Neutral Citation Number: [2008] EWCA Crim 815
Case No: 200706413D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WORCESTER CROWN COURT
HHJ MacCREATH
T20070185
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/04/2008
Before :

LORD JUSTICE LATHAM
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
MR JUSTICE FORBES
and
SIR RICHARD CURTIS
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Between :

	R	Appellant	
	- v -		
	T	Respondent	

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Gareth Walters   for the Prosecution
Peter Blair, QC & Kerry Barker  for the Defence

Hearing dates: 3rd March 2008
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Judgment

Lord Justice Latham : 

1.	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. 
2.	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.”
3.	    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. 
4.	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.”  
5.	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.
6.	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.”
7.	This reflected the views of Blackstone who, in his Commentaries on the Laws of England, Chapter 2 of the Fourth Book page 23, entitled “Of the Person Capable of Committing Crimes”.  stated as follows:
“During the first stage of infancy and the next half stage of childhood, infantiae proxima, they were not punishable for any crime.  During the other half stage of childhood, approaching to puberty from 10½ to 14, they were indeed punishable, if found to be doli capaces, or capable of mischief; but with many mitigations and not with the utmost rigour of the law.  During the last stage (or the age of puberty, and afterwards) minors were liable to be punished, as well capitally, as otherwise.”
8.	In the article by Professor Walker to which we have already referred, there is a useful description of how the law had developed, drawn to large degree from an article by A W Kean, “The Criminal Liability of Children” LQR (1937) CCXI, 364 – 370.
“The presumption is so old that firm evidence is not easily to find.  Bracton’s 13th century treatise talks of children as being protected by “harmlessness of intention” (innocentia consilii), but does not specify an age limit (the protection in his day was the practice of pardoning convicted children rather than exempting them from trial and this expedient persisted until at least the 15th century).  
As with “insanity” it is not easy to be sure when inability to tell right from wrong became an excuse, because the institutional writers tended to use the ambiguous word “discretion”.  But the 1338 Year Book says that Edward III’s Judge Spigurnel decided that a child could be hanged for killing his friend, because by hiding, he had shown that “he could discern between good and evil”.  By the time of Lambard’s Erienarcha, designed as a handbook for Justices of the Peace and published in 1581, there could be no conviction of an infant under the age of 12 years, “unless it may by some evident token appeare that he had understanding of good and evill…” Spigurnel’s principle (if it was his), had become a rebuttable presumption; and by Hale’s time (the late 17th century) its age limit had been raised to 14.  Almost certainly it was not confined to homicide, for not many years after publication of Eirenarcha, Pulton is cited as applying it to theft.”
9.	These historical references are clearly important as explanations for the way in which the law has developed.  But they do not provide the real basis for a proper understanding of the meaning of section 34.  That depends upon what was meant, as we have already said, by “the presumption” in 1998.  That is not the word used either by Blackstone or Stephen.  As in so many problems of statutory construction, context is all.  And the context was the increasing dissatisfaction of the courts and some politicians with the principle which had underlain the doctrine of doli incapax, namely that children between the ages of 10 and 14 did not know that committing an act amounting to a crime was seriously wrong.  
10.	In JBH and JH (minors) v O’Connell [1981] Crim LR 632, Forbes J is recorded as having said:
“… in these days of universal education from the age of 5 it seems ridiculous that evidence of some mischievous discretion should be required if a case of malicious damage is committed as it was in this case.”
In A v Director of Public Prosecutions.[1992] Crim. LR 34, Bingham LJ in concluding that the facts of the case were not in themselves sufficient to displace the presumption, said:
“… children have the benefit of the presumption which in this case and some others seems to me to lead to results inconsistent with common sense”
11.	Encouraged by these judicial dicta, Laws J came to the clear conclusion, expressed with typical robustness, in C (A Minor) v Director of Public Prosecutions [1995] 1 Cr. App R. 118, that:
“The presumption relied upon by the appellant is no longer part of the law of England”
It is quite plain from the judgment that Laws J was intending, by the use of that phrase, to consign the concept of doli incapax to history.   At page 118 he said:
“It is no part of the general law that a defendant should be proved to appreciate that his act is “seriously wrong””.
12.	Throughout his judgment Laws J talks about the “presumption” as being co-terminus with the concept of doli incapax.  There is nothing to suggest that he considered that by dispensing with the presumption, the doctrine or concept of doli incapax had any part to play thereafter in determining criminal responsibility for those aged 10 and over.
13.	On appeal the House of Lords considered that Laws J had gone a step too far.  The decision, reported at [1995] 2 Crim App R 166, the leading speech being given by Lord Lowry, was to the effect that the presumption was too firmly embedded in the common law to entitle the courts to abrogate or amend it.  This case provided the essential background for the proposed changes which ultimately resulted in the enactment of section 34.  It seems to us therefore that it is of the greatest importance to determine what their Lordships considered the status of the presumption to be.  
14.	      As we have said, the main speech was that of Lord Lowry.  But it is interesting to note that Lord Jauncey said this about the position in Scotland:
“No such presumption operates in Scotland where normal criminal responsibility attaches to a child over 8 and I do not understand that injustice is considered to have resulted from this situation.”
It would seem, accordingly that he was contrasting the presumption on the one hand with full criminal responsibility on the other.  
