Rebutting the Presumption of Doli Incapax

DOI10.1177/002201839806200208
Published date01 April 1998
Date01 April 1998
REBUTTING THE PRESUMPTION OF
DOLI INCAPAX
Thomas Crofts"
It
is an established presumption of common law that children over the age
of 10 but not yet 14 do not have sufficient understanding to distinguish
between good and bad and thus cannot be held to be criminally
responsible.IEven though the existence of the presumption was recently
confirmed by the House of Lords in C vDPP,2 debate still rages about
whether this presumption should be abolished.
It
appears, however, that
this discussion sometimes overlooks the fact that the presumption is a
rebuttable one. Accordingly, a child can be held to be criminally
responsible, and thus convicted, where it can be proven that he or she had
arrived at that level of maturity and intellect which is a necessarycondition
of the crime charged. As such it allows the conviction of those who have
reached the required stage of development, while protecting from
conviction those who have not. The presumption is in essence a recognition
that 'children's understanding, knowledge and ability to reason are still
developing'.3
In order to rebut the presumption the prosecution must bring proof
that the child, in addition to the mens rea, had acted with mischievous
discretion; or in other words, that the child appreciated at the time of
committing the act that he or she was doing something seriously wrong,
as opposed to something merely naughty or mischievous." The question of
what evidence should be called to rebut this presumption and allow
conviction of the child has largely been left undiscussed. Several recent
cases reveal that there exists a degree of uncertainty about just what
evidence is necessary to satisfy the court that the child did appreciate the
seriousness of wrongdoing. There are two basic propositions which,
• Wissenschaftlicher Mitarbeiter, Europa-University Viadrina Frankfurt (Oder), Germany.
IBlackstone's Commentaries, IV, 23. Under the age of 10 it is conclusively presumed that
a child is incapable of forming criminal intent, a presumption which no amount of evidence
can remove, Children and Young Persons Act 1933 s50, as amended by s 16(1) CYPA 1963
(which raised the age from 8to 10).
2(1995) 2 All ER 43 which overturned the Divisional Court decision ([1995]1 Cr App R
18) where Laws J held that the presumption of doli incapax was outdated, divisive, perverse,
and no longer part of the law of England. For a discussion of this matter see, Crofts, 'Die
strafrechtliche Verantwortlichkeit von Kindem in England' ZStW 108 (1996) 214; Stephens,
Criminal Law, Current Legal Problems 1995, 73, 109; Jack, 'A Judicial Step Too Far' [1995]
NLJ
315; Moore, 'In Defence of Doli Incapax' (1995) 159 JP Jo 347; the commentary of
Smith (1995) Crim LR 523; Wilkinson, 'Doli Incapax Resurrected' (1995) 139 SJ 338; 'Doli
Incapax-RIP?'
(1994) 138 SJ 662; Davies, The Presumption of Doli Incapax (1994) 158 JP
Jo 297; and in earlier years: Ingleby Committee (1960), Cmnd 1191; Williams, 'The Criminal
Responsibility of Children' [1954] Crim LR 493
3White Paper, 'Crime, Justice and Protecting the Public' (1990), para 8.4.
'Cf
RvGorrie (1918) 83 JP 136.
185

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