The Doctrine of Incapability and the Emperor's New Clothes: A Protected Defendant or Non-Existent Offences?
| DOI | 10.1350/jcla.2014.78.3.920 |
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
| Subject Matter | Article |
the Emperor’s New Clothes:
A Protected Defendant or
Non-existent Offences?
Damian Warburton*
Abstract The doctrine of incapability was a, now abolished, centuries-old
presumption that a boy under 14 years of age was unable to commit an
offence that required that he be an agent participant in an act of sexual
intercourse. Rape, unlawful sexual intercourse, buggery, and offences of
incestuous sexual intercourse were all unavailable to the prosecutor if D was
under 14. Although abolished, the practical application of the doctrine is by
no means dead, as shown by its appearance in R v J.OC (2012). It is likely
that future historical prosecutions will throw it up yet again. Judges and
scholars have often assumed that the ridiculous effect of the doctrine was
eradicated by the revision of the law on attempt in 1981, even before the
doctrine itself was disposed of by s. 1 of the Sexual Offences Act 1993, and
the courts have sometimes circumvented application of the doctrine by
convicting for indecent assault instead. This article will show that they were
all wrong and, should another defendant come to trial accused of relevant
offences, then, however distasteful the proposition is, we must accept that
defendant’s acquittal.
Keywords: Impossible attempts; Rape; Boy under 14; Capacity; Doli
incapax
Who would have thought that two decades after the abolition of the
ancient common law presumption that a boy under the age of 14 years1
was incapable of an offence that involved his agent participation in an act
of sexual intercourse, the doctrine would continue to trouble the courts?
The doctrine is, fortunately, of infrequent relevance in practice. If it were
not for that seldomness then it should actually come as no surprise that
the last has not yet been heard of incapability. The nature of the doctrine
as having only applied to the youngest defendants, and the absence of
limitation to criminal prosecutions for indictable offences means that those
who may yet have cause to call upon it are today as young as 30 years old.2
Given the increased effort in recent years devoted to investigating and
prosecuting historical sexual offences, the logical assumption must be that
* Barrister; e-mail: dwm-box-7@yahoo.co.uk. I would like to gratefully acknowledge the
valuable comments of Professor David Ormerod QC and Dr James Slater on early drafts
of this article. The usual caveats apply.
1 Hereafter often referred to as ‘the young D’.
2 Calculated on the basis of D having been aged 10 at the latest date to which any act of
sexual intercourse that was unlawful (but not limited to unlawful sexual intercourse)
could be impacted by this doctrine, i.e. 30 August 1993.
226
The Journal of Criminal Law (2014) 78 JCL 226–48
doi:10.1350/jcla.2014.78.3.920
The Doctrine of Incapability and the Emperor’s New Clothes
further cases are almost certain to come before the courts where the
doctrine of incapability will be a factor in issue.
R v J.OC3 is the latest such example where the Criminal Division of the
Court of Appeal was asked to make a determination on the matter of the
liability of an appellant where the legacy doctrine4 of incapability arose.
For this appellant that was in addition to 13 other counts, which had they
not existed might have rendered the court’s judgment considerably more
useful to scholars.
The facts of J.OC are odious. They amount to prolonged sexual abuse by
the appellant upon his younger sister when he was then aged 10–14 years
and she 5–9, and a further period of sexual abuse by the appellant upon
his daughter when he was aged 37–38, and she 13–14. Of the 14 counts
charged, which were mostly of indecent assault toward the sister contrary
to s. 14 of the Sexual Offences Act 1956, and of sexual assault toward the
daughter contrary to s. 3 of the Sexual Offences Act 2003, there was one
count of rape of the sister alleged to have occurred between 1981 and
1982. It was this count of rape that was subject to the appeal.5 It is the
matter of this conviction that raises a difficult point of law as, arguably,
does the way in which the court disposed of it.
The count of rape related to a single incident that could only be dated
as having occurred between November 1981 and December 1982, when
the appellant was aged 10 or 11 years. His conviction in March 2012 for
this offence necessarily meant that no one involved in the trial noticed
that the appellant had an indefeasible immunity to that count: that of his
irrefutable presumption of incapability. Pitchford LJ’s observations6 were
that the trial seemed to have proceeded according to the now also defunct
doli incapax principle that the Crown is required to prove that the accused
child knew that what he was doing at the time was seriously wrong, as
was in operation in 1982.
