would question its practicalities.I completely agree with Sean that some sign of ‘justice’ is always necessary, simply for the victims. I don’t want to go into detail on this so please don’t ask questions, but my Grandpa was murdered last year. So I am aware of the impact it has on families, and something does need to happen, even if the courts are certain that the offender will not re-offend (and the courts need to work faster too). In addition, as Sean says it sends out a terrible message if some people are able to walk free without even a trial. The message needs to be loud and clear: the action was wrong, and cannot be tolerated from anyone. Even animals are held to account when they attack someone, and they are not aware that such actions are ‘wrong’.

  • >Re: the psychoanalytic testing, points taken but:a) cost wouldn't be excessive because such tests only need to be applied to those clearly so mentally vulnerable as to be potentially incapable of ever possessing the mens rea and/or standing trial. It would be easy enough to find out who these people are as they will be children and/or have social worker/medical files readily available for access. For those who suffered temporary loss of mens rea (say the sleepwalking example) the evidence already is scrutinised by professionals as a matter of course, either before trial or in the trial itself.b) Such tests aren't about passing and failing, and in any case they would only apply to the mentally vulnerable (the most vast majority of people are capable of possessing mental states such as intent or being reckless as to consequences – that’s why there are subjective ‘reasonable man’ tests in the law, though I’m not the biggest fan of them). Professionals in cognitive psychology could, in any case, work out who was trying to play them along.c) the vote and sexual consent (as indeed are driving, standing as an MP, buying alcohol etc.) are separate issues which I won't go into here, but you are correct in suggesting that removing an age of criminal responsibility while leaving an age of sexual consent is hypocritical. If purchasing alcohol and driving a car was determined by anything other than an arbitrary age cap, you are right that it would be unworkable. But let's leave that for now.

  • >We need to distinguish the action from the mental state a bit more. Mens rea, in the law, is not a case of knowing or believing an action to be 'wrong', as you imply. Under English and Welsh law ignorance of the law is no excuse; if it was, plenty of psychopaths and sociopaths would never be brought to justice. Mens rea is simply the mental state governing your actions, which you may believe to be perfectly acceptable. Taking an example from Rope, an Alfred Hitchcock film were two men conspire to murder a wealthy friend (or relative, I can't remember). One is convinced, in some pseudo-Nietsczhean way, that murdering this person is perfectly acceptable as he could use the money more usefully, nobly and whatever else. He is like Raskolnikov without the existential guilt.Now, if this man strangled this wealthy friend intending to kill her he would be convicted of murder, even though he believed his actions to be completely appropriate.If, however, and even though he did intend killing this person at some undetermined time, he accidently tripped over himself and, as a result of the fall, knocked this person into a washing line on which she garrotted herself, there would not and could not be a prosecution. N.B. the mens rea of wanting to kill his friend at some point cannot be transferred –> he must intend to kill at the time of the action and through the action itself; i.e. the actus reus and mens rea must coincide. You say:'The message needs to be loud and clear: the action was wrong, and cannot be tolerated from anyone'.But surely that does not apply here? Actions without the required mental processes cannot be punished; actions alone are not crimes. In fact, I would argue that, if forced to choose one or the other, it is more just to prosecute Hitchcock's Nietzschean man in scenario two for his intention to kill his friend at some undetermined point (i.e. the mens rea minus the actus reus) than for the act of tripping over and knocking his friend to her death (i.e. the actus reus minus the mens rea), although neither are just or desirable.Mens rea is the 'guilty mind' that must accompany the 'guilty act'; it is not the same as a person's belief in the moral rectitude of the consequences. In scenario one Hitchcock's character has it, in scenario 2 he does not. To go back to the pushing down the stairs analogy, which ties in more closely with the debate about the mentally vulnerable, if a child is playing a game on the stairs with his friend which results in him accidently pushing him down to his death, there should probably be no prosecution either, or at least this is where my cognitive tests would come in. It is emphatically not murder as there is no intent to harm, but is it reckless? To most mentally sound adults, horseplay like that on a flight of stairs would carry an inherent risk (this would be the 'reasonableness' test here). But to the mentally vulnerable (I'm sorry for using this phrase; I can't think of anything else)? The reasonableness test clearly should not apply, and if he foresaw no harm from his actions he cannot possibly have been reckless and there is absolutely no public interest in prosecuting – just like Hitchcock's Nietzschean man (although through different circumstance), he meets the actus reus but not the mens rea.

  • >Now, this links in to an entirely different (and, to me, more interesting) debate: what is the purpose of legal punishment?Correct me if I am wrong, but your second paragraph implies that it should have a principal retributive purpose, with some element of therapy for the victims through seeing an action punished ('even if courts are certain that the offender will not re-offend' to send a message that 'the action was wrong'). It might be because I have, fortunately, never experienced serious crime (I won't ask questions, but it's only right that I do say how sorry I am to hear of what happened to your Grandpa and your family, Rob), but I see the principal function of justice as to protect society by firstly preventing a further crime (usually, for serious offenders, through imprisonment) and secondly through rehabilitation of the offenders. Punishing those who have no mens rea cannot serve this purpose (though, admittedly, for some suffering hallucinogenic disorders and such secure hospital treatment should be provided).

