R v T

JurisdictionUK Non-devolved
Judgment Date29 April 2009
Neutral Citation[2009] UKHL 20
CourtHouse of Lords
Date29 April 2009

[2009] UKHL 20


Appellate Committee

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Mance

(Appellant) (on appeal from the Court of Appeal Criminal Division)


Peter Blair QC

Kerry Barker

(Instructed by Sharpe Pritchard)


David Perry QC

Gareth Patterson

(Instructed by Crown Prosecution Service)


My Lords,



On 4 October 2007 the appellant pleaded guilty at Worcester Crown Court to twelve counts of offences of causing or inciting a child under 13 to engage in sexual activity contrary to section 13(1) of the Sexual Offences Act 2003. The victims of this activity were young boys and the activity included anal penetration with the penis, oral sex and masturbation. At the time of the activity the appellant was 12 years of age. In interview he admitted the activity but said that he had not thought that what he was doing was wrong.


The appellant sought to advance, on the basis that he had not known that what he was doing was wrong, a defence that he was doli incapax. He sought a preliminary ruling from the trial judge that this defence was open to him. The trial judge ruled that it was not. Upon that ruling the appellant entered the guilty pleas. He appealed unsuccessfully against his conviction to the Court of Appeal on the ground that the judge's ruling was wrong [2008] EWCA Crim 815: [2008] 3 WLR 923; [2008] 2 Cr. App. R 235. He advances the same contention before your Lordships.

The issue


Until the last century the criminal responsibility of children and young persons was determined by the judges, as a matter of common law. A child of under 7 was incapable of incurring criminal responsibility. This incapacity was described by the Latin phrase doli incapax. Between the ages of seven and fourteen a child was presumed to be doli incapax. This presumption could be rebutted by proving that a child who had committed an act prohibited by the criminal law knew that he was doing something that was wrong.


Parliament intervened by section 50 of the Children and Young Persons Act 1933. This provided:

"It shall be conclusively presumed that no child under the age of eight years can be guilty of any offence".

The age of eight years was increased to ten by section 16 of the Children and Young Persons Act 1963. Throughout this time the position of a child under the age of 14 years remained governed by common law.


Section 34 of the Crime and Disorder Act 1998 ("section 34") provided:

" Abolition of rebuttable presumption that a child is doli incapax

The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished."


The issue raised by this appeal is whether the effect of section 34 has been to abolish the defence of doli incapax altogether in the case of a child aged between 10 and 14 years or merely to abolish the presumption that the child has that defence, leaving it open to the child to prove that, at the material time, he was doli incapax.


In concluding the judgment of the Court of Appeal, the Vice-President said that the question of whether section 34 had abolished the defence of doli incapax had to be resolved by determining whether or not by 1998 it could properly be said that the concept of doli incapax had existence separate from the presumption. He stated that the Court considered that it did not. While I agree with the result reached by the Court of Appeal, I would express my reasoning a little differently. The defence of doli incapax and the rebuttable presumption were two different things. In recent times they had, however, always coexisted. It had become customary to speak of "the presumption of doli incapax" as embracing both the presumption and the defence. In using the language of section 34 Parliament intended to abolish both the presumption and the defence. While it is not possible to reach this conclusion from the language of section 34 alone, it can be firmly founded once extrinsic aids to interpreting that section are taken into account.

The meaning of "doli incapax"


Section 34, rather unusually, uses the Latin doli incapax in the heading and then, in the section itself, refers to the rebuttable presumption that a child aged 10 or over is "incapable of committing an offence". Incapacity of committing an offence is as good a translation of doli incapax as any. What is more significant is the reason for that incapacity in a child. To find that it is necessary to go back in time. Although the origin of the defence is much earlier, I propose to start with the 1778 edition of Hale's History of the Pleas of the Crown, where the defence is considered in volume I, chapter 3 under the heading "Touching the defect of infancy and nonage". There the defence is described as a "privilege of infancy" and is justified on the ground that a child does not have the "discretion to discern between good and evil". The doli incapax is contrasted with the doli capax, who can "discern between good and evil at the time of the offence committed".


More recently, where the question of whether a child was doli incapax has arisen, the courts have put a gloss on this test. Thus, in R v Gorrie (1918) 83 JP 136 Salter J directed the jury that the prosecution had to satisfy them that when the boy who was accused committed the act charged "he knew that he was doing what was wrong - not merely what was wrong, but what was gravely wrong, seriously wrong". In JM (A Minor) v Runeckles (1984) 79 Cr. App.R. 255, when giving the judgment of the Divisional Court, Mann J. said at p. 259:

"I would respectfully adopt the learned judge's use of the phrase 'seriously wrong'. I regard an act which a child knew to be morally wrong as being but one type of those acts which a child can appreciate to be seriously wrong. I think it is unnecessary to show that the child appreciated that his or her action was morally wrong. It is sufficient that the child appreciated the action was seriously wrong. A court has to look for something beyond mere naughtiness or childish mischief."

The nature of the "presumption"


The legislation in this field has drawn a distinction between the child under 8, later increased to 10, who is "conclusively presumed" to be incapable of committing a crime and the older child, aged under 14, in respect of whom there is a "rebuttable presumption" that he is not capable of committing an offence. If one goes back to Hale, one finds that the conclusive presumption is described as a "praesumptio juris", or a presumption of law, and the rebuttable presumption as a "common presumption".


In considering the law as developed after the time of Edward III, Hale distinguished between a number of categories of young persons. He started at p. 25 with the infant above 14 and under 21 years of age:

"It is clear that an infant above fourteen and under twenty-one is equally subject to capital punishments, as well as others of full age; for it is praesumptio juris, that after fourteen years they are doli capaces, and can discern between good and evil; and if the law should not animadvert upon such offenders by reason of their nonage, the kingdom would come to confusion. Experience makes us know, that every day murders, bloodsheds, burglaries, larcenies, burning of houses, rapes, clipping and counterfeiting of money, are committed by youths above fourteen and under twenty-one; and if they should have impunity by the privilege of such their minority, no man's life or estate could be safe".


In contrast, the position of a child of under seven was set out at pp. 27-28 as follows:

"…if an infant within age be infra aetatem infantiae, viz. seven years old, he cannot be guilty of felony, whatever circumstances proving discretion may appear; for ex praesumptione juris he cannot have discretion, and no averment shall be received against that presumption".


Thus far Hale agrees with other commentaries of the time. So far as children between the ages of 7 and fourteen are concerned, the precise position, as set out by Hale at p. 26, is not agreed by all, although there is common ground that no conclusive or irrebuttable presumption applied. Hale divided this category into two. The position of older children was as follows:

"An infant under the age of fourteen years and above the age of twelve years is not prima facie presumed to be doli capax, and therefore regularly for a capital offence committed under fourteen years he is not to be convicted or have judgment as a felon, but may be found not guilty. But tho prima facie and in common presumption this be true, yet if it appear to the court and jury that he was doli capax, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death.."


The position of the younger children was as follows:

"…if an infant be above seven years old and under twelve years, (which according to the ancient law was Aetas pubertati proxima) and commit a felony, in this case prima facie he is to be adjudged not guilty, and to be found so, because he is supposed not of discretion to judge between good and evil; yet even in that case, if it appear by strong and pregnant evidence and circumstances, that he had discretion to judge between good and evil, judgment of death may be given against him."


These passages suggest that the common law recognised that the capacity to distinguish between right and wrong was an element of criminal responsibility. There was a conclusive presumption, which might be described as a rule of law, that children over fourteen were capable of distinguishing between right and...

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