L. (A Minor) v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE OTTON,MR JUSTICE NEWMAN |
| Judgment Date | 02 May 1996 |
| Judgment citation (vLex) | [1996] EWHC J0502-2 |
| Docket Number | CO/1753/95 CO/3542/95 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 May 1996 |
[1996] EWHC J0502-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
Lord Justice Otton
and
Mr Justice Newman
CO/1753/95
CO/2340/95
CO/3542/95
MR N PAUL and MISS G FRITH (instructed by Messrs Warren & Allen, Nottingham) appeared on behalf of the appellant 'T'
MR A BURNS, MISS J WAUGH and MR M TROUSDALE (instructed by Messrs Smith & Graham, Hartlepool) appeared on behalf of the appellant 'H'
MR BAILEY (instructed by Messrs Farrell, Matthew & Weir, London W6) appeared on behalf of the appellant 'L'
MR S ASHURST (instructed by the CPS Nottingham, Newcastle-upon-Tyne and Victoria) appeared on behalf of the Respondents
Thursday 2 May 1996
These appeals by way of case stated all primarily concern whether there was sufficient evidence as to the capacity of the appellant to rebut the presumption of doli incapax following the decision of the House of Lords in C (a minor) v DPP [1995] 2 Cr App R 166.
The circumstances of that case were that a boy, aged 12, with another boy, was seen by police officers tampering with a motorcycle. The appellant was holding the handlebars while the other tried to force the chain and padlock with a crowbar. As the police approached the boys ran off but the appellant was arrested. He was charged with interfering with a motorcycle with intent. From those facts the Justices inferred that the appellant knew that he was in serious trouble and that what he had done was seriously wrong. Accordingly, although the appellant was under 14, the presumption of doli incapax was rebutted and the appellant was convicted. On appeal by way of case stated, the Divisional Court dismissed the appeal holding the presumption that a child between 10 and 14 was doli incapax was outdated and no longer to be regarded as part of the law of England. On appeal to the House of Lords it was held allowing the appeal, that the presumption that a child between the ages of 10 and 14 was doli incapax was still part of the common law. Such a presumption could be rebutted only by clear positive evidence that the child knew that his act was seriously wrong, and evidence of acts amounting to the offence itself was not enough to rebut the presumption.
The principal speech is that of Lord Lowry who considered a long line of cases, official reports and articles by learned authors. He came to the conclusion that the presumption was still part of the common law and was so engrained that it was not appropriate to abolish it by 'judicial law-making'. In his view the presumption, for better for worse, applies to cases like the present. He continued at page 187B:
"I turn, therefore, to consider what must be proved in order to rebut the presumption and by what evidence…..
A long and uncontradicted line of authority makes two propositions clear. The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness or childish mischief. The criminal standard of proof applies…..
The second clearly established proposition is that evidence to prove the defendant's guilty knowledge, as defined above, must not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act may be…..
The cases seem to show, logically enough, that the older the defendant is the more obviously wrong the act, the easier it will generally be to prove guilty knowledge. The surrounding circumstances are of course relevant and what the defendant said or did before or after the act may go to prove his guilty mind. Running away is usually equivocal …. because flight from the scene can as easily follow a naughty action as a wicked one. There must, however, be a few cases where running away would indicate guilty knowledge, where an act is either wrong or innocent and there is no room for mere naughtiness. An example might be selling drugs at a street corner and fleeing at the sight of a policeman."
Thus five principles relevant to these appeals emerge which are not contentious:
(1) the presumption of doli incapax can only be rebutted by clear positive evidence that a child knew that his act was seriously wrong.
(2) evidence of the commission of the acts amounting to the offence itself is not sufficient to rebut the presumption.
(3) interviews with the child are capable of providing the necessary insight into the mental functions of the child from which inferences may be drawn to rebut the presumption.
(4) the conduct of the child before or after the act may go to prove his guilty mind.
(5) the older the child is and the more obviously wrong the act, the easier it will generally be to prove guilty knowledge.
In the case of each of the appellants the defence was that there was no, or insufficient evidence 'outside the offence' upon which the court could find the presumption rebutted.
A second line of argument was advanced based upon the passage of the speech at page 188 C-E:
"In order to obtain that kind of evidence, apart from anything the defendant may have said or done, the prosecution has to rely on interviewing the suspect or having him psychiatrically examined (two methods which depend on receiving co-operation) or on evidence from someone who knows the defendant well, such as a teacher, the involvement of whom adversely to the child is unattractive."
Counsel for each of the appellants submitted that in order to rebut the presumption the prosecution was required to call evidence specifically relating to the child's perception of the seriousness of what he did. That is, evidence independent of the facts of the events and from an independent source such as a teacher or psychiatrist or one who knew the suspect well. Such evidence should have included an interview with the suspect and questions should have been put to him specifically to elicit responses which would have indicated his state of mind at the time of the offence, and his appreciation of the seriousness of what he had done.
I am unable to accept that interpretation of the passage. Lord Lowry was not laying down the principle that in every case brought before the Youth Court the prosecution is required to adduce such evidence. In practice the prosecuting authority would find it frequently impossible to obtain such evidence. Teachers would be placed in an invidious position even if they knew of the child's disposition to naughtiness or mischief. In simple straight forward cases an interview by a psychiatrist would introduce an undesirable and unnecessary element into the prosecution process. It is for the court to decide as a fact whether what the suspect did or said before or after the incident indicates his state of mind at the time of the offence and his appreciation of the seriousness of what he has done. This essential function must not be usurped by or delegated to psychiatrists, teachers, or other persons who know the suspect well. In summary, in seeking to establish that a child knows that his actions were seriously wrong as distinct from merely naughty it is not usually necessary to lead direct evidence on this point. In IPH v Chief Constable of South Wales [1987] Crim LR 42 Woolf LJ suggested that a police officer when interviewing the suspect should incorporate some questions designed to probe the issue of whether he knew his acts were seriously wrong. He proffered a direct question such as 'Did you appreciate that what you were doing was seriously wrong?". I consider this to be helpful guidance and not inconsistent with Lord Lowry's dicta. I would further suggest that police officers who are engaged in dealing with child suspects should be trained and encouraged to ask such direct questions. The questions should not suggest the answer that the child may perceive the person in authority wishes to hear. The language should be suited to the age and literacy of the suspect. The answers may well give the court (which is constituted of persons specially selected for the task) a useful insight, one way or the other, into the child's state of mind at the time of the offence and his appreciation of the seriousness of what he has done. If this were adopted as the usual practice it would only be in exceptional cases that the necessity to call independent evidence would arise.
With these principles and observations in mind I approach each of the appeals in turn.
"L" v Director of Public Prosecutions
This is an appeal by way of case stated by the Justices for the Middlesex Commission Area for the Ealing Petty Sessions Area, in respect of their adjudication at the Youth Court on 29 August 1995.
On 29 August 1995 the applicant was convicted of possession, without the authority of the Secretary of State, of a weapon namely a KO 5001 CS Gas canister which was designed or adapted for the discharge of a noxious liquid contrary to Section 5(1)(b) Firearms Act 1968.
The appellant was born on 1 May 1981 and thus on the date of the offence was aged 13 years and 10 months.
The Justices found that two police constables from their marked police car saw the appellant together with another youth in Erconwald Street on 23 February 1995 at about 4.05 pm. The appellant looked towards the police car and stepped into an entrance to his right so that he was partly concealed by a low wall. The police car stopped and PC Davison ran from it, saw the appellant pull out his right hand from his right trouser pocket and drop a small red object. PC Croome picked up the object and said to the appellant, "it's a CS gas canister which is...
To continue reading
Request your trial