House of Lords (Lord Jauncey of Tullichettle, Lord Bridge of Harwich, Lord Ackner, Lord Lowry and Lord Browne-Wilkinson). 16 March 1995.
It is still the law that a child aged 10 to 14 is presumed incapable of committing a crime unless there is clear evidence, apart from the evidence of the offence itself, that he knew that his act was seriously wrong.
The House of Lords so declared, answering in the affirmative a question of law of general public importance certified by the Queen's Bench Divisional Court ( 3 WLR 888) and allowing an appeal by the child referred to as C against a conviction, by Liverpool Youth Justices on 22 September 1992, for interfering with a motorcycle with intent to commit theft or to take and drive away without consent.
C was 13 at the time, but the justices inferred from the facts of the offence itself that he knew he had done something seriously wrong. C's solicitor submitted this was insufficient.
On an appeal by case stated, Lord Justice Mann and Mr Justice Laws in the Divisional Court considered whether the ancient doctrine of "doli incapax", under which 10- to 14-year-olds were deemed incapable of criminal intent unless the contrary were shown, had outlived its usefulness: they held it had and it should no longer be regarded as part of the common law. On this basis, they upheld C's conviction.
Geoffrey Robertson QC and Andrew Nicol (RM Broudie & Co, Liverpool) for C; Richard Henriques QC and J Trevor Parry-Jones (CPS HQ) for the Crown.
LORD LOWRY said the presumption had been discussed in many official reports and had been the background of legislation concerning the age of criminal responsibility. In 1985, a draft Bill for the Codification of the Criminal Law called for the abolition of the presumption, so that a child would pass from complete criminal irresponsibility to full responsibility without any intermediate zone.
The Government's response, in a White Paper entitled "Crime, Justice and Protecting the Public" (1990, Cmnd 965) at para 8.4, was to propose that: "between the ages of 10 and 13 a child may only be convicted of a criminal offence if the prosecution can show that he knew that what he did was seriously wrong. The Government does not intend to change these arrangements which make proper allowance for the fact that children's understanding, knowledge and ability to reason are still developing."
His Lordship was convinced that the presumption was still universally recognised as an effective doctrine which the Government had recently reaffirmed to be, in its view, part of the criminal law. The imperfections attributed to the doctrine could not justify saying the presumption was no longer part of the law. To sweep it away under the doubtful auspices of judicial legislation was quite impracticable.
It was suggested for the Crown that the presumption, rather than being swept away, should be changed so the prosecution's initial burden of showing a prima facie case against a child should be the same as if the accused were an adult, but that the child should be able by evidence to raise as a defence the issue that he was doli incapax; it would then be for the prosecution to prove he was not.
But this was more than a procedural change; it would get rid of the presumption, the existence of which would in practice often prevent a charge from even being brought. That was enough to discourage any thought of judicial legislation on the lines proposed.
Meanwhile the presumption continued to apply. That meant:
(1)the prosecution had to prove beyond reasonable doubt that the child defendant did the act charged and that when doing it he knew it was a wrong act as distinct from mere naughtiness or childish mischief; and
(2)the evidence relied upon to prove the defendant's guilty knowledge could not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act might be.
LORD JAUNCEY, LORD BRIDGE, LORD ACKNER and LORD BROWNE-WILKINSON concurred.
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