Merely Naughty or Seriously Wrong? ‘Childish Sexual Experimentation’ and the Presumption of Doli Incapax

Published date01 October 2017
Date01 October 2017
DOIhttp://doi.org/10.1177/0022018317734119
Subject MatterCourt of Appeal
CLJ733838 343..351 346
The Journal of Criminal Law 81(5)
The Court of Appeal had therefore established, over a series of judgments from Singh to Rudling, that
in cases of gross negligence manslaughter, a reasonably foreseeable (i.e. objective) risk of death which
was both ‘obvious’ and ‘serious’ had to be proved (in addition to the other elements of the offence).
What Rose adds to this jurisprudence is a requirement that, in determining the answer to this test,
hindsight is irrelevant. The reasonably prudent person in the defendant’s situation does not have any
knowledge which the defendant would have had but for the breach.
Tony Storey
Merely Naughty or Seriously Wrong? ‘Childish Sexual
Experimentation’ and the Presumption of Doli Incapax
R v PF [2017] EWCA Crim 983
Keywords
Doli incapax, historic sexual offending
On 14 September 2016, PF, then aged 47, was charged with sexual offences against two of his sisters, X
and Y. He was convicted of two counts involving X, namely indecent assault and indecency with a girl
under 14. He was acquitted of three sexual offences against Y. The trial judge imposed a six-month
community order with a four-month curfew, to be served concurrently on each count.
PF had been between the ages of 10 and 14 at the time of the offences, and X was then aged between 9
and 13. X had been unsure when the offences took place. Accordingly, the trial judge treated PF as being
under 14, so that the rebuttable presumption of doli incapax applied, ‘meaning [PF], as a child, was to be
deemed incapable of committing a crime unless the prosecution could rebut that presumption’ (at [8]).
The judge gave the jury written directions, which explained that the prosecution had to prove:
(a) the genital touching took place in the way described on the Indictment and
(b) he knew at the time that right thinking people would say touching his sister in this way (or her doing so to
him) was indecent and
(c) he knew at the time that this act was seriously wrong not merely naughty or mischievous. (at [11])
After retiring to consider their verdict, the jury asked a question about the age at which a person
becomes criminally culpable. In response, the judge essentially repeated his written directions and
reminded the jury that they had to be sure both that the physical act had taken place and that PF ‘realised
it [was] indecent and seriously wrong’ (at [12]).
PF appealed on the single ground that the judge ought to have directed the jury that, in order to be
satisfied that PF knew his conduct was seriously wrong, ‘there had to be clear positive evidence distinct
from the doing of the alleged act itself’ (at [13]).
During the course of the trial, the prosecution adduced evidence from both X and Y that PF coerced
and bribed them for sexual favours. Their home life was ‘clearly difficult’ (at [3]). There was evidence
that the children did not have enough to eat and X testified that she touched PF sexually because he
bribed or rewarded her with food or cigarettes. She also stated that she was...

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