| CRIME — Children, offences by — Children between ages of 10 and 14 — Presumption of doli incapax — Child causing another child under 13 to engage in sexual activity — Whether concept of doli incapax surviving abolition of presumption — Crime and Disorder Act 1998, s 34
R v T [2008] EWCA Crim 815; [2008] WLR (D) 115
CA: Latham LJ, Forbes J and Sir Richard Curtis: 16 April 2008
Both the rebuttable presumption and concept of doli incapax, that a child aged 10 or over is incapable of committing an offence, had been abolished by s 34 of the Crime and Disorder Act 1998.
The Court of Appeal (Criminal Division) so held, in dismissing an appeal by the defendant, aged 12 at the time of the offences, against his conviction on 4 October 2007 at the Crown Court at Worcester (before Judge McCreath), of 12 counts of causing or inciting a child under 13 to engage in sexual activity, for which he was sentenced to a three-year supervision order.
LATHAM LJ, giving the reserved judgment of the court, said that in an obiter remark made in Director of Public Prosecutions v P [2007] 4 All ER 628, para 40, Smith LJ had expressed the tentative view that s 34 had merely abolished the presumption, leaving the concept and therefore the defence, intact. Based on this and passages from Bennion, Statutory Interpretation, 4th ed (2002), Pt 17 entitled “The Principle Against Doubtful Penalisation,” which said doli incapax as a defence could only have been abrogated by clear express words, Mr Blair had argued the common law defence of doli incapax on behalf of the defendant. In their Lordships’ judgment, the purpose of the clause in the Bill which preceded s 34 of the 1998 Act, had been to remove difficulties perceived to be in the way of successful prosecution, which had also been the thrust of the Consultation Paper and White Paper which preceded it. If doli incapax remained, that purpose would be thwarted. As in so many problems of statutory construction, context was all and the context had been the increasing dissatisfaction of the courts and some politicians with the principle which had underlain the doctrine of doli incapax, namely that children between the ages of 10 and 14 did not know that committing an act amounting to a crime was seriously wrong. The House of Lords in C (A Minor) v Director of Public Prosecutions [1996] AC 1 had provided the essential background for the proposed changes which resulted in the enactment of s 34. Nowhere in his leading speech had Lord Lowry suggested that the concept of doli incapax had any existence separate from the presumption. In their Lordships’ judgment, Parliament must have been taken to have intended “the presumption” to encompass the concept of doli incapax, when it was abolished by s 34 of the Act. That had been the common understanding of the words at the time the Act was passed. By 1998, it could not properly have been said that the concept of doli incapax had existence separate from the presumption.
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