  • >About the testing I agree with you if it's only done for children and exceptional cases, assuming a review found it to be feasible.The other issue is tricky. The problem is that the actus reus is all that's needed for a death to occur, and criminal justice is about more than just right or wrong; it's about how the victim, the culprit, those affected, and society at large deal with it. Of course there's no point in jailing someone for accidently doing something they had no intention of doing, and no likelihood of doing again. However, there is a point of acting nonetheless to: provide comfort to the victim's familes; to provide comfort to the country at large that 'justice' has been served; to spread the message that the state always looks out for you and always acts when you've been wronged; to help the culprit deal with their guilt; and to ensure it won't happen again. I don't know what currently happens in the case of completely accidental deaths. However I would say that in the event of a normal person doing something like this, when the courts were sure it was completely without mens rea, community service could be very appropriate. In the event of a mental patient doing something then it might be appropriate to investigate why they were able i.e. do they need more care/attention? With those emotionally vulnerable but still innocent (without mens rea) any action could be detrimental and therefore the courts need the powers to judge these issues on a case by case basis.I'll start that next debate on Friday (though I definitely don't think retribution should be the primary goal of the criminal justice system; it's about what serves the greatest good). Did you mean what you said by the way? i.e. do you mean 'What's the purpose of legal punishment?' Or do you mean 'What's the purpose of the criminal justice system?'P.S. Thanks about my Grandpa.

  • >Re: the next debate, the second question 'What is the purpose of the criminal justice system?' is better; certainly less leading.'However I would say that in the event of a normal person doing something like this, when the courts were sure it was completely without mens rea, community service could be very appropriate'In cases like this there would be an absolute discharge. Anything else is inappropriate, I think. Certainly, as you suggest, some people may be so mortified that they tripped over and accidently knocked someone to their death and may desire some kind of pennance via community service or something of the like, but surely it is unjust to _impose_ this as a form of _punishment_. Where, as you yourself admit, some deaths might be simply accidental (we're not even talking about recklessness here – a dangerous overtaking move on the motorway, say, or even tickling someone on a cliff top) it seems barbaric that there should be any punishment at all. Taking the examples I've given above, these would amount to punishments for a child innocently (not recklessly) playing, a man having a phobic reaction to a wasp and another man being clumsy. As I said, actions alone are not crimes, but only become crimes when joined with a criminal mindset (in most cases, intent or recklessness). I do appreciate the victim's rights and, as you point out, the need the accidental 'offender' might have for some sort of pennance or catharsis, but to impose punishment for actions which are completely accidental with no element of recklessness is, in my opinion, quite wrong.

  • >Firstly, remember the distinctions between accidence, recklessness/irresponsibility and intention are made subjectively. Hence there is a problem with absolute discharge because some people will disagree. Can you imagine if someone killed your mother in what you thought was an act of complete idiocy? What would you feel like if that man simply walked free? Say you have children. Could you bring yourself to let them walk past that man's house on their way to school? Think about the impact on your life, and then imagine what you'd feel like if you heard that man was angry about the 'barbarity' of being asked to do some local community service."it seems barbaric that there should be any punishment at all". If you accidentally did something in a business that cost the firm, you would absolutely expect to be disciplined, perhaps even fired. It's not barbaric to expect that someone should help a community that they (willingly or not) hurt so deeply they most likely couldn't begin to imagine.

  • >Without being callous, it wouldn't matter what I thought about it. Most people would be baying for the blood of whoever killed their mother, accident or not; I suppose such people would, quite understandably in the heat of the moment, want them horribly killed, preferably by their hands, but you presumably wouldn't allow that even for the Wests and Dahmers of this world? At the end of the day, the law is blind and objective, the law does not take the emotional offence that an individual does, it is partial and against such criteria it is surely wrong to punish someone for what is a complete accident.In any case, 'idiocy' implies reckless behaviour which would be punished. What is idiotic about having a panic attack at the sight of a wasp? At worst, it's a phobia which an indivdual cannot help. Or happening to trip and fall (not hopping and falling, or walking backwards and falling, just walking normally and catching your foot or losing your balance or something)? You are being, implicitly at least, too wide in what you term an 'accident' and perhaps that is keeping you away from my view. Is leaving sensitive documents on a train, leaving them open to being stolen and causing all sorts of problems for your employer, an 'accident'? Not really, it's reckless and you would expect to be disciplined, just as it would be reckless ('idiocy', perhaps) to tickle your girlfriend on a cliff edge. Would you expect the same for a genuine accident, say fainting in a hot office, falling over onto an adjacent desk and knocking coffee all over some recepits or whatever people keep in offices? I wouldn't have thought so, just as I'd imagine most people would think it reasonable that a man who suffered a phobic response to a wasp, had a panic attack and knocked his girlfriend off a cliff would go unpunished. In other words, most 'accidents' have some degree of recklessness at their root cause, hence appear to reasonable people 'idiotic' and are already (quite properly) punished; some patently do not and the idea of a society that punishes genuine accidents (i.e. for the purposes of this debate, a physical act over which an individual cannot be reasonably said to have been in control or been able to control) is not one in which I would particularly like to live.Your suggestion that it is 'only' community service is also disingenuous. Apart from the injustice of being forced to do it as a punishment for what was essentially automatic bodily action, in order for a judge to offer any kind of sentence there was to be a conviction. So the wasp-averse man who knocked his girlfriend off a cliff would not only be forced into community punishment but would have a manslaughter conviction hanging around his neck for the rest of his life! It couldn't happen as it stands as he simply does not have the mens rea and, if it made court, he would be found 'not guilty', but if the conviction cannot happen neither can the punishment. In other words, if you want to dish out the punishment you have to convict of the crime, mens rea and all.

