R v T
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham |
| Judgment Date | 16 April 2008 |
| Neutral Citation | [2008] EWCA Crim 815 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200706413D4 |
| Date | 16 April 2008 |
[2008] EWCA Crim 815
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WORCESTER CROWN COURT
HHJ MacCREATH
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Latham
Vice President Of The Court Of Appeal Criminal Division
Mr Justice Forbes and
Sir Richard Curtis
Case No: 200706413D4
T20070185
Gareth Walters for the Prosecution
Peter Blair, QC & Kerry Barker for the Defence
Hearing dates: 3rd March 2008
On 4 October 2007 at the Crown Court at Worcester the appellant pleaded guilty to 12 counts of causing or inciting a child under 13 to engage in sexual activity. He was subsequently sentenced to a 3 year supervision order. He was 12 years old at the time he committed the acts upon which the counts were based. There was no dispute that he had committed those acts. The sole question was whether he was entitled to raise the issue of his capacity to know that those acts were wrong. The judge made a preliminary ruling that section 34 of the Crime and Disorder Act 1998 precluded him from raising that issue. The appellant appeals on the ground that that ruling was wrong in law.
Section 34 provides as follows:
“The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished.”
In line with a Home Office Circular published after the passing of the Act, and most commentaries on the Act, it had been generally assumed until recently that the effect of the section had been to fix the age of criminal responsibility at 10 and to have abolished in respect of all children aged 10 or over the concept or doctrine of doli incapax. However, in the case of the Crown Prosecution Service v P [2007] EWHC (946) Admin, Smith LJ, building on an article by Professor Walker, “The end of an Old Song” (1999) 149 NLJ 64, expressed the view, obiter, that section 34 had merely abolished the presumption, leaving the concept, and therefore the defence, of doli incapax intact. Her view, which she expressly said was tentative, was that in the result, any child between the ages of 10 and 14 could, if there was a credible basis put forward for saying that he or she did not know that what they had done was wrong, require the prosecution to prove that they did indeed know that what had done was wrong. Gross J. declined to give any view, even merely recording his understanding of the position, namely that as he put it, “the presumption and the doctrine has stood together”. The present appeal requires us to face the problem fairly and squarely.
On behalf of the appellant, Mr Peter Blair Q.C., in his extremely able submissions, has sought to persuade us that common law has long recognised the concept of doli incapax as a defence, in the same way as self defence, and that it has an existence entirely separate from the presumption which existed up to 1998 which required the prosecution to prove that the child between the ages of 10 and 14 knew that what he or she had done was wrong. Bearing in mind the well-known passages in Bennion Part XV11 entitled The Principle Against Doubtful Penalisation, that concept, Mr Blair submits, could only have been abrogated by clear express words. Section 34, properly construed, is concerned merely with removing the rebuttable presumption, leaving the defence intact. The consequence, he submits, is as described by Smith L.J., that a child who wishes to raise the defence, has the evidential burden of raising the issue, whereupon it is for the prosecution to establish that the child knew that what he or she was doing was wrong. This construction not only accords with the literal meaning of the words used but, if and in so far as it is necessary to consider the Parliamentary intention, it accords with the words of the Solicitor General, Lord Falconer of Thoroton in closing the debate in the House of Lords, when he said:
“To turn to doli incapax, the noble Lord Henley asked rather optimistically whether it was causing any problem at the moment. The position in relation to doli incapax was very well described by the noble and learned Lord Ackner during the course of his remarks. The position is that at the moment it has to be proved that the defendant knows that what he or she is doing is wrong. That process is being used in a manipulative way in many courts by defendants, who say, “You have to bring a teacher social worker or some mature adult in order to prove this. It leads to difficulty with the calling of witnesses; it is hoped on the part of many defendants that this will make the Crown Prosecution Service bring its proceedings to a halt; it clogs up the youth court; and it is simply designed to make the proceedings more difficult. So the answer to question is: yes it is causing real difficulties. It offends against common sense that you have to prove it. The possibility is not ruled out, where there is a child who has genuine learning difficulties and is genuinely at sea on the question of on right or wrong, of seeking to run that as specific defence. All the provision does is remove the presumption that the child is incapable of committing wrong.”
On their face, the last two sentences would appear to provide support for the appellant's case. But, leaving aside for the moment the question of whether or not the Solicitor General was doing any more than indicating that the child would in many, obviously not all, cases be able to argue that his or her immaturity meant that the prosecution had not established the appropriate mens rea, the passage has within it a certain illogicality. It asserts that the purpose of the clause in the Bill is to remove the difficulties perceived to be in the way of successful prosecution, and we shall see that that indeed was the thrust of the consultation paper, and the White Paper which preceded the Act, whereas if indeed the doctrine survives that purpose will be, to a large extent, thwarted. The answer to the question seems to us to depend upon what was understood in 1998 to be the true ambit of the concept of doli incapax, and the extent to which it was coterminous with the presumption. If, at least by the time of the passing of the Act, it was generally understood that when the presumption was referred to, that compendiously referred both to the concept of doli incapax and the way it was to be applied, then reference to the presumption necessarily included reference to the concept of doli incapax as well.
The concept, or doctrine, is a common law concept. As far as children under the age of 10 are concerned, section 50 of the children and Young Persons Act 1933, as amended, provides that: “It shall be conclusively presumed that no child under the age of 10 can be guilty of any offence.” Until 1998, no express statutory provision dealt with the position of children between the ages of 10 and 14 so far as criminal responsibility was concerned. The clearest expression of the concept, or doctrine, is in Stephens Digest of the Criminal Law Chapter III headed “General Exceptions” which provides, so far as children are concerned, as follows:
“ARTICLE 25
CHILDREN UNDER 7
No act done by any person under 7 years of age is a crime.
ARTICLE 26
CHILDREN BETWEEN 7 AND 14
No act done by any person over 7 and under 14 years of age is a crime, unless it was shown affirmatively that such person sufficient capacity to know that the act was wrong.”
This reflected the views of Blackstone who, in his Commentaries on the Laws of...
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