No Defence of Doli Incapax

Date01 August 2009
Publication Date01 August 2009
AuthorNatalie Wortley
SubjectHouse of Lords
House of Lords
No Defence of Doli Incapax
Rv JTB [2009] UKHL 20
Keywords Doli incapax; Children; Presumption; Age of criminal respons-
ibility; Youth justice
The appellant was charged with 12 counts of causing or inciting a child
under 13 to engage in sexual activity contrary to s. 13(1) of the Sexual
Offences Act 2003. At the time of committing the offences the appellant
was 12 years old. When interviewed by the police he admitted the
activity alleged, but maintained that he did not know that it was
At his trial before the Crown Court the appellant sought to raise the
issue of his capacity to know that his actions were wrong. The trial judge
ruled that s. 34 of the Crime and Disorder Act 1998 precluded him from
relying upon his lack of capacity as a defence. Section 34 states:
The rebuttable presumption of criminal law that a child aged 10 or over is
incapable of committing an offence is abolished.
On the basis of the trial judge’s ruling, the appellant entered guilty pleas
to the offences and was subsequently sentenced to a three-year super-
vision order. He appealed against his conviction to the Court of Appeal
on the ground that the ruling was wrong in law.
The Court of Appeal resolved the issue by deciding that the defence of
doli incapax had never existed independently of the presumption. Thus,
in abolishing the presumption of doli incapax by virtue of s. 34 of the
Crime and Disorder Act 1998, Parliament had abolished the concept of
doli incapax altogether. A point of law of general public importance was
certified for appeal to the House of Lords, namely: ‘Has section 34 of the
Crime and Disorder Act 1998 abolished the concept of doli incapax?’.
, the presumption and the defence of
doli incapax were two separate things. It was not clear from the wording
of s. 34 alone whether Parliament intended to abolish both the pre-
sumption and the defence. However, it was quite clear, when consider-
ing both the mischief that s. 34 was designed to remedy and extrinsic
aids to interpretation, that Parliament intended to abolish not merely
the presumption, but also the defence.
It has long been recognised by the criminal law that a child may lack the
capacity to commit a criminal offence. At common law it was con-
clusively presumed that a child under seven was doli incapax and there-
fore incapable of incurring criminal responsibility. The minimum age of
criminal responsibility was raised by Parliament firstly to eight (Children
305The Journal of Criminal Law (2009) 73 JCL 305–309

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