C.C. (A Minor) v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE McCOWAN,MR JUSTICE MITCHELL |
| Judgment Date | 15 May 1995 |
| Judgment citation (vLex) | [1995] EWHC J0515-6 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3412/93 |
| Date | 15 May 1995 |
[1995] EWHC J0515-6
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice Mccowan and Mr Justice Mitchell
CO/3412/93
MR G REES (instructed by Farrell, Mathews & Weir, London, W6) appeared on behalf of the Appellant.
MR I STERN (instructed by CPS, Harrow Area) appeared on behalf of the Respondent.
( )
Monday, 15th May 1995
I will ask Mitchell J to give the first judgment.
This is an appeal by way of case stated in respect of adjudication on August 10th 1993 by Justices for the Petty Sessional Area of Hounslow, sitting as a youth court. On that occasion the Justices convicted the appellant of one offence under s.3 and a further offence under s.4 of the Public Order Act 1986. The allegations were founded upon a single incident which had occurred on March 9th 1993 when the appellant was aged 11 years and 11 months. The appellant neither gave evidence, nor was evidence called on his behalf.
The facts as found were these: on that date a young 12 year-old schoolboy called Dale was riding his bicycle through a housing estate in Hounslow. He was approached by a group of youths, which included the appellant and another one named John. Each of those two was known to the victim, but only vaguely. All three attended the same school. John pulled Dale, the victim, from his cycle and held him round the neck. While he was doing that the appellant took a six inch lock knife from his pocket and handed it to John, who placed it across the throat of the victim. He asked him how much money he had. When it was clear that Dale had no money on him he was asked if he had any at home. He told them he had £9. He was then instructed to bring it to school the next day or he would be beaten up.
The Justices found that the appellant was present and assisting throughout the entire incident. Indeed, whilst the victim was being held, and prior to his release, the appellant had said, "Cut his nose to make quite sure". Having been released, the victim went off and the appellant took his bicycle, that is the victim's bicycle, and rode it around until it crashed into a fence where it was abandoned. As the victim ran off John was heard to shout out, "It's only a joke". That was the only occasion when it was claimed that the conduct of John, and the appellant, towards Dale, was intended only as a joke.
Thereafter, the appellant chose not to answer questions put to him by the police, both prior to and following his arrest. At the conclusion of the prosecution evidence a submission of no case to answer was made on behalf of the appellant. It was a simple submission. The prosecution had failed to rebut the presumption of Doli Incapax, the appellant at the material time having been a boy aged 11 years and 11 months.
That submission, in effect, has been repeated before us. If it is correct then the appeal must succeed. Unlike the Justices, we have the advantage of having available to us the recent decision of the House of Lords in the case of C (A Minor)-v- Director of Public Prosecutions 1995 2 WLR at page 383. At common law there is what has been called the benevolent but rebuttable presumption that a child aged between 10 and 14 does not know the difference between right and wrong and is, therefore, incapable of committing a crime. It may have performed or participated in the act which constituted the actus reas of the offence, but the presumption operates, in effect, to negative the existence of the necessary mental element, namely that appropriate to the offence coupled with knowledge of what he was doing was seriously wrong, which if proved, would establish guilt.
Having heard the evidence, which was confined to the circumstances of the offence and its investigation, the Justices came to the conclusion that the presumption had been rebutted. The Justices approached the questions and this is clearly set out in the Case, as an exercise in common sense and as such it is difficult to fault. They said this:
"We were left with the bare facts of the case which were in the main uncontested. We looked at those facts to see if they, on their own, would show that the appellant knew what he was doing was seriously wrong.
Our first impression was that this had to be the case as we felt it almost inconceivable that a boy of almost 12 years of age in this day and age of mass communication, would not know that it was seriously wrong to place a knife on somebody's throat and demand money.
Our clerk advised us that this was not the correct approach and that we had to look at the evidence to see if this particular boy knew what he was doing was wrong. We re-examined the evidence with this in mind.
We had no knowledge of his education, level of understanding, or previous behaviour. We took the view that he came from a reasonable home, we noted that his mother was present in court supporting him, and had taken the trouble to instruct solicitors at a very early stage when police enquires were in their infancy. We noted that he attended the police station at the enquiry stage and declined to comment on the advice of his solicitor. We do not however feel that any of these matters were such as to be of much probative value. We therefore concentrated on the offence itself. We were concerned at the manner in which it was committed and were advised that design, concealment, or unusual ferocity could themselves rebut the presumption. The appellant had a knife in his possession and took an active part in the incident. We felt that the demand, the holding of the youth around the neck, and the placing of the knife on the throat, were not sufficient to show this particular boy knew he was doing wrong, they were certainly persuasive but did not rebut the presumption. What took the matter further was the threat which followed when the appellant said to the accomplice, 'Cut his nose to make sure'. This we felt showed a remarkable degree of criminality. To urge someone to inflict personal injury so as to effect a common purpose took the matter much further. It showed us a design and ferocity which in itself satisfied us beyond reasonable doubt the appellant knew what he was doing was seriously wrong".
Before the justices were entitled to convict the appellant they had to be sure that the prosecution had rebutted the presumption. They had to be sure, in other words, that the appellant knew that what he was doing when participating in the incident, as he had, was seriously wrong and went beyond mere naughtiness or childish mischief.
In determining that question, the tribunal of fact must avoid the trap of applying another presumption, one which has been termed the "presumption of normality". That presumption is to this effect: any normal boy of his age in society, as it is today, must have known that what he was doing was seriously wrong. Such an approach as that reverses the...
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