Court of Appeal, Criminal Division

Published May 5, 2008

Regina v T (Child: Doli incapax)

The statutory abolition of the rebuttable presumption that a child aged 10 or over was incapable of committing an offence also abolished the common law defence of doli incapax.

The Court of Appeal, Criminal Division, (Lord Justice Latham, Mr Justice Forbes and Sir Richard Curtis) so held, on April 16, 2008, when dismissing an appeal by the defendant, aged 12 at the time of the offences, against his conviction, on October 4, 2007, at Worcester Crown Court (Judge McCreath and a jury), of 12 counts of causing or inciting a child under 13 to engage in sexual activity, for which he was sentenced to a three-year supervision order.

LORD JUSTICE LATHAM, giving the reserved judgment of the court, said that Lord Justice Smith had expressed the tentative view, obiter, in Director of Public Prosecutions v P ([2007] 4 All ER 628), that section 34 of the Crime and Disorder Act 1998 had merely abolished the presumption, leaving the concept of doli incapax intact.

In the instant case, Mr Peter Blair, QC, argued the common law defence of doli incapax on behalf of the defendant.

In their Lordships’ judgment, Parliament must have been taken to have intended the presumption to encompass the concept of doli incapax, when it was abolished by section 34. By 1998, it could not properly have been said that the concept of doli incapax had existence separate from the presumption.

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