Doli incapax, with the recognition it had that early teenage maturity is
variable was, I suggest, highly meritorious and its arbitrary abolition a
gravely retrograde step,7 but the incapability doctrine is much harder to
defend. Its origins predated Sir Matthew Hale, who wrote that:
3 [2012] EWCA Crim 2458.
4 I am going to use the word doctrine in preference to defence because whether incapability
can be correctly described as a defence, or as negativing a constituent part to an offence,
is the subject of discussion below.
5 There was also an appeal against sentence, but that will not be considered here.
6 R v J.OC [2012] EWCA Crim 2458 at [18].
7 On this subject, see generally C. Elliott, ‘Criminal Responsibility and Children: A New
Defence Required to Acknowledge the Absence of Capacity and Choice’ (2011) 75 JCL
289; and F. Bennion, ‘The Legal Age of Discretion’ (2010) 174 JPN 357. The Age of
Criminal Responsibility Bill 2013–14, which proposes to raise the age of criminal
responsibility in s. 50 of the Children and Young Persons Act 1933 to 12 years, is an
unsatisfactory and blunt answer to the matter of criminality in the young for which the
flexibility of doli incapax responded ably. As of May 2014, the Bill, a Private Members’ Bill
sponsored by Lord Dholakia, has neither progressed beyond its First Reading in
November 2013 in the House in which it started (Lords), nor been scheduled for its first
Committee stage. It therefore appears most unlikely that the Bill will survive the present
parliamentary session. I suggest that the (contextually recent) disposal of doli incapax and
the lethargy toward Lord Dholakia’s Bill says much about Parliament’s attitude to the
criminalisation of children, particularly when it is hard to ignore the speed with which
Parliament can pass those Bills on subjects it is enthusiastic about, irrespective of
sometimes well-supported opposition.
227
The Journal of Criminal Law
A infant under the age of fourteen years is presumed by law unable to commit
a rape, and therefore it seems cannot be guilty of it, and though in other felonies
malitia supplet aetatem8 in some cases as hath been shown, yet it seems as to this
fact the law presumes him impotent, as well as wanting discretion.9
In 1863 a fifth edition of Blackstone’s Commentaries, edited in part by the
distinguished Victorian jurist J. F. Stephen, duplicated Hale’s statement,
save that the line on the infant boy’s impotence instead appeared as ‘... the
law supposes an imbecility of body as well as mind’.10 Imbecility in this
context evidently meant inability.
It is probable that the position of the law, and views of Hale, Blackstone,
and Stephen were of their times inasmuch as greater heed was perhaps
given to avoiding inquiry into that which was undesirable than that which
reality would otherwise require. However, like other attributions of the
period, although that was the law then, the preservation of the doctrine
was certainly no longer tenable as the end of the 20th century approached.
The opinion of the House of Lords in R v R11 is an oft-cited example of
where the correctness of Hale, and his views on the limits of sexual
defences for the 17th century, was not doubted. Their Lordships at that
time took the view that the law had moved on, which it is submitted was
a regrettably vague opinion that subsequently permitted the conviction of
the defendant in R v Crooks12 in circumstances of apparent retrospect.13
Nevertheless, the incapability doctrine, however real to the law until
1993, was always likely to be based upon a fiction, medical evidence that
modern adolescents enter puberty earlier than in previous centuries
accepted.14
Proof of intercourse under the Sexual Offences Act 1956, and the
common law previously to that, was established by proving penetration
only (s. 44) and no emission of seed was required. The absence of a
requirement to prove ejaculation is of no bearing upon the doctrine of
incapability because inasmuch as it might be regarded to have been
concerned with the physical aspect of the activity it looked only to the
capability of engaging in sexual intercourse, not completing it. Further to
that, the suggestion that no boy can be physically capable of achieving an
erection until he has reached the age of 14 years is not just implausible, it
is ridiculous.15 It is ridiculous because while the proportion of today’s
8 Malice supplements age.
9 The History of the Pleas of the Crown, vol. 1 (1736) 630—the presumption as to the child’s
lack of discretion (his status of being doli incapax) has, contrary to incapability, always
been rebuttable: 1 PC 434.
10...
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