  • >*impartial; obviously.

  • >"it is partial and against such criteria" Actually it's not. When a member of your family is killed you are asked to make a statement saying how it has affected you personally. Your emotional reaction is taken into account in the sentence. I'm not saying I entirely disagree with you though. I didn't make a statement as I wasn't sure whether I wanted my emotional reactions being taken into account."In any case, 'idiocy' implies reckless behaviour which would be punished. What is idiotic about having a panic attack at the sight of a wasp? At worst, it's a phobia which an indivdual cannot help."As I said, the distinctions are made subjectively. You could argue that it was reckless and childish not to sort out an allergy that was so bad you couldn't prevent yourself from shoving your girlfriend to her death just to get at a wasp. At the end of the day you cannot say what you do and do not have control over. There has been a trend in recent years toward classifying what a person does and does not have control over. There has even been a murder case where someone has shown that they have a gene making them more likely to murder, and their sentence being reduced (or gotten rid of, I can't remember) as a result. But aren't your genes you? Just because one part of your brain orders an action rather than another does not make it any less you.As for the legalities you can find an individual not guilty of manslaughter or murder, and yet still guilty of inflicting pain on a community.

  • >""it is partial and against such criteria" Actually it's not. When a member of your family is killed you are asked to make a statement saying how it has affected you personally. Your emotional reaction is taken into account in the sentence. I'm not saying I entirely disagree with you though. I didn't make a statement as I wasn't sure whether I wanted my emotional reactions being taken into account."There is a difference here between conviction and sentence. The feelings of anyone who might have suffered by an individual's actions, inaction or whatever is irrelevant to the verdict; it is based entirely on the objective facts of the case, the actions of the defendant and his/her mental process in commiting act. If you can't convict you cannot punish. Your idea of a crime of 'inflicting pain on a community' is surely nebulus, but that aside, as with any crime, you would still have to prove a mens rea, surely? If you have neither intent, recklessness nor negligence how can you be found guilty of this when they can't of anything else. I appreciate that there are some 'safety net' crimes in place for those who miss the test for one crime (manslaughter, for example, is a fallback offence which has a mens rea of recklessness, as opposed to the higher proof of intent for murder), but that can't work if there is no mens rea at all. Also, I don't want to get into the ins and outs of your Grandpa's case, not least because you don't want to, but I'm not sure what the prosecution and the judge would have done had you given a statement as to how it affected you, especially as there is a mandatory life sentence for murder. Judges can recommend a minimum (even if they are unable to impose a maximum) sentence (8 years for the Bulger killers, for example, and about 14 for the average murder), though of aggravating factors (which include gain, use of weapons, racial hatred and so on) feelings of the victim's family don't seem to be included in the sentencing guidelines (http://www.sentencing-guidelines.gov.uk/docs/minimun_terms.pdf), nor should they be as the murder of a loner is as much a murder as the murder of a well-liked and missed individual, something victims' support groups seem very keen to emphasise when they insist that all murders are equal. Then again, the murder of a child or vulnerable adult is listed as an aggravating factor and the courts, by having sentencing guidelines in the first place, tacitly admit that some murders are more equal than others, so I suppose that blows that argument out of the water. Feel free to ignore this part of what I'm saying entirely, I'm just thinking through aloud if anything, I don't want to dredge up things that you'd rather not talk about.I take your point on recklessness being subjective, but the courts acknowledge that and apply a reasonable man test. Would it be reckless to the reasonable man for an individual not to seek therapy for his phobia of wasps and not foresee the episode on the cliff? No. Would it be reckless to tickle his girlfriend, or make her jump or something, on the cliff? Probably. It doesn't solve the problem, I know, but it comes down to what 12 jurors would consider reckless and in 99/100, maybe more, you'd get unanimous 'not guiltys' in the former case, unanimous 'guiltys' in the latter. Not satisfying though, I admit; it is a problem in law and I've thought that from the day I encountered the recklessness test at 16 years old. 'Reasonable' is not objective, but what else could you do?

