The House considered whether the long established rule of the criminal law presuming that a child did not have a guilty mind should be set aside.
Held: Doli incapax, the presumption of a child’s lack of mens rea, is still effective and good law, but a child is not capable at law without the requisite knowledge. Judicial review was sought of the Director’s decision not to prosecute, but it was not suggested that the court’s jurisdiction to grant relief was ousted by section 29(3). Lord Lowry said that the presumption as too firmly embedded in the law of England to be removed by the judiciary: ‘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 a ‘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 thought of ‘judicial legislation’ on the lines proposed.’
Only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator.
Lord Jauncey discussed 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.’
Lord Lowry 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. ‘
and ‘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.’
Lord Lowry, Lord Jauncey
Times 17-Mar-1995, Independent 21-Mar-1995, (1995) Cr App R 136, [1995] UKHL 15, [1996] AC 1, [1995] RTR 261, [1995] 2 All ER 43, [1995] 2 WLR 383, (1995) 159 JP 269, [1995] 1 FLR 933, [1995] Fam Law 400, [1995] Crim LR 801
Bailii
Supreme Courts Act 1981 29(3), Prosecution of Offenders Act 1985 10
England and Wales
Citing:
Appeal from – C (A Minor) v Director of Public Prosecutions QBD 30-Mar-1994
The 12 year old defendant held the handlebars of a motorcycle allowing a second boy to try to remove the chain and padlock securing it. He appealed against his conviction.
Held: The presumption of doli incapax for a 10-14 year old child is no . .
Cited by:
Cited – Regina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners Admn 18-Oct-2001
The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act . .
Cited – Lewin v Crown Prosecution Service Admn 24-May-2002
The applicant sought review of the decision of the respondent not to initiate a prosecution in respect of a death in Spain. The deceased had been left drunk and unconscious in a car in the sun. There was a variance of opinion as to the exact cause . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Regina v Director of Public Prosecutions ex parte Treadaway Admn 31-Jul-1997
The applicant had been convicted of a robbery and served a long prison sentence. After release he was awarded damages against some of the policie officers for assault. The DPP decided not to proceed against the officers by way of criminal . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – JTB, Regina v HL 29-Apr-2009
The defendant appealed against his convictions for sexual assaults. He was aged twelve at the time of the offences, but had been prevented from arguing that he had not known that what he was doing was wrong. The House was asked whether the effect of . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Children, Constitutional
Leading Case
Updated: 01 November 2021; Ref: scu.78793