Doli incapax

From latin - meaning 'incapable of evil'

There is a statutory presumption to the effect that children under the age of ten are not capable of committing a crime. It was Section 50 of the Children and Young Persons Act 1933 (as amended) that enacted that 'it shall be conclusively presumed that no child under the age of ten can be guilty of any offence'. Originally the age stipulated was eight but this was increased to ten by Section 16 of the Children and Young Persons Act 1963.

 

Until Parliament intervened in 1933 it used to be the case that the criminal responsibility of children and young persons was governed by the common law. Up until 1933 a child under seven could not be held criminally responsible and this principle was encapsulated in the Latin term doli incapax. This effectively acted as an age limit in terms of a child's criminal responsibility. Doli incapax has been interpreted to mean 'incapacity of committing an offence' (Lord Phillips in R v JTB (2009) see below).

 

This statutory presumption is known as the doli incapax presumption. The presumption of doli incapax was abolished by section 34 of the Crime and Disorder Act 1998. The age of criminal responsibility in England and Wales remains at 10.

 

A rebuttable presumption existed to the effect that between the ages of 7 (increased later to 8 and then 10) or over, but under 14, a child was presumed to be doli incapax. The reasoning being that it could not always be clear that the child would know the difference from right and wrong raising doubts as to whether they had the necessary mens rea.

 

This rebuttable presumption operated under the common law. The presumption could be rebutted by the prosecution proving that a child who had committed a criminal act knew that he or she was doing something that was wrong. A child that could be shown to know the difference between right and wrong was said to have mischievous discretion.

 

Section 34 of the Crime and Disorder Act 1998 abolished this rebuttable presumption that a child aged 10 to 13 is incapable of committing a criminal act, meaning that any child between the ages of 10 and 13 (inclusive) who committed a crime could now be held accountable for their actions.

 

In R v JTB (2009) the issue arose as to the correct interpretation of Section 34 of the 1998 Act in an appeal against the conviction of a child. The child, aged 12 at the time of the offence, was accused of causing or inciting a child under the age of 13 to engage in sexual activity contrary to Section 13 (1) of the Sexual Offences Act 2003. The appellant claimed at interview that he had not thought that what he was doing was wrong.

 

The arguments revolved around the question of whether, in the case of a child between 10 and 14 years of age, s 34 of the Crime and Disorder Act 1998 abolished the defence of doli incapax altogether or merely abolished the presumption that the child has that defence, leaving it open to the child to prove that, at the time of his actions, he was doli incapax. If this was the case the defence would still have to show that the child did not know that what they were doing was wrong (i.e. lacked mischievous discretion). Lord Phillips of Maltravers, in giving the leading judgement when the matter reached the House of Lords (now the Supreme Court) made it clear that their Lordships were completely satisfied that Parliament had not only intended to abolish the presumption but also the defence of doli incapax.

 

Section 34 of the 1998 Act has the effect, therefore, of making a child as responsible for their actions as if they were an adult. This may seem harsh but it must be remembered that the sentencing powers are different for children and young persons to those for adults.

 

It is worth remembering that there had been doubts even amongst the judiciary about the presumption well before the matter was put to rest by Parliament with the Crime and Disorder Act 1998. These concerns were illustrated in the case of C a minor v DPP (1994) which became a rare example of a Case stated appeal on a conviction by the Magistrates' court.

The case of C v DPP (1995) concerned a 12-year-old boy who was charged with interfering with a motor cycle and the presumption that from the age of 10 to 13, for a conviction to be returned, the prosecution had to show that the child knew that what he was doing was wrong.  The Divisional Court effectively did away with this presumption and reasoned that times had changed. 

On appeal on a point of law of public importance the House of Lords (now the Supreme Court) overruled the Divisional Court on the basis that it was for Parliament to give effect to such a major change in the law. Parliament did go on to make this change but not until 1998 when Section 34 of the Crime and Disorder Act 1998 was enacted.


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