  • >I don't think my idea of a crime inflicting pain on a community is nebulous. It's obviously clearer to me as I have more experience, but nevertheless you have to accept the consequence of your actions, and you have to accept that such actions always cause pain, no matter what the cause, or what the intent.With regards to your last paragraph, you're right. It's beyond unsatisfying. It is completely unjust that the man who tickles should be found guilty where the man who waves and jumps around is found innocent. You say that morality and good intentions shouldn't have anything to do with it. Yet you could make far greater arguments in defence of that, and it's not something that's done. I find those random distinctions (that you mentioned) that determine guilt quite arbitrary. Your brain is responsible for what you do. The tickler and bee catcher could both have exactly the same intentions. Are you saying the tickler should be found guilty because he/she was stupid? Why is that level of intelligence any less of an innate quality than the bee/wasp phobia?

  • >Re: your last paragraph, you cannot help it if you have a phobia of wasps. You don't choose to react in that way, it is your brain's reaction to seeing this creature. You do have a cognitive choice when you decide to tickle someone. It boils down to what actions you can/cannot control.

  • >Technically every action you take is chosen, just by different parts of your brain. If you subconsiously decide to do something does it mean that you are not acting? Does it mean you are less likely to do it again? In fact it means you're more likely!

  • >Yes, but should you be punished for 'subconscious' actions or whatever you want to call them? You are clearly acting, but whichever way you look at it you are not, in any reasonable sense, 'choosing' to act that way, regardless of what you might say about synaptic activity or neuro processes or whatever. To borrow one of Sean's examples, if someone burnt their hand on a boiling plate they would, by your definition 'choose' to remove it pretty sharply. Would you really punish someone if they had knocked out a person who happened to be standing behind them as they reflexively flung their arm back? Frustrating as it undoubtedly is, some things are simply accidents, frak physical actions for which no one can reasonably be held to account.The law wouldn't, and nor should it.

  • >"should you be punished for 'subconscious' actions or whatever you want to call them?" Should you be punished for bad results when you had good intentions? Should you be punished for inadvertently pushing someone into the road when tickling them? It has a similar logic doesn't it?My point was not about punishment. It was about helping the community you have done so much to hurt. This would not have to be seen as a punishment, and would not require a permanent mark on your records.

  • >You keep coming back to the tickling anaglogy; just to make clear, to almost any court that would count as recklessness and would be punished. Even I agree it should be, at least to some degree.Where we seem to disagree is that there do exist some situations where there simply are no intentions, good or bad, there are just what are, to all intents and purposes, reflexes and/or unconscious actions – someone reacting to a wasp, sleep walking, removing their hand for a burning stove. You do see the difference between these examples and the tickling analogy (which, I admit, I'm beginning to regret making if only because it sounds more childish every time I write it)? In one case someone made a conscious decision to have a bit of fun near a cliff or a busy road, whichever you prefer, and it has gone wrong. They have been reckless and taken what any reasonable person would see as a risk. They should be punished for any adverse consequences of their actions. In none of the situations that I have mentioned is there any mens rea; I'm sorry, but a brain wave being automatically sent to get your hand away from a burning stove or get away from a wasp is not a 'choice' that anyone can reasonably said to have made: it's the same as putting your hands out when you trip to break your fall, it is a reflex.You can call compulsory community service a punishment or whatever you like, it is still the courts imposing an action on an individual who, legally, has done absolutely nothing wrong if he/she lacks mens rea; that is, in all the cases I have outlined. In a fair and just society that should not happen.Yes, all events with unpleasant consequences are unfortunate; but to me, someone acting through a reflex bodily action is as much an act of nature as a big bough of a tree falling on someones head. In neither case is there mens rea, in neither case is there a crime. It's unfortunate, not least I add for the poor sod who has knocked someone off a cliff or whatever, but that is life. I've said it once and I'll say it a third time, actions alone are not crimes.

  • >"should you be punished for 'subconscious' actions or whatever you want to call them?" Should you be punished for bad results when you had good intentions? Should you be punished for inadvertently pushing someone into the road when tickling them? It has a similar logic doesn't it?No, the logical distinction is pretty clear to me.In the first case a 'subconscious' act, by definition, means that it is born of no conscious mental process. Even you acknowledge this by distinguishing 'subconscious' acts in the first place. It is in essence an act without mens rea, regardless of the technicalities of neuroscience showing every action to be some sort of 'choice'. In practical reality, you are exercise as much choice, possibly less, when you remove your hand from a burning stove as wen you breathe in several thousand times each day.Should you be punished for bad consequences when your intentions were good? Yes.Say you sped 40mph in a 30mph zone to get to your father's birthday party on time. In doing so you knock down a man and his dog. You made a conscious decision that was reckless as to the consequences.Say you killed a man to save your sister. Regardless of the mitigation you might have in sentencing, if you intended to kill or commit GBH (or were reckless as to this fact) and you kill him you have still committed a crime.Should you be punished for tickling someone on a roadside causing them to fall to their death? Yes. You made a conscious decision to tickle that person in a circumstances which could reasonably be judged to have been reckless. The distinction is clear – in two situations you make conscious decisions, you have mens rea. In one, by defintion, you don't. I have no problem whatever with this logic.

