| CRIME — Children, offences by — Children between ages of 10 and 14 — Defence of doli incapax — Whether still part of British law — Crime and Disorder Act 1998, s 34
Crown Prosecution Service v P [2007] EWHC 946 (Admin)
QBD: Smith LJ and Gross J: 27 April 2007
The effect of s 34 of the Crime and Disorder Act 1998 was to abolish the presumption that a child was doli incapax, but not the defence itself.
The Queen’s Bench Divisional Court so stated when allowing the appeal by the Crown Prosecution Service by way of case stated against the decision of District Judge Wood sitting in the Bishop Auckland Youth Court in which he stayed, as an abuse of process, criminal proceedings brought against the respondent P, a boy now aged 13 years.
SMITH LJ said that a complaint was made that the defendant had assaulted another child and that when arrested, he was at the wheel of a car which he was in the act of backing out of the drive of the owner, who had left the keys in his possession so that he could listen to the radio. At the youth court he denied both allegations, implicitly accepting that he was fit to plead. At a hearing to have the proceedings stayed as an abuse of the process of the court it was contended that he did not have a sufficient level of maturity or intellectual capacity to understand and participate effectively in the proceedings. On the facts, the district judge should not have stayed the proceedings at the outset as he did without considering the alternative of allowing the trial to proceed while keeping the defendant’s situation under constant review, his decision was flawed, and accordingly, the appeal would succeed. While not essential for the disposal of the appeal, however, but because the defendant’s capacity in general terms did arise for decision and there was some evidence in the medical reports that he did not know right from wrong, a tentative view on the issue of whether the doli incapax doctrine still existed would be expressed, even though it would necessarily be obiter. Before the coming into force of s 34 of the Crime and Disorder Act 1998, there was a rebuttable presumption that a child aged 10 or over was doli incapax, in other words incapable of committing a criminal offence. In order to rebut the presumption and secure a conviction, the prosecution had to prove not only the actus reus and mens rea of the offence but also that the child knew that what was alleged was seriously wrong; failing which the child would be acquitted. The prosecution was not allowed to rely on the evidence of the alleged offence itself in order to rebut the presumption. The effect of s 34 of the 1998 Act was to abolish the presumption that a child was doli incapax but not the defence itself. Although there may not in the past have been any clear recognition that the defence existed separately from the presumption by which it was applied, it seemed that the defence must have been capable of existing without being attached to the presumption. The two were distinct concepts. The defence was “I did not know that this act was seriously wrong”. The practical problems arose because this was presumed to apply in every case of a child of 10 but under 14 and extraneous evidence had to be called to rebut the presumption. If the presumption was removed, a perfectly workable defence would remain. It appeared that, as the defence of doli incapax would be a common law defence as opposed to a statutory one, as a matter of general principle the burden should remain on the Crown to prove that the child had the requisite understanding. Morever, the standard of proof should be the usual criminal standard.
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