17.     And that seems to us to be the way in which Lord Lowry approached the question.  Much of his speech was for obvious reasons, concerned with determining the extent to which the doctrine remained part of common law.  It also contained illuminating and thoughtful comments about the moral and social issues thrown up by the problem of the criminal responsibility of children.  In particular, he expressed the view that the arguments against the retention of the presumption expressed by Laws J. were not, it seemed to him, quite so self evident.  But more important, in determining the question we have to answer, is a passage in which he deals with the respondent’s case.  At page 185Gff. he said:
“Mr Henriques QC, presenting the respondent’s case, frankly conceded that the Divisional Court was bound by authority to recognise and apply the presumption, but he submitted that the presumption was illogical in conception and bizarre in its effect.  His written case submissions based on the current educational standards of children and on the ever earlier onset of their physical and psychological maturity, as witness by the recent statutory abolition of the irrebuttable common law presumption that boys under 14 are incapable of offences involving sexual intercourse on their own part (Sexual Offences Act 1993).  The written case also listed examples of legislative and judicial changes of attitude towards young children called as witnesses.  Against this background counsel submitted, not that the  presumption should be swept away but (echoing the 1954 proposal of Professor Glanville Williams) that in recognition of its frailties your lordships should by judicial intervention effect a change by laying it down that 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 then 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 to the criminal standard that the child was doli capax.  That your Lordships in a judicial capacity could make this change which counsel categorised as merely procedural, was an express and necessary part of his argument. 
Of course no one could possibly contend (nor did Mr Henriques try to do so) that this proposal represents what has always been the common law; it would be a change or “development”.  It is quite clear that as the law stands, the Crown must, as part of the prosecution’s case show that a child defendant is doli capax before that child can have a case to meet.  To call the proposed innovation a merely procedural change greatly understates, in my view, its radical nature, which would not be disguised by continuing to impose the persuasive burden of proof upon the prosecution.  The change would not merely alter the trial procedure but would in effect get rid of the presumption of doli incapax which must now be rebutted before a child defendant can be called for his defence and the existence of which will in practice often prevent a charge from even being brought.  This reflection must be enough to discourage any thoughts of   “judicial legislation” on the lines proposed. 
Finally, at page 189 A he said:
“One solution which has been suggested is to abolish the presumption with or without an increase in the minimum age of criminal responsibility.  This, as Mr Robertson pointed out, could expose children to the full criminal process at an earlier age than most countries of Western Europe.”
18.	Nowhere in any of these passages, or indeed in any other part of his speech, did Lord Lowry suggest that the concept of doli incapax had any existence separate from the presumption.  If he had considered that it had, that must surely have been part of the reasoning and argument in the part of his speech to which we have referred which starts at page 185G.  Accordingly, it seems to us, Lord Lowry must have considered that the abolition of the presumption would indeed have had the effect of lowering the age of criminal responsibility to 10, as he intimates in the passage at page 189A.
19.	That was the background against which the Labour Party consultation paper Tackling Youth Crime; Reforming Youth Justice was published in 1996 in which it was argued that the law was unsatisfactory as most young people aged 10 -13 were plainly capable of differentiating between right and wrong.  After the Labour Party won the election in 1997, the Home Office Consultation paper, again entitled Tackling Youth Crime published in September 1997 boldly stated that the presumption urgently required reform because it “flies in the face of common sense”, was “archaic”, “illogical” and “unfair in practice”.  It stated that the mischief to which the abolition of the presumption was aimed was the difficulty of the prosecution having to rebut the presumption in every case.  In her judgment in Crown Prosecution Service –v- P, Smith LJ considered that this mischief could be mitigated by the simple abolition of the presumption, leaving it for the child defendant to raise the defence.
20.	But, as Mark Telford has pointed out in his article Youth Justice: New Shoots on a Bleak Landscape – Director of Public Prosecutions v P, Child and Family Law Quarterly 1 December 2007, the consultation paper identified two possible options, namely abolition of the presumption on the one hand, and reversal of the presumption on the other.  The former was the Government’s preferred option, and was the one which was carried forward into the White Paper, No More Excuses: A New Approach Tackling Youth Crime in England and Wales.  It is difficult to see in those circumstances how the abolition of the presumption was intended to result in anything other than the abolition of the concept of doli incapax as having any effect in law.  In our view that accords with the way in which the matter was approached by Lord Lowry with unanimous approval of their Lordships, in (C) A Minor v Director of Public Prosecutions.  In our judgment, accordingly, Parliament must be taken to have intended “the presumption” to encompass the concept of doli incapax when it was abolished in section 34.  That, appears to us to have been the common understanding of the words at the time that the Act was passed.
21.	Assuming, for the moment, that despite the views that we have expressed, the phraseology of section 34 is ambiguous or obscure, the only material which could lead to a contrary conclusion, is the passage in the speech of Lord Falconer to which we have already referred.  All other statements made in the course of debates accord with the views expressed in the consultation paper, and the White Paper.  We note in particular what Mr Straw said on 3rd June, 1998; “with great respect, we are abolishing the concept of doli incapax”.   The result is, in our view that the question has to be resolved by determining whether or not by 1998, it could properly be said that the concept of doli incapax did indeed have existence separate from the presumption.  For the reasons that we have already given, we do not consider that it had.
22.	We accordingly dismiss the appeal.