  • >I completely disagree. I come back again to the distinction between intelligence and instinct. Both are intrinsic qualities i.e. you're IQ does not change, and although your instincts do I'll accept that they're very difficult to control by willpower. In addition both are manageable. You cannot make yourself more intelligent (as far as I know, although epigenetics could potentiially improve IQ, I'm not sure about that one) but you can make yourself wiser through learning. And in the same way you cannot drop a phobia, but you can condition yourself to cope with it and force your mind to respond in rational ways when familiar feelings mount. In fact there have been many cases of people being completely cured of phobias, whereas there have been few cases of people suddenly becoming more intelligent, which means something like the tickling is in some ways less controllable than reacting to a phobia.You say nothing would happen to a tree if a branch fell and killed someone, but you're wrong. The next day someone would be out there checking if the tree needed strapping up or chopping down. What would happen if an animal attacked someone without mens rea? We would check if that animal needed to be put down. We need to check if they're likely to do it again, and discourage them from such course. Yet where humans are different is in their emotive capacity to understand, and in their ability to work at improving situations they have contributed towards worsening.It's basically about the greatest good. By forcing a child to clean up a mess that they made without mens rea they may feel punished. But at the end of the day if they didn't do it then the teacher would have to, meaning that the next class would probably get delayed and they would learn less.Also, you talk about the distinction between the conscious and subconscious as if you are made solely of the first. You and I, as intellectuals, obviously use our conscious minds a lot of the time. But many people actually value their subconscious decision making capacities more. You're saying that people should not have to bear the responsibilities of their actions if only certain parts of who they were actually caused their actions.

  • >Your IQ can be improved apparently, though not by much, but you're missing the point a bit. I have an IQ of about 130 but I have used the examples I have because I can, one way or another, see myself in each of them (falling over, tickling my fiance at inapprorpriate times, certainly the wasp aversion). Because I have a relatively high IQ doesn't stop me engaging in stupid actions, nor does it anyone else (or, indeed, someone with a low IQ acting quite sensibly). IQ of 156 or 89 the tickling is a reckless behaviour and isn't necessarily more likely in one or the other.You can cure phobias, but is it really the place of the court to punish someone for either not being cured or not seeking treatment. Medical professionals (not the courts) should ask themselves if the act is likely to occur again and if it is then they might have powers to strongly urge treatment, but the fact remains that if you are acting reflexively when performing the actus reus, whether your phobia can be cured or not, you simply do not have the mens rea to be found guilty of a crime. You will be most unlikely be even prosecuted. That's how it is and I'm fine with that.The logical extension of your argument is that a person should force his will to keep it on a burning hot stove; if he does not and reflexively takes his arm away at pace and injures someone close by he must be somehow culpable for her injuries. This expectation is unreasonable, in my opinion.You mention the animals again – we probably would put it down, which is something that, as an animal-loving vegetarian I have great distaste for (but that's for another debate). In any case animals can possess mens rea (granted, the 'reasonableness' test for recklessness is probably a stretch) but a dog, for example, can intend to bite and cause harm. My guinea pigs know the difference between nibbling my hand and biting aggressively (one has only ever done that once, but believe me they know what they're doing and I feel the difference). Dogs can be trained not to be aggressive, just as they can trained to be so (that's why I hate the labelling and outlawing of certain breeds as 'dangerous' by statute, where much like humans it depends on their care, upbringing and personalities); as can cats, horses, even rodents with a lot of patience. If an animal acts without mens rea it is utterly improper to punish it; where it does it should be punished and reformed (but not put down): just like humans, then.I take it by your last paragraph that you mean some people act spontaneously or on a hunch or something? Even then they are still making a conscious choice. Some might value their subconscious more (I can't think why), but you obviously can't consciously use your subconscious so you don't really have any 'subconscious decision making capabilities' that you can control. The moment there is any conscious wrongdoing in the eyes of the law (negligence, recklessness or intent) there is likely to be a conviction. Everyone, 99.9% of the time acts consciously – it doesn't mean deliberated, it doesn't mean theorised, it just means they have come to a conscious decision to act in a certain way – and where this forms a mens rea to coincide with an illegal act it should be punished. Where one acts subconsciously (which, I repeat, you cannot choose to) it should not.

  • >Aggh, just to clarify, I don't think that having a phobic reaction at the sight of wasps or falling over is 'stupid'; that would imply recklessness and then I'd agree with you, wouldn't I?Of the examples listed in my first paragraph, only the tickling might be considered a 'stupid' or reckless act.

  • >33 comments so far! Reckon we can keep it going till 50? That would make it the longest debate yet.Nice to hear that you can improve your IQ. That's pretty cool, though about yours …. show off!The stupidness was only meant to apply to the tickling."The logical extension of your argument is that a person should force his will to keep it on a burning hot stove". You're aware that can be done right? If you're able to make the choice it wouldn't be unreasonable to suggest that you do this rather than kill someone. However of course that's not how it happens in most cases, and I'm not suggesting that. What I'm saying is that distinguishing the law solely based on mens rea and actus rea seems a little arbitrary.I think the reason we disagree comes mainly down to the last paragraph of your first comment. You believe 99.9% of all actions and decisions are conscious yet I do not. I'm not sure if there's a hard and fast definition here but I would say the conscious decisions are those where you're aware of your decision making. Going back to the example of the school child, someone with baggy sleeves could turn and knock a tin of paint onto the floor in an art class. That's without mens rea right? Yet surely you agree that the pupil should help clear up the mess? This is exactly like what I'm proposing. I don't think this sort of thing should be talked about at parent's evening, go on a reports card or result in a detention. But the pupil should accept that he/she has made a mess and should therefore clean it up.

  • >I'm not sure that it (training yourself not to flinch when touching a burning stove) can be achieved in the way you imply.Should I turn my hobs on now and in five minutes walk up to them, determine that I am going to keep my hands on them for five seconds, then shove a bit between my teeth and do it I probably could. That is me acting in a quite conscious (and masochistic) way. I intend to keep my hands on the hob and bend my will to do it. A wasp phobic person might be able to do that with a wasp, though far less easily; in fact it's a device probably used in the later stages of therapy for such phobias. Extending the hob example, if my fiance was stood behind me while I decided to have a go at this prank and it turned out that my will wasn't strong enough, causing me to lurch backwards and knock her into the table and injuring her, my very action of putting my hands on the stove in the first place would be reckless. This kind of example is not what I meant when I spoke of putting one's hand on a hot stove.Should I later make a sandwich and, not realising the hob was on, put my hand on it I doubt very much that I could stop myself from forcibly removing it, no matter how hard I'd been trained in the masochistic arts detailed above. There is no mental preparation to enable me to steel and control my nervous system – it's a completely different scenario and similar to the one I was suggesting. Even if it's not impossible for most people except those wearing oven gloves or possessed of asbestos hands or something, it is unreasonable for the courts to expect someone to be so supherhumanly disciplined in the shock heat of the moment (pun intended). Your child example is curious. Firstly, you say the child wouldn't be punished – asked to clean elsewhere in the school? Be given lines? Be forced to pay for the wasted paint? Even told that they had done wrong? Then she is literally just cleaning up the mess; it's the equivalent of the wasp-averse man on the cliff being made to help retrieve his girlfriend's body from the pebbles at the bottom (which, I grant, he wouldn't be). Making the man do any kind of community service would go beyond this; the analogy would here stretch to the child being made to clean the whole of the artroom at lunch, help the art teacher prepare materials – get the paints and glues or whatever ready- for her next lesson, spend an extra week on register duty (all community service actions within the school), all for an action which she did not control, did not mean to perform and cannot be said to have acted recklessly or in any way inappropriately in the events leading up to the accident (assuming, of course, that the sleeve met uniform regulations for the school and the art lesson). That would be unjust, even the child would see that as unjust, yet that actually seems the more accurate analogue of what you are proposing.

  • >Lol. This is a funny debate. The hob example of being able to keep your hand there wasn't really a serious point. The point behind it was that you have control over all actions in some way, and the minority are even able to do things like this, which means the justice system is not applying equally to all people anyway. Ignore this though. As I said it wasn't really much of a serious point.The child example was however. And no it is not equivelent to the boyfriend being required to recover his girlfriend's body. Community service is not requiring the person to get back involved in the case and all its gruesome details. So perhaps it's more like that person being required to help build a fence to ensure that no-one falls again.You're taking things way out of proportion here. I'm not suggesting that the theoretical guilty person be required to clean the whole town. I'm suggesting they join existing teams of people to help out how they can. In the school this would not be equivalent to excessive punishment. It would be more equivalent to the teacher saying "I'll get that, otherwise you'll be late for your next class. But I would like you to help me a little during break as I won't be able to get the stain off before my next class arrives".

  • >Community service is not as rigid getting directly involved in the case, I'm aware of that, I was only pointing out that a child being asked to clean up the paint she accidently spilled is not analagous with the man being asked to do community service for his actions, however related it is to his act (putting up fences on the cliff); it is exactly getting involved in sorting out the mess and I maintain it was a good analogue of what you proposed when you said that the pupil 'should help clear up the mess'. Responding to your extension of the cliff example, if the man was asked to work putting up fences surely this is analagous with the child being made to work in her break times transferring all the paint from tins into squeezy bottles to help stop another accident, not merely cleaning up the immediate mess as you first suggested. School/community service or not, it's still, essentially, compelled punishment for an action which they are in no way morally or criminally liable because of the absent of an accompanying mindest (be that intent or recklessness or whatever). You might not call it 'punishment', but it is at least suggesting some sort of culpabilty which is surely not there when 'guilty acts' are unaccompanied by 'guilty' mines. I still think it's unjust.Further, were the child to refuse to help clean up the mess she might be punished for going against school ethos re: answering teachers back or being a good citizen, but she should not be in any way rebuked or punished for spilling the paint in the first place. In the real world, where things like 'being a good citizen' aren't usually enshrined in law the individual could, quite rightly and in good conscience, refuse to help. It doesn't sound nice, but we need to remember that without a culpable mindset an individual simply cannot be held to account for his actions and so it's totally fair and appropriate that his any service is entirely of his choice. In short, any service the individual might choose to do must be that – entirely his choice and not court-imposed I'm not saying that it wouldn't be proper and correct for me to, say, help an old lady I accidently fell into and scattered her shopping, but no more proper than for me to help an old lady I saw fall in the street regardless of my own actions. In both cases I'd be an equal tosser for not helping her, but I wouldn't and shouldn't be legally compelled to in either scenario, as unpleasant as that seems. The law can only compel where the action is accompanied by the appropriate mindset; the action alone is not a crime, no matter how horrid it might be.

  • >When I said 'helping clear up the mess', I meant the impact of the event, not the physical blood etc on the street. However, if it wasn't possible to help with anything related then it would still help to aid the injured community in another way. When using analogous examples you can't make direct translations as different crimes/errors/events are just that: different. Hence you have to be practical in each situation and let the courts decide what would be an appropriate way of helping the injured community best, just as the teacher does in school."You might not call it 'punishment', but it is at least suggesting some sort of culpabilty". As it should. Do you agree that where there is effect there is also cause? If the theoretical person we're talking of is not responsible then who is? You can't say no-one, for that would mean there was no cause. Whether or not the person acted without mens rea, they still acted. Saying it is unjust to hold someone responsible for something they cannot change about themselves, is akin to saying it's unjust to assign any positions based on ability if some people cannot attain that ability due to their biological disposition."she should not be in any way rebuked or punished for spilling the paint in the first place". So who would you punish? Who is responsible? The teacher? It is exactly such philosophies that have created a culture in Britain where the teacher is held accountable for everything that goes wrong, irrelevent of the actions of the pupils. This is not how it's done in other countries. It's ridiculous to think that the teacher should have to clear up a mess created by pupils when it is they who have the most work, and they who have a responsibility to teach pupils how to be, as you say "good citizens"."I'm not saying that it wouldn't be proper and correct for me to, say, help an old lady I accidently fell into and scattered her shopping, but no more proper than for me to help an old lady I saw fall in the street regardless of my own actions."I disagree. When you're personally responsible for having caused the old lady agro you have a far greater responsibility to help. In the other case you would also be a "tosser" if you didn't help. But at least there you could say "she looked like she didn't want help"/"I'm in a rush"/"It wasn't my fault". As you say these excuses would be weak, but they would have far greater weight than in the first case, where they would have none at all.

  • >It strikes me that the difference here is that I would argue in, for example, your child in the artroom case, that no one is responsible or at least, for want of a more suitable word, culpable.That does not mean there was no cause – of course there was – but the child was not responsible for it. To have moral or legal responsibility for your actions you must be have an accompnying mindset. As I've said before, accidents will happen, it's a fact of life. You've been a bit hysterical in saying that I would 'punish' the teacher (words completely put in my mouth; as I said, no one should be punished; it's an accident, plain and simple) and thus contribute to a culture of blaming teachers for all of life's evils. In any case, I'll reply in kind by putting it to you that your attitude is symptomatic of the illiberal blame and claim culture in this country, and especially the US, where children aren't allowed to climb trees, sports days are cancelled and no one dares take any creative risks at all, because there has to be a 'punishment', there has to be blame for everything. I appreciate that's probably not what you intend, but when you ask 'If the theoretical person we're talking of is not responsible then who is? You can't say no-one, for that would mean there was no cause' it begins to read a bit like that. To paraphrase Hamlet, there is more in heaven and earth that is dreamt of in your philosophy and, frustrating as it seems, there are things that humans, individually or collectively, just cannot reasonably be expected to control. These are accidents; there is no blame, there is no punishment, you just get on with life the best you can and, if sometimes that can be really harsh on those that have suffered, such is life.If the teacher cleaned up the paint (and, I stress again, the school rules might well be different to the law and compel the child to do it) she is not being punished. It is her classroom and is, for an art teacher especially, an occupational hazard, i.e. just an everyday part of her job to maintain the environment of which she is in charge. I'm not saying that it's undesirable for the child to help, far from it, only that in this case where there is no mental guilt accompanying an accidental act it is improper that there should be compulsion.Re: the old lady if you have no mens rea you are not in any shape or form legally responsible for what happens to the old lady, thus the only proper censors of your actions are the individual conscience and the morality of his/her community (and they would rightly condemn such oafish and selfish behaviour). It is none of the law's business; in the eyes of the law the excuses from either man would be equally as irrelevant although, as you suggest, the second man might have more of a case (not much) in the court of public opinion.

  • >As it should. Do you agree that where there is effect there is also cause? If the theoretical person we're talking of is not responsible then who is?Cause is not the same as responsibility. You agree with that surely?Then there must be some causes (without which, as you say, there is no effect) for which there is no responsibility.

  • >You quote Hamlet to say "there are things that humans, individually or collectively, just cannot reasonably be expected to control." Yet the simple fact is the theoretical culprit has controlled what's happened. It may have been without mens rea. But any case in which actus rea exists implies some level of responsibililty. You say no one should be punished. Yet if dealing with what has happened is called punishment then the matter will not get dealt with.You say that the teacher should clean up the mess. Yet this means the child accepts that they had no responsibility over what happened, when clearly, it was their body that caused such action. And in addition, is it right that the teacher cleans up the mess rather than do other work i.e. teach the next class? Surely this is shifting the blame and punishing others who can't hold any responsibility i.e. the 30 kids in the next class who get taught less.You said that you could say holding the culprit responsible would discourage risk taking. I disagree. In fact I think making people responsible for their actions simply makes them responsible. It encourages more mature responses, and may even encourage risk taking because people will know that others will not have to bear the costs of actions carried out by them."Re: the old lady if you have no mens rea you are not in any shape or form legally responsible for what happens to the old lady" I agree. Yet in this next part you agree with me that in society no mens rea is needed. "as you suggest, the second man might have more of a case (not much) in the court of public opinion." Then public opinion agrees that people should, to a degree, bear responsibility for their actions regardless of mens rea.Of course cause is not the same as responsibility. But does this sentence make sense: "the sling-shot was responsible for throwing the stone"? I'm guessing you would agree that the responsibility is shared, and falls largely on the user of the sling-shot; not the apparatus itself. However, even without mens rea this slingshot was responsible in some way. It is why we have gun control laws.

  • >We're not getting anywhere with this and it's clear we have pretty fundamental disagreements.Re: the old lady – society and the law are and should be separate. If anything, you agree more with me in that the failure to help is undesirable, but not illegal; if it's not illegal then it can't be punished, at least not through the courts.Again, you are completely mangling cause and responsibility and, in any case, your sling shot example depends entirely on the mens rea of its user.Where a man, David, uses his slingshot with the intent to harm or kill Goliath of course he is responsible for these actions.Should David use his shot whilst sleep walking, say, there is no mens rea, there is a cause but no responsibility.In the latter case it is utterly wrong for the law to punish.

  • >"We're not getting anywhere with this and it's clear we have pretty fundamental disagreements." Yeah I know I just wanted to get to the 50 number, lol."Re: the old lady – society and the law are and should be separate. If anything, you agree more with me in that the failure to help is undesirable, but not illegal; if it's not illegal then it can't be punished, at least not through the courts." Absolutely. I just think the same logic should be applicable in the courts i.e. that when you're responsible (even if without mens rea) you should be held more accountable than someone who was not responsible at all."Should David use his shot whilst sleep walking, say, there is no mens rea, there is a cause but no responsibility. In the latter case it is utterly wrong for the law to punish." I think this is where we exhaust the debate. For I think that even if he is asleep he is still responsible, just not for murder. I wasn't mangling the issue of cause of responsibility (well, not to my mind). I was saying that in my view where a human actor is a cause they are responsible, at least to some degree. My point about the slingshot was that it is correct English to say objects without mens rea are responsible. So even the English language agrees with me!

  • >"Absolutely. I just think the same logic should be applicable in the courts i.e. that when you're responsible (even if without mens rea) you should be held more accountable than someone who was not responsible at all".Therein lies our difference. To extend the debate further with an eye to fifty, where do you stand on the 'crime' of omission. In some jurisdictions, for example France, a person is criminally liable for consequences which they did not cause but can be reasonably be held to have helped prevent: for example, a child is drowning in a shallow pool and a person, perfectly able to extend a hand and help, walks by, leaving the child to die. He could be criminally responsible under France's 'Good Samaritan' law. Would this, in light of what you think about the old lady scenario (above), be a good thing to introduce in the UK?Re: everyday use of language is a wondrous and varied thing, but rarely legally accurate. This is a case in point.

  • >It's a tricky one that. It's different to the previous case we were discussing because it's punishment for a lack of action rather for action. There are lots of difficult cases. Tying it back to the question, most children could not be tried. Have you ever watched the film called 'Ray' about Ray Charles? When he was young he watched his brother drown in a bathtub without saving him. But he didn't do this out of any muderous act. He was shocked and confused, as any child would be. He expected it to be some kind of joke and his mind couldn't process the extremity of the situation.However, on the other hand if the mother had come out and only watched as Ray had done then clearly that lack of action would be wrong. Hence, without researching the idea I would say it's not a bad idea; but the courts must have considerable leeway on whom they find guilty of an 'inexcusable' lack of action. Relating it to the previous case, should any responsibility be attached to those who are guilty of non-action, but had valid excuses that prevented such action? Precisely because this is a lack of action I would say no. However I would still strongly suggest volunteer programmes to get those people helping others.

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